Defining Torture and the Obligation of Systematic Review in the CAT Treaty
Defining Torture and the Obligation of Systematic Review in the CAT Treaty
Abstract and Keywords
Torture is one of the most severe and violent human rights violations and is absolutely prohibited under international law. As we also know from experience, most cases of torture occur during interrogations by law enforcement officials for the purpose of extracting a confession. After elaborating on the legal definition of torture under international human rights law and how torture can be distinguished from cruel, inhuman and degrading treatment or punishment, the authors reflect on the need to address the root causes of torture. While Juan Méndez’ call for a Universal Protocol for non-coercive interviews is an important initiative in this direction, this contribution focuses on the obligation of systematic review of interrogation rules under Article 11 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). This article of the treaty requires States parties to systematically review their interrogation rules, instructions, methods, and practices. Although it has not received much attention in the literature and seems—at first sight—to only establish a formal obligation to keep interrogation and detention rules under systematic review, over the years the CAT Committee has given a broad interpretation to this provision, making it an important safeguard for the prevention of torture and other forms of ill-treatment. The authors provide an overview of the CAT Committee’s practice and discuss how Article 11 of CAT, acting as a guarantee of minimum standards of interrogation, could represent an important provision for ensuring the implementation of the CAT’s preventive obligations, laying the basis for bridging the gap between law and practice.
Torture is the deliberate infliction of severe pain or suffering, whether physical or mental, on a powerless person for a specific purpose, such as the extraction of a confession or other information during interrogation. Torture is one of the most severe and violent human rights violations and constitutes a direct attack on the core of the human rights to personal integrity and human dignity. While slavery deprives human beings ex lege of their status as a human person, torture achieves the same goal of dehumanizing human beings by means of factual control, coercion, and violence. The relationship between slavery and torture as the two most prominent violations of human dignity is most clearly articulated in Article 5 of the African Charter on Human and Peoples’ Rights 1981 (ACHPR):
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
As the most brutal attacks on the core of human dignity, slavery and torture are absolutely prohibited under international law. Even in times of war, terrorism, and other emergencies, no derogations are allowed from the absolute prohibition of torture and slavery. The absolute and non-derogable nature of the prohibition of slavery and torture also led to the recognition of both prohibitions as norms of jus cogens under international law.
While Article 5 ACHPR puts torture into the context of the human rights to dignity and legal personality, and Article 5 of the American Convention on Human Rights of 1969(ACHR) into the context of the human right to “physical, mental and moral integrity,” most other relevant provisions of international human rights law, such as Article 5 of the Universal Declaration of Human Rights (UDHR) 1948, Article 3 of the European Convention on Human Rights (ECHR) 1950, Article 7 of the International Covenant on Civil and Political Rights (ICCPR) 1966, or Article 8 of the Arab Charter on Human Rights 2004 only provide for the (negative) prohibition of torture and other forms of cruel, inhuman, or degrading treatment or punishment. Neither torture nor the other forms of ill-treatment are defined in these provisions.
The first legal definition of torture can be found in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984. Article 1 reads as follows:
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 (p.23) capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Another legal definition is contained in the Rome Statute of the International Criminal Court 1998. In the context of the definition of crimes against humanity, Article 7(2)(e) of the Rome Statute provides the following definition: “ ‘Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.”
Taking these two definitions together, we can identify the following elements of a definition of torture:1
• Infliction of severe pain or suffering, whether physical or mental
• Purpose, such as extraction of a confession or information, punishment, intimidation, coercion, discrimination
• State responsibility, at least by consent or acquiescence of a person acting in an official capacity
• Powerlessness, that is, direct control of the perpetrator over the victim, who is usually in the custody of the perpetrator
International human rights law not only prohibits torture, but also other forms of cruel, inhuman, or degrading treatment or punishment (CIDT). While Article 1 CAT provides for a legal definition of torture, Article 16(1) CAT reads as follows:
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.
It follows that some of the most important provisions of CAT, such as the obligations of States to criminalize torture in their domestic criminal codes (Article 4) and to provide for broad jurisdiction, including universal jurisdiction, for the crime of torture (Articles 5 to 9), only apply to torture and not to CIDT.2 This begs the question how torture can be legally distinguished from CIDT. In principle, there are two different schools of thought.
