The right to freedom from torture is enshrined in many human rights instruments and protects all individuals from being intentionally subjected to severe physical or psychological distress by, or with the approval or acquiescence of, government agents acting for a specific purpose, including to inflict punishment or to obtain information. Under international humanitarian law, which applies in the context of armed conflict, the consent, action or acquiescence of a State agent is not necessary in order for the abuse to constitute torture.
As one of the most universally recognized human rights, the prohibition of torture has attained status as a jus cogens or peremptory norm of general international law, also giving rise to the obligation erga omnes (owed to and by all States) to take action against those who torture. As such, the prohibition may be enforced against a State even if it has not ratified any of the relevant treaties, and the prohibition is not subject to derogation, even in times of war or emergency.
Cruel, inhuman, or degrading treatment or punishment is usually also prohibited in international instruments that forbid torture. Cruel, inhuman or degrading (CID) treatment, as compared to torture, involves a lower level of suffering and need not be inflicted for a specific purpose.
Determining whether certain treatment rises to the level of ‘torture’ can be a challenge and will depend on which legal instrument applies, based on which treaties, if any, the State in question has ratified and whether the victim or advocate is engaging with the United Nations system or a regional human rights system.
The prohibition of torture and inhuman treatment is enshrined in the following regional and universal human rights instruments:
Taking the various treaties together, the right to freedom from torture includes the following rights and obligations:
1) the right of individuals to be protected by the State from torture by its agents;
2) the State’s duty to prosecute torturers; and,
3) the right of individuals not to be returned or extradited to another State where they may face the danger of torture.
The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides the most precise and widely-cited definition of torture under international law. It defines torture as:
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.
Thus, the Convention Against Torture identifies the following three elements that, if combined, constitute torture: 1) intentional infliction of severe pain or suffering; 2) for a specific purpose, such as to obtain information, as punishment, or to intimidate, or for any reason based on discrimination; and, 3) by or at the instigation of or with the consent or acquiescence of State authorities. What rises to the level of ‘torture’ or other prohibited behavior is further defined through an extensive body of case law, as described in greater detail below.
Torture is distinguished from other forms of mistreatment based on a context-and fact-specific analysis of the intent with which the suffering is inflicted and the severity of the treatment. If the suffering does not satisfy the definition of torture, the victim may still be able to show the infliction of cruel, inhuman, or degrading treatment or punishment, which does not require a showing of the actor’s specific intent, but must still reach a minimum level of severity.
According the International Rehabilitation Council for Torture Victims (IRCT):
Some of the most common methods of physical torture include beating, electric shocks, stretching, submersion, suffocation, burns, rape and sexual assault.
Psychological forms of torture and ill-treatment, which very often have the most long-lasting consequences for victims, commonly include: isolation, threats, humiliation, mock executions, mock amputations, and witnessing the torture of others.
The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) contains widely accepted standards for identifying victims of torture and documenting and reporting the abuse.
The infliction of torture is also a “grave breach” of core international humanitarian law under the Geneva Conventions (in particular, Common Article 3), which are designed to limit the effects of armed conflict. As a result, infliction of torture may constitute a war crime. Under the Geneva Conventions, States are obligated “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed” such acts and are obligated to “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and [to] bring such persons, regardless of their nationality, before its own courts” if these persons are not extradited to another State party. See First Geneva Convention, art. 49. The conventions protect both civilians and military personnel from torture. The International Committee of the Red Cross (ICRC) has produced an information kit on National Enforcement of International Humanitarian Law.
Torture may also constitute a “crime against humanity” or “war crime” under international criminal law, as specified in the Rome Statute of the International Criminal Court (arts. 7 and 8). Thus, infliction of torture can be investigated and prosecuted by the International Criminal Court, subject to its jurisdictional limits.
