14HHRJ87 Nagan
14HHRJ87 Nagan
14HHRJ87 Nagan
Winston P. Nagan*
Lucie Atkins**
Man has the capacity to push aside from his mind unpleasant
problems.
-Sean MacBride (1977)'
This Article presents a comprehensive review of world torture and the ef-
forts to eradicate it through both official and unofficial strategies of inter-
vention, with special emphasis on the legal strategies. This Article recog-
nizes the complexity of these strategies as they form a vast number of initia-
tives emerging from various elements of the international community. Part
II of the Article touches on matters of definition and legal history. This en-
ables the examination of the inherent characteristics of torture as they im-
pact issues of governance, social control, and principles of basic respect and
human dignity. Part III examines the efforts to universally proscribe torture
in international law. It provides an overview of critical provisions of the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. Part IV describes and critically evalu-
* Sam T. Dell Research Scholar, Professor of Law, Director, Institute for Human Rights, Peace and De-
velopment, Levin College of Law, University of Florida, Fellow of the World Academy of Art and Sci-
ence. The author would like to thank Judith M. Nagan for critically evaluating the Article.
** Research Associate, Institute for Human Rights, Peace and Development, Levin College of Law,
University of Florida; SJ.D. Candidate, Central European University.
1. ALEX P SCHMID, PROJECT INTERDISCIPLINAIR ONDERZOEK NAAR OORZAKEN VAN MENSEN-
RECHTENSCHENDIGEN (P.I.O.O.M.) RESEARCH ON GROSS HuMAN RIGHTS VIOLATIONS (1989).
2. Id. Mr. Wiesel is a survivor of the Holocaust and a Nobel Prize winner.
HarvardHuman RightsJournal / Vol. 14
3. See, e.g., TR. Gurr The PoliticalOrigins of State Violence and Terror: A Theoretical Analysis, reprintedin
M. STOHL & GEORGE A. LOPEZ, GOVERNMENT VIOLENCE AND REPRESSION: AN AGENDA FOR Rn-
SEARCH, (M. Stohl & George A. Lopez eds., 1986); M. STOHL & GEORGE A. LoPEz, THE STATE AS ThR-
RORIST: THE DYNAMICS OF GOVERNMENTAL VIOLENCE AND REPRESSION (1984); A.P. SCHMID ET AL.,
POLITICAL TERRORISM: A NEw GUIDE TO ACTORS, AUTHORS, CONCEPTS, DATA BASES, THEORIES AND
LITERATURE 58-59 (1988); David Claridge, Know Thine Enemy: UnderstandingState Terrorism, P.LO.O.m.
NEWSLETTER, Winter 199912000. For the leading study on the politics of torture, see ALEX P. SCHMID,
THE POLITICS OF PAIN: TORTURERS AND THEIR MASTERS (1985).
4. See generally Wayne C. Booth, Individualsand the Mystery of the Social Self, or Does Amnesty Have a Lcg
to Stand On?, reprintedin FREEDOM AND INTERPRETATION: THE OXFORD AMNESTY LECTURES 1992 at
69-101 (BarbaraJohnson ed., 1993) (presenting the most penetrating and insightful analysis of individ-
ual identity, social identity, universal obligation, and the issue of torture),
5. E.g., NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW (1987);
AMNESTY INTERNATIONAL, TORTURE INTHE EIGHTIES (1984); SCHMID, supra note 1.
6. AFRICA 1999: HIGHLIGHTS OF AMNESTY INTERNATIONAL REPORT 1999 COVERING EVENTS FROM
JANUARY TO DECEMBER 1998, at http:llwww.amnesty.orglailib/aireport/ar99/afr.htm (1999).
2001 I The InternationalLaw of Torture
7. MIDDLE EAST & NORTH AFRICA 1999: HIGHLIGHTS OF AMNESTY INTERNATIONAL REPORT 1999
COVERING EVENTS FROM JANUARY TO DECEMBER 1998, at http:/lwww.amnesty.org/ailib/aireportlar99/
mde.htm (1999).
8. EUROPE 1999: HIGHLIGHTS OF AMNESTY INTERNATIONAL REPORT 1999 COVERING EVENTS
FROM JANUARY TO DECEMBER 1998, at http:llwww.amnesty.org/ailib/ireportlar99/eur.htm (1999).
9. AMERICAS 1999: HIGHLIGHTS OF AMNESTY INTERNATIONAL REPORT 1999 COVERING EVENTS
FROM JANUARY TO DECEMBER 1998, at http://www.amnesty.org/ailiblaireportlar99/amr.htm (1999).
10. ASIA PACIFIC 1999: HIGHLIGHTS OF AMNESTY INTERNATIONAL REPORT 1999 COVERING
EVENTS FROM JANUARY TO DECEMBER 1998, at http:llwW.aMnesty.org/ailib/aireport/ar99/asa.htm
(1999).
11. FACTS AND FIGURES ABOUT AMNESTY INTERNATIONAL AND ITS WORK FOR HUMAN RIGHTS, at
http:l/www.web.amnesty.org/web/aboutai.nsf (last visited on Dec. 2, 2000).
12. See generally UN COMMITTEE AGAINST TORTURE MUST CONDEMN INCREASING INSTITUTIONAL-
IZED CRUELTY IN USA, Amnesty International Public Document, Al Index AMR 51/68/2000 News
service Nr. 84, at http:llwww.web.amnesty.org/ai.nsf/index/AMR510682000 (Sept. 5, 2000) (establish-
ing that "[s]ince the United States ratified the Convention Against Torture [infra note 441, in October
1994, its increasingly punitive approach towards offenders has continued to lead to practices which facili-
tate torture or other forms of ill-treatment prohibited under international law .... The spiraling prison
and jail population ... and the resulting pressures on incarceration facilities have contributed to wide-
spread ill-treatment of men, women and children in custody. Police brutality is rife in many areas, and it
is disproportionately directed at racial and ethnic minorities." This suggests that even such countries as
the United States (a country with a relatively "clean record" as to gross human rights violations) are still
confronted by the problem of torture.).
HarvardHuman RightsJournal / Vol. 14
13. See generally Case Concerning Barcelona Traction, Light and Power Co. (Belgium v. Spain) 1972
I.CJ 3, 32 (Feb. 5) (establishing that sufficient legal basis exists to reach the conclusion that all crimes
against humanity function erga omnes, the International Court ofJustice recognized, "[t]he prohibition in
international law of acts, such as those alleged in this case, is an obligation erga omnes which all states
have a legal interest in ensuring is implemented.").
14. See M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 489
(1992) (stating that torture is an act violating international law and represents an infringement of an i
cogens norm, which is defined as a norm whose importance rises to a level that is acknowledged to be
superior to and overriding of any other principle).
15. Thomas M. Franck, The Emerging Right To DemocraticGovernance, 86 AM. J. INT'L. L. 46, 46 (1992)
(quoting the former U.S. Secretary of State, James A. Baker III, who said, "legitimacy in 1991 flows not
from the barrel of a gun but from the will of the people.").
