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Torture: "The Fundamental Idea of Human Rights Clearly Implies That Torture Is Unacceptable - Is It?"

This document discusses the issue of torture from a legal perspective. It outlines international legal instruments like the Convention Against Torture that prohibit torture. It examines issues with defining torture, as well as loopholes that have allowed its use. The document also discusses the "ticking bomb scenario" and proportionality tests. It summarizes debates between academics on whether an absolute ban on torture is best or if limited exceptions could be justified in extreme circumstances. Overall, the document analyzes legal frameworks surrounding torture and debates around its prohibition.

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66 views

Torture: "The Fundamental Idea of Human Rights Clearly Implies That Torture Is Unacceptable - Is It?"

This document discusses the issue of torture from a legal perspective. It outlines international legal instruments like the Convention Against Torture that prohibit torture. It examines issues with defining torture, as well as loopholes that have allowed its use. The document also discusses the "ticking bomb scenario" and proportionality tests. It summarizes debates between academics on whether an absolute ban on torture is best or if limited exceptions could be justified in extreme circumstances. Overall, the document analyzes legal frameworks surrounding torture and debates around its prohibition.

Uploaded by

xristianismos
Copyright
© Attribution Non-Commercial (BY-NC)
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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TORTURE

The fundamental idea of human rights clearly implies that torture is unacceptable . Is it?

KEY ISSUES
1. LEGAL INSTRUMENTS PROHIBITING TORTURE 2. CAT 1984 AND THE DEFINITION DEFECT 3. U.S PRACTICE AND THE LOOPHOLE 4. TICKING BOMB SCENARIO 5. ACADEMIC RESPONSES 6. CONCLUSION

LEGAL INSTRUMENTS PROHIBITING TORTURE


1 .The Convention Against Torture A.2(1) 1984 2 .Article 5 of the Universal Declaration of Human rights 1948 3 .Article 7 of the International Covenant on Civil and Political Rights 1966 All these legal instruments prohibit the exercise of torture or any other cruel , inhuman or degrading treatment or punishment. The prohibition of torture is founded in the inherent dignity of the human person as stated in the Preamble of CAT 1984 and , from a legal perspective , is not only a breach of human rights , but an abuse also of due process.

CONVENTION AGAINST TORTURE 1984 AND THE DEFINITION DEFECT


PART I Article 1 1. For the purposes of this Convention, the term "torture" means 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. Problematic definition. What defines the level of intensity required for pain to reach the threshold of severe pain?

UNITED STATES PRACTICE AND THE DEFINITION LOOPHOLE


Assistant attorney general Bybee responded to the criticisms in relation to the misapplication of the art.1 definition by arguing that U.S officials did not act in a way which amounted to torture but merely amounted to cruel or inhuman treatment which could be justified under the reservation in relation to art.16 . Such a misapplication of the definition of the art.1 can alter the true meaning underlying the CAT.

THE TICKING BOMB SCENARIO + PROPORTIONALITY TEST


In a fictional scenario authorities have captured individuals who are suspected of having placed a bomb in London. Numerous debatable questions arise. What should the authorities do? How can they extract information which are needed instantly in order to save thousands of lives? Could it be argued that in novel circumstances the prohibition against torture can be derogated subject to a proportionality test? On the one hand the stability of human rights is at stake from the moment that the authorities have to derogate from the prohibition, and on the other hand there is not time to preserve the rule of law and the due process. An action is needed immediately!

ACADEMIC RESPONSE
Three leading thinkers on international legal issues have debated upon the specific issue

Marcy Strauss, Professor of Law at Loyola Law


Marcy Strauss has argued in her essay Torture, that an absolute ban of torture is the best solution. The basis for have argument is the 1.inneficasy of torture 2.alternative investigative tequniques 3.negative impact on society 4.increased resort to torture. She argues that if we allow a narrowly defined situation in which torture is justified this can be very dangerous. Alan Derschowitz , Professor at Harvard Law School and a libertarian lawyer. Alan Derswowitz argues in his Why Terrorism Works: Understanding the Threat, Responding to the Challenge that a more preferable solution is a torture warrant. He states that public officials should seek a torture warrant same as the other warrants. The basis for his argument is that if we cannot avoid torture it is better to be 1.regulated 2. accountable 3.record keeping 4.limited 5. visible. Gross has argued in his work The prohibition on torture and the Limits of the law on the basis of pragmatic absolutism. He supports the idea of an absolute ban of torture while allowing that in some instances the resort may be defensible. He argues that on the one hand the myth of the prohibition of torture must be upheld in order to secure the theoretical universality and inalienability of human rights and one the other hand under official disobedience a derogation can be made but subject to ex post facto accountability. Finally he highlights the fact that by not discussing the practice of torture it does not make it go away but rather it is driven underground. Conclusion: Anthony Lang has argued that rules actually create a world in which torture is possible. Where the Convention defines torture less by what it is and more by the reasons it might be used then interpreters like By bee can construct a world in which torture becomes a normalized practice.

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