Torture Laws: When Is It Legal To Inflict Pain?

Torture is the deliberate infliction of severe pain or suffering on a person for reasons including punishment, extracting a confession, interrogation for information, or intimidating third parties. The use of torture is inhumane and has no place in society. It destroys people, corrodes the rule of law, undermines the criminal justice system, and erodes public trust in public institutions. Torture is prohibited under customary international law and international human rights treaties, which provide that no one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment. Despite this, torture has been reported in at least 141 countries, and nearly half of respondents fear torture if taken into custody. This article will explore the laws that prohibit torture and the efforts of organizations like Amnesty International to eradicate its use.

Torture is prohibited under international law

The convention provides that any statement made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. Each State Party must ensure that all acts of torture are offences under its criminal law and are punishable by appropriate penalties. The convention also establishes a Committee against Torture, consisting of ten experts in the field of human rights, who are elected by the States Parties.

In addition to the United Nations Convention against Torture, other international treaties and declarations also prohibit torture. The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in 1948, states that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." This prohibition against torture is also firmly embedded in customary international law, which has the highest standing in customary law and supersedes all other treaties and laws.

International human rights law and U.S. law do not contain any exceptions to the prohibition against torture, even in times of war or national security threats. The use of force during interrogations is also prohibited, as it has been shown that once a degree of force is permitted, interrogators will face the temptation to continue applying force to acquire the desired information.

Torture is ineffective and immoral

Torture is universally prohibited under customary international law and human rights treaties. It is considered a non-derogable right, meaning it is a core right that may never be suspended, even during wartime, when national security is threatened, or during other public emergencies. The prohibition against torture is so fundamental that it supersedes all other treaties and customary laws.

The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in 1948, states that "No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment." This declaration was a response to the horrific abuses of World War II, recognising the inherent dignity and worth of all people.

Torture is not only immoral and illegal but also ineffective and unnecessary. It corrupts information and leads to flawed decisions and policies, as people undergoing torture will say anything to stop the pain, regardless of whether it is true. This results in counterproductive outcomes, as the information obtained is often false or unreliable.

Empathy and skilled interrogative techniques are far more effective in obtaining accurate and complete information. Creating a safe and comfortable environment for suspects makes them more likely to reveal incriminating information willingly. The Investigative Interviewing Model, for example, emphasises the use of open questions to improve communication and well-prepared questions to avoid misunderstandings.

Additionally, torture has far-reaching negative consequences. It dehumanises both the victim and the perpetrator, treating the former as a means to an end and brutalising the latter. It damages the reputation and moral authority of the institution carrying it out and creates enormous rage and a desire for vengeance in the communities of the victims, leading to more violence and hatred.

Torture is a non-derogable right

The concept of non-derogable rights is essential in protecting fundamental human rights and ensuring that certain core rights are never violated, even in times of emergency. Torture is recognised as one of these core rights that cannot be infringed upon. This recognition stems from the understanding that torture is not only immoral and illegal but also ineffective and unnecessary in obtaining information. Interrogations that are patient, skillful, and professional yield more reliable information without resorting to cruelty or inhumane treatment.

The prohibition against torture is well-established in customary international law as jus cogens, which means it has the highest standing in customary law and supersedes all other treaties and customary laws. This status as jus cogens also means that criminal acts of torture are subject to universal jurisdiction, allowing any state to exercise its jurisdiction regardless of where the crime took place or the nationality of the perpetrator or victim.

Additionally, the prohibition of torture is recognised in regional human rights treaties, such as the European Convention on Human Rights, which explicitly lists the prohibition of torture and inhuman and degrading treatment as a non-derogable right. This recognition at both the international and regional levels underscores the importance of upholding the right against torture as an absolute and non-derogable right.

While torture is prohibited under international law, it is important to note that some countries, like the United States, have specific legislation addressing torture. For example, Section 2340A of Title 18 of the United States Code prohibits torture committed by public officials against persons within their custody or control. This statute applies to acts of torture committed outside the United States.

Torture is a felony in California

The main focus of the torture law is the actual "intent", not any pain a victim may have experienced. The definition of torture requires the purpose of revenge, extortion, persuasion, or sadism. A person can act for the purpose of extortion if they intend to obtain something from someone else using force, or the threat of force or fear.

Torture is considered one of the most serious felonies in California, and carries life prison sentences. Torture is similar to mayhem under Penal Code Section 203 and other violent crime offences, but the main difference is the critical "element of the crime" of motivation. Under the PC 206 legal definition, the intent to cause pain and suffering is sufficient to be convicted. The actual infliction of pain on the victim is not a necessary element of the crime.

California Penal Code Section 206 provides a legal definition of torture as: "Anyone who with intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or sadistic purpose, inflicts great bodily injury on another person, is guilty of torture". Under California law, ""great bodily injury" is described as a significant or substantial physical injury. This means the injury has to be more than minor harm. For example, broken bones, concussion, cuts needing stitches, serious bruising, or abrasions could qualify as a great bodily injury.

The prohibition against torture is well-established under customary international law as jus cogens, meaning it has the highest standing in customary law and is so fundamental as to supersede all other treaties and customary laws. The United Nations Universal Declaration of Human Rights also states that "no one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment".

Torture evidence is inadmissible in court

Torture is prohibited under customary international law and international human rights treaties, which provide that no one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment. This prohibition is absolute and non-derogable, meaning it applies at all times and in all circumstances, even during war or national emergencies. The use of torture is a criminal act and is recognised as such by the United Nations in the Universal Declaration of Human Rights.

The Convention Against Torture is an important international treaty that specifically addresses the issue of torture and cruel, inhuman, or degrading treatment or punishment. Article 15 of the Convention states that any statement made under torture shall not be used as evidence in any proceedings, except against a person accused of torture. This article has been interpreted to mean that evidence obtained by torture is inherently unreliable and inadmissible in court.

The inadmissibility of torture evidence is based on the principle of fairness in criminal proceedings, including the right not to be compelled to testify against oneself and the principle of equality of arms. Additionally, the exclusion of such evidence aims to protect the integrity of the judicial process and acts as a deterrent to law enforcement personnel who may consider using torture.

The interpretation of Article 15 has been a subject of debate, with different countries taking varying approaches. For example, Austria interprets Article 15 as the legal basis for the inadmissibility of statements made under torture, while Germany appeared to hold the opposite view. The English House of Lords unanimously held that evidence obtained by torture was always inadmissible, regardless of where and by whom it was procured.

In conclusion, the prohibition of torture is a fundamental principle in international law and human rights treaties. The use of torture evidence in court proceedings is generally inadmissible due to its inherent unreliability and the need to protect the rights of the accused and the integrity of the judicial process.

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