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Torture, Inhuman, and Degrading Treatment
The prohibition of torture is one of the few absolute and imperative obligations of international law recognized and accepted by States. It applies in situations of peace and internal disturbances and tensions as well as in situations of armed conflict, on the basis of different relevant international conventions. Those imperative norms belong to jus cogens . The prohibition of torture is accompanied by an international system of criminal sanctions. It is also completed by international imperative obligations aiming at preventing and limiting the use of torture. Those obligations compel States to uphold judicial and minimal guarantees in matters of detention, interrogation, and defense of national security. States must investigate and punish abuse committed by State agents. The prevention of torture also relies on the accountability of medical actors involved in the assistance of detained persons and on the reinforcement of rules of medical ethics applicable in those situations.
Despite these international and regional obligations, the use of torture in order to obtain information necessary for the protection of national security, or to punish or terrorize individuals, remains a permanent temptation to States. Torture is also practiced by non-state armed groups in situations of armed conflict.
The practice of torture is intimately linked with other forms of detention and interrogation. Its prevention must therefore rely on the strengthening of judicial and legal guarantees concerning detention, as well as on the existence of the right to effective remedies for all persons deprived of their liberty, whatever their specific legal status. It also relies on the accountability of all actors involved in activities of detention, whether detaining authorities that monitor the factual or legal situation of detainees or other actors involved in detention such as relief or humanitarian workers.
The persistence of this practice is a challenge that requires a thorough examination of the flaws and weaknesses of the interpretation and application of international law in this area. Those weaknesses were particularly highlighted and extensively discussed from a legal point of view in the context of the practices implemented in 2001 by the U.S. administration in the detention and interrogation of detainees in the war against terrorism.
The legal arguments used to justify these abuses have led international courts to clarify in jurisprudence the content of the definition of torture and the obligations relating to its prohibition.
Torture is prohibited by numerous international and regional instruments, which are applicable in situations of peace or armed conflict. Those instruments give slightly different definitions of torture. Indeed, they adapt to specific objectives: accountability of States toward the behavior of their organs or agents, criminal repression, or the control of relief and humanitarian actions.
Key Elements of the Various Definitions
The various definitions of torture revolve around three main concepts: (1) the intentional infliction of physical or psychological pain; (2) the fact that this pain is inflicted with one or several specific objectives comprising obtaining confessions or information, obliterating the personality of the victim, or diminishing physical or mental capacities; (3) the fact that those acts are performed by State agents, under its control or with its consent.
- The threshold of pain required to qualify torture is present in certain conventions but is not specified in others. This threshold is often subject to restrictive interpretations by States. Conventions relative to torture broaden the prohibition to cover cruel, inhuman, or degrading treatment, which includes acts that do not amount to torture as traditionally defined. International jurisprudence also gives landmarks to examine the threshold of pain required for the qualification of torture (infra).
- The prevention of torture is intimately linked to the guarantees relative to human rights and humanitarian law, with regard to conditions of detention and interrogation in times of peace or armed conflict. In general, detention is not justified by judicial considerations but security reasons. Its goal is not to judge but to extract information. Several governments involved in the war against terrorism have challenged the entire set of fundamental and judicial guarantees applicable in times of peace and armed conflict. International and national courts have, however, reaffirmed those guarantees. In order to limit the use of torture for judicial reasons, international conventions often prohibit the use of confessions or testimonies obtained under torture during trials.
- The fact that the torturer acts as a State agent is not required in international humanitarian law conventions applicable in situations of armed conflict. This softening of the definition in situations of conflict is intended to cover the abuse committed by all the actors involved in activities of detention and interrogations, including non-state armed groups and other non-state authorities. Similarly, the condition of State agent is not required by the Statute of the International Criminal Court for the repression of torture as a war crime or a crime against humanity. This requirement is contained in the Convention against Torture, as it frames the international commitment of states to control and sanction their own agents involved in such practices.
- All the conventions exclude from the definition of torture the pain or suffering arising only from lawful sanctions. Such sanctions shall be pronounced by a regularly constituted court and in respect of judicial guarantees, notably the right to a fair trial. Death penalty and corporal punishments, authorized in several domestic penal codes, are therefore excluded from the definition of torture in times of peace. In situations of armed conflict, this clause of exclusion must be implemented with precaution. Indeed, humanitarian law imposes specific judicial guarantees and set requirements on the regularly constituted character of judicial institutions that are authorized to pronounce lawful sanctions against categories of protected persons by the law of armed conflict.
