This section now turns to considering torture et al. in relation to regional treaties, which complements what has been discussed in Module 5 on regional approaches.
Article 5 of the African Charter on Human and Peoples' Rights (also known as the 'Banjul Charter', adopted 1 June 1981, entered into force on 21 October 1986) provides that:
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
In contrast with other international and regional human rights systems, the African Charter places the prohibition of torture et al. within a broader list of more general forms of exploitation and degradation. This, however, does not impact upon its overall meaning and effect. Rather, in this way, article 5 seeks to "recognis[e] that there is a mutually reinforcing link between the right to dignity and the absolute prohibition of torture and other ill-treatment" (ACommHPR, 2017, para. 4).
Similarly, since the prohibition against torture is a non-derogable norm of jus cogens, the fact that the African Charter does not have a derogation clause as such from its provisions in times of emergency (see further Module 7) does not impact upon it. This position has been confirmed by the African Commission on Human and Peoples' Rights (ACommHPR) which has found that the right to freedom from torture et al. cannot be derogated from for any reason, whatever the circumstances ( Article 19 v. Eritrea, 2007, para. 98); nor may any restrictions to it be made under domestic law.
As with the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the exact demarcation between what is ill-treatment and what is torture is unclear. The African Commission has yet to provide clarification on this issue, including through more detailed consideration of the definition of torture; in the meantime, as with the United Nations treaty bodies, it views article 1 of UNCAT as an important point of interpretative departure. In terms of the guidance that does exist, the level and severity of the violations are relevant factors, with the Commission regarding torture as being the most "serious" form of ill-treatment. In terms of the scope of the article 5 of the African Charter provision, some guidance was given in the case of International Pen and Others v Nigeria where the ACommHPR found that:
Article 5 [African Charter] prohibits not only torture, but also cruel, inhuman or degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his will or conscience. ( International PEN and others v. Nigeria, 1998, para. 79).
In addition to its jurisprudence regarding communications on alleged violations of torture et al., the African Commission has been active in developing other soft, though influential, instruments. One such instrument is the Robben Island Guidelines for the Prohibition and Preventing of Torture in Africa (Niyizurugero and Lesséne, 2008), which the Commission co-authored, regarding the prohibition of torture, the prevention of torture and the rehabilitation of victims, which is intended to be implemented at the national level. An Amnesty International Report published in 2007 prior to the Guidelines adoption documented alleged acts of torture, extra-judicial executions and arbitrary arrests alleged to have been committed in 32 African nations (Amnesty International, 2007). Some, though not all, of these involved counter-terrorism cases. In terms of the meaning of torture, the Guidelines offer further guidance, such that it can be both moral and physical in nature, and that it extends to acts such as "intimidation, mutilation, beating with sticks, solitary confinement, deprivation of sleep" and so forth (Niyizurugero and Lesséne, 2008, p. 6). As with UNCAT (e.g., article 16), the Guidelines provide that States have both positive obligations to actively prevent torture from occurring as well as negative obligations not to engage in the practice themselves (Niyizurugero and Lesséne, 2008, p. 8).
In 2017, the African Commission issued General Comment No. 4 on the African Charter on Human and Peoples' Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5) (ACommHPR, 2017). As with the Robben Island Guidelines, this instrument was issued in response to the fact that "[torture and other ill-treatment] remains a serious concern throughout the African continent and the Commission recognizes the challenges which victims of torture and other ill-treatment experience in accessing and obtaining redress" (ACommHPR, 2017, para. 1). The primary purpose of the General Comment is to provide "authoritative interpretation on the scope and content of the right to redress for victims of torture and other ill-treatment in specific contexts pertinent to the African continent" at the national level, such as on implementation of ACHPR obligations, the introduction of effective monitoring mechanisms, and so forth (ACommHPR, 2017, para. 7), including in the context of counter-terrorism in both peacetime and armed conflict settings (ACommHPR, 2017, paras. 11 and 62).
The principal instrument for the prevention and punishment of torture within the inter-American system is the Inter-American Convention to Prevent and Punish Torture (IACPPT) .The foundations for the IACPPT are the more general right to life, liberty and security of person, as provided for in article 1 of the American Declaration of the Rights and Duties of Man (adopted on 2 May 1948). This was subsequently further developed by article 5 of the American Convention on Human Rights (adopted on 22 November1969, entered into force 18 July 1978) (American Charter), which states that every "person has the right to have his physical, mental, and moral integrity respected". Article 5 of the American Charter further provides that "no one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person".
Notably, so far as the definition of torture is concerned, article 2(1) of IACPPT further develops the American Declaration and American Charter provisions in the following terms, as:
[A]ny act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.
