Order Code RL32438
CRS Report for Congress
Received through the CRS Web
U.N. Convention Against Torture (CAT):
Overview and Application to
Interrogation Techniques
Updated January 25, 2006
Michael John Garcia
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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U.N. Convention Against Torture (CAT):
Overview and Application to Interrogation Techniques
Summary
The United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (CAT) requires signatory parties to take
measures to end torture within their territorial jurisdiction and to criminalize all acts
of torture. Unlike many other international agreements and declarations prohibiting
torture, CAT provides a general definition of the term. CAT generally defines torture
as the infliction of severe physical and/or mental suffering committed under the color
of law. CAT allows for no circumstances or emergencies where torture could be
permitted.
The United States ratified CAT, subject to certain declarations, reservations, and
understandings, including that the Convention was not self-executing and therefore
required domestic implementing legislation to be enforced by U.S. courts. In order
to ensure U.S. compliance with CAT obligations to criminalize all acts of torture, the
United States enacted sections 2340 and 2340A of the United States Criminal Code,
which prohibit torture occurring outside the United States (torture occurring inside
the United States was already prohibited under several federal and state statutes of
general application prohibiting acts such as assault, battery, and murder). The
applicability and scope of these statutes were the subject of widely-reported
memorandums by the Department of Defense and Department of Justice in 2002. In
late 2004, the Department of Justice released a memorandum superseding its earlier
memo and modifying some of its conclusions.
Assuming for the purposes of discussion that a U.S. body had to review a harsh
interrogation method to determine whether it constituted torture under either CAT
or applicable U.S. law, it might examine international jurisprudence as to whether
certain interrogation methods constituted torture. Although these decisions are not
binding precedent for the United States, they may inform deliberations here.
Congress recently approved additional guidelines concerning the treatment of
detainees. The Department of Defense, Emergency Supplemental Appropriations to
Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (P.L.
109-148), and the National Defense Authorization Act for FY2006 (P.L. 109-163)
contain identical provisions that prohibit the “cruel, inhuman and degrading
treatment or punishment of persons under the detention, custody, or control of the
United States Government.” These provisions, added to the defense appropriations
and authorization bills via amendments introduced by Senator John McCain, are
discussed briefly in this report and in greater detail in CRS Report RS22312,
Interrogation of Detainees: Overview of the McCain Amendment, by Michael John
Garcia.

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Contents
Overview of the Convention against Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definition of “Torture” under CAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CAT Requirements Concerning the Criminalization of Torture . . . . . . . . . . 3
CAT Requirements Concerning the Availability of Civil Redress for
Victims of Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CAT Requirements Prohibiting Cruel, Inhuman, or Degrading Treatment
or Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CAT Enforcement and Monitoring Measures . . . . . . . . . . . . . . . . . . . . . . . . 4
Implementation of the Convention Against Torture in the United States . . . . . . . 5
Relevant Declarations, Reservations, and Understandings Conditioning
U.S. Ratification of the Convention Against Torture . . . . . . . . . . . . . . 6
Criminalization of Torture Occurring Outside the United States . . . . . . . . . 8
Availability of Civil Redress for Acts of Torture Occurring Outside the
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Prohibition on Cruel, Inhuman, and Degrading Treatment . . . . . . . . . . . . . 13
British Interrogation Techniques Employed in Northern Ireland . . . . . . . . 17
Israeli Interrogation Techniques Employed Against Palestinian
Security Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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U.N. Convention Against Torture (CAT):
Overview and Application to
Interrogation Techniques
Overview of the Convention against Torture
Over the past several decades, a number of international agreements and
declarations has condemned and/or sought to prohibit the practice of torture by public
officials,1 leading some to conclude that torture is now prohibited under customary
international law.2 Perhaps the most notable international agreement prohibiting
torture is the United Nations Convention against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment (Convention or CAT),3 signed by the United
States and over 140 other countries.
Definition of “Torture” under CAT
Whereas a number of prior international agreements and declarations
condemned and/or prohibited torture, CAT appears to be the first international
agreement to actually attempt to define the term. CAT Article 1 specifies that, for
purposes of the Convention, “torture” refers to:
1 See, e.g., U.N. CHARTER art. 55 (calling upon U.N. member countries to promote
“universal respect for, and observance of, human rights and fundamental freedoms for
all....”); Universal Declaration on Human Rights, UN GAOR, Supp. No. 16, at 52, UN Doc.
A/6316, at art. 5 (1948) (providing that “no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment”); International Covenant on Civil and
Political Rights, G.A. Res. 2200A, U.N. GAOR, 3rd Comm., 21st Sess., 1496th plen. mtg. at
49, U.N. Doc. A/RES/ 2200A (XXI), at art. 7 (1966) (providing that “[n]o one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment”).
2 See, e.g., Filartiga v. Pena-Irala, 630 F2d 876, 880-85 (2nd Cir. 1980) (listing numerous
sources, including the opinion of the State Department, supporting the proposition that
torture is prohibited by customary international law, and noting that despite continued
practice of torture by many countries, virtually all have renounced the practice publically,
including through international declarations and agreements); RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 702, Reporters note 5(d) (1987). But
see A. Mark Weisbard, Customary International Law and Torture: The Case of India, 2 CHI.
J. INT’L. L. 81 (Spring 2001) (arguing that widespread use of torture by States in certain
circumstances and general indifference of other States to the practice, despite existence of
numerous international agreements and declarations condemning torture, indicate that the
prohibition on torture has not reached the status of customary international law).
3 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51
(1984) [hereinafter “CAT”].

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any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only from, inherent
in or incidental to lawful sanctions.
Importantly, this definition specifies that both physical and mental suffering can
constitute torture, and that for such suffering to constitute torture, it must be
purposefully inflicted. Further, acts of torture covered under the Convention must
be committed by someone acting under the color of law. Thus, for example, if a
private individual causes intense suffering to another, absent the instigation, consent,
or acquiescence of a public official, such action does not constitute “torture” for
purposes of CAT.
The Convention’s definition of “torture” does not include all acts of
mistreatment causing mental or physical suffering, but only those of a severe nature.
According to the State Department’s section-by-section analysis of CAT included in
President Reagan’s transmittal of the Convention to the Senate for its advice and
consent, the Convention’s definition of torture was intended to be interpreted in a
“relatively limited fashion, corresponding to the common understanding of torture
as an extreme practice which is universally condemned.”4 For example, the State
Department suggested that rough treatment falling into the category of police
brutality, “while deplorable, does not amount to ‘torture’” for purposes of the
Convention, which is “usually reserved for extreme, deliberate, and unusually cruel
practices...[such as] sustained systematic beating, application of electric currents to
sensitive parts of the body, and tying up or hanging in positions that cause extreme
pain.”5 This understanding of torture as a severe form of mistreatment is made
explicit by CAT Article 16, which obligates Convention parties to “prevent in any
territory under [their] jurisdiction other acts of cruel, inhuman, or degrading
treatment or punishment which do not amount to acts of torture,”6 thereby indicating
that not all forms of inhumane treatment constitute torture.
In general, Convention parties are obligated to take “effective legislative,
administrative, judicial or other measures to prevent acts of torture in any territory
4 President’s Message to Congress Transmitting the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment, Summary and Analysis of the
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, May 23, 1988, S. TREATY DOC. NO. 100-20, reprinted in 13857 U.S. Cong.
Serial Set at 3 (1990) [hereinafter “State Dept. Summary”] (emphasis added).
5 Id. at 4. Presumably, police brutality of extreme severity could rise to the level of
“torture.”
6 CAT at art. 16(2).

