The Absolute Human Right Not to Be Tortured Essay

Introduction

The case against the prohibition of absoluteness contrary to torment and associated types of cruelty in universal law queries the ethical and legal conventions that form the foundation of the event of terrorism. The case highlights that lawfully unreserved lawful exclusions do not essentially result in complete rights. The fact that acts of torture inflict terrible suffering is beyond question. However, the two core challenges attributed to the legal and ethical assumptions that underpin terrorism cases rely on one, alternatives and duration of torture and two, whether torture is the worst possible suffering inflicted. Even with the law in place and the ethical and legal aspects in place to question the applicability of torture, terrorism has a direct and clear impact on human rights. The consequences attached to the acts are devastating in how victims live, their liberty, and their physical integrity.

A useful starting point when questioning the legality and morality of the use of torture in punishing extremist acts is the definition of radicalism. According to Lord Carlile, terrorism “associates with ferocity use for dogmatic ends, and consist of any violent use with the intention instigating fear in the community or any segment of it”. Based on the amended Terrorism Act 2000, terrorism is a “threat or use of action where the acts influence an administration or a universal legislative organization or to frighten the community or a segment of it”⁴. Further, due to the threat or use, serious risks are created that impact public safety and health, damage properties, and interfere with or disrupt an electronic system. Based on Javaid, the cause issue with the conventional comprehension of the proscriptions associated with torture, inhuman, punishing, and undignified treatments in the transnational decree on the rights of men lie in the inability to sufficiently acknowledge the following. First, close to all recognized inventions are in unqualified prohibitions type and fail to comprehend any prompt civil liberties at all.

Various articles on the prohibitions of vigor or threat have been recognized to form the cornerstone of the United Nations Charter. In the Universal Declaration of Human Rights (UDHR), Article 5 says that “none is to be subject to torment or to harsh, insensitive or demeaning conduct or penalty”. In the International Covenant on Civil and Political Rights (ICCPR), Article 7 allows for “None is to be focused on torment or to harsh, insensitive or demeaning conduct or penalty. Specifically, none is to be the focus in the absence of his permitted accord to remedial or systematic testing”. Further, in Article 3, ECHR shows, “none is to be subject of torment or to harsh, insensitive or demeaning conduct or penalty”. However, the two suggested alterations to Article 3 that would have explained the range of prohibitions of torture in fundamentally diverse ways were declined.

The two reasons associated with the decline of the proposals made to Article 3 were one, the suggestion would fail to apply with the arising of a need to protect the security of limb and life. The other reason was the inclusion of words that “the proscription must be unlimited and that torment cannot be acceptable for any purpose at all for the safety or even saving State’s life”. Further, from the inclusion, it had been suggested that it is better for the community to succumb than for torment to remain. Based on Article 2(2), the UN Convention against torture and Other Cruel, Inhuman or degrading Treatment Punishment, “no special situations at all, whether a war threat or state, public emergency or internal political instability, may be employed to justify torture”.

The Legality Principle and Definition of Terrorism

The current universal lawful framework that deals with counter-terrorism sets out obligation relating to terrorism but fail to provide a complete definition of term. While the global community calls out for the need to combat terrorism, in the absence of a definitive term, leaves acts of terrorism in the hands of different states. That means the way terrorism is defined in various countries may carry with it the unintended human rights abuse as the different parties employ ways to punish actors of terrorism. One example the differences manifest when punishing acts of terrorism associates with the respect for the legality principle, as enshrined in Article 15 of ICCPR. Even during communal emergencies, the framework of the article has been found to be non-derogable.

The implication, on the criminal ability, is that it is limited to precisely and clearly providing the respect for the principle of certainty of the law. With this uncertainty, it becomes challenging to ensure interpretations are unduly broaden respect to the proscribed conduct scope. The extent of the broad or vague definition of the term has been used by various governments as a way of covering peaceful acts towards safeguarding inter alia human, labor, or minority rights, or to limit any form of political opposition.

Regardless of the explanation of the term, all governments have the mandate of fully cooperating to combat radicalism. While doing this, Lanovov shows that governments must punish and prevent criminal acts containing the following three characteristics regardless of whether the acts are politically, ideologically, philosophically, religiously, racially, or of other similar nature. One, the acts committed include against civilians with the aim of causing serious bodily injuries, deaths or even taking hostages. Two, committed with the intention of provoking a state of terror in an assembly of people or in public, threatening the people, or coerce an international organization or government to abstain from doing anything. Three, the acts constitute offenses in the range of and as demarcated by the universal protocols and conventions that relate to terrorism.

