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TOWARDS RECONSTRUCTING THE MEANING OF INHUMAN 

TREATMENT OR PUNISHMENT: 

A HUMAN CAPABILITY APPROACH 

SONIA BOULOS1 
 
 
Abstract: The prohibition on “inhuman treatment” constitutes one of the central tenets of modern international 
human rights law. However, in the absence of any legislative definition of the term "inhuman", its interpretation 
becomes challenging.  The aim of this article is to critically analyze the interpretation of the term “inhuman” in 
international human rights law and to suggest a new approach to defining it. The first part of the article 
highlights the failure of supra-national institutions to provide an independent definition for the term “inhuman”, 
while mistakenly equating it to other forms of ill-treatment. The second part of the article introduces 
philosophical concepts necessary for reconstructing the conceptual independence of the term inhuman. It 
primarily focuses on “the capability approach” and the notion of “human functioning”, as developed by Martha 
Nussbaum.   
 
Keywords: inhuman treatment, capabilities approach, human functioning. 
 
Summary: I. INTRODUCTION; II. INHUMAN TREATMENT IN THE JURISPRUDENCE OF SUPRA-NATIONAL 
INSTITUTIONS; III. TOWARDS UNFOLDING THE MEANING OF INHUMAN TREATMENT; IV. CONCLUSION. 
 

I. INTRODUCTION 
 
The prohibition on “inhuman” treatment is a central tenet of international human 

rights law.  Article 5 of the Universal Declaration of Human Rights (UDHR) states “[n]o one 
shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”2  
Article 7 of the International Covenant on Civil and Political Rights (ICCPR) restates the 
same language.3 Article 16.1 of the Convention against Torture and other Cruel, Inhuman or 
Degrading Treatment or Punishment (CAT) states, “[e]ach State Party shall undertake to 
prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading 
treatment or punishment.”4 On the regional level, the prohibition is found in Article 3 of the 

                     
1
 Lecturer, Department of International Relations and Law, Universidad Antonio de Nebrija, Spain 

(sboulos@nebrija.es). 
2 G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948). 
3
 International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Exec. Doc. No. 95-209, 999 U.N.T.S. 

171.  
4
 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 

S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. 



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European Convention on Human Rights (ECHR),5 Article 5.2 of the American Convention 
on Human Rights (American Convention),6 and Article 5 of the African Charter on Human 
and Peoples’ Rights (African charter).7 

 
 The prohibition on inhuman treatment also constitutes a central tenet of international 

criminal law.  Inhuman treatment of civilians,8 prisoners of war,9 or of the wounded and the 
sick10 constitutes a war crime and a grave breach of the Geneva Conventions (GCs). 

 
However, in the absence of any legislative definition of term ‘inhuman’, its 

interpretation becomes challenging.  As Jeremy Waldron puts it, “[e]ven with the best will 
in the world it is not easy to figure out what these provisions forbid.”11 The aim of this article 
is twofold: First, the article criticizes the interpretation of the term “inhuman” by 
international human rights institutions; second, it introduces the “capability approach” as a 
conceptual framework to reconstruct its meaning. 

  
The first part of the article highlights the reluctance of the supra-national human rights 

institutions to articulate an independent definition of the term “inhuman” and its other kin 
terms, i.e. “cruel” and “degrading”. Very often, these three prohibitions are treated as a 
singular prohibition referred to as “CIDT” with the purpose of distinguishing the latter from 
torture. This approach erroneously assumes that understanding “CIDT” requires a prior 
understanding of torture. In other words, this approach fails to recognize that each of these 
three prohibitions represents a distinct moral standard. Blurring the conceptual differences 
between the terms cruel, inhuman and degrading treatment has resulted in their gradual 
supplementation with long lists of purely descriptive rules announced by supra-national 
institutions, usually without sufficient legal reasoning.  

 
 While blurring the conceptual differences between the terms “cruel,” “inhuman,” and 

“degrading” has negative consequences for all three, the term “inhuman” remains the most 
                     
5 Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1956, E.T.S. No. 
5. 
6
 American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123.  

7
 Banjul Charter on Human and Peoples Rights, adopted June 27, 1981, 21 I.L.M. 58 (entered into force Oct. 

21, 1986). 
8
 See Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 147, Aug. 12, 1947, 

T.I.A.S. No. 3365, 75 U.N.T.S. 287. 
9
 See Geneva Convention Relative to the Treatment of Prisoners of War art. 130, Aug. 12, 1949, T.I.A.S. No. 

3364, 75 U.N.T.S. 135; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in 
Armed Forces in the Field art. 50, Aug. 12, 1949, T.I.A.S. No. 3363, 75 U.N.T.S. 31. 
10

 See Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members 
of Armed Forces at Sea art. 51, Aug. 12, 1949, T.I.A.S. No. 3362, 75 U.N.T.S. 85. 
11

 Waldron, J., 2010. Torture, terror, and trade-offs: Philosophy for the White House. Oxford University Press, 
p. 279. 



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impoverished. The term “cruel” can easily be linked to the clause on “cruel and unusual 
punishment,” which appears in several constitutions that inherited it from The English Bill 
of Rights of 1689.12 This clause has been interpreted as prohibiting either excessive 
punishments or “barbarous” punishments.13 As for the term “degrading”, it seems to reflect 
a dignatarian ideal. According to the European Court of Human Rights (ECtHR) degrading 
treatment is one that “humiliates or debases an individual, showing a lack of respect for, or 
diminishing, his or her human dignity.”14 But when we turn to the term “inhuman,” we are 
clueless on where to start our inquiry.   

 
 Following the Vienna Convention on the Law of Treaties (Vienna Convention)15, the 

second part of the article starts by unfolding the word-meaning of the term “inhuman” as a 
first step towards reconstructing its meaning. Regaining the conceptual independence of the 
term “inhuman” requires more than reflecting on its ordinary meaning, certain philosophical 
inquiries that link it the notion of “human” are in order.  Therefore, the second part of the 
article introduces “the capability approach” and the notion of “human functioning” as key 
concepts for understanding and defining the term inhuman. The work of Martha Nussbaum 
is central for achieving this goal. 

 
II. INHUMAN TREATMENT IN THE JURISPRUDENCE OF SUPRA-NATIONAL 

INSTITUTIONS  
  
While CAT prohibits torture and what is commonly referred to as CIDT, it only 

defines the former.16 CAT’s definition of torture has been used as a reference point in 
sketching the differences between torture and other forms of ill-treatment. According to what 
could be called as the “distinguishing approach,” the terms cruel, inhuman and degrading 
should not treated as conceptually independent prohibitions, instead they are defined in 

                     
12 See for example, U.S. Const. amend. VIII, which borrows the language of the English Bill of Rights almost 
word by word. Congressional Research Service Annotated Constitution: Eight Amendment, Legal Info. Inst., 
https://www.law.cornell.edu/anncon/html/amdt8_user.html (last visited April 10, 2019). Article 2(b) of the 
Canadian Bill of Rights of 1960 stipulates: “[N]o law of Canada shall be construed or applied so as to . . .  
impose or authorize the imposition of cruel and unusual treatment or punishment.” Canadian Bill of Rights, 
S.C. 1969, c 44, art. 2(b) (Can).  
13

 For a comprehensive analysis of the history of the clause “cruel and unusual punishments,” see Granucci, 
A.F., 1969. Nor cruel and unusual punishments inflicted: The original meaning. Calif. L. Rev., 57, p.839. 
14

 Pretty v. United Kingdom, App. No. 2346/02 Eur. Ct. H.R. (Apr. 29, 2002) para.  52, HUDOC (Apr. 29, 
2002); see also Yankov v. Bulgaria, App. No. 39084/97 Eur. Ct. H.R. (Dec. 11, 2003), para.  114; Kalashnikov 
v. Russia, App. No. 47095/99 Eur. Ct. H.R. (July 15, 2002), para.  101; Peers v. Greece, App. No. 28524/95 
Eur. Ct. H.R. (Apr. 19, 2001) para.  75. In the aforementioned cases, the court stated that treatment “diminished 
the applicant’s human dignity.”  
15

 Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331.   
16

 Torture Convention, supra note 3, art. 1.  

https://www.law.cornell.edu/anncon/html/amdt8_user.html


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relation to torture. The “distinguishing approach” is reflected in the formulation of Article 
16 of the Torture Convention: 

 
Each State Party shall undertake to prevent in any territory under its 
jurisdiction other acts of cruel, inhuman or degrading treatment or punishment 
which do not amount to torture as defined in article 1, when such acts are 
committed by or at the instigation of or with the consent or acquiescence of a 
public official or other person acting in an official capacity (emphasis 
added).17 
  
According to this view, any attempt to understand CIDT requires a prior 

understanding of torture. The terms cruel, inhuman and degrading are treated as ancillary to 
the torture prohibition —“a fence around that wall”—, designed, as Jeremy Waldron puts it, 
to keep States “not just from crossing the torture threshold, but to keep them from even 
approaching it”.18 For example, according to the Committee Against Torture, “the 
definitional threshold between ill-treatment and torture is often not clear. Experience 
demonstrates that the conditions that give rise to ill-treatment could lead to torture, therefore 
the measures required to prevent torture must be applied to prevent ill-treatment.”19 

 
A. Distinguishing Torture from CIDT 

 
To understand how the distinguishing approach works, we need to turn to the 

definition of torture in Article 1 of CAT: 
 
Torture means any act by which severe pain or suffering, whether physical or 
mental, is intentionally inflicted on a person for such purposes as obtaining 
from him or a third person information or a confession, punishing him for an 
act he or a third person has committed or is suspected of having committed, 
or intimidating or coercing him or a third person, or for any reason based on 
discrimination of any kind, when such pain or suffering is inflicted by or at 
the instigation of or with the consent or acquiescence of a public official or 
other person acting in an official capacity. It does not include pain or suffering 
arising only from, inherent in or incidental to lawful sanctions. 
 
