Concept Of Torture Research Articles

Germany’s Attitude Vis-à-vis International Crime and its Prosecution by Domestic Courts

International and national immunities prevent prosecution. They must therefore be observed ex officio. In the case of a subordinate Afghan military officer and his acts relevant under international criminal law, the highest German criminal court, by ruling of 28 January 2021, found that customary international law does not contain such immunities, if the accused officer committed Rome Statute offences abroad against non-German victims. The finding reinforces the principle of global jurisdiction according the Rome Statute. The court defined the legal war crimes element of torture. Torture does not necessarily require the use of physical force; injuries suffered are therefore an indicator. The concept of torture is also satisfied if an atmosphere of violence is created that may influence the victim’s right to self-determination in the intention of the torturer. An additional crime element consisted in the violation of post-mortem dignity of human beings, which demands respectful treatment of dead opponents. A public display of dead adversaries for the purpose of propaganda runs counter this.

Уголовная ответственность за преступления, совершаемые с особой жестокостью и путем жестокого обращения: вопросы квалификации

Addressing the issues of classification of crimes committed with extreme brutality and through abusive treatment is caused, firstly, by the amendments to the criminal law provision on torture in 2022 – the introduction of the “extreme brutality” qualifying factor and the removal of the note with the concept of torture. The second cause is the trend in criminal policy observed in 2022–2023 – strengthening and extension of responsibility for crimes related to the special military operation. The paper deals with the analysis of signs of extreme brutality and abusive treatment contained in some articles of the Criminal Code of the Russian Federation (the RF Criminal Code). The author lays main emphasis on determining the essence of extreme brutality as a novelty of Art. 117 of the RF Criminal Code and abusive treatment in the construction of part 1 of Art. 356 of the RF Criminal Code. As a result of studying scientific publications, guiding explanations of the resolution of the Plenum of the RF Armed Forces and judicial practice materials, it is concluded that “extreme brutality” and “torture” are unequal concepts; they are correlated as a whole and a part. In turn, the terms “abusive treatment” and “extreme brutality” are not identical. In some crimes (part 1 of Art. 356 of the RF Criminal Code), the first term covers the second one, and in others (Art. 245 of the RF Criminal Code), extreme brutality is differentiated from the abusive treatment content. To clarify the concept of extreme brutality, the author proposes to amend the existing resolution of the Plenum of the RF Armed Forces dated December 4, 2014 No. 16 and adopt a new resolution. The paper justifies the need to tighten responsibility for committing a crime under part 1 of Art. 356 of the RF Criminal Code.

Legal Definition of Torture in an International Context, & States’ Obligations under the United Nations Convention Against Torture

The prohibition of torture is considered as a general principle of international law; States are obliged to respect this right and prevent infringing it. Throughout this paper, the concept of torture in an international context will be highlighted, stressing the main branches and instruments of international law that deals with torture, to at the end conclude a common definition. In the Introduction, a brief history of torture with different definitions and how it changed from being ordered by courts to being subject to an absolute prohibition will be provided. In Chapter 2, the concept of torture as a jus cogens will be outlined, going through the absolute non-derogable right of not being subject to torture; under human rights instruments such as the UDHR and the ICCPR. In addition, presenting torture under International Humanitarian Law, specifically under the Geneva Conventions and their Additional Protocols as a war crime. While also discussing the crime of torture under international criminal law as a crime against humanity and how the case law of the Nuremberg Trials, ICTY, and the ICTR contributed in shaping the legal framework of the prohibition. Chapter 3 will be dedicated to the United Nations Convention Against Torture as it is the specialized convention on torture. A thorough discussion will be presented on Article 1 that outlines the elements of the crime of torture and Article 2, that serves as the “Umbrella Clause” to the obligations of State parties of the Convention, in addition to setting the absolute non-derogable prohibition of torture. Chapter 4 will present the conclusions of this paper, and how the concept of torture differs under the UNCAT from other branches of international law. To at the end, present a concluded definition of torture that avoids ambiguity and arguments that try to derogate from this right. Going through these subjects, landmark judgments from international tribunals that helped ensuring the right not to be subject to torture will be highlighted, in addition to other international legal instruments. The travaux preparatoires of the UNCAT is very important to go through, it will help the reader stand at the position the drafters wanted from the Convention, and to avoid any misinterpretation of its provisions. Next to going through the General Comments issued by UN specialized bodies on relevant provisions when available, case law, and literature of specialized scholars in the field.

Genealogía de la tortura en Colombia: una mirada desde los Derechos Humanos

This research seeks to analyze state guidelines on the torture of children and adolescents in Colombia. First, it analyzes the concept of torture in order to focus on problems regarding human rights violations. Second, it examines the judgments of the Inter-American Court of Human Rights regarding torture, followed by a study of national and jurisprudential legislations, aiming to highlight problems regarding children and adolescents. The paper finally presents some brief conclusions.

