{"id":944,"date":"2019-03-29T21:23:31","date_gmt":"2019-03-29T21:23:31","guid":{"rendered":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/?p=944"},"modified":"2019-03-29T21:27:26","modified_gmt":"2019-03-29T21:27:26","slug":"the-unjustifiable-practice-of-torture-in-the-war-on-terror-the-protection-of-national-security-at-the-cost-of-individuals-human-rights","status":"publish","type":"post","link":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/2019\/03\/29\/the-unjustifiable-practice-of-torture-in-the-war-on-terror-the-protection-of-national-security-at-the-cost-of-individuals-human-rights\/","title":{"rendered":"The Unjustifiable Practice of Torture in the War on Terror: The Protection of National Security at the Cost of Individuals\u2019 Human Rights"},"content":{"rendered":"\n

The Unjustifiable Practice of Torture in the War on Terror: The Protection of National Security at the Cost of Individuals\u2019 Human Rights.
Author: Shauna McKee
Queen’s University, Belfast<\/strong><\/p>\n\n\n\n

Abstract <\/strong><\/p>\n\n\n\n

Since World War II,\nthe right of any individual to not be tortured has been a jus cogen in\ninternational law. Unfortunately, this jus cogen has been side-lined by various\ncountries in their practice of torture with the United States of America being\nthe latest country to demonstrate disobedience of this peremptory norm in the\naftermath of September 11th<\/sup> 2001. In prioritising national security,\nAmerica has receded from its mantle as an international leader in human rights\nand revealed itself to be an advocate for torture. <\/em><\/p>\n\n\n\n

This dissertation aims\nto identify the unjustifiability of America\u2019s practice of torture during the\nWar on Terror with a focus on the Bush administration who chose to prioritise\nnational security over the absolute right of scores of individuals. To\nestablish how torture is legally defined, this dissertation will explore the\nEuropean Convention on Human Rights and its resulting jurisprudence prior to\ncritically analysing how torture has been deemed justifiable and subsequently\nunjustifiable in the context of the War on Terror. After determining\nunjustifiability, the issue of accountability will be examined regarding those\nresponsible for America\u2019s utilization of torture. <\/em><\/p>\n\n\n\n

This dissertation\nconcludes that the unjustifiability of America\u2019s actions cannot be ignored and\naction is necessary to prevent reoccurrence of the Bush administration\u2019s gross\nmistakes. Such action includes reforming U.S. military training, supporting the\nInternational Criminal Court\u2019s investigation into Afghanistan or further\npromotion of the \u2018truth\u2019 of America\u2019s torture practice to the wider public to\nstrengthen traction for accountability. <\/em><\/p>\n\n\n\n

Introduction<\/strong><\/p>\n\n\n\n

\u2018Torture is an\ninstrument of terror and not of justice\u2019<\/em> – Canadian Supreme Court. [1]<\/p>\n\n\n\n

On September 11th<\/sup> 2001, Al-Qaeda instigated the\nlargest terrorist attacks on U.S. soil with 2,993 fatalities. As a result,\nnational security has received primary consideration regarding foreign and\ndomestic policy relating to counter-terrorism; the Bush administration was\ndetermined to prevent a reoccurrence of 9\/11. However, resolve in protecting\nnational security at all costs blinded the state so that the prohibition on\ntorture was regularly breached. <\/p>\n\n\n\n

 In December 2014 the\nSenate Intelligence Committee released a damning report that exposed the CIA\u2019s\ntorturous interrogation methods during the Bush administration. Since its\npublication there has been an outcry at the CIA\u2019s practice of torture, its\nauthorization by leading government officials and the resulting impunity; it is\ndisrespectful to the essence of the prohibition on torture as a jus cogen in\ninternational law let alone the domestic prohibitions within the United States\nof America. As well as the attempts by officials and academics alike to justify\nthe practice of torture following 9\/11, the human rights of the detainees\nsuffering under enhanced interrogations and extraordinary renditions are\ndiminished and overridden by the need to protect national security. <\/p>\n\n\n\n

This dissertation seeks to highlight the unjustifiable\nutilization of torture in the War on Terror for the sake of national security\nand at the cost of an individual\u2019s human rights. Whilst it has been nine years\nsince George W. Bush\u2019s presidency ended, his administration\u2019s authorization of\ntorture on detainees remains a dark part of his presidential legacy that should\nnot be forgotten. Particularly now when President Donald Trump has appointed\nGina Haspel as the new director of the CIA despite her previous criteria in\nrunning a \u2018black site\u2019 in Thailand, \nthere is an unease that America has not learnt from the mistakes of Bush\nand his associates. Therefore, as this dissertation sets out to do, it is\nnecessary to acknowledge the unjustifiability of the practice of torture during\nthis period known as the War on Terror in order to prevent reoccurrence. <\/p>\n\n\n\n

Prior to critiquing the practice of torture, it is essential\nto understand how it is perceived by international law; therefore, chapter one\nwill focus on how torture is legally defined. To promote clarity, the chapter\nwill focus on the European Convention on Human Rights and its subsequent case\nlaw. The three main definitional elements of torture will be explored with\nreference to case law heard in the European Court of Human Rights; these three\nelements are severity, purpose and the prohibition\u2019s absolute nature. The\npurpose of this chapter is to highlight the jus cogen status attached to the\nprohibition on torture in a portion of international law that resonates\nworldwide through various treaties and legal mechanisms. In analysing the unjustifiability\nof the practice of torture by the Bush administration it is crucial to\nunderstand how the law perceives torture to begin with.<\/p>\n\n\n\n

Chapter two will focus on the central aspect of this\ndissertation; the unjustifiability of torture in the War on Terror. After first\noutlining the domestic and international measures banning torture that are\napplicable to America, the justification for the use of torture in the War on\nTerror will be critically analysed. The primary focus of the justification will\nbe the \u2018ticking time bomb\u2019 scenario in association with the necessity defence.\nCountering this, the unjustifiability of practicing torture will be critically\nconsidered through a legal and moral lens. In doing so, torture\u2019s status as a\ncrime against humanity [2] resonates strongly even in the face of America\u2019s\nestablished justifications for its practice. <\/p>\n\n\n\n

In chapter three the focal issue will be accountability in\nregards to the Bush administration\u2019s approval of torture. Past attempts at\nholding officials accountable will be considered as well as the potential for\nfuture endeavours in pursuing accountability. Subsequently, the proposals of an\nextra-legal action model and torture warrants system that bring accountability\ninto state practice and the judiciary respectively will be critically\nconsidered. <\/p>\n\n\n\n