The Existing Lawful Status of Heightened Torture Practices

In the U.S., the national decree, 18 U.S.C. §§ 2340A, agony acts are rendered illegal or any acts of a scheme that results in anguish by any U.S. individual or national in the country. Based on the decree, suffering is where an individual acts under the law color precisely planned to impose severe mental or physical suffering or pain. The particulars entailed in severe mental suffering or pain constitutes severe physical suffering or pain infliction and other processes calculated to disrupt deeply the sense of personality. The details in the definition apply both in the U.S. and to the nationals acting overseas. In the case Boumediene v. Bush, the decision by the court of law governed that in the 2006 Military Commissions Act, prisoners were subject to receive the right to habeas corpus. The differences in the definition of the term terrorism are applied in various contexts and manifests in the decision by the court. The ruling for the prisoners was applicable to the people detained by the U.S. Military; however, it failed to address the secret individual imprisonment was held by intellectual bodies.

In 2009, the Obama administration made a requirement where every administration entity had to bring all and upcoming programs to be aligned with the universal treaties and laws. Based on the requirements, the programs would prevent and define how torture is used. From the order, the then administration rescinded every opinion by the Bush administration of the use of torture in punishing criminals. The 2005 legislation limited the use of interrogation practices on U.S. martial to those found within the Manual of Army Field. The outcome of ruling out the use of enhanced military-led interrogations meant the government would prevent future CIA-led enhanced interrogation programs.

Internationally, the United Nations Convention against Torture (UNCAT), outlines torment as every act that results in extreme suffering or pain regardless whether it is mental or physical, and is purposefully imposed on an individual. The acts must however be proposed to obtain an individual’s or third party’s confession or information. Nonetheless, there is a difficulty in how the international norms and laws are enforced since the Court of International Criminals (ICC) fails in its capacity to detain, upon investigating, the people charged with specific offenses. According to the Rome Statute, only under war misconducts, massacre, wrongdoings against mankind, and aggression crimes do the ICC have dominion but not on terrorism. Further, there are no statutes that limit the ICC for the mentioned crimes. The challenge associated with initiating investigations on terror crimes is the condition that permits the ICC to prosecute and investigate only when the nation is unwilling or unable to do it on its own. The proof burden, which would be otherwise insignificant, would demonstrate the inability or unwillingness by the U.S. domestic court to prosecute persons.

Article 3 of the Fourth Geneva Convention allows for more fortifications against torment, specifically in times of struggle. The article asserts that individuals in fortified struggle but no longer take part or not actively involved in aggressions are forbidden from being exposed to acts of terrorism. The acts constitute, “violence to person and life, specific to murder of every kind, torture, mutilation, and cruel treatment”. Based on such an understanding, the U.S. Supreme Court in 2006 ruled in the Hamdan v. Rumsfeld by showing the common context of the article must be executed to the accused of dread in the U.S. detention. However, as already established, the international norms and laws encounter difficulty to implement and based on this, their application, acceptance, and enforcement remains a challenge by many countries.

While prohibitions against torture contain language preventing legal loop holes creation towards circumventing the essence of the extremis decree, international law body keep relying on the charitable amenability to the international norms. In the U.S., there should be limited debate regarding the use of torture as jus cogens. While there are sufficient sources that guarantee torture as illegal, under the U.S. domestic law, there is still need for executive command to realize the execution of the international standards and laws. The state has and continues to sanction the use of harsh interrogation practices. Due to this, individual members subjected to interrogation practices are under constant risks of apparatuses and administration. The universal jurisdiction principle might allow specific nations to charge American officials associated with harsh interrogation practices with domestic and international law in their own courts. Any American official is subject to domestic war crime(s) against people in absentia and arrested on those charges if they journey to any state. Based on the concerns, the American policy makers have been in the past accused of allegedly curtailing international travel to avoid being arrested.

Torture and Human Rights

Involvement in torture practices for punishment; before, during, and after, puts medical practitioners in morally compromised positions. That is the case regardless of whether their involvement was from a military, civil, or judicial perspective. If medical professionals are nowhere close or present during torture, then torture victims become exposed to risks in several ways. However, Timothy and Peter argue that in their presence, protecting criminals against torture results in injurious outcomes since there are higher instances of ethical advisories afoul. For a professional angle, a physician responsible in treating or resuscitating victims of torture is subject to questioning on morality and legality if the victims are tortured in the future.

