Just Short of Torture: Abusive Treatment and the Limits of International Criminal Justice

Posted: 9 Jul 2008

See all articles by Brad R. Roth

Brad R. Roth

Wayne State University Law School

Date Written: May 2008

Abstract

Few juridical tasks are more distasteful than specifying the distinction between torture and mere cruel, inhuman and degrading treatment. Although the distinction itself may seem morally obtuse, it is a line, not between prohibited and permissible conduct, but between categories of prohibited conduct that are subject to distinct implementation regimes. The Torture Convention combines a narrow exposure of individual state officials to prosecutions in foreign courts for the international crime of torture with a broad state responsibility for the decent treatment of all detainees under all circumstances. To ignore or blur the distinction would not necessarily strengthen real accountability; to the contrary, allowing extraterritorial prosecutions for acts short of the torture threshold would unduly jeopardize agents of politically unpopular governments, would furnish a tool for political actors bent on undermining peaceful and respectful international relations, and would, paradoxically, risk producing a perverse downward pressure on the standards for detainee treatment.

Suggested Citation

Roth, Brad R., Just Short of Torture: Abusive Treatment and the Limits of International Criminal Justice (May 2008). Journal of International Criminal Justice, Vol. 6, Issue 2, pp. 215-239, 2008, Available at SSRN: https://ssrn.com/abstract=1157216 or http://dx.doi.org/mqn012

Brad R. Roth (Contact Author)

Wayne State University Law School ( email )

471 West Palmer Ave.
Detroit, MI 48202
United States

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