Torture as a Crime under International Law

By van der Vyver, Johan D. | Albany Law Review, Winter 2003 | Go to article overview
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Torture as a Crime under International Law

van der Vyver, Johan D., Albany Law Review

Torture has been widely practiced during the entire recorded history of humankind. For example: to obtain information about the enemy or enemy strategies in situations of armed conflict; (1) in criminal justice systems to invite a confession; (2) as a form of punishment; (3) or in a political society as a means of suppressing opposition. (4) Torture was not considered illegal in some criminal justice systems. '"The torture of a criminal during the course of his trial," wrote Cesare Beccaria, (5) "is a cruelty consecrated by custom in most nations." (6) He went on to explain:

   It is used with an intent either to make him confess his
   crime, or to explain some contradictions into which he had
   been led during his examination, or discover his accomplices,
   or for some kind of metaphysical and incomprehensible
   purgation of infamy, or, finally, in order to discover other
   crimes of which he is not accused, but of which he may be
   guilty. (7)

Aristotle, for example, listed tortures--alongside "laws, witnesses, contracts, ... [and] oaths"--as '"non-technical' means of persuasion" (i.e., those besides rhetoric). (8) In elaborating on torture as a means of persuasion, he warned that "people under its compulsion lie just as often, sometimes persistently refusing to tell the truth, sometimes recklessly making a false charge in order to be let off sooner." (9) Elsewhere, Aristotle discussed the proposition that "[e]vidence given under torture is ... more trustworthy than ordinary testimony ... but those who are under torture gain by telling the truth, for doing so will bring them the speediest relief from their sufferings." (10) He then argued that others may lie under torture to "escape the suffering of the moment." (11) Given these conflicting responses to torture, one must always evaluate evidence procured under torture for its plausibility or implausibility, reasoned Aristotle. (12)

In Roman law, it was customary for torture to be applied in order to uncover the commission of a crime. (13) However, in The Digest, Justinian listed the opinions of numerous publicists on classical Roman law, including Ulpian, Modestinus, Papinian, and Paul, to illustrate that resort to torture in criminal cases was not unlimited. (14) For example: '"[r]ecourse should only be had to the infliction of pain on slaves when the criminal is [already] suspect, and is brought so close to being proved [guilty] by other evidence that the confession of his slaves appears to be the only thing lacking'" (Ulpian); (15) "[a] person who has made a confession on his own account shall not be tortured in a capital case affecting others" (Modestinus); (16) "in a case of stuprum [(unchastity)], slaves are not [to be] tortured [to give evidence] against their master" (Papinian); (17) interrogations under torture were not to be requested in every case, but only if a capital or more serious crime could not be vindicated and investigated in any way other than by torturing slaves (Paul). (18)

Under Roman influence, English common law also permitted torture as a means of eliciting a confession or for obtaining evidence from an uncooperative witness. (19) Tasswell-Langmead, for example, recorded the case in 1615 of Edmund Peacham, Rector of St. George church in Somersetshire who, suspected of seditious conspiracy, "was put to the rack and examined ... 'before torture, in torture, between torture, and after torture.'" (20)

However, times have changed and today torture is widely condemned. (21) It has been described as "a cruel assault upon the defenseless" (22) and as "inherently abhorrent." (23) "[E]ven a murderer," decided Chief Judge Posner, "has a right to be free from torture." (24) Its proscription has indeed come to be recognized as a peremptory norm of general international law ("ius cogens"). (25)

This essay will seek to define the concept of torture as proclaimed in international law (Part I) and distinguish torture as a crime against humanity and as a war crime (Parts II A and B).

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