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ABSTRACT
In 2007, the Appeals Chamber of the ad hoc Criminal Tribunal for the Former Yugoslavia confirmed the criminal prohibition on torture is as defined in the 1984 Convention Against Torture and Other Inhuman or Degrading Punishment. The Chamber rejected the Appellant's submission that torture is distinguished from other forms of ill-treatment where the pain and suffering is extreme. Confirmation that pain and suffering need only be severe in nature to amount to criminal torture is consistent with both international opinion and regional implementation, but this article argues that until there is a shift from a victim focused determination to one that contemplates the culpability of the offender, the potential for impunity lingers.
'Impunity is the friend of torture.'2
Torture attracts a 'special stigma' necessitating a distinction between abuses generally and 'deliberate inhuman treatment [that] causes very serious and cruel suffering.'3 Following disclosure of the horrors at Abu Ghraib, the permissible limits of State discretion in distinguishing between torture and abuse have come under criticism. Classifying the acts and omissions merely as 'abuse' offends not only popular moral instinct4 but breaches the prohibition against torture as expressed in international law. In failing to ensure that the 'grave nature' of the wrongdoing at Abu Ghraib was punished with 'appropriate penalties'5 the American government thus breached the imperatives both in the Torture Convention and pursuant to the customary prohibition.6
In the opinion of the American government the treatment of detainees at Abu Ghraib in violation of domestic and international criminal law and labeled 'inhumane or coercive without lawful justification'7 constituted only 'abuse.'8 The controversial 2002 Bybee Memorandum, commissioned by the U.S. Attorney General, had earlier employed a similar threshold and contended torture amounted to pain that is "difficult to endure... and equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death."9
The Memorandum was subsequently retracted but an appropriate institutional response to Abu Ghraib remained elusive. This suggests the American government considered that contextual vagaries could necessitate a shifting definitional threshold to displace the absolute nature of the torture prohibition. Compromising the legal prohibition to accommodate extrinsic factors, it is argued in this article, increases the potential for abuse of the protections against torture...