Published in July 2018.
This module is a resource for lecturers
Exercises and case studies
This section contains suggestions for in-class or pre-class educational exercises, while a post-class assignment for assessing student understanding of the Module is suggested in a separate section.
The exercises in this section are most appropriate for classes of up to 50 students, where students can be easily organized into small groups in which they discuss cases or conduct activities before group representatives provide feedback to the entire class. Although it is possible to have the same small group structure in large classes comprising a few hundred students, it is more challenging and the lecturer might wish to adapt the facilitation techniques to ensure sufficient time for group discussions as well as providing feedback to the entire class. The easiest way to deal with the requirement for small group discussion in a large class is to ask students to discuss the issues with the four or five students sitting close to them. Given time limitations, not all groups will be able to provide feedback in each exercise. It is recommended that the lecturer makes random selections and tries to ensure that all groups get the opportunity to provide feedback at least once during the session. If time permits, the lecturer could facilitate a discussion in plenary after each group has provided feedback.
All exercises in this section are appropriate for both graduate and undergraduate students. However, as students' prior knowledge and exposure to these issues varies widely, decisions about appropriateness of exercises should be based on their educational and social context.
Exercise 1: Mobile phone poll (see Teaching Guide)
At the start of the class, before teaching any substantive materials, assess the attitude of students to the use of torture in a 'ticking time bomb' scenario to gauge their basic understanding of the issues, as well as their legal, moral, ethical perspectives. Then repeat this exercise at the end of the class again to gauge whether and how attitudes have changed during the class.
Scenario
Imagine that you are a law enforcement officer or member of the intelligence services. You have just captured a suspected terrorist whom you have very strong grounds to believe has planted a bomb in a nearby school. Time is critical since the bomb could explode at any moment, before it would be possible to fully evacuate the school which is currently full of hundreds of school children and family members (young and old) attending the end of school year concert. In order to prevent mass casualties, would it be legitimate for you 'to do whatever is necessary', including committing torture, in an attempt to extract from the suspected terrorist the location of the bomb before it detonates?
Exercise 2: Mobile phone poll or plickers (see Teaching Guide)
Towards the end of the class, take another class poll to gauge if and how attitudes towards the use of torture in the 'ticking time bomb' scenario has changed. You could either use the same method as at the outset, e.g. mobile phone poll, or else another version of the exercise which only requires the lecturer to have a mobile phone such as plickers described here.
Scenario
Imagine that you are a law enforcement officer or member of the intelligence services. You have just captured a suspected terrorist whom you have very strong grounds to believe has planted a bomb in a nearby school. Time is critical since the bomb could explode at any moment, before it would be possible to fully evacuate the school which is currently full of hundreds of school children and family members (young and old) attending the end of school year concert. In order to prevent mass casualties, would it be legitimate for you 'to do whatever is necessary', including committing torture, in an attempt to extract from the suspected terrorist the location of the bomb before it detonates?
Case study 1: Non-refoulement
Elmi v Australia *
In this case, the individual alleged that his deportation to Somalia would violate article 3 of UNCAT, as there were substantial risks of torture by Somalian militia groups. The State argued that since those groups were non-State actors, article 3 did not apply. It was argued by the claimant that the groups in fact fulfilled the role of an authority comparable to a Government authority, as they had implemented their own laws and enforcement mechanisms.
The Committee against Torture was of the following view:
The Committee does not share the State party's view that the Convention is not applicable in the present case since, according to the State party, the acts of torture the author fears he would be subjected to in Somalia would not fall within the definition of torture set out in article 1 (i.e. pain or suffering 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, in this instance for discriminatory purposes). The Committee notes that for a number of years Somalia has been without a central government, that the international community negotiates with the warring factions and that some of the factions operating in Mogadishu have set up quasi-governmental institutions and are negotiating the establishment of a common administration. It follows then that, de facto, those factions exercise certain prerogatives that are comparable to those normally exercised by legitimate governments. Accordingly, the members of those factions can fall, for the purposes of the application of the Convention, within the phrase "public officials or other persons acting in an official capacity" contained in article 1. (Para. 6.5).
