Simone Lawson
While the US Constitution does not explicitly mention torture, the Eighth Amendment prohibits cruel and unusual punishments. The US courts have interpreted this to mean that torture is unconstitutional, as it violates the right to be free of cruel or unusual punishment. Torture also violates the Fourth Amendment's right to be free of unreasonable search or seizure, the Fifth Amendment's right against self-incrimination, and the Fifth and Fourteenth Amendments' guarantees of due process. The US has signed multiple treaties and passed laws against torture, and it is prohibited by international law.
| Characteristics | Values |
|---|---|
| Country | United States |
| Federal law | No specific criminalization of torture |
| State law | Criminalization of violence against persons (e.g. assault, rape) |
| Federal law application | 18 U.S.C. 242: criminal offense for public officials to deprive individuals of rights protected by the Constitution or US laws |
| Constitutional protections | Fourth Amendment: right to be free from unreasonable search or seizure |
| Fifth Amendment: right against self-incrimination and due process | |
| Eighth Amendment: right to be free of cruel or unusual punishment | |
| Fourteenth Amendment: guarantees of due process | |
| Convention against Torture | US denounces torture as a matter of policy and tool of state authority |
| Pakistan | Article 14(2) of the 1973 Constitution prohibits torture for extracting evidence |
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What You'll Learn
The US Constitution and torture
The US Constitution does not explicitly mention torture, nor does it outline a federal law that specifically criminalizes it. However, the US courts have interpreted certain amendments as providing constitutional protections against torture, particularly during interrogations. These include the Fourth Amendment, which guarantees freedom from unreasonable searches and seizures; the Fifth Amendment, which protects against self-incrimination and guarantees due process; and the Fourteenth Amendment, which also guarantees due process. The Eighth Amendment is also relevant, as it prohibits cruel and unusual punishments, which some interpretations extend to include torture.
The Fifth Amendment is particularly significant in the context of torture, as it prohibits the use of force to compel self-incrimination during interrogations. This amendment has been central to legal discussions surrounding the use of torture by US military and intelligence personnel, especially in the context of the “Global War on Terror". While the US has asserted that torture is illegal under existing federal and state laws, and that no official is authorized to commit or instruct torture, the absence of a specific federal law criminalizing torture has been noted.
The US Supreme Court has, on numerous occasions, condemned the use of force amounting to torture during interrogations. Practices such as whipping, slapping, depriving a victim of food, water, or sleep, prolonged solitary confinement, and threatening with violence have been deemed unconstitutional.
Additionally, Section 2340A of Title 18, United States Code, specifically prohibits torture committed by public officials against individuals within their custody or control. This statute, however, only applies to acts of torture committed outside the United States.
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The Fifth Amendment
Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions. The legal shift away from the widespread use of torture and forced confessions occurred in the late 16th and early 17th centuries in England, with English common law providing that coerced confessions were inadmissible. This common-law right is embodied in the Fifth Amendment and plays a central role in legal safeguards against torture.
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The Eighth Amendment
The interpretation of what constitutes "cruel and unusual punishment" has been a subject of debate. Justices Scalia and Thomas argued that the standards of cruelty that prevailed in 1791 when the amendment was adopted should be the benchmark for determining whether a punishment is cruel and unusual. They also interpreted the amendment to prohibit only barbaric methods of punishment and not disproportionate punishments. However, this interpretation has been criticised for ignoring the word "unusual", which originally meant "contrary to long usage" or "new".
The Supreme Court has played a significant role in interpreting the Eighth Amendment. In the case of Weems v. United States (1910), the Court overturned a punishment called "cadena temporal", which included hard and painful labour, shackling, and permanent civil disabilities, as cruel and unusual. In Trop v. Dulles (1958), the Court held that revoking a natural-born citizen's citizenship as punishment was unconstitutional and "more primitive than torture". In Baze v. Rees (2008), Chief Justice John Roberts wrote that the Eighth Amendment forbids "punishments of torture ... and all others in the same line of unnecessary cruelty".
