by Ashley Deeks
VOLUME 55 :: No. 2
VOLUME 55 :: No. 2
The Cape Town Convention’s Improbable-but-Possible Progeny Part Two: Bilateral Investment Treaty-Like Enforcement Mechanism
The infamous memos that concluded that torture only existed where there was infliction of pain equivalent in intensity to the pain “associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions” also concluded that “a defendant [must] act with the specific intent to inflict severe pain.” Specifically, “the infliction of such pain must be the defendant’s precise objective.” Although this interpretation of the intent requirement has been definitively repudiated — and rightly so — there has thus far been little attention paid to the level of intent that is required to prove torture under domestic and international law.
This Article aims to bring clarity to this contested and misunderstood element of the legal definition of torture. We demonstrate that torture is a specific intent crime under U.S. law and international law. As we shall show, moreover, the very definition of torture in the Convention Against Torture supplies the additional mens rea requirement that renders the crime one of specific intent: The accused must not only inflict pain and suffering, but he must do so for a purpose prohibited by the Convention (for example, to extract a confession). We show that U.S. courts and international courts and tribunals have consistently applied this understanding of the specific intent standard for torture. In doing so, they have not required direct evidence of mental state, but have instead inferred intent from facts and circumstances that demonstrate knowing infliction of pain or suffering for a prohibited purpose. We hope that this conclusion will help guide U.S. practice in filling the dangerous analytical void left by the repudiated memos.
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