- SELECTED CASE LAW
The right to freedom from torture is enshrined in many human rights instruments and protects all individuals from being intentionally subjected to severe physical or psychological distress by, or with the approval or acquiescence of, government agents acting for a specific purpose, including to inflict punishment or to obtain information. Under international humanitarian law, which applies in the context of armed conflict, the consent, action or acquiescence of a State agent is not necessary in order for the abuse to constitute torture.
As one of the most universally recognized human rights, the prohibition of torture has attained status as a jus cogens or peremptory norm of general international law, also giving rise to the obligation erga omnes (owed to and by all States) to take action against those who torture. As such, the prohibition may be enforced against a State even if it has not ratified any of the relevant treaties, and the prohibition is not subject to derogation, even in times of war or emergency.
Cruel, inhuman, or degrading treatment or punishment is usually also prohibited in international instruments that forbid torture. Cruel, inhuman or degrading (CID) treatment, as compared to torture, involves a lower level of suffering and need not be inflicted for a specific purpose.
What is Torture?
Determining whether certain treatment rises to the level of ‘torture’ can be a challenge and will depend on which legal instrument applies, based on which treaties, if any, the State in question has ratified and whether the victim or advocate is engaging with the United Nations system or a regional human rights system.
The prohibition of torture and inhuman treatment is enshrined in the following regional and universal human rights instruments:
- African Charter on Human and Peoples’ Rights (art. 5)
- American Convention on Human Rights (art. 5)
- American Declaration of the Rights and Duties of Man (art. 27)
- Arab Charter on Human Rights (art. 8)
- Cairo Declaration on Human Rights in Islam (arts. 19, 20)
- Charter of Paris for a New Europe
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture)
- Convention on the Protection of the Rights of Migrant Workers and Members of their Families (art. 10)
- Convention on the Rights of the Child (art. 37)
- European Convention for the Prevention of Torture and Inhuman or Degrading Treatment
- European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 3)
- Inter-American Convention To Prevent and Punish Torture
- International Covenant on Civil and Political Rights (arts. 4, 7, 10)
- United Nations Standard Minimum Rules for the Treatment of Prisoners (art. 31)
- Universal Declaration of Human Rights (art. 5)
Taking the various treaties together, the right to freedom from torture includes the following rights and obligations:
1) the right of individuals to be protected by the State from torture by its agents;
2) the State’s duty to prosecute torturers; and,
3) the right of individuals not to be returned or extradited to another State where they may face the danger of torture.
Universal Definition of Torture and Cruel Treatment
The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides the most precise and widely-cited definition of torture under international law. It defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, 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.
Thus, the Convention Against Torture identifies the following three elements that, if combined, constitute torture: 1) intentional infliction of severe pain or suffering; 2) for a specific purpose, such as to obtain information, as punishment, or to intimidate, or for any reason based on discrimination; and, 3) by or at the instigation of or with the consent or acquiescence of State authorities. What rises to the level of ‘torture’ or other prohibited behavior is further defined through an extensive body of case law, as described in greater detail below.
Torture is distinguished from other forms of mistreatment based on a context-and fact-specific analysis of the intent with which the suffering is inflicted and the severity of the treatment. If the suffering does not satisfy the definition of torture, the victim may still be able to show the infliction of cruel, inhuman, or degrading treatment or punishment, which does not require a showing of the actor’s specific intent, but must still reach a minimum level of severity.
According the International Rehabilitation Council for Torture Victims (IRCT):
Some of the most common methods of physical torture include beating, electric shocks, stretching, submersion, suffocation, burns, rape and sexual assault.
Psychological forms of torture and ill-treatment, which very often have the most long-lasting consequences for victims, commonly include: isolation, threats, humiliation, mock executions, mock amputations, and witnessing the torture of others.
Documenting Torture and Cruel Treatment
The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) contains widely accepted standards for identifying victims of torture and documenting and reporting the abuse.
