Week 10 - Integrity of the Person

Yassin vs. Tanzania Background

Claim That the Sentence Was Cruel The applicant also argues that his 30-year prison sentence was far too harsh. He says it amounted to inhuman and degrading punishment, which Article 5 of the Charter forbids.

Tanzania Says Judges Must Follow Sentencing Laws Tanzania rejects the claim. It argues that when sentencing someone for a crime, its courts are required to apply the Penal Code and the Minimum Sentence Act.

Tanzania Says the Sentence Was Fair Tanzania says the trial court and both appeals courts fairly applied the law and considered every factor in the applicant's favor. For that reason, it asks the Court to dismiss the claim as baseless.

The Sentence Given The Court notes the sentence the District Court actually imposed. It was 30 years in prison plus 12 strokes of the

Legal Standard

What Article 5 Says Article 5 of the Charter guarantees every person respect for their human dignity and recognition of their legal status. It bans all forms of exploitation and degradation, including slavery, torture, and cruel, inhuman, or degrading punishment and treatment.

The Robbery Law Applied The Court notes that the Tanzanian courts relied on Section 286 of the Penal Code. That law set 20 years in prison for robbery, and up to life in prison, with or without corporal punishment, if the robber was armed, had accomplices, or used violence.

How to Define Torture For the caning, the Court notes that the Charter itself doesn't define torture or cruel, inhuman, or degrading treatment. So it falls back on the UN Convention Against Torture's definition, which it had already adopted in Alex Thomas v. Tanzania: officials intentionally causing severe physical or mental pain for purposes such as punishment or getting a confession.

The Ban Is Read Broadly The Court says the ban on cruel and degrading treatment should be read as broadly as possible, covering any serious physical or mental suffering or humiliation. What matters most is how severe the pain or suffering is.

UN Bodies Condemn Corporal Punishment The UN Special Rapporteur on Torture has said corporal punishment is inconsistent with the international ban on torture and cruel treatment. The UN Human Rights Committee has likewise said the ban covers corporal punishment, including excessive physical punishment ordered for a crime.

The Jamaica Whipping Case In Osbourne v. Jamaica, the UN Human Rights Committee found that whipping a prisoner with a tamarind switch broke international law. The Committee said that corporal punishment is always cruel, inhuman, and degrading, no matter how brutal the crime.

The European Birching Case In Tyrer v. United Kingdom, the European Court of Human Rights held that court-ordered physical punishment is state-sanctioned violence of one person against another. Even without lasting injury, treating the person as an object under the authorities' control attacks their dignity and bodily integrity.

The Sudan Lashing Case In Doebbler v. Sudan, the African Commission reviewed sentences of 25 to 40 lashes given to eight students. It held that no government has the right to use physical violence as punishment, because that would amount to state-sponsored torture.

Three Tests for a Dignity Violation The Court restates three factors for deciding whether Article 5 has been violated: the ban has no exceptions and is absolute, and it must be read to give the widest possible protection against physical or mental abuse. The third factor is that suffering and humiliation take many forms, so each case depends on its own facts.

Legal Reasoning

The Prison Term Was Within the Law The Court finds that the 30-year prison term was within what Section 286 allowed for the crime. It also notes that the District Court took into account the factors the applicant raised in his favor.

Prison Term Upheld Given this, the Court finds no basis for a violation as to the prison term. It holds that the 30-year sentence did not violate the applicant's right to be free from inhuman and degrading punishment.

The Caning Was Upheld but Maybe Never Carried Out The Court notes that the High Court and the Court of Appeal fully upheld the District Court's sentence, including the 12 strokes of the cane. However, the record does not show whether the caning was actually carried out.

Tanzania's Laws Contradict Each Other Tanzania's own Constitution bans torture and inhuman or degrading punishment. Yet several of its laws still allow corporal punishment as a sentence, including the Corporal Punishment Act, parts of the Penal Code (for example, for rape), and the Criminal Procedure Act.

The Caning Sentence Violated His Dignity The Court holds that having laws that allow corporal punishment itself breaches the Charter. Because the threat that the caning could still be carried out adds to the applicant's mental suffering, his sentence of 12 strokes violated his right to dignity under Article 5.

Ferstman - How Torture is treated in international human rights law

Where the Torture Ban Came From The drafters of the Universal Declaration of Human Rights were reacting to Nazi medical experiments in concentration camps. From the start, then, the torture ban was about cruelty inflicted on powerless people.

