Torture, inhuman, cruel or degrading treatment or punishment (TIDT) are absolutely prohibited under international law. However, as will be discussed below, TIDT remains widespread around the world and there is persistent debate about whether TIDT can ever be justified. After engaging with some of these debates, this chapter considers the sources of human rights law in relation to the prohibition of TIDT. The chapter then discusses definitions of torture and the other forms of ill-treamtent (inhuman, cruel and degrading treatment and punishment) before setting out the obligations that international human rights law creates for states in relation to preventing and punishing treatment that violates the international prohibition of TIDT.

Torture and its Persistent Practice

Over the last five years, Amnesty International has reported torture and other forms of prohibited ill-treament in at least 75% of the countries in the World. This is despite 175 countries being parties to the UN Convention against Torture (UNCAT) and 174 counties being parties to the ICCPR, which prohibits torture and other forms of ill treatment (see Article 7). Torture is often associated with interrogation of people suspected of crimes, punishment for causing civil unrest, or punishment for being in opposition to the leadership of a country. Most countries in the world have repeatedly ratified treaties and agreed to declarations that make it clear that torture is absolutely prohibited. However, there remains political and academic debate about what amounts to torture and whether torture and other forms of prohibuted ill-treatment can ever be permitted and justified.

These debates became more prominent after the terrorist attacks in the USA on the 11th of September 2001. During the ‘War on Terror’ that followed, there were reports that the USA engaged in systematic TIDT. The USA argued that the ‘enhanced interrogation techniques’ being utilised to question detainees were not torture and so not prohibited under international human rights law, as it was a time of war and public emergency. The USA asserted that such treatment was not a breach of international human rights law as, although torture was absolutely prohibited at all times, other forms of ill-treatment were permitted during war and times of public emergencey. This legal argument was made in several ‘torture memos’ by members of the US Government. It is incorrect; all forms of TIDT are absolutely prohibited and non-derogable even in times of war and public emergency. This absolute prohibition has been confirmed by the UN Committee Against Torture (CAT) in paragraphs 5 to 6 of General Comment 2 and paragraph 8 in General Comment 4. It has also been confirmed by the Human Rights Committee (HRC) in paragraph 7 of General Comment 29. However, the ‘War on Terror’ renewed public debate about the use of torture in certain circumstances. The scenario most often used to debate the possible use of torture is the ‘ticking time bomb scenario.’

The ticking time bomb scenario and the use of torture

The ticking time bomb scenario refers to a situation in which a terrorist bomb is about to detonate, potentially killing many people. The authorities have in custody an individual or individuals that know the location of this bomb and how to defuse it. The question is whether torture of the individual(s) is permitted to save the lives of those that will be killed and injured by the bomb when it explodes. This scenario has been the subject of much academic debate. The first point to note is that, as will be discussed later in the chapter, the use of torture and other forms of inhuman or degrading treatment and punishment are absolutely prohibited as a jus cogens norm and in many human rights and other international law instruments. As such, TIDT is not legally permissible. However, the moral permissibility in extreme circumstances is discussed, as well as how such situations could be approached, potentially bringing torture within domestic legal frameworks.

One of the often-used justifications for the use of torture is a consequentialist argument. A utilitarian calculation would suggest that the pain and suffering of one individual who is tortured to extract information to save the lives of many is morally permissible. The harm done by torturing one person is outweighed by the good of saving the lives of many. Those that argue that torture in such circumstances should be permitted then often go on to suggest one of two ways of bringing such torture within legal frameworks: permission to torture or justification after torture.  All three aspects of this consequentialist approach to torture have received much discussion and critique.

In response to the consequentialist justification of torture, a deontological argument would posit that torture is wrong and can never be justified. Torture is an active and deliberate act designed to cause physical and mental pain. It deprives victims of their dignity and autonomy. As such, it can never be permitted morally or legally. It is also argued to be morally wrong, due to the negative and corrupting effect on both those that carry it out and wider society.

In addition many, including Henry Shue have raised questions about the nature of the ticking time bomb scenario that is used in consequentialist arguments. Firstly, the assumption that the person in custody is definitely a terrorist and it is certain that they have the information needed is problematic. In many cases, the individuals in custody would be suspects, it would not be known for absolute certainty that they would have the information that is needed to prevent the detonation of the bomb. The assumption they are the terrorist with the necessary knowledge removes the possibility of torturing innocent individuals, which would be an additional negative consideration in the ‘calculation’ of goods versus harms. There is also an assumption that torture will quickly result in disclosure of the information needed to stop the bomb detonating. The possibility of the person becoming unable to answer due to the torture or that they provide incorrect information is not considered in the equation.

Together these two assumptions lead to another problem not considered by the consequential argument for torture: that torture is often ineffective. Innocent people will confess or supply incorrect information that they think will stop the torture. There is little actual evidence that torture is an effective means of obtaining evidence or interrogating people.

The final point to be considered in relation to the consequentialist argument for torture is the positive and negative outcomes that are ‘weighed’ against each other. Simplistically, more good is done by preventing death and injury of many people than the harm of torturing one individual.  However, these calculations ignore the longer term and more widespread consequences of the use of torture.  As mentioned above, torture can impact the torturer and wider society in a negative way. In addition, other examples of harms not taken into account in consequentialist arguments include that torture may support terrorist recruitment through radicalisation. Use of torture by states may also legitimise its use by other states, resulting in an increase in torture use around the world. Despite these general objections and concerns about the use of torture, ways to regulate torture within legal frameworks have been discussed, with the idea of ‘torture warrants’ or the utilisation of a defence of necessity after torture both having been proposed.

