Conceptualising Involuntary Sterilisation as ‘Severe Pain or Suffering’ For the Purposes of Torture Discourse
| Published date | 01 December 2010 |
| Date | 01 December 2010 |
| DOI | http://doi.org/10.1177/016934411002800402 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 28/4, 523–547, 2010.
© Netherlands I nstitute of Human Ri ghts (SIM), Printed in the Net herlands. 523
PART A: ARTICLES
ConCePtUALIsIng InvoLUntARy
steRILIsAtIon As ‘seveRe PAIn
oR sUFFeRIng’ FoR tHe PURPoses
oF toRtURe DIsCoURse
R S*
Abstract
e denition of torture contained in Article 1 of the United Nations Convention against
Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment requires
an ‘act by which severe pain or suer ing, whether physica l or mental, is intentionally
inicted on a person’. In this article it is argued that involuntary sterilisation constitutes
an act which intentionally causes both severe physical and mental pain and suering,
thereby satisfying the rst requirement of the denition of torture. In this way, this article
takes torture disc ourse beyond the traditional context and adopts a distinctly gendered
approach to th e denition of torture by focus ing on the involuntary ste rilisation of
women.
1. INTRODUCTION
e word ‘tort ure’ tends to evoke graphic images of prisoners being subjected to
unspeakable horrors. e concept of ‘torture’ is oen associated wit h specic types of
behaviour; such as the pull ing out of ngernails or elect rocution of genitals. In recent
decades, there has be en an evolution in the interpretation of t he concept of torture
under international law. In this article, I argue that the interpretation of the denition
of torture has developed such that it is no longer lim ited to the traditional contex t of
horrors inicted upon a prisoner. Within this w ider framework in which torture may
be perpetrated, I spe cically consider the issue of involuntary ster ilisation of women.
In this context ‘involuntary steri lisation’ is a sterilis ation procedure which is car ried
out on a woman without her full a nd informed consent.
* PhD Candidate, Monash University, Victoria, Austral ia and Researcher with the Rethinki ng Mental
Health Laws Proje ct, an Australi an Resea rch Counci l Federation Fellowship project. e author
wishes to th ank Professor Bern adette McSherry a nd Dr Adiva Sifris for their helpful com ments on
dras of th is article.
Ronli Sifri s
524 Intersentia
It is generally accepted that there is a n absolute prohibition of torture under
international law. is prohibition is enshri ned in both treaties and customar y
international law (as a jus cogens norm to be precise).1 e seminal international legal
document which stipulates both the nature of the prohibition and the content of States’
international legal obligations w ith respect to the prohibition is the United Nations
Convention against Torture and Other Cr uel, Inhuman or Degrading Treatment or
Punishment (CAT).2 Article 1 of CAT provides the most widely accepted denition of
torture. 3 According to this den ition
the term ‘tor ture’ me ans any act by wh ich severe pain or su ering, whether physi cal or
mental, is intentionally inicted on a person for such purposes as obtaining from him or a
third person informat ion or a confession, punishing him for an act he or a third person has
committed or is suspected of having committe d, or intimidating or coercing him or a third
1 For examples of treaties ensh rining the prohibition of torture, see Internat ional Covenant on Civil
and Polit ical Ri ghts, opened for signat ure 16 Dec ember 1966, 999 Unite d Nations Treaty S eries
(UNTS) 171, Article 7 (entered into force 23 March 1976); Geneva Convention for the Amel ioration
of t he Condit ion of the Wound ed and Sick in Arme d Forces in the Field , opened for si gnature
12 Augu st 1949, 75 U NTS 31, Ar ticles 3, 12 and 50 (entered into f orce 21 Octob er 1950); Gene va
Convention for the Ame lioration of the Condit ion of Wounded, Sick and Sh ipwrecked Members
of t he Ar med Forc es at Sea, opened for si gnature 12 Au gust 1949, 75 UNTS 85, Articles 3, 12
and 50 (entered i nto forc e 21 October 1950); Geneva Convent ion rel ative to t he Treat ment of
Prisoners of War, open ed for sig nature 12 August 19 49, 75 UNT S 135, Ar ticles 3, 17, 87 and 130
(entered into force 21 O ctober 1950); Genev a Convent ion relat ive to the Protection of C ivilian
Persons in Time of War, open ed for si gnature 12 August 1949, 75 UNTS 2 87, Article s 3, 32 and
147 (entered into force 21 Octob er 1950); St atute of the Int ernational Crimina l Tribuna l for t he
former Yugoslavia, A rticles 2(b) and 5(f), annexed to Resolution 827, SC Res 827, UN SC OR, 48th
sess, 3217th mtg, UN D oc. S/ RES/927, 1993 ; Statu te of the Internationa l Cri minal Tribunal for
Rwanda, Art icles 3(f) and 4(a), annexed to Resolution 955, SC Res 955, UN SCOR, 49th ses s, 34 53rd
mtg, UN Doc . S/RE S/955, 1994; Rome Statute of the Internat ional Cr iminal Court, opened for
signatu re 17 July 1998, 2187 UNTS 90, Article s 7(f), 8(2)(a)(ii), 8(2)(c)(i) and 55(1)(b) (entered into
force 1 July 20 02); Europea n Convention for the Protection of Human Rights and Fu ndamental
Freedoms, opened for signature 4 November 1950, Euro pean Treaty Seri es (ET S) 5, Ar ticle 3
(entered into force 3 September 1953); and Amer ican Convent ion on Hum an Right s, opened for
signatu re 22 November 19 69, 1144 UNTS 123, Article 5(2) (enter ed into force 18 July 1978). For a
discus sion of t he status of the prohibition of tortur e as a peremptory norm of i nternationa l law,
see Kooijma ns, Peter, Repo rt of the Speci al Rappor teur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, UN Doc . E/CN.4/198 6/15, 19 F ebruary 1986, para. 3; and
Nowak, Manfred and McA rthur, El izabeth, e Uni ted Nat ions C onvention against Torture: A
Commentary, Oxford University Press, Oxford /New York, 2008, pp. vi and 8. e jus coge ns statu s
of the prohibition of tort ure was also acknowle dged in ICTY, Prosecutor vs Furundžija, judgme nt
of 10 December 1998, Cas e No. IT-95–17/1-T.
2 Convention against Torture and Other Cruel, Inhuman or Degradi ng Treatment or Punishment,
opened for signatu re 10 December 1984, 1465 UNTS 85 (entered into forc e 26 June 1987).
3 According to Nigel S. Rodley, former specia l rapp orteur on t orture and other cruel, inhuman
or deg rading t reatment or punishment, the de nition of torture set out in A rticle 1 of CAT has
largely proven to have become the benchmark; Rodley, Nigel S., ‘ e Denit ion(s) of Torture in
Internationa l Law’, Current Legal Problems, Vol. 55, 2002, pp. 467 and 474. See also Manfred Nowak
and Elizabeth McArt hur who categorise CAT as t he ‘[m]ost important among all i nternational
instrume nts’ dealing wit h torture; Nowak and Mc Arthur, op.cit. (note 1), p. vi.
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