Torture under Other Areas of International Law
INTERNATIONAL HUMANITARIAN LAW
The infliction of torture is also a “grave breach” of core international humanitarian law under the Geneva Conventions (in particular, Common Article 3), which are designed to limit the effects of armed conflict. As a result, infliction of torture may constitute a war crime. Under the Geneva Conventions, States are obligated “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed” such acts and are obligated to “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and [to] bring such persons, regardless of their nationality, before its own courts” if these persons are not extradited to another State party. See First Geneva Convention, art. 49. The conventions protect both civilians and military personnel from torture. The International Committee of the Red Cross (ICRC) has produced an information kit on National Enforcement of International Humanitarian Law.
INTERNATIONAL CRIMINAL LAW
Torture may also constitute a “crime against humanity” or “war crime” under international criminal law, as specified in the Rome Statute of the International Criminal Court (arts. 7 and 8). Thus, infliction of torture can be investigated and prosecuted by the International Criminal Court, subject to its jurisdictional limits.
The principle of non-refoulement prohibits rendering a victim of persecution to their persecutor, and applies to States in the context of their extradition and immigration policies. This obligation was first enshrined in Article 33 of the United Nations Convention Relating to the Status of Refugees, which provides that “[n]o Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” This duty is reiterated in Article 3 of the Convention Against Torture, and explained further in the Committee’s General Comment no. 4. [IJRC]
For example, in the United States, asylum eligibility is established by a showing that the applicant has suffered or has a “well-founded fear” that he or she will suffer “persecution.” Persecution includes activities that do not fall within the relatively narrow definition of torture.
Even if an individual is not eligible for asylum, the State may not remove the individual to a country where he or she would face a real risk of torture.
The prohibition of torture, cruel, inhuman, or degrading treatment or punishment is implemented in the UN system through the human rights treaty bodies, including the Human Rights Committee, the Committee Against Torture and the Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In addition, the UN Human Rights Council’s special procedures may investigate and report on allegations of torture. For example, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is authorized to examine questions related to torture in all UN Member States, including through urgent appeals, country visits, and reporting.
Enforcement is also available through the individual complaints mechanisms of regional human rights tribunals, including the European Court of Human Rights, the Inter-American Court of Human Rights, Inter-American Commission on Human Rights, African Commission on Human and Peoples’ Rights, and the African Court of Human and Peoples’ Rights.
As outlined above, the prohibition of torture also requires governments to take measures to prevent and punish torture, and many States criminalize torture in their national laws. The Geneva Conventions and Convention against Torture obligate States to extradite or prosecute those responsible for torture. Governments may also exercise universal jurisdiction to prosecute those responsible for torture, and Member States of the International Criminal Court have an obligation to cooperate with the court in the investigation and prosecution of crimes falling within its jurisdiction, including torture. In times of armed conflict, the International Committee of the Red Cross monitors compliance with international humanitarian law.
SELECTED CASE LAW
A significant body of case law addresses what activities are prohibited by regional and universal treaties’ provisions on torture and inhuman treatment.
Defining Cruel Treatment and Torture
- The European Court of Human Rights has emphasized that an applicant must meet a certain standard to establish an Article 3 claim under the European Convention on Human Rights: “Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and health of the victim. In considering whether a treatment is ‘degrading’ within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Though it may be noted that the absence of such a purpose does not conclusively rule out a finding of a violation. Furthermore, the suffering and humiliation must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment, as in, for example, measures depriving a person of their liberty.” See ECtHR, Wainwright v. United Kingdom, no. 12350/04, ECHR 2006-X, Judgment of 26 September 2006, para. 41 (internal citations omitted).