16. Universal Declaration of Human Rights, adoptedDec. 10, 1948, G.A. Res. 217A (Ill), U.N. Doc.
A/810, at 71 (1948) [hereinafter Universal Declaration of Human Rights] (stipulating that it is "[t]he
will of the people (that] shall be the basis of the authority of government.").
17. See Philip Alston, Peace as a Human Right, 11 BULL. PEACE PROPOSALS J. 126, 319-30 (1981), re-
printedin RICHARD PIERRE CLAUDE & BURNS H. WESTON, HUMAN RIGHTS IN THE WORLD COMMIU-
NITY: ISSUES AND ACTION 198-207 (1992).
2001 / The InternationalLaw of Torture
18. See FAcTS AND FIGURES ABOUT AMNESTY INTERNATIONAL AND ITS WORK FOR HUMAN RIGHTS,
at http://www.web.amnesty.org/web/aboutai.nsf (last visited on Dec. 2, 2000) (noting that other practices
used by the state to intimidate or sometimes even eliminate its enemies or non-enemies are the follow-
ing: (1) extrajudicial executions (in 1998 carried out in forty-seven countries around the world);
(2) disappearances (in 1998 people disappeared or remained disappeared from previous years in thirty-
seven countries); (3) imprisonment of prisoners of conscience (confirmed or possible prisoners in con-
science were in 1998 held in seventy-eight countries); (4) unfair trial (political prisoners received unfair
trails in 1998 in thirty-five countries); (5) detention without charge or trial (in 1998 people were arbi-
trarily arrested and detained or in detention without charge or trial in sixty-six countries); (6) imposition
of death penalty (executions were carried out in thirty-six countries in 1998 while prisoners were under
death sentence in at least seventy-seven countries)).
19. See EH. Bradley, Some Remarks on Punishment, INT'L J. OF ETHICS, Apr. 1894, reprinted in COL-
LETED ESSAYS (1958), cited in H. LAUTERPACHT, .ANINTERNATIONAL BILL OF RIGHTS OF MAN (1945)
(noting that the philosophical justification for state absolutism is often tied to the idealistic school of old
philosophers, "[t]he rights of the individual are not worth serious criticism ....The welfare of the com-
munity is the end and is the ultimate standard. And over its members the right of the moral organism is
absolute. Its duty and its right is to dispose of these members as seems to it best. Its right and its duty is,
in brief, to be a Providence to itself.").
20. See id.
HarvardHuman RightsJournal / Vol. 14
21. See John J. Baeza & Brent E. Turvey, Sadistic Behavior: A Literature Review, Knowledge Solutions
Library, Electronic Publication, (May 1999) (exploring the close relation that exists between torture and
sadism), at http://www.corpus-delicti.cosadistic_behavior.html.
22. SeeJoHN H. LANGBEIN, TORTURE AND THE LAW OF PROOF: EUROPE AND ENGLAND IN THE AN-
ENT REGIME 3-72 (1977) (providing a comprehensive discussion about Roman-canon statutory system
of proofs, including the description of methods used for "judicial torture" defined as, "the use of physical
coercion by officers of the stare in order to gather evidence for judicial proceedings." Id. at 3).
23. See STEDmAN'S MEDICAL DIcrIONARY, LAwYER's EDITION 837 (5th unabr ed. 1982) (defining
masochism as a "[plassive algolagnia, a form of perversion in which sexual pleasure is heightened in the
person who is beaten and maltreated; the opposite ofsadism").
24. See SCHMID, supra note 1, at 136 (describing the use of torture to achieve goals of ideological pu-
rity within totalitarian regimes).
2001 / The InternationalLaw of Torture
25. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
G.A. Res. 39/46, 39 U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39146 (1984) (entered
into force June 26, 1987) [hereinafter Convention Against Torture] (specifically excluding from the
definition of torture "pain or suffering arising only from, inherent in or incidental to lawful sanctions."
Id.).
26. Id.
27. See SCHMID, supra note 1, at 25-26 (defining torture to include killings, summary executions,
killing in presumptive armed conflicts, fataltorture, killing by abuse of power in a legal process, killing
by death squad, genocide, detained-disappeared and torture).
28. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis
Powers and Charter of the International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S.
279 [hereinafter Nuremberg Charter].
HarvardHuman RightsJournal / Vol. 14
29. See eg., id.; S.C. Res. 808, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/808 (1993); S.C. Res. 955,
U.N. SCOR, 49th Sess., U.N. Doc. S/RES/955 (1994); Cf. Report of the Secretary Generalpursuanttopara-
graph 2 of Security Council resolution 808, U.N. Doc. S/25704, (1993) (arguing that crimes against human-
ity do not draw their legality only from international law treaties or other written international instru-
ments, but are also established under international customary law, "the application of the principle nul.
lum,crimen sine lege requires that the international tribunal should apply rules of international humanitar-
ian law which are beyond any doubt part of customary law so that the problem of adherence of some but
not all States to specific conventions does not rise").
30. See generally FACTS AND FIGURES ABOUT AMNESTY INTERNATIONAL AND ITS WORK FOR HUMAN
RIGHTS, at hrtp:l/www.web.annesty.org/web/aboutai.nsf (last visited on Dec. 2, 2000) (stipulating "to-
day an ever-growing human rights constituency is gathering the facts on abuses by governments, taking
action to stop them and strengthening the forces necessary to prevent future violations. More than 1000
domestic and regional organizations are working to protect basic human rights.")
31. See, e.g., Regina v. Battle, Ex Parte Pinochet, 37 I.L.M. 1302 (H.L. 1998); Regina v. Battle, EX
Parte Pinocher, 38 1.L.M. 581 (H.L. 1999); see also Prosecutor v. Kunarac, et al., Amended Complaint of
the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, Case No.: IT-96-23-PT
(2000).
32. See Alien Tort Claims Act, 28 U.S.C. § 1350 (2000); Torture Victim Protection Act of 1991, Pub,
L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 (1994)) (allowing actions to be
brought against an individual who, under actual or apparent authority or under color of law of any for-
eign nation, had subjected another individual to either torture or extrajudicial killing); sce also Construe-
tion and Application of Alien Tort Statute (28 U.S.C.A. § 1350) Providingfor FederalJurisdictionOver Alien's
Action for Tort Committed in Violation of Law of Nations or Treaty of the United States, 116 A.L.R. Fed. 387
(1993); Filartiga v. Pena-Irala, 630 E2d 876 (2d Cir. 1980) (providing the paradigmatic use of 28 U.S.C.
§ 1350 involving Joelito Filartiga, a seventeen-year-old boy, who was tortured by Paraguayan authorities
and died under torture, and holding that, "the law of nations clearly prohibits official torture" ).