(p.24) One school of thought is led by the European Court of Human Rights (ECtHR). Since its well-known judgment in the Northern Ireland case of 1978, which was recently confirmed, the European Court distinguishes torture from other forms of ill-treatment primarily by the intensity of the pain or suffering. It held that the five combined deep interrogation techniques that were applied by British security officials against suspected members of the IRA (hooding, long standing against a wall, noise, deprivation of food and water) amounted to inhuman treatment in violation of Article 3 ECHR, but did not lead to an intensity of pain and suffering required for torture.3 With this judgment, the European Court had overruled the former European Commission of Human Rights, which had qualified the five combined interrogation methods clearly as torture.4 This was the beginning of a long-standing jurisprudence, which distinguishes torture from CIDT primarily by the intensity of pain or suffering, and which has been supported by many legal scholars, above all in Europe.5
The second school of thought follows the jurisprudence of the former European Commission of Human Rights since the Greek and Northern Ireland cases, which puts more emphasis on the purpose and the other definition criteria for torture, and which had a decisive influence on the drafting of the definitions of torture contained in the CAT and the Rome Statute. As UN Special Rapporteur on Torture, Manfred Nowak put a particular emphasis on the definition of torture and developed the notion of powerlessness as the major element distinguishing torture from CIDT.6 In our opinion, the severity of pain or suffering only plays a role in distinguishing degrading treatment or punishment from other forms of ill-treatment. On the one hand, if a treatment aims primarily at the humiliation of the victim, it may violate the right to personal integrity and dignity even if the pain or suffering is less than severe. On the other hand, torture, cruel, or inhuman treatment or punishment require the same level of severity. This means that torture is to be distinguished from cruel or inhuman treatment or punishment not by the severity of pain or suffering, but by one or more of the three other definition criteria of torture as outlined (intention, purpose, and powerlessness). This shall be explained by the following examples:
• Intention: In Austria, there was a case in the 1980s where a detainee was simply forgotten in a basement cell of a small police station; without access to water or food; he was afraid of slowly starving to death before he was finally found after two weeks by a cleaning lady and survived. He was exposed to extreme physical and mental pain and suffering by State officials, but this treatment nevertheless did not amount to torture, but “only” to inhuman treatment.7 Torture cannot be committed by negligence; it always requires the deliberate infliction of severe pain or suffering.
• Purpose: The element of purpose is closely related to the element of intention. But even the deliberate infliction of severe pain or suffering without any of the purposes explicitly stated in Article 1 CAT would usually not be regarded as torture, but “only” as inhuman treatment. The most typical purpose of torture is the extraction of a confession from a detainee during interrogation who is suspected of having committed a criminal offense. More than 90% of all torture survivors whom Manfred Nowak has interviewed in his capacity as UN Special Rapporteur on Torture were tortured for this particular purpose by police officials. Intelligence officials usually do not aim at a confession but at the extraction of information that they deem useful. In other cases, intimidation and punishment were the main reasons why security forces inflicted severe pain on a person under their control.
• Powerlessness: In our opinion, powerlessness is the most important element that distinguishes torture from cruel or inhuman treatment. If the police tries to arrest a person suspected of having committed a crime, and this person resists his or her arrest, the police may use force. The same is true if the police wishes to prevent the escape of a dangerous person or acts in self-defense or defends a person against threats and violence by a hostage taker or other violent person. In case of a riot or violent demonstration, the police may also use force in order to protect the life, security, and integrity of other persons or private property. If such use of force is proportional, it is lawful and does not reach the threshold of ill-treatment, even if the police inflicts severe pain or suffering. If the use of force is excessive, that is, non-proportional, it may amount to degrading or even cruel or inhuman treatment. But it can never be qualified as torture if the person affected is not under the direct control of the police officer, that is, in a powerless situation. As long as the person to be arrested violently resists his or her arrest, excessive use of force may amount to inhuman treatment. As soon as the person is, however, handcuffed and lying on the floor, that is, under the direct control of the police, any further violence, such as beatings and kicks, is prohibited. If such police violence causes less than severe pain or suffering, it may be qualified as degrading treatment. If it causes severe pain or suffering, and is deliberately inflicted for one of the purposes established in the CAT Convention (e.g., as punishment or for the purpose of intimidation), it (p.26) amounts to torture, even if perpetrated in the street. The same holds true for further violence during transport in the police van or after arriving at the police station, as long as the victim is in a powerless position, that is, under the direct control of police officers.
The most typical situation of powerlessness is during interrogation. Since the interrogators wish to achieve something from a person who is in their custody and under their direct control, usually a confession for a crime the person is suspected of, or any other information deemed useful by the police or intelligence officer for their investigation work or for preventing future criminal or terrorist offenses, interrogators are often tempted to use intimidation, coercion, or violence. The mere act of bringing the detainee to a special interrogation room, where others might have been tortured before and which may show certain instruments of torture, may have already a terrifying effect. In many countries, this is the moment when the interrogators show to the victims by various means that they have absolute power and control over them. Victims may be blindfolded, hooded, stripped naked, or suspended in a painful position. They might be exposed to the screams of other detainees being subjected to torture. All these practices do not only constitute degrading treatment, but also torture, even if no physical force has been used. Many victims whom Manfred Nowak has interviewed told that the worst mental suffering was the fear before the physical torture actually started because nobody knew how far the torturers actually would go. When the beating finally started, this was for some even a kind of relief. The main reason why torture is such a terrible crime and a direct attack on the core of human dignity (and therefore absolutely prohibited under international law) is not the fact that physical injuries might be inflicted on the victim, but the “celebration” of absolute power by a powerful person (a police officer representing State power) over another person who finds himself or herself in a powerless position and cannot defend himself or herself.
