‘The absolute prohibition of torture and other forms of ill-treatment is both unviable and

unnecessary.’
Discuss.

The Universal Declaration of Human Rights states in Article 5 that “No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment." Article 3 ECHR and Article 7
of the International Covenant on Civil and Political Rights (ICCPR) also prohibit torture. To address
the issue of torture indepth and more closely, The United Nations Convention Against Torture
(UNCAT) was passed. It is also considered to be illegal by the Geneva Conventions. This particular
statement questions the need and logic behind these instruments. We shall first consider what
torture is, and why this is considered to be a violation of human rights and then analyze whether
its absolute prohibition is needed. (no need to change this para)
The fundamental idea of human rights clearly implies that torture is unacceptable. The ‘inherent
dignity of the human person’ is the foundation of the prohibition. Article 1 of the UN CAT states
that torture is “any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted…” The intention is directed towards particular purposes: obtaining
information, punishment, intimidation, coercion or discrimination. In all instances, torture could be
used either on the immediate victim or as a means of punishing, intimidating, discriminating
against or obtaining information about a third party, by means of extreme pain and suffering. The
definition is broad enough to cover both physical or mental pain and suffering. the alleged acts of
torture have to have an official nature: the ‘pain and suffering’ have to be inflicted either directly
by or with the ‘consent or acquiescence’ of a ‘public official’ or someone acting in an official
capacity. In this sense, torture that was inflicted in a private capacity, without either direct or
indirect official sanction, would fall outside of the Convention, although it may constitute an
offence under the relevant national law.
Acts cannot constitute torture so long as they are sanctions provided for by law and carried out
further to due process. Further, they will not be acts of torture as they are not intended to induce
a confession or the extraction of information. we can see that while certain acts of ill treatment
will reach the threshold to amount to torture, they will not be ‘torture’ for the purposes of the
Convention unless other criteria are also met.
Articles 2(2) go to the heart of the Convention:
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may be invoked as a justification of torture.
nor the excuse that the official carrying out the acts of torture was acting on orders from a
superior. Article 2 also points to one of the foundational principles of the Convention. UNCAT is a
‘jurisdictional Convention’. This means that it aims to prohibit torture and to ensure that torture is
unlawful in domestic law, and that acts of torture are punishable. Article 14 is a strong statement
of the rights to redress that must be provided by national law:
. Each state party shall ensure in its legal system that the victim of an act of torture obtains redress
and has an enforceable right to fair and adequate compensation, including the means for as full a
rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his
dependants shall be entitled to compensation.
Article 15 provides that statements made as a consequence of torture should not be used as
evidence in proceedings against the person who has been tortured; however, a statement
extracted by torture could be used against the alleged torturer as evidence that a statement was
made as a result of torture.
Article 17 establishes the Committee Against Torture. Article 17(1) describes the Committee as
staffed by a body of experts elected by states parties but serving in their personal capacities.
The USA has always been on the forefront when it comes to ‘war on terror’. This basically started
after the terrorist attacks of 11th September 2001. The us responded with military action which was
followed by the Iraqi and Afghanistan invasions. The issue regarding torture mainly revolved
around the Cuban facility of the US (Guantanamo bay). About 60 ‘prisoners of war’ were held
captive here (by 2016), but were titled ‘enemy combatants’. This contradicts international law, as
these detainees are to be ‘prisoners of war’ only, unless a court or tribunal expressly charges them
with criminal penalties or sets them free.

In 2006, the committee against torture discovered that “The Committee notes with concern that
the state party does not always register persons detained in territories under its jurisdiction
outside the United States, depriving them of an effective safeguard against acts of torture “(Article
2).
Detainees are allegedly deprived of fundamental legal safeguards, including an oversight
mechanism in regard to their treatment and review procedures with respect to their detention.
The Committee is also concerned by allegations that those detained in such facilities could be held
for prolonged periods and face torture or cruel, inhuman or degrading treatment. The Committee
considers the ‘no comment’ policy of the state party regarding the existence of such secret
detention facilities, as well as on its intelligence activities, to be regrettable (Articles 2 and 16).
The state party should adopt all necessary measures to prohibit and prevent enforced
disappearance in any territory under its jurisdiction, and prosecute and punish perpetrators, as this
practice constitutes, per se, a violation of the Convention.
. The Committee, noting that detaining persons indefinitely without charge constitutes per se a
violation of the Convention, is concerned that detainees are held for protracted periods at
Guantánamo Bay, without sufficient legal safeguards and without judicial assessment of the
justification for their detention (Articles 2, 3 and 16).
The Committee is concerned that in 2002 the state party authorized the use of certain
interrogation techniques that have resulted in the death of some detainees during interrogation.
The Committee also regrets that ‘confusing interrogation rules’ and techniques defined in vague
and general terms, such as ‘stress positions’, have led to serious abuses of detainees (Articles 11, 1,
2 and 16).

