Torture

Torture is the infliction of severe physical or psychological pain or grief as an expression of cruelty, a means of intimidation, deterrent, revenge or punishment, or as a tool for the extraction of information or confessions.

Current legal status of torture

On December 10, 1948 the Universal Declaration of Human Rights was adopted by the United Nations General Assembly. Article 5 states "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".

Related Topics:
December 10 - 1948 - Universal Declaration of Human Rights - United Nations General Assembly

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Since that time the use of torture has been regulated by a number of international treaties, of which the two major ones are the United Nations Convention Against Torture and the Geneva Conventions.

Related Topics:
United Nations Convention Against Torture - Geneva Conventions

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United Nations Convention Against Torture

The "United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment"(UNCAT) came into force in June 1987. The most relevant articles are articles 1, 2, 3 and the first paragraph of article 16.

Related Topics:
"United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" - 1987

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:Article 1

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:1. Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on 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 or 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.

Related Topics:
Pain - Official capacity

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:2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

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:Article 2

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:1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

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:2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

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:3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

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:Article 3

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:1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

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:2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

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:Article 16

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:1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

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There are several points which should be noted:

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• Section 1: torture is defined as severe pain or suffering, which means there exist levels of pain and suffering which are not severe enough to be called torture. Discussions on this area of international law are influenced by a ruling of the European Court of Human Rights(ECHR). See the section Other conventions for more details on the ECHR ruling.
• Section 2: If a state has signed the treaty without reservations, then there are no exceptional circumstances whatsoever where a state can use torture and not break its treaty obligations. However the worst sanction which can be applied to a powerful country is a public record that they have broken their treaty obligations. In certain exceptional cases the authorities in those countries may consider that, with plausible deniability, this is an acceptable risk to take as the definition of severe is open to interpretation.
• Section 16: contains the phrase territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment, so if the government of a state authorises its personnel to use sensory deprivation on a detainee in territory not under its jurisdiction then it has not broken its treaty obligations.

At the moment this treaty has been signed by about half the countries in the world.

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Geneva Conventions

The four Geneva Conventions provide protection for people who fall into enemy hands. They envisage war in its traditional form, whereby people in uniforms fight clearly defined enemies in uniform, within a clearly defined arena. It therefore divides people into two explicit groups: combatants and non-combatants (civilians). There is a third group whose existence is implied, but whose treatment is not covered in detail. These are unlawful combatants, such as spies, mercenaries and other combatants who have broken the laws of war, for example by firing on an enemy while flying a white flag. Whilst combatants and non-combatants are provided substantial protection, a lesser level of protection is afforded to unlawful combatants.

Related Topics:
Geneva Conventions - Unlawful combatant - Mercenaries - Laws of war

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The third(GCIII) and fourth(GCIV) Geneva Conventions are the two most relevant for the treatment of the victims of conflicts. Both treaties state in their similarly worded article 3 that in a non-international armed conflict that "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms... shall in all circumstances be treated humanely and that there must not be any "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." or "outrages upon personal dignity, in particular humiliating and degrading treatment".

Related Topics:
Third - Fourth

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Under GCIV most enemy civilians in an international armed conflict will be "Protected Persons" under the meaning of GCIV, (see exemptions section immediately after this for those who are not). Under article 32, protected persons have the right to protection from "murder, torture, corporal punishments, mutilation and medical or scientific experiments...but also to any other measures of brutality whether applied by non-combatant or military agents."

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The treatment of prisoners of war (POWs) in an international armed conflict is covered by GCIII. In particular article 17 states that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.".

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GCIII POW status has far fewer exemptions than "Protected Person" status under GCIV. If a person is an enemy combatant in an international armed conflict, then they will have the protection of GCIII and be entitled to be regarded as POWs under GCIII unless they are an unlawful combatant. If there is a question of whether the combatant is an unlawful combatant, they must be treated as POW's "until their status has been determined by a competent tribunal" (GCIII article 5). If the tribunal decides that they are an unlawful combatant, and they are a Protected Person under GCIV, they will still have the some protections under GCIV Article 5. They must be "treated with humanity and, in case of trial , shall not be deprived of the rights of fair and regular trial prescribed by the present Convention".

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A person, who is found guilty of war crimes in an international armed conflict, or is not protected by GCIV because of some other exemption, is no longer protected by the Geneva Conventions.

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Geneva Convention IV exemptions

GCIV provides an important exemption:

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:"Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would ... be prejudicial to the security of such State." (GVIV article 5)

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In a conflict like the U.S. War on Terrorism many so-called "unlawful combatants" have been controversially denied protection under the Geneva Conventions, because they are either excluded by their nationality (see below) or they are deemed to be so dangerous that Article 5 can be invoked.