Some health professionals have been involved in treating victims of torture and sometimes have gone the extra mile to do the heroic acts to save the lives of the victims. In other times, the physicians themselves have been subject to retaliation by being involved in the treatments. While some have been maliciously involved, others have both committed and witnessed various acts that results in injuring the bodies of the criminals with the intention of gaining information. Others’ involvement has been aimed at eliciting collaboration or conformity, safeguarding themselves from retaliation, among others. The other way medical practitioners have been involved in the interrogation process, resulting in harming the criminals, has been providing counsel on the fitness of the victims. In such instances, victims have been subjected to more torture due to the information used by interrogators. Physicians have also played a role in the falsification of documents, in person or trained others to do the same.

Since 1975, the World Medical Association (WMA) adopted the Tokyo Statement and with that, prohibited physicians from participating in torture practices. Based on the declaration, “The health professional must not participate, condone, or countenance in torture practices or associated types of inhuman, cruel, or degrading practices. That includes every other form of offense that the victim might be subjected to. Such processes result in the health professional being guilty, accused, or suspect when the victim’s motives or beliefs, and every institution inclusive of civil strife and armed conflict. The practitioner has no mandate providing any instrument, premise, knowledge, or substance towards facilitating torture practice or other associated forms of inhuman, degradation, or cruel treatment. Similarly, doctors do not have to diminish the victim’s ability to resist such treatments. Moreover, the professional must not be present during any process where torture or associated practices are threatened or used”. Further, in two more instances, WMA has denounced torture and associated practices and adopted formal positions on doctor’s physical participation in torture.

In a specific denunciation, the WMA in 1997 said that health professionals are guaranteed by health integrity to labor for patients’ wellbeing. The association’s denunciation of such practices meant “physician’s involvement in war crimes, torture, and humanity crimes is different to rights of men, universal law, and medical ethics, and any practitioner engaged in such crimes is unfit for the medicine practice”. In 1999, physicians have the responsibility of opposing and not participating in torture and associated practices for no motive. Contribution in such practices entails but not restricted to “suppression of any provision, information to enable torture practices, and substances. Further, medics must never be present when torture is used for any purpose whatsoever”. Moreover, the AMA Code of Medical Ethics shows that, “practitioners might treat detainees or prisoners only if that aligns with the patient’s interest. However, physicians have no obligation to treat people to confirm their well-being for the torment to start”.

Medical Ethics Advocates Opposition, not Approved

Various health institutions out rightly condemn the use of torture practices; nonetheless, they do not provide any specific measures where the practices can be monitored or enforced. The only exception for practicing professionals, when found guilty, is to be expelled from being a doctor. Expulsion in itself may have little impact on the health professionals since membership to the group is usually voluntary. The recommendation by the WMA is that health institutions must ensure practitioners joining their nations reply to every torture allegation question before licensing to practice takes place. The other recommendation by the association that helps question the legality and morality of the practice is reporting any torture involvement evidence to the right authorities.

However, it remains unclear whether health professionals answer the required answers on the issue of torture. One recommendation by George Annas has been the formation of a universal bioethics court, having prosecution authorities, where physical misconduct events are handled, comprising torture. Even in the absence of strong legal mechanisms in dealing with torture, its potential is great. Some practitioners have been known to work to counteract and identify the practices associated with torture. The significance of the practices lie in the ability to deter and identify what torture is and though this, the commitment to fight the act is defined. The investigative calls by the likes of Steven H. Miles on the need to end torture by medical practitioners towards protecting human rights are justified. When the acts are ended, inclusive of prisoner’s death record falsification, then it becomes possible to define the procedural safety against beaching ethics and law. Only then will the evils associated with torture be countered and people will not have to worry about the acts regardless the professional organization involved.

Conclusion

It has been shown that acts of torture inflict terrible suffering and that is beyond any question. Based on that, the case against prohibition absoluteness contrary to torment and associated types of abuse becomes clear. In the universal decree the ethical and legal assumptions that form the foundation of torture practices against terrorism for punishment; before, during, and after, puts organizations at morally compromised positions. Only then will the evils associated with torture be countered and people will not have to worry about the acts regardless the professional organization involved.

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