Legal Corner: Torture is Always Illegal

What is torture? It is generally defined as the infliction of severe physical or mental pain or suffering upon another in order to coerce or punish. Examples of torture under international law include: rape; beating on the soles of the feet; near drowning by submersion in water; burning; whipping; mutilation; hanging by the feet or hands for a prolonged period. Less severe physical or mental pain is often defined as mistreatment and is also prohibited under international law. Examples of mistreatment include: being subjected to bright lights or blindfolding; being deprived of sleep, food, and drink; being subjected to forced constant standing or crouching. In fact, any act intended to intimidate, coerce, or ?break? a person during interrogation is at the very least considered mistreatment and can rise to the level of torture when it is intense enough, lasts long enough, or is combined with other methods and results in severe pain and suffering.
What are the laws prohibiting torture? We need to look at international law in order to find specific prohibitions against torture. For instance, Article 5 of the Universal Declaration of Human Rights (1948); Article 7 of the International covenant on Civil and Political Rights, which was ratified by 153 countries and the United States in 1992; the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by 136 countries, including the U.S. in 1994. In addition, the condemnation of torture is found in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples? Rights, and, the American Convention on Human Rights.
The prohibition against torture is also fundamental to humanitarian laws known as the laws of war, which govern the conduct of parties during armed conflict. These prohibitions are set forth in the four Geneva Conferences held in 1949, specifically in Article 3 which bans ?violence of life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,? and in Article 31 which states, ?No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.? Even the United States in its 1999 Initial Report of the U.S. to the U.N. Committee against Torture, proclaimed that the use of torture ?is categorically denounced as a matter of policy and as a tool of state authority…Every act of torture within the meaning of the [Convention against Torture] is illegal under existing federal and state law, and any individual who commits such an act is subject to penal sanctions as specified in criminal statutes.?
However, there is no single federal law that specifically criminalizes torture. Most criminal statutes are state laws, for example laws against assault or rape, and only a very few states have a statute directly addressing torture. Also, the U.S. Constitution has no single provision against torture although protections against the use of torture in interrogations are found in the 4th Amendment (right to be free of unreasonable search and seizure), the 5th Amendment (right against self-incrimination), the 5th and 14th Amendments (guarantees of due process), and the 8th Amendment (right to be free of cruel and unusual punishment).
Torture is never permitted?no matter the circumstances. To be free of torture is a core human right that may never be suspended, not during times of war, not when our national security is threatened, nor when there is a public emergency. Persons who have been subjected to torture may sue in state or federal courts for damages. The 8th Amendment has been the basis of numerous class action suits seeking to end the worst types of prison abuses. Some of these suits were successful and resulted in improved conditions. Because of the current spotlight on U.S. torture practices in Abu Ghraib, Guant·namo, and Afghanistan, various groups are considering how they might bring these illegal practices before the World Court in The Hague.
[Information for this column was found on Human Rights Watch web site in a document entitled, ?The Legal Prohibition Against Torture.? See www.hrw.org/press]