United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment

1. TORTURE AND COUNTER-
TERRORISM IN INTERNATIONAL LAW
(CASE STUDY)
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2. TORTURE AND COUNTER-
TERRORISM IN INTERNATIONAL LAW

3. TOPIC STRUCTURE
• This topic will be taught in two lectures
• Lecture 1 – Torture in International and Regional Law
• Lecture 2 – Torture and Extra-ordinary Rendition

4. TORTURE IN INTERNATIONAL LAW
• Learning Outcomes
• Explore the interpretation of torture in International and Regional Law
• Examine the nature of state obligation
• Analyse the absolute nature of the prohibition on torture

5. CONVENTION AGAINST TORTURE
• United Nations Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (UNCAT)- 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.

6. INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS
• ICCPR, article 7:
• ‘No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without his
free consent to medical or scientific experimentation.’
• See also article 10, on the treatment of persons in detention with humanity and
respect for their dignity

7. REGIONAL HUMAN RIGHTS
INSTRUMENTS
• African Charter on Human and Peoples’
Rights (ACHPR): article 5
• ‘… torture, cruel, inhuman or
degrading punishment and treatment
shall be prohibited.’
• The American Convention on Human Rights
(ACHR): article 5(2):
• 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.”
• The Inter-American Convention to Prevent
and Punish Torture , article 2(1).
• European Convention for the Protection of
Human Rights and Fundamental
Freedom(ECHR):article 3
• ‘No one shall be subjected to torture
or to inhuman or degrading
treatment or punishment.’

8. TORTURE DEFINED
• Most authoritative definition is found in UNCAT, Article 1(1):
• ‘For the purposes of this Convention, the term ‘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.’

9. MAIN ELEMENTS OF TORTURE
• Infliction of Severe pain or suffering
• Physical or mental pain
• Pain or suffering must attain threshold
of severity (UK v Ireland ECtHR 1980)
• Intention
- Includes positive acts and omission.
- Recklessness would suffice for intention
(CAT)
• Purpose
• Obtain information or confession,
punishment, intimidation, incitement of
fear, coercion and discrimination
• State Action
• Public official or person acting as such
• Knowledge, instigation, lack of due
diligence
• Dzemajl and Others v Yugoslavia (CAT
2000)
• Zimbabwe Human Rights NGO Forum v
Zimbabwe (ACmHPR 2006)

10. STATE OBLIGATIONS
• Duty to exclude statements or confessions obtained by torture UNCAT, art. 15
• Jalloh v Germany (ECHR 2006);
• ‘incriminating evidence – whether in the form of a confession or real evidence – obtained
as a result of acts of violence or brutality or other forms of treatment which can be
characterised as torture – should never be relied on as proof of the victim’s guilt’
• Rationale
• Torture evidence is unreliable
• Violates fair trial rights, including the rule against self-incrimination – ACHPR, art 7;
ICCPR, art14(3) (g); ECHR, 6(1)

11. STATE OBLIGATION
• Non-refoulement, UNCAT, 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.’
• The risk of torture has to be ‘foreseeable, real and personal’ (A.R. v the
Netherlands, CAT, 2002)
• Would the risk of torture be a ‘necessary and foreseeable consequence’? (G.T.
v Australia, HRC, 1996)
• Soering v UK, ECtHR, 1989) Held, UK would breach art. 3 of the ECHR if Soering
extradited to USA because of exposure to ‘real risk’ of inhuman treatment.

12. ABSOLUTE PROHIBITION OF
TORTURE
• UNCAT, art 2(2), no exceptional circumstances such as war, threat of war, political
instability or other public emergency can justify use of torture
• ECHR, art 15, no derogation permitted even in times of war or national emergency
• Chahal v UK (ECtHR, 1996 ), the ECHR prohibits torture in absolute terms, irrespective
of victim’s conduct.
• ACHR, art 27(2), list of exceptional circumstances much broader, includes,
‘terrorism, state of siege, suspension of constitutional guarantees’

13. DIPLOMATIC ASSURANCES
• Used by states to get around the absolute nature of the prohibition on torture
• Receiving state provides assurances that the deportee would not be subjected to torture or
ill-treatment
• In general they may be good but are not always reliable
• Clear procedures must be established including:
• Strong judicial review mechanisms, post return monitoring
• Other aspects taken into account include:
• The state’s human rights record, the applicant’s characteristics, whether the terms of the
memo are specific, compliance by the local authorities, the strength of relations between
the 2 states
• Othman (Abu Qatada) v UK (2012) 55 EHRR 1

14. DIPLOMATIC ASSURANCES
• CAT, Concluding Observations on the USA, UN Doc. CAT/C/USA/CO/2, 2006, §21
• “concerned by the secrecy of such procedures including the absence of judicial scrutiny and
the lack of monitoring mechanisms put in place to assess if the assurances have been
honoured’’
• The government should “only rely on ‘diplomatic assurances’ in regard to States which do
not systematically violate the Convention’s provisions, and after a thorough examination of
the merits of each individual case.”
• Agiza v Sweden (CAT Communication No. 233/2003, 20 May 2005) “The
procurement of diplomatic assurances, which… provided no mechanism for their
enforcement, did not suffice to protect against this manifest risk.”

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