Preventing Torture: An Introduction to the Symposium Issue

City University of New York Law Review, Dec 2008

By Lisa Davis, Published on 07/01/08

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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 Part of the Law Commons 0 0 The C UNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact , USA Follow this and additional works at: https://academicworks.cuny.edu/clr Recommended Citation - 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)


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Lisa Davis. Preventing Torture: An Introduction to the Symposium Issue, City University of New York Law Review, 2008, Volume 11, Issue 2,