THE PROHIBITION OF TORTURE: ABSOLUTE MEANS ABSOLUTE

摘要

As far as concerns obligations under the Geneva Conventions requiring humane treatment of any detainee and, in particular, avoidance of torture and cruel, inhuman or degrading treatment or punishment, the OLC memoranda have maintained that certain detainees are not protected by them. In so doing, they have induced the President of the United States to deny a legal obligation of humane treatment. Later memoranda, including the controversial August 2002 memorandum, subsequently withdrawn, and the replacement December 2004 memorandum, have not challenged the applicability of the CAT. Rather, the accent has been on torture as treatment at the apex of prohibited cruel, inhuman or degrading treatment or punishment, in terms of the pain or suffering inflicted. The legislation giving effect to the CAT only criminalizes torture (committed abroad), not other prohibited ill-treatment. Customary international law seems to be dismissed as unenforceable (at least through the criminal law) in U.S. courts.