To deliberately inflict severe pain on such a powerless person is deeply unethical. The interrogators, therefore, need a specific “moral” justification in order to bring such unethical conduct in line with their own conscience and ethical standards. They usually tell themselves or are told by their superiors that they do it for a “good cause,” such as “solving” a criminal case by extracting a confession from a suspected criminal or defending national security interests by extracting intelligence information from a suspected terrorist. That is why any attempt to undermine the absolute prohibition of torture by trying to ethically and politically justify torture as the “lesser evil,” such as by the Bush administration in the so-called war on terror and by their supporters in the media, the broader public, and even in academia, opens “Pandora’s Box” and may have devastating effects on the practice of torture in many countries of the world.
II. Obligation of Systematic Review of Interrogation Rules: Article 11 CAT
The CAT does not only provide the first definition of torture but also establishes a number of important State obligations that aim at preventing torture and other forms of ill-treatment. In this sense, Articles 2 and 16 set up the general obligation (p.27) of States parties to take effective legislative, administrative, judicial, or other measures to prevent torture and CIDT in any territory under their jurisdiction.
These general preventive obligations are complemented by a series of specific obligations that “the States parties deemed essential to prevent torture and ill-treatment,”8 including the obligation to train persons involved in the custody, interrogation, or treatment of any individual subjected to any form of arrest, detention, or imprisonment on the prohibition against torture (Article 10); to keep interrogation rules and methods under systematic review (Article 11), and to carry out prompt and impartial ex officio investigations wherever there is reasonable ground to believe that an act of torture or CIDT has been committed (Article 12); to give victims of torture the possibility to lodge a complaint (Article 13), and to provide them with an adequate remedy and reparation for the harm suffered (Article 14), as well as to ensure that no information extracted by torture is admitted as evidence in any judicial or administrative proceedings (Article 15).
This chapter will give an overview of the obligations provided by Article 11 CAT to “keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment,” especially in light of the practice of the Committee against Torture (hereinafter Committee) concerning interrogations.9
Due to its close links with the general preventive obligations, the Committee often refers to Article 11 together with Articles 2 and 16 CAT. For example, in all decisions on individual complaints finding a violation of Article 11, the Committee has also found a separate breach of Article 2 (alone10 or in conjunction with Article 111) due to a violation of one or more fundamental legal safeguards, for example, for lack of or non-prompt guarantee of judicial oversight, medical assistance, access to a lawyer, notification to family or other persons, or/and of a national registry of detained persons.12 In other cases, the Committee has found a violation of Article 11 in combination with Article 16, for example, for lack of monitoring mechanisms or when substantial standards were at stake.13 On the contrary, the Committee has (p.28) never found a violation of Article 11 without first having established a breach of Article 2 or Article 16,14 considering thus a breach of such provisions as a precondition for the finding of a violation of Article 11. A similar trend can be identified in the reporting procedure.15 If this makes it at times hard to distinguish the scope of application of each provision, it also shows how Article 11 is used by the Committee to strengthen and complement the more general preventive obligations.
When interpreting this provision, there are three aspects that are worth noting. First of all, the Committee has applied Article 11 broadly, including, for example, in relation to police custody;16 premises of the intelligence and security departments;17 pre-trial detention;18 administrative detention;19 juvenile justice;20 detention in psychiatric institutions;21 and in social institutions.22 Moreover, this provision applies in all contexts in which a person is deprived of his or her liberty, including detention facilities under the de facto control of a State, as well as in “contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm.”23 This shows that the term “deprivation of liberty” in Article 11 CAT is today interpreted by the Committee along the lines of Article 4 of the Optional Protocol to the Convention against Torture (OPCAT), which defines the notion of deprivation of liberty as “any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.”
(p.29) Secondly, a corollary of the duty to “keep under systematic review” their rules and practices is that States have to “continually stay abreast of the actual situation.”24 In this sense, the Committee has interpreted Article 11 as an obligation to oversee any form of deprivation of liberty of the individual with a view to prevent any cases of torture and CIDT, including an obligation to establish a system of regular and independent monitoring and inspections of all places of detention. In fact, when considering complaints invoking Article 11, the Committee has also taken into consideration whether a monitoring mechanism is in place.25 However, it can be argued that the monitoring under Article 11 goes one step further than the OPCAT obligations because it specifically aims at preventing torture and other forms of ill-treatment by keeping domestic rules and practices under systematic review. In other words, the oversight should be instrumental to the actual review of domestic rules and practices.
