The international convention against torture needs to be strengthened, argues Ben Saul
The torture scandal rocking the US and British militaries in the ‘war on terror’ is shocking because of the serious breaches of international law involved. But it also exposes serious flaws and ambiguities in the international legal framework prohibiting and criminalising torture.
In the first place, in defining terrorism, the Convention against Torture does not list individual acts of torture, but merely provides a general definition. Torture is defined as the intentional infliction of severe pain or suffering, by a public official, for one of four purposes: to obtain information or a confession, to punish, to intimidate or coerce, or to discriminate against a person.
The failure of the convention to name and shame specific acts as torture allows unscrupulous government lawyers to claim that certain acts are merely aggressive, but permissible, interrogation techniques. The US Departments of Defence and Justice issued extraordinary guidelines to this effect, approving a variety of ‘stress and duress’ techniques such as sleep or light deprivation, continuous light or noise exposure, withholding food and water or medical treatment, prolonged solitary confinement, exposure to high or low temperatures, forced standing in painful positions, hooding or blindfolding, and shackling.
It remains to be seen how high up the chain of military and political command these techniques were authorised, and the US Justice Department has since recanted its defence of these methods. Yet, it is clear that torture in US custody was not merely the result of isolated acts by renegade individuals, but was part of a calculated and conscious policy designed to push the law to its limits.