Identifying Torture: A conspicuous ambiguity

In any endeavor requiring the employment of language, ambiguity is an inescapable
complication.

That is not to say however, that all attempts at specificity ought to be abandoned. The need for special care in language increases with the gravity of the subject of consideration. Discourse concerning topics such as torture requires the utmost care, and is deserving of maximal precision. It is for this reason that the language of the Convention Against Torture (“CAT”) is so unsatisfactory. The mere creation of the convention itself is inadequate without language sufficient to bind its signatories in the way intended.

There are two terms that are particularly problematic in Article I of CAT. The relevant sections state that torture is defined as “any act by which severe pain or suffering…is intentionally inflicted on a person.” Both “severe” and “intentionally” represent troublesome gaps in the convention’s injunction. This lack of fastidiousness has led to problematic rulings by the U.S. Justice Department and the U.S. courts, which have taken advantage of the open-ended nature of the terms contained within the convention. One example of this abuse of ambiguity is a memorandum handed down by the U.S. Justice Department in 2002, which provided an incredibly narrow interpretation of the term “severe.” In the memorandum, severe was interpreted as meaning “intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in loss of significant body function will likely result.” While this memorandum was ultimately repudiated, it is a somber example of the vast discretion that can be applied to the language of CAT.

The second example is the 2008 case Villegas v. Mukasey, which represents a troubling interpretation of the term “intentionally.” One of the explicitly enumerated elements of torture is the underlying motivation. This motivation can consist of “obtaining…information or a confession, punishing…or intimidating or coercing.” In this case, the applicant, a citizen of Mexico who had been lawfully admitted to the United States, was found guilty of second degree robbery. The applicant, suffering from bipolar disorder, argued that removal to Mexico would result in his being confined to a Mexican mental institution, “where conditions are deplorable.” In Article III, CAT specifically prohibits extradition to countries where torture is likely. On this basis, the applicant argued that removing him to Mexico would be sending him to a torture chamber masquerading as a mental institution. However, the United States Court of Appeals for the Ninth Circuit affirmed the earlier rulings, and found against the applicant. The court, operating under the Foreign Affairs Reform and Restructuring Act of 1998, and its construal of the term intentionally, held that intentionally refers to “specific intent,” or an intent to bring about the consequences of the action, not merely to “general intent,” or an intent to bring about the action itself. The court held that the awful conditions prevalent in the Mexican medical institutions were not a product of specific intent, and thus the applicant was removed to Mexico, to face the horrors of Mexican institutionalization, as punishment for his crime.

It is not necessarily the case that there are readily available terms simply waiting to replace the existing language of CAT. However, taking the time to unpack what is meant by this vague terminology is what is required for CAT to be effective in its mission. It has been said that those things which “[violate] the integrity of the human person, such as mutilation, [and] physical and mental torture…are a disgrace, and so long as they infect human civilization they contaminate those who inflict them more than those who suffer [the] injustice.” Of the many quandaries that plague modern society, the question of torture is of pivotal importance. It is therefore deserving of exceptional care in the declarations made which pertain to its tolerability.

Cameron Hunter is a 2L law student and first year master’s student at the University of Denver and is the incoming Survey Editor for the Denver Journal of International Law and Policy

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