Provisions Contained in Human Rights Conventions
Three specific instruments prohibit torture and cruel, degrading, or inhumane treatment:
- At the international level: the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (known as the Convention against Torture, or CAT), adopted on 10 December 1984 by the UN General Assembly and entered into force in 1987. This Convention has 158 States Parties as of June 2015. The Convention created the Committee against Torture, which monitors implementation of the Convention by its States Parties. All States Parties are obliged to submit regular reports to the Committee on how the rights are being implemented nationally. Under certain circumstances, the Committee may also consider individual complaints or communications from individuals claiming that their rights under the Convention have been violated, undertake inquiries, and consider interstate complaints (Arts. 17–24). ▸ State of Ratification of Humanitarian Law and Human Rights Conventions, no. 14
- At the regional level:
—The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, adopted on 26 November 1987 by the Council of Europe and entered into force on 1 February 1989. Forty-seven States have ratified it as of February 2013. ▸ State of Ratification of Humanitarian Law and Human Rights Conventions, no. 15
—The Inter-American Convention to Prevent and Punish Torture, adopted on 9 December 1985 under the aegis of the Organization of American States (OAS) and entered into force on 28 February 1987. It currently has eighteen States Parties. ▸ State of Ratification of Humanitarian Law and Human Rights Conventions, no. 16
The Convention against Torture defines torture as
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” for purposes such as:
- obtaining information or a confession from the individual or a third person;
- punishing an individual for an act he or she, or a third person, committed or is suspected of having committed;
- intimidating or coercing the individual or a third person;
- any reason based on discrimination of any kind.
Such pain and suffering is inflicted by, at the instigation of, or with the express or implicit 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 (Art. 1).
This definition imposes the existence of several cumulative conditions. Indeed, it is completed by the obligation for each State Party to prevent acts of cruel, inhuman, or degrading treatment or punishment that do not amount to torture, 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 (Art. 16).
The definition provides a broad interpretation of the position of “public official.” Indeed, the acts of torture remain covered by the definition and attributable to the State or its agents, even if they are not directly committed by him or her but with his or her “consent or acquiescence.” This consent or acquiescence can be presumed in cases where the State fails to comply with other essential obligations imposed by the Convention, such as investigating acts of torture, sanctioning the authors of such acts, and ensuring effective remedies for victims.
Indeed, under the international Convention, State Parties shall ensure that education and information regarding the prohibition against torture are fully included in the training of civil or military law enforcement personnel, medical personnel, public officials, and other persons who may be involved in the custody, interrogation, or treatment of any individual subjected to any form of arrest, detention, or imprisonment. States Parties shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person (Art. 10).
States Parties shall keep under systematic review interrogation rules, instructions, methods, and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention, or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture (Art. 11).
States Parties shall also ensure that their competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction (Art. 12).
They shall ensure that any individual who alleges he has been subjected to torture benefits from judicial remedies and receives compensation (Arts. 13–14).
Finally, States Parties shall ensure that any statement that 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 (Art. 15).
The Convention against Torture provides that 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 (Art. 2.2). Moreover, an order from a superior officer or a public authority may not be invoked as a justification of torture (Art. 2.3).
The Convention prohibits States Parties to expel, return ( refouler ), or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture (Art. 3).
States Parties shall ensure that all acts of torture are offences under their criminal law (Art. 4), and as such shall put to trial any of their agents who engage in such practices. State Parties shall also take appropriate legislative measures as may be necessary to establish their jurisdiction when the offences are committed in any territory under their jurisdiction, when the alleged offender is a national of that State, or when the victim is a national of that State if that State considers it appropriate (Art. 5).
This is the application of the principle of universal jurisdiction, used at the international level for the most serious crimes.
The circumscription of the definition of torture to acts committed by State agents can be explained by the willingness to concentrate the mechanism of international repression on acts for which the capacity and readiness of national authorities to punish such acts will be deficient. Cruel, inhumane, or degrading treatment perpetrated by individuals or groups who would not be State agents are not covered by the definition of the Convention against Torture (CAT). They remain, however, prohibited and punished under national and international criminal law.
The definition of torture contained in the Inter-American Convention to Prevent and Punish Torture includes the notion of mental or psychological torture, defined as 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” (Art. 2). This Convention restates the main provisions and obligations contained in the Convention against Torture. It specifies and adapts them to the regional framework, notably the obligations linked to extradition and the principle of universal jurisdiction, and those guaranteeing suitable compensation for victims of torture (Art. 9). It does not create any specific committee, but the Inter-American Court and Commission are competent to examine crimes of torture.
The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment completes the prohibition of torture contained in Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Those two instruments do not give a definition of torture, but they provide mechanisms of prevention and repression. The Convention created a Committee for the Prevention of Torture (CPT, see relevant entry). This Committee is mandated to visit any places of detention in the territory of members of the Council of Europe. The European Court of Human Rights is competent to receive and rule on complaints concerning acts of torture that would constitute violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Torture is also prohibited by international or regional conventions relative to human rights law and in a broader sense by humanitarian law:
- The 1949 Universal Declaration of Human Rights (Art. 5);
- The 1966 International Covenant on Civil and Political Rights (Art. 7);
- The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 3);
- The 1978 American Convention on Human Rights (Art. 5);
- The 1981 African Charter for Human and People’s Rights (Art. 5);
- The 1949 Geneva Conventions (Common Art. 3);
- The 1977 First Additional Protocol to the Geneva Conventions (Art. 75.2);
- The 1977 Second Additional Protocol to the Geneva Conventions (Art. 4.2);
- The 1998 Statute of the International Criminal Court (Arts. 7–8).