2001 / The InternationalLaw of Torture
B. UniversalProhibitionof Torture
One of the most fundamental aspects of human rights law is the universal
proscription of torture. Article 5 of the Universal Declaration of Human
Rights holds that "[nJo one shall be subjected to torture or to cruel, inhu-
man or degrading treatment or punishment." This sentiment is similarly
expressed in Article 7 of the International Covenant on Political and Civil
Rights, 37 Article 3 of the European Convention for the Protection of Human
38. See European Convention for the Protection of Human Rights and Fundamental Freedoms, opencd
for signatureApr. 11, 1950, 213 U.N.T.S. 222, art. 3 [hereinafter European Convention for the Protection
of Human Rights and Fundamental Freedoms] (prohibiting torture by stating that, "[nJo one shall be
subjected to torture or to inhuman or degrading treatment or punishment").
39. See African Charter on Human and Peoples' Rights, openedfor signatureJune 27, 1981, O.A.U.
Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, art. 5 (1982) [hereinafter African Charter on Human and
People's Rights] (extending the protection to the maximum when it sets out that "[a]ll forms of exploita-
tion and degradation of man, particularly ... torture, cruel, inhuman or degrading punishment and
treatment shall be prohibited").
40. See American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, art. 5(2) (stipu-
lating in Article 5 (2) that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading
punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inher-
ent dignity ofthe human person").
41. See Geneva Convention Relative to the Treatment of Prisoners of War, openedfor signatureAug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (stating that, "[n]o moral or physical coercion may be exerted on
a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused").
42. See FACTS AND FIGURES ABOUT AMNEsTY INTERNATIONAL AND ITS WORK FOR HUMAN RIGHTS,
at http://www.web.amnesty.org/webI aboutai.nsf (last visited on Dec. 2, 2000) (providing a comprehen-
sive description of the origins and ongoing work ofAmnesty International).
43. id.
44. See Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment, G.A. Res. 34/52, U.N. GAOR, 39th Sess., Supp. No.
34, U.N. Doc. A110034 (1975) [hereinafter Declaration Against Torture) (declaring that certain "excep-
tional circumstances such as a state of war or a threat of war, internal political instability or any other
2001 / The InternationalLaw of Torture
public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading
treatment or punishment").
45. See Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punish-
ment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984)
[hereinafter Convention Against Torture].
46. SeeG.A. Res. 3218, U.N. GAOR, 29th Sess., Supp. No. 31, at 82, U.N. Doc. A19631 (1974) (ex-
emplifying the enactment of a resolution resulting from sustained pressure by national and international
non-governmental organizations).
47. See Body of Principles for the Protection of All Persons Under Any Form of Detention or Impris-
onment, G.A. Res. 43/173, U.N. GAOR, 43rd Sess., Supp. No. 49, U.N. Doc. A/43/49 (1988).
48. Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, U.N. GAOR, 34th Sess.,
Supp. No. 46, at 185, U.N. Doc. A/34/46 (1979).
49. Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in
the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. Res. 37/194, U.N. GAOR, 37th Sess., Supp. No. 51, at 210, U.N. Doc.
A137/51 (1982).
50. Amnesty International, http://www.stoptorrure.org (last visited on Dec. 2, 2000) (describing the
campaign against torture that was launched in October 2000 in more than sixty countries).
51. For a detailed overview of the Convention Against Torture, see Convention Against Torture, 1990:
Hearings before the U.S. Senate Foreign Relations Comm., 101-2nd Cong. (1990) (statement of Winston P.
Nagan, Board Chairman, Amnesty International USA).
HarvardHuman RightsJournal / Vol. 14
mission on Human Rights in 1978, and the document was adopted by the
General Assembly in 1984.52 In its final form, the Convention Against Tor-
ture was based substantially, but not exclusively, on the Declaration Against
Torture. The Convention Against Torture stipulates explicitly in Article 2
that countries under the Convention are obliged to "take effective legisla-
tive, administrative, judicial and other measures to prevent acts of torture."
This particular provision formally established the specific legal obligation of
the state to prevent torture.
No government had previously asserted such an extensive list of reserva-
tions, declarations, and understandings as that proposed by the U.S. State
Department's letter of December 19, 1989. Among the more disquieting
reservations were the proposed declaration that the provisions of Article 1
through Sixteen of the Convention not be self-executing; the proposed fed-
eral-state reservation seeking to limit the implementation of the Convention
"to the extent that the Federal Government exercises legislative and judicial
jurisdiction over the matters covered therein"; and the proposed under-
standing of the definition of torture in Article 1.
The United States also expressed concern regarding Article 2's wide juris-
dictional reach strengthening the capacity of state action to prohibit torture.
Furthermore, Article 7(1) of the Convention Against Torture imposes upon
every state that is a party to this Convention a solemn duty to extradite any-
one found in its jurisdiction whom is alleged to have committed torture or
to "submit the case to its competent authorities for the purpose of prosecu-
tion." The practical weakness of this approach is that states may be reluctant
to prosecute nationals of another state, especially government officials, be-
cause of the fear of reciprocal actions against their own citizens, hence the
U.S. reservations.
As important as the United Nations' appeals to state responsibility may
be, practice has shown that a great deal more needs to be done to constrain
the behavior of state officials bent on committing acts of torture. For exam-
ple, one of the most interesting methods of seeking to police and prevent
torture is the "urgent action" technique developed by Amnesty Interna-
tional.53 Urgent action is launched on behalf of prisoners and others who are
in immediate danger of serious human rights violations, such as torture or
extrajudicial execution. The Urgent Action Network is made up of more
than 80,000 volunteers in more than eighty-five countries. First, the Am-
nesty International Secretariat in London issues the urgent action to the na-
tional sections, who then distribute it to the members of the Urgent Action
network in the relevant country or territory. The members are asked to send
appeals by the fastest means possible to the people, organizations, and insti-
52. For the underlying mandate for the drafting of the Convention Against Torture, see G.A. Res.
32/62, U.N. GAOR, 32d Sess., Supp. No. 45, U.N. Doc. A/32/355 (1977).
53. FACTS AND FIGURES ABOUT AmNESTY INTERNATIONAL AND ITS WORK FOR HUmN RIGHTS, at
http://www.web.amnesty.org/web/ aboutai.nsf(last visited on Dec. 2, 2000).
2001 / The InternationalLaw of Torture
tutions indicated. The number of appeals varies in each case. A case can gen-
erate anywhere between three and 5000 appeals.
Urgent action is a tool of enforcement that is not limited by the con-
straints of diplomatic protocol, nor does it require political action from bu-
reaucrats within the United Nations, who may be torn between their obliga-
tions to seek states' financial and political support and their desires to expose
the states' wrongdoings. The urgent action method of intervention identifies
the victim, the range of potential victimizers in the chain of command, the
venue where torture occurs, and the nature of the torture practice under
scrutiny. The urgent action technique is especially effective due to its meth-
ods of electronic distribution and global, cross-cultural mobilization of
opinion. The technique also identifies officials in the chain of responsibility,
bringing transparency to otherwise anonymous processes.