“Torture warrants” were suggested by Dershowitz. He describes himself as against torture as a “normative matter,” but that he accepts that torture is being used as a matter of fact and in a ticking time bomb scenario, torture would be used. He then states his “conditional normative” position to be, if torture, “would in fact be used in an actual ticking time bomb mass terrorism case, would it normatively be better or worse to have such torture regulated by some kind of warrant with accountability, record-keeping, standards and limitations.”

Alternatively, the possibility of justifying or excusing torture after it has occurred has been discussed by the Israeli Supreme Court. The Court indicated that there were no provisions in Israeli law that permitted the use of TIDT during the interrogation of terrorist suspects. The Israeli State argued that the criminal law defence of necessity could be used by security service personnel who used ‘physical means’ during interrogations as they would be preventing “serious harm to human life or body.” Although the Court accepted the defence of necessity would be open to be used by security service officers that used physical force in interrogations, they stated they could not provide general directives that permitted in advance the use of TIDT in interrogations and subsequent reliance on necessity as a defence. The defence of necessity is judged on a case-by-case basis considering the circumstances the individual utilising the defence was faced with. Authorisation in advance of such techniques would require enactment of legislation.

Posner and Vermule have suggested that the use of ‘coercive interrogation’ should be regulated in the same way as the use of deadly force by the police and other security services.  However, Gross has suggested that the need for reliance on a defence of necessity means individual agents are taking moral responsibility for their actions. This, it is argued will limit the use of torture. It is not something mandated or permitted by the state but ultimately something an individual chooses to do in one of the limited situations that warrants such action. More generally, there are concerns that any form of official permission or excusing after the fact, will result in the overuse of torture. Officials may exaggerate the situation to obtain torture warrants and judges may feel pressured into issuing warrants. Society becomes desensitised and more accepting of TIDT and torture becomes more widespread. Those engaging in the ‘coercive’ or ‘enhanced’ interrogation my use more violence than is necessary.

As a more general objection to violations on the absolute prohibition of TIDT, Waldron has argued the prohibition of torture is a legal archetype. A legal archetype is a rule or norm that goes beyond simply the behaviour that is prohibited. For example, a rule or law that prohibits parking in a particular location is a rule that has been created by that law; there is unlikely to be an underlying moral principle that would suggest parking in that space is wrong. Whereas law that prohibits murder embodies the pre-existing moral standard or rule that it is wrong to kill people. The law simply provides clarity as to the scope of that rule, for example, permitting self-defence that includes killing someone. Waldron argues that, “torture is a legal archetype emblematic of our determination to break the connection between law and brutality and to reinforce its commitment to human dignity even when law is at its most forceful and its subjects are at their most vulnerable.” The idea that we already accept TIDT is an absolute wrong, and international human rights law defines the parameters of the absolute prohibition can be evidenced by the large number of sources of law that absolutely prohibit TIDT.

Sources of Law Concerning TIDT

The prohibition of torture is a peremptory (jus cogens) norm of general international law. It has been repeatedly identified as such by the International Law Commission. This status means that the prohibition of torture applies to all states, even those that have not ratified any treaties containing the prohibition of torture. In addition, the prohibition has been repeated in numerous regional and international human rights treaties as well as treaties dealing with international humanitarian law and international criminal law. It should be noted that in all of the main UN documents and regional human rights documents, with the exception of the European Convention on Human Rights that the provisions include ‘cruel’ treatment. However, as will be discussed below in relation to defining types of torture and ill-treatment, in practice this does not alter the scope of the provisions, as treaty bodies and courts rarely state that a specific act is cruel rather than degrading, just that is a form of prohibited ill-treatment that is not torture.

UN Treaty System

The most detailed treaty dealing with torture and other forms of TIDT is UNCAT. Article 7 of the ICCPR also prohibits TIDT. The Committees associated with both treaties have issued Annual Reports and General Comments clarifying the nature of the obligations contained within the treaties. As can be seen in the box above, many other UN human rights treaties contain prohibitions on TIDT. In addition, the Geneva Conventions contain provisions prohibiting TIDT and the Rome Statute of the International Criminal Court indicates torture constitutes an element of genocide, crimes against humanity and war crimes.

As well as protection in treaties, many other international human rights instruments contain provisions and guidelines that aim to protect the absolute prohibition on TIDT, for example:

• 1955 Standard Minimum Rules for the Treatment of Prisoners (revised as 2015 Nelson Mandela Rules).
• 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
• 1982 Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
• 2000 Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Regional Treaty Protection

Mirroring the extensive international protection, the regional human rights systems also contain several sources concerning the prohibition of TIDT.

Inter-American Human Rights System

Article 5 of the American Convention on Human Rights (ACHR) contains the right to human treatment. Article 5(2) of the ACHR prohibits torture, cruel, inhuman, and degrading treatment or punishment. Article 27(2) of the ACHR states that the rights in Article 5 are non-derogable even in times of “war, public danger, or other emergency that threates the independence ofor security of a State Party” There are two additional treaties that create obligations for states in relation to TIDT in the Inter-American system: the Inter-American Convention to Prevent and Punish Torture and the Inter-American Convention on Forced Disappearnce of Persons.