This dissertation is primarily a socio-legal analysis based\non desktop research albeit chapter one focuses on a doctrinal analysis of\nArticle 3 of the European Convention on Human Rights and the resulting European\nCourt of Human Rights case law. In its analysis, a range of primary and\nsecondary sources have been considered and used to aid this dissertation. Over\nthe course of the three chapters, a collection of cases have been evaluated\nfrom a number of jurisprudences such as, for example, the United States of\nAmerica and the European Court of Human Rights in Strasbourg in a demonstration\nof how torture has been approached by the judicial system. The inclusion of\ncertain treaties and legislation that deal with the prohibition of torture have\nalso been examined, such as the Universal Declaration of Human Rights 1948 and\nthe United States of America Constitution, in a bid to emphasise how the\nprohibition on torture is enforced both internationally and domestically. This dissertation\nhas also considered a range of academic opinion in the form of literature and\narticles on the issue of torture\u2019s justifiability and its underhand practice\nduring the War on Terror. <\/p>\n\n\n\n

Chapter One \u2013\nLegal Development in Defining Torture<\/strong><\/p>\n\n\n\n

\u2018\u2026it is precisely in\ntimes of crisis that absolute values must remain uncompromised\u2019<\/em> \u2013 European\nCourt of Human Rights. [3]<\/p>\n\n\n\n

On the subject of torture, humanity is at its most\nhypocritical. Whilst universally condemned no regime will admit to its\npractice, a factor in this being differing opinions on what actually\nconstitutes torture. Since the creation of the Universal Declaration of Human\nRights in 1948, defining torture has been a source of growing debate albeit\nthere is no shortage of materials to help establish its meaning. In Article 1.1\nof the United Nations Convention against Torture and Other Cruel, Inhuman or\nDegrading Treatment or Punishment 1984 torture is specified to entail:<\/p>\n\n\n\n

\u2018any act by which severe pain or suffering, whether physical\nor mental, is intentionally inflicted on a person for such purposes as\nobtaining for him or a third person information or a confession, punishing him\nfor an act he or a third person has committed or is suspected of having\ncommitted, or intimidating or coercing him or a third person, or for any reason\nbased on discrimination of any kind, when such pain or suffering is inflicted\nby or at the acquiescence of a public official or other person acting in an\nofficial capacity. It does not include pain or suffering arising only from, inherent\nin or incidental lawful sanction.\u2019 [4]<\/p>\n\n\n\n

What is clear from this classification is that central to\ndefining torture are the elements of severity and purpose. These, coupled with\nthe absolute nature of torture\u2019s ban, have proved to be key features throughout\nboth case law and variant definitions of torture and will subsequently be\ndiscussed in this chapter. I will first discuss the element of severity which\nhas proved to be subjective and fact specific from case-to-case; the threshold\nhas advanced since the landmark yet controversial ruling in Ireland v United\nKingdom. [5] Second, the purposive element will be analysed with interrogation\nemerging as the common purpose behind torture. Finally, I will focus on the\nabsolutism of the ban on torture and the difficulty it has encountered when\nnational security is at risk.  In seeking\nclarity and precision, I will focus the discussion on case law arising from\nalleged breaches of Article 3 of the European Convention on Human Rights [6] as\ndecided by the European Court on Human Rights. [7] <\/p>\n\n\n\n

  1. Severity<\/em><\/strong><\/li><\/ol>\n\n\n\n

    It was not until 1969 that the European Commission of Human\nRights [8] was confronted with an inter-state application focusing on Article\n3. In the Greek case [9], the Commission presented a formula of component parts\nregarding torture in an application that claimed that Greece\u2019s security forces\nhad been systematically abusing detainees. Here, the Court deemed torture to be\npurposive inhuman and degrading treatment, however not all inhuman or degrading\ntreatment will be torture [10]; it is apparent that the element of severity\nwill be the decisive component between both torture and ill-treatment.  <\/p>\n\n\n\n

    The landmark Ireland v United Kingdom [11] case began to\nflesh out the Court\u2019s understanding of torture; it concerned whether the \u2018five\ntechniques\u2019 [12] constituted a breach of Article 3 of the Convention.\nControversially, the Court concluded that these techniques \u2018undoubtedly\namounted to inhuman and degrading treatment\u2019 [13] but not torture; any\ntreatment complained of must \u2018attain a minimum level of severity\u2019 [14] if it is\nto even be contrary to Article 3. From the onset, the Commission withheld\nsetting a \u2018specific severity threshold\u2019 to measure acts that would constitute\ntorture. [15] Rather, the severity analysed by the courts is circumstantial and\nrelative in that it is examined subjectively in regards to the particular\nrecipient of the treatment. [16] This conditional nature of severity is\nexemplified in the judgment of Wijeyasiriwandene v Inspector of Police, Kandy\n[17] wherein the punching of a 16 year old athlete by a police officer was\nruled to be a justifiable, albeit excessive, use of force. M.D.H. Fernando J\nexplained that if such force had been directed at a frail elderly woman it\nwould be viewed cruel by the judiciary and perhaps qualify as inhuman\ntreatment.[18] <\/p>\n\n\n\n

    As exhibited in Donnelly and others v United Kingdom [19] it\nis extremely difficult to prove that a state is systematically failing to\ncomply with Convention obligations given there is a high threshold of hard\nevidence to satisfy. [20] Disgracefully, the treatment the applicants in\nIreland [21] were subjected to was not a new development in the British\nmilitary\u2019s tactics. In fact, as the Parker Report notes, the British army had\nused the same interrogation techniques in previous campaigns in Kenya,\nPalestine, Malaya and particularly Cyprus wherein Greece similarly raised\nallegations of Article 3 violations against the United Kingdom in regards to\nthe treatment of detainees by British forces.[22] Brian Simpson has considered\nIreland [23] to be the peak in the U.K.\u2019s \u2018lamentable\u2019 failure of the\nConvention and indeed it was regrettably a lost opportunity by the Court to\ncondemn and make an example of the U.K. for similar states to evaluate, and\nperhaps reform, military tactics. [24] <\/p>\n\n\n\n