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under [their] jurisdiction.”7 They are also forbidden from expelling, returning, or
extraditing a person to another State where there are “substantial grounds” for
believing that he would be in danger of being subjected to torture.8
CAT Requirements Concerning the Criminalization of Torture
A central objective of CAT was to criminalize all instances of torture. CAT
Article 4 requires States to ensure that all acts of torture are criminal offenses, subject
to appropriate penalties given their “grave nature.” State parties are also required to
apply similar criminal penalties to attempts to commit and complicity or participation
in torture.9 Accordingly, it appears that even though CAT requires States to take
“effective measures” to prevent torture only within their territorial jurisdiction, this
does not mean that States are therefore permitted to engage in torture in territories not
under their jurisdiction. While a State might not be required to take proactive
measures to prevent acts of torture beyond its territorial jurisdiction, it nevertheless
has an obligation to criminalize such extraterritorial acts and impose appropriate
penalties.
CAT Article 5 establishes minimum jurisdictional measures that each State
party must take with respect to offenses described in CAT Article 4. Pursuant to
CAT Article 5, a State party must establish jurisdiction over CAT Article 4 offenses
when:
(1) The offenses are committed in any territory under its jurisdiction or on board
a ship or aircraft registered in that State;
(2) The alleged offender is a national of that State;
(3) The victim was a national of that State if that State considers it appropriate;
and
(4) The alleged offender is present in any territory under its jurisdiction and the
State does not extradite him in accordance with CAT Article 8, which makes
torture an extraditable offense.
CAT’s prohibition of torture is absolute: “No exceptional circumstances
whatsoever, whether a state of war or a threat or war, internal political instability or
any other public emergency, may be invoked as a justification of torture.”10
According to the State Department, this blanket prohibition was viewed by the
drafters of CAT as “necessary if the Convention is to have significant effect, as
public emergencies are commonly invoked as a source of extraordinary powers or as
a justification for limiting fundamental rights and freedoms.”11
7 CAT at art. 2(1).
8 For a more detailed overview of CAT Article 3 and U.S. implementing laws and
regulations, see CRS Report RL32276, The U.N. Convention Against Torture: Overview of
U.S. Implementation Policy Concerning the Removal of Aliens, by Michael Garcia.
9 CAT at art. 4(1).
10 Id. at art. 2(2).
11 State Dept. Summary, supra note 4, at 5.

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CAT Requirements Concerning the Availability of
Civil Redress for Victims of Torture
CAT Article 14 provides that signatory States must ensure that their legal
systems provide victims of torture (or their dependents, in cases where the victim has
died as a result of torture) with the ability to obtain civil redress in the form of “fair
and adequate compensation including the means for as full rehabilitation as
possible.” According to the State Department, Article 14 was adopted with an
express reference to this treaty obligation extending only to “the victim of an act of
torture committed in any territory under [a signatory State’s] jurisdiction,” but this
limiting clause was “deleted by mistake.”12
CAT Requirements Prohibiting Cruel, Inhuman,
or Degrading Treatment or Punishment
CAT Article 16 requires signatory States to take preventative measures to
prevent “cruel, inhuman, or degrading treatment or punishment” within any territory
under their jurisdiction when such acts are committed under the color of law. CAT
does not define these terms, and the State Department suggested that the
requirements of Article 16 concerning “degrading” treatment or punishment
potentially include treatment “that would probably not be prohibited by the U.S.
Constitution.”13 Unlike in the case of torture, however, CAT does not expressly
require States to criminalize acts of cruel, inhuman, or degrading treatment or
punishment that occur within or outside their territorial jurisdiction.
CAT Enforcement and Monitoring Measures
CAT also established a Committee against Torture (Committee), composed of
ten experts of recognized competence in the field of human rights who are elected to
biannual terms by State parties.14 Each party is required to submit, within a year of
the Convention entering into force for it, a report to the Committee detailing the
measures it has taken to give effect to the provisions of CAT, as well supplementary
reports every four years on any new measures taken, in addition to any other reports
the Committee may request.15 The Committee monitors State compliance with
12 Id. at 13-14.
13 Id. at 15. The State Department noted, for instance, that the European Commission on
Human Rights once concluded that the refusal of German authorities to give formal
recognition to an individual’s sex change might constitute “degrading” treatment.
14 CAT at arts. 17-18.
15 Id. at art. 19(1). According the United Nations Office of the High Commissioner for
Human Rights, the United States first report under CAT was due on Nov. 15, 1995, and was
submitted on Oct. 15, 1999. See Office of the United Nations High Commissioner on
Human Rights, Convention Reporting Status, at [http://www.unhchr.ch/tbs/doc.nsf/Rep
Statfrset?OpenFrameSet]. A second report, due on Nov. 19, 2001, was submitted to the
Committee on May 6, 2005. Second Periodic Report of the United States of America to the
Committee Against Torture, May 6, 2005, available at [http://www.state.gov/g/drl/rls/

