35 Right to be free from torture under International Human Rights Law – 2

Dr. Y S R Murthy

Learning Outcomes

• To gain a deep understanding of the concept of torture in international law.
• To provide an insight into the jurisprudence evolved by the international treaty bodies as well as several regional mechanisms in this regard.

Introduction

With the evolution of International Human Rights law, the practice of torture has been held to be at odds with the notion of civilized life. It was a result of this realization that the legal prohibition of torture was made absolute. It is one of those few norms under international law that has attained the status of jus cogens, sharing this position with only a handful of other inviolable rules including the prohibition of genocide and slavery.

Despite the fact that the prohibition has been made absolute, the practice of torture still continues in several parts of the world. As a result, international law experts have been continuously struggling to bring an end to this barbaric practice through instruments and procedures under the realm of international law. There is a growing body of jurisprudence in this area now. The source of this jurisprudence is coming from the functioning of various international treaty bodies as well as several regional instruments. There are several institutions under the United Nations which are particularly focusing on the complaints of torture such as the Human Rights Committee, the Committee Against Torture etc.

It needs to be mentioned that these bodies have been relatively more effective in addressing the issue of torture due to the institutionalized mechanisms. The individual complaints mechanisms of these treaty bodies empower an individual to obtain from an international body redress and justice against a State that has violated international human rights norms. These bodies thus serve a critically important function in situations where domestic legal systems fail to hold perpetrators to account for their actions.

This chapter seeks to provide an elaborate understanding of the evolving concept of torture in international law.

Torture under International Human Rights law- A Brief Overview

Torture and other cruel, inhuman or degrading treatment or punishment is prohibited under Article 7 of the International Covenant on Civil and Political Rights 1966 (ICCPR). Article 7 is supplemented by Article 10, which recognises a right of humane treatment for persons in all forms of detention, a particularly vulnerable group of people. The rights in the ICCPR are supervised and monitored at the international level by the Human Rights Committee (HRC).

Torture and other cruel, inhuman or degrading treatment is also addressed, and prohibited, by an issue-specific treaty, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT), which is monitored and supervised at the international level by the Committee against Torture (Torture Committee).

Prohibition of Torture under International Law Instruments

All international instruments that contain the prohibition of torture and illtreatment recognise its absolute, non-derogable character. In the ICCPR, the prohibition is contained in Article 7 which states in relevant part: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 4(2) of the ICCPR provides that the prohibition in Article 7 is non-derogable, “even in times of public emergency which threatens the life of the nation.”1

Human Rights Committee

Article 7 of the ICCPR has been heavily discussed in the Human Rights Committee. Several directives have come from the HRC in this regard. For instance, the General Comment 20 made the following remarks:

“The text of article 7 [of the ICCPR] allows of no limitation. The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain in force … [N]o justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons.”

The Committee against Torture

The Committee against Torture is established under Article 17 of the CAT. Its functions are set out in Part II of the treaty. The primary function of the Torture Committee to oversee the implementation of the UN Convention against Torture.

Functions of the Committee

Major Cases handled by the Committee

1. Vuolanne v. Finland

On the question of whether an act falls within the scope of Article 7 of ICCPR, the HRC said:

“depends on all the circumstances of the case…the duration and manner of the treatment, its physical or mental effects as well as the sex, age and state of health of the victim.”

2. Grille Motta v. Uruguay

The Committee gave the following constituent elements which would fall within the definition of torture:

“Systematic beatings, electric shocks to the fingers, eyelids, nose and genitals when tied naked to a metal bedframe or in coiling wire around fingers and genitals, burning with cigarettes, extended burns, extended hanging from hand and/or leg chains, often combined with electric shocks, repeated immersion in a mixture of blood, urine, vomit and excrement (“submarino”), standing naked and handcuffed for great lengths, threats, simulated executions and amputations”.

3. Khalilova v. Tajikistan (973/01)

Beatings to induce confession, as well as beatings of and ultimately the killing of the victim’s father on police premises was held to fall within the definition of torture.

Cases involving cruel and inhuman treatement

• Linton v. Jamaica (255/87)– The victim was beaten unconscious, subjected to a mock execution and denied appropriate medical care.
• Bailey v. Jamaica (334/1988)- The victim was beaten repeatedly with clubs, iron pipes and batons and left without medical care for his injuries.
• Hylton v. Jamaica (407/90)– The victim was severely beaten by prison warders and also received death threats from them.
• Deidrick v. Jamaica (619/95) The victim was imprisoned in a cell for 23 hours per day, without mattress or bedding, integral sanitation, natural light, recreational facilities, decent food or adequate medical care.