    Emerging into the 21st<\/sup> Century, it appears that\nthe Court has come to regret its previous decision in Ireland [25] with its\njudgment in Selmouni v France [26] that involved the applicant claiming he had\nbeen subjected to torture in a breach of his Article 3 rights during three days\nof custody following arrest by French police.[27] The Court took into\nconsideration that the Convention is a \u2018living instrument which\u2026 must be\ninterpreted in the light of present day conditions\u2019; a principle outlined in\nTyrer v United Kingdom [28] which ruled corporal punishment to be degrading\ntreatment in breach of Article 3. [29] Utilizing this principle, the Court\ndetermined that certain acts which initially were not considered to be torture\nbut rather inhuman and degrading treatment \u2018could be classified differently in\nthe future\u2019. [30] This formula of severity and purpose should be \u2018elastic and\ncapable of evolving interpretation overtime\u2019.[31] Given the continuous requests\nthat the Court revise its judgment in Ireland [32], it would be intriguing to\nsee if this is applicable to this case\u2019s circumstances.[33]<\/p>\n\n\n\n

    1. Purpose<\/em><\/strong><\/li><\/ol>\n\n\n\n

      Throughout history, the purpose of torture was undeniably to\ninflict punishment and act as a deterrent regarding certain criminal acts.  Whilst the Canadian Supreme Court still\nassociates torture primarily with punishment [34], in the 21st<\/sup>\nCentury it is more predominantly considered to serve as an interrogation\ntechnique. [35] Despite a collection of legislative frameworks supposedly\nmonitoring the prohibition on torture, according to Juan. E. M\u00e9ndez they have\nhad minimal impact in reducing the practice of torture during interrogations.\n[36] A variety of factors have fuelled the exercise of torture in\ninterrogations. For example, as M\u00e9ndez has explained, the assumption that\ncoercion is necessary as means to obtain vital information is an ideal still\nupheld within society. [37] Despite popular belief it is effective, evidence\nobtained through torture, as discussed in Othman (Abu Qatada) v United Kingdom\n[38], is incredibly unreliable and unfair [39]; in the majority of situations\nvictims will resort to admitting anything as a means of ending their torturous\ntreatment. As stated in G\u00e4fgen v Germany [40], any evidence gathered through a\nbreach of Article 3 \u2018should never be relied on as proof of the victim\u2019s guilt,\nirrespective of its probative value\u2019 [41]; the court\u2019s prohibition of utilizing\nevidence obtained through torture is fundamental. [42]<\/p>\n\n\n\n

      Returning to Ireland [43], whilst the Court acknowledged\nseverity the \u2018purposive element\u2019 [44] was overlooked despite being previously\nestablished in the Greek case [45]; in this case, the Commission outlined that\ntorture was essentially \u2018inhuman treatment, which has a purpose\u2019 such as\npunishment or obtaining information.[46] It can be assumed from this definition\nthat the purposive element of torture is prime and solely considered.\nIntriguingly in Ireland [47] the Commission reached a polarising decision to\nthat of the Court. As Judge Zekia iterates, the Commission reached \u2018a unanimous\nconclusion\u2019 that the \u2018five techniques\u2019 amounted to a breach of Article 3 of the\nConvention and were considered as torture.[48] For the Commission the decisive\nfactor was purpose; <\/p>\n\n\n\n

      \u2018The Commission sees in them a modern system of torture\nfalling into the same category as those systems which have been applied in\nprevious times as a means of obtaining information and confessions\u2019. [49] <\/p>\n\n\n\n

      This emphasis on purpose is endorsed by Manfred Nowak as a\ndecisive factor along with the powerlessness of the victim \u2018rather than the\nintensity of the pain or suffering inflicted\u2019 [50]; the purposive element\nprovides accuracy in the \u2018account of the phenomenon of torture\u2019. [51] In recent\ncases, the Court has demonstrated a consistency in identifying severity and\npurpose collectively when determining whether inhuman treatment amounts to\ntorture. For example, in Menesheva v Russia [52] where the applicant brought\nproceedings against the police for ill-treatment by way of physical violence,\nthe Court held that having regard to its purpose and severity, the\nill-treatment at issue \u2018amounts to torture\u2019. [53] Similarly in Mikheyev v\nRussia [54] the ill-treatment the applicant faced in police custody was\nconcluded to be torture by the Court in view of its \u2018severity and purpose\u2019.\n[55]<\/p>\n\n\n\n

      3. Absolute Nature<\/em><\/strong><\/p>\n\n\n\n

      Judge Can\u00e7ado Trindate outlined that \u201ctorture is absolutely\nprohibited in all its forms\u201d [56], reinforcing what a variety of domestic and\ninternational legislation has codified regarding the nature of the ban on\ntorture. For example, in the U.K. under section 134 of the Criminal Justice Act\n1988 it is an offence for any public official to \u2018intentionally inflict severe\npain or suffering on another in the performance\u2026of his official duties\u2019. [57]\nKnown as a peremptory norm, this absolute ban is a fundamental principle of\ninternational law from which there is no derogation. Jeremy Waldron emphasises\nthat the prohibition of torture is not a mere rule but rather an underpinning\nfeature of the legal system.[58] This status has been supported by the\nInternational Court of Justice who view the prohibition of torture as part of\ncustomary international law [59] as exhibited in, for example, Article 3 of the\nConvention. <\/p>\n\n\n\n

      During the Convention\u2019s drafting there existed no\ncontroversy in relation to the absolute nature of Article 3, unsurprisingly so\nin the wake of the inhuman atrocities committed during World War II. In the\nNuremberg trials that followed World War II, it was acknowledged that there\ncould be criminal liability under international law for certain crimes. [60]\nArticle 15(2) of the Convention which prohibits any derogation cements its\nabsolute nature in any circumstances including times of war and when national\nsecurity is threatened; the latter sparking considerable debate as exhibited in\nChahal v United Kingdom.[61]<\/p>\n\n\n\n

      In Chahal [62] the applicant was under imminent threat of\ndeportation to India from the U.K. for reasons of national security under\nsection 3(5) Immigration Act 1971. Following Soering v United Kingdom [63] it\nemerged that Convention states are obligated to consider the ramifications of\nextradition of an individual to a third country, particularly where treatment\nwill occur that breaches the Convention; therefore there existed a strong\nprecedence against extradition when there is the risk of a breach of Article 3.\nConsequently in Chahal [64], the court stressed the absolute nature of Article\n3 in rejection of the U.K. Government\u2019s suggestion that when national security\nis at risk there should be an implied limitation to Article 3 to allow\nderogation. Henceforth the conduct of the victim and the nature of the alleged\noffence [65] committed are irrelevant under the scope of Article 3, a fact that\nvarious governments struggle to accept in a modern society rife with terrorism.\nYet, as the court emphasises in Aksoy v Turkey [66], in such circumstances\ntorture is prohibited in \u2018absolute terms\u2019 [67]; there is no room for\nderogation. <\/p>\n\n\n\n