Further Articles highlight the importance of state compliance in the ef-
fective application of the Convention Against Torture. Article 2 limits the
processes that provide for the easy justification of torture through variously
formulated national security imperatives. Article 2 specifically holds that
torture cannot be validated by the claim to exceptional circumstances as in,
for example, "war or a threat of war, internal political instability or any
other public emergency." Article 2 follows the principle of the Nuremberg
Charter that an order from a superior officer or public authority cannot serve
54
as a legal defense.
Article 4 of the Convention Against Torture makes clear that the crime of
torture is of a "grave nature." States must therefore regard it as within the
category of crimes for which the defendant may be extradited under Article
8. Articles 5 through 7 of the Convention Against Torture incorporate the
well-established principle of state-conditioned universal jurisdiction: the
state is obliged to either institute criminal proceedings against the torturer
or to extradite the person to another state to stand trial there. The principles
of jurisdiction based on nationality or territoriality do not constrain these
precepts.
The Convention's emphasis on preventing torture is also extremely impor-
tant. Torture cannot be undone once it is committed, and a sanctioning pol-
icy in which the punishment is somehow proportionate to the crime is very
problematic in cases of torture, mass murder, and genocide. Therefore, an
extremely important strategy of global torture law enforcement is to empha-
size the prevention of torture. Article 10 of the Convention Against Torture
requires states to educate their "law enforcement personnel, civil or military,
medical personnel, public officials, and other persons who may be involved
in the custody, interrogation or treatment of any individual subjected to any
form of arrest, detention or imprisonment" about the prohibition against
torture. Resolution 1999/32 of the U.N. Commission on Human Rights
bolstered this mandate, calling upon the United Nations High Commis-
sioner for Human Rights to provide, at the request of governments, advisory
services to these governments. 55 These advisors would guide states with re-
spect to their obligations to ensure education and training of law enforce-
ment and other personnel, as well as technical assistance in the development,
production, and distribution of appropriate teaching materials.
Amnesty International adopted a Twelve-Point Program for the Preven-
tion of Torture in October 1983 that recognizes the same obligation. The
ninth point of this Twelve-Point Program stipulates: "It should be made
clear during the training of all officials involved in the custody, interrogation
or treatment of prisoners that torture is a criminal act. They should be in-
' 56
structed that they are obliged to disobey any order to torture.
Education is a long-term goal, and the effective prevention of torture
must be grafted onto the core expectations of law enforcement in the field,
where officials directly interrogate those in their custody. Toward that end,
Article 11 of the Convention Against Torture requires states 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." 7 Article 11 professionalizes
the practices of interrogation and mandates the creation of a record of actual
practices, thereby enhancing not only education, but transparency and ac-
countability as well.
Article 12 of the Convention Against Torture requires the parties to the
Convention to "promptly and impartially" investigate allegations of torture.
Moreover, the state must investigate the prospect of torture practices within
its jurisdiction if "there [are] reasonable grounds to believe that an act of
torture has been committed." In this case, the Twelve-Point Program of
Amnesty International might represent even a broader obligation by re-
quiring that "[g]overnments should ensure that all [i.e., not only those with
reasonable ground for investigation] complaints and reports of torture are
impartially and effectively investigated." Furthermore, Amnesty would in-
sist that "[tlhe methods of findings of such investigations.., be made pub-
lic."58
Another important aspect of the Convention Against Torture relates to
the security and safety of those who are willing to come forward and com-
plain, or those who might serve as credible witnesses to establish that tor-
ture has happened. Article 13 imposes upon a state party the obligation to
55. U.N.C.H.R. Res. 32, U.N. ESCOR, 56th Sess., 55th Mrg., U.N. Doc. EICN.41RES/1999132
(1999).
56. AM,ESTY INTERNATIONAL, TWELVE-POINT PROGRAM FOR THE PREVENTION OF TORTURE,
available at Recommendations for the protection and promotion of human rights at
http:lwww.web.amnesty.org/web/aboutai.nsf (last visited Dec. 2, 2000) [hereinafter TWELVE-POINT
PROGRAM FOR THE PREVENTION OF TORTURE].
57. Convention Against Torture, su/pra note 25, art. 11.
58. TWFELVE-POINT PROGRAM FOR THE PREVENTION OF TORTURE, supra note 56.
2001 / The InternationalLaw of Torture
ensure that any individual who alleges they have been subjected to torture
has the right to complain to state authorities. The obvious impulse of official
reaction to complainants and witnesses is to harass them, intimidate them,
or in other ways threaten them with ill-treatment. In order to secure a viable
rule of law as the basis for the prohibition of torture, a central procedural
value is acknowledged. If the individual cannot complain, then there is
nothing to prevent and nothing to punish. Additionally, the sheer difficulty
of protecting witnesses and complainants from officials charged with respon-
sibility for the torture-based victimization strikes at the heart of the entire
process of law enforcement under the rule of law. Since torture strikes at the
core legitimacy of the state, the individual might well appreciate the reluc-
tance of states to establish enhanced methods for protection of victims of
torture and the witnesses. It may be that Article 13, and the capacity to give
it sum and substance, provides the testing ground for the effectiveness of the
Convention Against Torture itself.
At first blush, Articles 12 and 13 may seem to call for a fox to investigate
the chicken coop. However, these provisions assume that states are complex
structures and that governance is often a matter of the exercise of multiple,
concurrent and sequential powers; one branch of a state can police another
branch of the state and hold it accountable for breaking the rules. This in-
sight compels the appraisers of the Convention Against Torture to examine a
state not as an undivided homogeneous entity, but as a cluster of coextensive
and competing interests. Due to this decentralized and divided structure,
political parties and advocacy groups may be able to structure enough pres-
sure to compel officials to act, even when the officials would be otherwise
reluctant to do so.
Article 13 must also be read in the light of Article 15, which extends the
legal protection of fundamental procedural values. Specifically, Article 15
states that evidence extracted by torture cannot be used in proceedings
against the victim of torture or anyone implicated by the victim, with the
exception of the torturer himself.59 States have historically relied on tainted
evidence to establish legal versions of the "truth" in order to justify the
punishment of their enemies. Surprisingly, this tainted and coerced evidence
is still ubiquitous in the procedures of many states. To the extent that
tainted evidence is admissible, it undermines the capacity for law enforce-
ment and provides disincentives for governmental officials to engage in
proper investigative work. To the extent that judges admit tainted evidence,
they create a crisis of confidence in the legal system itself because the legal
"truths" generated are not credible predicates for the administration of jus-
59. Convention Against Torture, supra note 25, art. 15. Article Fifteen of the Convention Against Tor-
ture does not allow a statement extracted under torture to be used "against a person accused of torture as
evidence that the statement was made." Id. Similarly, the sixth point of the Twelve-Point Program of
Amnesty International stipulates that "[g]overnments should ensure that confessions or other evidence
obtained under torture may never be invoked in legal proceedings." 'ThELVE-POINT PROGRAM FOR THE
PREVENTION OF TORTURE, supra note 56.
