Module 1: International Legal Standards (Overview)

The exact boundaries between “torture” and other forms of “cruel, inhuman or degrading treatment or punishment” (CID or “ill-treatment”) are often difficult to identify and may depend on the particular circumstances of the case and the characteristics of the particular victim. Both terms cover mental and physical ill-treatment that has been intentionally inflicted by, or with the consent or acquiescence of, the state authorities. The ‘essentialelements’ of what constitutes torture contained in Article 1 of the Convention against Torture include:

• The infliction of severe mental or physical pain or suffering;
• By or with the consent or acquiescence of the state authorities;
• For a specific purpose, such as gaining information, punishment or intimidation.

Cruel treatment, and inhuman or degrading treatment or punishment are also legal terms. These refer to ill-treatment that does not have to be inflicted for a specific purpose, but there does have to be an intent to expose individuals to the conditions which amount to or result in the ill-treatment. Exposing a person to conditions reasonably believed to constitute ill-treatment will entail responsibility for its infliction. Degrading treatment may involve pain or suffering less severe than for torture or cruel or inhuman treatment and will usually involve humiliation and debasement of the victim. The essential elements which constitute ill-treatment not amounting to torture would therefore be reduced to:

• Intentional exposure to significant mental or physical pain or suffering;
• By or with the consent or acquiescence of the state authorities

It is often difficult to identify the exact boundaries between the different forms of ill-treatment as this requires an assessment about degrees of suffering that may depend on the particular circumstances of the case and the characteristics of the particular victim. In some cases, certain forms of ill-treatment or certain aspects of detention which would not constitute torture on their own may do so in combination with each other. Ill-treatment is, however, prohibited under international law and even where the treatment does not have the purposive element or, as far as degrading treatment is concerned, is not considered severe enough (in legal terms) to amount to torture, it may still amount to prohibited ill-treatment.^[1]

The Human Rights Committee has stated that: ‘The Covenant does not contain any definition of the concepts covered by article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.^[2]”

Over the years a wide variety of abusive acts has been declared by authoritative bodies as violating the prohibition of torture and other ill-treatment. A sample could include:

• Severe forms of beatings, including beatings on the soles of the feet
• Suspension by the arms while these are tied behind the back and similar forced positions
• Infliction of wounds or injuries
• Cigarette burns, or burns with other instruments or substances
• Electric shocks
• Rape or other sexual violence or molestation
• Near asphyxiation
• Pharmacological abuse using toxic doses of sedatives, neuroleptics, paralytics, etc
• Mock executions and mock amputations
• Forced breach of religious or cultural prohibitions or taboos such as dietary codes
• Sensory manipulation methods, such as hooding (sensory deprivation) and constant noise (sensory bombardment)
• Forced to witness torture or atrocities being inflicted on others
• Prolonged solitary confinement, particularly if combined with incommunicado detention
• Extremely poor conditions of detention
• Threats of any of the above being inflicted on the victim or family

^[1] Only the practice of the European Court of Human Rights explicitly uses the notion of relative severity of suffering as relevant to the borderline between ‘torture’ and ‘inhuman treatment’. The usual approach is to use the existence or otherwise of the purposive element to determine whether or not the behaviour constitutes torture.

^[2] Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1. at 30 (1994), para 4.

The exact boundaries between “torture” and other forms of “cruel, inhuman or degrading treatment or punishment” (CID or “ill-treatment”) are often difficult to identify and may depend on the particular circumstances of the case and the characteristics of the particular … Continue reading →

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Established in 1985 by the UN Commission on Human Rights, this mandate is a non-treaty, “UN Charter-based” body, the purpose of which is to examine international practise relating to torture in any state regardless of any treaty the state may be bound by. On the basis of information received, the Special Rapporteur can communicate with governments and request their comments on cases that are raised. He or she can also make use of an “urgent action” procedure, requesting a government to ensure that a particular person, or group of persons, are treated humanely. The Special Rapporteur can also conduct visits if invited, or given permission, by a state to do so. The reports of these missions are usually issued as addenda to the main report of the Special Rapporteur to the UN Commission on Human Rights.

