Journal of International Criminal Justice - current issue

Introduction

Ohlin, J. D., Fletcher, G. P. — 2008-05-15

Torture in the Jurisprudence of the Ad Hoc Tribunals: A Critical Assessment

Burchard, C. — 2008-05-15

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.

When is the Involvement of State Officials a Requirement for the Crime of Torture?

Gaeta, P. — 2008-05-15

Torture is prohibited by a certain number of international instruments — a demonstration of the willingness of the international community to outlaw torture in all its manifestations. Yet this set of legal rules seems to have generated confusion as regards the definition of torture. One controversial aspect concerns the requirement that for torture proper to be committed, it must be carried out by state officials or with their involvement. The author argues that the notion of torture depends upon the particular context in which it is used. In the field of international criminal law, the notion of torture as a crime per se, i.e. as a crime which is punishable as such, even if perpetrated sporadically and regardless of whether it is perpetrated in time of peace or war, requires the involvement of a state official. This is so because it is necessary not to ‘trivialize’ the interference of the international community into the realm of criminal law by imposing the criminalization of every single instance of wicked conduct of an entirely private nature. By contrast, the requirement of state official is not needed anymore for torture as a war crime or a crime against humanity. In both cases the quid pluris that turns the infliction of severe pain and suffering into a crime of international concern is the contextual element, i.e. the particular context of violence surrounding the criminal act, coupled with the need to protect the mental and physical integrity of human beings when they are systematically disregarded by deviant behaviours, or when a situation of armed conflict put them at great risk. On the other hand, the notion of torture is wider in non-criminal law contexts. Under human rights treaties, a state can be held responsible for every single instance of torture, including pain and suffering inflicted by a private individual against another private individual under his custody. The reason is that under such treaties states are obliged not only not to violate themselves the protected rights, but also to act as their ultimate defenders when the full enjoyment of those rights is jeopardized by private individuals. The legal definition of torture is a sort of chameleon that — while always embracing the notion that the infliction of acute pain and suffering upon a person under the control of another is required — by necessity changes the colour of its skin as far as additional elements are concerned, depending on the context in which it is situated.

Implementing the UN Convention Definition of Torture in National Criminal Law (with Reference to the Special Case of Italy)

Marchesi, A. — 2008-05-15

The UN Committee against Torture considers the introduction of a distinct offence of torture in domestic law to be the most effective way of implementing Article 4 of the Convention against Torture. States parties which have introduced or are in the process of introducing a separately defined offence of torture have nonetheless frequently adopted definitions which are not entirely adequate in the light of the Convention. Problematic areas include ‘mental’ torture, torture for the purpose of discrimination, the role of state agents in the practice of torture and exceptions which are different from the ‘lawful sanctions’ exception provided for in the Convention itself. The case of Italy is a good illustration of the kind of obstacles which frequently arise when states are invited to introduce an ad hoc offence of torture. While maintaining that enacting a specific prohibition is not required by the Convention, the Italian Government has apparently accepted the idea that its introduction in Italian law would represent an improvement — without, in fact, doing much to achieve this result. As for the definitions of torture, the debate on the numerous bills providing for a specific offence of torture which have been tabled in the Italian Parliament during the last three parliamentary terms has focused on two main aspects. First, according to the majority of the members of Parliament (MP), in order to comply with the Constitutional principle of determinacy, the offence must be defined with reference to the conduct amounting to torture, i.e. to the type of act by which pain or suffering is inflicted on the victim. Some of the bills which define the act of torture do so in restrictive terms and are clearly not in conformity with Article 1 of the Convention. Second, opinions are divided with respect to the role of public officials (or other persons acting in an official capacity) in committing the crime of torture: while some MPs are in favour of introducing a reato proprio, i.e. a crime that only a public official can commit, others have proposed a common crime of torture. This, however, may be too similar to certain generic offences under Italian law that do not catch the essence of torture or insufficiently take into account its grave nature.

Just Short of Torture: Abusive Treatment and the Limits of International Criminal Justice

Roth, B. R. — 2008-05-15

Few juridical tasks are more distasteful than specifying the distinction between torture and ‘mere’ cruel, inhuman and degrading treatment. Although the distinction itself may seem morally obtuse, it is a line, not between prohibited and permissible conduct, but between categories of prohibited conduct that are subject to distinct implementation regimes. The Torture Convention combines a narrow exposure of individual state officials to prosecutions in foreign courts for the international crime of torture with a broad state responsibility for the decent treatment of all detainees under all circumstances. To ignore or blur the distinction would not necessarily strengthen real accountability; to the contrary, allowing extraterritorial prosecutions for acts short of the torture threshold would unduly jeopardize agents of politically unpopular governments, would furnish a tool for political actors bent on undermining peaceful and respectful international relations, and would, paradoxically, risk producing a perverse downward pressure on the standards for detainee treatment.

