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3: TORTURE AND TERRORISM (i) DEFINING TORTURE (i) UN UN CONVENTION AGAINST TORTURE A1:
1. For the purposes of this Convention, the term "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.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. A16:
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts 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. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion. (ii) ECHR ECHR A3: prohibition on torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment IRELAND V UK 1979-80 EU COURT OF HR FACTS
? British government faced serious acts of terrorism by members of Irish Republican Army (IRA) and loyalist groups in Northern Ireland
????? British government introduced special powers of arrest and detention without trial and powers were widely used, chiefly against the IRA
? Notices of derogation under A15(1) were lodged with the SecretaryGeneral of the Council of Europe, in view of the 'public emergency threatening the life of the nation'
? Government of the Republic of Ireland brings an application, alleging that: i. Extrajudicial detention infringed A5 (right to liberty) and was not saved by A15 ii. Various interrogation practices - in particular the so called 5 techniques including wall-standing, hooding and deprivation of sleep and food and other practices amounted to torture and inhuman or degrading treatment contrary to A3 iii. The use of special powers primarily against the IRA members constituted discrimination in violation of A14
? The commission found that the 5 techniques and other practices did amount to torture but found no discrimination and that the derogations from A5 were justified under A15
Ireland referred the case to the court (although the offending practices had been discontinued and the British government did not contest the allegations of findings in connection with the 5 techniques) and renewed its original submissions and asking the Court in addition to address a consequential order to the British government requiring it to institute criminal and disciplinary proceedings against the particular persons responsible for breaches of A3
? Interested in A3 breaches: what amounts to torture? What amounts to inhuman treatment?
? A practice incompatible with the Convention consisted of an accumulation of identical or analogous breaches which were sufficiently numerous and interconnected to amount not merely to isolated incidents or exceptions but to a pattern or system but a practice itself did not of itself constitute a violation separate from such particular breaches
? Higher authorities of a state were strictly liable for the conduct of their subordinates, on whom they were duty bound to impose their will and could not shelter behind their inability to ensure it was respected
? Concept of a burden of proof resting on either party did not apply but the standard was BRD
? Ill-treatment has to attain a minimum level of severity to fall within A3, the assessment of which was necessarily relative, depending on all the circ's, including: o Duration of treatment o Physical/mental effects o Sex, age or state of health of victim
? Although the 5 techniques were not officially authorised in writing, they were taught orally at a training centre = practice established
? ???? The 5 techniques were applied in combination, with premeditation, for hours at a time, causing at least intense physical and mental suffering and acute psychiatric disturbances = inhuman treatment
? ???? The 5 techniques were such as to arouse in victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance = degrading
? ???? However, the 5 techniques did not occasion suffering sufficient in intensity/cruelty to constitute torture
? 1971 ill-treatment accompanying the 5 techniques - many held in custody were subjected to violence by the police which was repeated and occurred in the same place, taking similar forms = a practice which led to intense suffering and sometimes substantial physical injury = inhuman treatment (*but not torture)
? Ill-treatment at the Ballykinler military camp was discreditable and reprehensible but not degrading and not contrary to A3
? Court has no power to direct a State to institute criminal or disciplinary proceedings in accordance with its domestic law
? Although no breach of A14 and breaches of A5 permitted under A15(1), the five techniques constituted practices in breach of A3, but not considered to be torture
? Case to be used as an example of practice falling outside of torture, but within inhuman treatment in breach of A3
? *Note: push for this case to be reheard by the ECHR with the backing of the Irish government; new evidence; wanting the case reheard bc of the belief that the acts constituted torture
? Case also includes discussion of whether there was extrajudicial deprivation of liberty and whether it was permissible under A15 bc of public emergency threatening life of nation ? found that the existence of a public emergency threatening the life of the nation was clear on
the facts and the measures taken did not exceed the extent strictly required referred to in A15(1) and therefore the derogations from A5 not in breach of the Convention SELMOUNI V FRANCE 2000 FACTS
? Applicant arrested and detained on suspicion of involvement in drug trafficking
? Argued he was ill-treated in policy custody in breach of A3 (and A6(1) and also that proceedings in respect of complaint against PO's not conducted within a reasonable time and claimed just satisfaction under (A41) ISSUE
? Breach of A3?