      Judge Myjer in Saadi v Italy [68], which reinforced Chahal,\n[69] emphasised the absolute nature of torture\u2019s prohibition when national\nsecurity is at risk. In protecting national security it is not a \u2018free-for-all\u2019\nwhen it comes to constructing and implementing counter-terrorism measures;\nthere are limitations that need to adhere to overarching rights and principles\nsuch as the prohibition on torture. For Judge Myjer, upholding human rights\nsuch as Article 3 is \u2018first and foremost a matter of upholding our values, even\nwith regard to those who seek to destroy them\u2019; an absolute nature has no room\nfor states to make exceptions where it suits, even in matters regarding\nnational security. <\/p>\n\n\n\n

      In relation to cases involving a potential breach of Article\n3 of the Convention, states cannot rely upon the doctrine of the margin of\nappreciation for support. Fundamentally, this is a means to provide \u2018room for\nmanoeuvre\u2019 by the Court to State authorities in fulfilling Convention\nobligations.[70] However, it has never been invoked by the Court in regards to\ncases alleging breaches of Article 3, albeit Judge O\u2019Donoghue implied that the\nCourt applied the doctrine in Ireland [71] due to \u2018fraught internal conflict in\nNorthern Ireland\u2019 at the time. [72] According to Judge O\u2019Donoghue the use of\nthe doctrine;<\/p>\n\n\n\n

       \u2018in favour of the\nrespondent Government has been treated by the Court, in my opinion, as a\nblanket exculpation for many actions taken which cannot be reconciled with\nobservance of the obligations imposed by the Convention\u2019. [73] <\/p>\n\n\n\n

      According to Antony Cullen, this margin illuminates the\ndifferent reasoning between the Court and the Commission.[74] If the Court were\nto employ the doctrine of the margin of appreciation in Article 3 cases there\nwould be a notable \u2018variance with the absolute and universalist spirit\u2019 of the\nprovision; consequently, its practice would generally undermine the unqualified\nnature of the prohibition on torture. [75]<\/p>\n\n\n\n

      4. Summary<\/em><\/strong><\/p>\n\n\n\n

      This chapter discussed how the Court\u2019s jurisprudence\nregarding Article 3 has cultivated in two core factors in defining torture; it\nis purposive treatment of a \u2018minimum level of severity\u2019 that encompasses either\n\u2018actual bodily injury or intense physical or mental suffering\u2019.[76] Through\nStrasbourg\u2019s jurisprudence, it has become apparent that Convention states have\ndifficulty in accepting this unconditional element of the prohibition of\ntorture particularly when national security is involved as was exhibited in\nChahal [77]; however, the Convention prevails against the appeals of State\nauthorities. <\/p>\n\n\n\n

      In 2000, the Court finally spoke out to condemn the treatment\nby the U.K. to detainees in Northern Ireland; however, the decision in Ireland\n[78] remains. It is this case\u2019s judgment that was used by the George W. Bush\nadministration as an authority for their proposal that \u2018certain interrogation\npractices would not contravene the ban on torture in international law\u2019.[79]\nThis administration\u2019s malpractice in justifying their use of torture during the\nWar on Terror will feature in the next chapter.<\/p>\n\n\n\n

      Chapter Two \u2013 Is\nTorture Justified in the War on Terror?<\/strong><\/p>\n\n\n\n

      \u2018\u2026the use of torture\ncompromises that which most distinguishes us from our enemies, our belief that\nall people, even captured enemies, possess basic human rights\u2019 <\/em>\u2013 John\nMcCain. [80]<\/p>\n\n\n\n

      Since the War on Terror commenced on September 11th<\/sup>\n2001, the definition of torture discussed in Chapter 1 has been under threat.\nGovernments have attempted to constrict its legal meaning to provide leeway for\ntorturous interrogational methods [81] whilst simultaneously seeking to\ndiminish its absolute nature in order to create an exception for terrorists who\nendanger national security. This chapter will focus on whether torture can be\njustified in protecting national security in the War on Terror or whether it is\nunjustifiable given the detriment it causes for an individual\u2019s human rights. <\/p>\n\n\n\n

                     First, I\nwill discuss how governments have responded to the War on Terror regarding\ncounter-terrorism policies that include the practice of torture; my focal point\nwill be on the United States of America albeit European states\u2019 complicity will\nbe acknowledged. Then I will critically analyse how justifiable it is to use\ntorture in these circumstances which threaten national security. I will focus\nprimarily on the \u2018ticking time bomb\u2019 scenario along with the necessity defence.\nFinally, I will discuss the unjustifiability of torture from a legal and moral\nperspective. <\/p>\n\n\n\n

      1. Background<\/em><\/strong><\/p>\n\n\n\n

      Given the European Convention on Human Rights [82] is not\napplicable in America, there are domestic law measures that uphold the ban on\ntorture which were in place prior to September 11th<\/sup> 2001. This\nincludes the 8th<\/sup> Amendment to the United States Constitution which\nstates; <\/p>\n\n\n\n

      \u2018Excessive bail shall not be required, nor excessive fines\nimposed, nor cruel and unusual punishments inflicted\u2019. <\/p>\n\n\n\n

      Whilst not directly mentioning torture, the US Supreme court\nhas confirmed that torture falls under its scope. [83] The War Crimes Act 1996\nextends to international law and criminalises breaches of the Geneva\nConventions; ironically this legislation\u2019s purpose was to prosecute North\nVietnamese soldiers who had tortured U.S. soldiers during the Vietnam War.  This includes Article 3(1) (a) of the Geneva\nConventions 1949 that outlined the prohibition of;<\/p>\n\n\n\n

      \u2018violence to life and person, in particular murder of all\nkinds, mutilation, cruel treatment and torture\u2019.<\/p>\n\n\n\n

      The U.S. is also a party to the United Nations Convention\nagainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment\n1984 as well as being a drafter of the Universal Declaration of Human Rights\n1948 which banned all forms of torture.[84] However in the wake of destruction\ncaused by Al-Qaeda on 9\/11 the authority of such legislative measures faded for\nthe government when national security was imminently at risk. <\/p>\n\n\n\n

