International Law and Torture

By CryptoCelt97 | LegalArticles | 27 Mar 2021

There are several international treaties that ensure protection from torture, these treaties form part of international human rights law. Despite these treaties, compliance is not always observed when it comes to torture. This is because international law can sometimes be rather flimsy with no real enforcement methods.


UNCAT 1984


One of the international human rights treaties put forward by the United Nations was the United Nations Convention against Torture (UNCAT 1984). Article 1 of UNCAT outlaws both mental and physical torture of an individual. It is also stated in Article 2 that these rules hold in any jurisdiction and are non-derogable. Meaning that no nation or individual can derogate from these rules in any way. Article 2 also maintains the principles of the Nuremburg trials where following orders is no excuse for torture – so you could not claim this as an excuse in court. Any information gathered from torture cannot be relied upon in court either, this rue is set out in Article 15 of the UNCAT.


Ticking Time Bomb Scenario (TBS)


While freedom from torture is a non-derogable right in international law, some have argued that this should not always be the case. Some argue that some situations may require torture to save lives, this is set out in the ticking time bomb scenario.


The basic scenario is that country X has captured a terrorist who has planted a bomb in a public place with hundreds of civilians. The question is whether it is morally acceptable to torture the terrorist to locate and defuse the bomb. This scenario played out in a court case in Aziz Hamdan v The General Security Service HCJ 1996. This case explored the idea on whether torture should be used in a TBS scenario. In this hearing, the judges asked Adv Rosenthal if torture would be used in a TBS situation. The judge asked him that if a bomb were planted in the Shalom tower (in Tel-Aviv), would it be justifiable to torture the terrorist to find the bomb and defuse it. Rosenthal maintained his view that torture is non-derogable and force should not be used in this situation. The judge responded “this is the most extreme immoral position I have ever heard. A thousand people are going to die, and you propose to do nothing?”. 


The Landau Model


An attempt at legalising torture was made in the Landau Commission to the Israeli government. They advocated “a non-violent psychological pressure of an intense and prolonged interrogation…with a moderate measure of physical pressure”. They took a utilitarian approach to torture – that torturing a terrorist for the sake of saving potentially hundreds of lives is worth it.


‘The Five Techniques’ – UK v IRA


Another attempt at legalising torture was made with the ‘five techniques’. This was an attempt by the UK government to circumvent international human rights law by creating techniques that were not directly physical torture. These techniques included deprivation of sleep, food and drink, stress positions, hooding and subjection to ‘white noise’. These were used against IRA members in the 70’s to induce confessions and information. In 1976, the ECHR ruled that these techniques amounted to torture but the ECHR later overruled them by stating that the techniques were ‘inhuman and degrading’ but did not amount to torture. Ireland have attempted to get the ECHR to review and change their mind on the issue, but they voted it down in 2018.


War on Terror


Legalising torture was also attempted by the US government in the wake of 9/11. Bush claimed that terrorists were not protected by the Geneva conventions, and they could justify torture through self-defence. The ‘Haynes memorandum’ (signed by Rumsfeld) also introduced 18 legal torture techniques that the US could to turn to to elicit information from terrorists. Some of these techniques were similar to ‘The Five Techniques’ and were later used in Abu Ghraib.


Torture is outlawed by international law, but compliance is limited due to the limitations of international law. We have observed multiple attempts at legalising torture and nations continue to use the mentioned techniques all over the world.




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