Provisions of International Humanitarian Law (IHL)
In armed conflict, the Convention against Torture remains applicable since it authorizes no derogation, even in times of war.
Humanitarian law also prohibits all forms of torture or cruel, inhumane, or degrading treatment. Nonetheless, it does not reproduce the restrictive conditions contained in the Convention against Torture concerning the specific intention of torture or the position of State agents of the torturer.
Indeed, in armed conflict, the prohibition and the prevention of torture is intended to apply to all parties to the conflicts, not only State actors but also non-state armed groups who control and detain individuals, whatever the nationality or the nature of this non-state actor.
The Geneva Conventions strictly prohibit torture, at all times and in all circumstances. They provide that no physical or mental torture, nor any other form of coercion, may be inflicted on protected persons (civilians, wounded and sick, prisoners of war, or detained persons), notably to secure from them information of any kind whatever (GIII Art. 17, GIV Art. 31).
IHL includes in its definition of torture intentional violence to the life, health, physical or mental well-being, but also “outrages upon personal dignity, in particular humiliating and degrading treatments” toward persons who are not, or no longer, taking part in the hostilities (GIII Art. 17, API Art. 75.2, APII Art. 4.2). Those acts are prohibited at any time and in any place (GCI–V Common Art. 3). This definition covers torture under all its forms, physical or psychological. The 1977 Additional Protocols to the Geneva Conventions applicable to international and non-international armed conflicts reinforced this prohibition, reaffirming that such acts could be physical or mental (API Art. 75, APII Art. 4).
Common Article 3 to the four Geneva Conventions places on the same level of formal prohibition outrages on physical integrity, including murder of all kinds; mutilation; cruel treatment and torture; and outrages on personal dignity, in particular humiliating and degrading treatments (GIV Art. 3.1.a, c). Humanitarian law prohibits but does not define ill treatments. This category embraces outrages on personal dignity, as well as humiliating, inhumane, or degrading treatments.
Rule 90 of the study on the rules of customary international humanitarian law published by the ICRC in 2005 provides that “torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited.” This rule is applicable in international and non-international armed conflicts.
Humanitarian law organizes the prevention of torture by setting up minimal guarantees for all persons deprived of their liberty, whatever their status. These are fundamental and judicial guarantees as well as guarantees of treatment in case of detention.
The 1949 Geneva Conventions clearly establish that torture is a grave breach of humanitarian law, that is, a war crime, if committed in an international armed conflict (GCI Arts. 12, 50; GCII Arts. 12, 51; GCIII Arts. 17, 87, and 130; GCIV Arts. 31, 32, and 147). In non-international armed conflicts, humanitarian law does not provide such a mechanism of international repression. This vacuum has, however, partially been filled by the Statute of the International Criminal Court.
Provisions of International Criminal Law
The Statute of the International Criminal Court (ICC), which was adopted in July 1998 and entered into force in 2002, also includes physical and psychological torture in the definition of war crimes and crimes against humanity over which it has jurisdiction. The “intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused” constitutes a crime against humanity under Article 7.e of the Statute when committed as part of a plan or policy or a large-scale attack against the population. It is also a war crime if it is committed in an armed conflict and in relation to it (Art. 8.2.a.ii-iii; 8.2.c.i of ICC Statute).
War crimes also include outrages upon personal dignity and humiliating and degrading treatment, which are not considered as torture (Art. 8.2.c.ii).
The definition of torture contained in the ICC Statute does not make reference to the criterion of public official or State agent nor to the criterion relative to the specific intention of the torturer, two criteria contained in the Convention against Torture.
Provisions of Refugee Law
Fleeing from torture or fear thereof is a legitimate ground for refugees to seek asylum in another State. In laying out the principle of non-refoulement, the 1951 Convention Relating to the Status of Refugees clearly posits that “no 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” (Article 33 of Refugee Convention).
The Torture Convention reaffirms this by establishing that “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” (Article 3.1 of the Convention against Torture). It also notes that torture is one of the extraditable offenses in any extradition treaty between States.
In the light of those provisions, it appears that when a State tries to escape the prohibition of torture by transferring detainees to the territory of States where torture is authorized constitutes an obvious violation of the prohibition of the imperative principle of non-refoulement and the Convention against Torture.
Debates and Issues of the Prohibition of Torture
The universal and absolute prohibition of torture does not prevent the persistence of such practices in numerous situations. But beyond the mere observation of this persistence, a certain number of legal arguments are regularly developed to weaken the legal scope of the definition and prohibition of torture. Those arguments, used to create programs of detention and interrogation that evade any legal regulations, must be examined, as well as their invalidation by the successive decisions of international and national courts.
In 2009, U.S. President Barack Obama declassified the set of legal documents drafted by the Bush administration in the 2000s that authorized unlawful detention and coercive methods of interrogation in the context of the “war on terror.” These documents and decisions of the U.S. Supreme Court have revealed the perversion of law used to support this phenomenon.
