Combating Torture and Ill-treatment in International Law

Mervat Rishmawi*

1. General Introduction

In order to discuss prohibition and combating torture and other forms of cruel, inhuman and degrading treatment or punishment, it is first important to look at the general framework related to use of force. In principle, law enforcement officials are allowed to use certain amount of force within specific circumstances in order to carry out their duties. This principle is captured in the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which detail when and how law enforcement officials can use force. Use of force outside these remits, and other actions and omissions that violate these principles, constitute crimes of torture, other forms of ill-treatment or punishment, or other crimes like extra-judicial killing. When used in the context of armed conflict, they may constitute crimes against humanity and war crimes.

Therefore, as a general principle, there are limits on the authority of the state agents over those detained. This authority does not relate to citizens only, but extends to all those under the jurisdiction of the state. Therefore the authority of the state is not absolute.

A number of measures are needed in every country and in cooperation between countries in order to ensure effective combating of torture and ill-treatment or punishment or punishment. These measures relate to ensuring that torture and ill-treatment or punishment or punishment are prevented from occurring; and are investigated and punished when they occur; that victims have access to effective remedy and reparation; and that measures are put in place to ensure that this does not happen again. Such measures relate to prevention and combating torture and ill-treatment or punishment at the general levels as well as in relation to individual cases.

2. The Absolute prohibition of torture and ill-treatment or punishment

The prohibition of committing acts of torture and ill-treatment or punishment is embodied in a number of international and regional human rights treaties. It is essential to note at the start that torture and ill-treatment or punishment are prohibited at all times, under all circumstances, during peace and during armed conflict, and despite any reasons. So this prohibition does not apply only in relation to states that ratified the relevant treaties, it applies to all states. Prohibition of torture and ill-treatment or punishment is considered a principle of customary international law that applies to all at all times. It cannot be restricted, or derogated from in any circumstances.

Information obtained by torture or ill-treatment should not be used in any proceedings, except against the person who carried out these acts. It is inherently unreliable and therefore of little or no value to any valid government objective.

3. What is torture and ill-treatment or punishment?

Prohibition of torture and ill-treatment is embodied in Article 5 of the Universal Declaration of Human Rights, article 7 of the International Covenant on Civil and Political Rights. In relation specifically to Arab Countries, it should be noted that Article 8 of the Arab Charter of Human Rights also deals with this.

The prohibition of torture and all forms of ill-treatment or punishment is detailed in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which defines torture in its Article 1 as follows:

“torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

It should be stressed that this does not relate only to acts of torture or other ill-treatment. It also relates to punishments that has these same characteristics. One cannot see why such acts should be prohibited if they are committed in context of torture or ill-treatment, but are excluded from such prohibition when they are committed as part of punishments. The Arab Charter on Human Rights, in its article 8, provides that “No one shall be subjected to physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment”. The Arab Charter, therefore, while prohibiting torture and ill-treatment fails to prohibit such punishments.

4. Elements of the Definition

While there are no specific list of what constitutes torture or ill-treatment, there are several elements to the definition of torture that helps to identify prohibited acts or omissions. These elements relate to questions on what kind of acts, why, and by who?

A) What kind of acts?

- Intentional act: this is understood to mean not only actions, but also omissions (lack of action). So sometimes lack of actions, like not providing food or water or possibility of showering or access to the outside world results in severe pain or suffering and therefore constitutes torture. If it does not constitute torture, it will constitute ill-treatment in context of detention.

- Acts causing severe pain and suffering: it should be noted here that there is no absolute similar level that is applied to all individuals. The physical and mental conditions of different people, there age, gender, health conditions, etc makes them react differently to different actions which may cause pain. Therefore, a slap on the face under certain conditions may not cause severe pain or suffering for an adult, but  may on the other hand be considered causing such pain or suffering for a child or for a weak adult suffering from illness.

It is also important to stress that the pain and suffering that is meant here is not physical only but also psychological and mental.

B) Why?

- The purpose: according to this definition, an act can be considered torture if carried out for several purposes. These are not limited to the purpose of extracting confessions from the person, as is commonly perceived. Acts of discrimination causing severe pain or suffering are also considered acts of torture. Also acts that aim at punishing a person, intimidating him/her or coercing him/her are included in the prohibition when practiced against a detained person. The acts do not have to be related to the person him/herself only. But they may aim at punishing, coercing, or intimidating another person. Also, such acts may be committed in order to extract a statement or a confession from another person. All these are considered acts of torture.

It is very important to stress that this list is not an exhaustive list. There may be other similar purposes which will contribute to making a certain action or omission an act of torture.

C) Who?

