Notwithstanding the universal prohibition against torture, and almost universal agreement that in order to qualify as torture, the act in question must be committed intentionally with an illicit purpose, the intentional element of torture remains ambiguous. I make the following claims about how we should interpret the intent requirement as applied to states. First, state intent should be understood objectively with reference to the apparent reasons for state action. The subjective motivation of particular state actors is not directly relevant. While we focus on subjective intent in the context of individual crime because of its relation to culpability and blameworthiness, in the context of state crime we should be concerned with preserving the legitimacy of political authority, and the conditions for legitimacy turn on the apparent reasons rather than subjective motivations behind state action. Second, the primacy of questions of legitimacy also makes irrelevant the distinction between specific and general intent. Instead, state-directed torture that is committed secretly and in a manner that removes it from public scrutiny should be regarded as quasi-criminal. Finally, the official interpretation of the Convention against Torture (CAT) adopted by the United States is flawed because it imposes a specific intent requirement that is not objective, and accords ambiguous weight to publicity. In doing so we make a double error: We treat state crimes as essentially the same as individual crime, and we fail to distinguish between the quasi-criminal and humanitarian functions of the CAT To identify a state act as torture, courts should ask whether alleged acts (which otherwise meet the actus reus of torture) appear to have been motivated by radical indifference to the suffering of the torture victim and the aim of stripping her and/or other members of the political community of their humanity. Only to the extent they seek to further establish the acts as "quasi-criminal" should courts ask whether the alleged acts were committed secretly or in a manner calculated to avoid accountability.
Intention, Torture, and the Concept of State Crime,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol114/iss1/2