Teil: Das Folterverbot im Völkerrecht

It is not easy to define exactly what “torture” means. While this term is used colloquially to stigmatize any cruel act, it needs to be defined more clearly if it is to be looked at as a legal term. In international law, the first binding definition is found in Art. 1 para 1 of the UN Anti-Torture Convention:1690 “For the purposes of this Convention, the term “torture” means 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 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 in or incidental to lawful sanctions.” This definition is the result of a long process which was influenced by the jurisdiction of the European Court of Human Rights. Furthermore, torture needs to be differentiated from “inhuman treatment”, whereby torture is the more narrow term. Torture is inter alia made up of both “severe” pain or suffering, and a purposive element, the latter one not being essential for an “inhuman treatment”. Neither the severe pain alone nor the breaking of the will on itself, but the conjunction of both makes torture to be so condemnable.

According to Art. 1 para 1 sentence 1 of the UN Anti-Torture Convention, the infliction of severe pain or suffering for reasons of punishing a person is torture. However, this definition is problematic from a historic, systematic and teleological perspective because there are convincing arguments for corporal punishment as a separate category. But because corporal punishment is also used to intimidate and to coerce human beings to comply with an (undemocratic) state system, there is a certain justification to embrace it under the definition of torture.

Despite the agreement on the definition in Art. 1 para 1 of the UN Anti-Torture Convention, there still is insufficient agreement on the application of these criteria. In applying them, problems arise which are partly based on the different cultural backgrounds and on the fact that states try to justify their behavior through the use of euphemismus e.g., “moderate coercion”, rather than calling it “torture”.

There are further problems concerning the interpretation of the “lawful sanctions” in Art. 1 para 1 sentence 2 UN Anti-Torture Convention. While the Islamic States understand this exception clause as a way to put corporal punishment out of the definition, it is stated here that it does not make sense that every state can circumvent the definition by relying on national laws which provide for measures falling under sentence 1 of the said Article.