* United Nations, Committee Against Torture (1999). Sadiq Shek Elmi v. Australia, Communication No. 120/1998. CAT/C/22/D/120/1998.
Case studies 2: Prohibition of torture in an African context
Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) C. Angola Case *
In March, April and May of 2004, Mr Esmaila Connateh and 13 other Gambians were detained and deported from Angola. Those expelled alleged that they "were detained in detention centres … under conditions which were not suitable for human habitation". They alleged that "the detention camps were initially … used to house animals just prior to its conversion into a detention centre to hold approximately 300 people and few measures had been taken to accommodate the detainees, including cleaning out the animal waste". In addition to there being no roof or walls, thereby exposing the detainees to the elements for five consecutive days, at the Cafunfu detention centre the bathroom facilities consisted solely of two buckets for over 500 detainees, located in the same one room where all detainees were compelled to eat and sleep.
In some cases, they alleged that they were "faced with harsh conditions such as: no medical attention; lack of food; poor sanitation …". The African Commission noted with concern that "such a treatment cannot be called anything but degrading and inhuman". For this purpose, the Commission recalled its communication no. 224/1998 Media Rights Agenda v Federal Republic of Nigeria , in which it held that the terms " 'cruel, inhuman or degrading punishment or treatment' [were] to be 'interpreted so as to extend to the widest possible protection against abuses, whether physical or mental', referring to any act ranging from denial of contact with one's family and refusing to inform the family of where the individual is being held, to conditions of overcrowded prisons and beatings and other forms of physical torture, such as deprivation of light, insufficient food and lack of access to medicine or medical care".
The African Commission further reiterated its position in Huri-Laws v. Nigeria, in which it ruled that such "treatment meted out to the victim" constituted a mental trauma and therefore "a breach of Article 5 of the African Charter, as well as the [Standard Minimum Rules for the Treatment of Prisoners] as laid out by the United Nations. There [was] nothing from the Respondent State to counter these allegations and the African Commission, thus, is of the view that Angola is in violation of Article 5 of the African Charter."
Like ECtHR, the African Commission emphasised the importance of analysing the full context of the case when establishing the minimum threshold for ill-treatment, including the period of time in which torture took place, the impact of such treatment and the victim's circumstances ( Huri-Laws v. Nigeria, 2000, para. 41).
ACHPR is also more stringent than some other international instruments regarding the duty to protect individuals from ill-treatment by private actors, whereby "every human being is obliged to respect by all means possible and … [where there is] a duty on every human being to respect" this "inherent" right ( Purohit and Moore v. The Gambia, 2003, para. 57). However, it is only States - or official bodies with a link to the State - that can be held liable for infringements. According to the Commission, this includes instances where States may not even have incurred the infringement but failed to ensure that the right was effected (this was the view in Commission Nationale des Droits de l"homme et des Libertes v. Chad, 1995, para. 20). Whilst a number of cases have dealt with the State's obligation to protect individuals from ill-treatment by non-State actors, it was in Zimbabwe Human Rights NGO Forum v. Zimbabwe that this was deliberated upon and articulated in some detail. The Commission in this case referred to - and ultimately extended the stringency of - the Inter-American Court's work on due diligence, as per the Velasquez-Rodriguez v. Honduras case finding that:
Human rights law imposes obligations on States to protect citizens or individuals under their jurisdiction from the harmful acts of others. Thus, an act by a private individual and therefore not directly imputable to a State can generate responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or for not taking the necessary steps to provide the victims with reparation … Individual cases of policy failure or sporadic incidents of non-punishment would not meet the standard to warrant international action ( Zimbabwe Human Rights NGO Forum v. Zimbabwe, 2006, paras. 143 and 159).
From this case, the Commission made clear that it was only an absence of systematic guarantee of protection against private actors that would incur liability. The Commission's strict approach can also be seen in the standards surrounding the duty to investigate, where in the same case, it was decided that a non-effectual investigation did not necessarily mean a violation. Issues had to be assessed on a case by case basis.
