Torture not Treatment - Disability Rights International

TORTURE NOT TREATMENT
The main legal difference relates to whether pain is inflicted for a purpose listed in article
1(1). 130 This prong of the definition is described in section 4 below. For many years,
international authorities have failed to examine whether practices by medical authorities were
perpetrating torture simply because the stated purpose of the act was for the purpose of
―treatment.‖ With the adoption of the new UN Convention on the Rights of Persons with
Disabilities (UN CRPD) and the Report of UN Special Rapporteur on Disability and Torture, it is
now possible to examine medical practices more closely to determine whether they meet the
standard of ill-treatment or torture.
The following four elements are required by the UN Convention against Torture to determine
that an act is torture. Only the first and last elements are needed to show that a practice
constitutes ill-treatment.
Pain is severe
The prohibition against torture under international human rights law applies only to pain and
suffering that is ―severe.‖ Such pain can be physical or mental. In analyzing whether a practice
of inflicting pain rises to the level of severity that would constitute torture, human rights bodies
will consider all ―the circumstances of the case, including the existence of a disability.‖ 131 The
subjective experience of the victim is critical to understanding what pain might cause the
emotional terror and physical suffering that rise to the level of torture. The powerlessness and
vulnerability of children or adolescents with mental disabilities, held in detention, and subject to
treatment against their will are all factors that contribute to suffering. As UN Special Rapporteur
on Torture, Manfred Nowak, has explained:
All purposes listed in Article 1 CAT (Convention against Torture)…refer to a situation
where the victim of torture is a detainee or a person “at least under the factual power or
control of the person inflicting the pain or suffering,” and where the perpetrator uses this
unequal and powerful situation to achieve a certain effect, such as extraction of
information, intimidation, or punishment. 132
In the law enforcement context, the UN Committee Against Torture (CAT) has taken a strong
stand against ―the use of electric shock devices to restrain persons in custody‖ and
―recommended that they be eliminated as inevitably leading to breaches‖ of the Convention. 133
The UN Special Rapporteur has taken a similarly strong stand against ―the prolonged use of
restraints, which may amount to torture or ill-treatment.” 134 The isolation of the individual and
prohibition of human contact are also factors that have been found to cause ―persistent and
unjustified suffering which amounts to torture.‖ 135
The UN Special Rapporteur has recommended that any use of electric shock be prohibited ―to
restrain persons in custody‖ as such practices may ―inevitably‖ devolve into ill-treatment along
with other practices, even if a low level electric shock does not violate the UN Convention
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