HarvardHuman RightsJoumal / Vol. 14
tice. The erosion of the due process values in Articles 13 and 15 of the Con-
vention Against Torture represents the most serious assault on the founda-
tion of the rule of law. For example, the well-developed South African legal
system, with its independent judiciary, nevertheless had judges routinely
admitting evidence based on abusive police practices or torture. 60 Similarly,
Russia's notorious "show-trials," which began in 1936 under the rule of Sta-
lin, represented some of the high points in the use of torture and confessions
61
in legal proceedings.
Article 14 of the Convention Against Torture addresses the question of
reparations. It advocates an "enforceable right to fair and adequate compen-
sation." The term "compensation" is defined as "the means for as full a reha-
bilitation as possible." While it is true that compensation for torture may
have some intrinsically therapeutic effects (as well as cover the costs of medi-
cal and psychological interventions where they exist), compensation cannot
address the most significant consequence of torture for the victims, which is
the assault on the essence of the victims' identity, respect, and dignity. The
process of torture often involves isolating the victim, removing the victim's
clothing, assaulting the victim's sexual organs, depriving the victim of sleep,
inflicting psychological and physical pain that usually ensures the loss of
bowel and kidney movements, and, in the case of women, rape with an
indefinite time-frame. The horrors of torture are such that, in spite of reha-
bilitation efforts, the victim will never be the same. This does not mean that
seeking to rehabilitate torture victims is not mandated by the deepest sense
of humane identification.
In addition to those aspects of the Convention Against Torture that ad-
dress matters of cruel, inhuman, or degrading treatment or punishment, the
Convention also establishes institutions and procedures to effect implemen-
tation of its goals. It establishes a Committee Against Torture (Article 17)
and outlines the Committee's functioning (Article 18). The Committee
Against Torture is empowered to examine reports from state parties to the
Convention and to inquire into allegations of systematic practices of torture
(Articles 19 and 20). The Committee Against Torture is also empowered to
accept complaints from states alleging a particular state's noncompliance
with the Convention (Article 21). However, this power might only be exer-
cised with the explicit consent of the state alleged to be in non-compliance.
Under Article 22, the Committee Against Torture may receive complaints
from individuals against the state and is to report annually to state parties
and to the U.N. General Assembly.
60. See,e.g., NATIONAL ASSOCIATION OF DEbiocRATIc LAwYERS, THE ROLE OF LAWYERS AND THII
LEGAL SYSTEM IN THE GROSS HUMAN RIGHTS VIOLATIONS OF APARTHEID (1998) (submission to the
South African Truth and Reconciliation Commission).
61. ALFRED ERICH SENN, READINGS IN RUSSIAN POLITICAL AND DIPLOATIC HISTORY, VOLUME
II-THE SOVIET PERIOD 160-61 (1966).
2001 / The InternationalLaw of Torture
62. U.N. Standard Minimum Rules for the Treatment of Prisoners, approved July 31, 1957, E.S.C.
Res. 663(c), U.N. ESCOR, 24th Sess., Supp. No. 1, at 11, U.N. Doc. E/3048 (1957), amended May 13,
1977, E.S.C. Res. 2076, U.N. ESCOR, 62nd Sess., Supp. No. 1, at 35, U.N. Doc. E15988 (1977).
63. The representatives of the states concerned are invited "to attend the meeting when their reports
are considered." Representatives are allowed and expected to answer any additional questions which may
be put to them by the Committee and to "clarify, if needed, certain aspects of the reports already submit-
ted." After such clarification, the Committee (according to Article 19, para. 3) may make general com-
ments on the report as well as indicate whether it appears to it that some obligations of the state con-
cerned have not been discharged. These comments are then transmitted to the state concerned which may
reply to them. UNITED NATIONS HIGH COMMISSIONER FOR HuMAN RIGHTS, FACT SHEET No. 17, THE
COMMITTEE AGAINST TORTURE, at http://www.unhchr.ch/html/menu6/2/fsl7.htm (2000).
64. The procedure set out in Article 20 of the Convention Against Torture is confidential and pursues
the cooperation of the state. The only exception to the confidentiality rule is if, after all the proceedings
regarding an investigation under Article 20 have been completed, the Committee decides to include a
summary account of the results into its annual report. In this case the work of the Committee is made
public. Otherwise, all the work and documents relating to its functions under Article 20 are confidential.
65. UNITED NATIONS HIGH COMMISSIONER FOR HuMAN RIGHTS, FACT SHEET NO. 17, THE COM-
MITrEE AGAINST TORTURE, at http://www.unhchr.chihtml/menu6/2/fslT7.htm (2000). This is an excep-
HarvardHuman RightsJournal / Vol 14
outcomes of the investigation to the state party concerned, along with the
comments and suggestions of the Committee Against Torture. However, the
competence conferred upon the Committee by Article 20 is optional; the
state party may, at the time of ratifying or acceding to the Convention
66
Against Torture, declare that it does not recognize this competence.
The Committee usually holds two regular sessions each year but a special
session may be convened at the request of a majority of its ten members or of
a state party to the Convention Against Torture. 67 All proceedings of the
Committee are confidential and the Committee invites the concerned state
party to cooperate with the Committee at all stages of the proceedings. Also,
in order to be able to include a summary account of the investigation
findings in its annual report, the Committee is required to consult the state
party concerned. The expenses incurred in connection with all of the Com-
mittee's activities are borne by the state parties to the Convention Against
Torture. 68 The Committee itself adopts its procedural rules.
Article 22 of the Convention Against Torture gives individuals 69 the right
to complain directly to the Committee Against Torture. The accused state
party must recognize the competence of the Committee to consider com-
plaints filed by the individuals, and as of January 1, 2000, only forty out of
119 states have made such a declaration.70 Another limitation on the filing
of individual complaints is that, according to the Committee's rules of pro-
cedure, a communication can not be admitted if it is anonymous. 71 This is
mitigated, however, by the rule that all individual complaints are examined
tion to the standard procedure that involves either inviting representatives of the concerned state to
participate in the examination and submit observations, or requesting additional information from those
representatives and others. The Committee may also designate a confidential inquiry, with which repre-
sentatives of the state concerned are invited to cooperate.
66. Id. In this case, the Committee Against Torture may not exercise the powers conferred upon it by
Article 20 for so long as the state concerned maintains its reservation.
67. Sessions of the Committee Against Torture, United Nations High Commissioner for Human
Rights, at hrtp:llwww.unhchr.chlhtmllmenu2/6/car/cats.htm (last visited Dec. 2, 2000).