The Special Rapporteur reports annually and publicly to the UN Commission on Human Rights and to the UN General Assembly. The reports to the Commission contain summaries of all correspondence transmitted to governments by the Special Rapporteur and of correspondence received from governments. The reports may also include general observations about the problem of torture in specific countries, but do not contain conclusions on individual torture allegations. The reports may address specific issues or developments that influence or are conducive to torture in the world, offering general conclusions and recommendations.

Established in 1985 by the UN Commission on Human Rights, this mandate is a non-treaty, “UN Charter-based” body, the purpose of which is to examine international practise relating to torture in any state regardless of any treaty the state may … Continue reading →

Article 11 of the Convention against Torture requires states to keep under systematic review interrogation rules, instructions, methods and practises as well as arrangements for the custody and treatment of persons under arrest, detention or imprisonment. The Human Rights Committee has stated that: ‘keeping under systematic review interrogation rules, instructions, methods and practises as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment is an effective means of preventing cases of torture and ill-treatment.’^[1] The Committee has also stated that, ‘the wording of Article 14(3)(g) — i.e. that no one shall be compelled to testify against himself or to confess guilt — must be understood in terms of the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. A fortiori, it is unacceptable to treat an accused person in a manner contrary to Article 7 of the Covenant in order to extract a confession.’^[2]

^[1] Human Rights Committee General Comment 20, para. 11.

^[2] Kelly v Jamaica, (253/1987), 8 April 1991, Report of the Human Rights Committee, (A/46/40), 1991; Conteris v Uruguay, (139/1983), 17 July 1985, 2 Sel. Dec. 168; Estrella v Uruguay, (74/1980), 29 March 1983, 2 Sel. Dec. 93.

Article 11 of the Convention against Torture requires states to keep under systematic review interrogation rules, instructions, methods and practises as well as arrangements for the custody and treatment of persons under arrest, detention or imprisonment. The Human Rights Committee … Continue reading →

Torture cannot be justified under any circumstances. The UN has condemned torture as a denial of the purposes of its Charter and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights. Torture is also prohibited by most domestic legal systems in the world. Even where there is no specific crime of torture in domestic law, there are usually other laws under which the perpetrators can be held to account. Nevertheless, acts of torture and ill-treatment remain widespread across the world.

The international community has developed standards to protect people against torture that apply to all legal systems in the world. The standards take into account the diversity of legal systems that exist and set out minimum guarantees that every system should provide. Judges and prosecutors have a responsibility to ensure that these standards are adhered to, within the framework of their own legal systems. Even if a country has not ratified a particular treaty prohibiting torture, the country is in any event bound on the basis of general international law, because the prohibition of torture is so fundamental.^[1]

The prohibition of torture in international law is notable in that it is absolute, applying at all times and in all circumstances. Article 5 of the 1948 Universal Declaration of Human Rights states: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ The right to be free from torture and other ill-treatment is taken up in major international and regional human rights treaties, including the International Covenant on Civil and Political Rights (1966), the European Convention on Human Rights (1950), the American Convention on Human Rights (1978) and the African Charter on Human and People’s Rights (1981). In 1984 the UN adopted the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, highlighting the particular attention given to this absolute prohibition, and providing additional rules to assist in prevention and investigation.

The prohibition of torture is the concern not only of those countries which have ratified particular treaties, but is also a rule of general or customary international law, which binds all states even in the absence of treaty ratification. In fact, the prohibition of torture is generally regarded as having the special status of a ‘peremptory norm’ of international law, and states cannot choose to disregard or derogate from it.

In addition to international law, many national laws will also include a prohibition of torture. However, the lack of a clear prohibition in domestic law will not release the state from its international legal obligations to refrain from and prevent torture under all circumstances, and to investigate allegations, punish perpetrators, and provide reparations to victims.

The prohibition against torture and other ill-treatment extends even to times of armed conflict, whether the conflict is international (between countries) or internal (within a single country). In times of conflict all parties have to refrain from subjecting anyone in their hands to torture and other ill-treatment, whether they are combatants taking part in the fighting, whether they no longer take part in the fighting (e.g. due to being detained, or being wounded or sick) or whether they are civilians. International humanitarian law, of which the Geneva Conventions form a part, contains laws protecting people in times of armed conflict. The prohibition against torture in humanitarian law is expressly found in a number of provisions of the four 1949 Geneva Conventions and their Additional Protocols of 1977. An act of torture committed in the context of an armed conflict is a war crime.