What is Really Wrong with Torture?

Harel, A., Sharon, A. — 2008-05-15

How can deontologists reconcile the stringency of the moral prohibition on torture with the recognition that it may sometimes be the only means to prevent catastrophe? This article proposes a conception of deontology that allows for the resolution of this dilemma. Casting deontology in terms of the distinction between categorical and conditional obligations, we articulate a theoretical distinction between principles and exceptions. Torture can never be permitted or authorized by a rule or principle. Whenever it is justifiably performed it is performed under urgent and exceptional circumstances. On this basis the practical necessity of torture may be acknowledged, while the categorical nature of the prohibition on torture is maintained. This explains how torture might be categorically prohibited by international law, yet at the same time be subject to a defence of necessity or duress under international criminal law.

May a State Torture Suspects to Save the Life of Innocents?

Ambos, K. — 2008-05-15

The old debate on the (Israeli) ticking bomb cases must be revisited in the light of the increasing threat by terrorist bombers and a recent German kidnapping case. Both cases may be combined as one ‘model case’ to test whether the claim of a truly absolute prohibition of torture can really stand in extreme situations where the use of torture may be the only means to obtain the necessary information to prevent great(er) harm for innocents. Even in these situations the absolute prohibition against torture must not be relaxed ex ante and in abstracto — given the unequivocal situation in international law and the negative policy implications a flexible approach would have. However, this does not necessarily entail the individual investigator's criminal responsibility ex post and in concreto given the conflicting duties — to respect the (terrorist) suspect's human dignity and at the same time (actively) protect potential victims of this suspect's action — he has to face. A just solution to this dilemma can only be found by distinguishing between, on the one hand, the state and the individual level, and on the other hand, between (non-) justification (wrongfulness) of the act of torture and excuse (personal blameworthiness) of the torturer. Thus, the investigator may be excused, but his conduct not justified, since this would convert the torture into something lawful or even socially acceptable and thus undermine the absoluteness of the conduct rule not to torture. This result is developed in the last part of this article taking into account the relevant provisions of the Israeli and German Penal Codes and the ICC Statute (Part 4). Before the Israeli and German cases can be compared (Part 1), some clarifications as to the status and rationale of the international prohibition of torture must be made (Part 2) and a ‘model case’, where preventive torture may be necessary should be considered (Part 3).

The Bounds of Necessity

Ohlin, J. D. — 2008-05-15

The current controversy surrounding the legality of torture can only be understood through an analysis of the distinction between justified necessity and excused necessity. Although there may be strong prudential reasons for international criminal courts to declare torture unlawful under any circumstance, this would not necessarily prevent a court from recognizing that an excuse may apply. However, the hallmark of the necessity excuse should not be understood, as it is in German law, as an exception that only applies when a defendant breaks the law to save someone close to him. Rather, the basic principle of the excuse ought to be that the impending harm so weighs on the conscience of the defendant that his autonomy is impermissibly infringed by the necessity of the situation. Given that the prospect of massive casualties might compel a police or military official to engage in torture, the relationship between the defendant and the potential victims is irrelevant. All that matters is that the defendant is torn between, on the one hand, a deontological commitment to treat all suspects humanely, and on the other, a consequentialist concern with the deaths of many innocent victims. Commentators have wrongly assumed that these consequentialist concerns are only relevant for justified necessity. But if a court finds that the pull of the latter is so strong that to resist it would require an act of extreme moral courage, the culpability of the defendant is negated and the defence of excused necessity could be applied.

Torture v. the Basic Principles of the US Military

Wallace, D. A. — 2008-05-15

It has already been noted that the recent legal justifications for torture provided by Bush Administration officials contravene human rights law, international criminal law and international humanitarian law as expressed in treaties and customary rules. However, the author provides a legal and policy analysis informed by military law to demonstrate that the use of torture or ill-treatment of detainees also contravenes the stated policy of the US military and is inconsistent with the basic principles of lawful warfare. More importantly, torture and the ill-treatment of prisoners are both ineffective as an interrogation tool and also hamper military effectiveness by destroying discipline. These reasons, in addition to the obvious moral considerations, demonstrate why modern armies have consistently adhered to customary and treaty rules prohibiting torture and the ill-treatment of prisoners. The author concludes that the basic principles of warfare demand that this prohibition constitutes a bright-line rule that applies to all prisoners regardless of legal status.