Council of Europe

Article 3 of the European Convention of Human Rights (ECHR) prohibits torture, inhuman or degrading treatment or punishment. Article 15 ECHR indicates that derogation from Article 3 is not possible even in times of war or public emergency. In addition, the Council of Europe established the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Convention establishes a Committee that can visit locations where people are deprived of their liberty within the jurisdiction of the state parties and make recommendations. The Committee has no judicial function, but their reports have been used in cases concerning Article 3 ECHR before the European Court of Human Rights (ECtHR). For example, in the case of Stanev v Bulgaria, concerning in part the living conditions in a psychiatric facility, the findings of a previous Committee visit were used to support the applicants concerns about the food he was provided and his other living conditions.

African Human Rights System

Article 5 of the African Charter on Human and People’s Rights (ACHPR) prohibits torture, cruel, inhuman or degrading punishment and treatment. The African Commission on Human and People’s Rights (ACmHPR) in conjunction with the Association for the Prevention of Torture and the Regional Office of the United Nations High Commissioner for Human Rights developed the Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa. These guidelines were adopted by the ACmHPR in October 2002 and approved by the Conference of Heads of State and Government of the African Union in July 2003. The guidelines encourage states to ratify international legal instruments as well as integrating and implementing them in domestic law. They also emphasise the importance of prevention measures as well as systems of oversight and investigation of complaints regarding the use TIDT. The guidelines also contain recommendations about how to respond to the needs of victims of TIDT.

Definitions of Torture, Inhuman or Degrading Treatment or Punishment

The absolute prohibition of TIDT is consistent throughout international and regional human rights law. As all such ill-treatment is absolutely prohibited this raises the question as to why definitions of what constitutes torture rather than cruel, inhuman or degrading treatment are necessary. Both are not permitted. However, as some of the related obligations may only apply to torture, defining the threshold for torture becomes important. For example, the establishment of universal jurisdiction, non-refoulement and obligations in relation to extradition of persons accused of TIDT may only apply to torture. In addition, torture is said to carry a special stigma, and as a result, it needs to be defined. The definitions of TIDT are also important as they tell states what behaviour is included in this absolute prohibition, as well as defining the positive obligations that states have in relation to the prohibition of TIDT.

Torture

Many human rights treaties contain a single provision that prohibits TIDT, without defining the differences in the type of behaviour. In addition, there has been a trend where some human rights bodies do not clearly indicate what type of prohibited behaviour the victim has been subjected to. For example, the HRC will indicate that Article 7 has been violated, but not indicate whether the victim has been tortured, or subjected to another type of TIDT. However, UNCAT does contain a provision that defines torture, and the ECtHR does differentiate between torture and other forms of TIDT when considering violations of Article 3 ECHR. Article 1 of the UNCAT states

The definition of torture in Article 1 of UNCAT has been referred to by other treaty bodies and is the most widely accepted definition of torture. It suggests four elements necessary for ill-treatment to be considered torture: (1) infliction of severe mental or physical pain, (2) intention to inflict pain, (3) the purpose for which this pain is inflicted, and (4) involvement of a public authority.

Infliction of Severe Mental or Physical Pain

Torture and other forms of TIDT do not need to include physical pain. For example, the HRC, Inter-American Court of Human Rights (IACtHR), and ECHR have all found violations of the prohibition of TIDT due to mental anguish caused by the disappearance of loved ones and the lack of information or investigation provided in the circumstances. Determining the severity of suffering will consider subjective elements related to the circumstances and the victim including features such as age, sex and health. The long term psychological impact was a factor in the ECtHR finding that the rape of a 17-year-old girl in detention was torture in the case of Aydin v Turkey.  The ACmHPR has also confirmed that Article 5 of the ACHR includes prohibition of treatment that causes psychological suffering.

Intention to Inflict Pain

Both intention and the purpose of the treatment are factors that are key in differentiating torture from other forms of TIDT. Failure to provide food to prisoners so they were left hungry would likely be considered a form of ill-treatment. If this resulted from negligence, perhaps forgetting to provide food, or not having sufficient food to feed the number of people detained, this would most likely be considered to be inhuman and degrading treatment. However, if prisoners are denied food deliberately, either alone or in combination with other ill-treatment to inflict severe pain and suffering, this may constitute torture. It is the deliberate act that differentiates torture. Nowak, when he was Special Rapporteur, also noted that unintended consequences could be considered inhuman and degrading treatment, if the severity threshold was met.

Purpose or Aim of the Infliction of Pain

Requiring torture to be carried out for a purpose, indicates torture involves abuse of power. The list in Article 1 UNCAT is not exhaustive. Although torture is often associated with extraction of information as part of an interrogation, as indicated in Article 1 UNCAT, it can also be used for punishment and coercion. The inclusion of “reasons based on discrimination of any kind” has implications for gender-based violence and abuses of people with disabilities, especially in health care settings. If the particular acts are shown to be gender-specific or based on discrimination, then this is an important factor in determining if treatment is torture.

