Torture (Part IV)

Laws against torture

On 10 December 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."  Since that time, a number of other international treaties have been adopted to prevent the use of torture. The most notable treaties relating to torture are the United Nations Conventions Against Torture and the Geneva Convention of 1949 and their Additional Protocols I and II of 8 June 1977. 

United Nations Convention Against Torture

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into force in June 1987. The most relevant articles are Articles 1, 2, 3, and 16.

Article 1

1. For the purposes of this Convention, the word "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or public authority may not be invoked as a justification of torture.

Article 3

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, 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. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.

Note several points:

• Article 1: Torture is "severe pain or suffering".  The European Court of Human Rights (ECHR) influences discussions on this area of international law. See the section other details for more details on the ECHR ruling.
• Article 2: There are "no exceptional circumstances whatsoever where a state can use torture and not break its treaty obligations."
• Article 16: Obliges signatories to prevent "acts of cruel, inhuman or degrading treatment or punishment", in all territories under their jurisdiction.

Optional Protocol to the UN Convention Against Torture

The Optional Protocol to the UN Convention Against Torture (OPCAT) entered into force on 22 June 2006 as an important addition to the UNCAT. As stated in Article 1, the purpose of the protocol is to "establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment."  Each state ratifying the OPCAT, according to Article 17, is responsible for creating or maintaining at least one independent national preventive mechanism for torture prevention at the domestic level. 

UN Special Rapporteur on Torture

The United Nations Commission on Human Rights in 1985 decided to appoint an expert, a special rapporteur, to examine questions relevant to torture. The position has been extended up to date.  On 1 November 2016, Prof. Nils Melzer, took up the function of UN Special Rapporteur on Torture.  He warned that specific weapons and riot control devices used by police and security forces could be illegal. 

Rome Statute of the International Criminal Court

The Rome Statute, which established the International Criminal Court (ICC), provides for criminal prosecution of individuals responsible for genocide, war crimes, and crimes against humanity. The statute defines torture as "intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions". Under Article 7 of the statute, torture may be considered a crime against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".  Article 8 of the statute provides that torture may also, under certain circumstances, be prosecuted as a war crime.

The ICC came into existence on 1 July 2002 and can only prosecute crimes committed on or after that date.  The court can generally exercise jurisdiction only in cases where the accused is a national of a state party to the Rome Statute, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council. The court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore reserved to individual states. 

Geneva Conventions

The four Geneva Conventions provide protection for people who fall into enemy hands. The conventions do not clearly divide people into combatant and non-combatant roles. The conventions refer to:

• "wounded and sick combatants or non-combatants"
• "civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character"
• "Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces"
• "Members of other militias and members of other volunteer corps, including those of organized resistance movements belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied"
• "Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power"
• "Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces"
• "Members of crews, including masters, pilots and apprentices, of the merchant marines and the crews of civil aircraft of the Parties to the conflict"
• "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units".

The first (GCI), second (GCII), third (GCIII), and fourth (GCIV) Geneva Conventions are the four most relevant for the treatment of the victims of conflicts. All treaties states in Article 3, in similar wording, that in a non-international armed conflict, "Persons taking no active part in the hostilities, and including members of armed forces who have laid down their arms... shall in all circumstances be treated humanely." The treaty also states that there must not be any "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" or "outrages upon personal dignity, in particular humiliating and degrading treatment".

GCI covers wounded combatants in an international armed conflict. Under Article 12, members of the armed forces who are sick or wounded "shall be respected and protected in all circumstances. They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments".

GCII covers shipwreck survivors at sea in an international armed conflict. Under Article 12, persons "who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances, it being understood that the term "shipwreck" means shipwreck from any cause and includes forced landings at sea by or from aircraft. Such persons shall be treated humanely and cared for by the Parties to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments".

GCIII covers the treatment of prisoners of war (POWs) in an international armed conflict. In particular, Article 17 says that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind." POW status under GCIII has far fewer exemptions than "Protected Person" status under GCIV. Captured combatants in an international armed conflict automatically have the protection of GCIII and are POWs under GCIII unless they are determined by a competent tribunal to not be a POW (GCIII Article 5).