 Article 1 definition encompasses two elements that have been used to distinguish 

torture from “CIDT.”  Those elements are: severity of pain and purpose.  

                     
17

 Id. art. 16. 
18

 Supra-note 11, at 277-78. 
19

 U.N. Comm. Against Torture (CAT), Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, General Comment 2: Implementation of Article 2 by State Parties, 3, U.N. Doc. 
(Nov. 23, 2007). 



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1. Severity of the Pain 
 
 In torture the pain must be severe. Accordingly, the severity of the pain inflicted on 

the victim is what distinguishes torture from other forms of ill-treatment.20 This approach 
was adopted by the ECtHR in the case of Ireland v. United Kingdom. In this case, the Court 
found five interrogation techniques used in 1972 by the British security forces against IRA 
suspects to be inhuman and degrading, but not torture.21 The severity test was formulated as 
follows: “Admittedly the word ‘torture’ included in Article 3 of the Convention is not capable 
of an exact and comprehensive definition. It is undoubtedly an aggravated form of inhuman 
treatment causing intense physical and/or mental suffering.”22 

 
 Based on this test, the ECtHR concluded that the interrogation techniques used by the 

British security forces were only inhuman and degrading because they did not deserve the 
“special stigma” reserved to torture.23 The severity test was also adopted by the Inter-
American Court of Human Rights (IACtHR),24 and apparently by the African Commission 
of Human and People’s Rights.25 While the ECtHR still maintains that the severity of the 
pain is the decisive criterion for distinguishing torture from other forms of ill-treatment, in 
recent cases it has incorporated “purpose” as an additional distinguishing criterion. For 
example, in Cirino and Renne v. Italy the ECtHR stated that in addition to the severity of the 
treatment, there is a purposive element to torture, as recognized in Article 1 of Torture 
Convention.

26
 

 
 
 

                     
20

 This view was incorporated in the 1975 United Nations Declaration on the Protection of All Persons from 
Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. G.A. Res. 3452 
(XXX) (Dec. 9, 1975). According to article 1(2) of the declaration, “Torture constitutes an aggravated and 
deliberate form of cruel, inhuman or degrading treatment or punishment.” Id. annex, art. 1(2). 
21

 Ireland v. United Kingdom, App. No. 5310/71 Eur. Ct. H.R., (Jan. 18, 1978) para.  246. The five techniques 
were hooding, wall standing, deprivation of food and drink, deprivation of sleep, and subjection to loud noise, 
in combination, but for less than twenty four hours. 
22

 Id. para.  168. 
23

 Id. para.  246. 
24

 See Lizardo Cabrera v. Dominican Republic, Case 10.832, Inter-Am. Comm’n H.R., Report No. 35/96, 
OEA/Ser.L/V/II.98, doc. 6 rev., 82-83 (1998).  See also Loayza-Tamayo v. Peru, Merits, para. 57 (Inter-Am. 
Ct. H.R. Sept. 17, 1997). 
25

 See Int’l Pen ex rel. Saro-Wiwa v. Nigeria, Communications 137/94, 139/94, 154/96 and 161/97, African 
Commission on Human and Peoples’ Rights [Afr. Comm’n H.P.R.] (Oct. 31, 1998). See also Huri-Laws v 
Nigeria (2000) AHRLR 273 (ACHPR 2000)(para 41). 
26Cirino and Renne v. Italy, Applications nos. 2539/13 and 4705/13, Eur. Ct. H.R  (26 October 2017). 



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2. Purpose 
 
 Article 1 of the CAT requires that there be a purpose of a certain type for ill-treatment 

to amount to torture. The Article includes the following prohibited purposes: extracting a 
confession; obtaining information from the victim or a third person; punishing the victim; 
intimidating or coercing the victim; and any other purpose of a discriminatory nature.27 
Article 1 also includes the term “for such purposes as,” indicating that the list of purposes is 
non-exhaustive. The purpose criterion was partly adopted by (now defunct) European 
Commission in 1969 in a case brought against the Greek military government.28 In 
interpreting Article 3 of the ECHR, the European Commission took the view that: “The word 
“torture” is often used to describe inhuman treatment which has a purpose, such as the 
obtaining of information or confessions, or the infliction of punishment and it is generally an 
aggravated form of inhuman treatment.”29 

 
 Manfred Nowak, the former UN Special Rapporteur on Torture, claims that a 

thorough analysis of the travaux préparatoires of CAT and its systematic interpretation by 
the Committee against Torture lead to the conclusion that the decisive criteria for 
distinguishing torture from “CIDT” is the purpose of the conduct and the powerlessness of 
the victim.30  

 
 Nowak assumes that CAT distinguishes between situations under which the 

intentional infliction of pain by State agents is absolutely prohibited and other situations in 
which it is allowed within legal limits.31 The first type of situations is exemplified in Article 
1 of CAT, which prohibits the use of force for the achievement of certain purposes (such as 
extracting confessions, intimidations, etc.). Article 1 focuses on powerless victims, i.e. 
victims who are under the direct control of the State.32 

 
 However, CAT does not prohibit in absolute terms the infliction of pain by state 

agents outside the context of Article 1. State agents are allowed to inflict pain to execute 
arrest warrants, to prevent crimes, to quiet riots, etc. In these scenarios the victim is not under 
the direct control of the State. The use of violence in such cases must meet the requirements 

                     
27 See article 1 of CAT, supra-note 3. 
28 Denmark, Norway, Sweden and Netherlands v. Greece, App. Nos. 3321/67, 3322/67, 3323/67, 3344/67, 1969 
Y.B. Eur. Conv. On H.R. 186 (Eur. Comm’n on H.R.). 
29 Id. at 186. 
30

 Manfred Nowak (Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), 
Study on the Phenomena of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in the World, 
Including an Assessment of Conditions of Detention, para. 187, UN Doc. A/HRC/13/39/Add.5 (Feb. 5, 2010). 
31

 Id. 
32

 NOWAK, M., MCARTHUR, E. AND BUCHINGER, K., 2008. THE UNITED NATIONS CONVENTION AGAINST TORTURE: 
A COMMENTARY . OXFORD: OXFORD UNIVERSITY PRESS, PP. 68-69. 



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of necessity and proportionality. If the pain resulting from the use of violence violates these 
two principles, the act could be classified as “CIDT.”33  

  
Nowak believes that the “powerlessness of the victim” explains the decision of the 

UN Committee against Torture in Hajrizi Dzemajl et. al. v. Yugoslavia.34 This case analyzed 
the legal implications of a racist pogrom against a Roma settlement causing intense fear and 
mental suffering for the victims, with the acquiescence of police officers.35 The Committee 
considered the claims of the applicants only under Article 16 of CAT and not under Article 
1 perhaps because the victims of the pogrom were not under the direct control of the State.36 

 
 The purpose criterion was adopted by the drafters of the Rome Statute of the 

International Criminal Court (ICC) as part of the elements of the crimes under the jurisdiction 
of the ICC. What distinguishes both inhuman treatment and cruel treatment from torture as a 
war crime is the purpose criterion.37  However, both criteria “severity” and “purpose” are not 
sufficient to inform us about the conceptual differences between the terms collectively 
referred to as CIDT.  

