The ‘war on terror’ and the battle for the definition of torture

Abstract

The use of torture by the Bush administration has raised important questions regarding the strength of the torture taboo. Did US torture signal a regress of the torture prohibition? This article examines the attempts by the United States to re-define torture to better reflect its interests. However, rather than seeing this as a case of norm regression, I show how the United States failed in its revisionist attempts to legitimise its interpretation of torture in international society. The torture taboo remained resilient to US challenges, demonstrating not only the difficulty of norm revisionism but also the robustness of the torture taboo.

Norm internalisation revisited: Norm contestation and the life of norms at the extreme of the norm cascade

“…Culminating these efforts to develop global consensus over the meaning-in-use of the norm, the CAT defined torture as an aggravated form of pain but it emphasised purpose as the determining characteristic (Rodley 2002: 475). This was a compromise between the preferences of states, such as the United Kingdom and the United States, which favoured a definition focused on severity, and human rights groups and other actors, which advocated for a purpose-based definition (Barnes 2016: 108–9) This brief discussion illustrates the continuous importance of contestation and norm stakeholders’ agency in generating validity around the prevailing meaning-in-use of the norm, which today enjoys a ‘taken-for-granted’ quality in most parts of the world. It also illustrates the importance of access to contestation in this process.…”

“…This memo, released to the general public, upheld the absolute prohibition of torture and abandoned Bybee’s redefinition of torture as extreme acts, while at the same time it still defined torture in relation to the severity of the pain and suffering inflicted and not the purpose of the act. The administration also replaced Rumsfeld’s memorandum with the Detainee Treatment Act of 2005 and reinstated the FM 34-52 Field Manual as the guideline for interrogation techniques (Barnes 2016: 114). The fact that the United States is a democracy fostered the existence of institutionalised spaces for contestation domestically and internationally.…”

“…Dissenting judges, human rights groups, and legal scholars successfully argued that modern medical and physiological techniques did not necessarily entail inflicting physical pain (Barnes 2016: 108). Furthermore, they explained that the general condemnation of torture had forced governments to use torture methods that left no trace in the bodies of the victim so they could deny it had ever happened (Kesper-Biermann 2018: 10).…”

“…Between 2002 and 2004 there was little opposition to US treatment of prisoners from the American public opinion (Forsythe 2006: 480). Gronke et al ., on the basis of public opinion polls conducted between 2001 and 2009, concluded that 55 per cent of Americans were opposed to torture and 40.8 per cent in favour (Barnes 2016: 114).…”

The melancholic torturer: How Australia became a nation that tortures refugees

“…The prohibition against torture is a jus cogens – a norm from which no derogation is permitted. The torture taboo has withstood powerful forces to normalise it (Barnes, 2015). On the map of shared humanity, the line of torture is delineated with the legend: beyond this point there be dragons.…”