Involvement of a Public Authority

The final requirement for ill-treatment to be considered torture is the involvement of a public official or someone acting in an official capacity. Although this would suggest that torture cannot be carried out by private individuals, the acquiescence of public officials to acts carried out by private individuals can be sufficient to bring certain treatment within the scope of prohibited TIDT. For example, cases of domestic violence, where officials do not act to prevent further acts of violence or even encourage certain acts, may be brought under the scope of Article 1 UNCAT. In such situations it would be expected that the state should act with due diligence and investigate, prosecute and punish those committing acts of domestic violence.

The ECHR, along with most other treaties that prohibit TIDT, contains a single provision with no definition of the different types of prohibited treatment, simply indicating that TIDT are prohibited. However, the ECtHR distinguishes torture from other forms of ill treatment. In the case of Ireland v UK the ECtHR stated that:

Although in Ireland v UK, the treatment of detainees by the UK was a violation of Article 3 ECHR, it was not considered sufficiently severe for the treatment to be considered torture. Subsequent case law, where the ECtHR have found Contracting States guilty of torture have emphasised the need for deliberate infliction of serious suffering. In Selmouni v France, repeated beatings, threats of sexual assault and threats of physical assaults with a blow torch and syringes of an individual whilst he was in police custody for suspected drug-trafficking was considered torture.

Inhuman, Cruel or Degrading treatment or Punishment

As noted above, the word cruel in the list of prohibited ill-treatment other than torture is only omitted from the ECHR. However, the HRCtee stated in its General Comment 20 (para 4), that it is not necessary to “establish sharp distinctions between the different kinds of punishment or treatment.” This is the approach that has been taken by courts and treaty bodies; although it will be acknowledged when torture has occurred, other forms of ill-treatment that are less severe than torture will be stated to have violated the Article of the human rights treaty, but without specifying which particular form of ill-treatment the applicant has been subjected to. When assessing if certain treatment or the suffering it has caused has amounted to TIDT, all treaty bodies agree that a minimum level of severity must be reached. The ECtHR takes into consideration all the circumstances of the case, an approach that has been followed by the HRC (see for example Vuolanne v Finland) the ACmHPR ( see for example the case of Huri-Laws v Nigeria) and the IACtHR (see for example the case of Bueno Alves v Argentina) when determining the severity of the ill-treatment. In Ilaşcu and others v Moldova and Russia, the European Court of Human Rights noted:

In the case of Bouyid v Belgium, a police officer delivered a single slap to the face of a young man in custody. The ECtHR found that this was a violation of Article 3 ECHR as it was a “serious attack on the individual’s dignity.” The ECtHR also considered the dynamics of power and control in Bouyid, as part of the qualitative assessment of all the circumstances of the case.

The ECtHR has also emphasised a link between discrimination and degrading treatment. In 1981, the European Commission established the link in the case of East African Asians v UK. In this case, the court found that discrimination based on race was a particular affront to human dignity. Combined with the public nature of this discrimination the form of discriminatory legislation this was degrading treatment and a violation of Article 3 ECHR. A similar approach was taken in Cyprus v Turkey where Greek Cypriots were subject to public discrimination on the grounds of their race and ethnicity. Direct discrimination has also been found to be degrading treatment in relation to sexual orientation.

Obligations for the Prohibition of TIDT

As discussed above, there are many forms of ill-treatment arising in many situations that have been found to violate the absolute prohibition of TIDT. States have a negative obligation to not subject people to such ill-treatment. There are also positive obligations that form part of the prohibition of TIDT. Some of these have already been briefly mentioned, for example the failure to take action to protect victims of domestic violence and the failure to investigate and inform families of their whereabouts of their relatives when they disappear. Some of these obligations and situations will now be considered in more detail.

The Obligation to Investigate, Prosecute and Punish

As discussed in Chapter 4 on the types of human rights obligations, civil and political rights, such as the prohibition on TIDT, encompass both negative and positive obligations. One of the positive obligations that has a significant role in also preventing TIDT is the obligation states must investigate, prosecute and punish those that carry out TIDT. Article 2(1) of UNCAT requires states to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” Article 4 UNCAT requires torture to be made a criminal offence that is punishable by appropriate penalties. Although this text could be interpreted as only requiring these actions for torture, not all forms of TIDT, the CAT has confirmed in  General Comment 2 that the obligations contained in Articles 2 to 15 of UNCAT apply to torture as well as other forms of ill-treatment.

The HRC has taken a similar approach to Article 7 ICCPR. General Comment 20 indicates states should prevent and punish acts of TIDT, including criminalising such acts. The scope of criminal provisions should include not only public officials but also ‘private persons.’ The case of Devi Maya Nepal v Nepal, concerned the rape of a woman by Nepalese armed forces. The attack occurred in 2002, but she did not file a complaint until 2014, due to the stigma associated with being a victim of sexual assault, the fear of reprisal during the ongoing conflict at the time, and the victim was also unaware she could file a complaint. The police refused to register the report due to a 35-day statutory period for reporting rape. Claims for compensation before the district court were rejected for the same reasons. Although the Supreme Court, following a writ filled by the victim, ruled the Government should change the statutory period as it was a barrier to effective remedies, this was not done. The Committee held that “the State party’s failure to promptly and effectively investigate the author’s allegations of sexual violence amount to a violation of her rights under article 7, read in conjunction with article 2(3) of the Covenant.”

