LESSONS ENCOUNTERED

Rostow and Rishikof
Prohibition on Torture
Domestic and international law have relevancy to interrogation of those seized
in connection with international military and other operations. With regard
to those detained as a result of counterterrorism operations, including military
operations, since September 11 discussion has focused on the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
and implementing legislation in the United States.
The United Nations Convention against Torture defines torture as:
any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing him for
an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity. It does
not include pain or suffering arising only from, inherent in or incidental
to lawful sanctions. 130
The United States ratified the convention with a Senate-approved understanding
that torture meant an act “specifically intended to inflict severe physical
or mental suffering” resulting from the intentional infliction or threat of
infliction, or infliction or threat of infliction on a third person, of severe physical
or mental pain or suffering. 131 The Federal Torture Act implementing this
convention was adopted in 1994 and incorporated the understanding as statutory
language. 132 The Torture Statute imposed criminal penalties on actions
against “one who specifically intends to inflict severe physical pain or mental
pain or suffering.” 133 Since 1992, the United States also has been a party to the
International Covenant on Civil and Political Rights, which prohibits “torture
or . . . cruel, inhuman or degrading treatment or punishment.” 134 The question
became: What is torture?
366