REASONING Exhaustion of domestic remedies?
? Dismissal of the argument that domestic remedies had not been exhausted by the applicant (*see case if this comes up) Prohibition of torture: accepting the facts
? State under an obligation (whatever the outcome of the domestic proceedings) to provide a plausible explanation for the appellant's injuries, given the fact that the applicant was taken into police custody in good health but found to be injured at the time of release
? Accepted the Commission's findings of facts in the main and supported the conclusion that the applicant's allegations were proved BRD (particularly as such as a burden can be satisfied from the coexistence of sufficiently strong, clear and concordant inferences)
? The existence of several medical certificates containing precise and concordant information and the lack of an plausible explanation of how the injured had been caused justified the Commission's conclusion but Court's analysis differs from the Commission's opinion: o Court considers that it is required to rule on allegations not supported by medical reports ? France submitted arguments in the alternative on the seriousness of the facts and the ways they might be classified under A3 and in those observations, the government debates the seriousness of the alleged injuries o The Government didn't at any time contest the other a=facts alleged o Court also points out that facts were taken as established by the Criminal Court (*except allegations of rape and loss of visual acuity) and by the Versailles CA (*except sexual assault allegations) o Therefore, court feels the facts can be assumed to be established o Not proved that he was raped as the allegation was made too late to be proved/disproved by medical evidence and a causal link could also not be established on the basis of the medical report between the applicant's alleged loss of visual acuity and the events occurring during police custody Prohibition on torture: distinguishing torture from inhuman or degrading treatment based on the severity of the pain and suffering
? A3 enshrines one of the most 'fundamental values of democratic societies' by prohibiting in absolute terms torture or inhuman or degrading treatment or punishment ? no provision made for exceptions/derogations
? Distinction is made between torture and inhuman/degrading treatment (*distinction also made by UN as seen in A1 and A16) ?
appears that it was the intention for the Convention to attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering
? The medical certificates establish that the applicant suffered physical
and mental pain, inflicted intentionally by the police officers in the performance of their duties for the purpose of making him confess to the offence he was suspected of having committed
? The acts were such as to 'arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance' = elements sufficiently serious to render the treatment inhuman and degrading
? Court reiterates that where a person is deprived of liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in A3 Was the pain and suffering able to be defined as 'severe' within the meaning of A1 of the UN Convention? ie. was it torture?
? Severity here like the 'minimum severity' in A3, is in the nature of things relative, depending on the circ's of the case such as the duration of treatment, physical or mental effects and in some cases the sex, age and state of health of the victim etc.The Convention is a 'living instrument which must be interpreted in the light of present-day conditions' and therefore acts which were classified in the past as inhuman and degrading treatment could be classified differently in future (ie. as torture)
? Increasingly high standard required in the area of HR protection and fundamental liberties requires greater firmness in assessing breaches of the fundamental values of democratic societies
? The applicant suffered the following: o Large number of blows inflicted on the applicant and whatever a person's state of health, it can be presumed that blows of such intensity will cause substantial pain and the medical report shows that marks covered almost all of the applicants body o He was dragged along by his hair o Made to run along a corridor with PO's positioned to trip him up o Made to kneel in front of a woman to whom someone said 'look you're going to hear somebody sing' o PO showed him his penis and he was urinated on o Threatened with a blowlamp and a syringe
? As well as being violent, the acts would be heinous and humiliating for anyone, irrespective of their condition and the above acts weren't confined to one period but were endured repeatedly over a number of days
? Considering the physical and mental violence as a whole, the acts caused severe pain and suffering and was particularly serious and cruel = torture
? Finding of a violation of A3 as acts of torture (*and A6(1) on account of the length of the proceedings)
? France to pay the applicant within 3 months 500,000 for pecuniary and non-pecuniary damage and 113,364 for costs and expenses
? Claim for just satisfaction dismissed
? Example of acts being of sufficient severity to classify as torture (cf. previous case)
? See reasoning with respect to A6(1); right to a fair trial and reasonableness of length of proceedings (breach bc no justification for the length of proceeings) (iii) UK
McKay: The Torture Centre - Northern Ireland's Hooded Men
