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Journal of International Criminal Justice 2008 6(2):323-345; doi:10.1093/jicj/mqn010
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© Oxford University Press, 2008, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org

This article appears in the following Journal of International Criminal Justice issue: Special Issue The Law of Cruelty: Torture as an International Crime [View the issue table of contents]

III. Suing Torturers for Compensation: Mission Impossible?

Guantánamo Torture Litigation

Jaykumar A. Menon*

* Research Fellow, Centre for International Sustainable Development Law, based at McGill University, Montreal, Quebec. JD Columbia Law School, Master of International Affairs, Columbia University, BA Brown University. The author has litigated torture cases on behalf of the Center for Constitutional Rights, a nonprofit organization which served as co-counsel for the plaintiffs in Rasul v. Myers, the case discussed here. [jmenon{at}cisdl.org]


  Abstract

Question: What happens when former Guantánamo detainees sue the US Secretary of Defense, raising claims of torture? Answer: A thicket of immunity defences bars their claims. But in the process, a US appeals court finds that torture of the detainees is ‘foreseeable,’ that it is ‘incidental’ to conduct authorized, and that detainees under the sole control of the US government have no constitutional rights. This language may ultimately prove more provocative than the dismissal itself.


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