Malcolm Rivera
Torture is prohibited by international law and is considered a violation of human rights. The United Nations' Universal Declaration of Human Rights, which was adopted in 1948, states that No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. This declaration has been incorporated into various international and regional human rights treaties, such as the International Covenant on Civil and Political Rights and the Convention Against Torture. While the United States Constitution does not explicitly mention torture, some of its amendments provide protections against it, such as the Fourth Amendment's right to be secure from unreasonable searches and seizures, and the Fifth Amendment's right against self-incrimination.
| Characteristics | Values |
|---|---|
| Definition of Torture | Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person. |
| Prohibition of Torture | Torture is prohibited by international law, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention against Torture. |
| Constitutional Protections | The US Constitution provides protections against torture in the Fourth, Fifth, and Fourteenth Amendments, as well as the Eighth Amendment's ban on cruel and unusual punishments. |
| State Obligations | Each State Party shall ensure that acts of torture are offences under its criminal law and that law enforcement and public officials are trained on the prohibition of torture. |
| Redress for Victims | Victims of torture committed by public officials are entitled to redress and compensation in accordance with national law. |
| Evidence Obtained by Torture | Any statement obtained through torture or other cruel, inhuman, or degrading treatment is inadmissible as evidence in any proceedings. |
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What You'll Learn
Torture as a violation of human rights
Torture is prohibited by the 1948 Universal Declaration of Human Rights (UDHR) and the 1966 International Covenant on Civil and Political Rights (ICCPR). The prohibition against torture is a fundamental principle of international law. Torture, as well as cruel, inhuman, or degrading treatment, is banned at all times, in all places, including in times of war. No state of emergency can ever justify its use.
The UDHR states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." This ban on torture has been incorporated into the extensive network of international and regional human rights treaties. It is contained in Article 7 of the ICCPR, ratified by 153 countries, including the United States in 1992, and in the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture), ratified by 136 countries, including the United States in 1994.
The Convention against Torture defines torture as:
> any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
International law also prohibits mistreatment that does not meet the definition of torture, either because less severe physical or mental pain is inflicted, or because the necessary purpose of the ill-treatment is not present. Examples of such prohibited mistreatment include being forced to stand spread-eagled against a wall, being subjected to bright lights or blindfolding, being subjected to continuous loud noise, sleep deprivation, or being deprived of food or drink.
In the United States, constitutional protections against interrogations under torture can be found in the Fourth Amendment's right to be free of unreasonable search or seizure, the Fifth Amendment's right against self-incrimination, the Fifth and Fourteenth Amendments' guarantees of due process, and the Eighth Amendment's right to be free of cruel and unusual punishment. The U.S. Supreme Court has, in numerous cases, condemned the use of force amounting to torture or other forms of ill-treatment during interrogations.
Despite these protections, torture continues to be practiced and sanctioned by states worldwide. Human rights organizations like Human Rights Watch and Amnesty International work to document torture, bring perpetrators to justice, and ensure that victims obtain redress, including fair and adequate compensation and full rehabilitation.
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The US Constitution's Fifth Amendment
The Fifth Amendment of the US Constitution creates several constitutional rights, limiting the powers of the government with respect to criminal procedures. The Fifth Amendment affirms the right against self-incrimination, which has been interpreted to include the right to remain silent during interrogations. This right is not limited to verbal statements, but also includes the right to refuse to provide passwords or encryption keys. The Supreme Court has ruled that requiring convicted felons to register their firearms is a form of self-incrimination and is therefore unconstitutional.
The Fifth Amendment also contains a due process clause, which guarantees fundamental fairness in the criminal justice system. This includes the right to only be tried once in federal court for the same crime (the Double Jeopardy Clause) and the right to not be deprived of life, liberty, or property without due process. The Takings Clause, the last clause of the Fifth Amendment, limits the power of eminent domain by requiring “just compensation” for the government to take private property for public use.