The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.
This definition is more expansive in its scope than the comparable one of UNCAT. For example, it does not have a requirement that pain should be "severe". It also has a potentially wider scope through its wording of "any other purpose", which broadens the potential grounds for alleging that a violation of torture has occurred.
In determining the material aspects of the prohibition, both the Inter-American Commission on Human Rights (IACommHR) and the Inter-American Court of Human Rights (IACtHR) have taken into account such factors as the duration of pain or suffering brought about by the acts; the reason and means in which the ill-treatment was inflicted; the overall context; the arbitrariness of the deprivation of liberty; as well as individual traits of the victims such as gender, age and societal position ( Ximenes-Lopes v. Brazil, 2006, para. 127). The IACommHR has further recognized rape as constituting torture, as was the case in Martí de Mejía v Peru (1996, para. 157). This was the first occasion in which an international body had found rape to fall within the parameters of torture. In this case, the IACommHR stated that rape was a method of psychological torture that is intended to humiliate the victim and their family. This is in line with such earlier recognition by the United Nations Special Rapporteur on torture et al. (Economic and Social Council, Commission on Human Rights report 1986/15, para. 119; see also Economic and Social Council, Commission on Human Rights summary 1992/SR.21, para. 35). This is significant in a counter-terrorism context where rape has been used within the context of interrogation to extract information or enforce confessions.
The systematic and repetitive use of torture has fulfilled the purposive element of torture according to the Inter-American Court, as in Tibi v Ecuador (2004). This case is also important for defining physical and psychological torture in the following terms:
[A]cts prepared and carried out deliberately against the victim in order to suppress their psychic resistance and force him to incriminate himself or confess certain criminal behaviours or to submit him to punishment modalities additional to deprivation of liberty itself (para. 146).
With respect to determining the intent or motivation of the alleged perpetrator, the IACtHR has provided the following guidance:
Violations of the Convention cannot be founded upon rules that take psychological factors into account in establishing individual culpability. For the purposes of analysis, the intent or motivation of the agent who has violated the rights recognized by the Convention is irrelevant - the violation can be established even if the identity of the individual perpetrator is unknown. What is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible. ( Velásquez Rodríguez Case, 1988, para. 173; Godínez-Cruz v. Honduras, 1989, para. 183).
Furthermore, as previously noted, IACtHR has been proactive in these cases of adjudicating whether or not the State demonstrated sufficient levels of due diligence to protect and guarantee these rights, i.e., whether or not it failed to take all reasonable steps, appropriate to the context (e.g., likelihood of a particular violation occurring), to prevent the violation from occurring, and subsequently took adequate steps to investigate, prosecute and ensure an adequate remedy for the affected victims. As the IACtHR made clear in the case of Loayza Tamayo v Peru (1997), any such ill-treatment is never justifiable regardless of the context, including counter-terrorism efforts:
[E]ven in the absence of physical injuries, psychological and moral suffering, accompanied by psychic disturbance during questioning, may be deemed inhuman treatment. The degrading aspect is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical and moral resistance…. That situation is exacerbated by the vulnerability of a person who is unlawfully detained.… Any use of force that is not strictly necessary to ensure proper behaviour on the part of the detainee constitutes an assault on the dignity of the person.… in violation of Article 5 of the American Convention. The exigencies of the investigation and the undeniable difficulties encountered in the anti-terrorist struggle must not be allowed to restrict the protection of a person's right to physical integrity (para. 57).
With respect to other forms of "cruel, inhuman, or degrading treatment or punishment", as with other international treaty instruments, no definition of these is given nor is the dividing line between torture and other forms of ill-treatment clear. Instead, article 6 of IACPPT merely provides that States "shall take effective measures to prevent and punish other cruel, inhuman, or degrading treatment or punishment within their jurisdiction". In this regard, the Inter-American system has tended to follow the case law of European Court of Human Rights (ECtHR) ( Lizardo Cabrera v. Dominican Republic, 1998). For example, it follows the line of thinking in relation to psychological abuse, whereby ECtHR has affirmed that in the absence of physical injuries, psychological and moral suffering, accompanied by psychic disturbance during interrogations, may be deemed inhuman treatment ( Ireland v. UK, 1978, para. 167). This was evident in the case of Loayza Tamayo v Peru,discussed in the case study below, in which the Court further explained that:
The violation of the right to physical and psychological integrity of persons is a category of violation that has several gradations and embraces treatment ranging from torture to other types of humiliation or cruel, inhuman or degrading treatment with varying degrees of physical and psychological effects caused by endogenous and exogenous factors which must be proven in each specific situation (para. 57).