The ECtHR has held that states must carry out effective investigations into well-founded allegations of ill-treatment. This includes situations where no complaint has been made, but there are ‘sufficiently clear indications of  that ill-treatment has been used.’ Failure to do so is considered a procedural violation of Article 3 rather than a substantive violation, which would be the ill-treatment itself. Such investigations must be independent, able to establish the facts and be able to provide sufficient evidence to identify and prosecute perpetrators.

In the case of Cioff v Italy the applicant was subjected to ill-treatment that violated Article 3 ECHR during arrest. Although his complaints were investigated, of 31 officers investigated for serious criminal offences, only a few were convicted of minor offences due to time limitations for the prosecution of more serious offences. The ECtHR ruled that the time limitations on more serious offences associated with ill-treatment rendered any investigation ineffective and prevented perpetrators being held to account. It would also diminish any preventative effect of investigation of acts of ill-treatment. As such, the ineffective investigation was a procedural violation of Article 3 ECHR.

The IACtHR has also approached the positive obligations to investigate, prosecute and punish in a similar way. In González et al (‘Cotton Field’) v Mexico the IACtHR emphasised the importance of treating TIDT as criminal offences, that are investigated with the possibility of punishment of the perpetrators. Investigations into ill-treatment should be prompt, impartial and aimed at determining the truth and eventually prosecuting perpetrators. This obligation is also linked to the ‘right to access to justice’ under Articles 8 and 25 of the ACHR. Such investigations should not only be initiated by complaints by a victim, but ‘once the State authorities are aware of the facts’ (Garcia Lucero v Chile). In both González et al (‘Cotton Field’) and Garcia Lucero, the IACtHR also emphasised the importance of providing reparations and compensation to the victims of TIDT. A right to remedy for breach of the rights contained in the ACHR is contained with Article 63(1).

The Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa indicate the need for states to criminalise TIDT. The prohibition and prevention of torture are seen as interlinked. In addition to criminalising torture (Article 4) in domestic legal systems, the guidelines indicate the importance of combating impunity and the importance of fair trials with an independent judicial system. The importance of independent investigations both after victim complaints and initiated when persons “appear to have been tortured” (paragraph 18). Although this obligation to investigate is clearly stated (see for example Amnesty International and Others v Sudan, it has been suggested that it has been interpreted in a more restrictive way by the ACmHPR. In the case of Zimbabwe Human Rights NGO Forum v Zimbabwe indicated that a single ineffective investigation does not indicate a lack of due diligence and a state is not obliged to investigate every complaint of ill-treatment if several complaints have been made.

Universal Jurisdiction

Unlike other criminal proceedings, the concept of universal jurisdiction allows countries to prosecute crimes without a territorial or national link to the crime. Any country can prosecute those suspected of the most serious crimes, such as war crimes and torture Although the importance of universal jurisdiction was emphasised during the Nuremberg trials following World War II, in more recent history, the principles of universal jurisdiction were utilised in the Pinochet case where charges were brought against Augusto Pinochet in Spain for his crimes in Chile during the rule of the military junta. In addition, Articles 4 to 8 of UNCAT create obligations for state parties in relation to universal jurisdiction and ending impunity for TIDT.

More recently, returning to the events from the beginning of the chapter, there have been some attempts to file complaints against US officials, by people detained by the USA in Guantánamo and Iraq. However, when such proceedings are brought against officials of powerful nations, such as the USA, Gallagher has suggested that universal jurisdiction is a less powerful tool to end impunity and improve accountability. Such proceedings are rarely successful.

Evidence Obtained Through TIDT

As indicated at the beginning of the chapter, TIDT is often associated with interrogation of those suspected of crimes. During interrogations that use TIDT confessions and confessions that lead to the discovery of other evidence may be obtained. This then raises the question as to whether the prohibition of TIDT extends to barring the use of evidence obtained using TIDT.  This also relates to the ‘ticking time-bomb debate.’ If torture is carried out in such an exceptional circumstance, could evidence obtained as a result be used to prosecute the terrorists who planted the bomb?

Article 15 UNCAT clearly prohibits the use of statements that have been made as a result of torture from being used as evidence in criminal proceedings, except against the perpetrator of the torture. However, questions about the admissibility of evidence obtained because of inhuman or degrading treatment and secondary evidence is not as clear. Secondary evidence is sometimes referred to as the ‘fruit of the poisoned tree.’ Such evidence may include discovery of a weapon or other physical evidence of a crime that is found because of a statement obtained through TIDT. The various human rights bodies have taken different approaches to these two questions.

The HRC has taken a strict approach, especially considering the use of ‘enhanced’ interrogation post the 9/11 attacks and during the ‘war on terror.’  They have stated that no statements or other evidence obtained in violation of Article 7 can be used in judicial proceedings. The only exception being the use of the statement as evidence that TIDT has occurred. General Comment 20 does not make any distinction between torture and other forms of TIDT in this context. However, it does not indicate what the view of the HRC is in relation to secondary evidence. The IACtHR has taken a similar approach. In the case of Cabera García and Montiel Flores V Mexico the Court indicated that evidence obtained by any form of TIDT should be excluded. In addition, the IACtHR prohibited the use secondary evidence that had been obtained because of information obtained using TIDT. The exclusion of both confessions and secondary evidence was seen as an important to discourage the use TIDT in criminal investigations. The HRC has also indicated the importance of exclusion of statements obtained through TIDT to discourage violations of Article 7 ICCPR but has not clearly extended this to secondary evidence.