This brings us to the third aspect of this provision, which can be read as a guarantee for procedural and substantive minimum standards of interrogation and detention law and practices. Although the Convention does not expressly regulate the content of the rules and practices concerning interrogation and detention, in its practice, the Committee has established a rich body of decisions and recommendations on Article 11. These standards, deriving from the absolute prohibition of torture and by virtue of Article 16 of other forms of ill-treatment, shall be reflected in the States’ rules and practices concerning interrogation and detention. In fact, if the oversight of places of deprivation of liberty is the means for ensuring the continual monitoring, the standards on interrogation and detention are the yardstick against which the systematic review should be conducted.
To this extent, the Committee has also repeatedly affirmed the importance of adhering to international standards, such as, for example, Articles 9 and 14 ICCPR but also the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,26 the Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules),27 as well as other UN Standards such as Minimum Rules for the Administration of Juvenile Justice (Beijing Rules),28 for the Prevention of Juvenile Delinquency (Riyadh Guidelines),29 for Non-custodial Measures (Tokyo Rules),30 and for the Treatment of Women (p.30) Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules).31
When it comes to the content of the standards of review on interrogations, the key trend that emerges from the practice of the Committee is a recurring reference to the importance of fundamental safeguards applicable from the early stages of detention. In fact, for the Committee, “it is precisely while they cannot communicate with their families and lawyers that suspects are most vulnerable to torture.”32
Though specifying that the list is not exhaustive, in its General Comment No 2, the Committee has acknowledged a number of “basic guarantees applicable to all persons deprived of liberty,” including, inter alia, maintaining an official register of detainees, the right of detainees to be informed of their rights, the right promptly to receive independent legal assistance, independent medical assistance, and to contact relatives; the need to establish impartial mechanisms for inspecting and visiting places of detention and confinement; and the availability to detainees and persons at risk of torture and ill-treatment of judicial and other remedies that will allow them to have their complaints promptly and impartially examined; to defend their rights; and to challenge the legality of their detention or treatment.33 With specific regard to interrogations, the Committee further recommended the audio and video recording of interrogations as a mandatory, standard, and systematic procedure,34 and defined it as a “new” and “effective” method of prevention of torture and other forms of ill-treatment.35
Another recurring topic highlighted by the Committee concerns the methods of interrogations. In this respect, the Committee clearly stated that interrogation methods contrary to the provisions of the Convention are to be prohibited and (p.31) never used by States parties under any circumstances.39 It has, for example, strongly criticized the interrogation techniques used by Israel40 and by the United States within the CIA’s secret detention and interrogation program,41 and condemned interrogation rules defining interrogation techniques in vague and general terms.42 It also took a clear stance against methods, such as sleep deprivation;43 sensory deprivation;44 stress positions;45 sexual humiliation; “waterboarding”; using dogs to induce fear that constitutes torture or cruel, inhuman, or degrading treatment or punishment in all places of detention under its de facto effective control;46 as well as for the exposure to sudden temperature changes;47 and the use of a blindfold.48 Similarly, the Committee has criticized the practice of holding suspects in separation—in conditions of isolation resembling those of solitary confinement—during significantly longer periods for interrogation purposes.49
Most recently, the Committee has also explicitly urged States to “improve methods of criminal investigation to end practices whereby confessions are (p.32) relied on as the primary and central element of proof in criminal prosecution, in some cases in the absence of any other evidence.”50
The departure from a confession-oriented interrogation often also implies a “change of mindset.”51 Hence, adequate and regular training for law enforcement and other personnel involved in the questioning is critical in the implementation of such methodology and, ultimately, in the eradication of the perception that torture and coercion are the best ways to obtain confessions or other information.52 To this extent, in its most recent Concluding Observations, reading Article 11 in combination with Article 10, the Committee specifically recommended States to ensure that all law enforcement officers receive mandatory training emphasizing the link between non-coercive interrogation techniques, the prohibition of torture and ill-treatment, and the obligation of the judiciary to invalidate confessions obtained under torture.53
This short overview shows how in the past years, the Committee’s practice with respect to Article 11 has moved hand in hand with the international developments concerning interrogation standards, especially the growing awareness of the importance of legal safeguards in the early hours of deprivation of liberty, recently reaffirmed in the Human Rights Council Resolution 31/31.54
To conclude, despite the fact that Article 11 has until now not received much attention in the literature and seems—at first sight—to only establish a formal obligation to keep interrogation and detention rules under systematic review, over the years the CAT has given a broad interpretation to this provision, making it an important safeguard for the prevention of torture and other forms of ill-treatment. Acting as a guarantee of minimum standards of interrogation and detention, Article 11 could, in fact, represent a key provision for ensuring the implementation of the Convention’s preventive obligations, laying the basis for bridging the gap between law and practice.
