Justification doctrine in the prohibition on torture, cruel, inhuman or degrading treatment.Torture. 2008; 18(2):116-29.T
This paper looks at the legacy of a justification doctrine evident in early international jurisprudence that set the threshold for treatment prohibited under international law as torture, cruel, inhuman or degrading treatment or punishment [hereafter the prohibition], excusing from its reach deliberately inflicted, potentially severe, suffering proportionately inflicted for a legitimate purpose. Debates over a 'threshold' at which point the prohibition engages, or at which point 'inhumane' treatment reaches a level sufficient to be deemed 'torture', typically invoke an implicit 'severity' threshold. This paper is not primarily concerned with severity or the instrumentality of any 'severity threshold' either in engaging the prohibition or in distinguishing categories of prohibited treatment. Neither is the article concerned directly with the legal distinction between categories of prohibited treatment (i.e. the distinction between 'torture', other 'inhuman', or even any subcategory 'degrading' treatment). Rather the article focuses on the distinction between (i) treatment prohibited, as either torture or other cruel, inhuman or degrading, and (ii) treatment prima facie 'justified'. What the article looks at is the operation of a 'justification' threshold in triggering the prohibition, one that understands 'justified' treatment as never reaching the level of, or never amounting to inhuman, cruel or degrading treatment under the prohibition. The article interprets the current prohibition on torture, cruel, inhuman or degrading treatment as one on 'unjustified' inflicted suffering, suggesting that the notion of 'justifiability' active in this definition is problematic in encouraging arguments seeking to circumvent the protection afforded under the prohibition. In the absence of a clearly defined notion of the 'victim', or circumscribed class afforded protection, this paper both identifies and addresses a correlation between (i) a broadly inclusive contextual scope for the prohibition's applicability - one that contemplates a broad notion of the potential victim - and (ii) an enhanced role for a justification doctrine in excusing the infliction of [potentially severe] suffering where necessary and proportionate. In light of identified dangers associated with a role for justification doctrine in the definition of prohibited treatment, an alternative is put forward that would redefine the prohibition as one, not on 'unjustified' but one on 'all' suffering deliberately inflicted restricted to contexts of detention, custody, control or other deprivation of liberty. A brief disclaimer and clarification should also be made at the outset: The article addresses balancing exercises, active in determining the justifiability of treatment, that draw on the nature of its purpose and the degree of its severity. However the author wishes to make clear that the article in no way means to suggest that proportionality is, or should ever be, active in excusing treatment deemed cruel, inhuman, degrading or even torture; the article does not, in referring to 'balancing exercises', 'justification' or 'proportionality', mean to invoke, and much less to argue for, any justification doctrine or proportionality that would balance the prohibition against, for example, national security concerns. What the article is concerned with is a degree of balancing between the severity of suffering inflicted and a potentially legitimate purpose, operating in certain circumstances either to determine treatment as prohibited as torture, cruel, inhuman or degrading or alternatively to excuse it as 'justified'. It is not, then, balancing exercises which might mitigate (notwithstanding the absolute nature of the prohibition) the infliction of treatment deemed 'cruel, inhuman or degrading', or even that amounting to 'torture', but those balancing exercises which 'precondition' the triggering of the prohibition that are the subject of the article and of which will be attempted as lucid an analysis as possible. It is in this context that any reference to 'proportionality' in the article is made. Lastly the author wishes to clarify that anything presented or put forward by the article is done so solely in the interest of securing the maximum protection for the most vulnerable.