GCIV covers most civilians in an international armed conflict, and says they are usually "Protected Persons" (see exemptions section immediately after this for those who are not). Under Article 32, civilians have the right to protection from "murder, torture, corporal punishments, mutilation and medical or scientific experiments...but also to any other measures of brutality whether applied by civilian or military agents." 

Geneva Convention IV exemptions

GCIV provides an important exemption:

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention [i.e. GCIV] as would ... be prejudicial to the security of such State ... In each case, such persons shall nevertheless be treated with humanity (GCIV Article 5)

Also, nationals of a State not bound by the Convention are not protected by it, and nationals of a neutral State in the territory of a combatant State, and nationals of a co-belligerent State, cannot claim the protection of GCIV if their home state has normal diplomatic representation in the State that holds them (Article 4), as their diplomatic representatives can take steps to protect them. The requirement to treat persons with "humanity" implies that it is still prohibited to torture individuals not protected by the Convention.

The George W. Bush administration afforded fewer protections, under GCIII, to detainees in the "War on Terror" by codifying the legal status of an "unlawful combatant”.  If there is a question of whether a person is a lawful combatant, he (or she) must be treated as a POW "until their status has been determined by a competent tribunal" (GCIII Article 5). If the tribunal decides that he is an unlawful combatant, he is not considered a protected person under GCIII. However, if he is a protected person under GCIV he still has some protection under GCIV, and must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention" (GCIV Article 5). 

Additional Protocols to the Geneva Conventions

There are two additional protocols to the Geneva Convention: Protocol I (1977), relating to the protection of victims of international armed conflicts and Protocol II (1977), relating to the protection of victims of non-international armed conflicts. These clarify and extend the definitions in some areas, but to date many countries, including the United States, have either not signed them or have not ratified them.

Protocol I does not mention torture but it does affect the treatment of POWs and Protected Persons. In Article 5, the protocol explicitly involves "the appointment of Protecting Powers and of their substitute" to monitor that the Parties to the conflict are enforcing the Conventions. The protocol also broadens the definition of a lawful combatant in wars against "alien occupation, colonial domination and racist regimes" to include those who carry arms openly but are not wearing uniforms, so that they are now lawful combatants and protected by the Geneva Conventions—although only if the Occupying Power has ratified Protocol I. Under the original conventions, combatants without a recognizable insignia could be treated as war criminals, and potentially be executed. It also mentions spies, and defines who is a mercenary. Mercenaries and spies are considered an unlawful combatant, and not protected by the same conventions.

Protocol II "develops and supplements Article 3 [relating to the protection of victims of non-international armed conflicts] common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application" (Article 1). Any person who does not take part in or ceased to take part in hostilities is entitled to humane treatment. Among the acts prohibited against these persons are, "Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment" (Article 4.a), "Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" (Article 4.e), and "Threats to commit any of the foregoing acts" (Article 4.h).  Clauses in other articles implore humane treatment of enemy personnel in an internal conflict. These have a bearing on torture, but no other clauses explicitly mention torture. 

Other conventions

In accordance with the optional UN Minimum Rules for Treatment of Prisoners (1955), "corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences."   The International Convention on Civil and Human Rights, (16 December 1966), explicitly prohibits torture and "cruel, inhuman or degrading treatment or punishment" by signatories.

European agreements

In 1950 during the Cold War, the participating member states of the Council of Europe signed the European Court on Human Rights. The treaty was based on the UDHR. It included the provision for a court to interpret the treaty, and Article 3 "Prohibition of torture" stated; "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

In 1978, the European Court on Human Rights ruled that the five techniques of "sensory deprivation” were not torture as laid out in Article 3 of the European Convention on Human Rights, but were "inhuman or degrading treatment" (see Accusation of use of torture by United Kingdom for details). This case occurred nine years before the United Nations Convention Against Torture came into force and had an influence on thinking about what constitutes torture ever since.

On 26 November 1987, the member states of the Council of Europe, meeting at Strasborg, adopted the European Convention for the Prevention of Cruel and Degrading Torture and Treatment (ECPT). Two additional Protocols amended the Convention, which entered into force on 1 March 2002. The Convention set up the Committee for the Prevention of Torture to oversee compliance with its provisions.