- In Ireland v. United Kingdom, the European Court of Human Rights listed factors to be taken into account in determining the severity of treatment, including the victim’s age, sex, and state of health. The Court also examined certain methods of interrogation, none of which were found to cause acute physical injury, and found that forcing detainees to remain in stress positions for periods of time, subjecting them to noise, and depriving them of food, drink and sleep amounted to ill-treatment, but not torture. The case stresses the applicability of the prohibition even in cases involving terrorism and public danger. See ECtHR, Ireland v. United Kingdom, Series A no. 5320/71, Judgment of 18 January 1978. For additional case law analyzing the prohibition of torture and inhuman treatment as it relates to the interrogation and detention of terrorists, and organized crime, see ECtHR, Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV, Judgment of 6 April 2000; ECtHR, Selmouni v. France [GC], no. 25803/94, ECHR 1999-V, Judgment of 28 July 1999; ECtHR, Chahal v. United Kingdom [GC], no. 22414/93, Rep. 1996-V, Judgment of 15 November 1996.
- The reluctance demonstrated in Ireland v. United Kingdom, to find that ill-treatment amounts to torture based on the level of severity has been eroded by subsequent case law that can be read to lower the threshold under the European Convention for finding that torture has occurred. See ECtHR, Askoy v. Turkey, no. 21987/93, Rep. 1996-VI, Judgment of 18 December 1996; ECtHR, Aydin v. Turkey, no. 23178/94, Rep. 1997-V, Judgment of 25 September 1997; ECtHR, Selmouni v. France [GC], no. 25803/94, ECHR 1999-V, Judgment of 28 July 1999.
- In determining whether an applicant has suffered from torture (rather than less severe forms of ill-treatment), the degree to which the force is unnecessary will help the court determine the intent with which the treatment was exercised. Subjecting detainees to unnecessary physical force diminishes human dignity and is a violation of the European Convention on Human Rights. See ECtHR, Selmouni v. France [GC], no. 25803/94, ECHR 1999-V, Judgment of 28 July 1999.
- Various human rights bodies have acknowledged that no physical element is necessary to establish torture or inhuman treatment. The European Court of Human Rights found that a suspected criminal could not be extradited to the United States because of the psychological harm he would suffer if he were sentenced to death and held on death row. See ECtHR, Soering v. United Kingdom [GC], no. 25803/94, ECHR 1999-V, Judgment of 28 July 1999. For other cases involving the infliction of mental, but not physical violence, see ECtHR, V.v. United Kingdom [GC], no. 24888/94, ECHR 1999-IX, Judgment of 16 December 1999, and ECtHR, X and Y v. Netherlands, Series A no. 8978/80, Judgment of 26 March 1985.
- Actions aimed at humiliating individuals or causing psychological suffering may constitute torture or inhuman treatment, and also violate the right to human dignity. See ACommHPR, Malawi African Association et al. v. Mauritania, Communication Nos. 54/91, 61/91, 96/93, 98/93, 164/97, 196/97, 210/98, Merits Decision, 27th Ordinary Session (2000).
- In Cantoral-Benavides v. Peru, the Inter-American Court found that “according to international standards for protection, torture can be inflicted not only via physical violence, but also through acts that produce severe physical, psychological or moral suffering in the victim.” See I/A Court H.R., Cantoral-Benavides v. Peru. Merits. Judgment of 18 August 2000. Series C no. 69, para. 100. In that case, the Court found that the aggressive acts suffered by the victim could be classified as physical and psychological torture, and that the acts were planned specifically for the purpose of wearing the victim down and to obtain incriminating evidence from him. See also I/A Court H.R., Maritza Urrutia v. Guatemala, Merits, Reparations and Costs. Judgment of 27 November 2003. Series C no. 103, finding that the victim suffered physical violence amounting to torture, and mental violence constituting cruel and inhuman treatment.
