Published in July 2018.

 

 
  This module is a resource for lecturers  

 

Key issues

 

The prohibition against torture and other cruel, inhuman and degrading treatment and punishment - referred throughout this Module as 'torture et al.' except where important differences exist between torture and other forms of ill-treatment - is absolute under both treaty and customary international law. It falls into the category of jus cogens norms which apply at all times, whether in peacetime or in situations of armed conflict, therefore making the principle non-derogable even during times of public emergency (see Modules 3 and 7). This customary character is especially important for those States which for a variety of reasons - such as their retention of the death penalty - have not ratified the 1966 International Covenant on Civil and Political Rights (ICCPR) or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) examined throughout this Module, since they remain bound by international obligations in this regard.

States have both accompanying positive and negative legal obligations: positive obligations to do all that they reasonably can (e.g., through legislative, judicial and administrative measures as well as training) to prevent torture from being committed by their officials and, in some instances, also by non-State actors, and to effectively investigate any allegations of torture et al.; and negative obligations not to engage in practices which violate the prohibition against torture et al. themselves. Such obligations are evident in, e.g., the text of UNCAT.

Despite the absoluteness of this most fundamental human right, it can still be violated in a counter-terrorism context, sometimes due to the inherent tensions that can exist between meeting legitimate security imperatives whilst also fully respecting the rule of law (OHCHR, 2017). Sometimes this relates to what is termed as the 'ticking time bomb', whereby a real risk of terrorist attack exists - such as the imminent explosion of a bomb likely to cause mass civilian casualties and damage to property - and one of the alleged terrorists is in the custody of the police or intelligence services. Sometimes States seek to justify certain questionable or even prohibited practices on the grounds of necessity: by the time an apprehended suspect has been properly cautioned, afforded his/her rights, and interviewed, the bomb is likely to have exploded. This scenario is used in one of the suggested Exercises.

Significantly, despite its absolute legal character, and the existence of the dedicated UNCAT, there is no single, universally agreed, definition of torture. This is evident in the different international and regional definitional approaches examined below. One particular challenge here has been the close, often interrelated, nature of torture with other forms of cruel, inhuman and degrading treatment, whereby it has not always been easy to determine the exact cross-over parameters. Nonetheless, these different categories of treatment remain legally distinct, often with their own threshold criteria to be met when determining whether or not particular violations have occurred.

This Module examines the applicable international and regional legal frameworks and related definitional approaches. In addition to considering the applicable legal instruments, it examines the frameworks in practice, including examples of some of the rule of law and human rights concerns that can arise in a counter-terrorism context, for example by using unlawful coercive interrogation techniques. Additionally, the Module explores more general debates and jurisprudence regarding the potential violation of the prohibition against torture et al. through the imposition of the death penalty as punishment for convicted terrorists, including the 'death row phenomenon' as is discussed in Module 8.

The law surrounding torture et al. in a counter-terrorism context also has proximity to other important rights, protections and obligations examined throughout the E4J University Module Series, notably with the principle of non-refoulement (see Modules 3 and 10); the right to life, which can be violated in the most extreme circumstances of mistreatment (see Module 8); the principle of humane treatment in detention (see Module 10); and the right to a fair trial where evidence tainted by torture et al. is relied upon in court (see Module 11); the principle of non-discrimination (see Module 13). Furthermore, violations can raise important issues of accountability and impunity, both under national and international criminal law for those individuals who perpetrated the violations, as well as for States under the doctrine of State responsibility for wrongful acts and omissions. Significantly, as was discussed in Module 4 on criminal justice approaches, in the most extreme of circumstances - such as where the practice of torture is part of an official, widespread, State counter-terrorism policy, or is an instrument of terror employed by non-State terrorist actors - acts of torture et al. may constitute crimes against humanity, war crimes, or form an integral element of genocidal policies and practices.

The sub-pages to this section provide a descriptive overview of the key issues that lecturers might want to cover with their students when teaching on this topic.

 
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