Part I Prohibition of torture: The legal background interpreted16 to mean that privately inflicted harm against women, children or groups may be covered under the definition if severe pain or suffering is caused and if the State fails to act with due diligence to prevent or protect individuals, since it would be committed for a discriminatory purpose. Lawful sanctions The definition of torture provided in the Convention explicitly excludes “pain or suffering arising only from, inherent or incidental to lawful sanctions.” The lawfulness of the sanction should be determined by reference to both national and international standards, including the United Nations Standard Minimum Rules for the Treatment of Detainees (which was specifically referred to in the 1975 United Nations Declaration on the Protection of All Persons from Being Subjected to Torture). This approach recognizes both the absolute nature of the prohibition of torture and the need for consistency in its application. The issue of corporal punishment has been raised by some States under the so-called “lawful sanctions” clause. However, this clause cannot be used to justify the use of corporal punishments under domestic law. It has been firmly established that corporal punishments are prohibited under international law, in general, and the Convention against Torture in particular. 2. Absolute prohibition of torture Some human rights can be restricted under certain circumstances (for example, for the protection of public order) if the restriction is provided for by law, is for a public interest, is necessary to protect the rights of others or the community, and is proportionate. The circumstances under which these restrictions may apply are specifically and exhaustively listed in various human rights treaties. Some treaties also provide a special ability to derogate from certain human rights during an officially declared public emergency. Derogate means to pass laws or take actions that would ordinarily violate those rights. Torture, however, is absolutely prohibited and can never be justified under any circumstances whatsoever. Relevant international treaties unanimously exclude the freedom from torture and ill-treatment from derogation and restriction clauses. Customary international law, which applies to all States, including those that have not ratified relevant human rights or international humanitarian law treaties, considers the prohibition of torture to be a peremptory norm, or jus cogens. This means that no exception or derogation to the prohibition is permitted in any circumstance, even a state of war, the threat of war, internal political instability or public emergency. Necessity, self-defence and other defences are not accepted in any case of torture, no matter how extreme or grave the circumstances. In addition to the legal arguments, there are also solid moral and ethical grounds for rejecting any act of torture. Defusing attempts to justify torture The absolute prohibition of torture is sometimes questioned by people on the grounds of security or counter-terrorism, often using a hypothetical “ticking bomb” scenario. This scenario involves the police capturing a terrorist whom they suspect has placed a bomb that is about to explode in the middle of a large city. The police believe that only torture will make the suspect disclose the information needed to prevent the deaths of thousands of people. The question is posed: “May the person be tortured?” This hypothetical situation operates by manipulating the emotional reactions of the audience and assumes that: 16 See Committee against Torture’s general comment No. 2 (para.18). Chapter 1: What is torture? | 13