68. UNITED NATIONS HIGH COMMISSIONER FOR HuMAN RIGHTS, FACT SHEET No. 4, METHODS OF
COMBATING TORTURE, at http://www.unhchr.ch.html/menu6/2/fs4.htm (2000). Although the state
parties share these expenses in proportion to their contribution to the budget of the United Nations, no
single state's share may cover more than twenty-five percent of the Committee's expenses,
69. See infra note 65. Private individuals claiming to be victims of a violation of the Convention
Against Torture by a state that has accepted the competence of the Committee under Article 22, as well
as their relatives or representatives, are entitled to submit communications to the Committee.
70. Press Release, United Nations Committee Against Torture, Panel Scheduled to Consider Reports
from Poland, Portugal, China, Paraguay, Armenia, El Salvador, the United States, the Netherlands and
Slovenia (Apr. 28, 2000), available at http:llwww.unhchr.ch/huricane/huricane.nsf/newsroom. Although
119 states have ratified or acceded to the Convention, only the following forty states have recognized the
competence of the Committee under Articles 21 and 22: Algeria, Argentina, Australia, Austria, Canada,
Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Finland, France, Greece, Hungary, Iceland, Italy,
Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal,
Russian Federation, Senegal, Slovak Republic, Slovenia, South Africa, Spain, Sweden, Switzerland, Togo,
Tunisia, Turkey, Uruguay, Venezuela and Yugoslavia. In addition, the United Kingdom and the United
States have recognized the competence of the Committee under Article Twenty-One only (competence of
the Committee over the claims filed by states but not over those filed by individuals).
71. See infra note 65.
2001 / The InternationalLaw of Torture
72. Cf. STATISTICAL SURVEY OF INDIVIDUAL COMPLAINTS DEALT WITH BY THE COMMITTEE
AGAINST TORTURE UNDER THE PROCEDURE GOVERNED BY ARTICLE TWENTY-TWO OF THE CONVEN-
TION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT,
at htp://www.unhchr.ch/html/menu2/8/stat3.htm (updated Oct. 12, 2000). Since 1987, the United
Nations Committee has received 154 individual complaints from the forty-one signatory countries.
Thirty-three cases were deemed inadmissible, forty have been discontinued, and one suspended. This
leaves three admitted cases and thirty-nine in pre-admissible stage. In contrast, Amnesty International
initiated 425 new actions and pursued further appeal for 272 existing actions for the Urgent Action
Network, which extends over ninety-four countries and territories. Of the 425 new actions, 131 were
issued on behalf of victims of torture or related practices.
HarvardHuman RightsJournal / Vol. 14
73. The Committee's treatment of the confidentiality factor may be contrasted with the urgent action
technique developed by Amnesty International to which we have earlier referred, Unconstrained by
institutional limitations of an international bureaucracy sustained largely by states, Human Rights In-
ternational Nongovernmental Organizations (INGOs) are often able to generate international public
accountability. Therefore, this freedom renders INGOs more impartial and perhaps better positioned to
respond to accusations of torture. Seesupra note 50.
74. Civil and PoliticalRights, Including Question of-Torture and Detention: Report of Special Rapporteu, Sir
Nigel S. Rodley, Submitted Pursuantto Commission on Human Rights Resolution 1998/38, U.N. Commission
on Human Rights, 55th Sess., Provisional Agenda Item 11(a), U.N. Doc. E/CN.4/1999/61 (1999).
2001 / The InternationalLaw of Torture
75. Id.
76. See Torture Victims Relief Act of 1998 § 4-6, 22 U.S.C. § 2152 (1998); Torture Victims Relief
Authorization Act of 1999 § 2-4, Pub. L. No. 106-87, 113 Stat. 1301 (1999).
77. U.N.C.H.R. Res. 32, U.N. ESCOR, 56th Sess., 55th Mtg., U.N. Doc. EICN.41RESI1999132
(1999).
78. SeeTorture Victim Relief Act of 1998 § 4-6, 22 U.S.C. § 2152 (2000); Torture Victim Relief
Authorization Act of 1999 § 2-4, Pub. L. No. 106-87, § 4, 113 Stat. 1301 (1999).
79. Within its first five years of operation (between 1983 and 1988) the Fund accepted 131 subsidies
totaling $3.6 million. U.N. HIGH COMMISSIONER FOR HumAN RIGHTS, FACr SHEET No. 4, available at
http://www.unhchr.chlhtmllmenu6/2/fs4.hrm (last visited Mar. 2, 2001).
HarvardHuman RightsJournal / Vol. 14
Furthermore, the Joint Resolution decreed that the United States gov-
ernment must work with both governments and NGOs to combat the prac-
tice of torture worldwide.8 2 Section 2(a) of the Joint Resolution urged the
executive branch to engage more fully in this enterprise through: asking the
Permanent Representative of the United States to the United Nations to
continue to raise the issue of torture in that forum, asking the President to
be actively involved in the prescription of the Convention Against Torture,
and asking the U.S. Secretary of State to issue formal instructions to the
chief of every U.S. mission abroad. This last provision is the most important
and most assertive aspect of this section of the Joint Resolution, for it de-
mands that the Secretary of State indicate exactly what U.S. policy is with
respect to torture and gives instructions that the chiefs of mission examine
the allegations of torture in that state. Finally, this section instructs the Sec-
retary of State to "express concern in individual cases of torture brought to
the attention of a United States diplomatic mission including, whenever
feasible, sending United States observers to trials when there is a reason to
believe that torture has been used against the accused."8 3 These far-reaching
requests that the executive branch investigate, publicize, intervene, and ob-
serve allegations of torture within a foreign sovereign state send a political
80. Joint Resolution Regarding the Implementation of the Public Policy of the United States Gov-
ernment in Opposition to the Practice of Torture by any Foreign Government, H.R.J. Res. 605, 98th
Cong., 98 Star. 1721 (1984) (codified in 22 U.S.C. § 2656 (2000)).
81. Id.
82. See id.
83. Id. § 2(b)(4).
2001 / The InternationalLaw of Torture
signal that such conduct is well within the bounds of diplomatic responsi-
bility and the mandate of international law.
As progressive as the ultimate goals of the Joint Resolution may be, the
document itself is alarmingly weak. The language of the Joint Resolution is
formulated in terms of requests, so the President need not feel bound by the
Joint Resolution. Furthermore, the most drastic measure suggested is the
expression of concern, hardly an aggressive leap toward the goal of eradicat-
ing torture.
Like the United Nations measures, the U.S. Joint Resolution serves
mostly as a symbol. It promotes principles by giving them weight and pres-
tige in the executive branch to enable full U.S. support to diplomats who
intervene. In this indirect capacity, the Joint Resolution could be an effec-
tive tool in working to end torture world-wide, particularly if the United
States could persuade other countries to follow suit.
84. For an overview of the political impediments to U.S. ratification of the human rights treaties,
with particular reference to the campaign to ratify the Convention Against Torture, see Winston P. Na-
gan, The Politics of Ratification: The Potentialfor United States Adoption and Enforcement of the Convention
Against Torture, The Covenants on Civil and PoliticalRights and Economic, Social and Cultural Rights, 20 GA.