Comments of HRC on police brutality

The HRC has been proactively addressing the use of excessive force by police forces. The concerns of HRC were best expressed in the following statement with regard to the U.S.:

“The Committee reiterates its concern about reports of police brutality and excessive use of force by law enforcement officials. The Committee is concerned in particular by the use of so called less lethal restraint devices, such as electro-muscular disruption devices

(EMDs), in situations where lethal or other serious force would not otherwise have been used. It is concerned about information according to which police have used tasers against unruly schoolchildren; mentally disabled or intoxicated individuals involved in disturbed but non-lifethreatening behaviour; elderly people; pregnant women; unarmed suspects fleeing minor crime scenes and people who argue with officers or simply fail to comply with police commands. In most cases the responsible officers being found to have violated their departments’ policies.”

Cases involving Ill-treatment in Custody

The HRC has taken cases of ill-treatment in custody very seriously as they fall within the scope of Article 7 of the ICCPR.

• White v. Madagascar: A person was held for “10 months incommunicado including solitary confinement chained to a bed spring for three and a half months with minimal clothing and severe food rations, followed by a further month’s detention incommunicado in a tiny cell, followed by detention with another in a three by three metre cell without external access for eighteen months.”

This was charactersized as a case of torture.

• Wilson v. Philippines (868/99): In this case, the complainant was subjected to ill-treatment in the following manner: “There he was beaten and ill-treated in a concrete coffin. This sixteen by sixteen foot cell held 40 prisoners with a six inch air gap some 10 foot from the floor. One inmate was shot by a drunken guard, and the author had a gun placed to his head on several occasions by guards. The bottom part of his feet were struck by a guard’s baton, and other inmates struck him on the guards’ orders. He was ordered to strike other prisoners and was beaten when he refused to do so. He was also constantly subjected to extortion by other inmates with the acquiescence and in some instances on the direct instruction of the prison authorities, and beaten when he refused to pay or perform the directed act(s).” These acts were held to be violative of Article 7 of the ICCPR.

Cases involving Gender-specific forms of torture or ill-treatment: The Human Rights Committee has implied that forced abortion, forced sterilization, female genital mutilation, domestic violence against women and a lack of access to safe abortion for women who have become pregnant as a result of rape can give rise to violations of under Article 7 of the ICCPR. In addition to convictions for rape, male defendants who raped women have been convicted of torture as a war crime and a crime against humanity by the Yugoslavia Tribunal, while a defendant who committed acts of sexual violence against women was convicted by the Rwandan Tribunal of “inhumane acts” as crimes against humanity and of “causing serious bodily or mental harm to members of the group” as acts of genocide.

Cases involving Corporal punishment

The Human Rights Committee has stated that the prohibition of torture and ill-treatment under Article 7 of the ICCPR “must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure” and, in this regard, that “article 7 protects, in particular, children, pupils and patients in teaching and medical institutions”.2

Cases involving Non-consensual medical or scientific experiments

Article 7 of the ICCPR states that “no one shall be subjected without his free consent to medical or scientific experimentation”. The inclusion of a specific reference to this form of torture or ill-treatment was a reaction to atrocities perpetrated by Germany under Nazi rule, where prisoners had been subjected to infection, surgical operations, anatomical research and other experiments, usually ending in death.

In keeping with this notion, “biological experiments” are specified as a form of torture or inhuman treatment in the four Geneva Conventions of 1949, punishable as grave breaches of those Conventions, and unwarranted medical or scientific experiments are also prohibited.

In Viana Acosta v. Uruguay (110/1981), the HRC found that psychiatric experiments and tranquilizer injections against the will of the imprisoned victim constituted inhuman treatment in violation of Article 7 of the ICCPR.3

UNITED NATIONS SPECIAL RAPPORTEUR ON TORTURE

The United Nations Special Rapporteur on Torture and other Cruel, Inhuman and Degrading Treatment or Punishment stated the following with regard to the role of CAT in combating torture:

“a thorough analysis of the travaux préparatoires of articles 1 and 16 of the Convention as well as a systematic interpretation of both provisions in light of the practice of the Committee against Torture leads one to conclude that the decisive criteria for distinguishing torture from cruel, inhuman and degrading treatment may best be understood to be the purpose of the conduct and the powerlessness of the victim, rather than the intensity of the pain or suffering inflicted.”4

Gender-specific forms of torture or ill-treatment

The Special Rapporteur on torture has referred to acts of rape, sexual abuse and harassment, virginity testing, forced abortion and forced miscarriage as “gender-specific forms of torture”.

The UN Special Rapporteur on violence against women has referred to cultural practices such as female genital mutilation, honour killings, brideburning and “any other form of cultural practice that brutalizes

the female body” as practices which “involve ‘severe pain and suffering’ and may be considered ‘torture like’ in their manifestation”.