- Several cases have also found violations in relation to relatives of victims of disappearance based upon the anguish caused to victims’ family members and the State’s failure to properly investigate and punish the wrongdoers for the disappearances or murders at issue. See, e.g., Human Rights Committee, Quinteros v. Uruguay, Communication No. 107/1981, Views of 21 July 1983, UN Doc. CCPR/C/OP/2; I/A Court H.R., Case of the “Street Children” (Villagran-Morales et al.) v. Guatemala. Merits. Judgment of 19 November 1999. Series C no. 63; ECtHR, Kurt v. Turkey, no. 15/1997/799/1002, Judgment of 25 May 1998. In one case, the European Court of Human Rights limited the application of the Kurt case, finding that it did not establish a general principle that a family member of a disappeared person is always a victim of treatment contrary to Article 3 and specifying that whether the relative is such a victim will depend on the existence of “special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation.” See ECtHR, Çakici v. Turkey, no. 23657/94, Judgment of 8 July 1999, para. 98.
- The Human Rights Committee has determined that corporal punishment is prohibited by Article 7 of the ICCPR. See Human Rights Committee, Osbourne v. Jamaica, Communication No. 759/1997, Views of 13 April 2000, UN Doc. CCPR/C/68/D/759/1997. The African Commission has ruled that corporal punishment violates the human right to dignity. See ACommHPR, Doebbler v. Sudan, Communication No. 236/2000, Merits Decision, 33rd Ordinary Session (2003).
Treatment of Prisoners and Detainees
- In Antti Vuolanne v. Finland, the Human Rights Committee examined a case involving the solitary confinement of a Finnish infantryman who was sanctioned for abandoning his military service. The Committee determined that for punishment to be degrading, the humiliation or debasement involved must exceed a particular level and must, in any event, entail other elements beyond the mere fact of deprivation of liberty. In determining the severity of the alleged maltreatment, the court should consider all the circumstances of the case at hand, including the duration and manner of treatment, its physical and mental effects and the sex, age, and state of health of the victim. See Human Rights Committee, Antti Vuolanne v. Finland, Communication No. 265/1987, Views of 7 April 1989, UN Doc. Supp. No. 40 (A/44/40).
- The Human Rights Committee also found, in Polay Campos v. Peru, thatdisplaying the victim publicly in a case and isolating him for 23 hours a day in a small cell with only 10 minutes of sunlight per day violated articles 7 (prohibition of inhuman treatment) and 10 (concerning the treatment of persons deprived of liberty) of the ICCPR. See Human Rights Committee, Polay Campos v. Peru, Communication No. 577/1994, Views of 6 November 1997, UN Doc. CCPR/C/61/D/577/1994. See also I/A Court H.R., Loayza Tamayo Case. Reparations. Judgment of 27 November. Series C no. 42 (finding that similar treatment violated the applicants’ rights under the American Convention).
- In International Pen and Others v. Nigeria, the African Commission found that detaining individuals sentenced to death in leg irons and handcuffsand denying them access to attorneys and necessary medicines violated Article 5 (the right to dignity) of the African Charter. See ACommHPR, International Pen and Others v. Nigeria, Communication Nos. 137/94, 139/94, 154/96, 161/97, Merits Decision, 24th Ordinary Session (1998).
- The European Court of Human Rights has also developed case law presumptions regarding ill-treatment inflicted by State actors. For example, it has stated that “where an individual is taken into custody in good health but is found to be injured by the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the victim’s allegations, particularly if those allegations were corroborated by medical reports, failing which a clear issue arises under Article 3 of the Convention.” See ECtHR, Eren v. Turkey, no. 36617/07, Judgment of 20 October 2015, para. 30.
- The Human Rights Committee has found that the means by which the death penalty is imposed may violate the right to freedom from torture or cruel, inhuman, or degrading punishment under certain circumstances. See Human Rights Committee Resolutions 2003/67 (para. 4(i)), 2004/67 (para. 4(i)), and 2005/59 (para. 7(i)) stating that stoning is cruel and inhuman. See also Human Rights Committee, Ng v. Canada, Communication No. 469/1991, Views of 5 November 1993, UN Doc. CCPR/C/49/D/469/1991 (noting that use of a gas chamber to execute criminals is cruel and inhuman). The Committee subsequently found that imposing death by lethal injection is not cruel and inhuman, despite evidence showing that the injections can cause terrible suffering. See Human Rights Committee, Cox v. Canada, Communication No. 539/1993, Views of 31 October 1994, UN Doc. CCPR/C/52/D/539/19930.
