Compensating terrorists for torture : an anomalous outcome under international humanitarian law ?
Robert E. Vorhees
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The Air Force Law Review, Vol. 75, 2016, p. 1-37
This article examines whether the United States is in violation of its obligations under the United Nations Convention Against Torture (UNCAT). In addition to prohibiting torture, the Convention, under Article 14 requires the U.S. to ensure in its legal system that victims of torture obtain redress and have an enforceable right to compensation. The author introduces 3 cases of alleged terrorists who were subjected to enhanced interrogation techniques and who have not been able to file a claim or receive any compensation for their treatment. The U.S. authorities have argued that a conflict exists between international humanitarian law (IHL) and the redress and compensation requirements of Article 14, and that as lex specialis IHL prevails. However the author notes that in the 3 cases, the persons were detained in relation to a non-international armed conflict (NIAC). As the IHL rules applying to NIAC are very limited and include no provisions relating to compensation for violations, the author argues that there is in fact no conflict between IHL in a NIAC situation and Article 14 of the UNCAT. He concludes that for the U.S. to meet its obligations under Article 14 it must enact an appropriate complaint, redress and compensation mechanism.