                     At one\npoint America appeared to be the international figurehead in human rights yet\nfrom the outset of 9\/11, the Bush administration experienced repression by\ninternational law\u2019s restrictions. Richard Clarke [85] quoted Bush to have\ndeclared immediately after 9\/11; \u2018I don\u2019t care what the international lawyers\nsay. We are going to kick some ass.\u2019 [86] With a dismissive attitude towards\ninternational law, in August 2002 the \u2018torture memos\u2019 were signed and drafted\nby Assistant Attorney General Jay Bybee and Deputy Assistant Attorney General\nJohn Yoo that advised the CIA and the U.S. Department of Defence about enhanced\ninterrogation techniques that, despite being widely regarded as torture [87],\ncould be legal under an expansive interpretation of Bush\u2019s role as\nCommander-in- Chief [88] in the War on Terror. As a result, detainees held in\nGuantanamo Bay and CIA black-sites [89] were subjected to enhanced\ninterrogation which involved physical and psychological techniques similarly\npracticed by U.K. forces in the case Ireland v UK [90] and by Israeli security\nforces [91] in the 1990s. <\/p>\n\n\n\n

      The Bush Administration was notably aided by allies in\nEurope in the fight against terrorism. For example, the U.K.\u2019s Special Forces\nhave aided the CIA in renditions and secret detentions as well as adopting a\n\u2018good cop bad cop\u2019 approach in regards to interrogating detainees. [92]\nCountries such as Poland [93], Italy [94] and Romania [95] have also been\ncomplicit in the CIA\u2019s extraordinary renditions as discovered by the European\nCourt of Human Rights [96] in various cases. The Convention\u2019s obligations that\nbind these European states make their association with the fight against terror\nby means of torture all the more shocking. <\/p>\n\n\n\n

      The emphasis on interrogational methods contrasts to past\nconflicts because the War on Terror relies heavily on intelligence rather than\n\u2018brute force\u2019.[97] For example, Syrian-born Canadian Maher Arar was the subject\nof a U.S. extraordinary rendition in September 2002. For 12 months he was\ndetained and tortured in Syria before Canada diplomatically intervened; upon\nhis release, the Syrian Ambassador in Washington stated there were no links\nbetween Arar and terrorism. Despite pursing legal action against the officials\ninvolved, in Arar v Ashcroft [98] Judge David G. Trager prioritised national\nsecurity over Arar\u2019s human rights; <\/p>\n\n\n\n

      \u2018On the other hand, a judge who declares on his or her own\nArticle III authority that the policy of extraordinary rendition is under all\ncircumstances unconstitutional must acknowledge that such a ruling can have the\nmost serious consequences to our foreign relations or national security or\nboth\u2019. [99]<\/p>\n\n\n\n

      The prioritisation of national security over human rights as\nexhibited in this single example has proved to be a consistent theme throughout\nthe War on Terror with the illicit practice of torture. Yet perhaps what is\nmost shocking is not that torture was used \u2018but that it was being defended\u2019.[100]<\/p>\n\n\n\n

      2. Justification<\/em><\/strong><\/p>\n\n\n\n

      With terrorism igniting a \u2018moral panic\u2019 [101] in the\nsocieties of America and her allies, it was not difficult to make the concept\nof an absolute prohibition on torture when national security was at risk look\npreposterous.[102] In an internal struggle of national security against human\nrights, it appeared that the former was receiving more support. After all, as\nHenry Shue iterates, security is necessary in order to enjoy one\u2019s rights: <\/p>\n\n\n\n

      \u2018Without security or subsistence one is helpless\u2026 Therefore,\nsecurity and subsistence must be socially guaranteed, if any rights are to be\nenjoyed\u2019. [103]<\/p>\n\n\n\n

      To protect security, the Bush administration determined that\ncertain detainees must be deprived of their rights granted by the Geneva\nConventions: <\/p>\n\n\n\n

      \u2018Under Article 4 of the Geneva Convention, however, Taliban\ndetainees are not entitled to prisoner of war status\u2026Al Qaeda is an\ninternational terrorist group\u2026its members\u2026are not entitled to POW status under\nthe treaty.\u2019[104]<\/p>\n\n\n\n

      Denying these detainees their rights is a subtle yet\neffective method of dehumanizing the supposed \u2018enemy\u2019; of creating an \u2018us\nversus them\u2019 approach that the Bush administration promoted from the start;\n\u2018You are either with us or you are against us in the fight against terror\u2019.[105]\nIn creating a separate class for these detainees, by \u2018othering\u2019 them, there is\nan ease with which the government and public can regard them indifferently in a\nstate of Nelsonian blindness;<\/p>\n\n\n\n

      \u2018We live in times where people, in [the USA] and in so many\nother supposedly \u201ccivilised\u201d nations, are so filled with primal fear that they\nlook on with apparent indifference at the possibility of extreme maltreatment\nof their presumable enemies – indifference, indeed, at the evidence and\ntelevised images of this sort of maltreatment\u2019.[106]<\/p>\n\n\n\n

      This state of \u2018Nelsonian blindness\u2019 [107] encapsulated\nAmerica and Western Europe in the aftermath of 9\/11. Whilst it is difficult to\never consider torture with ease, this indifference enables a blind eye to be\nturned towards the practice of torture and to focus on the need to prioritise\nnational security; a significant portion of justifiability for this use of\ntorture is afforded by states in this manner. <\/p>\n\n\n\n

                     Alan\nDershowitz purported that torture may be a justifiable method by the Bush\nadministration given its purpose to extract information that could lead to the\nimmediate saving of lives and national security [108]; this is an application\nof the \u2018ticking time bomb\u2019 scenario [109] which states have saturated their\ncounter-terrorism policies in. It is in this specific scenario that Jeremy\nBentham believed torture should be allowed as the \u2018lesser of two evils\u2019 for the\npurpose of gathering intelligence; the individual\u2019s interests are trumped by\nthose of the public.[110] However, with consistent intelligence gathering by\nmeans of torture, the reliance on the \u2018ticking time bomb\u2019 case is fundamentally\nflawed. Most terrorist experts admit that the supposed scenario rarely occurs\nin reality [111] yet the Bush administration appeared to visualise the War on\nTerror as an endless \u2018ticking time bomb\u2019; this hypothetical situation turned\ninto a potential daily occurrence for state officials to protect national\nsecurity. <\/p>\n\n\n\n

                     In\njustifying the utilization of torture in this situation, governments may invoke\nthe necessity defence:<\/p>\n\n\n\n