INTL & COMP. L. 311, 311 (1990).
85. Filartiga v. Pena-Irala, 630 E2d 876 (2d Cir. 1980).
86. Alien Tort Claims Act, 28 U.S.C. § 1350 (2000).
87. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Star. 73 (1992) (codified at 28
U.S.C. § 1350 (2000)). This Act also establishes civil liability for an extra-judicial killing. See i
88. See id.
HarvardHuman RightsJournal / Vol 14
101. See AMNESTY INTERNATIONAL, UNITED STATES OF AMERICA RIGHTS FOR ALL, at http:l/www.
rightsforallusa.org/info/reporc/index.hrm (last visited on Dec. 2, 2000). In this report, Amnesty Interna-
tional outlines several human rights concerns regarding police practices throughout the United States.
This extensive list included: beatings, excessive force, and unjustified shootings by police officers; physi-
cal and mental abuse of prisoners and detainees by prison guards, including use of electro-shock equip-
ment and cruel use of restraints; sexual abuse of female prisoners by male guards; prisoners held in cruel
conditions in isolation units; ill-treatment of children in custody; failure to protect prisoners from abuses
by staff or other inmates; inadequate medical or mental health care and overcrowded and dangerous
conditions; racist treatment of ethnic or racial minorities by police or prison guards; ill-treatment of
asylum-seekers held in detention; and cruel conditions on death row and in the application of the death
penalty.
2001 / The InternationalLaw of Torture
102. JUDGES' RULES AND ADMINISTRATIVE DIRECTIONS TO THE POLICE, Home Office circular No.
31/1964, Princ. (e), quoted in AMNESTY INTERNATIONAL, TORTURE IN THE EIGHTIES 51 (1984)). The
Judges' Rules are in the form of advice to police officers on what will and will not be allowed as evidence
in a trial.
103. Brown v. Mississippi, 297 U.S. 278 (1936).
104. Williams v. United States, 341 U.S. 97 (1951).
105. Filartiga v. Pena-Irala, 630 E2d 876 (2d Cir. 1980). The case is more thoroughly discussed supra
note 32.
106. Alien Tort Claims Act, 28 U.S.C. § 1350 (2000).
107. Kadi6 v. Karad.i6, 70 E3d 232 (2d. Cir. 1995).
108. Seeid. at 244.
109. Id.
110. Ortiz v. Gramajo, 886 E Supp. 162 (D.Mass. 1995)
111. See id. at 178. This case did not use the Alien Tort Claims Act as the two previous cases did, but
HarvardHuman RightsJournal / Vol. 14
order to qualify as an official act, the torture need not occur while the defen-
dant has direct custody over the victim; rather the torture need only the
"consent or acquiescence of a public official."112
instead applied the Torture Victim Protection Act. Nonetheless, that definition is identical to the one
provided in the Convention Against Torture.
112. Id. at. 178, n.15.
113. The European Commission of Human Rights (the Commission) is an investigative body which
refers cases to the European Court of Human Rights, a regional court whose decisions are binding on its
member states. Both are governed by the European Convention for the Protection of Human Rights and
Fundamental Freedoms (the Convention).
114. See Report of the European Commission ofHuman Rights on the "Greek Case," 1969 Y.B. Eur. Cony. On
H.R. 1, 5 (1969) [hereinafter Report on Greek Case].
115. European Convention for the Protection of Human Rights and Fundamental Freedoms, supra
note 38, art. 3.
116. See Resolution DH (70) 1 of the Committee of Ministers of the Council of Europe, 1969 YB.
Eur. Conv. on H.R. (Eur. Comm'n of H.R.) 511, at 3
117. Report on Greek Case,supra note 114, at 504.
118. See id.
119. See Resolution DH (70) 1 of the Committee of Ministers of the Council of Europe, 1969 YB.
Eur. Cony. on H.R. (Eur. Comm'n of H.R.) 511, at 3
120. See Ireland v. United Kingdom, 1976 YB. Eur. Conv. on H.R. (Eur. Comm'n on H.R.) 512.
2001 / The InternationalLaw of Torture
After the Commission filed its report, the Irish government referred the
case to the European Court of Human Rights. 123 The Court, however, did
not accept the Commission's qualification of Article 3 violations in the in-
stant case. Rather, the Court distinguished between torture on the one hand
and inhuman or degrading treatment on the other, noting that torture con-
stitutes an "aggravatedand deliberate form of cruel, inhuman or degrading
treatment or punishment.' 1 24 (emphasis added) The Court ruled that the use
of the five techniques breached Article 3 because these practices constituted
cruel, inhuman and degrading treatment. It refused, however, to characterize
125
them as torture.
The Court also applied the "aggravated and deliberate" distinction in
later cases. 126 In Tyrer v. United Kingdom, a fifteen-year-old British student
assaulted a schoolmate and was sentenced to three strokes of a birch rod.
This punishment entailed removing his trousers and underwear and then
bending him over a table in order for the strokes to be administered. Ac-
cording to the Court, this form of corporal punishment was a direct viola-
tion of Article 3.127
In Soering v. United Kingdom, 128 the Court considered whether a convicted
murderer subjected to extradition might experience torture upon extradition
to the United States. The Court did not suggest that the death penalty itself
might violate Article 3, but rather distinguished between the death penalty
and death row.129 The Court concluded that the death row phenomenon
would be a breach of Article 3, but did not express any opinion as to
130
whether putting someone on death row was itself torture.
In 1996, the Court found torture per se for the first time in the case of
Aksoy v. Turkey. 131 Mr. Aksoy was arrested and held in custody by Turkish
security forces. Upon his release, he was admitted to a hospital and diag-
nosed with bilateral radial paralysis, or paralysis of both arms caused by
damage to nerves in the upper arms. The Turkish public prosecutor decided
that "there were no grounds to institute criminal proceedings against [Mr.
Aksoyl." The Turkish authorities have not been called to responsibility
132
in
criminal or civil proceedings for the alleged ill-treatment of Mr. Aksoy.
Mr. Askoy alleged that he had been subjected to extremely serious forms
of ill-treatment. This included being locked up with two other detainees in
a cell measuring approximately 1.5 x 3 meters, with only one bed, and only
two meals a day. Interrogated about whether he knew a man called Metin,
his torturers stated, "If you don't know him now, you will know him under
torture." On the second day, he was stripped naked, his hands were tied be-
hind his back, and he was strung up by his arms in a so-called Palestinian
hanging. While he was hanging, electrodes were connected to his genitals,
and water was thrown over him, causing electrocution. He was blindfolded
for the duration of this ordeal (about thirty-five minutes). During the next
two days he was repeatedly beaten without being suspended. This continued
for four days. 133 Not surprisingly, the Turkish authorities denied these alle-
134
gations.