The US tried to somewhat justify the violations of the convention on the basis of special
circumstances arising from the war of terror, and it can be seen that the state’s attitude seems to
be pro-torture, attempting to work its way around the absolute prohibition of torture.
By 2014, when the Committee again considered the situation, certain noteworthy developments
had occurred. The US Supreme Court in Boumediene v Bush (553 US 723 of 2008) had determined
the extraterritorial application of constitutional habeas corpus rights to aliens detained by the
military as enemy combatants at Guantánamo Bay. This meant that under US Constitutional Law,
they could not be detained and were entitled to certain rights
the Committee remains concerned that the State party has not yet withdrawn its reservation to
article 16 which could permit interpretations incompatible with the absolute prohibition of torture
and ill-treatment.
The Committee expresses grave concern over the extraordinary rendition, secret detention and
interrogation programme operated by the United States Central Intelligence Agency (CIA) between
2001 and 2008, which comprised numerous human rights violations, including torture, ill-
treatment and enforced disappearance of persons suspected of involvement in terrorism-related
crimes.
Compared to the US, torture has not been a prevelant issue in the UK, and the country has not
seen many widespread violitions of the prohibition. However, there have been a few landmark
cases. Some of these cases further illustrate the problems involved in prosecutions for torture. The
first set of cases focuses on the question of whether or not General Pinochet could claim immunity
from prosecution, and thus prevent his extradition from the UK to Spain where he would face
torture charges. The Pinochet case shows that prosecution is far more complex than simply
bringing charges against an individual. It reveals the problems that are attendant on bringing
charges against former heads of state who may claim immunity from prosecution, and may not be
in the territory where the acts of torture were allegedly committed. It followed that since the acts
of torture were an offence under UK law, the applicant could not claim immunity from the criminal
process, and this included extradition. However, in an unprecedented move, this decision was set
aside by a House of Lords Committee in December 1998 (R v Bow Street Metropolitan Stipendiary
Magistrate, ex p Pinochet Ugarte (No 2) [1999]
l. In the context of the war on terror, the UK has been one of the closest allies of the USA and
concerns have been expressed about aspects of government policy relating to torture. It is worth
noting at this point that opposition to torture in English law has existed for centuries and long
before the UK became party to UNCAT. The UK in its periodic report to the Committee Against
Torture in 2004, for example, stressed that the common law has prohibited torture since the 17th
century. The Treason Act 1709 definitively stated that no one accused of a crime could be tortured,
and, alongside this Act, both the common law and the Offences Against the Person Act 1861
criminalized the act of torture. The law against torture was updated when the UK acceded to
UNCAT by s.134 Criminal Justice Act 1988.
The response of the UK government to the terrorist attacks of September 2001 had a number of
aspects but one significant one was the enactment of Part 4 of the Anti-terrorism, Crime and
Security Act 2001. This would have put the UK in breach of both Article 3 UNCAT and Article 3
ECHR. In n A v Secretary of State for the Home Department (No 2) [2005] the main point was the
fact that Article 15 UNCAT was not directly incorporated into UK domestic law. But as UNCAT was
the key international treaty in this regard, reference to it when considering evidence obtained by
torture was unavoidable and the House of Lords did so repeatedly in supporting their view that
such evidence should not be admissible.

