Published in July 2018.
This module is a resource for lecturers
International human rights instruments
International Covenant on Civil and Political Rights
Although, as previously mentioned, there is no universally agreed definition of torture et al., nonetheless much consensus exists regarding its key attributes. This is reflected within the text of the International Covenant on Civil and Political Rights (ICCPR), which was the first human rights treaty to expressly include this prohibition. Article 7 states that no person "shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".
As is provided for under article 4(2) ICCPR, reflecting its jus cogens character, no derogation from article 7 is permitted in any circumstances, not even in situations of public emergency including those attributable to terrorist acts. This has been confirmed by the Human Rights Committee in its General Comment No. 20 on article 7 (A/44/40), which states that "no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority" (para. 3).
The substantive content of the prohibition in article 7 is complemented by the positive requirements of article 10(1) ICCPR. These require that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person", regardless of the reasons for their detention. As such, article 10 prohibits less serious forms of treatment compared with that prohibited by article 7. A variety of factors, individually or in combination, may result in conditions of detention amounting to degrading treatment, including:
- Overcrowded cells or conditions of detention;
- Poor hygiene and sanitary conditions;
- Inadequate food or water;
- Spread of infectious diseases, where authorities have failed to take reasonable steps to prevent the spread;
- Poor ventilation or heating and lack of natural light; and
- Limited (or no) availability of exercise and recreation for those detained.
In general, the conditions of detention should not subject a prisoner to hardship of an intensity exceeding the level of suffering that is inherent in the fact of detention ( Xiros v. Greece, 2010).
Whilst article 10 is not one of the non-derogable rights provided for under article 4 of ICCPR, the Human Rights Committee is of the view that in practice article 10(1) reflects a general international law norm which cannot be subject to derogation (A/44/40). Furthermore, the Committee's work points to evident commonality between the application of article 7 and article 10(1), where infringements of both can be founded in certain situations.
Impact of inadequate conditions of detention on fair trial
The United Nations Working Group on Arbitrary Detention (E/CN.4/2005/6, paras. 69-70)* has highlighted that inadequate conditions of detention may not only constitute inhuman treatment, but also adversely affect the right to a fair trial.
Conditions of detention have an impact on equality between the prosecution and the defence. "Where conditions of detention are so inadequate as to seriously weaken the pre-trial detainee and thereby impair equality, a fair trial is no longer ensured, even if procedural fair-trial guarantees are otherwise scrupulously observed." The Working Group adds that it "is fully aware that the inadequate infrastructure, nourishment, hygiene and medical assistance in detention centres in many countries are in part due to the economic difficulties of these countries' Governments. Nonetheless, Governments are responsible to ensure that conditions of detention do not result in violations of human rights."
"Moreover, pre-trial detention becomes arbitrary where the conditions are such as to create an incentive for self-incrimination, or - even worse - to make pre-trial detention a form of advance punishment in violation of the presumption of innocence."
* United Nations, Economic and Social Council, Commission on Human Rights (2004). Civil and Political Right, Including the Question of Torture and Detention. Report of the Working Group on Arbitrary Detention, Leila Zerrougui . 1 December. E/CN.4/2005/6.
ICCPR does not contain a definition of torture. On this, the Human Rights Committee, unlike with the regional mechanisms (also discussed in this Module), did not deem "it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied" (A/44/40, para. 4). Instead, it has explained that in determining whether an article 7 violation had occurred, "all circumstances of the case, such as the duration and manner of the treatment, its physical or mental effects as well as the sex, age and state of health of the victim" had to be assessed. Characteristics such as the victim's age or health may exacerbate the impact of a particular type of treatment, bringing it within the provision's scope. Of equal importance, the Committee has interpreted the reach of article 7 to include acts that cause both physical pain as well as mental suffering to victims (para. 5).
