198. The Eighth Amendment to the US Constitution prohibits “cruel and unusual punishments” for convicted inmates, which encompasses those forms of punishment that violate human dignity or involve physical suffering, including torture. The due process clauses of the Fifth and Fourteenth Amendments forbid governmental conduct that “shocks the conscience”, such as acts of torture and cruel or inhuman treatment.335 199. Protection against torture and cruel, inhuman or degrading treatment or punishment is also provided through US federal and state laws. Relevant federal laws include: 1) the Torture Convention Implementation Act,336 which provides extraterritorial jurisdiction over persons who commit or attempt to commit torture outside the United States if the alleged offender is a US national or is present in the United States; 2) the War Crimes Act,337 which criminalizes war crimes to include “grave breaches” of Common Article 3 of the Geneva Conventions; and 3) the Detainee Treatment Act,338 which prohibits the cruel, inhuman and degrading treatment or punishment of individuals in the custody or under the physical control of the US government regardless of the individuals’ nationality or the location of the alleged acts.339 200. Cruel, inhuman and degrading treatment or punishment is not explicitly defined in the DTA of 2005, which refers to the constitutional prohibition. The War Crimes Act, as amended in 2006, defines cruel or inhuman treatment as “the act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control”.340 The Department of Defense Directive on the DoD Detainee Program, amended on 19 August 2014, stipulates that “[detainees] will be protected against threats or acts of violence, including (…) cruel, inhuman, or degrading treatment or punishment”.341 c. Findings and Analysis DEFINITIONS OF TORTURE AND ILL-TREATMENT UNDER US LAW 201. The definition of torture included in the Torture Convention Implementation Act and other relevant domestic legislation is narrower than the CAT definition and may therefore allow for conduct prohibited under international law to be deemed lawful under domestic law. 335 UN HRC, Fourth periodic report of the United States of America, op. cit., note 39, para. 172. It should be noted, however, that the Fourteenth Amendment describes a legal obligation applicable at the state level and as such is not relevant in the context of our analysis. 336 Torture Convention Implementation Act, 30 April 1994, 18 U.S.C. §§ 2340-2340B, <http://psm.du.edu/media/documents/us_regulations/federal_law/us_law_federal%20torture_statute.pdf >. 337 War Crimes Act, 21 August 1996, 18 U.S.C. § 2441 (as amended by the MCA of 2006), <http://www.law.cornell.edu/uscode/text/18/2441>. 338 DTA, § 1003. 339 “Common Core Document of the United States of America: Submitted With the Fourth Periodic Report of the United States of America to the United Nations Committee on Human Rights concerning the International Covenant on Civil and Political Rights”, 30 December 2011, para. 120, <http://www.state.gov/j/drl/rls/179780.htm>. 340 War Crimes Act, 18 U.S.C. § 2441(d)(1)(B). The original Act, passed in 1996, criminalized “grave breaches of the Geneva Conventions” in general, without specifying any conduct, and was understood as also forbidding “outrages upon personal dignity, in particular humiliating and degrading treatment”. 341 Department of Defense Directive 2310.01E, op. cit., note 14, para. 3.b(2). 83