Article 3 UNCAT specifically prohibits the expulsion, return or extradition of a person to another
state where there are substantial grounds for believing that they would be in danger of being
subjected to torture. It should be noted it extends to a prohibition where there is a risk of torture.
Soering v United Kingdom is a noteworthy case. Here the person in question was a German
national wanted by the authorities in Virginia, USA, for the murder of his girlfriend’s parents. He
was in the UK and the question was whether he could be extradited from the UK to Virginia, where
he would be exposed to ‘death row syndrome’. It is worth noting that at the time of the ECtHR’s
decision in 1989, there was no absolute prohibition on the use of the death penalty among Council
of Europe states as there is now, What is important here is that the prohibition to extradite does
not refer to torture only – it is drawn more broadly than that. On the basis of the facts, it was not
the death penalty itself that was the issue but ‘death row syndrome’.
Chahal v United Kingdom, the issue relating to terrorism was clearly coming into focus. Here, a Sikh
nationalist, who was residing in the UK, was due to be deported by the UK to his native India. The
deportation was ordered on the ground that his continued presence in the UK was unconducive to
the public good for reasons of national security, including the fight against terrorism. Mr Chahal
claimed, however, that if returned to India he would be tortured by the Indian security services
due to his activities and well-known support for Sikh separatists. The UK government had sought
and received assurances from the Indian government that no harm would come to Mr Chahal if he
was returned to India. Chahal was controversial in the sense that the UK considered Mr Chahal’s
presence in the UK to be unconducive to its national security but it was still unable to return him to
India. It is clear from these two cases that the prohibition of ill treatment contrary to Article 3 is
absolute, so much so that it prohibits deportation regardless of what the person in question may
have done. This could be framed as a question of the national security of the state where the
person in question is held and how it could be a potential threat or harm to it, and because of the
absolute prohibition on torture or extradition with risk of torture, the country has to disregard the
security of its own nation in order to protect a person from another state who has committed a
clear offence on the basis that he might face torture if he is extradited. Even though strict criteria
is applied to fully assure whether or not the person will surely face torture or inhuman treatment,
this prohibition could still prove to be controversial.
The UK government argued in Saadi that the principle in Chahal that, in view of the absolute
nature of the prohibition of treatment contrary to Article 3 of the Convention, the risk of such
treatment could not be weighed against the reasons including the protection of national security,
had caused a great many difficulties for contracting states by preventing them in practice from
enforcing expulsion measures. The UK further argued that it was unlikely that any state other than
the one of which the applicant was a national would be prepared to receive into its territory a
person suspected of terrorist activities. The UK further noted that it was frequently impossible to
use confidential sources or information supplied by intelligence services to secure convictions.
Other measures, such as detention pending expulsion, placing the suspect under surveillance or
restricting his freedom of movement, provided only partial protection. The UK conceded that the
protection against torture and inhuman or degrading treatment or punishment provided by Article
3 of the Convention was absolute but asked the Court to reconsider its approach. The UK argued
that, in cases concerning the threat created by international terrorism, the approach followed by
the Court in Chahal had to be altered and clarified.

Saadi is very important in a number of respects. The Grand Chamber strongly reaffirmed the
absolute nature of Article 3 – in particular the idea that the behavior or activities of the applicant
are irrelevant. The British government’s argument that a balance needed to be struck between the
state’s responsibility to protect its own population and their well-being and life (Article 2) against
the applicant’s interests was rejected out of hand. Finally, the notion that the degree of risk of
torture had to be higher and more certain where there are national security risks was also
rejected. The Court referred to the difficulties states face in fighting terrorism but remained
steadfast. Subsequent to Saadi, Othman dealt with similar issues. Abu Qatada (also known as
Othman) became an infamous preacher in the UK and a hate figure for parts of the media who
focused huge amounts of energy on him. Efforts to remove him were protracted and prolonged
but ultimately the ECtHR upheld his deportation to Jordan.
Let us now glance at the famous ticking time bomb situation which some use to justify torture
under certain circumstances. Under this example, the scene is set where a terrorist is capture who
knows the whereabouts of a ticking time bomb which could cause the death of thousands of
people. In such a situation would it be right or justified in any way to torture the terrorist to extract
the information needed to diffuse the bomb and save thousands of lives? Torture is perceived to
be and immoral act even by those who believe it is necessary to resort to in a TBS, they believe
they are choosing the “lesser evil”, yet they do consider it an evil.
The decision to be taken asks you to take into consideration whether you should torture someone
who acted in a purely evil and immoral way by endangering lives in order to save innocent people
who are at risk. In such a situation one may argue that the absolute prohibition on torture needs
to have certain exceptions in order to cater to situations of life and death. Consequentialists and
utilitarians argue that the approach to be take is the one that produces the best consequences,
good and happiness. Deontologists, however, believe that even if an act is immoral, it should not
be performed even if it produces the best result.