International Proscription Against Torture and the United States’ Categorical and Qualified Responses

Abstract

Although the prohibition against torture is a jus cogens and proscribed by multiple international treaties and United States law, such bans did not prevent the torture of detainees in United States’ custody. For a state truly to protect people from torture, it must rely less on definitions and prohibitions and turn to leadership and policy; proscriptions by themselves cannot stop torture—only leadership and policy can. In the case of detainees held by the United States during the war on terror, presidential leadership created an environment that allowed torture, and it was not curtailed until presidential leadership stopped it.