In 2016, Juan Méndez, Manfred Nowak’s successor as UN Special Rapporteur on Torture, submitted to the UN General Assembly a report in which he advocated the elaboration and adoption of a Universal Protocol identifying a set of standards for non-coercive interviewing methods and procedural safeguards that ought, as a matter of law and policy, be applied at a minimum to all interviews by law enforcement officials, military and intelligence personnel, and other bodies with investigative mandates.55 His call for another legal instrument to prevent torture is based on his experience, which is similar to the experience of his predecessors, namely that the widespread use of torture during interrogation is based on a number of erroneous assumptions by law enforcement personnel, above all that “mistreatment and coercion are necessary to obtain confessions or elicit information.”56 He also recalled that “the popular belief that torture is an effective way of discovering the truth—or more effective than non-coercive interviewing methods—is perpetuated by misleading depictions in popular media.”57 These popular beliefs and assumptions are contrasted by scientific evidence that coercive methods of questioning produce false confessions and “can overcome one’s will to the point where he or she may doubt his or her memory, believe accusations made against him or her and confess owing to a conviction that no one will believe his or her innocence.”58 Professional interviewers repeatedly emphasize that “interviews are conducted much more effectively without resort to torture, ill-treatment or coercion.”59 Furthermore, he recalled that “torture only breeds more crime by fuelling hatred and a desire for vengeance against the perpetrators. Its use in Northern Ireland in the 1970s and during the so-called ‘war on terror’ has served as a recruiting tool for the groups against which it was perpetrated.”60
In developing his proposal for a Universal Protocol for interviews, Juan Méndez based himself on the PEACE model of interviewing adopted in 1992 in England and Wales.61 He summarized the main elements of a non-coercive and not confession-driven model of interviewing as follows:62 “Interviewers must, in particular, seek to obtain accurate and reliable information in the pursuit of truth; gather all available evidence pertinent to a case before beginning interviews; prepare and plan interviews based on that evidence; maintain a professional, fair and respectful (p.34) attitude during questioning; establish and maintain a rapport with the interviewee; allow the interviewee to give his or her free and uninterrupted account of the events; use open-ended questions and active listening; scrutinize the interviewee’s account and analyse the information obtained against previously available information or evidence; and evaluate each interview with a view to learning and developing additional skills.”
Along the lines of the current debate on interviewing methods in the literature and other UN and regional mechanisms, the CAT Committee has maintained that—together with the due process and procedural safeguards mentioned earlier—the existence of a non-accusatorial and non-confession-driven systems of investigation is a key element for the prevention of torture and other forms of ill-treatment during interrogations. To this extent, the CAT Committee has repeatedly urged States parties to “improve methods of criminal investigation to end practices whereby confessions are relied on as the primary and central element of proof in criminal prosecution, in some cases in the absence of any other evidence.”63
Based on the experience of Special Rapporteur on Torture Manfred Nowak, more than 90% of all cases of torture occur during interrogations by law enforcement officials for the purpose of extracting a confession. In many States of the world, torture is applied as a routine practice by the police against persons suspected of having committed a criminal offense. Although torture is one of the most severe, violent, and brutal human rights violations and a crime under international law, absolutely prohibited under all circumstances, most perpetrators of torture among the police, military, and intelligence services lack any feeling of guilt or the conviction that they have done something wrong. When a crime has been committed, strong pressure is exercised by prosecutors, judges, politicians, the media, and the public on the police to “solve” this crime by finding the culprit. In most countries, the police is poorly educated; not well paid; corrupt; and lacks the knowledge, skills, and access to more sophisticated methods of police investigations and of establishing the truth, including DNA analysis or even fingerprints. In most systems of criminal justice, confessions are still regarded as the most important evidence to convict a suspected criminal. That is why the police is primarily searching for a person who looks suspicious (often from among the poor, homeless, minorities, and those with a previous criminal record), and then arrests this person for the sole purpose of extracting a confession. If the suspect immediately confesses, usually no torture is being applied. If the suspect does not wish to confess and to “cooperate,” more coercive interrogation methods are applied that quickly amount to physical and mental torture. As soon as the suspect has signed a confession, he or she is sent to a pre-trial (p.35) detention facility where it may take several years until the person is convicted by a criminal court on the basis of a confession extracted by the police a long time ago. At this stage, it is usually impossible for the accused to prove his or her innocence. In many countries, pre-trial detainees are not separated from convicted prisoners, and prison officials make no distinction between both categories. As soon as suspects have confessed before the police, they are considered by prison officials, fellow detainees, and even by the public as convicted criminals. In his capacity as UN Special Rapporteur on Torture, Manfred Nowak has met many pre-trial detainees who had never seen a judge and were of the opinion that they had been already “sentenced” by the police. It is the malfunctioning of the criminal justice system in the majority of countries in our contemporary world that is responsible for the widespread and routine practice of torture.
