In addition to the International Covenant on Civil and Political Rights (ICCPR), as has been noted already, there is a dedicated convention against torture, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). As was previously discussed, UNCAT does not define the concepts of "torture" or "cruel, degrading and inhumane treatment" per se. Instead, the approach of Article 1 of this Convention is to identify elements which cumulatively may constitute acts of "torture" et al. These key elements are:
As UNCAT is very widely ratified, with 166 States parties, the definition of torture contained in article 1 has been widely regarded as reflective of customary international law. The second paragraph of article 1, however, stresses that the definition is for the purposes of the Convention and does not prejudge broader concepts of torture in domestic law or under other international instruments.
As with article 7 of ICCPR, derogation from UNCAT's provisions is not possible due to the absolute nature of the prohibition against torture (Committee Against Torture conclusions and recommendations CAT/C/CR/31/4; CAT/C/USA/CO/2). In reinforcing its non-derogable character in a counter-terrorism context, the United Nations Committee against Torture recognized:
[T]he difficulties that the State Party [faces] in its prolonged fight against terrorism, but [recalls] that no exceptional circumstances whatsoever [can] be invoked as a justification for torture, and [expresses] concern at the possible restrictions of human rights which may result from measures taken for that purpose. (CAT/C/CR/31/4).
Article 1 cannot be used to restrict other, broader definitions, such as the one provided by article 2 Inter-American Convention to Prevent and Punish Torture (IACPPT) (adopted 9 December 1985, entered into force 28 February 1987) considered below. As will be seen, IACPPT has a more expansive definition than that of UNCAT, since it does not require certain levels of severity to be met in order for a violation to have occurred.
An important area of ambiguity relates to whether article 1 requires the establishment of an intention to cause severe pain and suffering or an intention to specifically commit the act in question. Another debated issue is whether article 1 covers only acts, or whether it extends also to omissions. Notably, whilst the Human Rights Committee has not always regarded omissions as constituting torture, the Committee against Torture has made it clear that States must be responsible for both the acts and omissions of their agents and officials, meaning that a State is not permitted to be free from responsibility for its obligation to prevent torture, including through any omission. (Committee Against Torture General Comment No. 2 CAT/C/GC/2, para. 15).
Whereas the ICCPR does not distinguish between whether the perpetration of torture or other forms of ill-treatment were carried out by a public official or private person, UNCAT specifically requires the involvement of a public official ( Prosecutor v. Kunarac, Kovać and Vuković, 2002, para. 146). That said, arguably - as was held by the IACtHR in a series of cases on disappearances (see e.g. Velásquez Rodríguez, 1988; González et al. v. Mexico, 2009) - that does not exonerate a State from its wider obligations of due diligence under international law to prevent acts of torture et al. from being perpetrated by non-State actors nor from investigating and prosecuting such persons for these human rights violation crimes. In circumstances where there is an increased likelihood of acts of torture et al. occurring, such as through their regular recurrence, the standard of what is considered to be 'reasonable' and 'appropriate' measures will be much higher.
Instead, what the public official requirement does mean is that States are not responsible for the acts or omissions of other private entities per se. UNCAT does specify a spectrum of required public official involvement with the lowest level of 'acquiescence' to be present before torture can be established. What amounts to 'acquiescence' as the basic requirement for State liability is therefore crucial. Two cases are illustrative here. The first is the case of Agiza v. Sweden (Committee Against Torture views CAT/C/34/D/233/2003) which concerned the expulsion of a suspected terrorist from Sweden to Egypt on national security grounds following protracted proceedings and the giving of diplomatic assurances by Egypt that the complainant would not be ill-treated if returned. The other case is Alzery v. Sweden, (Human Rights Committee views CCPR/C/88/D/1416/2005) concerned similar issues, with the additional element that Mr Alzery was immediately expelled to Egypt from Sweden in pursuit of an unreviewable executive decision and abusive treatment in detention with the involvement of foreign agents. The Committee against Torture reached a very similar conclusion in both cases, namely that acts which "occurred in the course of performance of official functions in the presence of the State party's officials and within the State party's jurisdiction, are properly imputable to the State party itself, in addition to the State on whose behalf the officials were engaged" ( Agiza v. Sweden,e.g para. 13.4; Alzery v. Sweden, e.g. para. 11.6).