Torture, “Moderate Physical Pressures,” and the “Necessity” Argument
The interpretation of the “threshold of pain” and the “necessity” argument are regularly used to restrict the scope of the absolute prohibition of torture.
- In general, international and national law do not recognize the argument of “necessity” used by national security services to justify the use of torture or “moderate physical pressures” in order to obtain information that could help to prevent terrorist attacks and save lives. The “necessity” argument does not create a legal framework authorizing the use of methods of interrogation normally prohibited.
- The argument of “necessity” was invoked by Israel to justify the use of so-called moderate physical pressures in interrogations of individuals suspected of terrorism. Israel authorities modified the threshold beyond which acts could be qualified as torture and as such would be prohibited. This debate was solved by the Supreme Court of Israel in a 1999 judgment. The judges held that the use of moderate physical pressures was not part of lawful methods of interrogation and that the argument of national security could not be used a priori by armed forces or by the executive power to legalize those methods.
- Nonetheless, they accepted that the argument of necessity could be used as an argument of defense before a tribunal by an individual prosecuted for having practiced prohibited interrogations. But in this case, this is neither the author of the alleged acts nor the executive power who can decide a priori of the existence of necessity. Only the judges can examine and assess the existence of this necessity a posteriori and on a case-by-case basis (infra Jurisprudence).
- The argument of necessity was also used by the U.S. government to justify the use of “reinforced” methods of interrogation in the context of the war on terror, notably in Guantanamo in Cuba and Abu Ghraib in Iraq.
The arguments developed revolve around the definition of torture and the legal guarantees of detention. Concerning torture, the threshold of pain is subject to several controversies intended to authorize the use of violence in methods of interrogation. Several States also try to subcontract the use of violence to nongovernmental agents and other States to escape their responsibilities. Finally, several methods attempt to weaken or suppress guarantees of detention. Those methods consist notably in contesting the specific status of detainees. Indeed, human rights law and humanitarian law create several categories of detained persons. Certain governments may have used those categories dishonestly with the aim of refusing any status to detainees, under the pretext that they did not entirely meet the criteria provided for their specific category.
All these arguments were invalidated by national and international jurisprudence, which reaffirmed the core principles contained in international law in this area.
The U.S. Uniform Code of Military Justice and the War Crime Act of 1996 prohibit coercive interrogations. Nonetheless, the legal memoranda drafted from 1 August 2002 by John Yoo and Jay Baybee in the name of the Department of Justice authorized coercive methods of interrogation under certain conditions. Indeed, those memoranda exclude from the definition of torture physical pain that is not equivalent in intensity to the pain accompanying serious physical injury, such as organ failure or impairment of bodily function, notably if the specific intent is to gather evidence necessary for national security (Memorandum for Alberto R. Gonzalez, Counsel to the President, Office of the Assistant Attorney General, Washington, DC 20530, 1 August 2002). Other memoranda describe and authorize the CIA to use coercive interrogation techniques. Besides, in 2002 and 2004, the U.S. administration significantly modified the provisions relative to coercive interrogations listed in the U.S. Army Field Manuals, in the name of national security and the necessity to collect information for the counterinsurgency strategy in the war on terror (U.S. Department of the Army, Army Field Manuals FM 34-52).
The Department of Defense notably added three categories of interrogation methods with the aim to counter the resistance strategies of detainees (Department of Defense, Joint Task Force 170, Guantanamo Bay, Cuba, APO AE 09860, 11 October 2002, Memorandum for Commander).
- The first category (Category I techniques) authorizes the interrogator to yell at the detainees, and to use other techniques of deception, notably to make detainees believe that the interrogator comes from a foreign country “with a reputation for harsh treatment.”
- The second category (Category II techniques) authorizes, with the permission of the Interrogation Section, (1) the use of stress positions for a maximum of four hours, (2) the use of falsified documents or reports, (3) the use of an isolation facility for up to thirty days, (4) deprivation of light and auditory stimuli, (5) the use of a hood placed over the head of the detainee during transportation and questioning, (6) the use of twenty-hour interrogations, (7) removal of clothing, (8) forced grooming (shaving of facial hair, etc.), and (9) the use of detainees’ individual phobias (such as fear of dogs) to induce stress.
- The Category III techniques need specific authorizations and are intended for the “most uncooperative detainees.” Those techniques include (1) the use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him or his family, (2) exposure to cold weather or water (with appropriate medical monitoring), (3) the use of a wet towel and dripping water to induce the misperception of suffocation (better known as “water boarding”), and (4) the use of moderate physical pressures.
The legal arguments developed by the U.S. administration concerning the techniques of Category II and III clearly show that they correspond to ill treatment, which are prohibited by humanitarian law and the Convention against Torture.