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Convention obligations,16 investigates allegations of systematic CAT violations by
State parties and makes recommendations for improving compliance,17 and submits
annual reports to CAT parties and the U.N. General Assembly.18
CAT Article 30 provides that disputes between two or more signatory parties
concerning the interpretation and application of the Convention can be submitted to
arbitration upon request.19 If, within six months of the date of request for arbitration,
the parties are unable to agree upon the organization of the arbitration, any of the
parties may refer the dispute to the International Court of Justice.20 Article 30
contains an “opt-out” provision, however, that enabled States (including the United
States) to make a reservation at the time of CAT ratification declaring that they do
not consider themselves to be bound by Article 30.21
Implementation of the Convention Against Torture
in the United States
The United States signed CAT on April 18, 1988, and ratified the Convention
on October 21, 1994, subject to certain declarations, reservations, and
understandings.22 Perhaps most significantly, the United States included a
declaration in its instruments of ratification that CAT Articles 1 through 16 were not
self-executing.23 The following sections will discuss relevant declarations,
15 (...continued)
45738.htm].
16 CAT at arts. 19-23.
17 Id. at arts. 20-23.
18 Id. at art. 24.
19 Id. at art. 30(1).
20 CAT at art. 30(1).
21 Id. at art. 30(2).
22 See SEN. EXEC. RPT. 101-30, Resolution of Advice and Consent to Ratification, (1990)
[hereinafter “Sen. Resolution”].
23 Id. at III.(2). U.S. courts hearing cases concerning the removal of aliens have regularly
interpreted CAT provisions prohibiting alien removal to countries where an alien would
likely face torture to be non-self executing and judicially unenforceable except to the extent
permitted under domestic implementing legislation. See, e.g., Castellano-Chacon v. I.N.S.,
341 F.3d 533 (6th Cir. 2003) (applicant for withholding of removal could not invoke CAT
directly, but could rely upon implementing regulations); Akhtar v. Reno, 123 F.Supp.2d 191
(S.D.N.Y. 2000) (rejecting challenge made by criminal alien to removal pursuant to CAT,
and stating that “[g]iven the apparent intent of the United States that the Convention not be
self-executing, this Court joins the numerous other courts that have concluded that the
Convention is not self-executing”). Pursuant to the Foreign Affairs Reform and
Restructuring Act of 1998 (FARRA), P.L. 105-277 at § 2242, the United States implemented
certain provisions of CAT by announcing a policy not to expel, extradite, or otherwise effect
(continued...)

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reservations, and understandings made by the United States to CAT, and U.S. laws
implementing CAT Article 4 requirements to criminalize torture.
Relevant Declarations, Reservations, and
Understandings Conditioning U.S. Ratification
of the Convention Against Torture
As previously mentioned, the Senate’s advice and consent to CAT ratification
was subject to the declaration that the Convention was not self-executing,24 meaning
that implementing legislation was required to fulfill U.S. international obligations
under CAT, and such implementing legislation was necessary for CAT to apply
domestically.25 In providing its advice and consent to CAT, the Senate also provided
a detailed list of understandings concerning the scope of the Convention’s definition
of torture. With respect to mental torture, a practice not specifically defined by CAT,
the United States understands such actions to refer to prolonged mental harm caused
or resulting from (1) the intentional infliction or threatened infliction of severe
physical pain and suffering; (2) the administration of mind-altering substances or
procedures to disrupt the victim’s senses; (3) the threat of imminent death; or (4) the
threat that another person will imminently be subjected to death, severe physical pain
or suffering, or the administration or application of mind altering substances or other
procedures calculated to disrupt profoundly the senses or personality.26
The Convention’s definition of torture includes not only acts committed by
public officials, but also those acts to which they acquiesced.27 As expressed in a
U.S. understanding on this point, for a public official to acquiesce to an act of torture,
that official must, “prior to the activity constituting torture, have awareness of such
activity and thereafter breach his or her legal responsibility to intervene to prevent
such activity.”28 U.S. implementing regulations barring the removal of aliens to
countries where they would more likely than not face torture reflect this
23 (...continued)
the involuntary removal of any person to a country where there are substantial grounds for
believing that the person would be in danger of being subjected to torture. Regulations
adopted pursuant to this legislation are codified at 8 C.F.R. §§ 208.16-18, 1208.16-18, and
22 C.F.R. § 95.2.
24 Sen. Resolution, supra note 22, at III.(2).
25 See RESTATEMENT, supra note 2, § 111 (“ a ‘non-self- executing’ agreement will not be
given effect as law in the absence of necessary implementation”). The United States
nevertheless has an international obligation to adjust its laws as necessary to give legal
effect to international agreements. Id. at comment h. See generally CRS Report RL32528,
International Law and Agreements: Their Effect Upon U.S. Law, by Michael Garcia and
Arthur Traldi.
26 Sen. Resolution, supra note 22, at II.(1)(a).
27 CAT at Art. 1.
28 Sen. Resolution, supra note 22, at II.(1)(d).

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understanding.29 Subsequent jurisprudence and administrative decisions concerning
the removal of aliens to countries where they may face torture have recognized that
“willful blindness” by officials to torture may constitute “acquiescence,”30 but
acquiescence does not occur when a government or public official is aware of third-
party torture but unable to stop it.31 In addition, mere noncompliance with applicable
legal procedural standards does not per se constitute torture.32
With regard to Article 14 of the Convention, obligating States to make civil
redress available to victims of torture, the Senate’s advice and consent was based on
the understanding that a State was only obligated for provide a private right of action
for acts of torture committed in territory under the State’s jurisdiction.33
With respect to Article 16 of the Convention, the Senate’s advice and consent
was based on the reservation that the United States considered itself bound to Article
16 to the extent that such cruel, unusual, and inhuman treatment or punishment was
prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the U.S.
Constitution.34 According to U.S. Supreme Court jurisprudence, whether treatment
by public officials constitutes “cruel and unusual” treatment that is prohibited by the
Constitution is assessed using a two-prong test.35 First, it must be determined
whether the individual who has been mistreated was denied “the minimal civilized
measures of life’s necessities.”36 This standard may change over time to reflect
29 8 C.F.R. § 1208.18(a)(7).
30 See, e.g., Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (declaring that the correct
inquiry in deciding whether a Chinese immigrant was entitled to relief from removal from
U.S. under CAT was not whether Chinese officials would commit torture against him, but
whether public officials would turn a blind eye to the immigrant’s torture by specified
individuals); Ontunez-Turios v. Ashcroft, 303 F.3d 341 (5th Cir. 2002) (upholding Board of
Immigration Appeals’ deportation order, but noting that “willful blindness” constitutes
acquiescence under CAT); Bullies v. Nye, 239 F. Supp.2d 518 (M.D. Pa. 2003) (under CAT-
implementing regulations, acquiescence by government to torture by non-governmental
agents requires either willful acceptance by government officials or at least turning a blind
eye); see also Pascual-Garcia v. Ashcroft, 73 Fed.Appx. 232 (9th Cir. 2003) (holding that
relief under CAT does not require that torture will occur while victim is in the custody or
physical control of a public official).
31 See, e.g., Moshud v. Blackman, 68 Fed. Appx. 328 (3rd Cir. 2003) (denying alien’s claim
to reopen removal proceedings to assert a CAT claim based on her fear of female genital
mutilation in Ghana: although the practice was widespread, the Ghanian government had
not acquiesced to the practice because it had been made illegal and public officials had
condemned the practice); Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000) (holding that
protection under CAT does not extend to persons fearing entities that a government is
unable to control).
32 Sen. Resolution, supra note 22, at II.(1)(e).
33 Id. at II.(3).
34 Id. at I.(2).
35 See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
36 Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