Furthermore, the approach of the Inter-American system suggests that, as with ECtHR, it allows for a margin of appreciation in assessing what is torture and what is ill-treatment under the American Charter and IACPPT, based on the severity and seriousness of the case. In doing so, it adopts a case-by-case approach, taking into account such factors as the length of time the suffering lasted and the victim's personal situation. For instance, the Commission has articulated that "… while each case must be evaluated on its own circumstances, torture or other cruel, inhuman or degrading treatment could include more subtle treatments that have nevertheless been considered sufficiently cruel, such as exposure to excessive light or noise, administration of drugs in detention or psychiatric institutions, prolonged denial of sleep, food, insufficient hygiene, or medical assistance, total isolation and sensory deprivation." (IACommHR, 2002).
The prohibition against torture et al is provided for in article 3 of the European Convention of Human Rights (ECHR), which provides simply that "[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment." Once again, the provision does not define torture or other forms of ill-treatment, nor the crossing point between them. There is, however, now an extensive body of jurisprudence of both the former European Commission on Human Rights as well as that of ECHR, which provides extensive guidance regarding the interpretation of article 3. Significantly, the ECtHR has held that torture, inhuman or degrading treatment are prohibited in absolute terms, and that no derogation from this prohibition is possible even in the event of a public emergency threatening the life of the nation ( Selmouni v. France, 1999, para. 95).
The leading early cases that establish key determining principles - including how to distinguish torture from other forms of ill-treatment - are The Greek Case (1996) and Ireland v. UK (1978, para. 167). In The Greek Case, the European Commission distinguished torture from inhuman and degrading treatment, finding that these abuses existed on a spectrum of severity of intensified and a more severe form of ill-treatment. Torture was regarded as containing a special element differentiating it from other ill-treatment, namely the purpose for which it was perpetrated rather than its nature or severity. Therefore:
[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. ( The Greek Case).
This approach can be contrasted with the subsequent case of Ireland v UK, discussed in the case study below, where a limit, founded on a sliding scale of severity, of three types of degradation, was advanced. This superseded the former purposive approach to torture. This case is also significant for its determination that "the five techniques" that were employed by the authorities to extract confessions were prohibited by article 3 of ECHR as part of "lawful" interrogation methods.
The ECtHR has reached a number of other decisions regarding the meaning and scope of torture which are of especial significance to terrorism as well as counter-terrorism practices. For example, in the case of Aksoy v Turkey (1996), regarding the applicant's detention in 1992 on suspicion of aiding and abetting PKK (Workers' Party of Kurdistan) terrorists, one basis of complaint was that he had been tortured ('Palestinian hanging' i.e. stripped naked, with his arms tied together behind his back, and then suspended by his arms). The Court was of the opinion that the treatment inflicted to the applicant had been of such a serious and cruel nature that it could only be described as torture in violation of article 3.
One such determination is that ECtHR has established that rape falls within the scope of torture. This is illustrated by the case of Aydin v Turkey (1997) in which the Court held that:
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 ... [and] 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.
Selmouni v. France (1999) can similarly be considered to be a landmark case when, for the first time, the ECtHR referred to the torture definition contained in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and reverted back to the issue of purpose as a crucial element. Furthermore, it commented on the teleological nature of ECHR, including its non-static nature in relation to its interpretation of Convention provisions, including article 3:
The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture. However, having regard to the fact that the Convention is a 'living instrument which must be interpreted in the light of present-day conditions', the Court considers that certain acts which were classified in the past as 'inhuman and degrading treatment'as opposed to 'torture' could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (para. 160).
In this case the Court held that a separation between torture, inhuman or degrading treatment cannot be drawn by a basic assessment of the level of pain or suffering caused. It "depends on all the circumstances of the case such as the duration of the treatment, its physical and mental effects and in some circumstances the sex, age and state of health of the victim" ( Ireland v. UK, 1978, para. 168). Therefore, e.g., in the case of Ramirez Sanchez v. France, concerning the length of time that 'Carolos the Jackal' - considered during the 1970s to be the most dangerous terrorist in the world - had spent in solitary confinement (8 years) following his conviction for terrorist-related offences, ECtHR held that there had been no violation of article 3 (prohibition of inhuman and degrading treatment). Despite legitimate concerns about the long-term effects of such isolation, the Court was of the view that, having regard in particular to his character and the danger he posed, the conditions in which the applicant was held during the period under consideration had not reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of article 3.
