Can the definition of torture in CAT extend to include Rape or Domestic Violence?

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Ref No: 1976

1. Draft title: Prevention of CAT for rape and domestic violence

 

2. Aims of the Dissertation: To differentiate between torture, family abuse and use of rape as weapon of war

 

3. Bullet points:
4. What is torture
5. Whether CAT has jurisdiction to control torture at state level.

• Whether any international statue can affect the affairs at the domestic level.

1. Whether any international law can punish any offender at the state or home level

 

4. Dissertatation’s position Outline of previous debates

Can the definition of torture in CAT extend to include Rape or Domestic Violence? Rape or Domestic Violence:The torture has been defined by different schools of thought. Few scholars had argued that there exists requirement of the ethical and moral arguments against torture. This was an opinion by Yasmin Alibhai-Brown in an article published on 23^rd May 2005 in The Independent.

Mr. Alan Dershowitz , the law professor of Harward had argued that incase of any extreme situation to prevent any tragedy the courts United States must issue the torture warrants and the culprits be brought to prosecution for creation an example[1]. According to him though it would be against the Geneva Convention and other international treaties but It will give strength to public security and will be helpful in both persuasive and contemptible positions.

At Deakin University at Victoria in Australia, an Australian based Croation born lawyer and author, Professor Mirco Bagaric, who is also Dean of law school of Deakin University and Julie Clark, a law lecturer of Dieken University, had published a paper in the Law Review of the University of San Francisco where they have argued that when many persons are in danger then “all forms of harm” can be inflicted on the body of the suspect, even it is resulted to death.

Rape or Domestic Violence .The main reason behind this proposal for such legal enactment against torture is that the society should accept it as legal to kill of one person for saving the thousands. Professor Bagaric has added that though it is repugnant in the eye of law to inflict harm on the body of an innocent person, but in the extreme cases where it is confirmed that harm on the body of a person could prevent the danger to many lives to lost and there is no other way to confirm the security, then the action must be taken.

He further adds that to get information about any anti state or anti social activities if some sort of torture is used, then it must be legalized, though the person tortured is not involved directly for creating any threat of danger but it is not meant that such person could wash his hands from criminal liability.

The Israel’s Government legal advisor and a supporter of legal torture Mr. Sharon has observed that Bagaric himself was not the author of the ideas written by him but he has only re-introduced the thesis of M. Dershowitz. [2] It is further observed that Bararic had written various articles where more sentences were recommended for men as compared to women for the same crime. This creates a question mark on the ability of author as dealing impartially with regard to torture and crime which may be committed mainly against men[3].

Rape or Domestic Violence.In September 2002, in a review on the book of Alan Dershowtz, in Time square  “ Why Terrorism Works; Understanding the Threat, Responding to challenge” A Judge of Appeal Court of Seventh Circuit of United States America[4], Richrd Posner has written that the torture is meant to get necessary information for prevention of detonation of atomic bomb, torture must be used and would be used for obtaining such information and no one should have doubt that it is a case of security and responsibility[5].

On 20^th December 2005 Albert Mohler, the president of Southern Baptist Theological Seminary while addressing the problem that as to whether torture may be used by American  armed forces for obtaining the important information from suspects of terrorism[6].

Though he was speaking against creation of any legal conditions but he stated that under hard circumstances some morally sensitive person must allow the investigating personals to use sleep deprivation, removal of creature comforts and psychological intimidation to get the vital information In more serious and hard cases the investigators be allowed to use manipulative psychological technique as well as pharmaceuticals. In more extreme and conceived cases the investigators be allowed to use further serious mechanism of coercion though it would amount to torture[7]