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Torture in Pakistan
Pakistan has signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and committed to its implementation. However, Pakistan has not signed the optional protocol, and CAT is not a part of domestic law. Pakistan's Constitution expressly prohibits the use of torture to extract evidence, but the country lacks specific laws criminalizing torture. The Asian Human Rights Commission identified 52 military-run detention centres where arrested individuals are held incommunicado and tortured for months to extract confessions.
Torture in custody is a serious issue in Pakistan, often perpetrated by police or armed forces with impunity. The burden of proof lies with the victim, and there are no independent agencies to investigate complaints. The existing legal framework allows claims to be settled under Shari'ah law, which is subject to misuse and often benefits perpetrators. The courts tend to avoid dealing with torture cases, hindering victims' access to justice and compensation. Pakistan's Anti-Terrorism Act of 1997 provides protection and safeguards against human rights violations, but there are concerns about the absence of legal safeguards for individuals detained under this legislation.
The specific prohibition of torture in Pakistani law is narrow, only covering torture for the purpose of extracting confessions. There is no witness protection law, and witnesses and victims are often threatened or even murdered, discouraging complaints. The government has not made significant efforts to criminalize torture, and international standards on torture remain unimplemented in the country.
In 2016, Pakistan launched a national action plan on human rights, aiming to strengthen resources for law enforcement, improve forensic sciences, and upgrade equipment to investigate human rights violations. However, experts expressed concern about widespread torture, enforced disappearances, extra-judicial killings, and impunity for such acts committed by state officials, the military, police, and intelligence agents. Pakistan's Minister for Human Rights reiterated the country's commitment to prohibiting torture and allocating resources to promote and protect human rights in line with international obligations.
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Torture and human rights
Torture is a highly controversial issue that has been the subject of much debate and discussion, particularly in relation to human rights. While the practice of torture may be ancient, the legal and human rights frameworks that address it are relatively modern. The United Nations' Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is a key instrument in the international effort to eradicate torture.
The Convention, which came into force in 1987, outlines the obligations of state parties in preventing and responding to torture. It 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."
State parties to the Convention must ensure that all acts of torture are criminal offences under their domestic laws and that these offences are punishable by appropriate penalties. They must also establish competent authorities to promptly and impartially investigate any allegations of torture and ensure that victims have access to redress and compensation.
In addition to the Convention, other international human rights instruments, such as the International Covenant on Civil and Political Rights, also contain provisions prohibiting torture and other forms of ill-treatment. At the regional level, mechanisms such as the European Court of Human Rights have interpreted the right to freedom from torture and inhuman or degrading treatment under the European Convention on Human Rights.
Despite these international legal frameworks, torture remains a persistent issue globally. In the United States, for example, there is no single federal law that specifically criminalizes torture. However, the U.S. courts have interpreted constitutional protections against torture in various amendments, including the Fourth, Fifth, Eighth, and Fourteenth Amendments. The U.S. Supreme Court has also condemned the use of force amounting to torture during interrogations.
The prohibition of torture is an absolute human right, and it is essential that states continue to take measures to prevent and respond to torture, in accordance with their international legal obligations.
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Frequently asked questions
The US Constitution does not explicitly mention torture. However, it does speak of punishment, and the Eighth Amendment prohibits "cruel and unusual punishment".
Yes, the US Constitution prohibits torture. The Fourth Amendment protects the right to be free of unreasonable search or seizure, which includes freedom from abuse by the police. The Fifth Amendment protects the right against self-incrimination, which includes the right to remain silent during interrogations. The Fifth and Fourteenth Amendments guarantee due process, ensuring fairness in the criminal justice system.
Yes, US federal law prohibits torture. Section 2340A of Title 18, United States Code, prohibits torture committed by public officials against persons within their custody or control. Torture is defined as acts intended to inflict severe physical or mental pain or suffering.
Yes, state constitutions also prohibit torture. Their provisions generally parallel the protections set forth in the federal Bill of Rights. While there is no single federal law criminalizing torture, existing federal and state laws render illegal any act falling within the definition of torture.