 
B. Blurring the Differences between the Terms Cruel, Inhuman and 

Degrading 
 
 In T v. UK the ECtHR attempted to sketch a definition for the term “inhuman 

treatment” as a treatment that was “premeditated”, and one that was “applied for hours at a 
stretch and caused either actual bodily injury or intense physical and mental suffering.”38 
This definition is a different articulation of the Court’s previous rulings, according to which 
the distinction between torture and inhuman treatment “derives principally from a difference 
in the intensity of the suffering inflicted.”39 T v. UK further exacerbates the ambiguity of the 
term inhuman by introducing the word “premeditated” as opposed to “intentional” or 
“deliberate” infliction of pain. In recent years the ECtHR was willing to discuss in more 
depth the term degrading treatment by elaborating on its connection to human dignity. 
However, the ECtHR did not depart from its distinguishing approach in defining inhuman 
treatment. For example, In Cirino and Renne v. Italy  the ECtHR stated that “it appears that 
it was the intention that the Convention should, by means of such a distinction, attach a 

                     
33 Id. 
34 Dzemajl v. Yugoslavia, Communication No. 161/2000, U.N. Comm. Against Torture, U.N. Doc. 
CAT/C/29/D/161/2000 (Nov. 21, 2002). 
35 Id. paras. 2.1-2.27. 
36 Id. para. 9.3. 
37

 Int’l Criminal Court [ICC], Elements of Crimes, ICC-ASP/1/3 (Sept. 9, 2002). See Art. 8(2)(a)(ii)-1; Art. 8 
(2) (a) (ii)-2; & Art. 8 (2) (c) (i)-3. 
38

 T. v. United Kingdom, App. No. 24724/94 Eur. Ct. H.R.  (Dec. 16, 1999), para. 69. 
39

 See, e.g., Ireland v. United Kingdom, supra-note 20, para.  167. 



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special stigma to deliberate inhuman treatment causing very serious and cruel suffering”.40  
In Bouyid v. Belgium the Grand Chamber of the ECtHR declared that minor bodily injuries 
that do not involve serious physical or mental suffering cannot be described as inhuman or, 
a fortiori, torture, suggesting that the conceptual difference between torture and inhuman 
treatment should be reduced to quantitative difference in the pain inflicted on the victim.

41
 

However, in Bouyid the Grand Chamber was willing to go at length in explaining the 
centrality of human dignity in understanding degrading treatment, citing almost twenty 
international and regional human right instruments that refer to the concept of human 
dignity.42 In this case the Grand Chamber had to decide whether slaps inflicted on a minor 
and an adult in police custody violate Article 3 of the ECHR. In determining the significance 
of a slap to the face, the Grand Chamber stated that  “[a] slap to the face affects the part of 
the person’s body which expresses his individuality, manifests his social identity and 
constitutes the centre of his senses …which are used for communication with others”

43 The 
Grand Chamber further stated that “where an individual is deprived of his or her liberty … 
any recourse to physical force which has not been made strictly necessary by the person’s 
conduct diminishes human dignity and is in principle an infringement of the right set forth in 
Article 3”.44 This ruling suggests that treating people as objects or as animals is degrading 
since such treatment is inconsistent with the demands of human dignity. At the same, the 
ECtHR does not attempt to identify the particular link between inhuman treatment and human 
dignity or the link between the former and any other philosophical concept.    

  
The failure to identify clear conceptual differences between the terms “cruel,” 

“inhuman” and “degrading” has resulted in approaching these prohibitions in a holistic 
fashion. Many times, supra-national institutions find a violation of the prohibition on CIDT 
without referring specifically to any of its components, or they find an ill-treatment to be 
“cruel and inhuman” or “cruel and degrading”. For example, in Linton v. Jamaica, the UN 
Human Rights Committee (HRC) concluded that “the mock execution set up by prison 
warders and the denial of adequate medical care after the injuries sustained in the aborted 
escape attempt. . . constitute cruel and inhuman treatment within the meaning of article 7” 
without making any distinctions between the terms.45  

 
 In Güler and Öngel v Turkey, the applicants participated in a demonstration in 

Istanbul against the NATO summit in the city. Many police officers were deployed to police 
the demonstration. After a statement was read out, the demonstrators started to disperse. 
                     
40Cirino and Renne v. Italy, Applications nos. 2539/13 and 4705/13, Eur. Ct. H.R.  (26 October 2017), para 74. 
41 Bouyid v Belgium (Application no 23380/09), Eur. Ct. H.R.   (28 September 2015) [Grand Chamber].

 

42 Id. 
43

 Id, para 104. 
44

 Id, para. 100.  
45

 Linton v. Jamaica, Communication No. 255/1987, CCPR/C/46/D/255/1987 (Oct. 22, 1992), reprinted in Rep. 
of Human Rights Comm., para. 8.5, U.N. Doc. A/48/40 (Part II) (1993).   



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However, a small group of protestors attacked the police with sticks and stones. In response, 
the police officers used tear gas and truncheons to disperse them. It was established that the 
applicants were arrested and beaten by the police even though they were not involved in the 
attacks. The ECtHR ruled that that the injuries sustained by the applicants amount to 
“inhuman and degrading” treatment without explaining why in this instance ill-treatment 
amounts to both prohibitions.46 In Ryabsev v. Russia, the applicant alleged that he had been 
ill-treated during and after his arrest in a sting operation for robbery. As a result of this ill-
treatment the applicant sustained injuries to his scalp and to his hand and suffered a broken 
nose and a broken finger. The ECtHR labeled this treatment as “inhuman and degrading”.47  

  
In Dushka v. Ukraine, the 17-year-old applicant had been arrested and interrogated in 

relation to a robbery without the presence of his parents or a lawyer. He alleged that that he 
had been ill-treated by the authorities to coerce him to confess. While in custody, the 
applicant sustained bruises, abrasions and other injuries on various parts of his body, which 
could have been inflicted by multiple impacts with blunt objects. The Court attached special 
importance to the fact that neither his parents nor a lawyer were informed of his arrest and 
labeled this treatment as contrary to Article 3 of the ECHR.48  

  
Similar trends could be found in the jurisprudence of Inter-American institutions. In 

Maritza Urrutia v. Guatemala, the victim was detained arbitrarily. She was subjected to a 
series of ill-treatments. Those included covering her head with a hood, being handcuffed to 
a bed in a room with the light on and the radio at full volume, being subjected to prolonged 
interrogations, being threatened with death and threats to torture her and kill her family 
members and forcing her to film an incriminating video. The IACtHR labelled such treatment 
as “cruel and inhuman” without making any distinction.49 According to Pinzón et. al.  in most 
cases the IACtHR declares that the treatment in question was contrary to Article 5(2) of the 
American Convention, “refraining from specifying the exact mode of treatment that has 
infringed the prohibition in that provision”.

50
 

 
 More puzzling is the labelling of a treatment as “inhuman or degrading.”  For 

example, in Van der Ven v. The Netherlands, the ECtHR stated that the combination of 
routine strip-searches and other stringent security measures implemented in a high security 

                     
46

 Güler and Öngel v Turkey, Applications nos. 29612/05 and 30668/05, Eur. Ct. H.R.  (4 October 2011). 
47 Ryabtsev v. Russia, Application no. 13642/06, Eur. Ct. H.R.  (14 November 2013), see also McGlinchey v. 
United Kingdom, App. No. 50390/99 Eur. Ct. H.R. (Apr. 29, 2003); and D.G. v. Poland, no. 45705/07, Eur. Ct. 
H.R.  (12 February 2013). 
48 Dushka v. Ukraine, Application no. 29175/04, Eur. Ct. H.R.  (3 February 2011). 
49

 Urrutia v. Guatemala, Merits,  Inter-Am. Ct. H.R. Nov. 27, 2003. 
50 Pinzón, D.R. et. al, 2014. The Prohibition of Torture and Ill-treatment in the Inter-American Human Rights 
System: A Handbook for Victims and Their Advocates (Vol. 2). OMCT Handbook Series   Vol. 2, p. 107. 



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prison amounted to inhuman or degrading treatment in breach of Article 3.51This suggests 
that inhuman and degrading are different terms even if the court is not willing to elaborate 
on this difference.  

