Torture

Human Rights Protection

In the contemporary era, torture constitutes a human rights violation. International human rights norms, created in response to the horrors and violence of World War II, have provided the negative inspiration for a revolution in international law to forge the principle that people should have rights as humans and not merely as protected classes of subjects. The right not to be tortured became a human right through the development of international norms prohibiting the practice of torture and establishing legal liabilities and penalties for its use. International norms that began this process include the Universal Declaration of Human Rights (1948), the Four Geneva Conventions (1949) and their Additional Protocols I and II (1977), the International Convention on Civil and Political Rights (1996), and finally the Torture Convention, the UNCAT (1984).

Many human rights are derogable, that is, states can temporarily suspend them, in circumstances of war or emergency, but this does not apply to the right not to be tortured. Torture is prohibited under all circumstances. According to article 2(2) of the Torture Convention, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture.”

Beyond the coverage of UNCAT, the prohibition of torture has ripened into customary international law, which means that it has the status of a “universal norm” in the law of nations. The prohibition of torture attaches universal jurisdiction: if a perpetrator is not prosecuted in her own country, she could be prosecuted in a competent legal system elsewhere in the world.

The prohibition of torture is so strong (nonderogable and universal) because it involves purposefully harming someone who is “in custody”—someone who is not free to fight back or protect herself and who is imperiled by that incapacitation. Many other violent practices (such as domestic violence, battery, or military combat) involve the purposeful causing of pain, but they lack the public dimension of custodianship. Legally, severe pain, suffering, humiliation, and injury constitute torture only if it serves some public purpose, if the status and role of the torturer emanates from a public authority, and if the person harmed is in custody.

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