The definition clarifies that these acts are considered torture when they are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Therefore, the acts do not have to be directly committed by the person. When a public official knows about an act but does not do anything about it, then they are in acquiescence and therefore are responsible. They may have given the orders directly, or are consenting to orders or to the acts being committed, without themselves directly committing the acts. In all these situations, the person is equally responsible for torture.

The state is also responsible for protecting against torture and ill-treatment or punishment by private actors as well.

5. The difference between torture and ill-treatment

The Special Rapporteur on Torture argues that “It is the powerlessness of the victim in a given situation that makes him or her particularly vulnerable to any type of physical or mental pressure. Torture, as the most serious violation of the human right to personal integrity and dignity, presupposes a situation where the victim is powerless i.e. is under the total control of another person. This is usually the case with deprivation of personal liberty.”[1] The Special Rapporteur therefore concludes that one of the main destinctions between torture and other forms of cruel, inhuman or degrading treatment (ill-treatment) is the question of powerlessness. If the person is not detained or under the effective control of another, then the principle of proportionality of use of force is the main that determines the legality of such use of force according to international law. However, if a person is detained or otherwise under the de facto control of another person, that second person becomes powerless, and the proportionality test is no longer applicable. In these cases, the absolute prohibition of torture and ill-treatment becomes the norm.

Another main important distinction between torture on the one hand and the cruel and inhuman treatment is the level of severity of pain caused. But even at times when the pain is severe, it may not amount to torture when there is no specific purpose associated with the commission of force (or the omission). 

6. Prevention and criminalising torture and ill-treatment or punishment

The state has the obligation to ensure legislative, administrative and other measures, including administrative protective measures, to ensure that no person could be subjected to acts that are classified as torture or ill-treatment by people either on their official capacity or private capacity.

State has the obligation not only to prohibit torture and ill-treatment and ensure that it does not happen (negative obligations) but also states have the obligation to ensure that persons under the control of the state are treated humanely, with respect to their dignity (positive obligation).

This means that arrest procedures, trial and detention and prison conditions should all respect the dignity of the detainees, and ensure their well-being. It should be noted that harsh prison conditions that target a particular prisoner as a punitive measure, or prolonged solitary confinement, denial of medical treatment, to name some, can be considered torture, and not only ill-treatment. It should be noted that the UN Special Rapporteur on Torture considers that solitary confinement for longer than 15 days to be prolonged solitary confinement. Solitary confinement itself increases the risk of torture or other forms of ill-treatment. It also has physical and mental impact on those under solitary confinement. Sometimes that impact becomes severe. If solitary confinement is used for any of the purposes identified above in the definition of torture, and when it results in severe pain or suffering, then it constitutes torture. Therefore, solitary confinement must be strictly used, only in exceptional circumstances, and for the shortest period of time. Solitary confinement against children is in all cases a violation to the prohibition of ill-treatment, and also may amount to torture. The Special Rapporteur sees that solitary confinement for longer than 15 days must be absolutely prohibited.[2]

In addition to ensuring that torture and ill-treatment are prohibited in practice, and that safeguards are put in place so that they do not occur, there is clear responsibility on public authorities to ensure that torture is prohibited absolutely in the legislation. Therefore, torture should be defined in a manner that is consistent with Article 1 of the Convention against Torture.

The prohibition of torture and ill-treatment does not mean that use of force by law enforcement officers is prohibited in all occasions. It is not. Force can be used only when it is necessary to pursue a lawful purpose, and only in a way that is proportionate to the threat posed. However, legislation should put in place to ensure safeguards for the periods prior to arrest, during arrest and initial stages of detention and interrogation, during trial, and after sentence. Clear safeguards on how law enforcement officers, and those responsible for them, are expected to behave, what is allowed and what is not allowed, what should be guaranteed, are necessary to ensure that torture and ill-treatment do not happen.

Court judges have the responsibility to ensure that any knowledge of ill-treatment or torture that comes to their attention is investigated properly, and that they do not use any evidence that they think it may have been obtained under torture or ill-treatment. Article 15 of the Convention against Torture provides that “any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. As the UN Special Rapporteur against Torture explains in his report in which he focussed on the exclusionary rule: “The rationale behind the exclusionary rule is manifold and includes the public policy objective of removing any incentive to undertake torture anywhere in the world by discouraging law enforcement agencies from resorting to the use of torture. Furthermore, confessions and other information extracted under torture or ill-treatment are not considered reliable enough as a source of evidence in any legal proceeding. Finally, their admission violates the rights of due process and a fair trial.”[3] This therefore requires that more efforts are put in investigation and interrogation, in order to get evidence that corroborate confessions. Confessions should no longer be considered “the queen of evidence” or the primary evidence.

