What is torture:
Definition of torture under CAT- (convention that deals specifically with torture)
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 such purposes as obtaining from him or a third person information or a confession….” (Art. 1 of CAT).
It may be “inflicted by or at the instigation of or acquiescence of a public official or other person acting in an official capacity.”
Examples of torture under International Law (these have emerged as result of wide practices around the world)
The prohibition against torture under international law applies to many measures—e.g. beating on the soles of the feet; electric shock applied to genitals and nipples; rape; near drowning through submersion in water; near suffocation by plastic bags tied around the head; burning; whipping; needles inserted under fingernails; mutilation; hanging by feet or hands for prolonged periods.
International law also prohibits mistreatment that does not meet the definition of torture, either because less severe physical or mental pain is inflicted, or because the necessary purpose of the ill-treatment is not present.
International position on torture-one of total prohibition
Torture is universally condemned, and whatever its actual practice, no country publicly supports torture or opposes its eradication. The prohibition against torture is well established under customary international law as jus cogens; that is, it is a pre-emptory norm that enjoys highest hierarchy/standing in customary law.
The right to prohibition is an absolute right, which is non-derogable right, which could not be interfered with in the times of peace as well as war. The states can’t suspend it even during the times of national emergency.
Laws which prohibit torture under International Law (torture has been specified in various human rights instruments- this shows the level of effort/commitment in the international community towards the goal of prohibition of torture) :
After the horrific abuses of World War II, the General Assembly of the United Nations inserted the prohibition against torture in the landmark Universal Declaration of Human Rights. Article 5 of UDHR states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. It is also contained in Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which is ratified by 153 countries. There is a specific convention that deals with torture (I e Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture), ratified by 136 countries, including the United States in 1994.
It is also codified in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples’ Rights, and the American Convention on Human Rights.
Challenge and problems faced by states (in light of new wave of terrorism):
Although torture is prohibited in all international law instruments but there are some emerging problems and challenges which are faced by the states in order to deal with terrorists and save the lives of their citizen parallel to their obligations under different laws as to prohibit torture in all situations absolutely.
After the 9/11 states had threats from terrorism, as it is such an evil, which do not have any borders. But the challenge for states is that the torture is absolutely prohibited. The scenario raises a lot questions.
Examples of different scenarios
Ticking time bomb (argument in favour of torture):
Some people argue that the goal of saving innocent lives must override a person’s right not to be tortured. This argument is presented in its starkest form in the “ticking time bomb” scenario: a bomb has been set to explode that will kill thousands of people and a detained person is known to have information on where the bomb is and how to defuse it. Is torture justified in such a case to force the detainee to talk? Those who say that it is argue that governments should be permitted to choose torture as the lesser of two evils in such a situation.
International remarks on the above concept- one of rejection
The international community, however, rejected the use of torture even in the “ticking bomb” case. International human rights law – as well as U.S. law – do not contain any exceptions to the prohibition against torture.
For years Israel justified its use of torture – what it called “moderate physical force” – by citing the “ticking bomb” scenario. The Supreme Court held that it is not the defence of necessity that allow the authorities to do torture. So, the harsh interrogation techniques used by the Israeli authorities against the Palestinians for extracting information and under law of necessity and to stop suicide bombers were unlawful.
Deportation of persons to other states having likelihood of inflicting torture-strict requirement to be met to deport:
The states have a positive obligation of not to return people to states where there is a risk of torture or other inhumane treatment infliction to them. It could be observed in decisions of ECHR in different cases.
Approach taken by courts in determining deportation of likely torture victims –
The European Court of Human Rights has applied the prohibition against torture contained in European Convention on Human Rights in several cases involving alleged terrorists.
As it noted in one case, “The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct.”
If Chahal was to be returned to India, there was every possibility of inflicting torture so, the court refused deportation. The rationale was Punjab police has been practicing torture so deportation was refused by 12 to 7 votes. (Chahal v. United Kingdom, Nov. 15, 1996)
(i) Diplomatic Assurances
The most important case in the subject is Ottman (Abu Qattada) case. Here the European Court has taken a different approach that under the diplomatic assurance individuals can be sent to the other states after having guarantee that torture will not be inflicted or the torture evidence would not be used against the individual by the receiving state.