  
One would expect supra-national criminal tribunals to dwell more on meaning of 

these prohibitions. After all, the principle of legality requires criminal prohibitions to be 
formulated with enough precision to enable the individual to foresee the legal consequences 
of her actions.52 But criminal tribunals too fail to meet this expectation. The International 
Criminal Tribunal for the former Yugoslavia (ICTY) based its jurisprudence on the mistaken 
assumption that the terms cruel and inhuman are simply identical; furthermore, it opted for 
the “distinguishing approach” considering “severity” as the distinguishing criterion. In the 
Simic case, the ICTY noted that it is “generally accepted that cruel and inhumane treatment 
is a lesser included offence of torture, and that the latter is considered lex specialis in relation 
to cruel and inhumane treatment.”53 

 
 In the Delalić case, the ICTY defined inhuman treatment as “an intentional act or 

omission, that is an act which, judged objectively, is deliberate and not accidental, which 
causes serious mental or physical suffering or injury or constitutes a serious attack on human 
dignity.”54 In the same case, the ICTY declared that the offence of cruel treatment under 
common article 3 carries the exactly same meaning as inhuman treatment in the context of 
the “grave breaches” provisions of the GCs.55   

  
The reluctance to distinguish between the various forms of ill-treatment seems to be 

deliberate. In its General Comment No. 20 the HRC deemed it unnecessary “to draw up a list 
of prohibited acts or to establish sharp distinctions between the different kinds of punishment 
or treatment; the distinctions depend on the nature, purpose and severity of the treatment 
applied.”56 However, given the special stigma attached to torture that HRC stated “it is 
appropriate to identify treatment as torture if the facts so warrant”.57  

 

                     
51

 Van der Ven v. Netherlands, App. No. 50901/99 Eur. Ct. H.R. (Feb. 4, 2003). 
52

 See for example Sunday Times v. United Kingdom, App. No. 6538/74 Eur. Ct. H.R. (Apr. 26, 1979). 
53

 Prosecutor v. Simic, Case No. IT-95-9-T, Judgment, para. 71 (Int’l Crim. Trib. for the Former Yugoslavia 
Oct. 17, 2003). 
54 Prosecutor v. Delalić, Case No. IT-96-21-T, Judgment, para. 543 (Int’l Crim. Trib. for the Former Yugoslavia 
Nov. 16, 1998). 
55

 Id. para. 443. 
56

 Human Rights Comm., General Comment No. 20:  Replaces General Comment 7 Concerning Prohibition of 
Torture and Cruel Treatment or Punishment (Art. 7), 44th Sess. (March 10, 1992), published in Compilation of 
General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, at 31, para. 4, 
U.N. Doc. HRI/GEN/1/Rev.1 (July 29, 1994).  
57

 HRC, Giri v. Nepal, Comm. No. 1761/2008, para. 7.5. 



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 The reluctance to provide independent definitions for such abstract terms has resulted 
in the adoption of long lists of descriptive rules, lacking a clear conceptual thread linking 
them to the terms referred to as CIDT.58 For example, in its Concluding Observation on the 
United States, the Committee Against Torture noted that interrogation techniques involving 
sexual humiliation, “water boarding”, “short shackling” and the use of dogs to induce fear, 
constitute torture or CIDT.59 In reviewing periodic reports by other State parties, the 
Committee against Torture expressed its concern over: flogging and amputation of limbs;60 
low minimum age of criminal responsibility and detention of child offenders as young as 
seven years in specialized hospitals or social protection institutions;61 long term detention of 
asylum seekers while their asylum claims are considered;62 detention in a cell for twenty-two 
hours a day without meaningful activities to occupy the prisoner’s time;63 non-segregation 
of juvenile and adult prisoners, and non-segregation of male and female prisoners;64 incidents 
of bullying which cause self-harm and suicide in the armed forces;65 inappropriate use of 
chemical, irritant, incapacitating and mechanical weapons by law enforcement authorities in 
the context of crowd control;66 reprisals, intimidation and threats against persons reporting 
acts of torture or ill-treatment;67 prisoners having to pay for a portion of the expenses related 

                     
58

 Id, see also Waldron, supra-note 10, at 276-319. 
59

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, United States of America, para. 24, 
U.N. Doc. CAT/C/USA/CO/2 (July 15, 2006). 
60

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee against Torture, Yemen, para. 6, U.N. Doc. 
CAT/C/CR/31/4 (Feb. 5 2004). 
61

 Id. 
62

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, Latvia, para. 6, UN Doc. 
CAT/C/CR/31/3 (Feb. 5 2004). 
63

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, Croatia, para. 8, U.N. Doc. 
CAT/C/CR/32/3 (June 11, 2004). 
64

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, Bosnia and Herzegovina, para. 14, 
U.N. Doc. CAT/C/BIH/CO/1 (Dec. 15, 2005). 
65

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, United Kingdom of Great Britain and 
Northern Ireland, Crown Dependencies and Overseas Territories, para. 4, U.N. Doc. CAT/C/CR/33/3 (Dec. 10, 
2004). 
66

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, Canada, para. 4, UN Doc. 
CAT/C/CR/34/CAN (July 7, 2005). 
67

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, Argentina, para. 6, U.N. Doc. 
CAT/C/CR/33/1 (Nov. 10, 2004). 



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to their imprisonment;68 incidents of uninformed and involuntary sterilizations of Roma 
women;69 the wearing of hoods or masks by officers effecting a forced deportation;70 the use 
of electro-shock stun belts and restraint chairs as methods of constraint;71 incommunicado 
detention of up to five days or longer;72 prolonged solitary confinement as a measure of 
retribution in prisons.73 However, as mentioned earlier, the adoption of such narrowly 
defined rules lacks any conceptual inquiries that link all rules to the prohibitions they are 
derived from.  

   
C. The Development of Jurisprudence that Lacks Sufficient Reasoning 
 
 The interpretative approach adopted by supra-national institutions has led to the 

emergence of jurisprudence that suffers from the absence of sufficient legal reasoning. 
Cassese argues that the case law of the ECtHR on the interpretation of “inhuman and 
degrading treatment” needs to be strengthened by avoiding making decisions that offer no 
substantial reasoning.74 Waldron points out that in its jurisprudence the ECtHR has 
established a set of principles, presumptions75 and benchmarks76 for identifying a breach of 
article 3 of the ECHR.77 The principles are usually repeated in most cases dealing with article 

                     
68

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, Czech Republic, para. 5, U.N. Doc. 
CAT/C/CR/32/2 (June 3, 2004). 
69

 Id. 
70

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, Switzerland, para. 4, U.N. Doc. 
CAT/C/CR/34/CHE (June 21, 2005). 
71

 Supra-note 58, para. 35. 
72

 Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, Spain, para. 61, U.N. Doc. A/58/44 
(2003); Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Concluding 
Observations and Recommendations of the Committee Against Torture, Russian Federation, para. 42, UN Doc. 
A/52/44 (1997). 
73

 Supra- note 58, para. 36. 
74 Cassese, A., 2008. The human dimension of international law: selected papers of Antonio Cassese. Oxford 
University Press, p. 329. 
75

 An example of a presumption is the following: 
[W]here an individual is taken into custody in good health but is found to be injured by the time of release, it is 
incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce 
evidence casting doubt on the victim’s allegations, particularly if those allegations were corroborated by 
medical reports, failing which a clear issue arises under Article 3 of the Convention. 
See Yavuz v. Turkey, App. No. 67137/01 Eur. Ct. H.R., (Jan. 10, 2006) para. 38.  
76

 Benchmarks usually refer to those set by other regional agencies, such as the European Committee for the 
Prevention of Torture and Inhuman or Degrading Treatment or Punishment.  These benchmarks are adopted as 
guidelines by the ECtHR, and they usually focus on physical conditions of prison cells, see supra-note 11. 
77

 Supra-note 11, at 279. 



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3 including, for example, that ill-treatment must attain a minimal level of severity to find a 
violation of article 3, and that severity is a relative concept depending on other factors such 
as age, sex and health. However, Waldron highlights the following: 

 
No one spends much time reflecting on the meaning of the predicates that are 
incorporated in the Article 3 standard […] The Court simply announces its 
finding that certain practices are inhuman or degrading while others are not. 
Or announces a principle that it is going to use in determining what is 
degrading or what is inhuman.78 
  
The reluctance of human rights institutions to engage in a thoughtful reflection on the 

meaning of each of these prohibitions, referred to as CIDT (especially the terms cruel and 
inhuman) could be attributed to two factors. First, it seems that supra-national institutions 
assume that defining these prohibitions would make them less flexible and would limit their 
scope. While this concern is legitimate, it erroneously assumes that defining such terms from 
would strip them from their evaluate power by converting them to largely descriptive rules. 
This approach does not assume that a middle ground is indeed possible. Supra-national 
institutions can move from highly abstract language, such as the term inhuman treatment, to 
more precise definitions that still embody evaluative elements.  This would guarantee the 
flexibility needed for an effective protection against ill-treatment; at the same time, it would 
facilitate the development of a coherent body of jurisprudence in applying such prohibitions.  

  
The immediate move from abstract norms to purely descriptive subsidiary rules 

without providing an intermediary definition is a recipe for arbitrariness. In his capacity as 
an independent expert of the United Nations, Philip Alston warned about the growing 
inconsistencies in the evolving jurisprudence on the interpretation of the central human rights 
instruments.79 He attributes such inconsistencies to the following factors: the recent 
proliferation of human rights standards; the increasing range and depth of the activities of the 
policy-making organs; and the expanding number of treaty bodies. Alston further warned 
that such inconsistencies could create confusion as to the “correct” interpretation of a given 
norm. This would result in “the undermining of the credibility of one or more of the treaty 
bodies and eventually a threat to the integrity of the treaty system.”80 Beyond the ratification 
of international and regional human rights treaties, many States, mainly former British 
colonies in Africa and Commonwealth countries in Asia, the Caribbean, and the Pacific, 
wrote international human rights norms into their Bill of Rights. Long ago Lillich pointed 
out that reference to international human rights norms is becoming a frequent factor in 

                     
78

 Id. at 287. 
79

 World Conference on Human Rights, Interim Report of Study on Enhancing the Long-Term Effectiveness of 
the United Nations Treaty Régime, para. 238, U.N. Doc. A/CONF.157/PC/62/Add.11/Rev.1, annex (Apr. 22, 
1993). 
80

 Id. 