We usually look down with contempt and disgust on the medieval practices of torture when such methods of extracting confessions were still legal under European criminal procedure codes.64 We consider it as a progress of civilization in the times of Enlightenment and rationality that torture was abolished from criminal law on the basis of growing scientific evidence that torture was not a proper method to establish the truth. However, we seem to overlook that the main rationale for the widespread practice of torture in the 21st century is exactly the same as in medieval times. There is a widespread belief among police officials and other stakeholders in the administration of criminal justice, but also among the public at large, that torture is an effective means of establishing the truth and obtaining confessions. These misleading assumptions are nurtured by the media, by popular series that depict torturing criminal police investigators as heroes, and by politicians who consider torture as the “lesser evil” in the fight against organized crime and terrorism. In reality, most victims of torture are, however, not the bosses of organized crime gangs or international terrorists, but poor people suspected of minor crimes who lack the means to bribe officials or to pay for a lawyer.
Since coercive means of interrogation with the aim of extracting a confession are the main reason for the widespread practice of torture around the world, it is time to develop a theory of change by addressing the root causes of torture. Article 11 CAT is a useful provision as it requires States parties to systematically review their interrogation rules, instructions, methods, and practices. Unfortunately, the potential of this important provision for the prevention of torture has long been underestimated. In recent years, the Committee against Torture made, however, increasingly use of this provision and urged governments to move away from a confession-oriented practice of interrogations to a non-coercive and truth-oriented way of questioning suspects and witnesses. Police officials need to understand that interviews are conducted much more effectively without resort to torture and coercion, and judges need to accept that there are other and often much-better means of evidence than confessions. Most importantly, the public, politicians, and the media need to change their attitude toward violence and torture: violent, brutal, and torturing police officers should no longer be depicted as heroes who effectively (p.36) protect ordinary citizens against organized crime and terrorism, but as criminals who contribute to an increasing climate of violence and inhuman behavior.
Juan Méndez’ call for a Universal Protocol for non-coercive interviews is an important initiative as it tackles the root causes of torture in the 21st century. Police interrogations shall no longer be aimed at obtaining a confession, but at establishing the truth. Leading questions should be replaced by open-ended questions. Interviewees shall not be intimidated, but treated in a professional, fair, and respectful manner. The presumption of guilt, which often leads interrogators, shall give way to the presumption of innocence, which suspects are legally entitled to. Most importantly, confessions shall be gradually replaced before the police and also in courts by other methods of evidence, including witness testimonies, video surveillance, DNA analysis, and similar forms of scientific and forensic evidence. If confessions are no longer considered as the “crown of evidence” by the courts, and if confessions extracted by torture are no longer admitted as evidence by the courts, as required by Article 15 CAT, then the most important incentive for torture could gradually disappear.
(1.) For the following, see Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture—A Commentary (OUP 2008) 66 ff. The current chapter also draws from the second edition, to be published in 2019 by Oxford University Press (edited by Moritz Birk, Giuliana Monina and Manfred Nowak).
(3.) ECtHR, Ireland v United Kingdom (1979-80) 2 EHRR 25; and more recently, Ireland v the United Kingdom (App no 5310/71) 20 March 2018.
(4.) See, in particular, European Commission of Human Rights (ECmHR), Opinion of 5 November 1969 in the Greek Case (1969) XII Yearbook 1; Opinion of 25 January 1976 in Ireland v United Kingdom (1976) XIX Yearbook 512.
(5.) See eg Pieter van Dijk, Godefridus JH Hoof and GJH Van Hoof, Theory and Practice of the European Convention on Human Rights (Martinus Nijhoff Publishers 1998); Christoph Grabenwarter, European Convention on Human Rights: Commentary (CH Beck 2014) 32 ff; William A Schabas, The European Convention on Human Rights: A Commentary (OUP 2015) 171 ff.
(6.) See UNSRT (Nowak), ‘Report of the Special Rapporteur on the question of torture’ (2005) E/CN.4/2006/6; Manfred Nowak, ‘Challenges to the Absolute Nature of the Prohibition of Torture and Ill-Treatment’ (2005) 23 Netherlands Quarterly of Human Rights 674; and ‘What Practices Constitute Torture? US and UN Standards’ (2006) 28(4) Human Rights Quarterly 809.
(7.) Austrian Supreme Court, Judgment of 20 May 1981, in 1981 EuGRZ 571.
(8.) General Comment No. 2 on the Implementation of Article 2 by States Parties CAT/C/GC/2 (2008) para 25.
(10.) Eg Taoufik Elaïba v Tunisia, No. 551/2013, CAT/C/57/D/551/2013 (6 May 2016); Hilda Mariolyn Hernández Colmenarez and Francisco Arturo Guerrero Sánchez v Bolivarian Republic of Venezuela, No. 456/2011, CAT/C/54/D/456/2011 (15 May 2015).
