Torture

Abstract

This chapter focuses on the legal status of torture, assessing the implications of an international ban on torture that coexists with a nontrivial level of torture in practice. This is not simply a case of torture law being violated. There is wide, perhaps unanimous, agreement that torture is prohibited by international law, and the legitimacy of the ban is rarely contested. The rule is established most directly by the Geneva Conventions and 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment (CAT), but it is also widely held that torture is outlawed under jus cogens norms intrinsic in the international system. Despite this, many governments engage in practices that seem clearly prohibited by laws against torture. Much of this behavior comes with detailed defense of its legality. Thus, the politics of torture generally address questions of what constitutes torture, not concerns over the ban itself. This is precisely how the Bush administration used anti-torture law: to demonstrate that its actions were not subject to the rules. Officials sought a zone of legally protected irresponsibility. They used international law against torture as tools to legalize torture.