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constitutional decision making on a global scale. Judges at the domestic level look to 
international and regional instruments and the decisions of committees, courts and 
commissions interpreting them.81 In this complex reality maintaining a normative 
consistency becomes more necessary and more challenging. 

  
While the prohibitions referred to as CIDT are primarily associated with deprivation 

of liberty, they have been applied to other spheres including racial discrimination,82 house 
demolitions,83 and possibly to the failure to recognize sex change.84 Cassese argued that such 
prohibitions should be utilized by the ECtHR to address severe violations of social and 
economic rights so they can constitute a bridge between civil and political rights and the 
broad field of social and economic rights.85 Given the ambiguity of such terms and the wide 
scope of their application, they become susceptible to incoherent instantiations. A list of 
descriptive rules can never provide meaningful guidance for domestic courts when 
confronted with a new practice that does not resemble any of the prohibitions on the list.86 
This could lead to the emergence of contradictory case-law where the same practice is 
approved in one jurisdiction but outlawed in another. To avoid such a gloomy development, 
supra-national institutions must engage methodologically in conceptual arguments on the 
meaning of these prohibition that could serve as guiding principles in applying them 
coherently.  

  
The second factor that could explain the reluctance of supra-national institutions to 

define these prohibitions is the simple fact that the latter are hard to define. Waldron 
distinguishes between three different types of language indeterminacy: ambiguity, 
vagueness, and contestability.87 He argues that the terms “cruel,” “inhuman” and “degrading” 
are all contestable.88 A phrase becomes contestable “when it is clear that it embodies a 
normative standard, but different users disagree about the detailed contents of that normative 
standard.”89 For example, the Eighth Amendment of the United States Constitution, which 
prohibits cruel and unusual punishments, is a contestable standard. According to Waldron, 
we all agree that punishments are inherently unpleasant; however, we tend to disagree on 
                     
81

 Lillich, R.B., 1995. Harmonizing Human Rights Law Nationally and Internationally: The Death Row 
Phenomenom as a Case Study. . Louis ULJ, 40, p.699 
82

 See, e.g., Cyprus v. Turkey, App. No. 25781/94 Eur. Ct. H.R., (May 10, 2001). 
83 See, e.g.,  Dzemajl v. Yugoslavia, supra-note 33. 
84

 See X v. Federal Republic of Germany, App., No. 8041/77 Eur. Ct. H.R., (Dec. 15, 1977), where the European 
Commission on Human Rights declared admissible an application alleging a violation of Article 3 of the ECHR 
due to the failure of the respondent State to recognize the sex change of the applicant. 
85

 Cassese, A., 1991. Can the Notion of Inhuman and Degrading Treatment be applied to Socio-economic 
Conditions. Eur. J. Int'l L., 2, p.141. 
86

 Supra-note 11, at 289. 
87

 Waldron, J., 1994. Vagueness in law and language: Some philosophical issues. Cal L. Rev., 82, p.509. 
88

 Supra-note 10. 
89

 Supra-note 86. 



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how harsh punishments should be. But the term “cruel” is contestable because we also 
disagree on “whether cruelty is simply a matter of the intensity of the suffering, or whether 
it also refers to the malice, inhumanity, or disrespect with which the suffering was 
inflicted”.90 Still, Waldron refuses to dismiss such prohibitions altogether. He rightly claims 
that many cases involving ill-treatment can be clearly classified as cruel. For example, no 
one doubts that burning people alive is a cruel, even though we might disagree on whether 
other methods of execution fall under this category.91  In Xuncax v. Gramajo, a United States 
District Court followed this approach. While the Court recognized that the prohibition on 
CIDT poses more complex definitional problems compared to torture, it emphasized that “[i]t 
is not necessary that every aspect of what might comprise a standard such as ‘cruel, inhuman 
or degrading treatment’ be fully defined and universally agreed upon before a given action 
meriting the label is clearly proscribed under international law.”92 

  
On the face of it, the indeterminacy of the term inhuman seems inconsistent with the 

principle of the rule of law. While its meaning and scope are controversial, the law’s 
predictability and the law’s ability to guide human behavior run as a common thread in the 
writings of theorists who have explored the concept of the rule of law.93 In his famous work 
“The Morality of Law” Lon Fuller claims that the inner morality of the law requires making 
rules coherent, clear, and practicable. The failure to do so amounts to failure in creating and 
maintaining a legal system.94 The clarity of the law is one of the most essential ingredients 
of legality.95 However, no conception of the rule of law can deny that in certain cases the 
highest degree of precision is impossible or even undesirable. Fuller acknowledges that we 
can never be “more exact than the nature of the subject matter with which we are dealing 
with admits. A specious clarity can be more damaging that an honest openended 
vagueness”.96 When the provisions of the first international bill of rights were debated by the 
newly established United Nations, some states objected the inclusion of vague terminology 
such as “inhuman” in a legally binding treaty. In response to such criticism, Charles Malik, 
the Rapporteur of the drafting committee of the UDHR emphasized that given the 
unprecedented and shocking atrocities committed by the Nazis, it was better to run the risk 
of being vague than of being too particular in condemning such acts.97 A similar position is 
found in the Commentary on Common Art. 3 of the Geneva Conventions. The Commentary 
                     
90

 Id. at 528. 
91

 Supra-note 10, at 535. 
92

 Xuncax v. Gramajo, 886 F. Supp. 162, 186 (D. Mass. 1995), at 187. 
93 

See Hayek, F.A., 2006. The Road to Serfdom (Routledge Classics); Fuller, L.L., 1969. The morality of 
law (Vol. 152). Yale University Press; Finnis, J., 2011. Natural law and natural rights. Oxford University Press 
and; Waldron, J., The Rule of International Law’ (2006). Harvard Journal of Law and Public Policy, 30, p.15.  
94 

L. Fuller, id. 
95 

Id. 
96

 Id, at 64. 
97

 UN Doc. E/CN.4.AC.1.SR.23, p. 3. 



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stipulates “one would never be able to catch up with the imagination of future torturers who 
wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, 
the more restrictive it becomes”.98 While the use of abstract language for prohibiting different 
forms of ill-treatment could be reconciled with the rule of the law, there is another aspect of 
the rule of law that comes into play in interpreting and applying such prohibitions. 

 
 Waldron points out that a separate current of thought in the rule of law tradition puts 

an emphasis on its procedural aspects. According to this view, the rule of law is not just about 
general rules, it is also about their impartial administration. The procedural side of the rule 
of law requires public institutions to sponsor and facilitate reasoned arguments in human 
affairs, and to allow people to have a say in confronting power.99 The procedural aspect of 
the rule of law values opportunities for active engagement in the administration of public 
affairs. When referring to legal norms Waldron states: “We don’t just obey them or apply the 
sanction that they ordain; we argue over them adversarially, we use our sense of what is at 
stake in their application to license a continual process of argument back and forth, and we 
engaged in elaborate interpretive exercises about what it means to apply them faithfully as a 
system to cases that come before us”.100 Elsewhere, Waldron states that “a philosophy of law 
would still be impoverished if it paid no attention to the defining role of law’s aspiration to 
coherence among the norms that it contains and to the forms of reasoned argumentation that 
are involved both in maintaining that consistency and in bringing it to bear in the application 
of norms to particular cases”.101 Brugger distinguishes between legal coherency and ethical 
coherency. Legal coherence entails that all provisions of the law, its purposes, principles and 
rules form a bond of unity. As a minimum, provisions of law should avoid contradiction.102 
Ethical coherence requires a convincing or at least plausible interpretation of the social and 
political values that are referred to in legal provisions.103 Any legal interpretation must take 
both the law and the real world seriously, because a judgment that does not make sense in 
the real world we live in is an unsound judgment.104 According to Brugger, a persuasive 
interpretation “should strive to integrate the ideals of systemic consistency, social 
congruence, and stability of doctrine over time”.105  

                     
98 

Pictet, J. ed., 1952. The Geneva Conventions of 12 August 1949: Geneva convention for the amelioration of 
the condition of the wounded and sick in armed forces in the field (Vol. 1). International Committee of the Red 
Cross. 
99 

Waldron, J., The Concept and the Rule of Law” (2008) 43. Ga L Rev, 1, p.1. 
100 

Waldron, J., 2011. The rule of law and the importance of procedure. Nomos, 50, pp.3-31, p. 20 
101

Supra-note 98, p. 61. 
102 

 Brugger, W., 1994. Legal interpretation, schools of jurisprudence, and anthropology: Some remarks from a 
German point of view. Am. J. Comp. L., 42, p.395. 
103

 Id, at 413. 
104

 Id. 
105 

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 Applied to the context of CIDT, the immediate move from abstract language to purely 
descriptive rules impedes us from reflecting on the moral principles embodied in these 
prohibitions, and prevents us from augmenting on their relevance to the world we live in. 
Waldron rightly claims that an exclusive focus on subsidiary rules diminishes the moral 
arguments embodied in these prohibitions.106 Furthermore, this approach is inconsistent with 
the notion of ethical coherence too. With time, and with the expansion of the lists of 
subsidiary rules, every objectionable treatment could become inhuman, even if in ordinary 
life such treatment is not perceived as sufficiently grave to be labeled inhuman. This would 
diminish even further the moral authority of this term, which was incorporated into 
international human rights instruments as a response to gross violations of human rights. 