Prohibiting the use of secondary evidence could be considered especially important in preventing the use of TIDT in interrogations. If a confession is excluded due to the use of TIDT, the prosecution of suspects would still be possible using any secondary evidence that was found as a result of the interrogation. The risk that the use of TIDT will prevent any subsequent prosecution due to exclusion of all evidence obtained using TIDT is reduced. Officials may be more likely use TIDT to obtain information as the risk that there will be a lack of admissible evidence for subsequent prosecution is reduced.

This issue was explored by the ECtHR in the case of Gäfgen v Germany. This case has been extensively discussed in the academic literature (for a discussion of the amount of academic debate this case generated see this blog post by Smet). It is a case that demonstrates the difficulty that police officers may face as well as illustrating the moral and legal questions associated with the prohibition of TIDT. Magnus Gäfgen kidnapped Jacob von Metzler, an eight-year-old boy. He attempted to obtain a ransom but was arrested as the ransom was given to him. It was believed at this time that Jacob was still alive but in danger. A specialist police negotiator was delayed and so two police officers threatened Gäfgen with torture and severe pain in attempt to get him to disclose the location of Jacob. Gäfgen then told him that Jacob was dead and lead the police to his body. The discovery of Jacob’s body resulted in finding other evidence linking Gäfgen to the murder. Gäfgen was tried, convicted and sentenced to life imprisonment for Jacob’s murder.

Gäfgen took his case to the ECtHR. The case was heard by the Grand Chamber. They found that the threat of torture was a violation of Article 3, considering it to be inhuman treatment not torture. They also considered the very minor punishment the police officers had received for their actions against Gäfgen violated the procedural component of Article 3 ECHR. The most controversial component of this ruling was that the ECtHR did not find a violation of Article 3 or Article 6 ECHR, the right to a fair trial. Gäfgen argued that the admission of evidence obtained from Jacob’s body was a violation of his rights. The Grand Chamber, by majority, stated that this evidence had not been material in the trial as Gäfgen confessed at the end of the trial. However, Gäfgen’s lawyers stated he had no real choice but to confess once this evidence has been admitted. The validity of this ruling and the reasons the ECtHR may have taken this approach are widely debated (see further reading at the end of the chapter). The dissenting opinion by Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power argued that nature of the prohibition of TIDT requires all evidence that is found as a result of TIDT be excluded.

Non-Refoulement

Non-refoulement is a prohibition on returning people to states where they may face persecution. In the context of TIDT the principle prohibits returning or transferring people to places where there is a real risk that they will be subjected to TIDT. Article 3 of UNCAT expressly prohibits this in relation to torture.

Non-refoulement claims have become the most common heard by the UN treaty bodies. Such claims relate to those seeking asylum and also the practice of extraordinary rendition during the ‘war on terror.’ The CAT has heard many claims relating to non-refoulement in the context of EU states using Dublin transfers returning people seeking asylum to the first state that they entered in the EU. Returning states should not do so when they knew or ought to have known the conditions that asylum seekers were housed in could be considered ill-treatment, or when the other EU nation would remove the asylum seeker to a third country where there was a real risk of torture (see for example, A.N. v Switzerland). In addition, there have been cases related to the practice of the USA and other states during the ‘war on terror’ of moving suspected terrorists to third countries where they were detained, tortured and sometimes disappeared (see for example Agiza v Sweden).

However, the scope of application of Article 3 UNCAT to ill-treatment other than torture is not always clear. General Comment 4 of CAT refers to the obligations of Article 3 UNCAT in relation to torture, with rare mention of inhuman and degrading treatment. Addition of “and inhuman and degrading treatment” to the General Comment was objected to by a number of states. As such there is still uncertainty whether Article 3 of UNCAT also applies to inhuman and degrading treatment. This is complicated by General Comment 2 of CAT indicating that obligations contained in Articles 2 to 15 of UNCAT also apply to other forms of ill-treatment, which would include the principle of non-refoulement in Article 3 of UNCAT. UNCAT has also made it clear that Article 3 of the UNCAT is non-derogable in the case of Gorki Ernesto Tapia Paez v. Sweden.

Under the ICCPR, the principle of non-refoulement has been held to include removal of people to territories where they face a real risk of death, torture, cruel, inhuman or degrading treatment. The IACtHR has also taken this approach, stating in an advisory opinion that states have a duty not to send people to states where there is a “well-founded presumption” they would be in “danger of being subjected” to TIDT. The ECtHR has similarly indicated that Article 3 ECtHR includes non-refoulement for all forms of TIDT. The jurisprudence of the ECtHR on the prohibition of returning or sending people to states where they face a real risk of TIDT is extensive and has discussed several circumstances and related obligations.