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evolving societal standards of decency.37 Secondly, the offending individual must
have a “sufficiently culpable state of mind,”38 indicating that the infliction of pain
was “wanton”39 or, in the context of general prison conditions, reflected “deliberate
indifference to inmate health or safety.”
The United States has also opted out of the dispute-settlement provisions of
CAT Article 30,40 but it has reserved the right to specifically agree to follow its
provisions or any other arbitration procedure to resolve particular disputes concerning
CAT application.
Criminalization of Torture Occurring
Outside the United States
To implement CAT Articles 4 and 5, Congress did not enact a new provision to
criminalize acts of torture committed within the jurisdiction of the United States: It
was presumed that such acts would “be covered by existing applicable federal and
state statutes,”41 such as those criminalizing assault, manslaughter, and murder.
However, the United States did add sections 2340 and 2340A of the United States
Criminal Code, which criminalize acts of torture that occur outside of the United
States. “Torture” is defined as “an act committed by a person acting under the color
of law specifically intended to inflict severe physical or mental pain or suffering
(other than pain or suffering incidental to lawful sanctions) upon another person
within his custody or physical control.”42 Section 2340 further defines “severe
mental pain and suffering” as prolonged mental harm caused by:
(1) the intentional infliction or threatened infliction of severe physical pain or
suffering;
(2) the administration or application, or threatened administration or application,
of mind-altering substances or other procedures calculated to disrupt profoundly
the senses or the personality;
(3) the threat of imminent death; or
(4) the threat that another person will imminently be subjected to death, severe
physical pain or suffering, or the administration or application of mind-altering
substances or other procedures calculated to disrupt profoundly the senses or
personality.43
Pursuant to section 2340A, any person who commits or attempts to commit an
act of torture outside the United States is generally subject to a fine and/or
37 Id. at 346.
38 Wilson v. Seiter, 501 U.S. 294, 297 (1991).
39 Id.
40 See Sen. Resolution, supra note 22, at I.(3).
41 S.Rept. 103-107, at 59 (1993) (discussing legislation implementing CAT Articles 4 and
5).
42 18 U.S.C. § 2340(1).
43 18 U.S.C. § 2340(2).

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imprisonment for up to 20 years.44 In cases where death results from the prohibited
conduct, the offender may be subject to life imprisonment or the death penalty.45 A
person who conspires to commit an act of torture committed or attempted outside the
United States is generally subject to the same penalties faced by someone who
commits or attempts to commit acts of torture outside the United States, except that
he cannot receive the death penalty for such an offense.46 The United States claims
jurisdiction over these prohibited actions when (1) the alleged offender is a national
of the United States or (2) the alleged offender is present in the United States,
irrespective of the nationality of the victim or offender.47
Until recently, for purposes of the federal torture statute, the term “United
States” referred to all areas under the jurisdiction of the United States, including
those falling within its special maritime and territorial jurisdiction, such as military
bases and buildings abroad when an offense was committed by or against a U.S.
national.48 Accordingly, the federal torture statute would not appear to have applied
to cases of torture that might have occurred in such facilities, because they were not
considered to be “outside the United States.” However, pursuant to section 1089 of
the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005,49
the torture statute was amended so that, for purposes of the statute, “United States”
now refers to the several states of the United States, the District of Columbia, and the
commonwealths, territories, and possessions of the United States. Accordingly, the
federal torture statute would now cover alleged acts of torture that might occur at
U.S. facilities abroad. Because the section 2340A also criminalizes conspiracies to
commit torture outside the United States, it arguably could also apply in situations
where a U.S. national conspired to transfer an individual “outside the United States”
so that he may be tortured.
In addition, a number of federal criminal statutes explicitly cover actions that
are committed outside of the territorial boundaries of the United States, but
nevertheless occur within the special maritime or territorial jurisdiction of the United
States,50 including statutes criminalizing assault,51 maiming with the intent to
44 18 U.S.C. § 2340A(a).
45 Id.
46 Id.
47 18 U.S.C. § 2340A(b).
48 See 18 U.S.C. § 2340(3) (2003). With respect to offenses committed by or against U.S.
citizens, the special territorial jurisdiction of the United States includes (1) the premises of
United States diplomatic, consular, military or other United States Government missions or
entities in foreign States, including the buildings, parts of buildings, and land appurtenant
or ancillary thereto or used for purposes of those missions or entities, irrespective of
ownership; and (2) residences in foreign States and the land appurtenant or ancillary thereto,
irrespective of ownership, used for purposes of those missions or entities or used by United
States personnel assigned to those missions or entities. 18 U.S.C. § 7(9).
49 P.L. 108-375 (2004).
50 U.S. special maritime and territorial jurisdiction covers specified areas within and outside
(continued...)

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torture,52 manslaughter,53 and murder,54 as well as conspiracies to commit such
crimes.55 Additionally, persons within the jurisdiction of the United States who
conspire to kill, maim, or injure persons outside the United States are subject to
criminal penalties.56 “Grave breaches” of the Geneva Conventions governing the
treatment of prisoners of war and civilians, which include the torture or inhumane
treatment of such persons, are criminalized under federal statute and persons
convicted may be sentenced to life imprisonment or, if death results from the breach,
be executed.57 U.S. military law provides further restrictions on the treatment of
individuals detained by the military.58
Some of the criminal statutes described above, including section 2340A, provide
that the specific intent of the actor is a necessary component of the criminal offense.59
Specific intent is “the intent to accomplish the precise criminal act that one is later
charged with.”60 This state of mind can be differentiated from that found in criminal
offenses that only require an actor to possess a general intent with respect to the
offense. General intent usually “takes the form of recklessness (involving actual
awareness of a risk and the culpable taking of that risk) or negligence (involving
blameworthy inadvertence).”61
50 (...continued)
of U.S. territorial boundaries, including territory within U.S. territorial boundaries under
federal control, such as military bases. 18 U.S.C. § 7(3).
51 18 U.S.C. § 113
52 18 U.S.C. § 114. For purposes of the statute, “torture” is defined by 18 U.S.C. § 2340.
53 18 U.S.C. § 1112(b).
54 18 U.S.C. § 1111(b).
55 18 U.S.C. § 371.
56 18 U.S.C. § 956(a).
57 18 U.S.C. § 2441. The 1949 Geneva Conventions provide that “torture or inhuman
treatment ... wilfully causing great suffering or serious injury to body or health” represent
“grave breaches” to Convention requirements. See Geneva Convention (First) for the
Amelioration of the Condition of the Wounded and the Sick in the Armed Forces in the
Field, Aug. 12, 1949, 6 U.S.T. 3314, 75 U.N.T.S. 31, at art. 50; Geneva Convention
(Second) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked,
Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, at art. 51; Geneva Convention (Third)
Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S.
135, at art. 130; Geneva Convention (Fourth) Relative to the Protection of Civilian Persons
in Times of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, at art. 147.
58 For a more comprehensive discussion of U.S. laws applicable to the treatment of prisoners
of war, see CRS Report RL32395, U.S. Treatment of Prisoners in Iraq: Selected Legal
Issues, by Jennifer Elsea.
59 See 18 U.S.C. § 2340 (defining torture as “an act committed by a person acting under the
color of law specifically intended to inflict severe physical or mental pain or suffering”).
60 BLACK’S LAW DICTIONARY 814 (7th ed. 1999)
61 Id. at 813.