Guantanamo Torture Litigation

Menon, J. A. — 2008-05-15

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.

Can Victims Sue State Officials for Torture?: Reflections on Rasul v. Myers from the Perspective of International Law

Fassbender, B. — 2008-05-15

In Rasul v. Myers the US Court of Appeals for the District of Columbia Circuit dismissed on 11 January 2008 appeals against decisions of the US District Court for the District of Columbia of 6 February 2006 and 8 May 2006, respectively. The original lawsuit was brought on behalf of four former Guantánamo detainees, citizens and residents of the United Kingdom, against the then Secretary of Defense, Donald Rumsfeld, the Chairmen of the Joint Chiefs of Staff and other senior military officers. The plaintiffs sought damages for their alleged maltreatment and torture at the US Naval Base at Guantánamo Bay in violation of international law and US constitutional and statutory law. The case raises important questions of international law which are addressed in this article. It puts to the test the assumption that post-World War II international law is characterized by a steady increase in the status and role of the individual. But is today an individual entitled to get his or her international human rights recognized by a foreign domestic court, and to be awarded damages if those rights have been violated? After briefly recalling those facts of the case and the arguments of the Court which are important for its evaluation from the perspective of international law, the article first examines the issue of a civil liability of a state, or state officials individually, for violations of human rights law and humanitarian law. The author then turns to the issue of enforcement of such a liability by a right of a victim to have access to the judicial system of the respective state. Thirdly, the article draws attention to the similarity of criminal punishment and punitive damages, arguing that a general exclusion of individual civil liability for acts of torture runs counter to the obligation of states to prosecute and punish individuals responsible for acts of torture. Subsequently, the issue of a personal immunity of state officials in civil proceedings is discussed. As a last important question of international law raised by the case, the author identifies the debatable compliance of the United States with Article 14(1) of the Convention against Torture, which obliges states parties to ensure in their legal systems that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation. The author concludes that, although the advanced process of a ‘humanization’ of international law suggests civil liability of state officials for violations of international law, so far states have not been ready to agree on it.

Why Article 5 Status Determinations are not 'Required' at Guantanamo

Dehn, J. C. — 2008-05-15

On 17 December 2007 the Military Commission convened to try Salim Ahmed Hamdan ruled that, as part of Hamdan's challenge to its jurisdiction, Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War (GPW) required the Commission to entertain Hamdan's claims of entitlement to prisoner of war status. The Commission rejected those claims and found Hamdan to be an unlawful combatant subject to its jurisdiction two days later. The author concludes that the Commission's decision to grant an Article 5 status determination was consistent with international humanitarian law. He further argues, however, that the Commission's decisions to conduct the status determination and to consider all-claimed prisoner of war categories under the GPW were inconsistent with the Military Commission Act, specifically its definition of lawful and unlawful combatants and, hence, inconsistent with the US national law governing the Commission.

Under What Conditions May Belligerents be Acquitted of the Crime of Attacking an Ambulance?

Cassese, A. — 2008-05-15

The author discusses a decision handed down in 2007 by an Italian military court concerning the firing by Italian troops on an Iraqi ambulance in 2004, at Nassiriyah, resulting in the killing of four civilians. The court held that the action was covered by the defence of putative ‘special military necessity’ and consequently acquitted the two defendants. The author argues that the accurate basis on which to exclude criminal culpability, both under Italian law and international criminal law, could be the excuse of putative self-defence. He also raises the issue of whether in that case the servicemen behaved negligently in acting in the belief that the ambulance was likely to be a car-bomb. The author then discusses the question of compensation to civilians for violations of international humanitarian law, regardless of whether such violations entail the criminal liability of the perpetrators.

Ronald C. Slye and Beth Van Schaack, International Criminal Law and Its Enforcement - Cases and Materials

Sloane, R. D. — 2008-05-15

Noelle N.R. Quenivet, Sexual Offenses in Armed Conflict & International Law

Gurd, T. — 2008-05-15

Gideon Boas, The Milosevic Trial: Lessons for the Conduct of Complex International Criminal Proceedings

Wilson, P. — 2008-05-15

Thilo Marauhn (ed.), Bausteine eines europaischen Beweisrechts

Schuttpelz, O. — 2008-05-15

Donatella della Porta, Abby Peterson and Herbert Reiter (eds), The Policing of Transnational Protest

Smith, F. C. — 2008-05-15

Geert-Jan Alexander Knoops, Redressing Miscarriages of Justice: Practice and Procedure in National and International Criminal Law Cases

Carrier-Desjardins, L. — 2008-05-15