Assessment of Risk

When assessing the risk in relation to TIDT if a person is removed to another country, the first consideration is the general situation in the destination country. However, a high level of violence would be needed to find that removal of any person to that country would violate Article 3 ECHR (for example see Sufi and Elmi v UK). An applicant may establish that a particular group in the destination country faces a real risk of TIDT and that they a member of that group. In such cases, returning someone to that country would expose them to a real risk of TIDT. For example in the case of F.G v Sweden, the ECtHR found for the applicant being a Christian in Iran may pose real risk of TIDT, however in this particular case, the issue of the applicants conversion to Christianity had not been fully considered by the Swedish authorities. The ECtHR ruling that to deport the applicant without doing so would be a violation of Article 3.

States may also have to consider several cumulative factors that put an individual at risk of TIDT. These may include their gender, previous criminal history, arrest warrants, religion and submission of previous asylum claim (see NA v UK). The risk of TIDT does not have to be from state authorities. However, the risk must still be real and the receiving authorities are not able to remove the risk (see K. and Others v UK).

Diplomatic Assurances

If states want to return an individual to a state where there would otherwise be a risk of TIDT they can obtain assurances from the receiving country that the person removed will not be subjected to ill-treatment. Such assurances must be sufficient to remove any real risk of ill-treatment. An assurance cannot be just accepted. The state should consider the weight of assurances. This will be dependent on the specific case as well as the circumstances in the receiving state at that time. The first consideration is the general human rights situation in that state, but only rarely will this be so severe to mean any assurance is meaningless (see Othman (Abu Qatada) v UK). Usually a state will have to consider the quality of the assurance given and then, considering the receiving states practices, whether it can be relied upon.

Issues of National Security

Some of the cases involving the removal of individuals to countries where there is a real risk of TIDT have dealt with applicants who are considered security risks. States have attempted to argue that in such situations, where the applicant poses a risk to national security it is appropriate to weigh the risk of ill-treatment against the risk that individual poses. The case of Othman (Abu Qatada) v UK was one such case. Abu-Qatada was considered a threat to national security and the UK sought to extradite him to Jordan and had obtained a memoranda of understanding that he would not be subjected to TIDT. The ECtHR did not consider these assurances sufficient. The Court has frequently held that Article 3 ECHR is absolute and cannot be weighed against issues of national security or other reasons for the proposed expulsion (see also Saadi v Italy).

Expulsion of the seriously ill

The ECtHR has heard cases where applicants have argued removing them to another country would result in a violation of Article 3 ECHR due to their health and the lack of health care provision in the receiving state. The threshold for the severity that is needed in these cases has been set very high. In the case of D v UK the applicant had discovered he was suffering from AIDS whilst in prison in the UK. He was due to be deported to St Kitts at the end of his prison sentence. Given the lack of appropriate health care in St Kitts, the advance stages of his disease, and that he had no friends or relatives in St Kitts to help with his care, the ECtHR did find removing him to St Kitts would be a violation of Article 3. However, in this case and several others, the Court has referred to the “very exceptional circumstances” where such violations would occur. This has been clarified in the case of Paposhvili v Belgium

Rendition

Several cases dealing with extraordinary or unlawful rendition of individuals have been considered by the ECtHR. These cases addressed apparent complicity of European states with the CIA in the removal of individuals to non-European countries for secret interrogation and detention. In the case of El-Masri v The Former Yugoslav Republic of Macedonia  the complainant was arrested and held by the Macedonian authorities whilst visiting that country. He was then passed to the CIA who flew him to Afghanistan. Violations of Article 3 ECHR were found not only due to the ill-treatment he was subjected to by the Macedonian authorities but also due to the Macedonian authorities allowing ill-treatment by the CIA agents and allowing his transportation from Macedonia to a state where there was a real risk of TIDT.

Extradition

Violations of Article 3 ECHR can also occur if states allow the extradition of individuals to states where TIDT is a real risk. In Soering v UK, removal of an individual to the USA for a trial which could result in the death penalty would have been a violation of Article 3 ECHR. In this case it was not the death penalty that was the TIDT but the ‘death row phenomenon’ where prisoners waited years for execution, often in small cells and solitary confinement. In later cases it was found that a violation of Article 3 ECHR would occur if individuals were returned to states where there was a real risk of the imposition of a death sentence (see Al-Saadoom and Mufdhi V UK). Removing individuals to a state where this is a real risk may violate Article 3 ECHR (Sanchez-Sanchez v UK). However, extradition to the USA for possible sentences of life with the possibility of parole, in ‘super-max prisons’ with long periods of solitary confinement, was not considered a grossly disproportionate sentence or a violation of Article 3 ECHR (Babar Ahmad and others v UK).

Disappearances

Prior to the adoption of the International Convention for the Protection of All Persons from Forced Disappearance, treaty bodies used various provisions to protect against forced disappearances. The IACtHR, ECtHR and HRC all used provisions including those prohibiting TIDT. The jurisprudence of the IACtHR regarding forced disappearances has been described as prolific by Kyriakou. Forced disappearances violate the right to life, but also for the families of the disappeared the anguish of not knowing what has happened is a cause of distress for the relatives. In Velásquez-Rodríguez v. Honduras, the IACtHR stated, “[t]he phenomenon of disappearances is a complex form of human rights violation including breaches of the right to life and the right not be subjected to ill-treatment.” In the same case, the IACtHR also established a due diligence standard relating to enforced disappearances.