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Two memorandums produced by the Department of Defense and the
Department of Justice in 2002 discussed the distinction between general and specific
intent with respect to section 2340A, and suggested that “knowledge alone that a
particular result is certain to occur does not constitute specific intent.”62 However,
both memorandums made clear that this is “a theoretical matter,”and note that juries
may infer from factual circumstances that specific intent is present.63 Accordingly,
“when a defendant knows that his actions will produce the prohibited result, a jury
will in all likelihood conclude that the defendant acted with specific intent.”64 In late
2004, the Department of Justice released a memorandum superseding its earlier
memo and modifying some of its conclusions.65 The 2004 DOJ memo stated that
“[i]n light of the President’s directive that the United States not engage in torture, it
would not be appropriate to rely on parsing the specific intent element of the statute
to approve as lawful conduct that might otherwise amount to torture.”66
Nevertheless, the 2004 DOJ memo alleged that it was unlikely that a person who
“acted in good faith, and only after reasonable investigation establishing that his
conduct would not inflict severe physical or mental pain or suffering,” would possess
the specific intent required to violate the federal torture statute.67 The 2004 DOJ
memo also distinguished intent to commit an offense from the motive behind
committing an offense, stating that “a defendant’s motive (to protect national
62 See Department of Defense, Working Group Report on Detainee Interrogations in the
Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational
Considerations (Mar. 6, 2003), available at [http://www.defenselink.mil/news/Jun2004/
d20040622doc8.pdf] [hereinafter “DOD Memo”] at 9; Memorandum from the Office of
Legal Counsel, Department of Justice, to Alberto R. Gonzales, Counsel to the President, Re:
Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002), on
the Washington Post website, available at [http://www.washingtonpost.com/wp-
srv/nation/documents/dojinterrogationmemo20020801.pdf] [hereinafter “2002 DOJ Memo”]
at 4.
63 DOD Memo, supra note 62, at 9; 2002 DOJ Memo, supra note 65, at 4.
64 DOD Memo, supra note 62, at 9; 2002 DOJ Memo, supra note 65, at 4.
65 Memorandum from the Office of Legal Counsel, Department of Justice, to James B.
Comey, Deputy Attorney General, Re: Legal Standards Applicable Under 18 U.S.C. §§
2340-2340A (Dec. 30, 2004), available at [http://www.usdoj.gov/olc/dagmemo.pdf]
[hereinafter “2004 DOJ Memo”].
66 Id. at 16-17. The memo cited to declarations made by President George W. Bush in 2003
and 2004 describing freedom from torture as “an inalienable human right” and that “[t]orture
anywhere is an affront to human dignity everywhere.” Id. at n.4.
67 Id. at 17. The 2002 DOJ and DOD memorandums suggested that defenses of necessity
(i.e., taking unlawful conduct the actor believes is necessary to avoid the occurrence of a
greater harm or evil) or self-defense might in some cases justify violations of the federal
criminal torture statute and potentially eliminate criminal liability. DOD Memo, supra note
62, at 25-31; 2002 DOJ Memo, supra note 62, at 39-46. The 2004 DOJ Memo does not
directly address these potential defenses, though it does note that there is “no exception
under the statute permitting torture to be used for a ‘good reason.’” 2004 DOJ Memo, supra
note 65, at 17.

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security, for example) is not relevant to the question whether he has acted with the
requisite specific intent under the statute.”68
Although section 2340A provides the United States with a wide jurisdictional
grant to prosecute acts of torture, it does not appear that this authority has ever been
used. A legal search by CRS did not reveal any cases in which the DOJ has relied
on section 2340A to prosecute acts of torture occurring outside of the United States.
Availability of Civil Redress for Acts of Torture
Occurring Outside the United States
Although the United States attached an understanding to its ratification of CAT
expressing its view that CAT Article 14 did not require States to recognize a private
right of action for victims of torture occurring outside their territorial jurisdiction, the
United States nevertheless created in the Torture Victims Protection Act of 1991
(TVPA) a private right of action for victims of torture committed under actual or
apparent authority, or color of law, of any foreign nation.69 For purposes of the
TVPA, “torture” is defined in a similar manner to the definition found in the federal
statute criminalizing torture.70 A claim under the TVPA must be commenced within
10 years after the cause of action arose, and a claimant must exhaust all adequate and
available remedies in the country where the alleged torture occurred before a U.S.
court can hear the claim.71
If an act of torture occurs within the United States, a tort claim could be brought
by a person seeking redress under applicable state, federal statutory, or constitutional
tort law.72
68 2004 DOJ Memo, supra note 65, at 17.
69 P.L. 102-256.
70 For purposes of the TVPA, “torture” describes “any act, directed against an individual in
the offender’s custody or physical control, by which severe pain or suffering (other than
pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether
physical or mental, is intentionally inflicted on that individual for such purposes as
obtaining from that individual or a third person information or a confession, punishing that
individual for an act that individual or a third person has committed or is suspected of
having committed, intimidating or coercing that individual or a third person, or for any
reason based on discrimination of any kind.” Id. at § 3(b)(1).
71 Id. at §§ 2(b)-(c).
72 See, e.g., 22 U.S.C. § 1350 (providing that an alien may bring a civil action for a tort only
for a violation of the law of nations or a treaty of the United States); 28 U.S.C. §§ 1346,
2674 (providing federal jurisdiction over certain constitutional and federal statutory claims,
and U.S. tort liability); 42 U.S.C. §§ 1982-1988 (providing civil right of action for violation
of civil rights).