Inter-American Convention

The Inter-American Convention to Prevent and Punish Torture, currently ratified by 18 nations of the Americas and in force since 28 February 1987, defines torture more expansively than the United Nations Convention Against Torture.

For the purposes of this Convention, torture shall be understood to be any 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. 

Supervision of anti-torture treaties

The Istanbul Protocol, an official UN document, is the first set of international guidelines for documentation of torture and its consequences. It became a United Nations official document in 1999.

Under the provisions of OPCAT that entered into force on 22 June 2006 independent international and national bodies regularly visit places where people are deprived of their liberty, to prevent torture and other cruel, inhuman or degrading treatment or punishment. Each state that ratified the OPCAT, according to Article 17, is responsible for creating or maintaining at least one independent national preventative mechanism for torture prevention at the domestic level.

The European Committee for the Prevention of Torture, citing Article 1 of the European Convention for the Prevention of Torture, states that it will, "by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment".

In times of armed conflict between a signatory of the Geneva Conventions and another party, delegates of the International Committee of the Red Cross (ICRC) monitor the compliance of signatories to the Geneva Conventions, which includes monitoring the use of torture. Human rights organizations, such as Amnesty International, the World Organization Against Torture and Association for the Prevention of Torture work actively to stop the use of torture throughout the world and publish reports on any activities they consider being torture. 

Municipal law

States that ratified the United Nations Convention Against Torture have a treaty obligation to include the provisions into municipal law. The laws of many states therefore formally prohibit torture. However, such de jure legal provisions are by no means a proof that, de facto, the signatory country does not use torture. To prevent torture, many legal systems have a right against self-incrimination or explicitly prohibit undue force when dealing with suspects.

The French 1789 Declaration of Rights of Man and of the Citizen, of constitutional value, prohibits submitting suspects to any hardship not necessary to secure his or her person.

The U. S. Constitution and U. S. law prohibits the use of unwarranted force or coercion against any person who is subject to interrogation, detention, or arrest. The Fifth Amendment to the United States Constitution includes protection against self-incrimination, which states that "[n]o person...shall be compelled in any criminal case to be a witness against himself". This serves as the basis of the Miranda warning, which U. S. law enforcement personnel issue to individuals upon their arrest. Additionally, the U.S. Constitution's Eighth amendment forbids the use of "cruel and unusual punishment”," which is widely interpreted as prohibiting torture. Finally, 18 U.S.C. § 2340 et seq. define and forbid torture committed by U.S. nationals outside the United States or non-U.S. nationals who are present in the United States. As the United States recognizes customary international law, or the law of nations, the U.S. Alien Claim and Tort Act and the Torture Prevention Torture Act also provides legal remedies for victims of torture outside of the United States. Specifically, the status of torturers under the law of the United States, as determined by a famous legal decision in 1980, Filatriga v. Pena Irala F. 2d 876 (2^nd Cir. 1980), is that, "the torturer has become, like the pirate and the slave trader before him, hostis humanis generis, an enemy of all mankind." 

Exclusion of evidence obtained under torture

International law

Article 15 of the 1984 United Nations Convention Against Torture specifies that:

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

A similar provision is also found in Article 10 of the 1985 Inter-American Convention to Prevent and Punish Torture:

No statement that is verified as having been obtained through torture shall be admissible as evidence in a legal proceeding, except in a legal action taken against a person or persons accused of having elicited it through acts of torture, and only as evidence that the accused obtained such statement by such means.

These provisions have the double dissuasive effect of nullifying any utility in using torture with the purpose of eliciting confession, as well as confirming that should a person extract statements by torture, this can be used against him or her in criminal proceedings. The reason for this is because experience has shown that under torture, or even under a threat of torture, a person will say or do anything solely to avoid the pain. As a result, there is no way to know whether or not the resulting statement is actually correct. If any court relies on any evidence obtained from torture regardless of validity, it provides an incentive for state officials to force a confession, creating a marketplace for torture, both domestically and overseas. 