Monim Elgak, Osman Hummeida et Amir Suliman (On behalf of IFHR WOAT) C. Soudan **
Mr. Suliman, Mr. Hummeid and Mr. Elgak, were prominent human rights defenders and alleged that they "were arrested, tortured and detained on account of their human rights work" by "National Security and Intelligence Services officers (NISS) in Khartoum". The complaints included "a pervasive climate of fear" and "various acts" "including being punched and hit ..., sleep deprivation and denied access to medical treatment ... with the purpose of extracting information". They submitted that they were not "able to file their complaint before the Supreme Court while they were in detention". Mr Elgak subsequently wrote an open letter to the Director General of the NISS, which was widely published within and outside of Sudan. No response was given to the open letter describing their torture.
In the case, the African Commission observed that "the complaints have adduced evidence in the form of a medical certificate and sworn testimonies" to prove that "the treatment to which they were subjected", "singly and in combination", "resulted in severe physical and mental pain and suffering". These facts have "not been contested by the Respondent State" [which has not] "produced any record or proof to show that the Supreme Court was closely monitoring their situation … as it is supposed to. [The latter] should at least have a record of when, how, why and where they were detained, and the conditions under which they were detained, interrogated and treated".
The Commission affirmed that:
States are under an obligation not only to make sure that torture is absolutely prohibited in their legislation, but also in practical terms. Where torture is allegedly inflicted, and this is brought to the attention of the State, it is also under an obligation to initiate a prompt, impartial and effective investigation in order to determine the veracity of the allegations and to bring the perpetrators to justice if the allegations are founded, as well as to afford redress to the victims. The Commission observes that it has already been established that the allegations of torture in the present Communication were duly brought to the attention of the authorities of the Respondent State. However, there is no indication that the Respondent State took any measures to investigate the allegations and bring the perpetrators to justice….
In the circumstances, the Commission decided that the complainants' rights under article 5 African Charter on Human and People's Rights had been violated and "the responsibility of the Respondent State engaged under Article 1" since it had "failed in its positive obligations to recognize the rights, freedoms and duties enshrined in the Charter and to adopt legislative or other measures to give effect to them."
The African Charter can also be read to create a duty on States to criminalise torture and ill-treatment, done through the combined reading of its article 1 and article 5. The African Commission further held that the obligations of a State under the African Charter include the positive duty to "prosecute and punish private actors who commit abuses". The "existence of a legal system criminalizing and providing sanctions for assault and violence would not in itself be sufficient; the Government would have to perform its functions to effectively ensure that such incidents of violence are actually investigated and punished" ( Zimbabwe Human Rights NGO Forum v. Zimbabwe, 2006, para. 159). In this respect, there was also a need for States to put in place procedural safeguards for the guarantee of this prohibition.
Egyptian Initiative for Personal Rights and Interights C. Arab Republic of Egypt Case ***
Mr. Sabbah, Mr. Abu-Gareer and Mr. Al-Nakhlawy were "tried and sentenced to death after being accused of bombings which took place on 6 October 2004 and 23 July 2005 on the Sinai Peninsula in Egypt". The three men alleged that "agents of the State Security Intelligence (the SSI) subjected [them] to various forms of torture and ill-treatment during their detention, in order to 'confess' before the State Security Prosecutor for their involvement in the Taba bombings". Complaints submitted that they "were held incommunicado for a long period of time without access to a lawyer". They also submitted that they "were charged with crimes in relation to the Taba bombings and were tried by the Supreme State Security Emergency Court in a trial characterized by procedural and substantive anomalies". They further alleged that the "court's decision was based substantially on the 'confessions' obtained through torture and prolonged ill-treatment" and none of them "had lawyers present at the critical early interrogation stage".
The African Commission found that:
It should be understood by the Respondent State that there is a positive obligation on them to provide access to independent legal assistance under the Charter, inherent in the international prohibition of torture and ill-treatment. The African Commission has recognized the right to access to a lawyer as one of the 'basic procedural safeguards for those deprived of their liberty' and as one of the necessary safeguards against abuse during the pre-trial process. In the instant matter, the obligation to permit access to counsel or independent legal advice was breached (…). The African Commission is convinced that the Victims were not given access during the critical early stage of detention, including interrogation sessions, when there is the greatest risk of torture and ill-treatment.