THE EUROPEAN COURT OF HUMAN RIGHTS AND TORTURE

The European Court of Human Rights has also done significant work in this area and as a result, there is a growing influence of the jurisprudence regarding torture cases.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (The European Convention) embodies all those rights and freedoms which are to be afforded persons and subsequently ascribes positive and negative obligations upon States Parties to ensure respect for those rights. The prohibition on torture and other forms of ill-treatment is enshrined in Article 3 of the European Convention, which simply states:

“Article 3 – Prohibition of Torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

Article 3 must be read together with Article 15 of the European Convention, which states that no derogation from the provisions of Article 3 can be made. Thus, the European Convention imposes an absolute prohibition on torture, inhuman and degrading treatment or punishment. Yet, whilst other international and regional treaties define these prohibited acts, Article 3 does not ascribe any definitional characteristics to torture, inhuman or degrading treatment or punishment. Accordingly, a complex and extensive body of jurisprudence has emerged from the European Human Rights judicial bodies, the European Court of Human Rights and the European Commission of Human Rights, in order to determine the definitional aspects of these forms of abuse.

Leading European Cases on torture

1. The Greek Case

This case was considered by the European Commission of Human Rights, and involved the conduct of Greek Security forces following the military coup in 1967. This is a landmark case because the European Commission adopted a general definitional approach which distinguished between the three prohibited acts, i.e. “torture”, “inhuman” and “degrading” treatment or punishment.

The most significant contribution of this judgement was that it held that defining chararacterstic of torture was the purpose for which the act was carried out rather than the severity or barbarity of it.

“[A]ll torture must be inhuman and degrading treatment, and inhuman treatment also degrading. The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable. . . . Torture . . . 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. Treatment or punishment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his will or conscience.”

In other words, whilst torture was often an “aggravated form of inhuman treatment”, this was not the distinguishing element of an act of torture. Torture was rather, the “purposive use of inhuman treatment.”5

This distinction which was first discussed in this case was further developed and considered by subsequent decisions and has been refined significantly.

2. Ireland v. U.K.

This case concerned the treatment of IRA suspects by UK troops in Northern Ireland. The case was brought by the Irish Government against the UK alleging, inter alia, that the methods of interrogation

using the “five techniques” (sleep deprivation, stress positions, deprivation of food and drink, subjection to noise and hooding), constituted a breach of Article 3.

The Court held that as a result of the use of the five techniques resulted in “if not actual bodily injury, at least intense physical and mental suffering… and also led to psychiatric disturbances during the interrogation”, and therefore fell into the category of inhuman treatment, but the practices did not “occasion suffering of the particular intensity and cruelty implied by the word torture”. –thereby overturning the earlier decision by the Commission that the practices did amount to torture.”6

3. Aydin v Turkey

In this case, the Court held that in certain particular circumstances, rape can cause severe mental and physical suffering so as to result in a situation amounting to torture.

“The rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of the victim. Furthermore, rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence…against this background the Court is satisfied that the accumulation of acts of physical and mental violence…especially the cruel act of rape to which she was subjected amounted to torture in breach of Article 3 of the Convention.”7

The Court defined the threshold of torture when the case involves rape. The crucial test is ‘severe enough’. The Court also said that it would have “reached this conclusion on either of the grounds taken separately”, i.e. the allegation of torture due to the rape and the allegation of torture due to

the other forms of physical and mental violence inflicted. Accordingly, it is arguable that in certain circumstances an act of rape alone can amount to torture.”

4. Selmouni v France

This case was significant from the point of view that it addressed and discussed the definition of torture as given under Artice 1 of the UN Convention against Torture.

The Court, citing Article 1 of UNCAT, noted that it defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” for a specific purpose. The Court stated that, having considered that the suffering inflicted amounted to inhuman treatment, “it remains to establish in the instant case whether the pain or suffering inflicted…can be defined as severe within the meaning of Article 1 of the United Nations Convention against Torture”. However, in order to determine the level of severity, the Court returned to the approach established under Ireland v UK that this is relative and depends on all the circumstances of the case.

5. HLR v France

This case was particularly significant for the simple reason that it discussed the cases where even non-state actors were involved in case of torture. Up until this point, the cases of torture were only confined to state authorities. However, in this case, the Colombian national was at the risk of being tortured at the hands of drug traffickers after being deported.

Even though in this case the threat of torture was coming from non-state authorities, the Court held the following:

“Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials.”

This reasoning was further upheld in the case of A v. UK where the Court held the following with regard to the role of non-state actors:

“The Court considers that the obligations on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals”.

Summary

Today, there is an expanded understanding of the term torture through a wealth of jurisprudence evolved by UN treaty bodies and other regional mechanisms.

Reference

1. Convention Against Torture
2. American Convention on Human Rights;
3. Arab Charter of Human Rights;
4. Inter- American Convention to Prevent and Punish Torture
5. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
6. The African Charter of Human and Peoples’ Rights prohibits torture and ill-treatment
7. Higginson v. Jamaica (792/98), § 6
8. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment of punishment, UN Doc. E/CN.4/2006/6, para 39
9. The Greek Case, (1969) Y.B: Eur.Conv. on HR, 12, page 186
10. Ireland v UK, (1978), ECHR. (Series A) No.25, §167
11. Aydin v Turkey (1997) Judgement of 25 September, §83-86.
12. Selmouni v France, (1999), 29 EHRR.
13. Viana Acosta v. Uruguay (110/1981), § 15.