Within national borders

Most states have prohibited their legal systems from accepting evidence that is extracted by torture. The question of the use of evidence obtained under torture has arisen in connection with prosecutions during the War on Terror in the United Kingdom and the United States. 

United Kingdom

In 2003, the United Kingdom's Ambassador to Uzbekistan, Craig Murray, suggested that it was "wrong to use information gleaned from torture".  The unanimous Law Lords judgment on 8 December 2005 confirmed this position. They ruled that, under English law tradition, "torture and its fruits" could not be used in court.  But the information thus obtained could be used by the British police and security services as "it would be ludicrous for them to disregard information about a ticking bomb if it had been procured by torture."

Murray's accusations did not lead to any investigation by his employer, the FCO, and he resigned after disciplinary action was taken against him in 2004. The Foreign and Commonwealth Office itself is being investigated by the National Audit Office because of accusations that it has victimized, bullied and intimidated its own staff.

Murray later stated that he felt that he had unwittingly stumbled upon what has been called "torture by proxy".  He thought that Western countries moved people to regimes and nations where it was known that information would be extracted by torture, and made available to them.

Murray states that he was aware from August 2002 "that the CIA were bringing in detainees to Tashkent from Bagram airport Afghanistan, who were handed over to the Uzbek security services (SNB). I presumed at the time that these were all Uzbek nationals—that may have been a false presumption. I knew that the CIA was obtaining intelligence from their subsequent interrogation by the SNB." He goes on to say that he did not know at the time that any non-Uzbek nationals were flown to Uzbekistan and although he has studied the reports by several journalists and finds their reports credible he is not a firsthand authority on this issue.

During a House of Commons debate on 7 July 2009, MP David Davis accused the UK government of outsourcing torture, by allowing Rangzieb Ahmed to leave the country (even though they had evidence against him upon which he was later convicted for terrorism) to Pakistan, where it is said the Inter-Service Intelligence was given the go ahead by the British intelligence agencies to torture Ahmed. Davis further accused the government of trying to gag Ahmed, stopping him coming forward with his accusations, after he had been imprisoned back in the UK. He said, there was "an alleged request to drop his allegations of torture: if he did that, they could get his sentence cut and possibly give him some money. If this request to drop the torture case is true, it is frankly monstrous. It would at the very least be a criminal misuse of the powers and funds under the Government's Contest strategy, and at worst a conspiracy to pervert the course of justice." 

United States

In May 2008, Susan J. Crawford, the official overseeing missions before the Guantanamo military commission, declined to refer for trial the case of Mohammad al-Qahtani because she said, "we tortured [him]."  Crawford said that a combination of techniques with clear medical consequences amounted to the legal definition of torture, and that torture "tainted everything going forward."

On 28 October 2008, Guantanamo military judge Stephen R. Hawley ruled that the government cannot use statements made as a result of torture in the military commission case against Afghan national Mohammed Jawad. The judge held that Jawad's alleged confession to throwing a grenade at two U.S. service members and an Afghan interpreter was obtained after armed Afghan officials on 17 December 2002, threatened to kill Jawad and his family. The government had previously told the judge that Jawad's alleged confession while in Afghan custody was central to the case against him. Hina Shamsi, staff attorney with the American Civil Liberties Union.  National Security Project stated: "We welcome the judge's decision that death threats constitute torture and that evidence obtained as a result must be excluded from trial. Unfortunately, evidence obtained through torture and coercion is pervasive in military commission cases that, by design, disregard the most fundamental due process rights, and no single decision can cure that."  A month later, on 19 November, the judge again rejected evidence gathered through coercive interrogations in the military commission case against Afghan national Mohammed Jawad, holding that the evidence collected while Jawad was in U.S. custody on 17–18 December 2002, cannot be admitted in his trial, mainly because the U.S. interrogator had blindfolded and hooded Jawad in order to frighten him.

In the 2010 New York trial of Ahmed Ghailani who was accused of complicity in the 1998 U. S. bombings in Tanzania and Kenya, Judge Lewis A. ruled evidence obtained under coercion inadmissible. The ruling excluded an important witness, whose name had been extracted from the defendant under duress.  The jury acquitted him of 280 charges and convicted on only one charge of conspiracy.