The African Commission's view was that the "right of a detainee to have prompt recourse to a court ... [was] a matter of international law ... [and] a vital aspect of the prevention and deterrence of torture and other ill-treatment". In the Robben Island Guidelines, the African Commission similarly recognized that the right to be brought promptly before a judicial authority constituted an essential safeguard against torture and ill-treatment.
* African Commission on Human and Peoples' Rights. Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v. Angola , Communication 292/04. 22 May 2008.
** African Commission on Human and Peoples' Rights. Monim Elgak, Osman Hummeida et Amir Suliman (On behalf of IFHR WOAT) v. Soudan , Communication no. 379/09. 10 March 2015.
*** African Commission on Human and Peoples' Rights. Egyptian Initiative for Personal Rights and Interights v. Arab Republic of Egypt , Communication no. 334/06. 1 March 2011.
Case study 3: Inhuman treatment
Loayza Tamayo v Peru *
The case involved the arrest and detention of Professor Maria Elena Loayza Tamayo by the State of Peru due to her alleged participation in the activities of the terrorist group Sendero Luminoso.
The State did not conduct an investigation prior to her arrest, nor obtain a warrant. Following the arrest, Tamayo was tried for the crimes of terrorism and treason. She was held in incommunicado detention for 10 days without any contact with her family and subjected to torture, cruel and degrading treatment, as well as unlawful pressure. This included "threats of drowning on the beach at night and rape to [which] she was subjected by members of DINCOTE", in a bid to force her to incriminate herself and confess to being a part of the alleged terrorist organization.
The Inter-American Court found that Peru had violated Tamayo's right to humane treatment in breach of article 5 of the American Convention on Human Rights. It acknowledged that the violation of the right to physical and psychological integrity of persons has various gradations and includes treatment ranging from torture to other types of cruel, inhuman or degrading and humiliating treatment with varying degrees of psychological and physical effects caused by endogenous and exogenous factors. These must be proven in each specific situation.
* Loayza Tamayo v Peru , Judgment of 17 September 1997, Inter-American Court of Human Rights, Series C, no. 33.
Case study 4: Distinguishing torture from other forms of ill-treatment
Ireland v UK *
Between August 1971 and December 1975, the United Kingdom authorities exercised a series of 'extrajudicial' powers of arrest, detention and internment in Northern Ireland.
This case concerned the Irish Government's complaint about the scope and implementation of those measures and in particular the practice of psychological interrogation techniques (wall standing, hooding, subjection to noise and deprivation of sleep, food and drink) during the preventive detention of those detained in connection with acts of terrorism. ECtHR held that these methods had caused intense physical and mental suffering in violation of the prohibition of inhuman and degrading treatment under art 3 of ECHR.**
In reaching its finding, the Court distinguished between torture, inhuman treatment and degrading treatment, holding that such a distinction was necessary because of the "special stigma" attached to torture. It was affirmed that an act must cause serious and cruel suffering to amount to torture. Specifically, ECtHR held that "the five techniques" caused "if not actual bodily injury, at least intense physical and mental suffering … and also led to psychiatric disturbances during the interrogation," which amounted to inhuman treatment, but did not "occasion suffering of the particular intensity and cruelty implied by the word torture".
The Court did not follow the interpretative approach of the Commission in The Greek Case, where such treatment did constitute torture, in essence superseding the distinction based on the purpose of the act by a subjective analysis of the severity of pain and suffering caused by these practices. Under such a distinction, degrading treatment which reaches a certain severity can also be categorised as inhuman treatment or even torture. The 'threshold of severity' method was reaffirmed and followed in a number of subsequent decisions of the Court and Commission.
* Ireland v. the United Kingdom (Application no. 5310/71), Judgment of 18 January 1978, European Court of Human Rights, para. 167.
** This approach reflects that of the United Nations Human Rights Committee also, which has expressed concern regarding "the use of enhanced interrogation techniques, such as prolonged stress positions and isolation, sensory deprivation, hooding, exposure to cold or heat, sleep and dietary adjustments, 20-hour interrogations, removal of clothing and deprivation of all comfort and religious items, forced grooming, and exploitation of detainees' individual phobias". (United Nations, Human Rights Committee (2006). Concluding observations of the Human Rights Committee: United States of America . 18 December. CCPR/C/USA/CO/3/Rev.1. Para. 13.