(11.) Eg Patrice Gahungu v Burundi, No. 522/2012, CAT/C/55/D/522/2012 (10 August 2015); HB v Algeria, No. 494/2012, CAT/C/55/D/494/2012 (6 August 2015).
(12.) Eg X v Burundi, No. 553/2013, CAT/C/55/D/553/2013 (10 August 2015) para 7.6; EN v Burundi, No 578/2013, CAT/C/56/D/578/2013 (25 November 2015) para 7.6; Saidi Ntahiraja v Burundi, No. 575/2013, CAT/C/55/D/575/2013 (3 August 2015) para 7.9; Patrice Gahungu v Burundi (n 11) para 7.7; HB v Algeria (n 11) para 6.6; Nouar Abdelmalek v Algeria, No. 402/2009, UN Doc CAT/C/52/D/402/2009 (23 May 2014) para 11.6.
(13.) Abdulrahman Kabura v Burundi, No. 549/2013, CAT/C/59/D/549/2013 (11 November 2016) para 7.8; Déogratias Niyonzima v Burundi, No. 514/2012, CAT/C/53/D/514/2012 (21 November 2014) para 3.4; Boniface Ntikarahera v Burundi, No. 503/2012, CAT/C/52/D/503/2012 (12 May 2014) para 6.6.
(14.) eg Saadia Ali v Tunisia, No. 291/2006, CAT/C/41/D/291/2006 (21 November 2008) para 15.6; Kostadin Nikolov Keremedchiev v Bulgaria, No. 257/2004, CAT/C/41/D/257/2004 (11 November 2008) para 9.5; Ali Ben Salem v Tunisia, No. 269/2005, CAT/C/39/D/269/2005 (7 November 2007) para 16.6.
(15.) Among many others, see eg Concluding Observations: Andorra, CAT/C/AND/CO/1 (2013) paras 9, 19; Concluding Observations: Bulgaria CAT/C/BGR/CO/4-5 (2011) paras 23, 24; Concluding Observations: Belarus CAT/C/BLR/CO/4 (2011) paras 6–8, 13.
(18.) Eg Concluding Observations: Honduras, CAT/C/HND/CO/1, (2009) para 14; Concluding Observations: Cuba, CAT/C/CUB/CO/2 (2012) para 11.
(19.) Eg Concluding Observations: Mexico, CAT/C/MEX/CO/5-6, (2012) para 21; Concluding Observations: Netherlands CAT/C/NLD/CO/5-6 (2013) para 14; Concluding Observations: Israel, CAT/C/ISR/CO/5 (2016) para 28.
(20.) Eg Concluding Observations: Norway, CAT/C/NOR/CO/5 (2008) para 23; Concluding Observations: The Philippines, CAT/C/PHL/CO/2 (2009) para 19.
(21.) Eg Concluding Observations: Romania, CAT/C/ROU/CO/2 (2015) para 14; Concluding Observations: Russia CAT/C/RUS/CO/5 (2012) para 22.
(24.) Chris Ingelse, United Nations Committee Against Torture: An Assessment (Martinus Nijhoff Publishers 2001) 247; J Herman Burgers and Hans Danelius, The United Nations Convention against Torture—A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff Publishers 1988) 143.
(25.) Abdulrahman Kabura v Burundi (n 13) para 7.8; Déogratias Niyonzima v Burundi (n 13) para 8.8; Boniface Ntikarahera v Burundi (n 13) para 6.6; Hernández Colmenarez and Guerrero Sánchez v Bolivarian Republic of Venezuela (n 10) para 6.7.
(26.) Concluding Observations: Belgium, CAT/C/BEL/CO/3 (2014) para 11; Concluding Observations: Bolivia, CAT/C/BOL/CO/2 (2013) para 9.
(27.) GA Res 70/175 (17 December 2015) (the Mandela Rules).
(28.) GA Res 40/33 (1985).
(29.) GA Res 45/112 (14 December 1990).
(30.) GA Res 45/110 (14 December 1990).
(31.) GA Res 65/229 (21 December 2010).
(32.) Ali Aarrass v Morocco, No. 477/2011, CAT/C/52/D/477/2011 (19 May 2014) para 10.3.
(34.) eg Concluding Observations: Liechtenstein, CAT/C/LIE/CO/4 (2016) para 12.
(36.) Hernández Colmenarez and Guerrero Sánchez v Bolivarian Republic of Venezuela (n 10) para 6.7; E.N. v Burundi (n 12) para 7.6; X v Burundi (n 12) para 7.6; Patrice Gahungu v Burundi (n 11) para 7.7; Saidi Ntahiraja v Burundi (n 12) para 7.9; Ali Aarrass v Morocco (n 32) para 10.3; HB v Algeria (n 10) para 6.6; Nouar Abdelmalek v Algeria (n 12) para 11.6.