 
III. TOWARDS UNFOLDING THE MEANING OF INHUMAN TREATMENT 
   
According to Article 31(1) of the Vienna Convention: “[a] treaty shall be interpreted 

in good faith in accordance with the ordinary meaning to be given to the terms of the treaty 
in their context and in the light of its object and purpose.”107 Courts had resorted to 
dictionaries when this methodology was found useful for interpreting legal norms.108  

 
 Unfolding the word-meaning is only the first step in the quest for moral and legal 

meanings. The words themselves can help us identify the moral principles and the distinct 
evaluations that are at stake.   

 
A. Inhuman Treatment: An Introduction 
 
 The Oxford English Dictionary (OED) online defines “inhuman” when applied to 

persons as “[n]ot having the qualities proper or natural to a human being; esp. destitute of 
natural kindness or pity; brutal, unfeeling, cruel.”109 When applied to actions or conduct, 
inhuman means “[b]rutal, savage, barbarous, cruel.” Inhuman also means “[n]ot pertaining 
to or in accordance with what is human, in form, nature, intelligence, etc”. This definition 
encompasses both an agent-oriented approach and a victim-oriented approach.110 The former 
focuses on the mental disposition of the agent inflicting inhuman treatment, while the latter 
focuses on what objectively happens to the victim.111  

 

 

 

                     
106 Supra-note 11, at 289. 
107

 Supra-note 14. 
108

 See for example the Delalić case, supra-note 53, para. 518. 
109

 OED Online. March 2017. Oxford University. 
110 Supra-note 10 at 303. 
111

 Id. 



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1. The Agent-Oriented Approach 
  
An example of the agent-oriented understanding of the term inhuman is found in the 

Dance of the Devils Case, where the German Federal Constitutional Court interpreted 
inhuman as follows: 

 
The offense element “inhuman” is supposed to express the idea that action is 
taken with a cast of mind which shows contempt for humanity, or is 
inconsiderate, callous or merciless… perhaps because it is gives the 
perpetrator satisfaction to mistreat or kill human beings completely 
unscrupulously and in cold blood.112 
 
The separate opinion of Judge Fitzmaurice in Ireland v. UK provides another 

example: 
 
[T]he concept of “inhuman treatment” should be confined to kinds of 
treatment that. . . no member of the human species ought to inflict on another, 
or could so inflict without doing grave violence to the human, as opposed to 
animal, element in his or her make-up.113 
 
Fitzmaurice’s approach reflects both agent-oriented approach and victim-oriented 

approach because it refers to the moral defect in the person inflicting the ill-treatment and to 
treatment that cannot be inflicted a human being (as opposed to cruelty to other creatures).114   

 
2. The Victim-Oriented Approach 
  
The victim-oriented approach seems more appropriate for defining inhuman 

treatment since the prohibition on cruel treatment is a better candidate for capturing the moral 
defect in the person inflicting the ill-treatment.115 The OED defines cruelty as, inter alia, 
“disposition to inflict suffering; delight in or indifference to the pain or misery of others; 
mercilessness”.  

 
 But how can we strip humans from their humanity? Hannah Arendt suggests that we 

strip people from their humanity by diminishing their capacity for spontaneous action.116 In 

                     
112

 BVerfGE 87, 209 (October 29, 1992), as quoted in Dubber, M. and Hörnle, T., 2014. Criminal law: a 
comparative approach. Oxford University Press, p. 92.  
113

 Supra-note 20, para.  26. 
114

 Supra-note 11, at 305. 
115

 For on the meaning of cruel treatment see supra-note 12. 
116

 Arendt, H., Jaspers, K., Köhler, L. and Saner, H., 1992. Hannah Arendt/Karl Jaspers Correspondence, 1926-
1969. 



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describing radical evil, Arendt suggests that it is about the destruction of the capacities of 
humans as we know them.117 Suffering “is not the issue, nor the number of victims. Human 
nature as such is at stake.”118 Suffering is just an instrument for controlling the 
unpredictability which forms part of inmates’ nature.119   

  
Waldron defines “inhuman treatment” as “treatment which cannot be endured in a 

way that enables the person suffering it to continue the basic elements of human 
functioning.”120 Those include self-control, rational thought, care of self, the ability to 
interact with others, the need to sleep, to defecate or urinate, the need for daylight and 
exercise and so on.121 Here too the term ‘inhuman’ plays a normative role; it represents a 
contestable standard on what we consider as an elementary human functioning.122 However, 
Waldron does not elaborate further on the notion of basic elements of human functioning. He 
immediately suggests a list of such functionings. In the absence of minimal inquiry into the 
notion of human functioning, his project too faces the risk of being converted into a list of 
subsidiary rules.  

 
B. Human Well Being, Human Functioning and the Capability Approach 
 
 The notion of human functioning is discussed extensively in the literature on the 

“Capabilities Approach”; some leading scholars such as Martha Nussbaum have attempted 
to articulate a list of basic human capabilities. 122F123 The notion of human capabilities was first 
introduced by Amartya Sen, who provided its framework largely in the 1980s and 1990s.123F124 
The capability approach initially emerged in the field of development. Robeyns provides a 
good summary of Sen’s work: well-being and development should be conceptualized in 
terms of people’s capabilities to function, in other words, their effective opportunities to 
pursue the actions and the activities that they want to engage in and to be whoever they want 
to be.124F125 Those functionings constitute what makes a life valuable. Functionings include 
working, being healthy, being literate, being part of a community, resting, being respected, 
and so forth. The gap between achieved functionings and human capabilities is a gap between 
the realized and the effectively possible, or between achievements and larger freedoms. The 
ultimate goal must be enhancing human capabilities, so people can lead a life that they truly 
                     
117

 Auestad, L., 2005. Plurality and human dignity. Nordisk Tidsskrift for Menneskerettigheter, 23, p.261. 
118

 Arendt, H., 1973. The origins of totalitarianism (Vol. 244). Houghton Mifflin Harcourt, p. 458-59. 
119

 Supra-note 116, at 264.  
120

 Supra-note 11. 
121

 Id 
122

 Id. 
123

 Nussbaum, infra-note 135. 
124

 Sen, A., 2014. Development as freedom (1999). Roberts, JT, Hite, AB & Chorev, N. The Globalization and 
Development Reader: Perspectives on Development and Global Change, 2, pp.525-547. 
125

 Ingrid Robeyns, The Capability Approach: A Theoretical Survey, 6 Journal of Human Development 93 
(2005). 



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desire. Once they possess these capabilities, they can choose to act on them in line with their 
own conception of the good life.126 According to Nussbaum, in the capabilities approach we 
focus on “a variety of functions that would seem to be of central importance to a human 
life.”127 Nussbaum’s views on capabilities are intimately tied to the notion of human dignity, 
and to the conception of a life that is worth living.128  According to Nussbaum, dignity “is 
closely related to the idea of active striving”.129 It is an innate potential that deserves to be 
developed; it is about the existence of minimal agency.130 Even The decay of the body cannot 
take away active striving and minimal agency. Unlike the Kantian approach to human 
dignity, which bases human dignity entirely on rationality, Nussbaum perceives human 
beings as inherently animals and a as members of the natural world. Therefore, human dignity 
is marked by “sentience, emotion, affection, physical health, and appetite as well as … 
rationality”.131 Even human beings with severe cognitive disabilities or those who possess a 
minimal level of sentience and striving are full equals in human dignity, and an attack on any 
of the elements that mark human dignity is an assault on human dignity.

