Topic 6 - Prohibition of Torture Flashcards
Prohibition of torture - customary law and jus cogens
- Prohibition of torture is customary law
o Binds all states irrespective of whether they have signed and ratified 1984 UN Convention on Prohibition of Torture
o Filartiga v Pena Irala - Even though states have not consented to be bound by treaty, they are still bound by the customary international law - Jus Cogens
o Article 53 Vienna Convention on Law of Treaties 1969 – jus cogens character means is non-derogable
Prohibition of torture under ICCPR
o Article 7 – no one shall be subjected to torture
o Article 10 – all persons deprived of their liberty must be treated in humane manner
o Article 2 – protection to all within a state’s jurisdiction
o What is torture?
No definition of torture – problematic as states can get away with whatever they regard as not being torture (level varies)
Estrella v Uruguay – threats of arms being cut off, electric shocks, punches and kicks, water-boarding, psychological stress all amounted to torture
US – waterboarding not regarded as torture
Guantanamo Bay – detention of individuals involved conditions amounting to torture or at least to inhumane treatment
Mukong v Cameroon – detaining individuals in secret locations was violation of article 7 – secret locations means torture cannot be traced. Detention must be in known location so that people have opportunity to speak with lawyers and challenge their detention
o Distinction between torture and inhumane treatment
Vuolanne v Finland – distinction between torture and inhumane/degrading treatment depends on all circumstances e.g. duration and manner of treatment, physical and mental effects of victim
Mukong v Cameroon – Human Rights Committee stated minimum standard of confinement should be satisfied e.g. floor space, sanitary facilities, clothing, bed, food
o Does capital punishment violate Article 7?
Article 6(2) – allows death penalty
NG v Canada – when imposing capital punishment, the execution must be carried out in such a way as to cause the least possible physical and mental suffering. Gas asphyxiation would amount to torture
Cox v Canada – execution by lethal injection was not breach of article 7
Death Row Phenomenon - Individuals convicted to death penalty are able to appeal their convictions and evidence against them. This may take decades to be heard (20-30 years). Someone convicted and sentenced to death penalty are held in solitary confinement, no interactions with other prisoners, greater restrictions to their rights – have to endure this for 20-30 years. Is this a violation of Article 7. Human Rights Committee (Barrett et al v Jamaica) said that it is not in violation as the system of death row is there to ensure the right to a fair trial as give those convictions opportunity to appeal conviction, even if this takes years to happen
UN Convention Prohibiting Torture and Inhuman/Degrading Treatment 1984
o Article 1 – torture means severe pain/suffering intentionally inflicted for obtaining information/confession/punishment/intimidation by a public official or person acting in official capacity
Actually gives a definition of torture whereas other treaties do not
o Article 2 – duty to take effective measures to prevent acts of torture
o Article 3 – no state party shall expel, return or extradite where there are substantial grounds of danger to be subjected to torture
o Article 5 – states must establish jurisdiction over the offences if:
act is committed in territory under its jurisdiction,
when the alleged offender is a national of that State,
when the victim is a national of that State if that State considers it appropriate
o Article 7 – obligation on states to try individual suspected of being involved in torture. Does not matter where torture has taken place, states have obligation to try individuals in their domestic courts
Committee Against torture (CAT)
o Established by UN Convention
o Article 20 – monitoring measures. Only achieved with co-operation and consent of state
ECHR on prohibition of torture
o Article 3 – No one shall be subjected to torture or inhuman/degrading treatment or punishment
o Ireland v UK – extrajudicial powers of arrest, detention and internment. Court found techniques amounted to inhuman and degrading treatment but did not satisfy intensity and cruelty to amount to torture
o Aksoy v Turkey – applicant suspended naked by arms which were tied behind his back. First time ECtHR held this was torture
o Aydin v Turkey – raped by police whilst in custody. This was torture
o Selmouni v France – ECHR a living instrument so what may not have been torture in past may be torture today
o Soering v UK –
Related to individual wanted for murder in US. Alleged to have killed girlfriend’s parents. Fled and came to UK. UK had an extradition agreement with US and UK under legal obligation to extradite Soering back to US to stand trial for murders he was wanted for.
Soering took case to ECtHR arguing that extraditing him to US where he faced possibility of death penalty would violate Article 3 rights.
UK argued that any violations occurring outside its territory could not be held responsible for.
ECtHR dismissed UK’s argument and took view that states parties to ECHR have obligations to protect rights of individuals from harm that may occur extraterritorially and have a duty to not subject individuals to human rights violations as a result of extradition.
Concluded that torture is an absolute prohibition with no derogations or restrictions. Reaffirmed that torture requires high degree of seriousness because of the level of harm it invokes.
Therefore extraditing Soering would be a violation of Article 3 – there were substantial grounds and real risk to be subjected to treatment that violates Article 3
o Article 2 – no one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction for a crime
Death Penalty – not unlawful where it is imposed by a court of law as punishment for a specific crime. Also not a violation of Article 3 as long procedure in death row ensures fairness
o Gafgen v Germany –
Kidnapping of 14 year old boy by Gafgen. Gafgen was identified by police as a suspect but did not have substantial evidence on which they could convict him for the kidnapping and eventual killing of the boy. Police threatened Gafgen with torture to obtain a confession about where the body of the boy was.
