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The Coxford Lecture Inhuman and Degrading Treatment: The Words Themselves

Published online by Cambridge University Press:  20 July 2015

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Many human rights charters contain prohibitions on inhuman and degrading treatment of prisoners and detainees. Terms like “inhuman” and “degrading” are difficult to interpret, but they are certainly not meaningless. It is important to attend to attend to the meanings of the words themselves, as well as to the decisions that courts have made about particular practices. Reflection on the meanings of these highly-charged terms reveals important complexity, which we can unpack in a way that enables us to better focus our debate about the proper treatment of prisoners and detainees. Focusing on the ordinary-language meaning of evaluative terms like “inhuman” and “degrading” also helps us approach the relation between rules and standards in law more thoughtfully, as we see why it is important not to let the evaluative meaning of these terms be superseded by the definitions established in the course of their application.

Type
The Coxford Lectures
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2010 

References

1. International Covenant on Civil and Political Rights, art. 7.

2. European Convention on Human Rights, art. 3.

3. South African Constitution, art. 12 (1): “Everyone has the right to freedom and security of the person, which includes the right … not to be tortured in any way; and not to be treated or punished in a cruel, inhuman or degrading way.”

4. Constitution of the Federal Republic of Brazil, art. 5 (III): “[N]inguém será submetido a tortura nem a tratamento desumano ou degradante.”

5. New Zealand Bill of Rights Act 1990, sect. 9: “Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.”

6. UN Convention Against Torture, art. 16 (1): “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined. …”

7. Harris, DJ., O’Boyle, M. & Warbrick, C., Law of the European Convention on Human Rights (Oxford: Oxford University Press, 1995) at 88.Google Scholar

8. Compare the assertion of universal jurisdiction in Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet [2000] 1 A.C. 147.Google Scholar

9. Forti v. Suarez-Mason 694 F.Supp. 707, at 712 (Cal, N.D.., 1988).Google Scholar

10. Ibid.

11. See, e.g. Jama v. United States Immigration and Nat. Serv., 22 F.Supp.2d 353, 363 D.N.J. 1998)Google Scholar; Mehinovic, 198 F.Supp.2d at 1347-8.

12. Xuncax v. Gramajo, 886 F.Supp. 162, 186 (Mass, D.. 1995).Google Scholar

13. Tachiona v. Mugabe 234 F.Supp.2d 401 S.D.N.Y., 2002 at 437.Google Scholar

14. See http://www2.0hchr.org/english/bodies/ratification/9.htm. Something exactly similar was said to accompany American ratification of ICCPR.

15. This account of Gonzalez’s testimony is adapted from Forcese, Craig, “A New Geography of Abuse” (2006) 24 J, Berkeley. Int’l L. 908 at 908-9.Google Scholar

16. Ibid. at 909.

17. The ECtHR famously said in the 1970s in Ireland v. United Kingdom Series A, No. 25, ECtHR, 18 January 1978 Google Scholar: “[I]t appears … that it was the intention that the Convention, with its distinction between ‘torture’ and ‘inhuman or degrading treatment,’ should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.”

18. Schlink, Bernhard, “The Problem with ‘Torture Lite’” (2007) 29 Cardozo L. Rev. 85 at 86Google Scholar: “Whatever the wording, the distinction between torture and cruel, inhuman and degrading treatment is one of intensity.”

19. Scholars still routinely refer to the prohibition on “degrading” treatment as “the lowest form of an absolute right on the graded scale of ill-treatment under Article 3”—see Arai-Takahashi, Yutaka, “Grading Scale of Degradation: Identifying the Threshold of Degrading Treatment or Punishment under Article 3 ECHR” (2003) 21 Netherlands Quart. Human Rts 385 at 420.CrossRefGoogle Scholar

20. Kalashnikov v. Russia (2003) 36 E.H.R.R. 34 at §97Google Scholar: “[T]he Court recalls that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment has set 7m 2 per prisoner as an approximate, desirable guideline for a detention cell, that is 56m2 for eight inmates.”

