Challenges to the Absolute Nature of the Prohibition of Torture and Ill-Treatment
| Author | Manfred Nowak |
| Published date | 01 December 2005 |
| Date | 01 December 2005 |
| DOI | http://doi.org/10.1177/016934410502300410 |
| Subject Matter | Part C: Appendices |
674
CHALLENGES TO THE ABSOLUTE NATURE OF THE
PROHIBITION OF TORTURE AND ILL-TREATMENT
MANFRED NOWAK*
1. THE ABSOLUTE NATURE OF THE RIGHT TO PERSONAL INTEGRITY
AND DIGNITY
The right to personal integrity and dignity or, as it has been phrased in international
human rights documents, the prohibition of torture, cruel, inhuman or degrading
treatment or punishment, has taken on a special status in the protection of human
rights under international law. Not only is it non-derogable in times of war and
emergency in the various regional and universal treaties; it is also ensured without
any restriction whatsoever.
1
Its unconditional recognition by the international
community justifies the view that torture is prohibited by customary international
law and even ranks as jus cogens under international law, pursuant to Article 53 of the
2
This exceptional status is
usually explained by the fact that torture, as slavery, constitutes a direct attack on the
core of the human dignity and personality.
The absolute and non-derogable nature of the right to personal integrity and
dignity has not prevented torture and ill-treatment from being practised systemati-
cally in all regions of the world, and the 20
th
century has often been referred to as the
‘age of torture’. But governments which resort to this most horrifying phenomenon
of State repression usually are fully conscious of violating a peremptory norm of
international law and, therefore, vehemently deny such practice.
The global threat of terrorism at the beginning of the 21
st
century and the
counter-terrorism strategies of the United States, many European and other
governments, seem to challenge this universal consensus. For the first time since
World War II, the absolute and non-derogable nature of the prohibition of torture
and ill-treatment is being put in question by politicians, law enforcement officials
and even scholars.
3
The International Commission of Jurists, in concluding a recent
* Speech delivered at the 24th anniversary of the Netherlands Institute of Human Rights (SIM),
29 September 2005. Professor Manfred Nowak is director of the Ludwig Boltzmann Institute of
Human Rights, Vienna, Austria, and UN Special Rapporteur on Torture and Cruel, Inhuman or
Degrading Treatment or Punishment.
1
Cf. Article 5 UDHR; Article 3 of all four Geneva Conventions 1949; Articles 3 and 15(2) ECHR;
Articles 7 and 4(2) CCPR; Articles 5(2) and 27(2) ACHR; Article 5 ACHPR.
2
See Simma, Bruno and Alston, Philip, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and
General Principles’, Australian Yearbook, 1992, p. 82, with further references. See also Nowak,
Manfred , U.N. Covenant on Civil and Political Rights – CCPR Commentary, 2nd ed., NP Engel, Kehl/
Strasbourg/Arlington, 2005, p. 157 with further references.
3
See, e.g., Bagaric, M. and Clarke, J., ‘Not Enough (Official) Torture in the World? The
Circumstances in which Torture is Morally Justifiable’, University of San Francisco Law Review,
Spring 2005, Vol. 39, No. 3 or Derschowitz, A., ‘The Torture Warrant: A response to Professor
Strauss,’ New York Law School Law Review, Vol. 48, 2004, p. 275.
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