Journal of International Criminal Justice Advance Access originally published online on April 8, 2008
Journal of International Criminal Justice 2008 6(2):215-239; doi:10.1093/jicj/mqn012
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I. The Legal Contours of the Crime of Torture |
Just Short of Torture
Abusive Treatment and the Limits of International Criminal Justice
* Associate Professor of Political Science and Law, Wayne State University; J.D., Harvard University, 1987; LLM., Columbia University, 1992; Ph.D., University of California, Berkeley, 1996. The author wishes to thank Jens David Ohlin, Jamie Mayerfeld, Mary Ellen O’Connell, Kirsten Campbell, Kenneth Anderson and Mark Osiel for their helpful comments. [brad.roth{at}wayne.edu]
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Abstract |
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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.