Torture is also considered to be a crime against humanity when the acts are perpetrated as part of a widespread or systematic attack against a civilian population, whether or not they are committed in the course of an armed conflict.

Under international law, the use of torture can be regarded as both the responsibility of the state itself and the individual criminal responsibility of persons involved. Those who carry out the act of torture can be tried in domestic and international courts.

In summary, the strong and unequivocal prohibition of torture means that torture can never be justified, in any situation, including public emergencies and even war. No case of torture, whatever the circumstances, can be ignored.

A number of UN bodies have been created by particular conventions to monitor compliance with these standards and provide guidance on how they should be interpreted. These bodies generally issue general comments and recommendations, review reports by states parties and issue concluding observations on the compliance of a state with the relevant convention. Some also consider complaints from individuals who claim to have suffered violations. In this way they can provide authoritative interpretations of the treaty provisions and the obligations that these place on states parties.

^[1] Article 38 of the Statute of the International Court of Justice lists the means for determining the rules of international law as: international conventions establishing rules, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations and judicial decisions and the teaching of eminent publicists. General international law (customary international law) consists of norms that emanate from various combinations of these sources.

Torture cannot be justified under any circumstances. The UN has condemned torture as a denial of the purposes of its Charter and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights. … Continue reading →

1. Which of the following is/are included in the UN Convention Against Torture (CAT) definition of torture?
   1. The intentional infliction of severe mental or physical pain or suffering
   2. Perpetrated by or with the consent or acquiescence of the state authorities
   3. Pain and suffering arising from lawful sanctions
   4. For a specific purpose, such as gaining information, punishment or intimidation or for any other reason
   5. All of the above
2. What distinguishes cruel, inhuman and degrading treatment or punishment (CID or ill-treatment) from torture?
   1. The use of psychological methods of abuse only, but not physical methods
   2. The degree of severity of mental or physical pain or suffering inflicted
   3. Perpetrated by or with the consent or acquiescence of state authorities
   4. Ill-treatment does not have to be inflicted for a specific purpose
   5. All of the above
3. Which of the following is a reasonable estimate of the number of countries that practice in the world today?
   1. Nearly all of the countries in the world
   2. Nearly half the countries in the world
   3. About one fourth of the countries in the world
   4. None of the above
4. International Law prohibiting torture is nearly as old as the practice of torture itself
   1. True
   2. False
5. Which of the following accurately describes the purpose of torture?
   1. To establish and maintain social control
   2. To suppress and punish political opponents and criminals
   3. To force individuals to “confess” to crimes
   4. To instill a sense of terror within a population
   5. All of the Above
6. According to the UN Convention Against Torture, which of the following conditions are exceptions for the prohibition against torture?
   1. If an official “state of emergency” is declared
   2. When domestic law allows for exceptions
   3. If the infliction of severe physical and/or mental pain was not the intent of the alleged perpetrators
   4. None of the above
7. The provision of non-refoulment in the Convention Against Torture refers to:
   1. Not allowing suspected torturers to emigrate to other countries
   2. Not returning individuals to countries where they may be tortured
   3. Not allowing individuals asylum on the basis of torture claims
   4. Not returning suspected torturers to the country where the alleged crimes were committed
8. States have legal obligations to protect individuals from torture and ill-treatment by non-state actors?
   1. True
   2. False
9. Perpetrators of torture and ill treatment are commonly officials involved in the criminal investigation process, and those responsible for the security of the state.
   1. True
   2. False
10. States do not have a legal obligation to investigate acts of torture or ill-treatment unless there has been a formal complaint about it.
    1. True
    2. False
11. Which of the following is not a condition of prison visits by the International Committee of the Red Cross (ICRC)?
    1. Access to all detainees
    2. Access at any time
    3. To interview detainees in private
    4. To make ICRC investigation findings public
12. International law prohibiting torture and ill treatment does not apply to states that have not signed or ratified relevant declarations, covenants or conventions which prohibit torture and ill treatment.
    1. True
    2. False
13. According to the Convention Against Torture, victims of torture have a right to redress and adequate compensation.
    1. True
    2. False
14. Which of the following will likely decrease the risk of torture and/or ill treatment among persons deprived of their liberty?
    1. Access to legal counsel
    2. Access to a medical doctor
    3. Regular monitoring of detention facilities by UN and regional human rights bodies
    4. Judicial remand within 24 hours of detention
    5. All of the above
15. The December 2002 Optional Protocol to the UN Convention Against Torture creates a mechanism for regular inspection, by independent international and national bodies, of all places where people are deprived of liberty, within countries that agree to be bound by this Protocol.
    1. True
    2. False
16. According to international standards:
    1. Detainees should be afforded prompt and regular access to doctors
    2. Detainees should be offered a medical examination as soon as possible after being detained
    3. Care and treatment shall be provided free of charge
    4. Detainees have the right to request a second medical opinion by a doctor of their choice
    5. All of the above
17. The UN Standard Minimum Rules for the Treatment of Prisoners state that detainees or prisoners needing special treatment must be transferred to specialised institutions or civil hospitals for that treatment.
    1. True
    2. False
18. Measures to prevent torture and ill treatment include:
    1. Effective monitoring of places of detention
    2. Prohibiting confessions obtained through torture and ill treatment
    3. Unrestricted access to one’s own lawyer and doctor
    4. Ensuring the right to legal challenge of detention before a judge
    5. All of the above
19. Measures for accountability of torture and ill treatment include:
    1. Effective investigations of allegations of torture and ill treatment
    2. Allowing torture to be prosecuted as an “abuse of police duty”
    3. Ensuring that alleged perpetrators are subject to criminal proceedings
    4. Ensuring adequate victim and witness protection
    5. All of the above
20. Because all detained people have the right to equal treatment without discrimination, differential treatment for special categories of detainees is not permitted.
    1. True
    2. False

