Waterboarding, Torture and the Law of Armed Conflict


Lecture by Visiting Scholar Laura Olson.

In early February 2008 CIA Director, Michael V. Hayden, confirmed that the Agency had used waterboarding on three al-Qaeda detainees after the attacks of Sept. 11, 2001, and the White House followed by commenting that the CIA could use waterboarding with Bush’s approval, which would “depend on the circumstances,” including whether “an attack might be imminent.” In recent years, a variety of considerations, including threats to State security and the allegedly dangerous nature of certain people, have been invoked in an attempt either to limit or renegotiate the scope of the prohibition on torture or to argue that the use of forms of ill-treatment other than torture, such as cruel, inhuman or degrading treatment may be permitted since they fall short of actual torture. Article 3 common to the Geneva Conventions and other provisions of International Humanitarian Law embody an absolute and minimum rule of humane treatment by prohibiting torture, cruel or inhuman treatment and outrages upon personal dignity. How are these types of ill-treatment prohibited by International Humanitarian Law to be understood? Can these notions be interpreted in meaningful and practical ways?