? Article tracks the stories of the 14 men who were tortured by the British army in 1971; the men were taken to a secret location in rural Co Derry (Ballykelly unit) and were subjected to interrogations from which they never recovered; 9 of these men are now seeking justice for what they believe to be torture; seeking to have the case reopened by the ECHR in light of new evidence and wanting the techniques to be named as torture (breach of A3) as well as bringing a case before the HC in Belfast forcing an investigation; having the case reopened in the ECHR would have enormous international significance as the 1978 ECHR ruling that what was done was inhuman and degrading but did not amount to torture has arguably led to the justification for the continued use of such techniques The hooded men
? Argument that it's not just a matter of history and that the same techniques are being used in Iraq by British forces (eg. Baha Mousa an Iraqi hotel worker's death in 2003 following use of the so-called five techniques of wall-standing, hooding, subjection to noise, deprivation of sleep and deprivation of food and drink)
? Argument that the 1978 ECHR ruling has been relied on by the UK, Israel and the US in the war on terror
? Patrick Corrigan: "The Landau Commission in 1987 was charged with investigating the conduct of interrogation by Israeli forces, and it referred to [the ruling]. In 2002 the Bush administration in the US got legal advice which quoted the judgment. Within months the CIA was using the techniques in Iraq and Afghanistan. This case has important implications in the fight against torture."
? New evidence emerging that Britain had misled the ECHR not just about the venue but also about responsibility for the treatment of the hooded men, about the intensity of the interrogation and about the knowledge of the impact of the five techniques on victims
? Evidence has emerged that the interrogations were taped and that Sir Edmund Compton had declined to consider the material in his 1971 inquiry into allegations of brutality/ill-treatment of detainees
? Attempts being made to get the British to release evidence being held at Hanslope Park Official inquiries: Compton and Parker reports and the ECHR ruling
? 1971: Compton was appointed to investigate allegations of brutality towards the 14 men who were taken to Shackleton Barracks but only one of the men was called to give evidence and his lawyer was not allowed to cross-examine any of the more than 100 security-force witnesses
? Compton's report found no brutality, although concession of ill-treatment which caused rebuke from Heath - the British PM at the time who called the report unbalanced and ill-judged
? Compton however did confirm that the five techniques used at Ballykelly were authorised at the highest levels and ill treatment of selected prisoners had been an integral part of British military doctrine for years
? Second inquiry later that year by Parker where it was confirmed that Britain had used techniques in other struggles against armed terrorists around the world
? Parker's report was published in 1972 and found that some techniques constituted criminal assaults but had ministerial approval and could continue if an army officer/doctor with psychiatric training were present
? Parker report revealed such techniques had been used in Palestine, Malaya, Kenya, Aden, Malaysia and other former British colonies
? Heath responded in 1972 by appearing to ban the use of the five techniques in all future cirucumstances BUT allowed for their continued use in training
? According to the ECHR ruling, although there was a breach of A3 bc of inhuman and degrading treatment, what was done did not constitute torture bc a 'special stigma' attached to torture as 'deliberate inhuman treatment causing very serious and cruel suffering' ? this is why the Irish government wants the case reopened; to have the ECHR rule it as torture
(iv) US US Department of Justice, Office of Legal Counsel: Memorandum for Alberto R Gonzales, Counsel to the President - Standards for Conduct of Interrogation under 18 USC 2340-2340A Summary:
? This is the Bybee memo (sent by Jay Bybee, Assistant AG from within the US Dept of Justice); in response to request to review what acts would constitute torture (both under the US criminal statute and the UN Convention) The US Statute
? Following an examination of the text of the US criminal statute and its history, the memo comes to the conclusion that for an act to constitute torture it must be an extreme act:
? Must inflict pain that is difficult to endure; equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function or death
? Textual interpretation of the term 'severe' o Looking to the use of the phrase 'severe pain' elsewhere in the US Code and looking towards statutes that define an emergency medical condition for the purpose of providing health benefits o In this statute, severe pain is treated as an indicator of ailments likely to result in permanent/serious physical damage in the absence of immediate medical treatment o Damage must rise to the level of 'death, organ failure or the permanent impairment of a significant body function' o The link is then made with the torture provision and the argument is that severe pain must rise to a similarly high level in order to constitute torture