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Prohibition on Cruel, Inhuman, and Degrading Treatment
Following ratification of CAT, Congress did not adopt implementing legislation
with respect to CAT Article 16, which requires each CAT party to prohibit cruel,
inhuman, and degrading treatment or punishment in “any territory under its
jurisdiction.” There has recently been debate over whether Congress’s failure to pass
legislation implementing CAT Article 16 was due to an oversight or whether
Congress believed that the United States agreed to bind itself to CAT Article 16 only
to the extent that it was already required to refrain from cruel, inhuman, and
degrading treatment or punishment under the U.S. Constitution and any existing
statutes covering such offenses.
As previously mentioned, the Senate made its advice and consent to CAT
ratification contingent upon the reservation that the cruel, inhuman, and degrading
treatment or punishment prohibited by CAT 16 covered only those forms of
treatment or punishment prohibited under the U.S. Constitution. Given this
understanding, U.S. obligations under Article 16 can be interpreted in one of two
ways.
One way is to interpret the United States as having agreed to bind itself to CAT
Article 16 only to the extent that cruel, inhuman, or degrading treatment is
constitutionally prohibited. Although the U.S. Supreme Court has held that the
Constitution applies to U.S. citizens abroad, thereby protecting them from the
extraterritorial infliction by U.S. officials of treatment or punishment prohibited
under the Constitution,73 non-citizens arguably only receive constitutional protections
after they have effected entry into the United States.74 Under this interpretation, CAT
Article 16, as agreed to by the United States, would not necessarily prohibit the U.S.
73 See, e.g., Reid v. Covert, 354 U.S. 1, 6 (1957) (“When the Government reaches out to
punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the
Constitution provide to protect his life and liberty should not be stripped away just because
he happens to be in another land.”).
74 See, e.g., Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“aliens
receive constitutional protections when they have come within the territory of the United
States and developed substantial connections with the country”). But see Rasul v. Bush, 124
S.Ct. 2686, n.15 (2004) (noting in dicta that petitioners’ allegations that they had been held
in detention at Guantanamo Bay for more than two years “in territory subject to the
long-term, exclusive jurisdiction and control of the United States, without access to counsel
and without being charged with any wrongdoing — unquestionably describe ‘custody in
violation of the Constitution or laws or treaties of the United States’”) (citing federal habeas
statute 28 U.S.C. § 2241(c)(3), under which petitioners challenged their detention).
Whether the Rasul ruling meant only that federal habeas jurisdiction extended to
Guantanamo, or more broadly found that non-citizens detained at Guantanamo possessed
constitutional rights, has been subject to conflicting rulings by district courts. Compare
Khalid v. Bush, 355 F. Supp.2d 311 (D.D.C. 2005) (holding that while federal habeas
statute covers Guantanamo detainees, non-citizens detained there do not receive
constitutional protections) with In re Guantanamo Detainees, 355 F. Supp.2d 443 (D.D.C.
2005) (reading Rasul to mean that persons detained at Guantanamo are owed constitutional
protections). For further information, see CRS Report RS22173; Detainees at Guantánamo
Bay, by Jennifer Elsea.

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from subjecting certain non-U.S. citizens to “cruel, inhuman, and degrading
treatment or punishment” at locations outside U.S. territorial boundaries where the
U.S. nonetheless asserts territorial jurisdiction (e.g., on the premises of U.S. missions
in foreign States). The DOJ has taken this position in arguing that CAT Article 16,
as agreed to by the U.S., does not cover aliens detained overseas.75
On the other hand, others have argued that CAT Article 16, as agreed to by the
U.S., requires the U.S. to prohibit cruel, inhuman, and degrading treatment or
punishment in any territory under its jurisdiction if such treatment would be deemed
unconstitutional if it occurred in the United States. This view holds that the purpose
of the U.S. reservation to CAT Article 16 was to more clearly define types of
treatment that were “cruel, inhuman, and degrading” rather than to limit the
geographic scope of U.S. obligations under CAT Article 16. At least one former
State Department official involved in CAT’s negotiation and ratification process has
endorsed this interpretation as the correct one.76
Partially in light of this controversy, Congress recently passed additional
guidelines concerning the treatment of detainees. The Department of Defense,
Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of
Mexico, and Pandemic Influenza Act, 2006 (P.L. 109-148), and the National Defense
Authorization Act for FY2006 (P.L. 109-163) contain identical provisions that
prohibit the “cruel, inhuman and degrading treatment or punishment of persons under
the detention, custody, or control of the United States Government,” regardless of
their geographic location or nationality.77 These provisions, added to the defense
appropriations and authorization bills via amendments introduced by Senator John
McCain and popularly referred to as the McCain amendment, are discussed in greater
detail in CRS Report RS22312, Interrogation of Detainees: Overview of the McCain
Amendment, by Michael John Garcia.
When signing these provisions into law, President Bush issued a signing
statement claiming he would construe the McCain amendment “in a manner
consistent with the constitutional authority of the President to supervise the unitary
executive branch and as Commander in Chief ... which will assist in achieving the
shared objective of the Congress and the President ... of protecting the American
people from further terrorist attacks.”78 This statement has been interpreted as
75 The Department of Justice has taken the position that CAT Article 16, as read in light of
U.S. reservations, (1) does not cover acts overseas that are not under U.S. jurisdiction, and
(2) does not impose any new obligations upon the U.S. beyond those already required under
the U.S. Constitution. It has also argued that the Constitution does not cover non-citizens
held outside the United States. See Letter from Asst. Attorney General William E.
Moschella to Sen. Patrick Leahy, Apr. 4, 2005, available at [http://www.scotusblog.com/
movabletype/archives/CAT%20Article%2016.Leahy-Feinstein-Feingold%20Letters.pdf].
76 Letter from Abraham Sofaer to Senator Patrick J. Leahy, Jan. 21, 2005, reprinted in
CONG. REC. S12382-12383 (Nov. 4, 2005).
77 P.L. 109-148, Title X, § 1003; P.L. 109-163, Title XIV, § 1403.
78 President’s Statement on Signing of H.R. 2863, the “Department of Defense, Emergency
Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic
(continued...)