Case study 5: Admissibility of evidence obtained through torture
El-Haski v. Belgium *
El-Haski was a Moroccan national residing in Belgium who had been charged with several offences of participating in terrorist activities as an alleged member of the Moroccan Islamic Combatant Group (GICM).
During his trial, witness testimony was put before the court of persons interrogated in third countries including France, Spain, and Morocco, following their arrest based on their own suspected involvement in the 2003 Casablanca bombings that resulted in the deaths of nearly fifty people.
El-Haski was convicted on the basis of such evidence and sentenced to seven years imprisonment. He argued that the testimony of these witnesses was obtained through torture or cruel, inhuman, degrading treatment or punishment and that its admission therefore violated his article 6 of ECHR right to a fair trial. The Court agreed that the admission of evidence obtained in violation of article 3 of ECHR constituted a violation of the defendant's article 6 rights. In reaching this decision, the Court relied upon its earlier decision in Othman (Abu Qatada) v. United Kingdom,** in which it had found that deportation to Jordan - where there was a real risk that evidence obtained through torture would be admitted against Othman at his retrial - which be contrary to article 6 right to a fair trial. In Othman, in stressing the importance of excluding evidence tainted by torture, the ECtHR observed that "[t]orture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself".
Importantly too, in terms of the burden of proof to be satisfied, ECtHR determined that an accused only needs to prove that there was a "real risk" that evidence relied upon in court had been obtained through torture or inhuman or degrading treatment. A higher standard of proof, such as that of "beyond reasonable doubt" [the basis of the Belgian criminal justice system (as well as that of the UK intervening in this case)] would violate article 6 of ECHR. On the facts, after examining a number of reports on the widespread use of torture in Moroccan detention centres at the material time, published by various United Nations human rights entities as well as non-governmental organizations, the Court believed that such a "real risk" existed and that El-Haski had met this standard.
* El Haski v. Belgium (Application no. 649/08), Judgment of 25 September 2012, European Court of Human Rights.
** Othman (Abu Qatada) v. United Kingdom (Application no. 8139/09), Judgment of 17 January 2012, European Court of Human Rights.
Case studies 6: 'Death row phenomenon' and solitary confinement
Soering v. United Kingdom *
This case concerned the potential extradition to the United States by the United Kingdom of a West German national to face trial in Virginia, USA on a murder charge. Soering argued that if he were found guilty of murder and sentenced to death, that he would experience 'death row phenomenon'. This condition would result in the violation of his ECHR rights due to the extreme stress and psychological trauma likely to accompany awaiting execution, which most likely would take many years.
ECtHR found that the applicant's extradition to the United States would expose him to a real risk of treatment contrary to article 3 of ECHR. In reaching that conclusion, the Court had regard to the very long period of time people usually spent on death row in extreme conditions in the United States "with an ever mounting anguish of waiting to be executed", as well as to the personal circumstances of the applicant, especially his age and mental state at the time of the offence.
The Court further noted that the legitimate purpose of the extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration. Accordingly, the United Kingdom decision to extradite the applicant to the United States would, if implemented, breach article 3 (prohibition of inhuman or degrading treatment) of the Convention.
Polay Campos case **
Mr. Polay Campos was detained on charges of being the leader of a terrorist organization. In its view on a complaint filed by his wife, the Human Rights Committee also addressed the question of solitary confinement and the prohibition on torture, inhuman and degrading treatment.
The Committee noted that Mr. Polay Campos had been kept for nine months "in solitary confinement in a cell measuring two metres by two, and that apart from his daily recreation, he cannot see daylight for more than 10 minutes a day". The Committee expressed "serious concern" over the latter aspects of Mr. Polay Campos' detention. It found that these conditions, "especially his isolation for 23 hours a day in a small cell and the fact that he cannot have more than 10 minutes sunlight a day", constituted treatment contrary to article 7 ICCPR.
* Soering v. United Kingdom (Application no. 14038/88), Judgment (Court (Plenary)) 7 July 1989, European Court of Human Right.
** Human Rights Committee (1998). Polay Campos v. Peru, Communication no. 577/1994. 9 January. CCPR/C/61/D/577/1994.
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