GENESIS OF THE NATIONAL PREVENTIVE MECHANISM IN INDEPENDENT UKRAINE

The subject of the research in the article is the development and establishment of a national preventive mechanism for the prevention of torture and ill-treatment in places of detention. The chronology of the development of a model of a preventive mechanism in the world is considered. Analyzed the UN Convention against Torture on the basis of which the concept of torture is disclosed and highlights the main signs of torture. An important step for the creation of a national preventive mechanism in Ukraine was the ratification of the Optional Protocol to the UN Convention against Torture and other cruel, inhuman and degrading treatment or punishment and the adoption of the Law of Ukraine "On Amendments to the Law of Ukraine" On the Authorized Person of the Paramount Soviet of Ukraine on Human Rights "By the national preventive mechanism" dated October 2, 2012. In Ukraine, the national preventive mechanism operates in the “Ombudsman +” model and provides for a system of regular and independent visits to closed-type institutions. The author covers the situation of the main sources of law governing the implementation of the function of the national preventive mechanism in Ukraine, directly, the UN Convention against Torture and other cruel, inhuman and degrading treatment or punishment and the Factional Protocol to Convention.

CONCEPT OF TORTURE IN A CRIMINAL LAW

The paper considers basic provisions about the concept of torture in a Criminal Law and characteristics of torture. Torture constitutes a serious crime with traumatic physical and psychological consequences. The ban on torture and other cruel, inhuman or degrading treatment or punishment is well articulated in national and international instruments. The paper provides analyses of various scientists, theories of Criminal Law, it also analyses the existing judicial practice.

Navigating the Legal Landscape between the General and the Specific: General Concepts as Tools of Legal Reasoning

The common practice of using general concepts as tools in legal reasoning is bound to raise questions concerning the relative importance of the general and the specific for the understanding of international law. To illustrate, this article uses two judgments handed down by the icty Trial Chamber. While for both judgments, the Chamber inferred from human rights instruments an alleged general concept of torture, which it then brought to bear on its understanding of the prohibition of torture contained in the laws and customs of war, it used the concept differently. The question that this article asks is whether this difference of approach can possibly be explained so as to reconcile the two judgments. Two mutually exclusive explanations are suggested. As argued, choosing between them presents a dilemma. The first explanation prompts us to accept the occurrence of irreconcilable conflicts between different jus cogens rules. The second explanation commits us to an unacceptably broad understanding of the jus cogens prohibition of torture.

Exploring the Concept of Torture: An Analysis of Kashmir Valley

AbstIndia is considered as world’s largest democracy. The country has a civil society, free media, and independent judiciary. Still, the country is engaged in quotidian violence like torture, which is widely prevalent in the name of national security, investigation crimes, extracting information and punishing criminals. Torture is an instrument of state power in an authoritarian system which applies all means to silence the political opponents or bend them towards rule of law. Nevertheless, torture occurs in the democratic countries in which rule of law is highly respected likely in maintaining peace and public order, national security and fight against terrorism. It is clear that in democracy when the rights of an individual have been weakened and are on the mercy of those who are in power, the result is that quotidian violence and other cruel punishments can occur. Torture is a brutal method of social and political control which relies on complex networks of technology, training, facilitators and perpetrators. It demands classified structures located within enclaves of barbarism in order to achieve its aim of inducing terror. Modern states have built burgeoning detention facilities like immigration centers, prisons and police cells that engage in torture and other cruel, inhuman treatments. The law enforcement agencies engage in torture and other cruel, inhuman and degrading treatment or punishment in the name of counter-terrorism, security threats and soon. The states use violence like methods to control and terrorize its people to maintain the status quo or to destroy internal or external political, ideological or military threats. The state uses torture and makes it clear that enhanced interrogation techniques make a person from kidnapping to extraordinary rendition, from citizen to unlawful enemy combatant and from human to terrorist. The valley of Kashmir faces torture and other cruel inhuman treatments since the insurgency began in 1990’s, with the violent uprising and have elicited terrorism. Methods of torture are used as a tool of counter-insurgency by Indian security forces. The government of India used all efforts to crush the movement of self-determination of Kashmir. The strong response from India violates the human rights and international humanitarian laws. The law enforcement agencies, army, and para-military forces have engaged in reprisal attacks against civilians resulting in indiscriminate firing, search operations, gang-rapes and burning of houses in the valley. After 1990, the situation in the Kashmir valley deteriorated and Kashmir was declared a disturbed area and laws like Disturbed Area Act (DAA) 1990, Armed Forces Special Powers Act (AFSPA) 1990 and Public Safety Act (PSA) 1978 were imposed. The purpose of the paper is to examine the concept of Torture in Kashmir.

