Torture
- CAT, Article 7 ICCPR, all regional regimes
- prohibition on torture, cruel, inhuman and degrading treatment/punishment
- sliding scale of bad treatment
- all are ABSOLUTELY prohibited
- are particular legal consequences if torture is found
Torture has a special stigma
Torture attracts universal jurisdiction under CAT, no amnesties permitted, compulsory criminalisation
Freedom from torture is clearly part of custom, and probably jus cogens
Article 1 CAT: For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Severity of treatment
Mental or physical damage
Intentional infliction of harm
For a purpose
Involvement of Public Official
Cannot be ‘lawful’ sanctions
Cruel and Inhuman treatment:
Lesser form of severe treatment, no need for intention (eg death row phenomenon)
Degrading treatment:
Extreme humiliation
Definition of torture
The International Prohibition
absolute prohibitions
Article 2(2) CAT: No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
Article 7 ICCPR – extends prohibition to TIDT
Torture/Terrorism debate
torture and the war on terror
debate
Is the absolute prohibition on torture and other severe ill treatment desirable in this age of the war on terror?
When if ever should torture be used?
Should there be a ‘torture warrant’?
Should there be a defence of ‘necessity’?
Torture as punishment: Abu Ghraib, Guantanamo
Torture for interrogation: CIA
Non-refoulement: (cf Refugee Convention)
‘extraordinary rendition’: Agiza v Sweden
Diplomatic assurances: - ECHR vs CAT Committee
Torture evidence - burden of proof, derivative evidence, fair trial + torture, House of Lords 2005