ECtHR emphasised that prohibition of torture continues to be absolute even in these circumstances. Police not justified to exempt themselves from this prohibition.
Gafgen only threatened with torture, did not actually occur. ECtHR said threat itself was not of sufficient seriousness to meet threshold of torture but did constitute inhumane and degrading treatment. Still constituted violation of Article 3 but not on basis of torture.
Gafgen argued the use of evidence obtained through threat being used to secure conviction meant that Article 6 was also violated – ECtHR did not agree. If evidence is based on information collected in breach of Article 3 then this raises issues of fairness of proceedings. However, the court made distinction between absolute character of Article 3 with qualified nature of right to fair trial (Art 6). Trial only unfair if evidence collected in violation of Article 3 had decisive impact on conviction of person. If conviction based on other evidence, this would not effect fairness of proceedings. Gafgen had confessed his crime during appearance before General regional Court so conviction based on evidence found by trial at regional court
Prohibition of torture in HRA
o Article 3 – Prohibition of torture
o Commissioner of Police of the Metropolis v DSD and another - sexual assault committed by a black cab taxi driver. Two victims reported their assault to the police but no action was taken. They later initiated proceedings for failure to conduct an effective investigation into the crimes as required by article 3 HRA (positive obligation of duty to prohibit torture – inhuman/degrading treatment or punishment).
Laws which prohibit conduct constituting a breach of Article 3 must be rigorously enforced and complaints investigated
Errors in investigation to give rise to breach of article 3 must be egregious and significant
The jurisprudence of the Strasbourg court is clear and constant on the issues which this court has to decide. Even if it were not, however, I would firmly reject the suggestion that the decision of this court on whether the respondents enjoy a right under the HRA to claim compensation against the appellant should be influenced, much less inhibited, by any perceived absence of authoritative guidance from ECtHR
UK complicity in torture in war against terror
Binyam Mohamed
* Kidnapped and held in secret for 2 years. Detained in Pakistan when questioned by MI5 officers. Transferred to Morocco where subjected to torture. Then tortured under US custody. Took case to UK court
* Secretary of State tried to keep information obtained confidential as would be compromise to national security/intelligence to share – also protecting themselves as were complicit in torture?
* CofA - Whilst confidentiality important for public intertest, it was not a constitutional principle and instead was actually in the public interest to disclose the information
Rangzieb Ahmed
* Interviewed by British officers in Pakistan – British officers had knowledge he had been tortured/ obvious to them
RB (Algeria); MT (Algeria; OO (Jordan)
* Complaint that that if individuals deported, they would face trial on basis of evidence obtained by torture. Could UK proceed with extradition or not? HofL concluded that trial based on secret evidence on a safe return was not unfair and did not breach principle of legality. State should assure individual not subject to torture on extradition. However, not necessary for state to make all assurances, there is no control over this.
* According to the HoL there was no rule to indicate that the use of evidence obtained by torture would lead to unfair trial or a miscarriage of justice.
A and others v Secretary of State
* UK authorities not directly involved – should they still be able to use the information obtained since they did not actively torture to get the information?
* Article 15 1984 Convention Against Torture – evidence obtained through torture must be excluded
* Evidence obtained through torture was inadmissible – however, the HoL held that such evidence should not be excluded if the Special Immigration Appeals Commission was unable, on the balance of probabilities, to conclude that there was a real risk that the evidence was obtained by torture. Possibility of being obtained by torture should only be taken into account when assessing the evidence
* Dissenting opinions – if there is any doubt, then the evidence should not be admitted
US complicity in torture in war against terror
2002 US Memorandum on Torture –
* Torture required an extremely high degree of physical pain.
* If organs still working, this is not torture
* President not restricted by prohibition of torture
* This was met with fierce criticism – how can President set aside human rights obligations?
New 2004 Memorandum
* Withdrew the 2002 memorandum
US Senate Select Committee on CIA’s Detention and Interrogation Program 2014
* Interrogations were brutal and far worse than CIA represented to policymakers
* Justification for enhanced interrogation techniques rested on inaccurate claims of their effectiveness
* CIA provided inaccurate information to Department of Justice, impeding proper legal analysis of their techniques
* CIA rarely reprimanded or held members accountable for violations and inappropriate techniques
Can torture ever be justified? (4 academics)
Greer - advocates for allowing torture under certain circumstances where life is threatened/needed to save lives of individuals – why should we protect the rights of a suspected criminal over the rights of the victims – context of Gafgen, life of a child taken as a result of criminal activity and so why should we respect Gafgen’s human rights
Mavronicola - argues that cannot treat prohibition of torture and right to life as conflicting interests as parties in each situation are different. Right to life is another private individual whereas prohibition of torture is a public authority.
* Distinction between negative obligation not to commit torture to positive obligation to protect life which is not absolute and subject to constraints
* Refutes Greer’s arguments that there is ever a positive duty to torture, in order to save lives or fight terrorism
Twiss – rather than debating about the wrongness of torture, we ought to improve intelligence gathering, analysis and coordination to prevent a scenario where torture is actualized
Spurrier – Gafgen decision is dangerous as it delivers message to law enforcers that inhuman treatment can be permitted when its ends justify its means, but does so in an unclear and unprincipled approach. Therefore Gafgen decision does not lay down an unequivocal principle to defeat the arguments that inhuman treatment affords no justification.
