Defining Torture Under International Human Rights Law

Defining Torture in International Human Rights Law

The legal definition of torture in human rights law differs significantly from how the term is commonly used in the media or general conversation.

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides the internationally agreed legal definition:

"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 contains three cumulative elements:

• The intentional infliction of severe mental or physical suffering.
• Infliction by a public official, directly or indirectly involved.
• Infliction for a specific purpose.

Other international and regional treaties, as well as national laws, may contain broader definitions of torture, covering a wider range of situations. The APT and CEIJIL’s Torture in International Law Jurisprudence provides detailed information on definitions within international instruments and criminal courts.

Gender-Sensitive Interpretation

International torture prevention mechanisms emphasize the importance of a gender-sensitive interpretation of torture. Particular attention must be paid to:

• Rape in detention
• Violence against pregnant women
• Denial of reproductive rights

These issues have long been recognized as falling under the Convention’s definition.

Lawful Sanctions

The Convention explicitly excludes "pain or suffering arising only from, inherent in or incidental to lawful sanctions." The lawfulness of a sanction must be determined by reference to both national and international standards, including the United Nations Standard Minimum Rules for the Treatment of Prisoners.

While some States have raised the issue of corporal punishment under the “lawful sanctions” clause, it is firmly established that corporal punishments are prohibited under international law and the Convention against Torture.