The ECtHR has also found violations of Article 3 in relation to close family members that have disappeared. Suffering caused by ineffective investigations and the events surrounding a disappearance in Kurt v Turkey were found to violate Article 3 ECHR. In a subsequent case the Court set out when Article 3 ECHR would be breached in relation to a family member of a disappeared person. In Çakici v Turkey, the court noted

Prevention of TIDT by Private Actors

As discussed above, part of the prevention of TIDT by any actor is the effective investigation, prosecution and punishment of perpetrators. Usually this will be in the context of state authorities. However, the ECtHR has found violations of Article 3 in private settings, where the state had or ought to have had knowledge of ill-treatment. These include children suffering severe parental abuse in the case of Z. and other v UK and sexual abuse in a school run by a state body in the case of O’Keeffe v Ireland.

Gender-based Violence

One context where violence at the hands of private individuals has received much attention by treaty bodies in relation to the prohibition of TIDT is the issue of gender-based violence and domestic violence. When he was Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Melzer stated that, ‘domestic violence degrades, humiliates, coerces, brutalizes and otherwise violates the physical, mental and emotional integrity of persons who are often subjected to controlling and disempowering situations or environments.” These violations are incompatible with human dignity and so amount to TIDT. He went on to indicate that states are responsible for this violation if they fail to criminalise such behaviour or do not investigate, prosecute and punish domestic violence.

The ECtHR has taken a similar approach, placing obligations on states to put in place protections for the victims of gender-based violence. In the case of Opuz v Turkey, the complainant and her mother were subjected to violent attacks by the complainants husband. The victim complained to the police, but under threats from her husband withdrew the complaints. After an attack where he stabbed the complainant seven times, he was prosecuted but only fined. He then killed the applicant’s mother, was convicted, but was released pending appeal. In this case, the ECtHR emphasised it was not sufficient to have legal protections, they must be used and enforced. It also indicated that an effective legal framework would require investigations to continue even if complaints were withdrawn. The Court also criticised the authority’s inaction in the case.

Links to other rights

It is clear from the discussion above, that TIDT will often occur in conjunction with abuses of other rights. For example, the right to liberty and security of the person will often be violated at the same time as people are subjected to TIDT, through detaining and holding people incommunicado without due process and access to courts. The right to liberty and the prohibition of TIDT are also both engaged in cases of forced disappearances. Secret dentition, rendition of individuals to other states, and lack of a fair trial were all features of the War on Terror, discussed at the beginning of the chapter. In Selmouni v France the torture that the applicant suffered also occurred in conjunction with a violation of Article 6(1) ECHR, a right to a fair trial within a reasonable time frame. In the case of torture especially, it is likely that other rights relating to liberty, security and access to fair trials and the courts will also be violated with the prohibition on TIDT.

In addition, as discussed further in the chapter on socioeconomic rights, severe violations of the right to food and other components of the adequate standard of living as well as the right to health (see D v UK above) have been considered to amount to inhuman and degrading treatment, especially by regional human rights courts.

Further Reading

Antonio Cassese, ‘Can the Notion of Inhuman and Degrading Treatment be Applied to Socio-Economic Conditions?’ (1991) 2 European Journal of International Law 141

Chris Esdaile, Alejandra Vicente and Clara Sandoval, ‘Discriminatory torture of an LGBTI person: landmark precedent set by the Inter-American Court (Azul Rojas Marin and Another v Peru) (2020) EJIL:Talk

Weronika Galka, ‘Apocalypse Now: climate change, eco-anxiety and Art. 3 ECHR’s prohibition of degrading treatment’ (2022) Oxford University Undergraduate Law Journal

Anna Kohte, ‘Peru at a crossroad: The new impunity law’ EJIL:Talk (2024) available at

Daniela Kravetz, ‘Holding states to account for gender-based-violence: The Inter-American Court of Human Rights’ decisions in López Soto vs Venezuela and women victims of sexual torture in Atenco v Mexico’ (2019) EJIL: Talk

Natasa Mavronicola, ‘What is an ‘absolute right?’ Deciphering absoluteness in the Context of Article 3 of the European Convention on Human Rights’ (2012) 12 Human Rights Law Review 723

Elaine Webster, ‘A positive take on the legacy of the 1978 Judgement in Ireland v United Kingdom’ (2019) EJIL:Talk

Dirk van Zyl Smit, Pete Weatherby, Simon Creighton, ‘Whole Life Sentences and the Tide of European Human Rights Jurisprudence: What Is to Be Done?’ (2014) 14 Human Rights Law Review 59–84

Stephen Greer, ‘Is the prohibition against torture, cruel, inhuman and degrading treatment really absolute in international human rights law?’ (2015) Human Rights Law Review

Natasa Mavronicola, ‘Is the prohibition against torture and cruel, inhuman and degrading treatment absolute in international human rights law? A reply to Stephen Greer’ (2017) 17 Human Rights Law Review 479

Natasha Simonsen, ‘Is torture ever justified?: The European Court of Human Rights decision in Gäfgen v German’ (2010) EJIL:Talk

Alexandra Timmer, ‘Gäfgen v. Germany: threat of torture to save a life?’ (2010) Strasbourg Observers

Suggested Citation – Clare James, ‘Torture, Inhuman, Cruel or Degrading Treatment or Punishment’ in Stuart Wallace and Clare James (eds), Open Access International Human Rights Law (University of Leeds, 2026)