Study Notes on Torture and Human Rights Law

Torture

  • Definition and Significance:

    • The term ‘torture’ refers to serious offences against human dignity and personal integrity.

    • Quotation by Rhona K. Smith emphasizes its gravity in international law contexts.

    • Torture is recognized as an ancient crime that remains prevalent in modern times.

  • Impact of Torture:

    • It constitutes a severe violation of both physical and mental integrity, described as “the gravest form of treatment.”

  • Common Forms of Torture:

    • Physical Torture:

    • Beatings

    • Electroshock

    • Burns

    • Waterboarding

    • Sexual Violence:

    • Rape

    • Psychological Torture:

    • Isolation

    • Sleep deprivation

    • Sensory assault

  • Common Reasons for Torture:

    • Gathering information

    • Punishment

    • Intimidation of individuals or groups

    • Suppression of political opposition or political control

Legal Framework

  • International Law Overview:

    • The concept of torture is influenced by jus cogens norms in international law.

    • Notable legal cases include:

      • ICJ in Questions relating to the Obligation to Prosecute or Extradite, Belgium v Senegal

      • ICTY trial division in Prosecutor v. Furundžija

  • Key Legal Documents:

    • Universal Declaration of Human Rights (UDHR): Article 5 prohibits torture.

    • International Covenant on Civil and Political Rights (ICCPR): Article 7 prohibits torture and cruel treatment.

    • Convention Against Torture (CAT): Article 2 underlines the prohibition of torture.

    • Convention on the Rights of the Child (CRC): Article 37 protects children from torture.

    • Migrant Workers Convention: Article 10 includes provisions against torture.

    • Regional Human Rights Treaties: Such as the European Convention on Human Rights (ECHR).

  • Interrelationships with Other Rights:

    • Torture is closely related to rights such as the right to liberty and security of the person, as well as the right to freedom from slavery.

  • Judicial Interpretation:

    • The ICJ noted that the prohibition of torture is part of customary international law and has become a peremptory norm (jus cogens).

Classification of Rights

  • Absolute and Non-Derogable Rights:

    • Absolute Rights:

    • Rights that cannot be limited for any reason.

    • Derogable Rights:

    • Rights that may be temporarily suspended during a state of emergency (e.g., Article 4(1) ICCPR).

    • Non-Derogable Rights:

    • Rights that cannot be suspended, even in times of emergency (e.g., Article 4(2) ICCPR).

    • Torture is categorized as never permissible, under any circumstance, per Article 4 ICCPR and Article 2 CAT.

      • Examples include:

      • Article 4, ICCPR: “No derogation from articles…7 … may be made…in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed.”

      • Article 2, CAT: No circumstances, including war or political instability, may justify torture.

Torture under Convention Against Torture (CAT)

  • Article 1 Definition of Torture:

    • Torture is defined as any act inflicting severe pain or suffering, intended to extract information, punish acts, intimidate or discriminate, conducted by a public official or with their consent.

    • Criteria of Torture:

    • Severe pain and suffering (physical or mental).

    • Intentionally inflicted.

    • Purposive grounds (ulterior motive) such as coercion.

    • Requires a connection to the state (involvement of public officials).

    • Excludes suffering from lawful sanctions.

  • Article 2 Obligations:

    • Each State Party must take steps to prevent torture and acts under its jurisdiction:

    • No exceptional circumstances can excuse torture.

    • No orders from superiors can justify acts of torture.

Torture under International Covenant on Civil and Political Rights (ICCPR)

  • Definition:

    • No specific definition provided in the ICCPR.

    • The scope includes torture from both public and private sources, not only officials.

    • The duty of state parties is to protect all individuals from torture, regardless of the perpetrator's capacity.

  • General Comment #20 by UNHRC:

    • Highlights that no limitations or derogations are permissible.

    • Torture encompasses both physical and mental suffering, with non-refoulement obligations meaning individuals cannot be returned to states where they risk torture.

  • Article 7 of ICCPR:

    • States: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

    • Also prohibits involuntary medical or scientific experimentation.

Torture Standard and Threshold

  • Determining What Constitutes Torture:

    • Determination depends on nature, purpose, and severity of treatment.

    • Must reach a minimum level of severity based on circumstances, such as duration and overall effects on victim.

  • Referenced Case:

    • ECtHR in El-Masri v Macedonia: Notes severity depends on circumstances including the victim’s traits.

  • Examples of Torture:

    • Forced confessions achieved through beatings, threats, and sexual violence.

    • Described instances include the use of sensory deprivation, physical violence, and conditions leading to severe pain and suffering.

State Obligations Regarding Torture

  • Criminalization of Torture:

    • States must ensure that torture is punishable under domestic law.

  • Investigative Obligations:

    • States are required to investigate, prosecute, and punish pervasive acts of torture.

  • Non-refoulement:

    • States must not return individuals to countries where they are at risk of torture.

  • Preventative Measures:

    • States need to implement training and education for law enforcement personnel to recognize and prevent torture.

    • Safeguards should include proper documentation in interrogations.

    • Special protections for at-risk individuals or marginalized groups must be established.

  • State Responsibilities:

    • Respect: States and their officials must not engage in torture.

    • Protect: States must ensure the protection of individuals from torture by both state actors and third parties.

Ill-treatment

  • Definitions and Types:

    • Ill-treatment refers to cruel, inhuman or degrading treatment or punishment, distinctly including torture.

  • Hierarchy:

    • Torture > Other forms of ill-treatment

  • Conceptual Framework:

    • No universal definition exists for ill-treatment.

    • Inhuman Treatment:

    • Causes suffering but is of a lesser severity than torture.

    • Degrading Treatment:

    • Considered humiliating and undignified.

  • Legal Context:

    • ICCPR: Both torture and ill-treatment addressed in Article 7.

    • CAT: Article 16 separates ill-treatment from torture and addresses preventative measures.

Article 16 under the CAT

  • Commitments by State Parties:

    • Obligation to prevent cruel, inhuman, or degrading treatment which does not meet the threshold of torture.

  • Connection to State:

    • Similar to torture, requires action by or at the instigation of officials.

  • Examples of Ill-treatment:

    • Various scenarios are provided, including corporal punishment, enforced disappearances, incommunicado detention, and the failure to provide medical treatment while detained.

    • Lesser forms of physical harm or severe mental distress may also be classified as ill-treatment.

Current Developments

  • Dr. Alice Jill Edwards:

    • The current UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

    • First woman appointed to this mandate, with a tenure beginning on 1 August 2022.

  • Background:

    • Established reputation as a lawyer and scholar with significant contributions to the protection of victims of human rights violations.

    • Announced appointment underscores critical engagement with international law standards.