The Fifth Amendment has been interpreted by the US courts to provide constitutional protections against interrogations under torture, along with the Fourth Amendment, the Eighth Amendment, and the Fourteenth Amendment. Torture is prohibited by international humanitarian law, which includes the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The US Code also prohibits torture committed by public officials against persons in their custody or control.
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The US Constitution's Eighth Amendment
The Eighth Amendment states:
> Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The ban on torture is an important element of international humanitarian law, which includes the duty to protect civilians, noncombatants, and captured soldiers. Torture is prohibited under Common Article 3 of the Geneva Conventions, which bans "violence of life and person, murder of all kinds, mutilation, cruel treatment, and torture, as well as outrages upon personal dignity."
The Fifth Amendment, for example, includes the right against self-incrimination, which has been interpreted to include the right to remain silent during interrogations. The Fourteenth Amendment guarantees due process, ensuring fundamental fairness in the criminal justice system. These protections affirm the absolute prohibition of torture and other forms of ill-treatment.
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The US Constitution's Fourth Amendment
The Fourth Amendment to the US Constitution, ratified on December 15, 1791, protects US citizens from unreasonable searches and seizures. The full text of the amendment is as follows:
> "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fourth Amendment was created in response to increasing infringements on privacy in the colonies and in England, where "general warrants" allowed royal officials to search a person's belongings without cause beyond political suspicion. In the colonies, "writs of assistance" allowed officials to conduct warrantless searches for untaxed items. The Fourth Amendment established that a judge must authorise any search or seizure of an individual's home and property beforehand, and that the operation must be conducted on the grounds of "probable cause".
In the context of torture, the Fourth Amendment has been interpreted to encompass the right to be free from abuse by the police, and the right not to be subjected to unreasonable searches or seizures. Torture can be considered an unreasonable search or seizure of a person, and the Supreme Court has held that the Fourth Amendment can apply to pretrial detention, as well as the initial seizure of a person.
In addition to the Fourth Amendment, the Fifth Amendment's right against self-incrimination and right to remain silent during interrogations, the Fifth and Fourteenth Amendments' guarantees of due process, and the Eighth Amendment's right to be free of cruel or unusual punishment also provide constitutional protections against interrogations under torture.
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International law and torture
Torture is prohibited under international law. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force in June 1987, is one of the most widely ratified international human rights treaties. The convention defines torture as:
> any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The convention also states that no exceptional circumstances, including war, internal instability, or any other public emergency, can justify torture. Furthermore, an order from a superior officer or public authority cannot be invoked as a justification for torture. Each state party to the convention must ensure that all acts of torture are criminal offences under their domestic law.
The prohibition of torture is also addressed in other international treaties and protocols. The Geneva Conventions of 1949, for example, include a common Article 3 that prohibits torture. The Optional Protocol to the Convention Against Torture (OPCAT), which came into force in 2006, is another important addition to the UN Convention. The Rome Statute, which established the International Criminal Court (ICC), also provides for the criminal prosecution of individuals responsible for torture as a crime against humanity or, under certain circumstances, a war crime.
Despite the existence of these international laws, torture continues to be practised in all regions of the world. Many states have not made torture a specific crime under their national laws, and impunity for perpetrators is a significant challenge. Human rights organisations, such as Amnesty International and OMCT, work to press governments to prevent torture, criminalise it under their laws, and bring perpetrators to justice.
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Frequently asked questions
Torture is prohibited in the US under the Fifth Amendment, which affirms the right against self-incrimination and the right to remain silent during interrogations. The US Supreme Court has also condemned the use of force amounting to torture or other forms of ill-treatment during interrogations.
Torture is defined as any act by which severe physical or mental pain or suffering is intentionally inflicted on a person for the purpose of obtaining information or a confession, punishment, intimidation, or coercion. It does not include pain or suffering incidental to lawful sanctions.
The ban on torture applies to acts committed by public officials or individuals acting in an official capacity. However, there may be complexities when it comes to state-sanctioned torture or the use of torture in criminal prosecutions, as this may implicate other constitutional rights such as due process and freedom from unreasonable search and seizure.
