Australian Lefty on Politics, Governance, Science and Info Management

Fundamental Rights: EU: Article 4: Prohibition of Torture

Posted by Dave Bath on 2007-07-06

This is the fourth in a series of posts that will explore issues from the Charter of Fundamental Rights in the draft EU constitution (see official PDF or my reworking into HTML).

The first chapter of the charter concerns dignity.

Article 4: Prohibition of torture and inhuman or degrading treatment or punishment

  • No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

This, apart from removing the redundant word "cruel", is the same as Article 5 of the United Nations 1948 Universal Declaration of Human Rights (to which both Australia and the USA are signatories) :

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment."

The Achilles Heel of this worthy article is that the definitions of torture and inhuman treatment are twisted and watered down by individuals and administrations in the mistaken belief that it will further their ends.

Even the ancient Romans knew that evidence from torture was unreliable, and even though permitted on slaves, this practice was frowned upon, and the evidence from the tortured was generally discounted by juries and magistrates unless used as a pretext to earn the favor of tyrants such as Caligula.

Another point that allows for ambiguity (as well as evolution or devolution of definition by courts) is the term "degrading", and warrants a separate article to avoid weakening an article on torture.

I’d do this because there are many actions that, if I personally was forced to participate in them, I would consider extremely degrading, but some people actually enjoy them.  Many such acts are derived from Greek and end in -ophilia, and I’ll give just one possible example that doesn’t: coprophagy.  If a person is (or all parties are) adult, willing, and an act does not involve death or serious injury, why should it be prohibited?

Back to frank torture.  I would note that there are possibly physiological definitions of torture based on changes to chemistry both in the blood and the brain from the normal state of individuals (as base levels vary).  These would include the release of "stress hormones", and activation of certain brain pathways.  This opens the way for a practical scientific definition of torture, e.g. "it is equivalent to torture if x increases by p% in the short term, or y increased by q%", and this could be correlated with certain actions, or indeed, security agencies seeking to inflict duress could be required to create an "audit trail" to demonstrate that the individual was not stressed beyond a certain limit.

Of course, the ethical difficulties of gathering such data are significant, but it may possible to extrapolate from test subjects approaching levels the subject considers similar to torture, or from measurements of those subjected to pain through injury that was not caused intentionally (e.g. motor vehicle accidents).  Such research and data collection would have beneficial and humanitarian spinoffs that improve pain management in normal medical treatment.

Does anybody know of any candidate metrics like these, or indeed any studies?

Although somewhat facetious, an earlier post in this blog suggested a functional test, seeing if the legislators and high court would subject themselves and their own relatives to treatment proposed as not amounting to torture or degrading treatment.

As stated in the first post in this series, I welcome debate with each post as to whether or not the associated article in the draft EU Charter is worthwhile and should be included in an Australian Charter of Fundamental Rights, but would be very interested to get a comment if you think the article should not be considered a fundamental right.

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