Difference between revisions of "Representing Victims of Torture"

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====2. Severe pain or suffering====  
 
====2. Severe pain or suffering====  
  
The second element of torture under CAT is severe pain or suffering. There are several tests used to determine whether an act is severe enough to constitute torture.  One approach is to distinguish between torture and inhuman or degrading treatment.  The Convention Against Torture prohibits inhuman and degrading treatment as well as torture.<ref> Convention Against Torture, Article 16</ref>. A single treatment may be both torture and inhuman and degrading treatment.  The distinction between torture and inhuman or degrading treatment is essentially subjective, and is based on the "intensity of the suffering inflicted," on whether the suffering was very serious and cruel <ref> Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No. 25, p. 66, para.167 </ref>.  The Human Rights Committee of the International Covenant on Civil and Political Rights has stated that corporal punishment constitutes cruel, inhuman and degrading treatment <ref> Communication No. 759/1997, G. Osbourne v. Jamaica (Views adopted on 15 March 2000), in UN doc. GAOR, A/55/40 (vol. 11), p. 138, para. 9.1 </ref>.  The Committee also noted that inhuman and degrading treatment "depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical and mental effects as well as the sex, age and state of health of the victim"<ref>International Covenant on Civil and Political Rights </ref>.  This test, used by the European Court of Human Rights, also requires consideration of the customary practices of different cultures. For example, beatings may not be considered torture in some places, while just tearing a woman's clothes in other places could be considered torture <ref>http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1 </ref>.  A second approach to defining what constitutes severe pain is to view human contact more broadly, seeing any contact as potentially a violation of the right to physical and psychological integrity  <ref> I-A Court HR, Cae of Loayza Tamayo v. Peru, Judgment of September 17, 1997, in OAS doc. OAS.Ser.L/V/III39, doc 5, Annual Report of the Inter-American Court of Human Rights 1997, p. 211, para. 57 </ref>.  This is also a subjective test, but it may be easier to convict people of torture under it than the other test.
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The second element of torture under CAT is severe pain or suffering. There are several tests used to determine whether an act is severe enough to constitute torture.  One approach is to distinguish between torture and inhuman or degrading treatment.  The Convention Against Torture prohibits inhuman and degrading treatment as well as torture.<ref> Convention Against Torture, Article 16</ref>. A single treatment may be both torture and inhuman and degrading treatment.  The distinction between torture and inhuman or degrading treatment is essentially subjective, and is based on the intensity of the suffering inflicted.  Thus, in Ireland v. UK, the European Court of Human Right (ECHR) ruled that acts of inhuman and degrading treatment must attain a "minimum level of severity," whereas torture must involve "serious and cruel suffering."  The Court can consider the duration of the treatment, the physical effects of the treatment, the mental effects of the treatment, and the sex, age and state of health of the victim in making the assessment <ref> Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No. 25, p. 66, para.167 </ref>.  The ECHR also requires consideration of the customary practices of different cultures.  For example, beatings may not be considered torture in some places, while just tearing a woman's clothes in other places could be considered torture <ref>http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1 </ref>.  The Human Rights Committee of the International Covenant on Civil and Political Rights also noted that inhuman and degrading treatment "depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical and mental effects as well as the sex, age and state of health of the victim"<ref>International Covenant on Civil and Political Rights </ref>.  This Committee also stated that corporal punishment constitutes cruel, inhuman and degrading treatment <ref> Communication No. 759/1997, G. Osbourne v. Jamaica (Views adopted on 15 March 2000), in UN doc.  GAOR, A/55/40 (vol. 11), p. 138, para. 9.1 </ref>.   
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A second approach to defining what constitutes severe pain is to view human contact more broadly, seeing any contact as potentially a violation of the right to physical and psychological integrity  <ref> I-A Court HR, Cae of Loayza Tamayo v. Peru, Judgment of September 17, 1997, in OAS doc. OAS.Ser.L/V/III39, doc 5, Annual Report of the Inter-American Court of Human Rights 1997, p. 211, para. 57 </ref>.  This is also a subjective test, but it may be easier to convict people of torture under it than the other test.
  
 
====3. Committed for wrongful purpose====
 
====3. Committed for wrongful purpose====

Revision as of 11:38, 1 July 2010