To get around these problems, the authors of these texts have created a parallel legal system that prevents any judicial remedies for detainees. They have developed an absurd interpretation of the fundamental guarantees contained in humanitarian law and human rights law, thus creating legal black holes in which no rule or recourse are applicable. These legal arguments considered that the obligations contained in international conventions relative to human rights, and particularly the provisions of the Convention against Torture, are only applicable on the national territory or toward national citizens. This argument was used to authorize illicit behavior by U.S. State agents outside of U.S. territory and on foreign individuals. Those interpretations were invalidated by the decisions of the U.S. Supreme Court, which notably affirmed that the place where Guantanamo detainees were being held fell within American territorial jurisdiction, because the United States had an exclusive control over this place ( Rasul v. Bush , 542 US 466 , pp. 476, 480). This decision reflects the consensus of international jurisprudence and customary law, which recognize the extraterritorial application of human rights conventions, notably the obligations of States to comply with judicial guarantees regarding foreign individuals or territories placed under their effective control.
The argument that the conventions on human rights would not apply in a situation of armed conflict simply because of the existence of a lex specialis has also been used to justify the non-application of the Convention against Torture to detainees imprisoned abroad in the context of the war on terrorism, on the grounds that these operations were only governed by the law of armed conflict. This argument, which aims to oppose in an exclusive manner the application of human rights law ( lex generalis ) and humanitarian law ( lex specialis ), was completely rejected by international jurisprudence, which acknowledged the simultaneous and complementary application of those two branches of international law ( ▸ Human Rights ). This argument was all the more unacceptable as it was also used to justify the non-application of humanitarian law to Al Qaeda detainees on the grounds that they did not belong to a State party to the conflict.
The decisions of the U.S. Supreme Court in 2006 in the Hamdam Case and in 2008 in the Boumediene Case have eventually deconstructed those legal black holes. The Court reaffirmed the right for all persons deprived of their liberty for reasons related to an armed conflict to benefit from the fundamental guarantees contained in Common Article 3 to the Geneva Conventions.
On 22 January 2009, U.S. President Barack Obama adopted three executive orders that revoked and declassified the previous executive orders relative to the operation of the detention center of Guantanamo, the detention policy, and the methods of interrogation in this center. This legal reform restates that Common Article 3 is a minimum and imperative norm for the treatment of any person detained by the United States in the context of an armed conflict. It abolishes the arbitrary distinction linked to the nationality of detainees and so-called unlawful combatants. It also abolishes the distinction between the conditions of detention and the interrogation methods applicable to individuals detained in detention centers under the control of the army and those under the control of security agencies such as the CIA. It also recalls that all the U.S. agencies’ interrogators must comply with the provisions contained in the Army Field Manual concerning methods of interrogation.
The U.S. Supreme Court has repeatedly ruled on various legal aspects of detention and the detainees’ right to judicial remedies, but it has not taken any decisions on the legality of the various interrogation techniques and their qualification or not as torture.
Obligations of Medical Actors
The prevention of torture is dependent on the accountability of all the various security forces, State agents, and bodies responsible for arrests, detention, and interrogations. Alongside those security agents, members of legal and medical professions also play an important role in preventing and repressing those practices. Legal professionals ensure compliance with judicial and legal procedures relative to detention and judgment of persons deprived of their liberty. They are also responsible for investigating alleged acts of torture and bringing the perpetrators to justice. Medical professionals are responsible for providing medical care and ensuring respect for the physical and mental integrity of detainees.
This implies that security forces must respect guarantees of professional independence granted by international and domestic law to lawyers, judges, and physicians. Those practitioners must also comply with their own rules of professional ethics.
The practice of torture and ill treatment is historically linked to the role and ethical obligations of medical personnel. The active or passive participation of medical personnel in acts of torture make them more frightening for detainees and more effective in obliterating any capacity of physical or moral resistance and prolonging pain without causing death.
Several international regulations have been adopted to resolve those ethical dilemmas and strengthen the resistance capacities of physicians in responding to the orders of detaining authorities. Those rules aim to limit the participation of the medical personnel in this type of practice. They also restate that medical personnel have to alert the authorities and gather forensic evidence on torture and ill treatment. There are several mandatory rules of medical ethics applicable in times of peace and armed conflict. For example, the United Nations adopted on 13 May 1977 the Standard Minimum Rules for the Treatment of Prisoners (Resolution 2076 [LXII]), which notably establish the principle that every detainee must have a medical examination when he or she enters a detention center. There are other rules of medical ethics that strictly regulate medical activites in detention settings. The Istanbul Protocol, drafted in 2004, is one of the answers to the challenges posed by the war against terrorism.
Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
These principles were adopted by the UN General Assembly on 18 December 1982 (Resolution 37/194). They go beyond the principles of medical ethics established by the Nuremberg Code in 1947, which was limited to the issue of medical experiments on prisoners. They reinforce the rules relative to medical action contained in the Standards Minimum Rules for the Treatment of Prisoners adopted by the UN in 1977, as well as international and national rules of medical ethics.
Besides, they complete the provisions of humanitarian law applicable in international and non-international armed conflicts, which regulate the performance of medical duties toward all persons detained or deprived of their liberty, whatever the reason for their detention or the nature of the detaining authorities.
