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

41 Pages Posted: 1 Dec 2005  

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Date Written: November 25, 2005

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

Suggested Citation

Shany, Yuval, The Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment and Punishment: Can the Absolute be Relativized under Existing International Law? (November 25, 2005). Available at SSRN: https://ssrn.com/abstract=856905 or http://dx.doi.org/10.2139/ssrn.856905

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

Mount Scopus, 91905
Israel
972 2 5882541 (Phone)
972 2 5823042 (Fax)

Israel Democracy Institute ( email )

4 Pinsker St.
Jerusalem
Israel

HOME PAGE: http://www.idi.org.il

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