A critical reflection on the conceptual and legal foundations of the duty to prevent torture

Abstract

The present article elaborates on the legal and normative foundations of the duty to prevent torture. It argues that the content of this duty is both deceivingly simple and complex. The duty, as currently understood, requires States to take a range of legislative, administrative, and judicial measures to prevent acts of torture. However this range of measures and approaches opens the door to endless scenarios of potential relevance, that somewhat blur the content of the duty itself. In order to circumscribe and clarify the nature and scope of the duty it is argued that, firstly, it is necessary to sever the concept of prevention from the definitional elements on which the concept of prohibition of torture is premised and to focus on the conditions known to generate a risk of torture, namely those associated with deprivation of liberty. Secondly, the article suggests that by locating the duty to prevent in a positive obligation framework, more specifically in the positive obligation 'to fulfil', the general duty can be distinguished from the measures through which the former is actually fulfilled. The article suggests that such an approach would facilitate the anticipatory potential of the prevention of torture and allow thinking more broadly about implementation strategies to eradicate torture.