Professor John Mikhail at the Georgetown Law Faculty Blog has some insights into the Common Article 3 with regard to torture. Key points:
Section 8 defines torture as:
The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering…upon another person within his custody or physical control for the purpose of obtaining information or a confession… (emphasis added).
This definition is a departure from Common Article 3, which simply lists torture without qualification among those acts which “are and shall remain prohibited at any time and in any place whatsoever…” That is, while Common Article 3 does not restrict torture to harms associated with a particular mental state, Section 8 does do so; furthermore, it defines that mental state narrowly, as one of “specific intent.”
Read the whole thing!
UPDATE: I’ve had a chance to read Prof. Mikhail’s post again and think about it. I agree with him that Section 8 of the bill has the effect that he reads into it, namely, a specific intent requirement. However, I’m not so sure that as a practical matter, it will make a difference. Prof. Mikhail concludes his post with a hypothetical cross-examination in a criminal trial of a person accused of violating the War Crimes Act:
Prosecutor: Did you know that what you were doing to the detainee would cause him severe physical pain?
Defendant: Yes sir.
Prosecutor: Did you know it would permanently disfigure him?
Defendant: Yes.
Prosecutor: Did you know it would prevent him from being able to walk?
Defendant: Yes.
Prosecutor: And were you doing it for the purpose of obtaining information or a confession?
Defendant: Yes.
Prosecutor: Isn’t that torture?
Defendant: No sir. Read the statute. I knew those harms would occur, but I did not specifically intend any of them. Causing those harms was not my conscious objective.
My question is, when would it ever not be a conscious objective of torture to inflict severe mental or physical pain? The interrogator’s goal no doubt is to extract useful information for the victim. However, the tool for extracting that information is, by hypothetical, the infliction of severe mental or physical pain. The interrogator cannot say that he or she “hoped” that the victim wouldn’t suffer, for if the victim didn’t suffer, the victim wouldn’t talk. Of course, a jury might well decide that the aforementioned Agent Jack Bauer really did the right thing, that lots of innocent lives were saved, blah blah blah, but if the jury is so inclined, it doesn’t necessarily need the “specific intent” loophole to acquit the defendant. It might do so under a theory of necessity, or it might just engage in jury nullification.
Posted by Tung Yin on September 26, 2006 at 03:37 PM