132  Kittay criticizes 
the concept of dignity adopted by Nussbaum since it weakens the attribution of dignity to 
people in a permanent vegetative condition, or to anencephalic infants. Kittay suggests base 
human dignity not on minimal agency but on the capacity to care and be cared for.

133
 

 
 Nussbaum’s articulation of the capability approach is based on Aristotelian 

philosophy, i.e. on an essentialist view of human life as encompassing central defining 
features of basic human needs and human functions.134 The idea behind Nussbaum’s 
approach to capabilities is twofold. First, there are certain functions that are essential in 
human life. Having these capabilities makes life worthy of the dignity of the human being. 
Second, humans must be able to perform these functions in a truly human way, as opposed 
to animal way.135  

 
 Nussbaum identifies ten basic human capabilities which constitute central 

requirements of a life with dignity. Nussbaum emphasizes: “[w]e are not pretending to 
                     
126

 Id. 
127

 Nussbaum, M.C., 1997. Capabilities and human rights. Fordham L. Rev., 66, p.273. 
128

 Nussbaum, M., 2000. Women's capabilities and social justice. Journal of human development, 1(2), pp.219-
247. 
129Nussbaum, M.C., 2011. Creating capabilities. Harvard University Press., p. 31. 
130

 Id. 
131 Dixon, R. and Nussbaum, M.C., 2011. Abortion, dignity and a capabilities approach, p. 5.  
132

 Id. 
133 Kittay, E. (2005). Equality, dignity and disability. In M. A. Waldron & F. Lyons (Eds.), Perspectives on 
equality: Thesecond Seamus Heaney lectures (pp. 95–122). Dublin: Lifey 
134

 Nussbaum, M.C., 1992. Human functioning and social justice: In defense of Aristotelian 
essentialism. Political theory, 20(2), pp.202-246. 
134 Nussbaum, M., 2000. Women's capabilities and social justice. Journal of human development, 1(2), pp.219-
247. 



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discover some value-neutral facts about ourselves, independently of all evaluation; instead, 
we are conducting an especially probing and basic sort of evaluative inquiry.”136   

 
1. Ten Basic Capabilities 
 
The ten central human capabilities are: 
 

Life: Being able to live a human life of normal length; not dying prematurely, or to live a life 
that is not reduced to the point of being not worth living.137 

 
Bodily Health: Being able to enjoy a good health; to be adequately nourished; to have 

adequate shelter.138 
 
Bodily Integrity: Being able to move freely; freedom from violence, including sexual assault 

and domestic violence; having opportunities for sexual satisfaction and freedom in 
matters of reproduction.139 

 
Senses, Imagination, and Thought: Being able to use the senses, to imagine, think, and reason 

—and most importantly to do so in a “truly human” way, a way which is cultivated 
by proper education. Being able to use imagination and thought to experience and 
produce works and events of one’s own choice whether religious, literary, musical, 
and so forth.  Being able to use one’s mind in ways protected by freedom of 
expression. Being able to have pleasurable experiences and being able to avoid non-
beneficial pain.140 

 
Emotions: Being able to have attachments to things and people outside ourselves; to love, to 

grieve, to experience longing, gratitude, and anger.  Not having one’s emotional 
development suppressed by fear and anxiety.141 

 
Practical Reason: Being able to form a conception of the good life and to engage in critical 

evaluation of our plans of life. This entails protection of freedom of thought and 
religious liberties.142 

                     
135 Supra-note 133, p. 214. 
136 Nussbaum, M., 2003. Capabilities as fundamental entitlements: Sen and social justice. Feminist 
economics, 9(2-3), pp.33-59. p. 41. 
137 Id.  
138 Id. 
140 Id. 
141

 Id. 
142

 Id. 



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Affiliation: Being able to live and socialize with others, to show concern for other human 
beings; to be able to identify with the situation of another. Protecting this specific 
capability requires the protection of institutions and freedoms that constitute and 
nourish such forms of affiliation.  

 Having the social bases of self-respect and non-humiliation; being treated in a 
dignified way; the recognition of our equal worth as human beings. This entails 
provisions of non-discrimination on the basis of race, sex, sexual orientation, 
ethnicity, caste, religion, national origin.143 

 
Other Species: Being able to live with concern for and in relation to animals, plants, and the 

world of nature.144 
 
Play: Being able to laugh, to play, to enjoy recreational activities.145 
 
Control over One’s Environment: A. Political control: being able to participate effectively in 

political choices that govern one’s life; having the right of political participation, 
protections of free speech and association. B. Material control: being able to hold 
property and having property rights on an equal basis with others; having the right to 
seek employment on an equal basis with others; having the freedom from unwarranted 
search and seizure. In work, being able to work as a human being, exercising practical 
reason, and entering into meaningful relationships with other workers.146 
 
 Nussbaum acknowledges that her list is not exhaustive and needs an ongoing revision 

and supplementation. Since she is committed to pluralism, the components of Nussbaum’s 
list are deliberately specified in somewhat abstract manner in order to facilitate further 
deliberations and specification by different constituencies and their democratic 
institutions.147  Nussbaum’s list bears resemblance to other scholarly works that inquire into 
the concept of the human well-being. For example, Finnis identifies seven basic forms of 
human good that are central for the human well-being, and serve the goal of human 
flourishing.148  According to Finnis the inquiry into the basic aspects of human well-being is 
an inquiry into human nature.149 Finnis assumes that his own inquiry into basic forms of 
human good parallels the inquiries of anthropologists and psychologists into a possible 
human nature and its characteristics.150  The seven basic forms of goods identified by Finnis 

                     
143

 Id. 
144

 Id. 
145 Id.  
146 Id. 
147 Id.  
148 John Finnis, supra-note 92. 
149 Id.  
150 Id.  



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include:  life, knowledge, play, aesthetic experience, friendship, practical reasonableness, and 
religion.151 In offering an account of substantive well-being Griffin introduces the following 
five components: accomplishment, or as he puts it “doing in the course of one’s life the sort 
of things … that give it weight or point;

152
 deep personal relations;

153
 enjoyment;

154 

understanding, which means “knowing about oneself and one’s place in the universe”;
155 and 

the components of human dignity, which include living as a rational agent and “being able 
to pursue a course through life chosen by oneself”.

156    
 
2. Capabilities v. Functionings 
  
According to Nussbaum, functionings are what render a life fully human.157 But since 

capabilities are preconditions for citizens’ freedom to determine their course of action, they 
should be society´s political goal.  To illustrate this point, Nussbaum claims that a person 
who has normal opportunities for sexual satisfaction can freely choose celibacy and that 
would not pose a moral problem. However, the practice of female genital mutilation, which 
deprives its victims the opportunity to choose sexual functionings, should worry us due to its 
impact on future functionings of the victim.158 

 
 Nussbaum distinguished between three layers of capabilities. The first layer is the 

basic capabilities; those are “the innate equipment of individuals that is the necessary basis 
for developing the more advanced capabilities.”159 Certain basic capabilities are ready to 
function, such as the ability to see or to hear.160 But other capabilities, such as imagination 
and practical reason, cannot be directly converted into functioning; their future exercise 
depends on other factors such as education and development in other areas.161 When basic 
capabilities are not nourished and transformed into higher-level capabilities, human beings 
become “fruitless, cut off, in some way but a shadow of themselves”.162 The second layer is 
                     
151 Id. at 86-90. 
152

 Griffin, J., 2002. A NOTE ON MEASURING WELL-BEING JAMES GRIFFIN. Summary measures of 
population health: Concepts, ethics, measurement and applications, p.129, 130. 
153 Id. 
154 Id. 
155 Id. 
156

 Id. 
157

 Supra-note 126, at. 289. 
158

 Id. 
159

 Nussbaum, M.C., 2001. Women and human development: The capabilities approach (Vol. 3). Cambridge 
University Press, p. 84.  
160 

Id. 
161

 Id. 
162 Nussbaum, M., 1995. Human capabilities, female human beings. Women, culture and development: A study 
of human capabilities, pp.61-104, p. 88.  



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the internal capabilities; those are “states of the person herself that are, so far as the person 
herself is concerned, sufficient conditions for the exercise of the requisite functions.”163 
Internal capabilities reflect “mature conditions of readiness”.164 The readiness to exercise 
certain capabilities requires bodily maturity. For example, sexual functioning requires 
growing up. Other capabilities require support from and interaction with the surrounding 
environment for their development, such as the ability to exercise political choice.165 At a 
certain point these capabilities become present, and the individual can use them whenever 
she wants. For example, most adult human beings have the internal capability to use speech 
and thought in accordance with their own conscience.166 The third layer is the combined 
capabilities, which are “internal capabilities combined with suitable external conditions for 
the exercise of the function.”167 Nussbaum emphasizes that exercising capabilities does not 
only entail developing basic ones, it also entails “preparing the environment so that it is 
favorable for the exercise of practical reason and the other major functions”.168 For example, 
citizens of oppressive regimes have internal capabilities of freedom of speech, but they lack 
the combined capability to exercise political freedom of speech.169 The aim of public policy 
should be the production of combined capabilities. States need to provide the necessary 
education and care, and they need to foster an environment that it is favorable for the exercise 
of major functions. 