Prohibition of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Some Remarks on the Operative Solutions at the European Level and their Effects on the Member States. The Case of Italy

This paper analyzes European measures against torture and inhuman or degrading treatment or punishment in order to verify their effectiveness, especially in terms of the values that are actually being protected. First, it examines the distinction between the external and internal action of the European Union, highlighting ways in which the EU appears to be more attentive to combat practices of torture in third countries than to domestic incidents and the proposals to legalize torture made at a political level in some Member States. Then, it examines the European Court of Human Rights’ ruling in the Cestaro versus Italy case, focusing specifically on the fact that Italy was in breach of its obligations under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the framework does not recognize torture as a crime and does not provide instruments of deterrence to effectively prevent the execution and the recurrence of such acts. Currently, the Italian Parliament is discussing a draft amendment to the Criminal Code and aims at introducing the concept of torture as a crime; however, in light of the comments made by the European Court of Human Rights, this project questions whether the proposed solution will be able to prevent a repeat of events similar to those that occurred in 2001 after the G8 Summit in Genoa.

The State Obligation to Prevent Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: The Case of Honour-Related Violence

Traditionally, international human rights law was concerned only with torture perpetrated or directly condoned by the State. There has however been a development towards including equally serious acts by private individuals in the concept of torture. The present article explores the implications for the prevention of honour-related violence. It establishes that States have an obligation under international human rights law to prevent private acts of violence in certain circumstances, moves on to examine whether honour-related violence can violate the prohibition of torture or other cruel, inhuman or degrading treatment or punishment and concludes by discussing the obligation to prevent those forms of honour-related violence which violate the prohibition. © The Author [2015]. Published by Oxford University Press. All rights reserved. For Permissions, please email: [email protected]/* */ Language: en

Judicial Definition of Torture as a Paradigm of Cross-fertilisation: Combining Harmonisation and Expansion

This article analyses how the ad hoc International Criminal Tribunals have implemented European Court of Human Rights case law with regard to the definition of torture as a paradigm of the phenomenon of cross-fertilisation. Reliance on European jurisprudence has fostered a twofold evolution in the concept of torture. This may be described, on the one hand, in terms of overcoming the fragmented normative framework towards harmonisation of the definition of the offence. On the other hand, it has also caused a significant and somewhat problematic broadening of its scope. In addition, the case study offers some insights as to the method applied by Courts in the selection and interpretation of external sources, as well as to some possible misuses of these references. The judicial interpretation of torture provides therefore some relevant suggestions that could both enhance the potentialities of cross-fertilisation and overcome its dangers.

Memória e justificação no processo de justiça transicional argentino: da reconstrução democrática às “megacausas” (1983-2013)

In the processes of institutional reconstruction of democracy in Argentina one can distinguish three conflicting contexts of justification that erupted in the public sphere when facing the transition through the criminal justice system. The first phase (1983-1990) begins immediately after the end of the dictatorship (1976-1983) and includes the preparation of the Nunca Más report (1984), the public trial of military officers (1985), with the condemnation of the main perpetrators, and the subsequent amnesty of the military through the laws of impunity. The second phase (1990-2005) begins with a policy of economic reparation and includes the expansion of the legal category of “forced disappearance”, the trials of the military responsible for the appropriation of babies born in clandestine prisons and the “truth trials” started in 1998. This phase extends to the annulment of the laws of impunity in 2005. In the third phase the trials of all repressive security forces and civilians who participated in the repression are resumed. If, on the one hand, there is a change in the concept of torture that makes it possible to individualize the cases of both victims and perpetrators, on the other, the “mega-cases” are established as a legal way of grouping more than one case on the basis of a particular circuit of repression. Our aim is to analyze the main changes in the judicialization of the transition in Argentina.Keywords: transitional justice, military dictatorship, Argentina, Nunca Más.

Interpretation of Article One of the Convention against Torture in Light of the Practice and Jurisprudence of International Bodies

Torture is one of the most brutal and horrendous human right violation, constituting direct attack on the core of human dignity. Though a number of international legal frameworks incorporate the right against torture, it is the convention against torture which provides the most prominent definition of torture. So this paper dedicated to explore the definition of torture in light of the practices and jurisprudence of the international bodies. Accordingly, there are four essential elements of the definition torture, which play a significant role in qualifying an “act” or “conduct” as torture. Apart from this, the paper has critically assessed the state obligation that flows from the definition provision. It has also discussed that the definition of torture is in continual process of evolution. In general, it is made clear that article one plays a pivotal role in understanding the whole notion of the concept of torture, and implicating the state obligation with regard to torture.

