Preventing Torture: An Introduction to the Symposium Issue
Lisa Davis, Preventing Torture: An Introduction to the Symposium Issue
Preventing Torture: An Introduction to the Symposium Issue
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Preventing Torture: An Introduction to the Symposium Issue
Acknowledgements
I would like to give a special thanks to Dejana Perrone, Managing Editor, for her hard work and dedication to
the Journal.
Thi s article is available in City University of New York Law Review: https://academicworks.cuny.edu/clr/vol11/iss2/2
PREVENTING TORTURE: AN INTRODUCTION
TO THE SYMPOSIUM ISSUE
Lisa Davis*
In the landmark 1980 case, Fila´rtiga v. Pen˜a-Irala, the U.S.
Second Circuit Court of Appeals, held that U.S. courts could punish
foreign citizens for torture committed outside the United States.1
The Court wrote that, “[T]he torturer has become like the pirate
and slave trader before him hostis humani generis, an enemy of all
mankind.”2 Yet, today, for the first time in our post World War II
history, torture has been both secretly practiced and openly
sanctioned by the U.S. government.
Torture is prohibited under a wide range of international and
regional instruments as well as under international criminal and
humanitarian law.3 However, the U.N. Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“the Convention”),4 is the only legally binding
instrument at the international level that exclusively addresses the
universal elimination and prevention of the practice of torture.
Since its adoption in 1984, 144 States including the United States
* Editor-in-Chief, New York City Law Review (2007–2008); M.A., International
Politics, American University, 2005; J.D., City University of New York (CUNY) School
of Law, 2008. I would like to give a special thanks to Dejana Perrone, Managing
Editor, for her hard work and dedication to the Journal.
1 630 F.2d 876, 890 (2d Cir. 1980).
have ratified the Convention.5
In November 2007, the U.N. Committee Against Torture
(“Committee”) adopted General Comment No. 2, which addresses
the erosion of human rights witnessed during the post-September
11th era.6 This historic Comment codifies the principles and
norms of the Committee with respect to the prohibition of
sexualized torture and gender violence in custodial situations as well as
where States acquiesce to private violence, including domestic
violence. While most treaty bodies have issued a substantial number
of General Comments, the Committee has been more sparing in its
approach. Accordingly, Comment No. 2 is particularly important
as it crystallizes the evolving jurisprudence of the Committee. This
in turn has helped to develop both the understanding and scope of
the Convention’s prohibitions and obligations.
The General Comment is one of the United Nations’ most
significant mechanisms for advancing human rights, especially as it
acquires over time broad acceptance and adherence by States
parties. General Comments of the U.N. treaty bodies are not like legal
judgments that contain detailed explanation and reasoning.
Rather, they articulate applicable general principles and
recommended conduct. General Comments’ interpretations of treaty
provisions help to shape the discourse of human rights and States’
obligations to maintain them for their citizens. Since the United
States is a State party to the Convention, the standards articulated
in General Comment No. 2 have vital applicability to the former
practices of the Bush administration and to reforms the Obama
administration will need to make in order to bring U.S. law and
practice into conformity with international standards.
General Comment No. 2 is a timely and critical contribution
to the process of understanding and insisting upon adherence to
the international rule of law as well as recognizing the
incompatibility of torture with democracy, security and human dignity.
States, national human rights commissions and human rights
experts from around the world contributed to the draft proposal for
Comment No. 2, addressing issues arising from violations that
purport to be “justified” in the name of counter-terrorism.7 The
Com2008]
ment underscores the non-derogability of torture and the
responsibility of the State to take vigorous, effective measures to
prevent torture and other cruel, inhuman or degrading treatment
or punishment (“CIDT”) wherever they are practiced. Comment
No. 2 will play an extremely significant role in the future work of
the Committee, in the practice of ratifying States, and in the
further development of the international norm against torture.
Given the importance of Comment No. 2, it is crucial to raise
awareness of this very significant development in the international
understanding of torture as well as to encourage the (...truncated)