- The European Court of Human Rights has identified hangingas an “ineffectual and extremely painful method of killing, such as to amount to inhuman and degrading treatment” and further states that “[w]hatever the method of execution, the extinction of life involves some physical pain” as well as “intense psychological suffering” deriving from the foreknowledge of death. See ECtHR, Al-Saadoon and Mufdhi v. United Kingdom, no. 61498/08, ECHR 2010, Judgment of 2 March 2010, paras. 102, 115.
- In the Inter-American system, while there are no merits decisions determining that particular methods of execution violate the Inter-American treaties, the Commission has found admissible at least one case involving a claim that lethal injection creates an unacceptable risk of causing excruciating pain and suffering to the inmate. IACHR, Report No. 63/12, Petition 1762-11, Virgilio Maldonando Rodriguez (United States), March 29, 2012.
- Cases concerning mental anguish also include several cases involving the so-called “death row phenomenon,” which refers to the inhuman and degrading treatment suffered by detainees on death row, independent of the detainees’ right to life. See ECtHR, Soering v. United Kingdom [GC], no. 25803/94, ECHR 1999-V, Judgment of 28 July 1999 (applying the principle of non-refoulement to prohibit extradition where the party whose extradition is sought might be subjected to the conditions of death row). Unlike the European Court of Human Rights, the Human Rights Committee has not found detention on death row per se in violation of the right to freedom from torture and ill-treatment. The Committee has found violations where there are further compelling circumstances, such as documented deterioration of the victim’s mental health, or when the victim’s age or status made the victim particularly vulnerable. See, e.g., Human Rights Committee, Errol Johnson v. Jamaica, Communication No. 588/1994, Views of 22 March 1996, UN Doc. CCPR/C/56/D/588/1994; Human Rights Committee, Clive Johnson v. Jamaica, Communication No. 592/1994, Views of 25 November 1998, UN Doc. CCPR/C/64/D/592/1994. See also I/A Court H.R., Hilaire, Constantine and Benjamin, et al. v. Trinidad and Tobago. Merits, Reparations and Costs. Judgment of 21 June 2002. Series C no. 94; I/A Court H.R., Raxcaco-Reyes v. Guatemala. Merits, Reparations and Costs. Judgment of 15 September 2005. Series C no. 133.
- The European Court of Human Rights has determined that Article 2 of the European Convention prohibits the death penalty and that the principle of non-refoulement applies where a criminal suspect might be subject to the death penalty in the State seeking extradition. See ECtHR, Al-Saadoon and Mufdhi v. United Kingdom, no. 61498/08, ECHR 2010, Judgment of 2 March 2010.
Useful online sources on the prohibition of torture include the following:
- Chapter 14 of Rhona K. M. Smith’s Textbook on International Human Rights
- The Committee against Torture’s General Comment No. 2
- The Human Rights Committee’s General Comment No. 29
- The Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- Reports and other documents drafted by the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment’s (CPT) standards.
- The Council of Europe’s Guidelines on Human Rights and the Fight Against Terrorism
- The European Union’s Guidelines on Torture and Other Cruel Treatment
- European Court of Human Rights’ factsheets on Detention Conditions and Treatment of Prisoners, Detention and Mental Health, and Death Penalty Abolition
- The UN guide entitled Preventing Torture: An Operational Guide for National Human Rights Institutions
 Jus cogens are international norms considered so fundamental that no derogation from them is permitted, even through the application of other international norms. For further information about jus cogens and peremptory norms, see Article 53 of the Vienna Convention on the Law of Treaties and Erika de Wet, The Prohibition of Torture as an International Norm of jus cogens and Its Implications for National and Customary Law, 15 EJIL 97 (2004).