Torture, Inhumanity and Degradation Under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs by Natasa Mavronicola

Abstract

Reviewed by: Torture, Inhumanity and Degradation Under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs by Natasa Mavronicola Ergün Cakal (bio) Natasa Mavronicola, Torture, Inhumanity and Degradation Under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart Publishing 2021), RRP £67.50, ISBN 9781509903061, 365 pages. Torture, inhumanity, and degradation are prohibited—absolutely. Human rights practitioners are more than familiar with the enduring rhetorical force, importance, and demands of this principle. Absoluteness means that the prohibition cannot be displaced, and that it can see no interference through derogation, limitation, suspension, justification, or exception. These are deceptively easy observations to conceive and convey—but not always simple to apply. Problems abound with absolute rights when we move from abstract conception to practical application. Where we demarcate and define any right also has profound implications for interrelated rights. Torture and its orbiting categories of inhuman and degrading acts are no different. Their bounds are additionally advanced to represent the limits on legitimate uses of state power, such as incapacitating the state’s violence particularly, though not exclusively, against those it polices and imprisons. Given this centrality, the anti-torture discourse has been drawn into endless [End Page 827] configuration and contestation. In manning and maintaining these thresholds, we tend to overlook the significance of absoluteness for defining the contents of torture, inhumanity, and degradation. That demarcation is definition and only what we define or demarcate as falling under these categories becomes absolute. Understanding the nature of absolute (how we characterize the threshold as unassailable) thus presents a useful prism through which to understand not only torture’s moral demands and dimensions but also its interpretative constitution and configuration. Scholarship on the question of torture’s absoluteness often starts and ends in the interrogational context, where it disentangles the pressures of policing, and is framed around well-worn tropes of utilitarian moral and political philosophy. The adjudication of absoluteness, however, has been less attended to. In what is, from cover to cover, an understatedly ambitious exercise, Natasa Mavronicola calls for a more robust engagement on matters arising from the absolute nature of the prohibition (as framed in Article 3 of the European Convention on Human Rights that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”)1 She displays a genuine interest in articulating and anchoring a rigorous interpretation of Article 3 to bolster the defenses (and defensibility) of its absolute character, asking what approach would better serve the Court in argument against the prevalent uncertainty and contestation based on extraneous reasoning such as pragmatic or political considerations. She proposes caution, care, and clarity through refined and rigorous “specification.” This is an exercise in better identifying, qualitatively and not (as it is often the case) hierarchically, the complex content and contours of torturous, inhumane, and degrading acts, as well as their respective scopes and dynamics. Mavronicola contends that foregrounding specification helps us to better appreciate the contingent nature of absoluteness: contingent on content. She points out that the “specification of its content is, after all, what determines what amounts to a (conclusively unlawful) breach of an absolute right.”2 Absoluteness thus means that frames of an absolute right are rendered much more significant than those of a relative right—hence warranting a more coherent framework for specification. At the same time, she expresses no illusions as to putting absoluteness out of reach of context, contest, or violation. The struggle to understand what is absolutely prohibited is constant. This is broadly achieved, for Mavronicola, through renewed attentiveness toward the nature of the act, with an increased sensitivity to context, and away from a solely consequentialist assessment centered on a “quantum” of suffering. She rightfully urges and humbly helps the Court (and by extension us in the anti-torture community) to move towards a “deliberative, multilateral, constructive and plural engagement with varied actors and institutions that allows information, arguments, experiences and perspectives to be exchanged and evaluated.”3 To be sure, what Mavronicola sets out to create is not a reconceptualization or [End Page 828] redefinition as much as a constructive recalibration towards “principled coherence.” While accepting that interpretation may on occasion be flawed...