Authored by Aashi Singh, penultimate-year law student at Jindal Global Law School, Delhi.
The grave human rights violations in the long-standing Israel-Palestine conflicts project one of the many manifestations of the global failure to universally implement warfare and anti-torture principles laid out in numerous international instruments. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”) is the primary instrument introduced to specifically target torturous acts perpetrated within the territorial limits of its acceding states. I argue that the convention’s shortfall in implementation arises largely from the conceptual fallacy of its foundational provision, Article 1(1), which defines Torture. This flawed base renders the entire convention repugnant in governing and addressing the current conflict-ridden states.
In the context of the Israel-Palestine conflict, a shift in Israel’s military measures has been highlighted by Jasbir, where the Palestinians are no longer subjected to an evident form of violence, such as killing or infliction of deadly injuries. The measures now subject them to ‘being maimed’ through methods that focus on deterring them from future retaliation and to impose a system of perpetual subordination over the population. These methods, that are portrayed as a new ‘humanitarian’ approach, incorporate ‘shoot to cripple’ [targeting victims’ vital organs or limbs] and ‘roof knock’ [bombing infrastructures as a warning and to indicate evacuation] techniques. Though these measures equally constitute a direct and significant violation of human rights values and integrity, they fail to be recognized as torture and violent actions in the traditional, obsolete perception maintained by International law to date. Additionally, these decades-long violations have been perpetuated under the claim of exception as ‘special measures’ by Israel in its dialogues reported to the UNCAT forum.
The paper, therefore, delves deep into the provision of Article 1(1) to highlight the inherent problematic and flawed conception of torture. It argues for a serious reconsideration of this provision if the international law agencies aim to constructively prevent torturous acts against humanity. ‘Torture’ has been defined in the UNCAT as intentional actions that inflict severe mental or physical pain with direct or indirect involvement of a state official to obtain information, to punish, intimidate, or for any reason based on discrimination. However, actions carried out in the pursuit of lawful sanctions are made an exception to this.
This understanding of Torture not only deviates from the principles followed by some of the preceding conventions but continues to uphold anachronistic perceptions. The threshold of actions that qualify as torture has been raised to the extent that the convention itself becomes a futile attempt of international law. In addition, the elements of the definition carry wide connotations which give rise to unwarranted subjectivity in its governance and adjudication process, leaving scope for evident widespread misuse by the member states. The narrowed scope of definition further fails to extend protection against all possible instances of torture, hindering the effective implementation of the convention.
What constitutes ‘Torture’ – Severe Bodily Injury or Inhumane Treatment?
The convention classifies only ‘severe mental or physical pain or suffering’ as torture, whereas “other” forms of ‘cruel, inhumane or degrading treatment’ are categorized under Article 16. The UNCAT’s definition, when contrasted with the definition of torture given in the Inter-American Convention to Prevent and Punish Torture (IACPPT), reveals an additional threshold of severity in the harm produced, which was intentionally avoided in the latter’s case.
Creating a distinction amongst the actions to classify them under Articles 1 and 16 raises serious doubts about the UNCAT’s approach, wherein severe bodily harm is given a higher pedestal than the other forms of damage. The focus on serious bodily injury shifts the lens from action-based to consequence-based judgment, giving priority to examining the results rather than targeting the actions perpetuating torture. The obsession with investigating the visible mental and physical consequences works in a rather post-facto manner, since only when such repercussions could be anticipated will the action be considered torture.
This conception has been borrowed from the European Convention on Human Rights (ECHR), where a clear distinction has been maintained between an ill-treatment and Torture. Article 3 of ECHR attaches a special stigma to inhumane treatment by adding ‘very serious and cruel suffering’ for such action to constitute a torturous act. The ECHR forum further upheld the requirement of ‘a minimum level of severity’ to be present in a tortious act. In a detention case, the court held the officials’ actions to violate Article 3 since there was clear evidence of ‘severe physical and mental suffering’ inflicted with long-lasting marks and effects. Thus, the threshold for Torture, as laid by ECHR and principally followed by UNCAT, requires the actions to inflict severe as well as evident substantial bodily harm on the victim.
