IHRL - The Prohibition of Torture, Inhuman & Degrading Treatment & Punishment

1. Foundations of the Prohibition of Torture

Cesare Beccaria’s 1764 work “On Crimes and Punishments” called for the abolition of torture not only because of its immorality but also because he emphasized that torture fails as an interrogation tool, as it compels victims to say anything to stop the pain.
Art. 16 of Lieber Code (1863) : U.S. military code explicitly banned cruelty, including ‘torture to extort confessions’, even in war.
Common Art. 3 of 1949 Geneva Conventions: Makes humane treatment mandatory and explicitly prohibits torture in conflict.

2. Key Instruments and Definitions

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Art. 5 UDHR, Art. 7 ICCPR and Art. 3 ECHR).
Art 1(1) UN Convention Against Torture (CAT) : Torture is an act where severe pain/suffering, whether physical or mental, is intentionally inflicted at the initiative or with the consent of a public official or another person acting in an official capacity on a person to obtain information or confession, to punish an act he has or is suspected to have committed, to intimidate or to coerce.
Art 16 CAT extends the prohibition to cruel, inhuman or degrading treatment, thus covering practices of psychological torture not officially recognized as «torture» but causing significant mental suffering.
Inter-American Convention to Prevent and Punish Torture (1985) : Enforces anti-torture norms within the Americas but doesn’t expressively refer to the severity of the pain/suffering caused
Art. 5 of African Charter on Human and Peoples' Rights (ACHPR) prohibits torture, protecting dignity and personal integrity.
Non-Derogable Right : Torture is an absolute prohibition under international law, meaning that no state of emergency, war, or internal political instability justifies its use (Art. 2(2), CAT).

Discriminatory Purposes?

The UN Special Rapporteurs have expanded the interpretation of torture to include gender-based violence, asserting that acts motivated by discrimination based on gender, sexual orientation, or non-conformity to gender norms inherently fulfill the criteria for torture due to discriminatory intent (UN HRCouncil ‘Report of the Special Rapporteur JE Méndez’ [5 January 2016] - UN HRCouncil ‘Report of the Special Rapporteur M Nowak’ [15 January 2008]).

Algerian War (1954- 1962)

l Macron’s ’apology’ (2018) - The Guardian : France admits systematic torture during Algeria war for first time

A retenir :

In 2018, France has officially acknowledged for the first time that it carried out systematic torture during Algeria’s independence war – a landmark admission about conduct in the conflict which ended 56 years ago and that has been shrouded in secrecy and denials.

The president, Emmanuel Macron, said France instigated a “system” that led to torture during the Algeria conflict, and the past must now be faced with “courage and lucidity”.

Macron will announce that archives will be fully opened up to historians, families and organisations seeking the truth about the large number of disappeared civilians and soldiers, both French and Algerian, whose bodies have never been found.
During the 1954-62 war, which claimed 1.5 million Algerian lives, French forces brutally cracked down on independence fighters in the then colony, which was ruled by Paris for 130 years.

=> The French state has never previously admitted that its military forces routinely used torture. During the war the government censored newspapers, books and films that claimed it had used torture, and after the war the atrocities committed by its troops remained a taboo subject in French society.

3. Positive Obligations on States

Preventive Measures :

Art. 2(1) of CAT mandates that states adopt legislative, administrative, and judicial measures to prevent acts of torture.
States are responsible for investigating allegations of such acts, prosecuting perpetrators, and providing redress to victims.

Universal Jurisdiction and Accountability :

Torture being considered a jus cogens norm, it is consequently one of the highest principles in international law, binding all states without exceptions.
Therefore, under the principle of universal jurisdiction, countries can prosecute torturers from other states. This has led to cases like Germany’s trials of Syrian officials accused of torture abroad.

Non-Refoulement :

This obligation is central to refugee protection and prohibits states from transferring individuals to countries where they are at real risk of torture.

German court finds Syrian colonel guilty of crimes against humanity

A retenir :

This trial in Germany’s Higher Courts in Koblenz involves Anwar Raslan and Eyad Al Gharib, two former members of Assad's Syrian security services accused of crimes against humanity under Germany's Code of Crimes Against International Law (CCAIL) - started on April 23, 2020, it’s notable for applying universal jurisdiction, allowing Germany to prosecute severe international crimes regardless of where they occurred.

Anwar Raslan: A former high-ranking colonel in Assad's security services, charged with overseeing torture, rape, and murder, including 58 counts of murder under Germany’s Penal Code.
Eyad Al Gharib: A lower-level official tasked with rounding up and torturing protestors, charged with aiding crimes against humanity.

Both defendants came to Germany as refugees, where their presence was identified, prompting investigations.

The CCAIL and Rome Statute provide Germany’s courts with jurisdiction over international crimes, under the principle of universal jurisdiction. Article 17 of the Rome Statute emphasizes complementarity, meaning national courts can prosecute international crimes when other states are “unwilling or unable” to do so.

Universal Jurisdiction : Germany’s use of universal jurisdiction highlights its role in prosecuting severe crimes against humanity, particularly where international or Syrian justice systems are inaccessible or paralyzed.
Impunity Gap : Critics argue that by prosecuting only lower-level perpetrators, this trial leaves high-level officials, like Bashar al-Assad, unpunished, thus highlighting a gap in accountability within international criminal justice.

