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That international law progressively recognises and prohibits emergent forms of torture and related ill-treatment has become widely accepted in the anti-torture discourse. The premise that torture's techniques and contexts change is taken to shape juridical recognition, representation and response. Authoritative international treaties, such as the UN Convention Against Torture, the European Convention on Human Rights and the Inter-American Convention to Prevent and Punish Torture, are therefore deemed ‘living instruments’ – influenced by social and scientific change as channelled through the doctrine of dynamic interpretation. This article argues, however, that these premises are not sufficiently empirically grounded and, far from faithfully reflecting social and scientific changes, invoke critiques around the ideological and epistemological registers of advocates and adjudicators. Taking scholarship on dynamic interpretation and forms of state violence which do not leave overt physical marks as paradigmatic entry points, this article problematises torture's juridical conceptualisation and contextualisation through a critical theoretical lens.
This chapter describes the immutable characteristics of capital punishment, which kills people and uses death threats by state actors. Death threats are ordinarily treated as unlawful acts, with threats of impending death treated as psychological torture where a person is helpless to prevent death. The chapter discusses how mock executions and various corporal punishments are already treated as torturous acts, including by laws and legal commentators. After discussing the duty of government officials to protect people, including inmates, from harm, as well as how jurists in multiple jurisdictions have recognized the death row phenomenon (i.e., the suffering associated with prolonged stays on death row), the chapter describes how countries have refused to extradite individuals without assurances that the death penalty will not be sought. The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment contains a "lawful sanctions" carve-out to the definition of torture, but case law makes clear that lawful sanctions cannot themselves amount to torture. The chapter argues death sentences inflict severe pain and suffering amounting to torture.
The Conclusion summarizes the book's major themes and arguments, concluding that the death penalty has the immutable characteristics and indicia of torture. The Conclusion asserts that capital punishment violates fundamental human rights, including the right to be free from torture. Non-lethal corporal punishments and mock executions have already been prohibited by law, and the Conclusion asserts that capital punishment should be barred by an existing jus cogens norm--the peremptory norm of international law absolutely prohibiting torture--to stigmatize the practice of capital punishment as a torturous one that has no place in the twenty-first century or in law.
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