Just Sayin: In our Generation, CAT and the Death of the Peremptory Norm Against Torture

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Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

We may be witnessing the dismantling of the peremptory norm against torture.

Later today, the United States periodic report will be reviewed by the UN Committee Against Torture.  We shall see whether out of political expediency and because the United States is a powerful nation the authors of the US torture regime will be allowed to continue sleeping soundly in impunity.

At the domestic level, we have shown our unwillingness and inability to assure accountability for the level of monstrosity that was perpetrated by our senior leadership. The permanent national security state has found ways to fend off any serious inquiry as to what senior leaders have done in our name. Our constitutional structure giving prosecutorial power to a DOJ whose lawyers were willing servitors of Executive power demonstrates time and again its impotence at addressing this monstrous crime.

Now, in Geneva later today, we will have the UN system taking its first supposedly meaningful look since 2006. One can watch the start of the process at www.treatybodybroadcast.org starting at 10 am Geneva time on Wednesday and the conclusion at 3 pm Geneva time on Thursday.

What we may see once again is the rationalization of law before power to countenance impunity.  If that ends up being the case, the clear message will be that the absolute prohibition against torture presented as a peremptory norm is a charade. And, by extension, every peremptory norm that expressed our civilization is a charade.

We will then be returned to the state of nature.  Not because of the acts of brutality of the powerful, but because of the cowardice of the men and women of the law before that power.

For me, this is the last stop in a ten year effort to do my modest part in enforcing that peremptory norm.  I see no other available venue to be contacted, either domestically or internationally. This meeting is the end of the road for what I can imagine for seeking relief for the victims of and accountability for the unrepentant leaders of this monstrosity which was and remains headed by one of the five permanent members of the UN Security Council.

Better persons than me may find a way to take up the torch, but they will do so knowing that in this time we failed humanity.

And we failed it with our eyes wide open.