Just short of torture: Abusive treatment and the limits of international criminal justice

Abstract

Few juridical tasks are more distasteful than specifying the distinction between torture and 'mere' cruel, inhuman and degrading treatment. Although the distinction itself may seem morally obtuse, it is a line, not between prohibited and permissible conduct, but between categories of prohibited conduct that are subject to distinct implementation regimes. The Torture Convention combines a narrow exposure of individual state officials to prosecutions in foreign courts for the international crime of torture with a broad state responsibility for the decent treatment of all detainees under all circumstances. To ignore or blur the distinction would not necessarily strengthen real accountability; to the contrary, allowing extraterritorial prosecutions for acts short of the torture threshold would unduly jeopardize agents of politically unpopular governments, would furnish a tool for political actors bent on undermining peaceful and respectful international relations, and would, paradoxically, risk producing a perverse downward pressure on the standards for detainee treatment. © Oxford University Press, 2008, All rights reserved.