The definition of torture matters. While the UN Convention Against Torture, "desiring to make more effective the struggle against torture and [our emphasis] other cruel, inhuman or degrading treatment or punishment", explicitly prohibits all such activities by states, it makes special provision for the particularly heinous offence of torture and the calling to account of its perpetrators. And when the Bush administration lawyers agonised over the limits of the "enhanced interrogation techniques" they would allow US forces use in Iraq, they were less concerned with drawing lines between ethical and unethical, or acceptable and unacceptable behaviour, and more with what they could get away with while avoiding international prosecution.
In drawing the definitional line much earlier, in 1978 , the European Court on Human Rights in its Ireland v United Kingdom judgment on the "hooded men" case set the bar high. In a judgment relied on by those Bush lawyers, it found that five interrogation techniques used on 14 Northern Ireland prisoners may have constituted prohibited inhuman treatment, but not torture, since "they did not occasion suffering of the particular intensity and cruelty implied by the word torture." The five techniques were hooding, stress positions, white noise, sleep deprivation and deprivation of food and water, and were combined with physical assaults and death threats to the men.
Now, 36 years later, that judgment is rightly to be challenged at the ECHR by the Irish State on the basis of important work on released files done by RTÉ journalists. The judgment has cast a long dark shadow. Not only in the disappointment of the 14 that the true extent of their suffering has been underplayed and justice denied to them, but in providing a wretched benchmark for international human rights standards, in effect a veil of impunity for human rights abusers whose conduct was "only" inhuman and not torture.
The decision to return to the court may cause some diplomatic tension across the Irish Sea, but what is at stake is far more important – this State is doing right by international human rights.