Notably too, reflecting the frequent intersection between torture and other forms of mistreatment, the general approach of the Committee is not to stipulate which element of the prohibition has been infringed, rather merely to find that there has been a more general violation of article 7 of ICCPR. Nonetheless, it has still been successful in developing the scope of the prohibition without actually defining its elements. That said, where differentiating between various forms of ill-treatment is necessary or appropriate, the Committee has provided the following guidance: the "critical distinction between torture on the one hand, and other cruel, inhuman or degrading treatment or punishment, on the other, will be the presence or otherwise of a relevant purposive element" (Human Rights Committee views CCPR/C/101/D/1761/2008, para. 7.5; Human Rights Committee views CCPR/C/104/D/1755/2008/Rev1, para. 2.3). The term "relevant purposive element" links back to the definition of torture article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) which states that "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 ...". (Emphasis added).
In interpreting article 7 of ICCPR (which prohibits torture et al), the Human Rights Committee has, at times, been guided by article 1 of the Convention against Torture (discussed below). For example, in the case of Giri v Nepal (CCPR/C/101/D/1761/2008), whilst reiterating that it did not feel it necessary to specify distinctions between torture and other kinds of ill-treatment and punishment, the Committee nonetheless deemed it was appropriate to expressly identify torture if the facts warranted it, drawing upon the substantive elements articulated in article 1 of the UNCAT as guidance when making such an assessment. In order to cross the threshold for torture et al., ICCPR does not require the existence of any related degree of acquiescence or involvement by a State official. Indeed, "[i]t is the duty of the State Party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity." (Human Rights Committee General Comment No. 20 A/44/40, para. 2). Furthermore, ICCPR prohibition on torture and other forms of ill-treatment applies whether acts were conducted by public officials or private persons. This means that the State has a positive duty, including one of due diligence, to adequately protect individuals within its jurisdiction from acts of inter alia private terrorist actors (Human Rights Committee General Comment No. 31 CCPR/C/21/Rev.1/Add.13, para. 8).
The Committee has interpreted a number of specific acts to constitute torture et al.. These have included burns, deprivation of food and water, systematic beatings, thumb presses, electric shocks, amputations and hanging from hand or leg chains for lengthy periods of time. For example, in the case of Domukovsky et al v. Georgia, serious physical assaults resulting in broken bones, scarring, and even threats to the family, were deemed to cross the necessary threshold for both torture and inhuman treatment (Human Rights Committee views CCPR/C/62/D/623, 624, 626 & 627/1995, para. 18.6). Even when such factual determinations are made, as previously noted, in most of the communications that it considers, the Human Rights Committee does not differentiate between the elements of article 7, simply determining that article 7 as a whole has been violated. Therefore, for example, in the case of White v. Madagascar, incommunicado detention, together with solitary confinement whilst chained to a bed with little food and water, was more generally declared to constitute a violation of article 7 ICCPR (Human Rights Committee views CCPR/C/OP/2, para. 15.2 and 17).
An underpinning concern of the Committee, reflecting that of the wider international community, has been the failure of some States to clearly provide for torture related offences under national criminal law, particularly in light of article 2(2) of ICCPR which requires the effective implementation of treaty provisions (see further below).
'Cruel, Inhuman and Degrading Treatment or Punishment'
As with the concept of 'torture', no precise definitions exist for 'cruel', 'inhuman' or 'degrading' treatment under ICCPR, nor are any offered by other international human rights instruments including UNCAT (which only briefly mentions but does not explain "ill-treatment" in Article 13 UNCAT). The distinction is relevant since UNCAT attaches certain specific obligations to torture, and because of the special stigma attached to torture ( Ireland v. UK, 1978, para. 167; Selmouni v. France, 1999, para. 96).
In terms of guidance, related case law suggests that the criteria of severity, intention and purpose are not applied as strictly in relation to these forms of ill-treatment compared with the threshold to be crossed for torture, though sometimes this is articulated in quite general terms. For example, with respect to the severity of the acts complained of, in the case of Vuolanne v. Finland the Human Rights Committee stated that "for punishment to be degrading, the humiliation or debasement involved must exceed a particular level and must, in any event, entail other elements beyond the mere fact of deprivation of liberty" (CCPR/C/35/D/265/1987, para. 9.2). While 'purpose' is a key character of the definition of 'torture', General Comment No. 20 infers that it is not a requirement for other forms of ill-treatment under the article 7. This is illustrated by custodial settings, where inhuman and degrading treatment need not be inflicted intentionally or deliberately. Notably,a previous United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment, Manfred Nowak, and the International Criminal Court Elements of Crimes (2011, article 7(1)(f)) highlight that torture requires that the victim was in the custody or under the control of the perpetrator. Inhuman or degrading treatment can also be inflicted by excessive use of force in quelling a demonstration (Economic and Social Council, Commission on Human Rights report 2006/6, paras. 34-41).