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CRS-15
meaning that the President believes he may waive congressional restrictions on
interrogation techniques in certain circumstances involving national security,
pursuant to his constitutional authority as Commander in Chief.79 Whether or when
the President will instruct U.S. personnel to disregard the McCain amendment’s
guidelines concerning the treatment of detainees remains to be seen.
The McCain amendment does not directly impose criminal or civil penalties on
U.S. personnel who might engage in cruel, inhuman, or degrading treatment or
punishment of detainees, though such persons could potentially be criminally liable
for such conduct under other statutes.80 It does, however, provide an express legal
defense to U.S. personnel in any civil or criminal action brought against them on
account of their participation in the authorized interrogation of suspected foreign
terrorists. The McCain amendment specifies that a legal defense exists to civil action
or criminal prosecution when the U.S. agent “did not know that the [interrogation]
practices were unlawful and a person of ordinary sense and understanding would not
know the practices were unlawful.”81 A good faith reliance on the advice of counsel
is specified to be “an important factor, among others, to consider in assessing
whether a person of ordinary sense and understanding would have known the
practices to be unlawful.”82
78 (...continued)
Influenza Act, 2006,” Dec. 30 2005, available at [http://www.whitehouse.gov/news/
releases/2005/12/20051230-8.html].
79 See generally Charlie Savage, Bush Could Bypass New Torture Ban, BOSTON GLOBE, Jan.
4, 2006, at A1(quoting a senior White House official under condition of anonymity and
several legal scholars as to the meaning of the signing statement).
80 See supra pp. 9-10.
81 P.L. 109-148, Title X, § 1004; P.L. 109-163, Title XIV, § 1404.
82 P.L. 109-148, Title X, § 1004; P.L. 109-163, Title XIV, § 1404.

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CRS-16
Decisions by Non-U.S. Bodies
Concerning Whether Certain Interrogation
Techniques Rise to the Level of Torture
Although U.S. courts and administrative bodies have found that severe beatings,
sexual assault, rape, and (in certain circumstances) death threats may constitute
“torture” for purposes of either CAT or the TVPA,83 there is little U.S. jurisprudence
concerning whether harsh yet sophisticated interrogation techniques of lesser severity
constitute “torture” under either the Convention or U.S. implementing legislation.
“Severe” pain or suffering constituting torture is not defined by either CAT or U.S.
statute.84 Although few, if any, U.S. courts have had the opportunity to address this
83 See, e.g, Zubeda v. Ashcroft, 333 F.3d 46 (3rd Cir. 2003) (“[r]ape can constitute torture”);
Al-Saher v. I.N.S., 268 F.3d 1143 (9th Cir. 2001) (finding that regular, severe beatings and
cigarette burns inflicted upon an Iraqi alien by prison guards entitled him to relief under
CAT Article 3 from removal to Iraq); Matter of Kuna, A76491421 (BIA July 12, 2001)
(unpublished) (Board of Immigration Appeals decision concluding that rape and sexual
assault may constitute torture for purposes of CAT). For purposes of the Torture Victims
Relief Act, 22 U.S.C. § 2152 note, torture is defined as including “the use of rape and other
forms of sexual violence by a person acting under the color of law ....” As noted by the
2004 DOJ Memo, U.S. courts have reached differing conclusions as to whether death threats
constitute mental torture, with such findings largely dependent on whether the person
threatened suffered prolonged mental harm. See 2004 DOJ Memo, supra note 65, at 14-15,
citing Sackie v. Ashcroft, 270 F. Supp. 2d 596 (E.D. Pa. 2003) (finding that individual
forcibly recruited as child soldier and forced to take narcotics and threatened with imminent
death during a three to four year period had suffered prolonged mental harm constituting
torture during this period); Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp.
2d 1285 (S.D. Fla. 2003) (rejecting a torture claim under the Torture Victims Protection Act
brought by persons who had been held at gunpoint overnight and repeatedly threatened with
death, when they had failed to show that they had suffered any longstanding mental harm
as a result); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) (finding that
plaintiffs had been victims of mental torture when they were forced to play Russian roulette
and suffered “long-term psychological harm” as a result).
84 Although “severe...pain or suffering” is not specifically defined anywhere in the United
States Code, the Department of Justice suggested in August 2002 that a reviewing court
might examine the Code’s definition of “emergency medical condition” for guidance, as this
definition includes “severe pain” as a component of an emergency medical condition. 2002
DOJ Memo supra note 62, at 5-6; see generally 42 U.S.C. § 1395w-22(d)(3)(B) (defining
an emergency medical condition as “a medical condition manifesting itself by acute
symptoms of sufficient severity (including severe pain) such that a prudent layperson, who
possesses an average knowledge of health and medicine, could reasonably expect the
absence of immediate medical attention to result in (i) placing the health of the individual
(or, with respect to a pregnant woman, the health of the woman or her unborn child) in
serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of
any bodily organ or part”). Accordingly, the 2002 DOJ Memo argued, physical pain
amounting to torture must be “equivalent in intensity to the pain accompanying serious
physical injury, such as organ failure, impairment of bodily function, or even death.” 2002
DOJ Memo supra note 62, at 1. A legal search by CRS did not reveal any cases where a
U.S. court looked upon this definition for guidance when adjudicating a criminal or civil
claim concerning torture. In the 2004 DOJ Memo superseding the Department’s earlier
(continued...)

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issue, decisions and opinions issued by foreign courts and international bodies might
serve as indicators of an international prohibition against certain interrogation
techniques. Assuming for the purposes of discussion that a U.S. body reviewed
certain interrogation methods to assess whether they constituted “torture” for
purposes of CAT and domestic implementing legislation, it might consider looking
at jurisprudence by non-U.S. bodies for guidance, though such jurisprudence would
not be binding upon it. This section will briefly discuss two notable circumstances
in which international bodies have assessed whether a State’s interrogation
techniques constituted torture.
British Interrogation Techniques Employed
in Northern Ireland
In 1978, the European Court of Human Rights (ECHR) heard a case brought by
Ireland against the United Kingdom concerning British tactics used to counter
secessionist movements and organizations in Northern Ireland during the early 1970s,
and whether such tactics violated the European Convention for the Protection of
Human Rights and Fundamental Freedoms (European Convention).85 One issue that
the ECHR was asked to resolve was whether five interrogation techniques previously
employed by British authorities and approved by “high level” British officials86
violated Article 3 of the European Convention, which provides that “no one shall be
subjected to torture or to inhuman or degrading treatment or punishment.”87
According to the ECHR, these five interrogation techniques, which were sometimes
used in combination and other times individually, included:
(1) wall-standing: forcing the detainees to remain for periods of some hours in
a “stress position”, described by those who underwent it as being “spreadeagled
against the wall, with their fingers put high above the head against the wall, the
legs spread apart and the feet back, causing them to stand on their toes with the
weight of the body mainly on the fingers”;
(2) hooding: putting a black or navy coloured bag over the detainees’ heads and,
at least initially, keeping it there all the time except during interrogation;
(3) subjection to noise: pending their interrogations, holding the detainees in a
room where there was a continuous loud and hissing noise;
(4) deprivation of sleep: pending their interrogations, depriving the detainees of
sleep; and
84 (...continued)
memorandum on torture, the DOJ rejected this earlier finding to the extent that it treated
severe physical suffering as identical to severe physical pain, and concluded that “severe
physical suffering” may constitute torture under the federal torture statute even if such
suffering does not involve “severe physical pain.” 2004 DOJ Memo, supra note 65, at 10.
85 Ireland v. United Kingdom, Judgment, European Court of Human Rights (1978), available
at [http://hudoc.echr.coe.int/Hudoc1doc/HEJUD/sift/91.txt] [hereinafter “Ireland”].
86 Id. at ¶ 97. At the time of the Court’s decision, Britain had pledged not to use the
interrogation techniques in the future. Id. at ¶ 153.
87 213 U.N.T.S. 211(1955).