      \u2018If torture provides the last remaining chance to save lives\nin imminent peril, the necessity defense should be available to justify the\ninterrogators\u2019 conduct\u2019.[112]<\/p>\n\n\n\n

      This defence was mentioned in the \u2018Torture Memos\u2019 as a\njustification for US interrogation methods on Taliban and al-Qaeda suspect\ndetainees; <\/p>\n\n\n\n

      \u2018It appears to us that under the current circumstances the\nnecessity defense could be successfully maintained\u2026Clearly, any harm that might\noccur during an interrogation would pale to insignificance compared to the harm\navoided by preventing such an attack, which would take hundreds or thousands of\nlives\u2019. [113]<\/p>\n\n\n\n

      The Bush administration applied this defence to, for\nexample, extraordinary renditions as demonstrated by the case El-Masri v The\nFormer Yugoslav Republic of Macedonia [114] wherein CIA agents transferred\nEl-Masri to a black-site in Afghanistan where he was tortured, as the Court\ndiscovered, for four months. It is estimated that the CIA, working with other\nintelligence agencies, captured 3000 people between 2001 and 2005 [115] for the\nsake of necessity; yet, like El-Masri, many detainees were found to be\ninnocent. This risk of innocence, however, is necessary and \u2018the lesser of two\nevils\u2019 for state officials when faced with an emergency situation that\nthreatens the lives of hundreds of civilians; <\/p>\n\n\n\n

      \u2018The interests of the society may sometimes be so deeply\ninvolved as to make it right to punish an innocent man \u2018that the whole nation\nperish not\u2019\u2019.[116]<\/p>\n\n\n\n

      The Israeli Supreme Court authorised the retrospective\napplication of the necessity defence to Israel Security Agency interrogators\nwho utilised physical interrogation methods in a \u2018ticking time bomb\u2019 scenario\n[117]; albeit this was limited to certain circumstances and the defence is not\nguaranteed to succeed. For the Bush Administration to rely on necessity goes\nagainst the principle of the defence;<\/p>\n\n\n\n

      \u2018The defense of necessity does not define a code of primary\nnormative behaviour. Necessity is certainly not a basis for establishing a\nbroad detailed code of behaviour such as how one should go about conducting\nintelligence interrogations in security matters…\u2019.[118]<\/p>\n\n\n\n

      Likewise in English common law whilst the necessity defence\nis acknowledged its application is rarely successful [119] albeit case law is\nabsent on the availability of the defence regarding the practice of torture\nconcerning terrorists.[120] Similarly, the International Criminal Court lacks\nany such jurisprudence and if it were to uphold the defence in such\ncircumstances it would be by an \u2018extremely narrow margin\u2019 and only in an\n\u2018excusatory form\u2019 as opposed to a justification.[121]<\/p>\n\n\n\n

      \u2018If you don\u2019t violate someone\u2019s human rights some of the\ntime, you probably aren\u2019t doing your job\u2019.[122]<\/p>\n\n\n\n

      According to Michael Walzer obtaining \u2018dirty hands\u2019 is\ninevitable in politics; one can do the right thing in a certain situation for\nthe national interest even if it results in the loss of one\u2019s moral innocence.\n[123] Political leaders, such as Bush and former U.K. Prime Minister Tony\nBlair, hold a deep sense of responsibility for national interests and security\nthat spurs them to go beyond their moral, and legal, duties. [124] It is a\npolitical necessity as opposed to a moral necessity that drives such leaders\nto, for example, practice torture in circumstances such as \u2018the War on Terror\u2019.\nThis pertains to the Machiavelli perspective that political necessity, although\nnot always absolute, can override moral norms. [125] However for Walzer what is\nimmoral is more so the denial of \u2018dirty hands\u2019; accountability [126] is\nparticularly essential to permit the immoral act by means of political\nnecessity: <\/p>\n\n\n\n

      \u2018If he were a moral man and nothing else, his hands would\nnot be dirty; if he were a politician and nothing else, he would pretend that\nthey were clean\u2019. [127]<\/p>\n\n\n\n

      3. Unjustifiable<\/em><\/strong><\/p>\n\n\n\n

      In El-Masri [128] the Court became the first to deem the\nCIA\u2019s rendition methods as amounting to torture; any attempts to justify such\ntechniques are irrelevant in Strasbourg as there is an equal amount of\nrationale to dissuade any prioritisation of national security over human\nrights. The most blatant reason is the prohibition on torture\u2019s place in law.\nAlthough its role is heavily debated, there is an undeniable influence from\nmorality on the law and a clear consensus between law and ethics that torture\nis wrong.[129]  As Lord Coleridge CJ\nstated in R v Dudley and Stephens [130];<\/p>\n\n\n\n

      \u2018Though law and morality are not the same, and many things\nmay be immoral which are not necessarily illegal, yet the absolute divorce of\nlaw from morality would be of fatal consequence\u2026\u2019[131]<\/p>\n\n\n\n

      In torture debates there are not claims that it is a good\npractice; at the most, there are claims that torture is the \u2018lesser of two\nevils\u2019 henceforth acknowledging its immoral evil nature. In diminishing an\nindividual\u2019s human dignity and autonomy, the immorality of torture creates a\nchallenge from the onset for governments to justify its practice. Yet, torture\nis visualised by states as morally permissible given its status as the lesser\nof two evils in a ticking time bomb scenario. However, to claim a moral right\nto torture detainees in order to \u2018extract military necessary information\u2019 that\nupholds national security enforces a precedent that others may use.[132] For\nexample states such as Egypt, China and Pakistan have followed America in\ninvoking the War on Terror as a justifiable circumstance to abuse prisoners and\nMuslim minorities [133]; there is a danger of slippage.<\/p>\n\n\n\n

                     State\nignorance of the illegality of torture also proves to be detrimental to the\n\u2018Rule of Law\u2019 which, in part, promotes that nobody is above the law. As Jeremy\nWaldron highlights the rule of law does not \u2018favour freedom or unregulated\ndiscretion for the government\u2019 but rather institutions must \u2018bend over\nbackwards\u2019 to ensure legality and the rule of law are \u2018honoured\u2019.[134] Instead,\ninstitutions have tarnished it by working above the legal system, an example\nbeing Bush\u2019s position as Commander-in-Chief that deemed international\nlegislative restriction on torture practice to be unconstitutional given its\nconstraint on Bush\u2019s power in this role.[135] Blair has insisted the U.K.\nabides by the rule of law; \u2018All I know is that we should keep within the law at\nall times\u2026\u201d[136] However, whilst more subtle than the U.S., this is not the\ncase. For example, the British government adopted measures [137] to ensure\neither key aspects of cases were heard in secret or that cases were ruled\ncompletely non-justiciable.[138] The lengths governments go to conceal the\npractice of torture [139] and the wide consensus in opposition to it is an\nindication that it is an unjustifiable practice. <\/p>\n\n\n\n