Adorno: the recovery of experience

ion (which otherwise I have been deeply influenced by). Bernstein speaks of the “logical” aspect of the concept versus its “material” aspect (which, he suggests, is opened up by rhetoric). To speak of a “material axis” of the concept that is “not fully discursive” risks collapsing into the static properties view. The risk becomes clear in the description of what gets cut away from the concept of torture (“the coldness of the branding, the smell and imaged pain” [2001, 318]). I would put the difference this way: whereas Bernstein’s account of abstraction uses Kantian reflective judgment as its basic model, my reading argues that Adorno wants to Hegelianize this through the idea of mediation, where what undergoes abstraction is precisely the social-temporal contextuality of the thing. 36. This is why I emphasized earlier that negative dialectic is resolutely negative. 37. Also: “what appears as the power of subjective form, which constitutes reality, is in truth the result of that historical process, in which the subjectivity that detaches itself and thereby objectifies itself, projects itself as the total master of nature . . .” (Adorno 1972b, 303); and “the forms that epistemology considers to constitute knowledge depend as much on the content of knowledge as vice-versa” (Adorno 1993b, 65). 38. I shall explain this idea in more detail in the discussion of language and expression in Adorno and Benjamin, in chapter 3. 39. The force of this must is none other than language’s own striving to express experience, to put it into words. I will come back to this later. 40. The term “natural history” itself comes from Benjamin’s book. See Benjamin

Torture and the inhumane

Exposure to cold weather or water is permissible with appropriate medical monitoring. The use of a wet towel to induce the misperception of suffocation would also be permissible if not done with the specific intent to cause prolonged mental harm, and absent medical evidence that it would. --excerpt from Legal Brief on Proposed Counter-Resistance Strategies. (1) In such circumstances [as the ticking bomb case] interrogators must apply a 'minimum harm' rule by not inflicting more pressure than is necessary to get the desired information. Further, any treatment that causes permanent harm would not be permitted, as this surely constitutes torture. --Final Report of the Independent Panel to Review DoD Detention Operations (August, 2004) (2) This essay presents one of and gives several reasons why it is better than its rivals. The most important of these reasons is that conceiving as a kind of inhumaneness helps to explain why morality--like international law--prohibits absolutely. Inhumane conduct is distinct from ordinary moral categories such as killing, maiming, causing pain, and the like. A moral emergency (as in a ticking bomb case) cannot justify any inhumanity, whether or something involving less suffering. Though much of what I shall say seemed obvious to me (and perhaps most other people) a few years ago, it no longer seems so to many governments, including some, such as that of the United States, from which we might have expected more. We need to put thinking about in better order to make sense of what has become--as the quotations at the head of this essay show--an important public (and not so public) debate. What I will offer here is one conception of torture, not the concept or definition of torture. I am not writing as a lexicographer or doing what philosophers used to call linguistic analysis. What I shall offer is something more useful than a definition or concept; I shall offer advice concerning how best to use a word for the purposes in view. My concern is the use of the word torture when we are making or evaluating decisions about when to torture, whom to torture, and how to torture. I shall not stipulate a definition (that is, choose a definition with no defense but convenience); nor shall I ignore usage (even though I shall try to clean it up). What I claim for the of offered here is that, while staying within the concept, it helps us explain some of our objections to better than rival conceptions or the concept itself. I Mental and Physical Torture On December 10, 1984, the United Nations General Assembly adopted the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. For the purposes of that document, the term torture was defined 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 or acquiescence of a public official or other person acting in an official capacity. (3) However useful this definition may be for some purposes (for example, for organizing the prosecution of officials), it does not offer a of torture likely to help us understand what is morally wrong with as such. It leaves too much out. For example, an illegal organization, such as the mafia, is (without official consent or acquiescence) as capable of as any government. Even an individual (such as the Marquis de Sade) can torture. Torture is not even necessarily a relation among humans. …

The Prohibition of Torture under International Law, Part 2: The Normative Content

The following article makes a critical analysis of the contribution made by the organs of the Council of Europe and the United Nations and to the elaboration of the concept of torture and thus focuses on the jurisprudence of the different bodies. The approach taken by the European organs has been different to that taken by the UN, the former generally attempting to distinguish between 'torture' and 'other ill-treatment' whilst the latter has taken a more 'global' approach, deciding that certain acts constitute violations of the relevant treaty without referring to the formula itself. However, the boundaries between the different limbs of the formula have not always been easy to demarcate and there remains an element of subjectivity or relativity in determining whether something is 'torture', 'other ill-treatment' or even treatment which falls within the prohibition at all. It has been suggested that making the distinction is unnecessary since the legal consequences are uninfluenced by such a distinction. However, it is submitted that the situation may be changing in this regard and that the distinction elucidates both State obligations and the normative content of the definition. The approach taken by the two regimes has been somewhat different and it can be asserted that the European organs have been more instrumental than those of the UN in defining torture. However, the different approaches must be considered in the relevant context and the success of European system may be a result of the different nature of the situations faced by the regional system to those encountered by the universal regime.