The principle of non-refoulement prohibits rendering a victim of persecution to their persecutor, and applies to States in the context of their extradition and immigration policies. This obligation was first enshrined in Article 33 of the United Nations Convention Relating to the Status of Refugees, which provides that “[n]o 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 duty is reiterated in Article 3 of the Convention Against Torture, and explained further in the Committee’s General Comment no. 4. [IJRC]
For example, in the United States, asylum eligibility is established by a showing that the applicant has suffered or has a “well-founded fear” that he or she will suffer “persecution.” Persecution includes activities that do not fall within the relatively narrow definition of torture.
Even if an individual is not eligible for asylum, the State may not remove the individual to a country where he or she would face a real risk of torture.
The prohibition of torture, cruel, inhuman, or degrading treatment or punishment is implemented in the UN system through the human rights treaty bodies, including the Human Rights Committee, the Committee Against Torture and the Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In addition, the UN Human Rights Council’s special procedures may investigate and report on allegations of torture. For example, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is authorized to examine questions related to torture in all UN Member States, including through urgent appeals, country visits, and reporting.
Enforcement is also available through the individual complaints mechanisms of regional human rights tribunals, including the European Court of Human Rights, the Inter-American Court of Human Rights, Inter-American Commission on Human Rights, African Commission on Human and Peoples’ Rights, and the African Court of Human and Peoples’ Rights.
As outlined above, the prohibition of torture also requires governments to take measures to prevent and punish torture, and many States criminalize torture in their national laws. The Geneva Conventions and Convention against Torture obligate States to extradite or prosecute those responsible for torture. Governments may also exercise universal jurisdiction to prosecute those responsible for torture, and Member States of the International Criminal Court have an obligation to cooperate with the court in the investigation and prosecution of crimes falling within its jurisdiction, including torture. In times of armed conflict, the International Committee of the Red Cross monitors compliance with international humanitarian law.
SELECTED CASE LAW
A significant body of case law addresses what activities are prohibited by regional and universal treaties’ provisions on torture and inhuman treatment.
Useful online sources on the prohibition of torture include the following:
Reproduced By Kind Permission of IJRC.
UNDERSTANDING THE CPTA
The CPTA (originally the ‘Robben Island Guidelines Follow-up Committee’) was created by the adoption of Resolution 61 of the 32nd Ordinary Session held in Banjul, The Gambia in October 2002. The Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa, adopted in 2002, were a tool to assist States in implementing their obligations under Article 5 of the African Charter on Human and Peoples’ Rights. By Resolution 158, adopted at the 46th Ordinary Session held in Banjul, the Gambia in November 2009. Click here for more information
The use of the term “genocide” as an international crime arose in the aftermath of the Holocaust. After the Nuremburg trials revealed the horrible extent of Nazi crimes, the U.N. General Assembly passed a resolution in 1946 making the crime of genocide punishable under international law. Click here for more information
WAR CRIMES & CRIMES AGAINST HUMANITY
According to the International Criminal Court, “War crimes include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. Click here for more information
Sixty prisoners in Sierra Leone share a 25 sq m cell and are locked in for 16 hours at a stretch with a single bucket for a toilet. There are no beds or mattresses, and scabies and other infectious diseases are rife. The prison was built to accommodate around 300 inmates, but now holds more than 1,100, including many juveniles. Click here for more information
In many conflicts in Africaopponents of the government or people just in the wrong place at the wrong time, have disappeared.Forced disappearance is abduction by state officials or their agents, without due process of law, followed by an official refusal to acknowledge the abduction or to disclose the fate of the person abducted. Click here for more information
We bring cases against former military commanders, paramilitary leaders, and government officials who execute prisoners without a full and fair trial. Summary execution or extrajudicial killing is a tactic used to terrorize a population and enforce compliance. In nearly all jurisdictions, summary execution is illegal as an arbitrary deprivation of the right to life. Click here for more information
AU REHAB FOR TORTURE VICTIMS
The African Commission on Human and People’s Rights (ACHPR) adopted Resolution 303 on the right to rehabilitation for victims of torture during its 56th Ordinary Session, held from April 21 – May 7, 2015, in Banjul, the Gambia. See ACommHPR, Res. 303: Resolution on the Right to Rehabilitation for Victims of Torture, 56th Ordinary Session, 21 April- 7 May, 2015. Click here for more information