This document lists six core principles specifically applicable in situations of detention.
- It imposes on health personnel a rule of non-discrimination and equal medical treatment regardless of the condition of the persons concerned: “health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained” (Principle 1).
- It specifies the circumstances in which those practices constitute a violation of medical ethics and give rise to the responsibility of health personnel. This responsibility is incurred including as a result of passive complicity in the ill treatments. Passive complicity is acquired as soon as health personnel follow goals other than evaluating, protecting, or improving the physical and mental health of the persons concerned: “It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment” (Principle 2).
- “It is a contravention of medical ethics for health personnel, particularly physicians, to be involved in any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect or improve their physical and mental health” (Principle 3).
- “It is a contravention of medical ethics for health personnel, particularly physicians: (a) To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments; (b) To certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, or to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant international instruments” (Principle 4).
- “It is a contravention of medical ethics for health personnel, particularly physicians, to participate in any procedure for restraining a prisoner or detainee unless such a procedure is determined in accordance with purely medical criteria as being necessary for the protection of the physical or mental health or the safety of the prisoner or detainee himself, of his fellow prisoners or detainees, or of his guardians, and presents no hazard to his physical or mental health” (Principle 5).
- Finally, the document recalls that “there may be no derogation from the foregoing principles on any ground whatsoever, including public emergency” (Principle 6).
Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol)
In 2004, the Office of the High Commissioner for Human Rights adopted a Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, known as the Istanbul Protocol. This document recalls the international rules concerning the prohibition of torture and the specific obligation of States with regard to prevention and repression (paras. 1–47). It develops tangible elements relative to the obligation of States to investigate these situations in an effective and impartial manner. It gives practical guidelines concerning the collection of testimonies and other judicial and medical evidence on the documentation of torture. It also specifies the ethical obligations that rest on legal professions (paras. 49–50) and medical professions (paras. 51–56) confronted in their work with victims of torture.
The Manual enumerates the obligations of physicians in the documentation of torture and ill treatment and the prohibition of any participation in this type of practice. The rules specify the list of medical activities that constitute a participation of the physician in torture. “Participation in torture” includes (1) evaluating an individual’s capacity to withstand ill treatment; (2) being present at, supervising, or inflicting maltreatment; (3) resuscitating individuals for the purposes of further maltreatment or providing medical treatment immediately before, during, or after torture on the instructions of those likely to be responsible for it; (4) providing professional knowledge or individuals’ personal health information to torturers; and (5) intentionally neglecting evidence and falsifying reports, such as autopsy reports and death certificates (para. 53).
Finally, these rules recall that physicians can be confronted by dual obligations that they must arbitrate. This is particularly the case between the duty to provide care and the duty not to participate in ill treatment, but also between medical confidentiality and the obligation to report certain medical information to the authorities for security or judicial reasons (paras. 66–73).
The Manual enumerates the rules and ethical principles that must be used to resolve those dilemmas. Those principles are:
- The absolute prohibition of doing harm to the patient;
- The obligation for the physician to inform the patient in every circumstance of the nature of his or her mission and any external pressures or constraints;
- The obligation to obtain the patient’s consent for all medical or medico-legal acts; and
- The obligation to respect medical confidentiality in case of doubt, if alerting the authorities on a situation can put the patient at risk.
The Manual also gives advice concerning the best way to investigate those situations and to visit places of detention to ensure quality of care and avoid putting victims and witnesses at risk (paras. 74–119, 120–60). It also provides guidelines for medical evaluation of torture and ill treatment (Annex IV), as well as templates of physical and psychological medical examinations, which help to document torture and ill treatment (paras. 161–233, 234–315).
Recourse in Case of Torture
In addition to the theoretical recourse before the courts of all States that have ratified the Convention against Torture, victims can have:
Judicial Recourse and Reparation
- Individuals can file a complaint before any court, of any State, under the principle of universal jurisdiction, whether the crimes were committed in times of peace or of conflict, provided that the perpetrator is found in the territory of that State (Art. 5.2 of the Convention against Torture, GCI Art. 49, GCII Art. 50, GCIII Art. 129, and GCIV Art. 146), and has a right to compensation (Art. 14).
- Individuals can file complaints before the European Court of Human Rights if they reside within a Member State of the Council of Europe (Art. 34 of the European Convention on Human Rights)
- Individuals can file a complaint before the African Court of Human and People’s Rights if they are citizens of an African Union Member State (if the concerned State has accepted the jurisdiction of the Court). Citizens of the Economic Community of the West African States as well as the citizens of the East African Community can seize their respective Courts, the Community Court of Justice and the East African Court of Justice. ▸ Individual recourse
- Individuals cannot refer cases directly to the prosecutor of the International Criminal Court (ICC), but they may send information. The prosecutor may decide to initiate an investigation under the following conditions: (1) the State where the crime was allegedly committed or the State of which the accused is a national must have ratified the ICC Statute, (2) the acts must have been committed as part of war crimes or crimes against humanity, (3) and the State is unwilling or unable to genuinely carry out the investigation or prosecution. The International Criminal Court may order that reparations are allocated to victims.
