Article 5 – The Prohibition of Torture

This book chapter analyses Article 5 of the Universal Declaration of Human Rights (UDHR) of 10 December 1948. It first tackles with the drafting history of the provision and other parralel developments in the 1949 Geneva Conventions and international criminal law. Reference is then made to subsequent developments in treaty law and to the customary character of the prohibition enshrined in Article 5 UDHR as well as to its recognition as a peremptory norm of international law (jus cogens). The paper then focuses on the negative side of the prohibition entailed by Article 5 UDHR and circumvents the material scope of the various notions contained therein, both in respect of treatment and punishment, through the perusal of an extensive body of case law and other elements of State practice. It then turns to some of the positive obligations ensuing from the prohibition of cruel, inhuman or degrading treatment or punishment, such as the obligations of prevention, repression and non-refoulement. In conclusion, the paper turns to the causes of the gap between the major normative developments occurred in this field since 1948 and the too frequent lack of compliance with the prohibition.