Banned Everywhere, Yet Still Practiced Torture is banned almost everywhere, yet it continues, partly because some states define it narrowly, treat some people as unworthy of protection, or justify it by pointing to needs like national security. Some states have tried to carve out exceptions, such as sending people to places where they may be tortured, but courts have mostly refused.

Treaties and Guidelines Devoted to Torture Several treaties deal specifically with torture, most notably the UN Convention against Torture (UNCAT), along with European and Inter-American treaties. Many non-binding guidelines also address it, including codes for police and doctors, the Istanbul Protocol on investigating torture, Africa's Robben Island Guidelines, and the Nelson Mandela Rules for prisoners.

General Human Rights Treaties Ban It Too The torture ban also appears in broad human rights treaties, including the main UN civil rights treaty (the ICCPR) and the European, American, African, Arab, and Southeast Asian human rights instruments. It is also written into treaties protecting children, women, people with disabilities, and migrant workers.

Torture in War and as an International Crime The laws of war, including the Geneva Conventions, ban torture, cruel treatment, and humiliating treatment of civilians and others not fighting. Torture can also be a war crime or a crime against humanity, which international courts like the ICC can prosecute.

The Ban Has No Exceptions The torture ban can never be suspended, so no one may be tortured, whether a foreigner, a suspected terrorist, a convict, or someone believed to know about planned crimes. It cannot be weighed against national security, it binds every state, and it is a top-tier rule of international law that no treaty can override.

Debate Over "Lesser" Ill-Treatment It is less clear whether the ban on cruel, inhuman, or degrading treatment (short of torture) is equally absolute, because UNCAT says the torture ban can't be suspended but says nothing about lesser ill-treatment. Still, the UN Committee Against Torture and the UN Special Rapporteur say both bans have no exceptions, since conditions that allow ill-treatment often lead to torture.

How Far the Top-Tier Status Reaches There is also debate about what exactly has this top-tier legal status. It may cover only the act of torture itself, or also the related duties UNCAT imposes, such as preventing and prosecuting torture.

Ferstman - Defining Torture

What Torture Is and Why It's So Harmful Torture is the deliberate infliction of severe pain for a purpose such as forcing, punishing, scaring, or discriminating, and its worst feature is that those meant to protect people abuse their power. It can permanently change victims, causing shame, stigma, and long-term psychological harm beyond the physical injuries.

The Official UN Definition UNCAT defines torture as intentionally causing severe physical or mental pain to get information or a confession, to punish, to scare or coerce, or for discriminatory reasons. It must involve a public official, and it excludes pain that results only from lawful punishments.

How the UN Definition Works Unlike the earlier 1975 declaration, UNCAT doesn't call torture a worse form of cruel treatment, adds discrimination as a purpose, and judges acts by their nature, purpose, and severity rather than by a fixed list. Acts that fall short of torture can still be cruel, inhuman, or degrading treatment if severe enough, and they need no special purpose, so even force used for a lawful reason counts if it goes too far.

The Four Elements The UNCAT definition has four main parts. The chapter looks at each in turn and at how far it appears in other treaties and guidelines.

Element 1 — How Severe the Pain Must Be "Severity" is the level of pain needed to count as ill-treatment and to tell torture apart from lesser ill-treatment. This threshold exists in human rights law, the laws of war, and international criminal law, but its meaning is vague and depends on circumstances.

A Minimum Severity for Ill-Treatment Although UNCAT's provision on lesser ill-treatment doesn't mention severity, courts have still required a minimum level, as in the Greek case and Ireland v. UK. That level is judged flexibly, based on the type of treatment, its length, its effects, and the victim's sex, age, and health.

Severity Is Only One Factor Severity is just one of several factors used to separate torture from lesser ill-treatment. Scholars also recognize that how an act is labeled can change over time as standards and values change.

Examples Courts Have Called Torture The European Court found torture in hanging a person by arms tied behind the back (Aksoy v. Turkey), and in rape combined with other violence (Aydin v. Turkey). The African Commission likewise requires a severity threshold and found torture in the brutal beatings and death threats in Abdel Hadi v. Sudan.

Judging Severity Is Hard Courts and scholars have long struggled to decide whether an act is severe enough to be torture. They debate whether to judge by what the victim actually felt or also by what would normally cause severe pain.

