JURIST Guest Columnist Cristián Correa of the International Center for Transitional Justice discusses how waterboarding, if not torturous treatment, is at the very least illegal…

In a recent academic commentary, Professor Jeffrey F. Addicott claims that the use of waterboarding by the US has not involved torture in violation of the 1984 United Nations Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment. His commentary offers an opportunity to discuss this important issue, particularly given the perception of threat and the voices raised in the country about the need to use waterboarding and other methods of interrogation against suspected terrorists.

Professor Addicott affirms that waterboarding, subjecting a detainee to a suffocation experience, “was not severe enough to rise to the level of torture.” He bases his claim on the Ireland vs. UK ECtHR decision, as well as on the 2012 Office of the Legal Counsel memos. However, this, by any means, can lead to the conclusion that waterboarding is a legal practice under such Convention, since the UK in the case was condemned for violations of article 3 of the European Convention of Human Rights.

In Ireland vs. UK ECtHR, the European Court of Human Rights examined, among other issues, whether five interrogation techniques used by the UK against detainees were contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment established by article 3 of the European Convention of Human Rights. The five techniques were the following: wall-standing; hooding; subjection to noise; deprivation of sleep; and deprivation of food and drink. Examining each technique, the court concluded that they “constituted a practice of inhuman and degrading treatment, which practice was in breach of Article 3.”

Subjecting a detainee under interrogation to a near-death experience of suffocation through drowning is clearly a more severe treatment than the five techniques Ireland vs. UK ECtHR examined. Thus, even if waterboarding could be considered not to be torture, it is clear that it violates the 1984 UN Convention against Torture, because the Convention also prohibits other cruel, inhuman or degrading treatment or punishment.

Moreover, subsequent decisions by the ECtHR, particularly ISelmouni vs. France where the Court considered that,

certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (101).

It is not clear that waterboarding does not reach the severity threshold to be considered torture. The severity threshold that is determinant to distinguish between torture and other cruel, inhuman or degrading treatment or punishment is a matter of gradation that relies on several components, but that cannot be limited to the existence of physical injuries. One relevant factor is the existence of long-lasting effects. The question that follows then is whether or not the experience of being submitted to a near-death experience by suffocation while in custody has long lasting effects. This is consistent with the notion of prolonged mental harm, used by the March 14, 2003 OLC memo[PDF], understood as capable of causing “some lasting, though not necessarily permanent damage.” The memo even includes the development of post-traumatic stress disorder, which can last for a considerable period of time if untreated, as a condition that might satisfy the prolonged harm requirement.

Testimonies of survivors of torture through the application of suffocation techniques affirm the long term effect of that experience. The report of the National Commission on Political Imprisonment and Torture, a commission appointed by the President of Chile to examine allegations of torture during the Pinochet dictatorship, reported long lasting consequences on victims of suffocation techniques. Thirty years after being tortured by such method a victim said, “Even today I wake up because of nightmares of dying from drowning.”

Waterboarding also complies with two conditions under 18 U.S.C. § 2340(2) for the definition of torture: (a) the intentional infliction of severe physical pain or suffering; and (c) the threat of imminent death. The near-death experience by intentional suffocation under captivity is clearly an act of intentionally causing such pain or suffering. It is even more than a mere threat of imminent death, it is the actual experience of almost drowning.

Furthermore, according to international law, the distinction between torture and other cruel, inhuman or degrading treatment or punishment, even if relevant, does not make the latter legal. The UN Committee against Torture had observed in regards to the US that,

The State party should ensure that acts of psychological torture, prohibited by the Convention, are not limited to “prolonged mental harm” as set out in the State party’s understandings lodged at the time of ratification of the Convention, but constitute a wider category of acts, which cause severe mental suffering, irrespective of their prolongation or its duration.

This decision was reiterated in 2014.

In conclusion, if despite its long lasting effects, waterboarding is considered a form of cruel, inhuman or degrading treatment or punishment, and could be narrowly qualified as not being torture, the practice of waterboarding still constitutes a violation of Article 1 of the 1984 UN Convention against Torture. As such, it constitutes an illegal practice that can lead to the international condemnation of the US as a state engaged in violations of one of the core provisions of international human rights. However, the narrow definition to which Professor Addicott adheres should be brought into question, considering the long term effects that a near-death experience, like waterboarding, has been proven to cause.

Cristián Correa is a Senior Associate at the International Center for Transitional Justice. He is the former legal secretary of the National Commission on Political Imprisonment and Torture of Chile (2003-2005), and human rights advisor to President Bachelet (2006-2007). Correa is also a Lawyer form the Pontificate Catholic University of Santiago (1993) and holds a M.A. in International Peace Studies from the University of Notre Dame (1992)..

Suggested citation: Cristián Correa, The Illegality go Waterboarding, JURIST – Professional Commentary, April 18, 2016, http://jurist.org/hotline/2016/04/cristian-correa-waterboarding-illegal.php.