 
C. Inhuman Treatment Framed Within the Framework of Capabilities 
  
Capabilities and human rights in general are intimately related. The language of 

capabilities can provide more precision and supplement the abstract language of rights. 
Nussbaum claims that “difficult theoretical questions are frequently obscured by the use of 
rights language, which can give the illusion of agreement where there is deep philosophical 
disagreement.”170 Therefore, a different language has emerged for articulating people’s basic 
entitlements such as the language of capabilities.171 If inhuman treatment means a treatment 
which disables the victim to perform basic human functioning, the list articulated by 
Nussbaum provides a promising guidance.172 Unlike the arbitrary fashion in which subsidiary 
rules were adopted by human rights institutions, Nussbaum’s list is theoretically solid, and it 
is derived from a particular understanding of the notion of a dignified life. It should be noted 

                     
163 Supra-note 158, at 84. 
164 Id. 
165 

Id. 
166

 Id. 
167 Id. 
168

 Id. 
169 Id, at 85. 
170 Supra-note 136, at 37. 
171

 Supra-note 126, at. 275. 
172

 Supra-note 10.  



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that the examples provided by Waldron, such as: rational thought, care of self, ability to speak 
and converse and so forth resonate with Nussbaum’s list of basic capabilities.173  

 
 In what way does inhuman treatment harm human capabilities? Deprivation of liberty 

inherently reduces the combined capabilities of inmates. The limited contact with the outside 
world and the limited freedom of movement available to inmates constitute a serious obstacle 
in exercising certain internal capabilities. However, the prohibition on inhuman treatment is 
not meant to capture acceptable harms inherent in lawful deprivation of liberty. Inhuman 
treatment must capture objectionable and serious forms of harm inflicted on the human 
person. Nussbaum argues that “even a highly trained capability can be thwarted”.174 Material 
and social factors play a twofold role in shaping capabilities: First, they train internal 
capabilities, and second they allow internal capabilities to express themselves once they are 
trained.175 A change in material and social conditions could have a negative impact both on 
training and expressing capabilities. Nussbaum emphasizes that it is not always easy to 
distinguish between harming a combined capability and harming an internal one.176 To help 
us draw the distinction, she suggests that an abrupt change in material and social environment 
usually reduces combined capabilities; however, “persistent deprivation affects the internal 
readiness to function”.177 The prohibition on inhuman treatment should capture the latter 
situation in which environmental factors cause regression in internal capabilities.  

 
 Another distinction articulated by Nussbaum helps linking regression in internal 

capabilities with the concept of inhuman treatment. Nussbaum distinguishes between two 
thresholds of capability to function. The first threshold marks the line of capability to function 
beneath which a human life becomes so impoverished to the point it no longer merits to be 
labeled “human”.178 This includes human beings who live in a permanent vegetative 
condition, and situations where the individual losses the capacity to recognize loved ones, to 
think and to reason. It could also include a severe absence of mobility that impairs speech 
and movement.179 A second threshold is somewhat higher, beneath which we do recognize 
the existence of a human life, but we would not judge it as a good life in the Aristotelian 
sense because the human functions are still reduced.180  

  

Applying these nuanced differences to the term inhuman treatment, the latter should 
capture situations where the regression in the internal capabilities, due to human induced 
conditions, bring the person closer to the first threshold. Cassese, a vocal critic of the practice 
                     
173

 Id, see also supra-note 136.  
174 

Supra-note 158, at 84. 
175

 Id, at 86. 
176 

Id.
 

177 
Id. 

178
 Id.  

179
 Id. 

180 
Id. 



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of prolonged solitary confinement, used the language of capabilities to articulate the harms 
associated with this practice: 

 
We could now hear a constant hiss, produced by the air conditioner . . .  Apart 
from the hiss, there was absolutely no other noise ... The murderer was kept 
in total acoustic isolation… one might have been buried in a tomb . . . We 
asked him if he ever spoke to anyone… [the prisoner was allowed] half an 
hour’s “airing” a day, in a kind of metal cage in the open air, where he could 
walk up and down, all on his own… The prisoner never saw his relations… 
He had spent five or six years in that cell, ruminating his unhappy thoughts 
and had no idea whether he would be there for life.  He had not yet passed 
over from the animal to the vegetable kingdom, but we got an idea of his future 
condition on entering another cell, where the prisoner. . . had been kept for 
seven years.  He lay on his bed, as pale as a ghost, moaning incomprehensible 
words. The only thing we understood was a faint “no” when we asked if we 
were disturbing him and if he preferred to be left alone.  He started and 
trembled at the slightest noise, however imperceptible, which we made while 
we stayed in the cell.181 
 
 Cassese talked about the “gradual diminishment” of humanity, and of “state of larvae, 

where the self is expressed in repetitive physical gestures, until what little, or great, humanity 
the prisoner possessed… perishes slowly until it disappears completely”.182 Not only this 
language describes the reduction of the internal capabilities, it also depicts a person being 
pushed closer to the first threshold of capabilities.  

  
One question remains unanswered: Is “intent” a mandatory definitional element of 

the prohibition on inhuman treatment? In inhuman treatment the primary focus is on the 
ability of the person to exercise basic human functionings. If the living conditions imposed 
on a detainee diminish her internal capabilities and bring her close to the first threshold, the 
lack of intent to cause such damage is immaterial. Inhuman treatment understood as 
destruction or reduction of internal human capabilities captures a sort of damage to the human 
person that is of an accumulative nature. When applied to the context of deprivation of 
liberty, people do not lose their ability to reason, to converse, and so forth in one strike; 
usually, this sort of damage occurs gradually over time even if there is no intentional policy 
to cause such damage. Therefore, the intention (or lack-of) of those responsible for the 
imposition of such conditions is less relevant.  The exclusion of intent from the definition of 
“inhuman treatment” is also consistent with the spirit of human rights law. Unlike 

                     
181 Cassese, A., 1996. Inhuman states: Imprisonment, detention and torture in Europe today. Blackwell 
Publishing, p. 56-57. 
182

 Id, at 55. 



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international criminal law, which focuses on individual criminal responsibility,183 human 
rights law focuses primarily on the legal obligation of States to respect, protect and promote 
human rights.184 Generally speaking, international human rights law does not focus on the 
intentions and the motives of state agents who violate international law obligations of States. 
Only when the prohibition is invoked in the realm of international criminal law, intention 
becomes central for its application.   

 
IV. CONCLUSION 
  
The aim of this article is to criticize the jurisprudence of supra-national institutions 

for its failure to define the prohibition on “inhuman treatment.” The article argues in its first 
part that the reluctance of supra-national institutions to provide a conceptually independent 
definition for inhuman treatment has impoverished the latter’s conceptual richness and moral 
authority. In its second part, the article attempts to regain the conceptual independence of the 
term by suggesting a definition that makes inhuman treatment clearly distinguishable from 
its other kin prohibitions. To reconstruct the meaning of the term “inhuman”, the article 
introduces the “capability approach” and the notion of human functioning as keys for 
rediscovering the essence of the prohibition. Nussbaum’s capabilities approach, in particular, 
provides a solid theoretical framework that gives more precision to the term inhuman, 
without stripping it from its evaluative nature. Finally, the article suggests defining the term 
“inhuman treatment” as a treatment that diminishes or reduces the internal capabilities of the 
human person. 
 

 

                     
183

 For example, According to Article 30 of the Rome Statute a person shall be criminally liable of a crime only 
if its material elements are committed with intent and knowledge. 
184

 The UN Human Rights Committee. General Comment No. 31 “The Nature of the General Legal Obligation 
Imposed on States Parties to the Covenant” (29/3/2004). UN Doc. CCPR/C/21/Rev.1/Add. 1326,  see also 
Waldron, supra-note 74. 
 


	I. Introduction
	II. Inhuman Treatment in the Jurisprudence of Supra-National Institutions
	A. Distinguishing Torture from CIDT
	1. Severity of the Pain
	2. Purpose

	B. Blurring the Differences between the Terms Cruel, Inhuman and Degrading
	C. The Development of Jurisprudence that Lacks Sufficient Reasoning

	III. Towards Unfolding the Meaning of Inhuman Treatment
	A. Inhuman Treatment: An Introduction
	1. The Agent-Oriented Approach
	2. The Victim-Oriented Approach

	B. Human Well Being, Human Functioning and the Capability Approach
	2. Capabilities v. Functionings

	C. Inhuman Treatment Framed Within the Framework of Capabilities

	IV. Conclusion