Which of the following is/are included in the UN Convention Against Torture (CAT) definition of torture? The intentional infliction of severe mental or physical pain or suffering Perpetrated by or with the consent or acquiescence of the state authorities Pain … Continue reading →

The general right of those who have been arrested and detained to have access to legal advice is recognised in Article 14 of the ICCPR and a variety of other instruments relating to the right to a fair trial. The promptness of access to a lawyer is also most important from the point of view of preventing torture and ill-treatment. The Human Rights Committee has stressed that the protection of the detainee requires prompt and regular access be given to doctors and lawyers^[1] and that ‘all persons arrested must have immediate access to counsel’ for the more general protection of their rights.^[2] Counsel must communicate with the accused in conditions giving full respect for the confidentiality of their communications.^[3] The authorities must also ensure that lawyers advise and represent their clients in accordance with professional standards, free from intimidation, hindrance, harassment, or improper interference from any quarter.^[4]

^[1] Human Rights Committee General Comment 20, para. 11.

^[2] Concluding Observations of the Human Rights Committee: Georgia, UN Doc. CCPR/C/79/Add.74, 9 April 1997, para. 28.

^[3] Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 14 (1994), para. 9.

^[4] Ibid.

The general right of those who have been arrested and detained to have access to legal advice is recognised in Article 14 of the ICCPR and a variety of other instruments relating to the right to a fair trial. The … Continue reading →

Judges and prosecutors have a responsibility to ensure that they do not themselves, unintentionally or otherwise, collude with acts of torture while carrying out their official functions. In some legal systems, prosecutors may be directly involved in conducting interrogations in which coercive methods of extracting confessions and information are used. In some situations, prosecutors may rely on information or confessions, when conducting cases, without ensuring that the information was not obtained by coercive means.

Sometimes judges and prosecutors fail to ensure that the laws and procedures designed to protect people in detention, and prevent acts of torture and other forms of ill-treatment, are upheld. They may also fail to require that a person making a statement or confession does so in their presence; fail to explore for signs of physical or mental distress on a detainee who is brought before them; return a detainee to the custody of law enforcement officials where there is reason to believe that the detainee will suffer ill-treatment; fail to react to signs which indicate that a person may have been ill-treated even in the absence of a formal complaint; fail to sufficiently take complaints of ill-treatment seriously; fail to investigate such allegations with a view to bringing proceedings against the perpetrators; and fail to exercise their powers to carry out thorough inspections of places of detention.

