Towards an 'absolute' prohibition on torture: Jessica Sutton discusses new challenges for international humanitarian law in a changing world.

AuthorSutton, Jessica

Despite a seemingly straightforward absolute prohibition on torture as expressed in the relevant international instruments, a concerning shift towards a form of situational permissiveness with regards to wartime torture is clearly discernible. As supported by a recent survey from the International Committee of the Red Cross, perspectives are moving in a worrying direction, where a significant percentage of individuals are accepting torture as an unavoidable part of civil and international conflicts. In this article I will discuss the means by which the relevant provisions prohibiting torture in their current state may be circumvented by states, and will present arguments for strengthening and further developing these provisions. The benefits of current societal conditions and youth engagement as an impetus for development of the relevant international instruments will be emphasised.

The Geneva Conventions remain one of the most respected and widely ratified instruments in international humanitarian law. Nevertheless, obligations imposed by the Geneva body of law are vulnerable to the essential caveat of international law, namely the lack of a uniform method of enforcement to ensure compliance. I will focus on one such obligation, the prohibition of torture and inhumane treatment. A third of those surveyed in 2016 by the International Committee of the Red Cross consider torture a part of war', and 36 per cent agree that an enemy combatant may be tortured. (1) These changing perspectives on torture may signal a worrying slide into a form of situational permissiveness in light of pressing concerns developed since the Geneva Convention period, such as the investigation and prevention of acts of terrorism.

The spirit and integrity of the common Article 3 to the Geneva Conventions is being subsumed by the desire of nation states to ensure security both within and beyond their borders. This circumvention has been at issue in such conflicts as the Algerian War of Independence 1954, but is also prevalent in social consciousness today because of the quest for security during the War on Terror. These high-profile contraventions of the prohibition may, however, have a small, unforeseen benefit; they are leading to greater awareness among individuals as to the actions of states that conflict with international obligations. The didactic results of such conflicts ought to be used as impetus to ensure that the current law is respected in its strict form...

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