This approach desensitizes the very issue it aims to target by centring the entire focus on measuring and evaluating the conspicuous body ‘marks. Behaviour in the form of verbal abuse or degrading and inhumane manner harms the sense of dignity in an individual, leaving imprints in a rather psychological form that can be treated and are reversible. However, it’s the violation of the individual’s inherent right to bodily autonomy and value as a human being that should be perceived as a torturous act. This is also the understanding of torture as per Article 7of the International Covenant on Civil and Political Rights 1966 (ICCPR) which treats both torture and inhumane, degrading treatment equally by employing the word ‘or’. Moreover, Article 10(1) mandates the treatment of any individual with humanity and respect for their inherent dignity.
The seriousness of the issue arising from this binary classification is manifested in the manner actions are dealt with. UNCAT intensifies the divide between Torture and Degrading, Inhumane treatment by imposing positive obligations on the member states to take prohibitive, preventive, and prosecutive measures against tortious acts, governed by articles 3 to 15. On the other hand, in the case of degrading treatment, the states are governed by articles 10 to 13 that only requires them to take actions in the form of preventive and prosecutive measures.
It is interesting to note that Article 13, which gives remedial rights to the victims in the form of procedural safeguards, applies to both Torture and Degrading treatment. Whereas Article 14, which gives substantive rights, including the right to compensation and rehabilitation, applies solely to acts that constitute Torture as per the convention. The latter’s case establishes an inherent right against torture by mandating the incorporation of anti-torture principles within domestic legislation of the member states, while the former provision only requires procedural framework to be followed by the state. Thus, we see a clear distinction in the manner the convention treats actions based on the level of severity and their consequences.
Additionally, this differentiation leaves an unfettered scope for adjudicating forums to decide whether a particular state action falls under ‘severe’ bodily harm or inhuman treatment. The assessment is relative, and the forum needs to decide based on the factual circumstances of each case, bringing in the scope of subjectivity. In the case of Ireland v UK, five punishment techniques were challenged on the grounds of being torturous. Though the bench acknowledged the subjection to loud noise and punishment of wall standing to cause mental and physical suffering, it stated that such punitive measures did not meet the threshold of causing ‘actual bodily injury’. The actions were thereby held to constitute ‘degrading treatment’ rather than ‘torture’ owing to the lesser severity.
Following this line of understanding, bodily harm needs to be classified as ‘severe’ besides ‘substantial’ to become torture in the eyes of UNCAT, when instead, degrading and inhumane treatment violating the right to human dignity and integrity should be the determining factor. Besides insensitively dealing with such actions, this approach also opens the space for subjectivity and a limitless ground for interpretation, allowing potential misuse in the adjudication of such matters.
Lawful Sanctions- an Ambiguous Justification
The definition of Torture in the UNCAT excludes suffering resulting from the actions taken in pursuance of the domestic laws in force, when ironically Article 2.2 strictly provides for no justification for torture, regardless of any condition the state finds itself in. Here, the convention deviates from the absolute anti-torture principle laid in the ECHR, which mandates no derogation even in situations of public emergency and fight against terrorism, organised crime, influx of migrants or asylum-seekers, regardless of a person’s conduct. It firmly rejects punishments contrary to the anti-torture principle, irrespective of their deterring effect against any individual. UNCAT, on the other hand, creates a loophole in its governance by carving out an exception that has become one of the major reasons for rampant misuse by states today.
Additionally, this convention fails to define the term ‘lawful sanctions’ to delineate the extent to which a state’s lawful actions would be acceptable and proportionate. The lack of guidelines gives a wide and flexible degree of justification for public authorities to exercise unfettered penal powers. The subjectivity allows its member states to impose penal measures that could be extremely torturous or disproportionate to the offense, and yet fall beyond the protection against torture. This gives rise to non-uniform measures taken by the member states on a global scale. The death penalty, for instance, remains a debatable issue as a lawful measure worldwide. In such circumstances, only the globally accepted and objectively standard legal sanctions should be allowed as an exception to torture within Article 1.
