Torture and Counter-Terrorism

RESEARCH HANDBOOK ON INTERNATIONAL LAW AND TERRORISM, B. Saul, ed., Edward Elgar, pp. 379-400, 2014

Sydney Law School Research Paper No. 14/17

16 Pages Posted: 13 Feb 2014 Last revised: 29 Sep 2014

See all articles by Ben Saul

Ben Saul

The University of Sydney Law School

Mary Flanagan

The University of Sydney Law School

Date Written: February 11, 2014

Abstract

Despite the international prohibition on torture and cruel, inhuman or degrading treatment, torture became more prevalent as a counter-terrorism instrument after the terrorist attacks of 11 September 2001. While torture is not new, the post-9/11 practice of torture exhibited its own distinctive characteristics. This chapter examines two key trends. First, the United States argued that aggressive or ‘enhanced’ interrogation techniques did not amount to torture or ill-treatment, despite fairly clear international legal authority to the contrary. Secondly, even where torture was prohibited, some state personnel acted in excess of their domestic legal authority in interrogating or detaining suspects. While sometimes dismissed as the misconduct of a few ‘bad apples’, their individual responsibility can only be understood in the light of the prevailing military and political institutional cultures generated by the ‘war on terror’ and the protection of the ‘homeland’. This chapter situates these practices within the international legal framework on torture and remedies for it. It concludes by examining efforts to secure accountability for US torture in the US, foreign courts, and international fora, in relation to both those who exceeded domestic legal authority and those who acted under the cover of it.

Keywords: torture, terrorism, torture memos, international law, human rights, remedies, accountability

JEL Classification: K10, K14, K30, K33

Suggested Citation

Saul, Ben and Flanagan, Mary, Torture and Counter-Terrorism (February 11, 2014). RESEARCH HANDBOOK ON INTERNATIONAL LAW AND TERRORISM, B. Saul, ed., Edward Elgar, pp. 379-400, 2014; Sydney Law School Research Paper No. 14/17. Available at SSRN: https://ssrn.com/abstract=2394344

Ben Saul (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://https://sydney.edu.au/law/about/people/profiles/ben.saul.php

Mary Flanagan

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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