                     In\nproclaiming that torture is justifiable for protecting national security, state\nbodies are contradicting the volume of case law that has emerged since the War\non Terror began. In Hamdan v Rumsfeld [140] the U.S. Supreme Court essentially\noverruled the Torture Memos in stating that Article 3 of the Geneva Conventions\nwas applicable to all detainees in the War on Terror.[141] In Strasbourg, the\nCourt has openly condemned U.S. rendition practice as first witnessed in\nEl-Masri [142] in a \u2018comprehensive condemnation of the worst aspects\u2019 of CIA\ntactics that were endorsed by allying governments.[143] Essentially the\npractice of torture, taking into consideration the vast body of case law discussed\nin Chapter 1, is unjustifiable due to its position as a jus cogen in law; <\/p>\n\n\n\n

      \u2018Thus, torture mocks the law, using punishment to gather\nevidence to justify the punishment already inflicted, rather than using\nevidence to justify punishment\u2019.[144]<\/p>\n\n\n\n

                     In torturing\n\u2018potential\u2019 terror suspects there is blatant unjustifiability in the lack of\ncertainty regarding their guilt. In various cases, the suspect is completely\ninnocent as exemplified in Al-Nashiri v Poland [145], wherein the applicant was\nthe victim of a joint US-Polish rendition, and undeniably this is a \u2018formidable\nmoral barrier\u2019 to torture practice.[146] Cesare Beccaria identifies this as a\nfundamental flaw central to attaining confession by means of torture;<\/p>\n\n\n\n

      \u2018If he be not guilty, you torture the innocent; for, in the\neye of the law, every man is innocent, whose crime has not been proved\u2019.[147]<\/p>\n\n\n\n

      Contemporarily it is common to divert focus on the act of\ntorture to its consequences; the victim is treated as a means rather than an\nend. The victim\u2019s humanity is undermined and their autonomy is disrespected; in\nKantianism torture is extremely wrong in how it utilises an individual \u2018as a\nmere means to purposes\u2019 they do not reasonably share.[148] The practice of\ntorture is self-incriminating and forces an individual in collusion with the\ntorturer against themselves[149] in a manner that violates their\nright to the presumption of innocence. [150]<\/p>\n\n\n\n

                     This\nuncertainty of guilt directly links to the questionable efficiency of torture.\nIn the War on Terror the primary purpose of practicing torture is to illicit\nvaluable intelligence from the suspect; however such information can be\n\u2018misled\u2019 when the suspect is \u2018innocent or holds a grudge\u2019. [151] For example,\nonly 0.06% of the 5000 detainees captured between 9\/11 and the publication of\nAbu Ghraib photographs were charged; an incredibly low success rate to support\nthe efficiency of torture.[152] In fact, there are suggestions by U.S.\ncommanders that treating detainees with dignity is more effective in gathering\nintelligence [153] yet, proof of this method is also elusive. However, Richard\nPosner highlights that torture\u2019s inefficiency should not be dismissed as\nabsolute:<\/p>\n\n\n\n

      \u2018\u2026it is hard to believe that it is always and everywhere\nineffectual; if it were, we would not have to spend so much time debating it\u2019.[154]<\/p>\n\n\n\n

      The common practice and debate of torture, therefore,\nprovides opposition to the suggestion that its practice is ineffective. <\/p>\n\n\n\n

      4. Summary <\/em><\/strong><\/p>\n\n\n\n

      This chapter focused on the debate as to whether torture can\nbe justified in the War on Terror. In arguments justifying its practice the\n\u2018ticking time bomb\u2019 scenario is central and supported by the necessity defence,\nas promoted by America, as well as a trend of Nelsonian blindness and the idea\nthat immoral actions are inevitable in politics; the protection of national\nsecurity is vital. However, there is a strong moral and legal argument to\ncounter the justifiability of torture given its jus cogens position in\ninternational law and its detrimental impact on the human rights of those\naffected by torture. <\/p>\n\n\n\n

                     Without\na doubt, torture is a crime against humanity that has had devastating\nconsequences for individuals who have suffered under it; such infliction of\ntrauma must be deterred from repeated future use. An effective method of deterrence\nis establishing accountability and promoting prosecution of those culpable. The\nstruggle for accountability of the Bush administration\u2019s utilization of torture\nwill be the primary focus in the next chapter. <\/p>\n\n\n\n

      Chapter Three:\nAccountability<\/strong><\/p>\n\n\n\n

      \u2018This long overdue\nmessage that no one is above the law is particularly important now, as the\nTrump administration\u2026embraces the war with no plan in sight\u2019<\/em> \u2013 Katherine\nGallagher.[155]<\/p>\n\n\n\n

      Following his inauguration, President Barack Obama issued\nexecutive orders to ensure interrogations occurred lawfully [156] and to close\nGuantanamo Bay within the year.[157] However, as opposed to law passed by\nCongress, executive orders can be overturned by successive presidents; they\nlack the weight of change that accompanies the law. By choosing to merely\nrenounce further practice of torture and not acknowledge that which occurred\nunder the Bush Administration, the Obama Administration gave rise to impunity\nand undermined \u2018the universality of the prohibition on torture\u2019.[158]<\/p>\n\n\n\n

                     This\nchapter will focus on, having underlined the unjustifiability of torture,\naccountability in the ongoing War on Terror\u2019s utilization of torture. Primarily\nI will focus on how accountability has, and currently is, being pursued.\nSecond, in considering future alternatives for accountability, I will explore\nthe extra-legal action model of handling a breach of the torture prohibition.\nThen, I will analyse the controversial proposal of torture warrants by Alan\nDeshorwitz as a means to regulate torture practice. <\/p>\n\n\n\n