Both the Commission and the Court accepted Mr. Aksoy's version of the
facts. The Commission noted that: "there was no evidence that [Mr. Aksoy]
had suffered any disability prior to his arrest, nor any evidence of any unto-
ward incident [since] his release from police custody." While the bilateral
radial paralysis could have been caused in other ways, it was consistent with
the form of torture known as Palestinian hanging; and, most importantly,
the Turkish authorities offered no alternative explanation for Mr. Aksoy's
129. Protocol No. 6 was adopted to amend the Convention, abolishing the death penalty in the Con-
tracting States. However, the United Kingdom was not a party of the Protocol No. 6 at the time the
Soering case was decided, and thus the risk of subjection to the death penalty itself was not the determin-
ing factor in this case. See id. at 448, 460.
130. The ECHR recognized that the U.S. has a well-developed judicial system where fundamental
rights are protected. A narrow majority (6-5) of the Commission therefore concluded that extraditing Mr.
Soering to the U.S. would not constitute treatment contrary to Article Three of the Convention. The
Court, however, decided unanimously that it would. Id. at 425-61,463--64,478.
131. Aksoy v. Turkey, 6 Eur. Ct. H.R. 2260 (1996).
132. Ma[at 2266-67.
133. See id. at 2265-66.
134. According to the Turkish government authorities, however, no torture occurred. Mr. Aksoy's cus-
tody, they claimed, ended after he signed a statement denying any involvement with PKK and he made
no complaint about having been tortured. See id. at 2266.
2001 / The InternationalLaw of Torture
Finally, the Court's opinion in the Askoy case underscored the importance
of Article 3 and offered guidelines for evaluating potential violations:
A more recent torture case was Selmouni v. France.143 The Court found that
the French police had beaten, sodomized, and threatened Mr. Selmouni
while he was in their custody. The Court rejected the French government's
argument that Mr. Selmouni was ineligible because he did not exhaust do-
mestic remedies. 144 It noted that the medical certificates and reports suffi-
ciently convinced the Commission of the credibility of the applicant's allega-
tions concerning the large number of blows he received, as well as their in-
tensity.145 The Court, therefore, declared Mr. Selmouni's application admis-
sible and found violations of Article 6, Section 1, as well as Article 3.146
47
The Court then applied the guiding principles established in the Tomasi
and the Ribitsch148 cases. 14 9 Through these examples the Court noted that
torture is "deliberate in human treatment causing very serious and cruel
suffering"; 150 a condition distinguishable from inhuman and degrading
treatment. The Court further noted that the distinction between torture and
inhuman and degrading treatment was also reflected in the Convention
Against Torture' 51 and decided to apply the guiding principle and the se-
verity requirement to the instant case. This meant they acknowledged that
the acts of violence and other types of abuse, namely psychological and sex-
ual abuse, experienced by Mr. Selmouni were of such intensity that they
could cause substantial pain, 152 and could also be classified as "heinous and
humiliating for anyone, irrespective of their condition." 1"3 Considering that
all parts of Mr. Selmouni's body were abused, the abuse was repeated and
sustained for a number of days, and all of this was substantiated by medical
reports, the Court's final determination was that "the physical and mental
violence, considered as a whole, committed against the applicant's person
caused 'severe' pain and suffering and was particularly serious and cruel.
Such conduct must be regarded as acts of torture for the purposes of Article
3 of the Convention.' ' 154 However, the European Court of Human Rights
refrained from committing to a particular set of criteria for the severity re-
quirement, or creating a list of acts which would always be considered tor-
ture, or characterizing the evidence necessary to prove either. Thus, the out-
15
come of an individual case remains unpredictable.
144. See European Convention for the Protection of Human Rights and Fundamental Freedoms, supra
note 38, Protocol No. 11, Art. 35, § 1.
145. See id.
146. See Selmouni v. France, 1109 Eur. Ct. H.R. (1999), Annex.
147. Tomasi v. France, 241 Eur. Ct. H.R. (ser. A) (1992).
148. Ribitsch v. Austria, 336 Eur. Cr. H.R. (ser. A) (1995).
149. The guiding principle is described by the Court as follows: "[W]here an individual is taken into
police custody in good health but is found to be injured at the time of release, it is incumbent on the
State to provide a plausible explanation of how those injuries were caused, failing which a clear issue
arises under Article 3 of the Convention." Selmouni v. France, 1109 Eur. Ct.H.R. (1999), para. 87.
150. Id., para. 63.
151. The Court noted that "fr]he United Nations Convention against Torture and Other Cruel, In-
human or Degrading treatment or Punishment ...also makes such a distinction, as can be seen from
Articles 1 and 16." Id., para. 97.
152. See id.,para. 102.
153. Id,para. 103.
154. Ia.,
para. 105.
155. Compare the outcome ofSelmouni v.Francewith a more recent case, Alabmut Ka)a v.Turkey, 1416
Eur. Ct. H.R. (2000).
2001 / The InternationalLaw of Torture
Terrorist acts and the general disruption of order are [the GSS']
means of choice ....They carry out terrorist attacks in which
scores are murdered in public areas, public transportation, city
squares and centers, theaters
157
and coffee shops ....They act out of
cruelty and without mercy.
Furthermore:
This declaration raises the issue of whether any moral and juridical mo-
tives can justify torture. The Court considered the permissibility of interro-
gations which elicit confessions and the disclosure of evidence which might
prevent a substantial tragedy. Still, the Court made "no exceptions to the
159
prohibitions against torture and found no room for balancing."'
In this case the Supreme Court stated that interrogation methods must be
"inherently accessory to the very essence of an interrogation and ...both
fair and reasonable."'160 If the interrogator exceeds their authority, they bear
criminal responsibility for their actions subject to the necessity defense.
Thus, though the Israeli Court made an important advance in giving the
prohibition of torture near absolute standing under Israeli law, it remains to
161. See Azanian Peoples Org. v. President of the Republic of S. Aft., CCT 17196; see also Winston P
Nagan, Conflict Resolution and Democratic Transformation: Confronting the Shameful Past-Preeribinga Ht-
mane Future, S. AFR. I.J. (forthcoming 2001) (manuscript at 27-28, on file with author).
2001 / The InternationalLaw of Torture
162. Se INTERIM REPORT OF THE SPECIAL RAPPORTEUR OF THE COMMISSION ON HUMAN RIGHTS
ON THE QUESTION OF TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUN-
ISHMENT, UN General Assembly, 55th Session, Item 116(a) of the provisional agenda, HUMAN RIGHTS
QUESTIONS: IMPLEMENTATION OF HUMAN RIGHTS INSTRUMENTS, A/55/290. (Aug. 2000).
163. See PATRICK BALL, WHO DID WHAT To WHOM? PLANNING AND IMPLEMENTING A LARGE
SCALE HUMAN RIGHTS DATA PROJECT (1996). Study done under the auspices of the American Associa-
tion For The Advancement of Science. On the conceptual and practical challenges of this, see SCHMID &
JONGMAN, MONITORING HUMAN RIGHTS VIOLATIONS (1991) (P.I.O.O.M.)