This requires that competent authorities must proceed with carrying out a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction (Article 12 of the Convention against Torture). Further, any individual who alleges he/she has been subjected to torture has the right to complain to and to have his/her case promptly and impartially examined by competent authorities. Steps must be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation or reprisal as a consequence of the complaint or any evidence they give. (Article 13 of the Convention against Torture) Once it is proven that torture or other forms of ill-treatment have been used, the state is under the obligation to provide reparation. This should be enshrined in the criminal law, not only through civil suits for compensation. Reparation should include financial compensation, rehabilitation, and guarantees that these cases do not occur again.

One of the key methods for preventing torture is the establishment of independent expert mechanisms, empowered to carry out visits to all places where persons are deprived of liberty, without prior notice and with a range of legally-entrenched rights to information and to interview detainees in private. Often, this is carried out by the National Human Rights Institutions, established according to Paris Principles.

Further, a very important mechanism is established according to the Optional Protocol to the Convention against Torture (OPCAT). The Protocol establishes a Subcommittee for Prevention of Torture, which has the mandate to visit any place of detention in any state party whenever it chooses in order to determine the situation of those deprived of their liberty, and to make confidential recommendations to the authorities and to have dialogue with them over their implementation. Importantly, OPCAT requires all states parties to establish, within one year of becoming a party to OPCAT, a ‘National Preventive Mechanism’ (NPM), which should be an entirely independent domestic body, and which has the same powers to visit any place of detention within the jurisdiction of the state, have access to all relevant information and records, and to make recommendations as a result of the visits.[4]

7. Punishing torture and ill-treatment

To ensure that acts of torture and other forms of ill-treatment are punished when they occur requires several steps. Torture and ill-treatment must in the first place be made clear crimes under national law. Article 4 of the Convention against Torture provides that states must ensure that all acts of torture are made clear offences under its criminal law. This does not apply to the commission of the act of torture or ill-treatment, but also to any attempt to commit torture or other forms of ill-treatment, or complicity or participation in torture or other forms of ill-treatment. There is a clear responsibility on the state to make these offences punishable by appropriate penalties which take into account their grave nature. Therefore, various UN Special Rapporteurs against Torture has stressed that torture must be punished like other serious crimes under the national criminal law. Punishing crime of torture as a misdemeanour, as is common in many Arab countries, is therefore not consistent with this requirement of the Convention. This will also require that the acts that constitute torture are punished as torture and not as other offences under national law, like causing injury or bodily harm.

The public authorities, including police, prison directors, prison officials, governors and others are responsible to ensure that all the safeguards are respected, and that any diversion and violation is investigated by an independent body, presented to trial under fair trial guarantees, and appropriate penalty is imposed.

8. Torture as an international crime

Torture is such a grave crime that the international community must take the responsibility over it collectively. There is a clear responsibility under international law to either extradite or prosecute persons alleged to have committed acts of torture. This responsibility crosses the boundaries of the state. Article 7 of the Convention against Torture requires that each state which finds under its jurisdiction a person alleged to have committed any act of torture must either extradite him/her, or submit the case to its competent authorities for the purpose of prosecution. Article 8 of the Convention requires that acts of torture shall be deemed to be included as extraditable offences in any extradition treaty existing between states.

Further, the principle of universal jurisdiction allows states to put in place legislation to allow them to exercise what is known as universal jurisdiction, that is to have jurisdiction on crimes under international law, even if committed against other than their own citizens or other than on their land. Torture is such a grave crime that today it can be prosecuted in many countries in the world under universal jurisdiction laws.

Finally, it should be noted that according to Article 7 of the Rome Statute of the International Criminal Court, torture constitutes crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Further, Article 8 provides that torture or ill-treatment constitute war crime when committed as part of a plan or policy or as part of a large-scale commission of such crimes. Torture and ill-treatment when committed in non-international armed conflict are breaches of Article 3 common to the four Geneva Conventions of 1949. Also torture and ill-treatment are grave breaches of the Geneva Conventions of 12 August 1949, including as defined in Article 147 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. Grave breaches of the Geneva Conventions are war crimes under article 8 of the Rome Statute of the International Criminal Court.

* Mervat Rishmawi is a Palestinian human rights consultant, specialising in human rights in Arab countries. For further information, please visit www.mervat.rishmawi.co.uk




[1] Report of the Special Rapporteur on the question of torture, E/CN.4/2006/6, 23 December 2005, para 39.

[2] Report of the Special Rapporteur on the question of torture, A/66/268, 5 August 2011.

[3] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/25/60, 10 April 2014, para. 21. 

[4] For further information on the OPCAT, see Professor Malcolm Evans, Monitoring Places of Detention in the MENA Region – The significance of the OPCAT, APT MENA Bulletin 5.




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