Torture and the War on Terror: The Need for Consistent Definitions and Legal Remedies

22 Pages Posted: 31 Mar 2011 Last revised: 22 Jun 2017

Linda E. Carter

University of the Pacific - McGeorge School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: January 28, 2011

Abstract

This article examines differing definitions of torture and the inadequacies of accountability for torture. The 'torture memos' of the Bush Administration brought to light the problems that arise when torture is defined in different ways. This article contrasts the definitions in the United States with the jurisprudence of the ICTY. In addition to the definition of “severe harm,” this article further explores the consequence of differing definitions of the mens rea for torture, an area that has largely been overlooked in the discourse on torture. The article further explores the ramifications of limitations on criminal and civil remedies for accountability for torture. The author concludes that the mens rea, as currently interpreted in the United States, will result in lack of accountability for torture in situations in which torture would exist under the ICTY interpretation. The author further concludes that present legal actions are inadequate to provide full accountability for torture.

Keywords: Criminal Law and Procedure, International Criminal Law, Torture

Suggested Citation

Carter, Linda E., Torture and the War on Terror: The Need for Consistent Definitions and Legal Remedies (January 28, 2011). Available at SSRN: https://ssrn.com/abstract=1750307 or http://dx.doi.org/10.2139/ssrn.1750307

Linda E. Carter (Contact Author)

University of the Pacific - McGeorge School of Law ( email )

3200 Fifth Avenue
Sacramento, CA 95817
United States

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