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There are two further groups who are not protected by GCIV:

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• Nationals of a State which is not bound by the Convention are not protected by it.
• Nationals of a neutral State in the territory of a combatant State, and nationals of a co-belligerent State, cannot claim the protection of GCIV if their home state has normal diplomatic representation in the State that holds them (article 4). Since nearly every state has diplomatic recognition of every other state, most citizens of neutral countries in a war zone are not able to claim any protection from GCIV.

Geneva Conventions' Additional Protocols

In addition, there are two additional protocols to the Geneva Convention: Protocol I (1977), relating to the protection of victims of international armed conflicts and Protocol II (1977), relating to the protection of victims of non-international armed conflicts. These clarify and extend the definitions in some areas, but to date many countries, including the United States, have either not signed them or have not ratified them.

Related Topics:
Protocol I - Protocol II - United States

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Protocol I does not explicitly mention torture but it does clarify one or two points which effect the treatment of POWs and Protected Persons. The first is that it explicitly involves "the appointment of Protecting Powers and of their substitute" to monitor that the Conventions are being enforced by the Parties to the conflict. It also broadens the definition of a lawful combatant in occupied territory to include those who carry arms openly but are not wearing uniforms, so that they are now lawful combatants and protected by the Geneva Conventions. It also defines who is a mercenary and therefore an unlawful combatant and not protected by the same conventions.

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Protocol II "develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application" . It states in Article 4.a "Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;", Article 4.b "Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;" and Article 4.h "Threats to commit any of the foregoing acts". There are other clauses in other articles which entreat humane treatment of enemy personnel in an internal conflict, which have a bearing on the use of torture, but there are no other clauses which explicitly mentions torture.

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Other conventions

During the Cold War, in Europe a treaty called European Convention on Human Rights was signed. The treaty was based on the UDHR. It included the provision for a court to interpret the treaty and Article 3 "Prohibition of torture" stated "No one shall be subjected to torture or to inhuman or degrading treatment or punishment".

Related Topics:
Cold War - European Convention on Human Rights - UDHR

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In 1978 the European Court of Human Rights ruled that the five techniques of "sensory deprivation" were not torture but were "inhuman or degrading treatment". See Accusations of use of torture by United Kingdom for details. This case was 9 years before the UNCAT came into force and had an influence on States thinking about what constitutes torture ever since.

Related Topics:
European Court of Human Rights - Sensory deprivation - Accusations of use of torture by United Kingdom

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Supervision of anti-torture treaties

In times of armed conflict between a signatory of the Geneva conventions and another party, delegates of the International Committee of the Red Cross (ICRC) monitor the compliance of signatory to the Geneva Conventions, which includes monitoring the use of torture.

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The Istanbul Protocol, an official UN document, is the first set of international guidelines for documentation of torture and its consequences. It became a United Nations official document in 1999.

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Human rights organizations, such as Amnesty International, are actively involved in working to stop the use of torture throughout the world and publish reports on any activities they consider to be torture.

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Domestic and national law

Countries which have signed the "United Nations Convention Against Torture", have a treaty obligation to include the provisions into domestic law. The laws of many countries therefore formally prohibit torture. However, such de jure legal provisions are by no means a proof that, de facto, the signatory country does not use torture.

Related Topics:
De jure - De facto

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To prevent torture, many legal systems have a right against self-incrimination or explicitly prohibit undue force when dealing with suspects.

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• The United States includes this right in the fifth amendment to its constitution, which in turn serves as the basis of the Miranda warning that is issued to individuals upon their arrest. Additionally, the US Constitution's eighth amendment expressly forbids the use of "cruel and unusual punishments", which is widely interpreted as a prohibition of the use of torture. However, there has been some debate over the interpretation of U.S. and international law. In 2002 a controversial Justice Department memo, since repudiated, defined torture as "intentionally causing permanent damage to vital organs or permanent emotional trauma" (so techniques such as electric shocks are considered acceptable). Principal Deputy Associate Attorney General Brian Boyle acknowledged that confessions obtained under duress would be acceptable as evidence in Guantanamo Bay.
• The French 1789 Declaration of the Rights of Man and of the Citizen, of constitutional value, prohibits submitting suspects to any hardship not necessary to secure his person. Statute law explicitly makes torture a crime. In addition, statute law prohibits the police or justice from interrogating suspects under oath.

Torture was abolished in England about 1640 (except peine forte et dure which was only abolished in 1772), in Scotland in 1708, in Prussia in 1740, in Russia in 1801.{{ref|ccel}}{{ref|tiscali}}

Related Topics:
England - 1640 - Peine forte et dure - Scotland - 1708 - Prussia - 1740 - 1801

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