4. Severity Threshold

Ireland v United Kingdom, ECHR, 1978 :

This case involved interrogation techniques such as forcing detainees to remain "spreadeagled” against the wall with fingers above their head for hours (wall-standing), putting a black bag over their heads during interrogation (hooding), subjection to continuous loud and hissing noise, deprivation of sleep, food and drink.
The ECHR ruled these acts as inhuman and degrading but didn’t initially classify them as torture because she ruled that those techniques didn’t occasion suffering of the particular intensity and cruelty implied by ‘torture’ defined in art. 1 CAT.

Ireland v United Kingdom, ECHR (revision), 20 March 2018

In 2014, Ireland requested a revision, presenting newly discovered documents from the UK archives that showed both long-term effects of the techniques and a deliberate withholding of evidence by UK officials during original proceedings.
While acknowledging the gravity of the allegations, the Court maintained that its original focus was on the immediacy and intensity of suffering, rather than long-term consequences, when assessing if the treatment qualified as torture.
Additionally, the Court emphasized the principle of legal certainty, indicating that revising a 40-year-old judgment could undermine the finality of past rulings and the stability of legal standards.

MSS v. Belgium and Greece (2011) :

The ECHR addressed the treatment of asylum seekers within the European Union, particularly concerning Greece and Belgium's responsibilities under the Dublin II Regulation which required asylum seekers to apply for asylum in the first EU country they entered, which in this case, was Greece.
Problem was that MSS, an Afghan national, faced inhuman treatment in Greece, including overcrowded facilities, inadequate food, sanitation, and lack of legal assistance for asylum claims.
Therefore, MSS seeked asylum in Belgium who returned him to Greece without assessing the risks of inhuman treatment, relying solely on the Dublin II Regulation.

Court’s Findings :

Violation of Art. 3 ECHR (Prohibition of Inhuman or Degrading Treatment):

=> Greece : Found in violation due to substandard living conditions and ineffective asylum procedures that subjected MSS to degrading treatment.

=> Belgium : Violated art. 3 by transferring MSS to Greece, knowing the conditions he would face there (infringed non-refoulement principle).

Violation of Art. 13 ECHR (Right to an Effective Remedy) : The ECHR held that both countries failed to provide MSS with access to an effective remedy to challenge his treatment and seek appropriate protections.

=> The MSS v. Belgium and Greece case underscored the responsibility of states to protect asylum seekers' fundamental rights, even when transferring them under EU regulations. It set a precedent reinforcing on the one hand the non-refoulement principle who prevents sending individuals to places where they risk inhuman treatment and established on the other hand that adherence to international HR standards supersedes automatic transfers under the Dublin system, highlighting a duty to ensure that conditions in the receiving country meet basic human rights requirements.

Physical or mental suffering

Art. 7 ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment and this prohibition applies to forms of psychological torture, as the HRCttee specifies in its General Comment 20, which condemns practices such as death threats or prolonged isolation as inhuman or degrading treatment.

Selmouni V France, ECHR, 1999 :

Court expanded the definition of torture set out in art. 3 ECHR taking into account the evolution of social and legal awareness in the field of human rights and judged that the intensity of pain inflicted, the prolonged nature of the abuse and the intention to humiliate and terrorize the victim were sufficient to qualify the acts as torture, including psychological torture, not only as inhuman or degrading treatment.

When is solitary confinement torture?

Rule 44 of the UN Nelson Mandela Rules (2015) has set a universal definition of solitary confinement as ‘the confinement of prisoners for 22 hours or more a day without meaningful human contact’.

=> The Rules also absolutely prohibit the indefinite, prolonged (15 days) and group-specific (children, pregnant women and the mentally ill) uses of solitary confinement.

Revised Council of Europe's European Prison Rule (2020) adopted the definition of solitary confinement as found at UN level but have intentionally avoided adopting the 15 days limitation, leaving this question to national systems.
The ECHR fails to recognize the definition and prohibitions found in the Mandela Rules – not having considered a single complaint of solitary confinement to specifically amount to torture (though numerous cases were found to be inhuman and degrading treatment).

A retenir :

Ali Aarrass v. Morocco, UN CAT, 2020 :

Ali Aarrass, a Belgian-Moroccan citizen, was extradited from Spain to Morocco in 2010 under suspicion of terrorist activities despite warnings from human rights organizations that he risked torture in Morocco.
Upon arrival, he was held incommunicado for several days and reportedly tortured by Moroccan security forces (severe beatings, stress positions, waterboarding, and electric shocks) in order to coerce him into confessing to terrorism-related activities, despite his consistent denial of involvement.
His confession, allegedly obtained under torture, became key evidence in his conviction by a Moroccan court, which sentenced him to 12 years in prison.
Aarrass and his legal team sought a thorough medical examination to document his injuries and signs of torture but moroccan authorities, however, either delayed or blocked these requests, moreover, his complaints of torture went unaddressed by Moroccan courts.

=> Findings of the UN Committee Against Torture :

Violation of Art. 2 (Obligation to Prevent Torture): The CAT underscored Morocco’s duty to take effective measures to protect individuals from torture, especially detainees facing high risk after extradition warnings.
Violation of Art. 12 and 13 (Duty to Investigate Torture Allegations): The Committee found that Moroccan authorities had not conducted an impartial investigation into Aarrass’s claims, violating their obligation to promptly and effectively investigate credible allegations of torture.
Violation of Art. 15 (Prohibition of Evidence Obtained Under Torture): Committee highlighted that evidence obtained through torture is inadmissible in court.
Violation of Art. 14 (Right to Redress and Rehabilitation): The CAT stressed that victims of torture have the right to obtain full rehabilitation and compensation and that Morocco’s failure to address Aarrass’s torture claims and provide reparative support breached this obligation.