All that said, developments in international law since UNCAT was adopted do suggest that torture may be committed too in some circumstances without the instigation, consent or acquiescence of a public official or other person acting in an official capacity, for instance by perpetrators affiliated with a rebel militia or a private security company. The Statute of the International Criminal Court (1998, articles 7 and 8) and the Elements of Crimes adopted by the Assembly of States Parties to assist the Court in the interpretation and application of the Statute (Elements of Crimes articles 7(1)(f), 8(2)(a)(ii)-1 and 8(2)(c)(i)-4)) does not specify as an element of torture that the perpetrator must be acting in an official capacity.
In contrast, in the non-refoulement case of GRB v Sweden, in response to the State asserting that the acts of a terrorist group were not attributable to the public authorities, the Committee against Torture agreed, observing that "whether the State party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a nongovernmental entity, without the consent or acquiescence of the Government, falls outside the scope of article 3 of the Convention" (CAT/C/20/D/083/1997, para. 6.5). Even under UNCAT, however, the State must respond in a reasonable and adequate manner to such acts and take measures to prevent them (United Nations, Committee Against Torture, 1998). The Committee against Torture has expressly confirmed a standard of due diligence in assessing whether an official has shown acquiescence in practices that infringe UNCAT (see articles 1 and 16). Both the ICCPR and UNCAT contain a duty to investigate claims of torture or cruel, inhuman or degrading treatment.
Article 16 of UNCAT provides that States must prevent "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.… when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". This requirement provides some assistance in distinguishing torture from other forms of ill-treatment. That said, even with the existence of article 16, the Committee against Torture has acknowledged the ambiguity surrounding the threshold between torture and cruel, inhuman or degrading treatment (CAT/C/GC/2, para. 3). It has though stated that, just as with the prohibition against torture, the prohibition on inhuman and degrading treatment "must be observed in all circumstances".
In seeking to clarify the situation, former Special Rapporteur on torture et al., Manfred Nowak, regarded article 1 of UNCAT as the point of reference for defining torture (Economic and Social Council, Commission on Human Rights report E/CN.4/2006/6, p. 12). He was of the view that "the decisive criteria for distinguishing torture from [other forms of ill-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" (para. 39). The circumstances must then be assessed for other forms of ill-treatment through the test of proportionality and necessity.
UNCAT further provides that States must enforce domestic legislation that criminalizes torture. Article 4 of UNCAT states:
As can be seen, this provision, however, only applies to torture and not to other types of ill-treatment.
It is important, at this juncture, to also mention the establishment of jurisdiction under article 5 of UNCAT. This requires States parties to "take such measures as may be necessary to establish its jurisdiction over the offences" in relation to acts of torture specified in article 4, in the following circumstances:
1. (a). When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State.
(b). When the alleged offender is a national of that State.
(c). When the victim is a national of that State if that State considers it appropriate.
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.
As the discussion of jurisdiction in Module 4 explained, jurisdictional issues can be controversial, especially that of universal jurisdiction established by customary international law whereby States can have the legal ability, but not the legal duty (depending on factors such as their internal laws), to exercise universal jurisdiction over international crimes of torture. The case of Marcos Roitman Rosenmann v. Spain is illustrative here (Committee Against Torture views CAT/C/28/D/176/2000). This case concerned Spain's initially unsuccessful request to the United Kingdom to extradite former Chilean dictator, Augusto Pinochet, to face prosecution in Spain for the torture of Spanish citizens in Chile during his rule (1973-1990). The Committee against Torture concluded that while States have extraterritorial jurisdiction over acts of torture committed against their nationals, article 5(1)(c) UNCAT establishes "a discretionary faculty rather than a mandatory obligation to make, and insist upon, an extradition request" (Committee Against Torture views CAT/C/28/D/176/2000, para. 6.7). The Committee further stated that "the Convention imposes an obligation [on a State Party] to bring to trial a person, alleged to have committed torture, who is found in its territory", in order to try to prevent impunity for torture. In accordance with articles 7 and 8 of UNCAT, the State on whose territory the alleged perpetrator is found can either prosecute him or else extradite him to another State party to UNCAT respectively (CAT/C/28/D/176/2000; CAT/C/CR/30/6).
Key obligations in respect of torture, inhuman and degrading treatment or punishment
All States are under obligations to (i) prevent torture, inhuman and degrading treatment; (ii) investigate allegations of torture, inhuman and degrading treatment (iii) prosecute or extradite persons suspected of such conduct; (iv) ensure that a victim of an act of torture, inhuman or degrading treatment obtains redress. These obligations are explicitly enshrined in the UNCAT, but - according to the case law of the international human rights courts and bodies - they equally arise under the other major international human rights treaties. Other very important obligations also exist, notably the obligation of non-refoulement.