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(5) deprivation of food and drink: subjecting the detainees to a reduced diet
during their stay at the center and pending interrogations.88
An investigation by the European Commission of Human Rights concluded that no
physical injury resulted from the use of these techniques, though certain detainees
suffered weight loss and adverse effects upon their “acute psychiatric systems ...
during interrogation.”89
The ECHR concluded that the interrogation techniques employed by Britain
violated the European Convention’s prohibition upon “inhuman or degrading
treatment,” but found that the interrogation methods did not constitute “torture.”90
The ECHR stated that a distinction exists between inhuman or degrading treatment
and torture; a “distinction [that] derives principally from a difference in the intensity
of the suffering inflicted.”91 The ECHR concluded that while the five interrogation
techniques, at least when used in combination, were inhuman or degrading treatment,
“they did not occasion suffering of the particular intensity and cruelty implied by the
word torture as so understood.”92 The ECHR did not offer an in-depth analysis as to
why these techniques did not cause sufficient suffering to constitute torture, although
it should be noted that it appeared that few, if any, of the persons who were subject
to the interrogation techniques sustained lasting, debilitating physical or mental
injuries. It did note, however, that its inquiry required an evaluation of “all the
circumstances of the case, such as the duration of the treatment, its physical or mental
effects and, in some cases, the sex, age and state of health of the victim.”93
Accordingly, it may be possible that in different circumstances these interrogation
techniques might be judged by the ECHR to rise to the level of torture.
Israeli Interrogation Techniques Employed
Against Palestinian Security Detainees
Beginning in the late 1980s and ending in the late 1990s, certain Israeli security
forces were authorized to employ harsh interrogation techniques against Palestinian
security detainees, including the use of “moderate physical pressure.” In its initial
report to the CAT Committee, Israel argued that the interrogation techniques it
employed were in accordance with international law prohibiting torture.94 It
specifically noted the ECHR decision declaring that the interrogation techniques
employed by Britain in Northern Ireland during the early 1970s did not constitute
88 Ireland, supra note 85, at ¶ 96.
89 Id. at ¶ 104.
90 Id. at ¶ 167.
91 Id.
92 Id.
93 Id. at ¶ 162.
94 Committee against Torture, Initial reports of States Parties Due in 1992: Israel, U.N. Doc.
CAT/C/16/Add.4 (1994), at ¶ 34.

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torture.95 The Committee concluded, however, that such tactics were “completely
unacceptable” given Israel’s obligations under CAT Articles 2 and 16.96
In response to Committee concerns about its interrogation techniques, Israel
submitted additional information concerning the nature of the interrogation
techniques it employed against Palestinian security detainees. According to the CAT
Committee, these interrogation techniques included:
(1) restraining in very painful conditions,
(2) hooding under special conditions,
(3) sounding of loud music for prolonged periods,
(4) sleep deprivation for prolonged periods,
(5) threats, including death threats,
(6) violent shaking, and
(7) using cold air to chill.97
In 1997, after examining a special report by Israel discussing these tactics, the
Committee concluded that the tactics described violated Israel’s obligations as a party
to CAT, representing a breach of CAT Article 16 and constituting torture as defined
by CAT Article 1.98 The Committee opinion suggests that some of the interrogation
techniques employed by Israel might constitute torture when employed singularly,99
although the Committee did not specify how particular methods constituted torture.
Despite acknowledging that Israel faced a “terrible dilemma ... in dealing with
terrorist threats to its security,” the Committee noted that CAT provides that no
exceptional circumstances permit State parties to engage in torture.100 Accordingly,
the Committee recommended that Israel immediately cease its use of the
interrogation tactics described above.101
The Committee is an advisory body, and its rulings are not binding. However,
in 1999, the Israeli Supreme Court, sitting as the Israeli High Court of Justice,
concluded that the interrogation techniques evaluated by the Committee were
contrary to Israeli law, and prohibited their usage except in cases when “special
permission” was granted permitting their usage against detainees believed to possess
95 Id.
96 See Committee against Torture, Concluding Observations of the Committee against
Torture: Israel, A/49/44 (1994) at ¶ 168.
97 Concluding Observations of the Committee against Torture : Israel, 18th Sess., U.N. Doc.
A/52/44 (1997) at ¶ 257.
98 Id. at ¶ 256.
99 See id. at ¶ 257 (noting that the Committee’s conclusion that the interrogation techniques
constituted torture was “particularly evident where such methods of interrogation [were]
used in combination, which appears to be the standard case”).
100 Id. at ¶ 258.
101 Id. at ¶ 260.

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information about an imminent attack.102 In doing so, however, the High Court did
not expressly determine whether such actions constituted “torture.” According to the
State Department, Israel is reported to have used such techniques at least 90 times
since the Israeli High Court’s ruling.103 For its part, the U.S. State Department
reported in 2000 that Israeli security forces “abused, and in some cases, tortured
Palestinians suspected of security offenses.”104 More recently, the State Department
has described Israel’s interrogation tactics as “degrading treatment,” but noted that
human rights groups claim that torture is being employed.105
102 See Pub. Comm. Against Torture in Israel v. State of Israel, Judgment, H.C. 5100/94,
Israeli High Court of Justice (1999), available at [http://62.90.71.124/eng/verdict/frameset
Srch.html].
103 U.S. Dept. of State, Bureau Of Democracy, Human Rights, and Labor, Country Reports
on Human Rights Practices - 2002 (Mar. 31, 2003), available at [http://www.state.gov/g/drl
/rls/hrrpt/2002/18289.htm].
104 U.S. Dept. of State, Bureau Of Democracy, Human Rights, and Labor, Country Reports
on Human Rights Practices - 1999 (Feb. 23, 2000), available at [http://www.state.gov/
g/drl/rls/hrrpt/1999/416.htm].
105 U.S. Dept. of State, Bureau Of Democracy, Human Rights, and Labor, Country Reports
on Human Rights Practices - 2003 (Feb. 25, 2004), available at [http://www.state.gov/g/
drl/rls/hrrpt/2003/27929.htm].

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