(37.) In the State reporting procedure, fundamental legal safeguards are also part of the thematic issues on which the Committee focuses its follow-up procedure to Concluding Observations; see also CAT, ‘Report of the Committee Against Torture Fifty-First Session (28 October–22 November 2013) Fifty-Second Session (28 April–23 May 2014)’ A/69/44 (2014) paras 76–78. For an overview of the CAT Committee’s practice see Nowak, Birk, Monina (n 1).
(38.) Report on Nepal Adopted by the Committee Against Torture under Article 20 of the Convention A/67/44 (2012) Annex XIII; and Summary Account of the Results of the Proceedings Concerning the Inquiry on Lebanon A/69/44 (2014) Annex XIII para 36.
(41.) On the CIA interrogation program, see also US Senate Select Committee on Intelligence, ‘Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program’ (2014); Special Rapporteur on Countering Terrorism (Martin Scheinin); the Special Rapporteur on Torture (Manfred Nowak); the Working Group on Arbitrary Detention (WGAD; Shaheen Sardar Ali); and the Working Group on Enforced or Involuntary Disappearances (Jeremy Sarkin), ‘Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism’ A/HRC/13/42 (2010).
(42.) Concluding Observations: USA, CAT/C/USA/CO/2 (2006) para 24; Israel (n 19) para 30; see also WGAD (Leila Zerrougu), Special Rapporteur on the independence of judges and lawyers (Leandro Despouy), the Special Rapporteur on torture (Manfred Nowak), the Special Rapporteur on freedom of religion or belief (Asma Jahangir), and the Special Rapporteur on Special Rapporteur on the right to physical and mental health (Paul Hunt) ‘Situation of Detainees at Guantánamo Bay’ E/CN.4/2006/120 (2006) para 46.
(48.) ibid para 48.
(49.) Israel (n 19) para 24; Cuba (n 18) para 22; on the use of solitary confinement and other forms of isolation with a view to obtaining a confession in questioning, see also SRT (Méndez) Interim Report A/71/298 (2016) para 46; SRT (Méndez) Interim Report A/66/268 (2011) paras 44, 60.
(50.) Concluding Observations: Lithuania, CAT/C/LTU/CO/3 (2014) para 22; Concluding Observations: Syria, CAT/C/SYR/CO/1 (2010) para 33; Concluding Observations: Moldova, CAT/C/MDA/CO/2 (2010) para 21; Concluding Observations: Chad, CAT/C/TCD/CO/1 (2009) para 29.
(51.) Julia Kozma and Asbjørn Rachlew, ‘Combating Torture During Police Custody and Pre-Trial Detention’ Conference hosted by the Danish Chairmanship of the Committee of Ministers of the Council of Europe (22-23 March 2018) 14.
(52.) See also Richard Carver and Lisa Handley, Does Torture Prevention Work? (Liverpool University Press 2016) 98.
(53.) Concluding Observations: Afghanistan, CAT/C/AFG/CO/2 (2017) para 45(c).
(54.) Human Rights Council Res 31/31 (24 March 2016). See also among others Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International Law (3rd edn, OUP 2009) 450; ICJ, ‘Law and the Prevention of Torture’ (1973) 11 The Review 23; Amnesty International, ‘12-Point Programme for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by Agents of the State’ (2005); Carver & Handley (n 52) 67; SRT (Méndez) (n 49) para 60; CTI, UNCAT Implementation tool: Safeguards in the first hours of police detention (2017); and Kozma and Rachlew (n 51); see also CPT, ‘CPT Standards: Developments Concerning CPT Standards in Respect of Police Custody’ CPT/Inf(2002)15 (2002) para 40.
(56.) ibid para 9.
(57.) ibid para 17.
(58.) ibid para 19.
(59.) ibid para 23.
(60.) ibid para 22.
(61.) ibid para 47. PEACE stands for preparation and planning, engage and explain, account, closure, and evaluation.
(62.) ibid para 48.
(63.) Concluding Observations: Lithuania, UN Doc CAT/C/LTU/CO/3 (2014) para 22; CAT/C/KAZ/CO/3, para 23; Concluding Observations: Syria, UN Doc CAT/C/SYR/CO/1 (2010) para 33; Concluding Observations: Moldova, UN Doc CAT/C/MDA/CO/2 (2010) para 21; Concluding Observations: Chad, UN Doc CAT/C/TCD/CO/1 (2009) para 29; Concluding Observations: Uzbekistan, UN Doc CAT/C/UZB/CO/4 (2013) para 16; CAT/C/UKR/CO/6, para 22(b).
(64.) Eg John H Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (University of Chicago Press 2006); George Riley Scott, A History of Torture (Routledge 2015).