Prevention: Article 2(1) UNCAT states that "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction". This obligation requires a range of measures including the training of public officials (including law enforcement and prisons officers, judges and prosecutors), safeguards with regard to places of detention (such as providing prompt access to a lawyer and to medical professionals, as well as keeping records of places of detention in accordance with international standards), the criminalization of torture and the prompt investigation of allegations of torture or inhuman and degrading treatment. It also requires appropriate punishment for those found to have been involved in ill-treatment.
Criminalization: All States are required to ensure that all acts of torture and of complicity or participation in torture are offences under their criminal law (article 4 UNCAT).
Obligation to investigate: Article 12 UNCAT provides that "Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction." Article 13 adds: "Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given."
Prosecution (or extradition): There is a clear obligation under international law to prosecute those responsible for torture. This obligation is inherent in all of the major international human rights treaties and is given clear expression in article 7 UNCAT. Where a person alleged to have committed or been complicit in torture is found in the territory of a State, that State is obliged to either initiate an investigation with a view to prosecution, or to extradite the suspect to a requesting State.
Reparations: Victims of torture must also be assured an effective remedy, including compensation. Article 14(1) CAT states that '[e]ach State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.'
One other principle that should be mentioned here for completeness, which is discussed at some length in Modules 3 and 10, is that of non-refoulement, especially since the absolute prohibition against torture could be regarded as being its cornerstone principle. The principle was first articulated in Article 33 (1) of the 1951 Convention relating to the Status of Refugees, which states that: "No Contracting State shall expel or return (' refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
This principle of non-refoulement can arise in a counter-terrorism context, such as when one State would like to extradite a terrorist suspect to another country to face trial (e.g., the extradition of Abu Qataba by the UK to Jordan) ( Osman v. UK, 1998).
Once again, in its General Comment No. 20, the Human Rights Committee gives guidance on this matter: "In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. States parties should indicate in their reports what measures they have adopted to that end." (A/44/40, para. 9).
Notably, though both article 7 of ICCPR and article 3 of UNCAT underpin non-refoulement, the potential reach of article 7 is wider in that it is not limited to torture, but rather extends to other forms of ill-treatment.
Since non-refoulement is underpinned by the prohibition of torture as a jus cogens norm, the courts have been robust in its protection, including in terrorism related contexts. This is illustrated by the leading ECtHR case of Chahal v. UK in which an individual was threatened with removal from the UK due to his suspected involvement in terrorist activity. The Court, whilst acknowledging the difficulties faced by States in protecting their citizens from terrorism, nevertheless rejected any suggestion that such security imperatives be balanced against this absolute prohibition. As such, it was unequivocal in stating that national security interests could not supersede the rights of the individual where significant grounds existed for believing that a person would be subjected to torture or other forms of ill-treatment upon expulsion ( Chahal v. UK, 1996). ECtHR has retained this robust stance in more recent cases such of Saadi v. Italy (2008).
Despite these unequivocal obligations existing on States, under both customary international and treaty law, the Special Rapporteur on torture et al. has noted previously that in quite a number of cases the principle of non-refoulement was not respected. In particular, he observed that a number of governments had returned alleged terrorist suspects to countries where there was a significant risk of those persons being subjected to unlawful acts of torture or ill-treatment, in the name of countering terrorism. The Special Rapporteur was of the view that diplomatic assurances do not provide adequate safeguards against torture or ill-treatment, considering them to be ineffective (General Assembly report 60/316).
In the context of multi-national counter-terrorism operations, the Committee Against Torture has affirmed that UNCAT applies to all territories where a State exercises effective control. Therefore, article 3 of UNCAT applies when a State transfers a detained person in their custody to the custody of another State. Significantly, this obligation extends to circumstances where the transfer is made from one authority to another authority, but within the same territory (e.g., by Allied Forces to local national authorities as occurred in Iraq and Afghanistan). This means that an individual will be protected under article 3 and the principle of non-refoulement even in circumstances where an international boundary has not been crossed (CAT/C/GC/2; Droege, 2008). As the case study below on Elmi v. Australia reveals, sometimes the principle of non-refoulement can apply equally to non-State actors which are de facto governing a territory and not only to State authorities.