Torture and progress, past and promised: problematising torture's evolving interpretation

Abstract

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.

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“…Everyone should be treated with respect, given justice, allowed freedom, and not discriminated against. The establishment of a universal and globally safeguarded norm that all states can adhere to and that all nations desire to be compliant with is one of the notable achievements of the UN (Cakal, 2023).…”

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