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]
I. The Legal Contours of the Crime of Torture |
Torture in the Jurisprudence of the Ad Hoc Tribunals
A Critical Assessment
* Dr. iur.; LL.M. (NYU). Research Fellow for and ‘Habilitand’ of Prof. Dr. Joachim Vogel, University of Tübingen, Germany. [christoph.burchard{at}jura.uni-tuebingen.de]
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Abstract |
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Today's definition of torture is radically different from torture as understood in medieval times. The jurisprudence of the ad hoc tribunals has furthered our understanding of ‘modern torture’ as it confronts unique contemporary challenges: non-state and even private actors committing seemingly random acts of violence, often unconnected to their old venues: criminal proceedings, corporal punishment and forced confessions. In the first part the author systematizes the various elements of torture (from the actus reus, to the requisite mens rea, to cumulative convictions and sentencing) under international criminal law. In part two the author reviews two developments in the definition of torture. While the article's analysis supports the expansion of the list of prohibited purposes (because torture is a crime which grossly violates the autonomy of human beings), the author criticizes the deletion of the official sanction requirement, because in his view, international criminal justice deals not with torture as a discrete crime, but rather with torture as a war crime and crime against humanity.