? For purely mental pain/suffering to constitute torture, it must result in significant psychological harm of significant duration (months/years) and must result from one of the acts listed in the statute (interpreted textually as exhaustive) = textual interpretation of 'prolonged mental harm'
? 'Each component of the definition emphasises that torture is not the mere infliction of pain or suffering on another but is instead a step well removed... In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts' UN Convention
? Examining the text, ratification history and negotiating history of the Torture Convention, memo concludes that the treaty's text also only prohibits the most extreme acts by reserving criminal penalties for torture (cf. cruel, inhuman or degrading treatment or punishment)
? Pain and suffering is to be severe is order to reach the torture threshold; argument bolstered by the separation of acts of torture and acts of cruel, inhuman or degrading treatment or punishment (A1 vs. A16)
? Used the ratification history of the statute to support the view that the executive interpreted the Convention and only prohibiting extreme forms of physical and mental harm in its definition of torture (also used the negotiating history to make the same argument of torture being a step far-removed from cruel, inhuman or degrading treatment or punishment) US Judicial Interpretation
? Analyses jurisprudence of the Torture Victims Protection Act (which gives civil remedies in order to compensate torture victims) and predicts that courts are likely to take a totality of circumstances approach and will look to the entire course of conduct and will conclude that torture is to include cruel and extreme physical pain
? Difficult to take a specific act out of context and conclude that an act in isolation would constitute torture International Decisions
? Using international decisions to support the argument that interrogatory techniques
focusing on sensory deprivation may amount to cruel, inhuman or degrading treatment but don't produce pain/suffering to the necessary intensity to meet the torture definition
? Other Western nations have used a high standard to determine whether an interrogation technique would violate the international prohibition on torture
? Decisions have found aggressive interrogation methods at worst to constitute cruel, inhuman or degrading treatment but not torture
? Decision of European Court of HR in Ireland v the United Kingdom ? conclusion by the court that techniques which were used in combination and applied at hours at a time were inhuman and degrading but did not amount to torture with the court holding that 'they did not occasion suffering of the particular intensity and cruelty implied by the word torture' o Even though the court concluded the techniques produced 'intense physical and mental suffering' and 'acute psychiatric disturbances' they were not sufficiently intense or cruel to amount to torture o The court reached this decision based on the distinction in the Convention between torture and cruel, inhuman or degrading treatment or punishment with the court reasoning that bc the Convention expressly distinguished between the two, the Convention sought to 'attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering' and it was held that 'this distinction derives principally from a difference in the intensity of the suffering inflicted'
? Israeli Supreme Court: o Supreme Court of Israel in Public Committee Against Torture in Israel v Israel concluded that the acts amounted to cruel and inhuman treatment but did not amount to torture; courts avoided describing the acts as having the severity of pain or suffering indicative of torture o Memo argues the decision is best read as concluding that the methods were cruel and inhuman treatment but fell short of torture The President's Commander-In-Chief Power
? Argue that the US provision may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President's commander in chief powers ? ie. if al Qaeda/allies were tortured, prosecution under the criminal statute may be barred bc enforcing the statute would be an unconstitutional infringement of the President's authority to conduct war
? Interrogation of captured al Qaeda operatives may provide information concerning the nature of al Qaeda plans and the identities of its personnel which may prove invaluable in preventing further direct attacks on the US and its citizens and it would be reasonable following September 11 to believe the information gained from al Qaeda personnel could prevent attacks of a similar magnitude from occurring in the US
? Any effort to apply the US provision in a manner that interferes with the President's direction of core war matters such as the detention and interrogation of enemy combatants would be unconstitutional Defences
? Finally, the memo concludes with an argument that torturers could use the defences of necessity or self-defence in order to justify their interrogation methods ? the memo argues these defences could be used to eliminate criminal liability and justify the use of interrogation methods used to elicit information to prevent a direct and imminent threat to the US and its citizens (ii) DEFINING TERRORISM (i) INTERNATIONAL LAW Saul: civilizing the exception - universally defining terrorism Summary:
? Saul makes the argument that there is currently no international consensus regarding the term terrorism (*despite the definition adopted by the UN
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