Proportionality can also play an important part in establishing violations under article 7, including the correct categorisation of an act either as torture or as cruel, inhuman, degrading treatment. For example, in the Mukong case, an article 7 violation was upheld where the complainant had been "singled out for exceptionally harsh and degrading treatment" (Human Rights Committee views CCPR/C/51/D/458/1991, para. 9.4). More specifically, he had been "detained incommunicado, was threatened with torture and death and intimidated, deprived of food, and kept locked in his cell for several days on end without the possibility of recreation" (CCPR/C/51/D/458/1991, para. 9.4). Recalling its General Comment No. 20, including that total isolation of a detained or imprisoned person may amount to a violation of article 7, the Committee found that Mr. Mukong had been subjected to cruel, inhuman and degrading treatment, contrary to article 7. In doing so, the Human Rights Committee rejected the justification for such prison conditions put forward by the State, namely the financial problems and constraints experienced by Cameroon as a developing State (para. 9.3).
Further guidance as to when certain acts might constitute 'cruel', 'inhuman' and/or 'degrading' treatment can be determined from the Committee's related case law, which can be wide-ranging in nature. For example, in one case, it decided that imprisonment in a cell for 23 hours a day without adequate food or medical care, without a mattress, bedding sanitation, sunlight or leisurely activities, was cruel and inhuman treatment (Human Rights Committee views CCPR/C/62/D/619/1995, para. 9.3). The refusal of medical care can also constitute degrading treatment (Human Rights Committee views CCPR/C/49/D/321/1988, para. 9.2). The requirement for pre-trial detainees to wear jackets showing the place of detention, as well as wearing jackets throughout their trial, has been held to be degrading treatment since it violated the principle of presumption of innocence (Human Rights Committee concluding observations CCPR/CO/82/BEN).
By way of comparison, the Inter-American Court of Human Rights (IACtHR) has found that "incommunicado detention, being exhibited through the media wearing a degrading garment, solitary confinement in a tiny cell with no natural light, blows and maltreatment, including total immersion in water, intimidation with threats of further violence, a restrictive visiting schedule. …, all constitute forms of cruel, inhuman or degrading treatment" ( Loayza-Tamayo v. Peru, 1997, para. 58). The approach of the European Court of Human Rights (ECtHR) is that whether treatment amounts to inhuman and degrading treatment "depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some cases, the sex, age and state of health of the victim" ( Kudla v. Poland, 2000, para. 92).
Burden of proof
One further noteworthy matter here concerns the interpretative approach of the Human Rights Committee in relation to article 7. A central question for the Committee has been whether there is sufficient evidence to prove the allegations of article 7 violations. This is illustrated by the case of Mukong v. Cameroon, in which the State party argued that the burden of proof was with the individual, but the Committee found that:
[T]he burden of proof cannot rest alone with the author of a communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information … Mr Mukong has provided detailed information about the treatment he was subjected to; in the circumstances, it was incumbent upon the State party to refute the allegations in detail, rather than shifting the burden of proof to the author. (Human Rights Committee views CCPR/C/51/D/458/1991, sect. 9.2).
Similarly, where an individual is taken into police custody in good health but is subsequently found to be injured at the time of release, it is incumbent upon the State to provide a plausible explanation as to how those injuries were caused, failing which a clear issue of torture or inhuman or degrading treatment arises ( Selmouni v. France, 1999, para. 87). The burden of proof is on the authorities to explain and justify any injuries sustained. For this reason, keeping, e.g., careful custody records in relation to those in detention is crucial. Medical examination of those detained is important too, both to prevent abuse and to protect the officials involved in detention against false allegations. Any injuries suffered by an individual in detention must be fully investigated and, if necessary, criminal proceedings brought against those responsible.