Trivializing Torture: The Office of Legal Counsel’s 2002 Opinion Letter and International Law Against Torture
Trivializing Torture: The Office of Legal Counsel's 2002 Opinion Letter and International Law Against Torture
b y R o b e r t K . G o l d m a n 0 1 2 3 4
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0 Vanessa Allen , Gillian Brady, Michelle Donme, Gabriel Eckstein, Fernando González Martín, Claudia Martín, Mair McCafferty, Rochus Pronk, Ayesha Qayyum, Diego Rodríguez-Pinzón, Brian Tittemore, and Shashikala Warrier
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2 Professor of Law & Louis C. James Scholar; Co-Director, Center For Human Rights & Humanitarian Law and Faculty Director, War Crimes Research Office, American University Washington College of Law. Professor Goldman was a member of the Inter- American Human Rights Commission from 1996 to 2004 and served as its President in 1999. The author is grateful to Herman Schwartz and Brian Tittemore for their helpful suggestions in the preparation of this essay , USA
3 Anebi Adoga , Anne Briggs, Fernando González-Martín, Jennifer M. Hentz, Richard H. Kamm, Sarah Paoletti, Alejandro Ponee-Villacís, Amy Stern, Jaime Underwood, and Kristi Severance
4 For more information, please contact: Shazia N. Anwar, Competition Coordinator Inter-American Human Rights Moot Court Competition American University Washington College of Law Center for Human Rights & Humanitarian Law 4801 Massachusetts Ave. , NW Washington, DC 20016-8181 Phone: (202) 274-4180 Fax: (202) 274-0783 , USA
IIraqi detainees by U.S. military personnel at the Abu Ghraib N LATE APRIL OF THIS YEAR, GRAPHIC PICTURES surfaced in the U.S. and foreign media depicting the ill-treatment of prison near Baghdad. Shortly thereafter, excerpts of a leaked report prepared by Major General Antonio Taguba, who investigated these abuses in February 2004, appeared in the May 10 issue of the New Yorker magazine. In his report, Taguba confirmed that U.S. military police had punched, slapped, and kicked Iraqi detainees, forced them to strip and perform sex acts, and had used military dogs to intimidate them. Labeling such conduct “sadistic, blatant and wanton criminal abuse,” Gen. Taguba concluded that the U.S. personnel involved had committed “grave breaches of international law.” The furor at home and abroad over the prison scandal was soon fueled by the publication of several leaked memoranda prepared by lawyers and other Executive branch officials concerning the interrogation of persons detained by the United States in the “war on terrorism,” including those held at Guantanamo Bay and elsewhere. Of these memos, the August 1, 2002, legal opinion prepared by the Department of Justice's Office of Legal Counsel for Alberto Gonzales, counsel to President Bush, is the most revealing and dismaying in its argumentation. Written in response to a request from the CIA seeking authority to conduct more “vigorous” interrogations of terrorist suspects, the opinion has been harshly criticized for essentially authorizing and justifying torture in violation of international and U.S. law. Before examining that opinion, it might prove instructive to review the nature of the prohibition against torture and cruel, inhuman, and degrading treatment in international law, and to briefly survey the jurisprudence of key human rights bodies on the subject.
THE PROHIBITION OF TORTURE
BOTH TORTURE AND CRUEL, INHUMAN, OR DEGRADING
treatment are absolutely prohibited by conventional and customary
international human rights and humanitarian law. These
proscriptions in human rights law are contained in the 1948 Universal
Declaration of Human Rights, the 1948 American Declaration of
the Rights and Duties of Man, the International Covenant on
Civil and Political Rights (ICCPR), the 1984 UN Convention
against Torture and Other Cruel, Inhuman and Degrading
Treatment (Torture Convention), the American Convention on
Human Rights (American Convention), the European
Convention for the Protection of Human Rights and
Fundamental Freedoms (European Convention), and the African
Charter on Human and Peoples’ Rights. Each of these treaties
(except for the African Charter) expressly made prohibitions of
torture non-derogable, which means that they cannot be
suspended for any reason, including war or any other emergency situation.
Comparable prohibitions have evolved in the customary laws of
war since the mid–19th century and are codified in the four 1949
Geneva Conventions and their two Additional Protocols of 1977.
So extensive and well-established is the prohibition against
torture in general international law that it imposes on states
obligations erga omnes—that is, obligations that every state owes to all
other members of the international community. Moreover, the
proscription against torture is also widely regarded as having
attained the status of jus cogens, or a peremptory norm embod (...truncated)