International Human Rights

Lesson 6: Specific Rights

Session 6.3 – Torture (II)

A central requirement in the treaty that moves an action into the realm of torture is a physical/mental injury, including stress and anguish that might be inflicted on a victim. Note as well the possibility for including other human rights violations here – such as the right to security and the right to life as also being violated. Furthermore, there also is an overlap here with severity, meaning that the physical/mental torture must reach the required level of severity to qualify if you will for torture.

Another requirement is that of intention. This requirement moves torture into the field of criminal law, using a criminal standard to define torture. Finally, there is the key idea of “Acts”, meaning some form of physical or mental abuse – such as actual physical actions (beating for example) as well as inaction – sleep or food deprivation, or threats of harm.

The action being taken is to be for a particular purpose or justification, such as to retrieve information for the state. The state must be acting for a specific purpose so as to receive some kind of a state benefit.

The fact that the article uses the language – such as – indicates that the list is not exhaustive, meaning that there are other avenues for falling within the convention outside of the list, but that they should be similar to the descriptions offered within the convention. The one who conducts the act of torture is deemed a perpetrator. This can include non-state officials who are acting at the instigation or with consent of state authorities, or a public official acting within an official capacity.

Hence we see that we are not dealing with private actions or actors, save for when there is an acquiescence by the state. That means that instances where the government turns a blind eye towards the actions of an individual, and decided to ignore the tortuous acts of another, then it is possible to find a torture violation.

Yet, the convention does not apply if a group of individuals external to the state exercise some form of control in a particular region, like a rebel group or criminal organization. Unless there is proven state acquiescence, it would be difficult to apply the torture convention against such groups.

Another aspect of the torture convention is who is considered a victim. Essentially, it means that the victim is under the control or power of a perpetrator, meaning under the physical control of the individual conducting the torture, such as not being allowed to leave the room. There are some very narrow exceptions (not necessarily limitations) to torture, such as lawful sanctions in the state. Since the convention desired to incorporate as many states as possible, it was necessary to recognize the possibility that some criminal systems might have different approaches and understanding of punishment – for example corporeal punishment – such as flogging in public, where in some states that might be considered a tortuous act.

That raises the relativist issue of – lawful by whose standards? If it is international standards, and then one could say that the tortuous actions are already covered by the convention, yet if it were domestic standards, then it would seem to be creating an exception to the convention. In the end, the deference is to domestic standards!

One must compare the prohibition of torture to the prohibition concerning cruel inhuman and degrading punishment that is provided in the treaty. The reason is that the standards for torture are rather high, such that other actions falling outside of torture generally can be construed as cruel or inhuman punishment.

Problem was, the drafters desired to apply the prohibition of cruel inhuman and degrading punishment in the same way as torture but due to the vagueness of the terms, they could not successfully do so. Nevertheless, we shall consider the terms and what they imply.

Cruel is a rather vague term. It is referring to one who is acting in an inhuman manner?

Inhuman means one who is deliberately causing severe and unjustifiable suffering, either mental or physical. Think of the Northern Ireland case mentioned earlier. Inhuman will not apply to uncomfortable detention or conducting painful exercise – it must be more severe than that (to prevent actions against poorer states with low-level prison conditions).

Degrading means gross humiliation or acting against one’s will or conscience. Arousing fear and anguish in the person also is included, such as death threats against one’s family (which also might rose to the level of torture in certain instances).

Article 2 of the Convention notes further that there are no exceptions, limitations, or derogations to the treaty. These acts are always prohibited and there is no excuse of following orders

Article 3 prevents a state from extraditing or returning refugees if they would be tortured in their home state. Article 4 requires a state to make torture an offense in the domestic law

By way of an example, note the ECHR case of Selmouni v. France. The police were dealing with an alleged drug dealer. They beat him and conducted some form of sexual assault, as well as instilled fear in him and kept him in isolation for over four nights.

Does that seem cruel and inhuman? Yes – it surely would rise to the standard of the treaty. What of the severity level to reach that of torture? The ECHR Court noted that torture is a relative standard depending on the circumstances. The Court accounted for the duration of treatment, physical and mental effects on victim, his health and age (a subjective approach) to conclude that in this instance it was indeed torture!

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