21. See Hart, Henry M. & Sacks, Albert, The Legal Process: Basic Problems in the Making and Application of Law, Eskridge, William N. & Frickey, Philip P., eds. (Minneola, NY: Foundation Press, 1994).Google Scholar

22. See, for example, Kurt v. Turkey (15/1997/799/1002), ECtHR, 5 BHRC 1, 25 May 1998 at §§133–4.Google Scholar

23. See e.g. Gomien, Donna, Harris, David & Zwaak, Leo, Law and Practice of the European Convention on Human Rights and the European Social Charter (Strasbourg: Council of Europe, 1996) 108–18Google Scholar; Mowbray, Alastair, Cases and Materials on the European Convention on Human Rights (Oxford: Oxford University Press, 2007) 172227 Google Scholar; and Ovey, Claire & White, Robin C.A., Jacobs and White: European Convention on Human Rights 5866 (Oxford: Oxford University Press, 2002).Google Scholar

24. For the predictive approach, see Holmes, , “The Path of the Law” reprinted in (1998) 78 Boston Univ. L. Rev. 699 at 699-700Google Scholar and for this criticism of it, see Hart, H.L.A., The Concept of Law, ed. by Raz, Joseph & Bulloch, Penelope (Oxford: Clarendon Press, 1994) 1011.Google Scholar

25. Hart, ibid. at 128.

26. Furman v. Georgia, 408 U.S. 238 (1972) at 271-3.Google Scholar

27. See Evans, Malcolm & Morgan, Rodney, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Oxford: Oxford University Press, 1998) 72.Google Scholar

28. Austin, J.L., “A Plea for Excuses” [1956-57] Proceedings of the Aristotelian Society 1 at 8.Google Scholar

29. P., Chaskalson, in S. v. Makwanyane and another 1994 (3) SA 868 at para. 26.Google Scholar

30. Ibid. [emphasis added].

31. I follow ECtHR judge Gerald Fitzmaurice in Tyrer v. United Kingdom, judgment of 25 April 1978 Series A No 26.Google Scholar, sep. opinion, para. 14, in saying that ‘[t]he fact that a certain practice is felt to be distasteful, undesirable or morally wrong … is not sufficient ground in itself for holding it to [be inhuman or degrading].’

32. HRC, General Comment No. 20/44 (2 April 1992), cited by Evans & Morgan, Preventing Torture, supra note 27 at 76.

33. See ICCPR, Article 4(2) and ECHR, Article 15(2).

34. See, e.g., the discussion An-Na’im, Abdullahi, “Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment” in An-Na’im, Abdullahi, ed, Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press, 1992) 19 at 33.CrossRefGoogle Scholar

35. Isaiah, Cf. 13: 9: “Behold, the day of the Lord comes, cruel, with both wrath and fierce anger, to lay the land desolate; and He will destroy its sinners from itGoogle Scholar and also Jeremiah, 30: 14: “I have wounded you with the wound of an enemy, with the chastisement of a cruel one, for the multitude of your iniquities” (KJV).Google Scholar

36. The Oxford English Dictionary (2nd ed., 1989), On-line, entry for “inhuman” (etymological note) says there was a time when the two ex Pressions meant the same thing and were used interchangeably, but it notes that by the nineteenth century, “inhumane” had become an obsolete variant of inhuman. It also says that “inhumane in current use has been formed afresh on humane, in order to provide an exact negative to the latter, and [is] thus a word of milder meaning than inhuman”. The dictionary defines “inhumane” as “destitute of compassion for misery or suffering in men or animals.”

37. There is an excellent discussion of “inhuman” and “inhumane” in the opinion of CJ, Elias in aunoa v. Attorney-General [2008] 1 NZLR 429, at §79Google Scholar. Considering that section 23 (5) of the New Zealand Bill of Rights Act requires that “Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person” in addition to the broader section 9 prohibition on “cruel, degrading, or disproportionately severe treatment or punishment,” the Chief Justice said this:

A requirement to treat people with humanity and respect for the inherent dignity of the person imposes a requirement of humane treatment. That seems to me to be the natural and contextual effect of the words “with humanity.” A principal meaning of “humanity” relates to “humane.” In the context of the New Zealand Bill of Rights Act, the words “with humanity” are I think properly to be contrasted with the concept of “inhuman treatment,” which underlies s 9 and its equivalent statements in other comparable instruments. On this view, s 23(5) is concerned to ensure that prisoners are treated “humanely” while s 9 is concerned with the prevention of treatment properly characterised as “inhuman.” The concepts are not the same, although they overlap because inhuman treatment will always be inhumane. Inhuman treatment is however different in quality. It amounts to denial of humanity. That is I think consistent with modern usage which contrasts “inhuman” with “inhumane.”

38. Separate opinion in Ireland v. United Kingdom (Application no. 5310/71), 18 January 1978.Google Scholar

39. Hume, David, A Treatise of Human Nature, ed. by LA. Selby-Bigge, & Nidditch, P. H., 2nd ed. (Oxford: Clarendon Press, 1978)Google Scholar, Bk. II, Part 2, ch. vii, p. 368 ff, observed that “[a]ll human creatures are related to us by resemblance. Their persons, therefore, their interests, their passions, their pains and pleasures must strike upon us in a lively manner, and produce an emotion similar to the original one.”

