Accountability for the Torture Memo: Prosecuting Guantanamo in Europe: Can and Shall the Masterminds of the "Torture Memos" Be Held Criminally Responsible on the Basis of Universal Jurisdiction? Skip over navigation
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Copyright (c) 2009 Case Western Reserve Journal of International Law
Case Western Reserve Journal of International Law

Accountability for the Torture Memo: Prosecuting Guantanamo in Europe: Can and Shall the Masterminds of the "Torture Memos" Be Held Criminally Responsible on the Basis of Universal Jurisdiction?

2009

Case Western Reserve Journal of International Law

42 Case W. Res. J. Int'l L. 405

Author

Kai Ambos*

Excerpt



I. Introduction

In the infamous "torture memos," i.e., the memoranda concerning the treatment of the so-called "enemy combatants" held at Guantanamo Bay and other U.S. prisons overseas, senior officials of the former Bush Administration argued that "harsh interrogation techniques" were consistent with international law, in particular international humanitarian law. These interrogation techniques included waterboarding, pushing detainees against a wall, facial slaps, cramped confinement, stress positions, and sleep and food deprivation. 1 It was further argued that if an act was committed outside the territory of a State, the human rights law treaties and conventions to which that State was a party would not be binding extraterritorially, and therefore would not be applicable. 2 As to the torture prohibition under international law, it was argued that Article 1 of the Convention Against Torture defines torture as "severe pain" and thus shows that any lesser pain could not be considered torture. Treatment amounting to torture must induce excruciating, agonizing pain equaling serious injuries; 3 the infliction of non-lethal pain is excluded. 4 The treatment of detainees at Guantanamo Bay, which consisted of up to twenty hours of intense interrogations on most days over a period of nearly two months, would thus not amount to inhuman treatment. 5

The memos were drafted by senior officials of the Bush Administration. The so-called "Bush Six" were Alberto Gonzales, former Attorney General; Professor John Yoo and Jay Bybee, both from the Office of Legal Counsel of the Justice Department (OLC); Douglas Feith, ...
 
 
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