|No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.|
International law regards torture as a severe or aggravated form of cruel, inhuman or degrading treatment or punishment. See, e.g., UN Declaration on the Protection of all Persons from being subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Resolution 3452 (XXX), Article 1(2), UN Doc. A/RES/3452 (XXX) (1976).
The standard international law definition of "torture" is set out in the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as follows:
[A]ny 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 consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent or incidental to lawful sanctions.
The definition of torture in the Declaration is different from that in the Convention and arguably a bit narrower: the Convention more broadly defines the "public official" responsible for torture and is more inclusive as to the purposes for which pain or suffering may be inflicted. (Ratner, 64)
The Inter-American Commission on Human Rights has also provided a definition of "torture" in the case of Fernando Mejía Egocheaga and Raquel Martin de Mejía v. Peru.1 There the Commission was interpreting the Inter-American Convention to Prevent and Punish Torture:
For torture to exist three elements have to be combined:
1. it must be an intentional act through which physical and mental pain and suffering is inflicted on a person;
2. it must be committed with a purpose;
3. it must be committed by a public official or by a private person acting at the instigation of the former.
Cruel, Inhuman or Degrading Treatment
"Cruel, inhuman or degrading treatment" is generally defined separately from torture. It includes acts that inflict mental or physical suffering, anguish, humiliation, fear or debasement, but that fall short of torture. (Ratner, 66)
The objection that capital punishment is "cruel and unusual" within the meaning of the Eighth Amendment to the US Constitution, directly or as subsumed in the Fourteenth Amendment, has been raised with mixed success in the United States. Some Justices have concluded that capital punishment is inherently cruel and unusual, but Eighth Amendment challenges have succeeded only on narrower grounds since Furman v Georgia, 408 U.S. 238 (1972).
In Gregg v. Georgia, 428 U.S. 153 (1976), the US Supreme Court held that "the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it." (Justices White, Burger, Rehnquist and Blackmun concurring, Justices Brennan and Marshall dissenting)
European Court of Human Rights--The Death Row Phenomenon
The European Court of Human Rights and some national courts have held that, even if capital punishment is not prohibited, the period of waiting prior to execution may itself produce a form of inhuman and degrading treatment or punishment. The consequences of that conclusion affect not only states that impose capital punishment, but also states that are requested to extradite fugitive offenders.
In the 1989 European Court of Human Rights case of Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A), 11 E.H.R.R. 439, Jens Soering was an 18-year old West German student attending the University of Virginia when he and his girlfriend carried out a plan to kill her parents. The pair then fled to the United Kingdom for other offenses, and the United States requested extradition for trial on capital murder charges in Virginia.
See further Henkin, Human Rights at 889.
1. Case 10.970, Inter-Am. Commission H.R. 157, OEA/Serv. L/V/II.91, doc. 7 rev. (1996).
Peter Danchin, Columbia University