The Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment and Punishment: Can the Absolute Be Relativized Under Existing International Law?

Abstract

The present article reviews the theoretical underpinnings of the absolute international law prohibition against torture in the light of the general rationales that explain resorting to absolute prescriptions in IHL and IHR instruments. It also examines the scope of the prohibition against torture under international law, as it presently stands, and the degree of absoluteness it actually entails. Significantly, the article does not challenge, nor seeks to revisit the internationally accepted definitions of torture and other forms of cruel, inhuman and degrading treatment or punishment. Instead, it asks whether a distinction between the different degrees of prohibited ill-treatment - i.e., between torture, as defined by article 1 of the Convention against Torture (CAT) and cruel, inhuman and degrading treatment prohibited by article 7 of the International Covenant on Civil and Political Rights (ICCPR) and article 16 of CAT - might have legal significance for the possibility of invoking ex post criminal law defenses against the attribution of legal responsibility.

Keywords: torture, international law, international criminal law, state responsibility, war crimes

JEL Classification: K33