Washington & Lee Law Review, Vol. 67, p. 77, 2010
58 Pages Posted: 4 Apr 2009 Last revised: 30 Jun 2010
Date Written: April 2, 2009
The definition of torture is broken. The malleability of the term "severe pain or suffering" at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The "I know it when I see it" nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law's reliance on self-enforcement is considered.
After discussing current misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, this article describes the reality of intelligence collection. It then reviews the wide range of competing definitions of torture; those provided by international courts, those proposed by commentators and those implemented by governments around the world. Some proposed definitions are so broad that practically any form of interrogation would be illegal, others so narrow as to allow for a wide variety of shockingly brutal techniques.
What becomes apparent, not surprisingly, is that people or governments under pressure from terrorist attacks view the definition of "severe pain and suffering" differently from those outside such a cauldron. Yet international law's reliance upon self-enforcement requires a good faith interpretation of malleable terms such as "severe pain and suffering" by those under such pressure. The inevitable result, as witnessed in the US after 9/11, in the UK at the height of IRA violence in the early 1970's, in Germany during the "German Autumn" battle against the Red Army Faction in 1977, and in Israel during its struggles against Palestinian violence, is that such a "good faith" interpretation is not readily forthcoming from those charged with the protection of their civilian population. The excesses that followed were generally later regretted, but such regrets do little to comfort the victims of these excesses.
This article proposes a solution. To prevent the definition of "severe pain and suffering" from changing between September 10 and September 12 (or more accurately from not being considered at all on September 10 to being considered in a very dark light on September 12), it recommends tying the definition to pre-existing standards that are difficult to manipulate and internally self-policing.
Keywords: torture, interrogation, coercion, national security, war on terror, detainee treatment, cruel inhuman and degrading treatment
Suggested Citation: Suggested Citation
Lewis, Michael W., A Dark Descent into Reality: Making the Case for an Objective Definition of Torture (April 2, 2009). Washington & Lee Law Review, Vol. 67, p. 77, 2010. Available at SSRN: https://ssrn.com/abstract=1372333
By Jonathan Law