ECHR held that, diplomatic assurances will protect Abu Qatada from torture but he cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him.
The European Court of Human Rights held, unanimously, that, if Mr Othman were deported to Jordan:
- There would be no violation of Article 3 (prohibition of torture or inhuman or degrading treatment) of the European Convention on Human Rights;
- There would be no violation of Article 5 (right to liberty and security) of the Convention; but that
- There would be a violation of Article 6 (right to a fair trial), given the real risk of the admission of evidence obtained by torture at his retrial.
- The Court also held, unanimously, that there had been no violation of Article 13 (right to an effective remedy).
This is the first time that the Court has found that an expulsion would be in violation of Article 6, which reflects the international consensus that the use of evidence obtained through torture makes a fair trial impossible.
But Abu Qattada has now been sent to Jordan after assurance that the evidence obtained by the torture would not be used against him in terror charges against him. The courts have been highly criticized for that decision. The states are often jealous in controlling their own borders. But here, the question raises that whether diplomatic assurance will be reliable?
It will be reliable if the Jordian Government will not torture him as the NGO’s will be visiting him and assuring that the Jordian Government is playing its part positively under the assurance and international human rights law.
Evidence obtained by torture to be used or not (in light of terrorism crimes):
Another important issue is that whether the evidence obtained through torture is admissible or not?
Process under UK law for deporting alleged terrorist suspects
After the 9/11 SIAC Act 1997 was passed in UK the purpose of which was to provide fair procedure and ensure national security by deporting foreign nationals who were threat to public. The secretary of state had the power to issue a certificate of terrorist suspect and deport a person. But the person has a remedy to challenge the order of secretary of state before SIAC.
jurisprudence- indicates that process under UK law breaches IHRlaw
In R & others v Secretary of State after dismissal of appeals the applicants filed the appeal before ECHR. It has been well-established by the ECHR that the evidence obtained by torture is inadmissible because it is a breach of International Human Rights law and rule of law as it is abuse of process of law by not having an opportunity of fair trial. So, proceedings before the SIAC were against the right to have free trial under the Convention.
Article 15 of the Torture Convention expressly provides the exclusion of statements made as a result of torture. Moreover, it is an obligation of each state under the international law to ensure all acts of torture as offence under the criminal law. The states are bound to pass laws, which prohibit torture in all forms. The court held that the statements obtained under torture are often unreliable because they are against the right to free trial and state is under a moral defilement. Moreover, the person may give wrong information for relieving from pain what the authorities want to hear. Furthermore, if the statements under torture are not being used, the reason for torture would be removed and it will be indirectly prevented.
In the instant case, it was for the SIAC to investigate that the evidence obtained from a country used torture or not? If yes, then evidence is inadmissible. Evidence obtained from a third party by torture could not be used against a party to proceedings in UK because the principles of Common law alone compel the exclusion of third party evidence unreliable, unfair and offensive of standards of humanity and decency. So, the ECHR allowed the appeal. Orders of the SIAC & Court of Appeal were set aside and cases were remitted back to SIAC for reconsideration in the light of opinions of the house.
General remarks on admissibility of evidence obtained by torture
But, here the question raises that sometimes the torture evidence has produced good results so it should be admitted or not? Furthermore, sometimes it becomes necessary to do torture in order to save the lives of public
The answer to this question is is that each state shall take appropriate measures particularly in the field of training law enforcement agencies with a view to prevent terrorist acts as well as regard for international human rights obligations rather than inflicting torture.
So, in the light of above-mentioned cases the question arises that what could states do in order to prevent their own citizen against terrorism and derogate from the right to prohibition of torture?
One argument is that the harsh interrogation techniques like sleep deprivation which does not because severe pain should not be included in list of torture or inhumane treatment after 9/11 in order to find the information to protect all us.
There are lot of challenging situations for law enforcing agencies as on one hand circumstances demand torture but IHRL prohibit its use. We have to find a solution how to deal with those situations. The most important thing is that we have to draw a line at least somewhere as to what amounts to torture & what not by setting some limits and drawing a balance between obligation and public safety.