- There is also a Voluntary Fund for Victims of Torture, established by the United Nations in 1981. This Fund privileges measures of collective reparation rather than individual indemnifications.
Individuals or States may send their “communications” or “petitions” if the State in question has ratified the relevant treaty or the optional articles before the following entities:
- Committee against torture (Convention against Torture, 1984): optional jurisdiction to receive State communications (Art. 21) and optional jurisdiction to receive individual communications (Art. 22);
- Human Rights Committee (established pursuant to the First Optional Protocol to the International Covenant on Civil and Political Rights of 1966);
- African Commission on Human Rights (African Charter on Human and People’s Rights);
- Inter-American Commission on Human Rights (American Convention on Human Rights).
Prevention of Torture and Visit of Detention Centers
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, established pursuant to Article 1 of the European Torture Convention, is not competent to receive communications from individuals. It is responsible for carrying out surprise visits to any place where persons are deprived of their liberty by a State that has ratified the Convention, and it can be alerted to intervene to prevent torture in cases of emergency. Nothing prevents victims from sending information to the Committee.
The Subcommittee on Prevention of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment was created by the Optional Protocol to the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (adopted on 18 December 2002). Each State Party undertakes to allow the Subcommittee to visit any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence. Such visits aim to strengthen the protection against torture. The Subcommittee may receive information concerning specific cases.
In times of conflict, the International Committee of the Red Cross may visit any detention facility, and individual cases may be referred to it.
▸ African Commission and Courts on Human Rights ▸ Committee against Torture ▸ Corporal punishment ▸ European Committee for the Prevention of Torture ▸ European Court of Human Rights ▸ Fundamental guarantees ▸ Human Rights Committee ▸ Ill treatment ▸ Individual recourse ▸ Inter-American Court of, and Commission on, Human Rights ▸ International Criminal Court ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity
- International Criminal Tribunals
The same definition of torture is given in the Akayesu Case (ICTR Trial Chamber, 2 September 1998, paras. 594–95) and in the Foca Case (ICTY Appeals Chamber, 12 June 2002, para. 142). Torture is based on three constitutive elements: (1) the infliction, by act or omission, of severe pain or suffering, whether physical or mental; (2) the act or omission must be intentional; (3) the act or omission must aim at obtaining information or a confession, or at punishing, intimidating, or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.
In the Kvocka et al. Case (2 November 2001), the ICTY Trial Chamber examined acts that are usually considered severe enough per se to constitute torture. They include beating and prolonged denial of sleep, food, or hygiene (para. 144). In order to prove mens rea , the perpetrator must have intentionally inflicted severe pain and the purpose of the act must be one of those listed above (supra I. Definitions). In this decision, the Trial Chamber stipulated the elements that should be taken into account on the issue of torture. Hence, in assessing the seriousness of any mistreatment, the Trial Chamber first considered the objective severity of the harm inflicted. Then it took into account more subjective criteria, such as the physical or mental effect of the treatment upon a particular victim and, in some cases, factors such as the victim’s age, sex, or state of health that it also considered to be relevant in assessing the gravity of the crime (paras. 142–43).
In the Mrkšić and Šljivančanin Case (5 May 2009, paras. 210, 211), the ICTY Appeals Chamber found that the mens rea of aiding and abetting torture was considered a violation of the laws or customs of war.
- Supreme Court of Israel
In two decisions of 1999 and 2005, the Israel Supreme Court affirmed that the argument of national “necessity” in the context of the fight against terrorism could not justify recourse to methods of interrogation that amount to torture. “In one case we decided the question whether the state is permitted to order its interrogators to employ special methods of interrogation which involve the use of force against terrorists, in a ‘ticking bomb’ situation. We answered that question in the negative.” See Public Committee against Torture in Israel v. the State of Israel , HCJ 5100/94, 26 May 1999, paras. 35–37; and Public Committee against Torture in Israel and Palestinian Society for the Protection of Human Rights and Environment v. the Government of Israel , HCJ 769/02, 11 December 2005, para. 64.
- European Court of Human Rights
The European Court of Human Rights also addressed the issue of torture and ill treatment in detention, as well as the obligation of remedies that must exist for victims and the proportionality between threats on national security and the limitations of individual rights ( Aksoy v. Turkey , Application no. 21987/93, Judgment [Chamber], 18 December 1996). In this case, the Court considered that
where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention [prohibition of torture]. (para. 61)
The Court recalls that
it falls to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities. Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the “extent strictly required by the exigencies” of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. (para. 68)
[T]he investigation of terrorist offences undoubtedly presents the authorities with special problems; it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture. (para. 78)
Concerning the existence of effective remedies for victims of torture, the Court held that “having seen that the public prosecutor was aware of his injuries but had taken no action, it is understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels. . . . The Court therefore concludes that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies” (paras. 56–57).