40. Levinas, , Sur L’esprit de Genève, as quoted in C. Fred Alford, , “Levinas and Political Theory” (2004) 32 Pol. Theory 146 at 157.Google Scholar

41. John Milton, Paradise Lost, x, 507-11: “Can thus / Th’ Image of God in man created once / So goodly and erect, though faultie since, / To such unsightly sufferings be debas’t / Under inhuman pains?”

42. The Bridge on the River Kwai (Columbia Pictures, 1957), directed by David Lean.

43. Waldron, Jeremy, “Dignity and Rank” (2007) 48 Archives Européennes de Sociologie 201.CrossRefGoogle Scholar

44. Whitman, James, ‘“Human Dignity” in Europe and the United States: The Social Foundations’ in Nolte, George, ed., European and US Constitutionalism (Cambridge: Cambridge University Press, 2005) 108 at 110-11CrossRefGoogle Scholar: “The core idea of ‘human dignity’ in Continental Europe is that old forms of low-status treatment are no longer acceptable. … ‘Human dignity’ … has been formed by a pattern of leveling up, by an extension of formerly high-status treatment to all sectors of the population.”

45. The account that I give in these paragraphs is similar to that found in Margalit, Avishai, The Decent Society (Cambridge, MA: Harvard University Press, 1996)Google Scholar, though his account is about humiliation, not degradation.

46. See Tachiona v. Mugabe 234 F.Supp.2d 401 S.D.N.Y., 2002 at 438.Google Scholar

47. Kant, Immanuel, Groundwork of the Metaphysics of Morals, Gregor, Mary, ed. (Cambridge: Cambridge University Press, 1998) 3738.Google Scholar

48. See, e.g., Hurtado v. Switzerland, Application no. 1754/90, Judgment of 28 January 1994.Google Scholar

49. See, e.g., Mayer, Jane, The Dark Side: The Inside Story of how the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008) at 207.Google Scholar

50. Deuteronomy 25: 2-3 (ESV). See also Luther’s, Martin observation in “Lectures on Deuteronomy,” in Luther’s Works, vol. 9, ed. by Pelikan, Jaroslav and trans. by Caemmerer, Richard R. (St. Louis, MO: Concordia, 1994) 248 Google Scholar, that the purpose of this limit is “so that your brother and his humanity should not be made contemptible … in your presence.”

51. Harris, O’Boyle & Warbrick, Law of the European Convention on Human Rights, supra note 7 at 80.

52. Tysiaogonc v. Poland, (2007) 45 E.H.R.R 42 Google Scholar, ECHR Paragraph 67, citing Ireland v. United Kingdom (A/25) (1979-80) 2 E.H.RR. 25 at [167]Google Scholar. Also the International Criminal Tribunal for Rwanda defined degrading and humiliating treatment as ‘[subjecting victims to treatment designed to subvert their self-regard.’ Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgment and Sentence, §285 (Jan. 27, 2000)Google Scholar. However, in some contexts this is left open; the ITFY defined this offense as requiring: ‘an act or an omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.’ Prosecutor v. Kunarac, Kovac, & Vokovic, Case No. IT-96-23 and IT-96-23/1 (Appeals Chamber), Judgment, 161 (June 12, 2002).Google Scholar

53. Regina (Burke) v. General Medical Council (Official Solicitor intervening) [2005] Q.B. 424, at §178.Google Scholar

54. See, for example, the upholding of a dignity-based prohibition on the activity of dwarf-throwing in Conseil d’Etat, Ass., 27 October 1995, Cne de Morsang-sur-Orge, Recueil Lebon 372.

55. See Levinson, Sandy, “In Quest Of A “Common Conscience”: Reflections on the Current Debate about Torture” (2005) 1 J. National Security Law & Pol’y 231 at 243.Google Scholar

56. For this distinction, see Hart, The Concept of Law, supra note 24 at 180-84.

57. Forti v. Suarez-Mason 694 F.Supp. 707, at 712 (N.D. Cal.,1988)Google Scholar. See text accompanying note 10 above.

58. See Wiltz, Teresa, “Torture’s Tortured Cultural RootsWashington Post (3 May 2005)Google Scholar C1 (“If you’re addicted to Fox’s ‘24,’ you probably cheered on Jack Bauer when, in a recent episode, he snapped the fingers of a suspect who was, shall we say, reluctant to talk. … Torture’s a no-brainer here. Jack’s got to save us all from imminent thermonuclear annihilation.”). For an example of the use of Fox’s 24 to elicit support for the torture of terrorist suspects by United States interrogators, see Thomas, Cal, “Restrictions Won’t Win War on Terror for USSouth Florida Sun-Sentinel (4 May 2005) 25A.Google Scholar

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