      1. Pursuing Accountability<\/em><\/strong><\/li><\/ol>\n\n\n\n

        Following a wave of disrespect by the Bush Administration\nand allies throughout the War on Terror, the prohibition on torture\u2019s absolute\nnature has been heavily targeted. Whilst it retains its peremptory norm\nposition in law, its influence has been weakened by arguments such as the\n\u2018ticking time bomb\u2019 scenario; however, torture\u2019s unjustifiability remains\nconcrete. In this post-Bush era, attention must be directed towards reinforcing\nthe absoluteness of the torture prohibition in order to prevent a repetition of\nits inhumane practice. According to Juan. E. M\u00e9ndez, accountability is\n\u2018critical to preventing the recurrence of human rights violations\u2019.[159] <\/p>\n\n\n\n

                       Unfortunately,\naccountability has not been achieved at length regarding the use of torture\nduring the Bush administration. In fact, impunity has characterised America\nwith minute consequences for the CIA and none for government officials. As the\nInternational Criminal Court has noted;<\/p>\n\n\n\n

        \u2018no national investigations or prosecutions have been\nconducted or are ongoing against those who appear most responsible for the\ncrimes allegedly committed by members of the CIA.\u2019 [160]<\/p>\n\n\n\n

        In its report, the Senate Intelligence Committee noted that\nthe CIA failed to implement appropriate corrective actions when dealing with\nunauthorized interrogation techniques.[161] For example, CIA Headquarters opted\nagainst disciplinary action of an officer for the death of a CIA detainee as he\nhad been \u2018motivated to extract any and all operational information\u2019.[162] Furthermore\nfollowing an inquiry into the death of detainee Gul Rahman CIA management\ndismissed recommendation of accountability on the grounds that it was\n\u2018inappropriate\u2019 for a junior officer to be punished for following orders [163];\nthis contradicts the fourth Nuremberg principle; <\/p>\n\n\n\n

        \u2018The fact that a person acted pursuant to order of his\nGovernment or of a superior does not relieve him from responsibility under\ninternational law, provided a moral choice was in fact possible to him\u2019.[164]<\/p>\n\n\n\n

        Evidentially in circumstances of accountability, the stake\nof national security appears to take precedence over an individual\u2019s human\nrights. <\/p>\n\n\n\n

        Yet, the \u2018real rule of law harm\u2019 did not arise from CIA\nofficers\u2019 torture practice but rather from government officials who paved the\nway for such conduct.[165] Coincidentally those in positions of power during\nthe Bush Administration either retired or departed office along with Bush;\nnobody was forced from their position as a repercussion for their immoral\nactions.[166] In their impunity, there is a \u2018denial of truth\u2019, a \u2018hiding\u2019 of\nresponsibility and an \u2018absence of justice\u2019. [167] In committing universal\ncrimes akin to the practice of torture there is \u2018no possible refuge\u2019 for\nconspirators except for government officials who will suffer the consequences\nof vilification and nothing more.[168] Nevertheless, for the sake of human\nrights, this is not an acceptable level of accountability for committing a\ncrime against humanity. The essence of this was noted in the third Nuremberg\nprinciple;<\/p>\n\n\n\n

        \u2018The fact that a person who committed an act which\nconstitutes a crime under international law acted as Head of State or\nresponsible Government official does not relieve him from responsibility under\ninternational law\u2019. [169]<\/p>\n\n\n\n

        This principle of command responsibility is domestically\npresent in U.S. law as a precedent in re Yamashita. [170] This case involved\nthe prosecution, and eventual execution, of Japanese General Tomoyuki Yamashita\nwhose troops had committed crimes against humanity against prisoners of war and\nthe civilian population of the Philippines. Whilst Human Rights Watch cites\nDonald Rumsfeld as being liable under this principle [171], given Bush\u2019s role\nas Commander-in-Chief during his presidency, there is potential for liability\nunder this principle for his involvement in authorizing the torture of US\ndetainees. <\/p>\n\n\n\n

                       Seeking\naccountability against state officials is not impossible, for example, former\nChilean dictator Augusto Pinochet was indicted for human rights violations by\nBaltasar Garz\u00f3n [172], however attempts regarding the Bush Administration so\nfar have been fruitless. For example, the district court of Columbia dismissed\nthe case of Ali v Rumsfeld [173] which was brought on behalf of nine men\nsubjected to torture on the command of Rumsfeld. The district court held that\nU.S. officials were immune from lawsuits regarding actions that fell \u2018within\nthe scope of their official duties\u2019. [174] Similarly, the Ninth Circuit Court\nof Appeal dismissed Padilla v Yoo [175] and granted Yoo \u2018qualified immunity\u2019\ngiven that Padilla\u2019s alleged treatment was not clearly established in 2001-2003\nto amount to torture. [176]<\/p>\n\n\n\n

                       Internationally,\naccountability has been actively sought by various European domestic courts\nalbeit with little success. Under Belgium v Senegal [177] the International\nCriminal Court of Justice confirmed that states party to the UN Convention\nagainst Torture were burdened with an obligation to prosecute or extradite\nalleged perpetrators to another country with jurisdiction for prosecution.\n[178] In this case, Belgium sough to compel Senegal to prosecute Hiss\u00e8ne Habr\u00e9,\nthe former President of the Republic of Chad, or otherwise extradite him to\nBelgium for prosecution of alleged torture practice and other crimes against\nhumanity. Lawsuits instigated by Belgium, Germany and even Britain for breaches\nof the prohibition on torture prior to 20th<\/sup> January 2009 were\ndismissed primarily due to Bush\u2019s continuing Presidential position. However, in\nNovember 2017 the Chief Prosecutor of the International Criminal Court, Fatou\nBensouda, filed a request to investigate the alleged crimes against humanity\nand war crimes committed in Afghanistan;<\/p>\n\n\n\n

        \u2018The information available provides a reasonable basis to\nbelieve that\u2026members of the U.S. armed forces\u2026and\u2026the CIA have committed the\nwar crimes of torture and cruel treatment\u2026\u2019 [179]<\/p>\n\n\n\n

         Though currently in\nthe preliminary examination stage [180], the authorisation of this case would\nbring the U.S military and CIA\u2019s torturous tactics under overdue international scrutiny.\nAlthough the U.S. is not a state party to the ICC [181], Afghanistan is which\nhenceforth allows the ICC to assert jurisdiction over any crimes that occurred\nin Afghanistan\u2019s territory. <\/p>\n\n\n\n

        Speculating potential accountability and its necessity can appear\nto be passive in targeting the breach of a jus cogen by governments, therefore\nthere has been suggestions of bringing accountability into the state practice\nor the legal system through, respectively, an extra legal action model and\ntorture warrants. <\/p>\n\n\n\n