Freedom from torture is one of the most universally recognised human rights. Torture is considered so barbaric and incompatible with civilised society that it cannot be tolerated. Torturers are seen as the ‘enemy of all mankind’.
The ban on torture is found in a number of international treaties, including Article 2 of the United Nations Convention Against Torture, Article 3 of the Human Rights Convention and Article 5 of the Universal Declaration of Human Rights. A number of institutions work to enforce the ban on torture, including the UN’s Committee against Torture and the Human Rights Court.
What does ‘torture’ actually mean?
Article 3 of the Human Rights Convention (ECHR) declares:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The Human Rights Court has stated that torture is ‘deliberate inhuman treatment causing very serious and cruel suffering’. It attaches to such treatment a ‘special stigma’. Similarly, Article 1 of the UN Convention Against Torture defines torture as the intentional infliction of severe pain or suffering, for a specific purpose (such as obtaining information or punishment) by, or with the consent of, State authorities.
How is torture different from inhuman or degrading treatment?
The Human Rights Court explored the distinction between torture and inhuman and degrading treatment in Ireland v UK, a case which concerned the treatment of suspected Irish Republican Army (IRA) terrorists. The UK used an interrogation method known as the ‘Five Techniques’: prolonged ‘wall-standing’ (being forced to maintain a painful stress position),‘hooding’ (covering a detainee’s head with a hood to disorient them), subjection to noise, deprivation of sleep, and deprivation of food and drink. The question was whether these techniques were compatible Article 3 of the Human Rights Convention.
The Court explained that the distinction between torture and inhuman or degrading treatment lies in the ‘difference in the intensity of the suffering inflicted’. In deciding whether certain treatment amounts to torture, the Court takes into account factors of each individual case, such as the duration of the treatment, its physical and mental effects, and the age, sex, health and vulnerability of the victim. In the Ireland v UK case, the Court decided that the UK’s actions did not cause the level and intensity of suffering necessary to amount to torture, but did constitute inhuman and degrading treatment.
Is it ever OK to torture people?
There is a zero tolerance approach to torture in the international legal order. Article 2 of the Convention Against Torture states that there are ‘no exceptional circumstances whatsoever’ to justify torture. Under the Human Rights Convention, freedom from torture is known as an ‘absolute’ right, which means that no interference with the right to freedom from torture can ever be justified, on any grounds, in any circumstances.
Some provisions in the Human Rights Convention have built-in limitations; for example, interference with the right to free speech may be justified if it is necessary in a democratic society to protect the rights and freedoms of others. However, freedom from torture, Article 3 ECHR, does not have any built-in limitations.
States are also prohibited from ‘derogating from’ (suspending) the right to freedom from torture in times of war or public emergency threatening the life of the nation. As such, freedom from torture is guaranteed at all times. It reflects one of the most basic commitments of a civilised, democratic society.
What does freedom from torture mean in practice?
The ban on torture requires States to treat people in a humane way at all times. Beyond banning the State itself (and its agents) from actively inflicting torture, freedom from torture in some circumstances imposes a responsibility on the State to protect people from real and immediate risks of torture by other persons. States have a duty to carry out prompt investigations into allegations of ill-treatment.
Freedom from torture also prevents the admission of evidence in court which is known or suspected to be obtained by torture. In the words of the UK’s most senior court (formerly known as the House of Lords, now the Supreme Court), torture evidence is:
unreliable, unfair, offensive to ordinary standards of humanity and decency…
Responsibility under Article 3 ECHR may be engaged where a State seeks to deport a person to a country where there is a real risk of them being tortured in that country, or of torture evidence being used against them in a future trial.
In a case called Soering v UK, the Human Rights Court explained that it would be incompatible with States’ ‘common heritage of political traditions, ideals, freedom and the rule of law’ if they could knowingly surrender fugitives to another State where there are substantial grounds for believing that the fugitive would be ‘in danger of being subjected to torture, however heinous the crime allegedly committed.’
To avoid incurring liability, States seeking to deport individuals in such circumstances may need to obtain assurances from the receiving State that the individual(s) in question will not be subjected to torture and/or evidence obtained by torture will not be used against them.
Want to know more?
- Take a look at our explainer on inhuman and degrading treatment.
- Read an opinion piece on why we shouldn’t use evidence obtained by torture.
- Learn about how the ‘death row phenomenon’ may amount to torture or inhuman treatment.