People tend to assume that creating strong rules of international law are necessary for constraining behavior and preventing nations from acting in immoral ways. The truth, though, is that rules can also open up the door for immoral behavior while giving it greater legal cover. This doesn't mean that we can do without international rule, but it does mean that we shouldn't look upon rules as a panacea that will solve all our problems. Rules can create as many problems as they solve and, what's worse, make those new problems harder to solve.
Anthony F. Lang, Jr. writes in War, Torture and Terrorism: Rethinking the Rules of International Security:
The first topic explored in this volume, torture, demonstrates some of the points made here. If we think primarily of regulative rules, the primary rule concerning torture is the UN Convention against Torture and Other Inhuman and Degrading Acts, which specifically states that torture can never be employed, a point made in the strongest terms possible in Section 2 of Article 2: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency may be invoked as a justification for torture." Sanford Levinson points out that this language is particularly forceful for a legal rule in that it shuts out the possibility that any circumstance could ever justify it.
But while this strong condemnation exists in this clause, the definition of torture in the same convention is so opened ended that it does not really specify what counts as torture and what does not: "any act by which severe pain or suffering, whether physical or mental is intentionally inflicted upon a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain of suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."
This definition, which relies on the infliction of severe pain as the primary criteria, albeit qualified by the purposes of punishment, attaining information or intimidating others, does not give much clarity to what counts as torture. Moreover, the last sentence, in which the infliction of pain can be justified on the basis of “lawful sanction,” leaves space for potential abuse.
And it is this opening in terms of a definition that has been exploited in the “war on terror.” The most important moment in the American shift in what constitutes torture can be found in a memo written by Assistant Attorney General Jay Bybee to then Counsel to the President Alberto Gonzalez.33 The memo, written on August 1, 2002, explored what interrogations techniques were allowable according to US law. Bybee argues that the "Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death … We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts."
Bybee goes on to examine what it means to be “extreme”—even turning to the dictionary to clarify its meaning—and examines the US ratification of the UN Convention, Israeli court decisions, and European Human Rights court cases to determine what can be allowed. While not explaining specific practices, Bybee concludes that very coercive forms of interrogation can be employed.
The point I want to emphasize here is that while we assume the “rules” will prohibit torture, what the rules actually do is create a world in which torture is possible. When the Convention defines torture less by what it is and more by the reasons for which it might be used, interpreters like Assistant Attorney General Bybee can construct a world in which torture becomes a normalized practice rather than an abhorrent outlier. What we imagine the rules can do for us—restrain violence and make the world more peaceful—is not what the rules actually do. They construct a world in which torture can become a normal practice, a form of “interrogation” rather than something that involves the abuse of human bodies in order to advance particular state interests.
We all look to rules, laws, and regulations to protect us. They are supposed to structure our lives, our relationships, our institutions, and our society. They constrain our actions and the actions of others in a way that is supposed to make life more predictable as well as safe. This predictability is supposed to allow us the room to worry about other things in life. But what if rules, laws, and regulations also create more room for less predictability? What if they create room for those who want to harm others?