Problems With Both Approaches, and the Rape Example A general standard ignores that each victim experiences pain differently, while a victim-based test depends on how tough the victim is and on judges' sometimes biased views of credibility, and judges tend to rank physical harm above mental harm. A tribunal's rule that rape always meets the severity test spares victims painful questioning, but critics say it stereotypes women and may downplay the mental suffering caused by other gender-based crimes.

Element 2 — A Specific Purpose The act must be done for a specific purpose, which is central to the UNCAT definition. The UN Special Rapporteur says what really separates torture from lesser ill-treatment is its purpose and the victim's powerlessness, more than how much pain is caused.

Purposes Are Read Broadly The list of qualifying purposes is read broadly and is not limited. International cases have accepted forcing self-incrimination, scaring the public, humiliation, and discrimination.

Purpose in International Criminal Law The purpose requirement appears in international criminal cases and in the ICC's definition of torture as a war crime, but not as a crime against humanity. Courts have sometimes assumed a purpose, holding that rape by someone in authority always involves punishment, coercion, discrimination, or intimidation rather than just private pleasure.

Element 3 — Involvement of a Public Official Under UNCAT, torture must be carried out, encouraged, or allowed by a public official or someone acting officially. As two experts put it, international law cares about cruelty only when it has official approval.

Critiques and Widening the Official Requirement Feminist scholars argue that this requirement focuses too narrowly on men abused in custody and ignores private violence, especially when states fail to protect victims. That critique has had only indirect effect, mainly by widening "official" to include groups acting like governments, as in Elmi v. Australia (Somalia) and the UK Supreme Court's Reeves Taylor decision.

State Duty to Protect Against Private Abuse States must take reasonable steps to prevent and respond to abuse by private actors, such as disappearances, domestic violence, and violence between prisoners. But this has not led courts to call private violence "torture" or to prosecute private actors or negligent officials for torture.

International Criminal Law Drops the Official Requirement International criminal law, by contrast, does not require a public official: the Rwanda tribunal treated rapes by a crowd that an official stirred up as torture. Later cases held that torture needs no official involvement at all, and the ICC requires only that, for crimes against humanity, the victim be in the abuser's custody or control.

Prosecuting Armed Groups but Not Other Abusers This approach has led to prosecutions of rebel group members, because what matters is the act itself, not the abuser's status. That reasoning hasn't been applied outside war, such as to abuse in care homes or of trafficking victims, even though abuse of power over the powerless is the whole point of the torture ban.

Element 4 — The "Lawful Punishment" Exception UNCAT excludes pain that comes only from lawful punishments, but a punishment must be lawful under international law, not just national law, to qualify. Corporal punishments like lashing, whipping, and flogging have been held to violate the ban.

Ferstman - Duty of States regarding Torture

What States Must Not Do States must not commit, allow, or help others commit torture or ill-treatment, and must not send anyone to a country where they face a real risk of it. In Chahal, the European Court held this ban on deportation is absolute even when national security is at stake, with only narrow room for diplomatic promises of humane treatment.

No Evidence Obtained by Torture Statements obtained by torture or ill-treatment can't be used in court, except against an accused torturer to prove the statement was made. Using such evidence, even indirectly, ruins the fairness of a trial, and the rule applies even when another country's officials did the torturing.

What States Must Actively Do States must take effective legal and practical steps to prevent torture and must take reasonable care to prevent serious private violence. They must also investigate, prosecute or extradite torturers, and protect victims from retaliation, even for acts abroad in dangerous settings.

Remedies for Survivors States must give torture survivors a remedy, including compensation and rehabilitation. UNCAT guarantees survivors an enforceable right to fair compensation and as full a recovery as possible, and states must also prevent it from happening again.

Ferstman - Torture v. Lesser Ill-Treatment

Practices Found to Be Torture Whether conduct is torture depends on the facts of each case. Practices found to be torture include beating the soles of the feet, sustained beatings, near-drowning, and rape.

Practices Found to Be Lesser Ill-Treatment Courts have called some conduct ill-treatment rather than torture, such as the suffering of families of the disappeared, secret transfers of people abroad for interrogation, solitary confinement, bad prison conditions, corporal punishment, and some death penalty practices. There is no clear formula, because courts must look at each case and at how the person affected experienced the treatment.

UNCAT's Split Leaves Gaps By treating torture and lesser ill-treatment separately, UNCAT leaves gaps: it doesn't clearly ban deportation, require criminal laws, guarantee compensation, or exclude evidence for lesser ill-treatment. Courts and the UN Committee have mostly filled these gaps, treating both as one spectrum of abuse that states must prevent, ban, and remedy.