In 2011, the ECHR recognized in the Al-Skeini Case the extraterritorial application of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( Al-Skeini et al. v. the United Kingdom , Application no. 55721/07, Judgment [Grand Chamber], 7 July 2011). In this judgment, the Court reaffirmed that this extraterritorial application includes the obligation for States to investigate in an independent and impartial manner any threat to the life or the physical integrity of the individuals placed under their control. The Court affirmed that this obligation of investigation continues to apply even in difficult security conditions, including in a context of an armed conflict (paras. 163–64).
The Court applied the criteria of effective investigation contained in the Convention to cases concerning the deprivation of life by British forces in Iraq in the context of the use of force against civilians during security operations. The Court held that such investigation can take diverse forms depending on the circumstances. However, whatever mode is employed, authorities must act of their own motion once the matter has come to their attention and cannot leave it to the responsibility of other individuals or organizations to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures. Moreover, the Court asserted that the procedural obligation of the State to investigate cannot be satisfied merely by awarding damages (para. 165). The investigation must be effective, in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and, where appropriate, an autopsy that provides a complete and accurate record of injury and an objective analysis of clinical findings. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk constituting a violation of this obligation to investigate (para. 166).
For an investigation into alleged abuse by State agents to be effective, the Court asserted that the investigation must be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (para. 167). As such, an investigation process that remains entirely within the military chain of command and which is limited to taking statements from the soldiers involved cannot be considered as effective (para. 171).
In the case of Saadi v. Italy (Application no. 37201/06, Judgment [Grand Chamber], 28 February 2008) and the case of Ramzy v. the Netherlands (Application no. 25424/05, Judgment [Third Section], 20 July 2010), the European Court of Human Rights recalled the imperative and mandatory character of the principle of “non-refoulement,” which spells out the prohibition to expel, return ( refouler ), or extradite a person to another State where there are substantial grounds for believing that he or she would be subjected to torture. These decisions are critical to examine and judge the practices used in the context of immigration control and the war against terrorism, which culminated with programs of “surrender” where States transferred detainees to countries where torture was legalized or widely tolerated. The ECHR acknowledged that “States face immense difficulties in modern times in protecting their communities from terrorist violence. . . . It cannot therefore underestimate the scale of the danger of terrorism today and the threat it presents to the community. That must not, however, call into question the absolute nature of Article 3 [of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment]” ( Saadi v. Italy , para. 137).
See also the Court of Justice of the European Union, Organisation des Moudjahidin du peuple d’Iran v. Council of the European Union , Case T.228/02, Judgment (Second Chamber), 12 December 2006; Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities , Case T.306/01, Judgment, 21 September 2005, para. 73; and Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities , Case T.315/01, appeal Case C-415/05 P, Judgment (Grand Chamber), 3 September 2008.
For Additional Information: Amnesty International. Torture in the Eighties . New York: Dodd Mead, 1984.
British Medical Association. The Medical Profession and Human Rights: Handbook for a Changing Agenda . London: Zed in association with BMA, 2001, chap. 4.
Constitution Project. “True and False Confessions: The Efficacy of Torture and Brutal Interrogation.” In The Report of the Constitution Project’s Task Force on Detainee Treatment , 243–46. Constitution Project, 2013.
Greeenberg, Karen J., and Joshua L. Dratel, eds. The Torture Papers: The Road to Abu Ghraib . Cambridge: Cambridge University Press, 2005.
Grodin, Michael, and George Annas. “Physicians and Torture: Lessons from the Nazi Doctors.” International Review of the Red Cross 867 (September 2007): 635–54.
Haug, Hans. “Efforts to Eliminate Torture trough International Law.” International Review of the Red Cross 268 (January–February 1989): 9–25.
ICRC. Report on the Treatment of Fourteen High Value Detainees in CIA Custody . February 2007. Available at http://assets.nybooks.com/media/doc/2010/04/22/icrc-report.pdf .
Kelman, Herbert C. “The Policy Context of Torture: A Social-Psychological Analysis.” International Review of the Red Cross 857 (2005): 123–34.
Office of the United Nations High Commissioner for Human Rights. Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment . Istanbul Protocol. Geneva, Professional Training Series No.8/Rév.1.
REDRESS. Terrorism, Counter-Terrorism and Torture: International Law in the Fight against Terrorism . July 2004. Available at http://www.redress.org/publications/TerrorismReport.pdf .
Reyes, Hernan. “The Worst Scars Are in the Mind: Psychological Torture.” International Review of the Red Cross 867 (September 2007): 591–617. Available at http://www.icrc.org/fre/assets/files/other/irrc -967-reyes.pdf.
Rodley, Nigel S. The Treatment of Prisoners under International Law . Oxford: Clarendon Press, 1999.
Ross, James. “Black Letter Abuse: The US Legal Response to Torture since 9/11.” International Review of the Red Cross 867 (September 2007): 561–90. Available at http://www.icrc.org/fre/assets/files/other/irrc-967-ross.pdf .
“Torture.” International Review of the Red Cross 867 (September 2007): 501–774.