Conversely, judges and prosecutors may exercise their powers to prevent and investigate acts of torture. They may demand that a suspect be brought before them at the earliest opportunity and check that he or she is being properly treated. Where they have discretion, they may interpret the balance of proof, with respect to allegations of torture and the admissibility of evidence obtained through it, in ways that discourage law enforcement officers, and those in charge of places of detention, from carrying out, or permitting others to carry out, torture and other forms of ill-treatment. They may also stay alert to all possibilities that their own courts or tribunals do not conform to the highest possible standards with respect to preventing and investigating torture.

While international law provides a basic minimum, there are also examples from different countries that can be drawn on when developing standards of good practise. The case studies contained in this manual, which only represent a brief snap-shot of such cases drawn from around the world, are intended to illustrate how judges and prosecutors have sought to combat torture within their own national jurisdictions.

Judges and prosecutors have a responsibility to ensure that they do not themselves, unintentionally or otherwise, collude with acts of torture while carrying out their official functions. In some legal systems, prosecutors may be directly involved in conducting interrogations in … Continue reading →

The UN Convention against Torture was adopted by the UN General Assembly in 1984. One hundred and thirty states were party to the Convention by August 2002. The Convention defines torture and specifies that states parties must prohibit torture in all circumstances. Torture cannot be justified during a state of emergency, or other exceptional circumstances, nor because of superior orders received by an official.^[1] The Convention prohibits the forcible return or extradition of a person to another country where he or she is at risk of torture.^[2] States must ensure that all acts of torture are offences under its criminal law – including complicity and participation in and incitement to such acts.^[3] States must establish jurisdiction over such offences in cases of torture where the alleged offenders are not extradited to face prosecution in another state, regardless of the state in which the torture was committed, or the nationality of the perpetrator or the victim (‘universal jurisdiction’).^[4] In exercising universal jurisdiction states are obliged to take suspected perpetrators of torture into custody, to undertake inquiries into allegations of torture and to submit suspected torturers to the prosecuting authorities.^[5] States must also co-operate with one another to bring torturers to justice.^[6] Statements made as a result of torture may not be invoked in evidence – except against the alleged torturer.^[7] Victims of torture also have a right to redress and adequate compensation.^[8]

The Convention against Torture also obliges states parties to take effective measures to combat torture. States undertake to train law enforcement, medical personnel, and any other persons who may be involved in the custody, interrogation or treatment of detained individuals, about the prohibition of torture and ill-treatment.^[9] Interrogation rules and custody arrangements are to be kept under review to aid in preventing any acts of torture and ill-treatment.^[10] States must actively investigate acts of torture and ill-treatment – even if there has not been a formal complaint about it.^[11] Individuals have a right to complain about acts of torture and ill-treatment, to have their complaints investigated and to be offered protection against consequent intimidation or ill-treatment.^[12] Acts of cruel, inhuman or degrading treatment or punishment that do not amount to acts of torture are also prohibited and the provisions discussed in this paragraph also apply to such acts.^[13]

^[1] Article 2, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

^[2] Article 3 ibid.

^[3] Article 4, ibid.

^[4] Articles 5, ibid.

^[5] Articles 6-8, ibid.

^[6] Article 9, ibid.

^[7] Article 15, ibid.

^[8] Article 14, ibid.

^[9] Article 10, ibid.

^[10] Article 11, ibid.

^[11] Article 12, ibid.

^[12] Article 13, ibid.

^[13] Article 16, ibid.

The UN Convention against Torture was adopted by the UN General Assembly in 1984. One hundred and thirty states were party to the Convention by August 2002. The Convention defines torture and specifies that states parties must prohibit torture in … Continue reading →

The Human Rights Committee has stated that the protection of detainees requires that each person detained be afforded prompt and regular access to doctors.^[1]

The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment state that ‘a proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary. This care and treatment shall be provided free of charge.’^[2] Detainees have the right to request a second medical opinion by a doctor of their choice, and to have access to their medical records.^[3] The UN Standard Minimum Rules for the Treatment of Prisoners state that detainees or prisoners needing special treatment must be transferred to specialised institutions or civil hospitals for that treatment.^[4]

^[1] Human Rights Committee General Comment 20, para. 11.

^[2] Principle 24.

^[3] Principle 25.

^[4] Rule 22(2) of the Standard Minimum Rules.

The Human Rights Committee has stated that the protection of detainees requires that each person detained be afforded prompt and regular access to doctors.[1] The Body of Principles for the Protection of All Persons under Any Form of Detention or … Continue reading →