Law and Inequality
Declaring a “war against terror,” the United States has detained foreign nationals suspected of terrorist activities and has interrogated them at various locations outside the United States. As the United States seeks to bring charges against the detainees, serious questions have arisen regarding the interrogation methods used to obtain evidence. Federal laws enacted to meet the United States' obligations under treaties prohibit the use of evidence obtained through torture or through cruel, inhuman, or degrading treatment. What legal standards should be applied to determine whether interrogation methods or conditions of confinement constitute torture or cruel, inhuman, or degrading treatment? Is there an international consensus on how to determine when interrogation methods and conditions of confinement constitute torture or cruel, inhuman, or degrading treatment? Beginning with the United Nations Charter and the Universal Declaration of Human Rights, this Article surveys the provisions of international agreements, customary international law, and federal laws in the United States pertaining to torture and cruel, inhuman, or degrading treatment or punishment. The Article describes the cases decided by international bodies charged with implementing and interpreting the prohibition against torture and other forms of ill-treatment and identifies the common elements considered in these cases to determine whether specific conduct is prohibited under international law. Noting that the United States has obligations arising both from jus cogens and customary international law and from its obligations as a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish *344 ment, the Article argues that the precedents and standards applied by international bodies such as the United Nations' Human Rights Committee, the European Court of Human Rights, and international criminal tribunals established by the United Nations should inform the standards applied by the United States in determining whether conduct falls within the prohibition against torture and other cruel, inhuman, or degrading treatment or punishment.
David Weissbrodt and Cheryl Heilman, Defining Torture and Cruel, Inhuman, and Degrading Treatment, 29 Law & Ineq. 343 (2011), available at http://scholarship.law.umn.edu/faculty_articles/366.