The Greek Case remains important on how to determine degrading treatment, namely as a form of "gross humiliation". This meaning, together with the threshold of severity test advanced in Ireland v. UK, suggest that in the European system of human rights, degrading treatment has three key attributes: some form of interference with an individual's dignity (Council of Europe, European Commission, 1973); a certain level of severity; and "the nature of things relative" ( Tyrer v. UK, 1978), such as the circumstances of the case, the means by which the prohibited acts were carried out, etc. In general, the Court's approach has been to see whether the treatment has humiliated or debased the victim. Although there have been cases where a violation has occurred without such purpose. (See e.g. V v. UK, 1999; Peers v. Greece, 2001).
Furthermore, it is important to note that the Court has been consistent and robust in its findings that torture and ill-treatment are never justifiable, not even for counter-terrorism purposes. This is illustrated by the case of Tomasi v. France (1992), in which the State sought to justify Tomasi's ill-treatment on the grounds of his suspected involvement in a terrorist attack. The Court rejected this argument, holding that "[t]he requirements of the investigation and the undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism, cannot result in limits being placed on the protection to be afforded in respect of the physical integrity of individuals." (para. 115).
Although it does not benefit from a regional body of related jurisprudence nor from any enforcement mechanisms such as those just examined above, the relevant human rights instruments of the Asian region are considered here, namely the ASEAN Human Rights Declaration 2012 (adopted 18 November 2012) and the Asian Human Rights Charter (adopted 17 May 1998).
With respect to the Declaration, the relevant provision is article 14, which states that "[n]o person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment." No further guidance is given, e.g. how to interpret these rights or the differences between them.
As far as the Asian Human Rights Charter is concerned, unlike the Declaration, there is no single provision dealing with torture or other forms of ill-treatment. Consequently, several provisions must be considered. The first is article 3.3, which states that "in many parts of Asia, wars, ethnic conflicts, cultural and religious oppression, corruption of politics, environmental pollution, disappearances, torture, state or private terrorism, violence against women, and other acts of mass violence continue to be a scourge to humanity resulting in the loss of thousands of innocent human lives". Rather than specifying the different forms of ill-treatment that can occur, this provision details different forms of abuse which can involve the use of torture or other forms of ill-treatment. More specifically, article 3.5 provides that States have the responsibility to "thoroughly investigate" allegations of abuse including torture specifically, though no reference is made to other forms of ill-treatment. The final provision is article 14 regarding the treatment of prisoners and political detainees. In contrast with the earlier provisions, article 14.2 does expressly refer to "ill-treatment, torture, cruel and inhuman punishment" in this context, though interestingly no mention is made of 'degrading'. The text of this provision does give some guidance regarding the meaning of the specified ill-treatment (which relates also to "[a]rbitrary arrests, detention, imprisonment") through its reference to the fact that:
Detainees and prisoners are often forced to live in unhygienic conditions, are denied adequate food and health care and are prevented from having communication with, and support from, their families. Different kinds of prisoners are frequently mixed in one cell, with men, women and children kept in proximity. Prison cells are normally overcrowded. Deaths in custody are common. Prisoners are frequently denied access to lawyers and the right to fair and speedy trials.
The final instruments to consider here are those developed by the Arab League and Organization of Islamic Cooperation (OIC).
With respect to the former, article 8(1) of the Arab Charter on Human Rights 2004 (adopted 22 May 2004, entered into force 15 March 2008) largely reflects international law and the approaches of other regional human rights systems in providing that "[n]o one shall be subjected to physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment". One important exception to this, however, is that the term 'punishment' has been omitted. This is at least partially explicable to the fact that Shari'ah is either 'a' or 'the' source of law within Arab League Member States, under which the most serious category of criminal offence - hudud offences - generally carry a penalty of death which is not regarded as ill-treatment in such circumstances by the State authorities.
In contrast, the OIC does not have a binding human rights instrument. It does, however, have the influential Cairo Declaration on Human Rights adopted on 5 August 1990 (Resolution 217 A (III)). It makes provision against torture et al. in article 20 which states that:
It is not permitted without legitimate reason to arrest an individual, or restrict his freedom, to exile or to punish him. It is not permitted to subject him to physical or psychological torture or to any form of maltreatment, cruelty or indignity. Nor is it permitted to subject an individual to medical or scientific experiments without his consent or at the risk of his health or of his life. Nor is it permitted to promulgate emergency laws that would provide executive authority for such actions.
Though the different forms of ill-treatment are differently worded compared with other international and regional human rights instruments, the terms "maltreatment, cruelty or indignity" would seem to be largely comparable to "cruel, inhuman and degrading treatment". As with article 14.2 of the ASEAN Human Rights Charter, the content of article 20 of the Cairo Declaration gives some more guidance regarding its scope and meaning.
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