Besides regulating the degree of sanctions, the proportionality of penalties with respect to the concerned offense also needs to be considered. The 1997 Report submitted by Rodley also argued for the necessity of legal sanctions to align with the widely accepted practices of the international community to maintain a standard punitive measure. The report referred to the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) as the guiding principle for sanctions imposed on offenses against prison discipline. Rule 3 lays down the principle of proportionality to be considered while imposing penalties that should not aggravate the inherent suffering. UNCAT thus needs to incorporate a framework for legal sanctions outlining the globally standard punitive measures and the principle of proportionality in their application for sanctions to qualify as an exception.
State Actor- the Sole Perpetrator of Torture?
The definition of Torture in UNCAT only covers actions inflicted by or at the instigation of or with the consent of a public official or other person acting in an official capacity. This understanding deviates from the definition of torture given under Article 7 of ICCPR, which does not restrict the scope of potential subjects who can perpetrate torturous acts, and thus it applies against both state and private individuals. The state-centred approach taken by UNCAT projects the State figure as the only capable saviour, which in turn takes away the convention’s power to prevent tortious actions within the territorial bounds. This is certainly a misguided step and one of the huge drawbacks to its efficacy, as it misses other potential instances of torture cases and opens room for misuse.
Torturous treatment can be meted out by a private individual or a group of individuals in the form of hate crimes motivated by racial, social, or sexual orientation. In fact, as Zartner argues, states can still be bound to comply with UNCAT requirements as a diplomatic mechanism to achieve foreign policy goals by building an acceptable reputation in the international sphere. However, there is no such assurance on the part of private individuals, and if a particular state fails to include offenses that constitute torture in its penal legislation, there will be no remedies available to the victims. The ECHR takes a different and better approach in this aspect by at least holding member states responsible for the acts of their private individuals.
Additionally, the focus on state officials’ direct or indirect involvement becomes a matter of adjudication that opens the gateway to possible misuse through procedural loopholes. There can be instances of government aid in a financial manner or condoning of offenses through lenient penalties or abstaining from taking measures against such private perpetrators. These cases can be excluded from the UNCAT’s protection by conveniently arguing the lack of evident instigation or consent on the state’s part. The convention has therefore missed the mark it could have achieved by ‘penetrating’ into the state to enforce uniform protection against torturous acts committed by any entity within its territorial limits.
Conclusion
The case of Syria-Netherlands before the International Court of Justice that finally challenged Syria’s multiple and prolonged violations of UNCAT is one of the manifestations of the failure of this convention in timely and effectively preventing torture. The paper argued that the definition of Torture under Article 1 is a crucial reason behind this failure. In doing so, the paper dissected this definition to highlight three major shortfalls of the provision: in erroneously conceptualising torture, providing an ambiguous exception to such actions, and narrowing the scope for application against all potential instances of torture.
The definition needs a serious reconsideration by the drafters to make the anti-torture principle absolute and stringent against states. The fetishism with quantifiable injury, which additionally needs to be severe, sets the threshold to the point where human rights violations fail to receive immediate or any attention from the convention. The current perception of Torture thus needs to be broadened to include intentional damage or injury caused to an individual’s right to human dignity through inhumane and degrading treatment.
The exception of lawful sanctions has become the source of rampant misuse by states in arguing their case before the adjudicatory forums. This drawback has severely affected the absolute anti-torture principle maintained by international law. The drafters need to remove this exception or, at the minimum, define the term ‘legal sanctions’ to outline a globally-accepted and objective list of proportionate sanctions that could find solace under the exception.
The third suggestion in redrafting the definition would be to discard the express mention of ‘public official’ that treats state agencies as the only potential perpetrator of tortious acts, excluding the cases of torture inflicted by private entities without explicit or any state aid. These shortfalls of the foundational provision of Article 1(1) have rendered the convention inefficacious in addressing the current and continuing human rights violations perpetrated by torturous action in warfare situations. The UNCAT, as an instrument, stands as a discrete step to specifically target tortious actions at an international level, unlike its precursory conventions. Therefore, it demands a solid foundation, one that is based on the liberal and inclusive understanding of torture itself.