The Prohibition of Torture, Inhuman or Degrading Treatment and Punishment

Prohibition of Torture

The international prohibition of torture is mainly based on Art. 7 of the International Covenant on Civil and Political Rights (ICCPR). This article, in full, also encompasses the prohibition of inhuman or degrading treatment or punishment – a fact that is often forgotten.

Most other human rights treaties, which deal with specific groups of persons, such as for example the Convention on the Rights of the Child or Convention on the Rights of Persons with Disabilities also include the prohibition of torture. It is also included in international humanitarian law, which applies in times of armed conflict.

The prohibition of torture has a special status under international law as it belongs to a small group of international legal provisions called "peremptory" or "ius cogens" rules. Rules of this sort are considered so fundamental in international law that there can be no legal justification for breaching them. The entirety of the prohibition of torture, inhuman or degrading treatment or punishment can be argued as having such a status, and any breach of the rule, no matter in what circumstances, is a heavy breach of human rights or humanitarian law.

As already mentioned there exists a distinction between the three concepts of torture, inhuman treatment and degrading treatment. Whilst torture is best explained in the section on the definition of torture, inhuman and degrading treatment should also be briefly explained here.

Inhuman treatment, unlike torture, does not require a specific purpose for which the ill-treatment is inflicted, nor does a breach of this prohibition require criminal prosecution of those responsible.

Besides this there is still some disagreement on whether the intensity of the suffering should be considered equal to something that is required to amount to torture, or whether a lesser degree of pain or suffering would also be sufficient for something to be classified as inhuman. What can be said is that inhuman treatment may entail the same amount of pain and suffering as torture, but need not necessarily do so.

Degrading treatment is considered to be of less intensity than torture and inhuman treatment and often includes especially psychological elements. Being grossly humiliated or debased in one’s own eyes can already be sufficient to constitute degrading treatment. What is important however is that whatever treatment may constitute degradation; it must go beyond the inevitable level of suffering and humiliation inherent to legitimate detention.