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Pain as the Essence of Torture: Exploring the Characteristics and Requirements of the Element of “Pain or Suffering” in the Crime Against Humanity of Torture

In: International Criminal Law Review
Author:
Simone Antonio Luciano Research Centre on Law and Society, novaSchool of Law, NOVA University, Campus de Campolide 18, 1099-032 Lisbon, Portugal

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Abstract

Pain is the very essence of torture. This article explores the element of “pain or suffering” in the crime against humanity of torture and contributes to the existing literature by identifying the characteristics and requirements of such element within international criminal law. In particular, it examines, discusses and compares the case law of the International Criminal Tribunals in order to determine the specific characteristics that pain must possess for the mistreatment to qualify as torture as well as the required level of severity of pain and the subjective and objective criteria used for the assessment of such severity. At the same time, it also explores the case law of the echr on torture and compares the approach of this Court towards this crime with the approach of the International Criminal Tribunals to determine the extent of the echr’s contribution to the definition of torture in international criminal law.

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