“A cardinal axiom of international human rights law is that the prohibition against torture, cruel, inhuman and degrading treatment is absolute.”[1] This statement implies that there can be no exceptions to the rule against torture, and no Court of Law or Legislation should accept any derogation. However, cases of such treatment keep propping up and are prevalent in the International Human Rights Law narrative [2](Jammu and Kashmir, Israel, Syria to name a few). There are several statutory reminders of it’s absoluteness. The Universal Declaration of Human Rights, which is hailed to be customary international law by some scholars[3], states the words- “No one shall be subjected to torture….”[4]. The same is reiterated by a number of statutes/treaties such as the International Covenant of Civil and Political Rights[5] and the 4 Geneva Conventions[6].
The aim of this article is to analyse whether the absoluteness really exists, and if it is possible to inculcate such principles of International Legislations completely or partly, and whether it would be in the best interest of a nation to do so.
SHOULD ABSOLUTENESS EXIST?
The State has a responsibility to RESPECT, PROTECT and FULFIL it’s international obligations. [7] In the context of the matter at hand this would imply that the States have to respect the Prohibition of Torture and ensure that none of the agents of the State ( servants, army, police) do not violate these rights. On one hand we have cases such as those of Javaid Ahmad Magray[8], where the security personnel under complete immunity because of the Armed Forces Special Provisions Act, completely denied Javaid and his family the right not to be tortured. Therefore in such cases, the right to torture is not respected. But in cases like Public Committee Against Torture, Israel vs. Govt. Of Israel, [9]the courts recognise, to a certain extent subject to the circumstances of the case, the right not to torture by agents of the Government (GSS) and not to subject anyone to inhumane treatment.
The above conundrum is provided for by the Responsibility to protect the human rights of the people. It means that the state should actively ensure that such violations do not take place. For the argument of absoluteness of prohibition against torture, the State would have to take steps to remove even the elements which could make it possible for the agents of third parties to engage in torture[10], such as repealing legislations or draconian provisions of such legislations such as the AFSPA,1990 so that no derogation can be possible. Under this reasoning even the “necessity” defence[11] should be removed, as even the lack of diligence of the State to prevent such acts of torture against a person would be a failure of the responsibility to protect.
Moreover, a state has the responsibility to fulfil the right not to be tortured. Effectively this means that the state shall “adopt all measures to prevent and sanction torture.”[12] The actions of the police shall be punished, the security personnel that tortured Javaid should be punished and be stripped of the immunity that they are granted, the GSS should be prevented from employing methods that could come under the definition of torture or degrading/inhumane treatment and stringent rules should exist for the same.
If the act itself of torture is analysed, no moral legal system should allow it and any State which allows for it is an intrinsically flawed one. [13]Usually in International Law, there are cases of derogations provided, but in the case of Prohibition of Torture the provisions are absolute and there is no circumstance in which the act of torture, inhumane or degrading treatment can be justified.
WHY IS ABSOLUTENESS PROBLEMATIC?
A critique of an absolute implementation of the international obligations for prohibition against torture is the Dualist System (like in India) under international law itself. Since there is a difference in obligations under international law and national law, and the international obligations cannot be implemented unless interpreted (often non-uniformly) by the State as domestic legislation, the full effect of treaties such as ICCPR ; UDHR and Convention against Torture, Inhuman, Degrading Treatment or Punishment cannot be felt.
For example, in the case of Jammu and Kashmir, a domestic legislation such as the AFSPA, 1990, completely abrogates the Responsibility to Fulfil the [14]obligation not to torture as it does not allow for sanction against security and army personnel. Moreover, the Public Committee Against Torture, Israel vs. Govt. Of Israel with it’s “reasonable interrogation” tests[15] leaves room for circumstances which can be created or later justified by state authorities (GSS) to explain why the act of torture was committed, and such legislation and precedents would provide them with the legal backing they would need for the acceptance of such justifications.
In this regard, even the decisions like Ireland vs. United Kingdom are against the absoluteness of prohibition of torture. In this case, since the method employed against common offenders was supposed to be different for the alleged members of the Irish Republican Army, they were justifiably subjected to torturous interrogation techniques[16]. This was held by the court to be condemnable actions, but not torture.
This creates problems as the absolute standard of the provisions of International Statutes, if not accepted could be avoided by defining the degree of the act in non-absolute terms as acts which are permissible and those which are not, instead of having an encompassing definition of Torture, and degrading and inhuman torture. States could easily use this precedent to reduce the ambit of the acts which constitute torture and bring them under the purview of “reasonable interrogation” tests or “necessity” defences and avoid having to face the liability of committing Torture. This problem arises due to a combination of the issue of Dualist States and the lack of clarity in the statutes itself. First of all, a truly absolute system can be absolute in application and but has to be relative in application[17]. In this case, the prohibition of torture ; degrading/ inhuman treatment do not mandatorily have the same status. This implies that the degree of absoluteness can be different in implementation. Torture itself can be measured from the degree of suffering and pain that is inflicted upon the person, but degrading/ inhuman treatment can also be measured through the intention to commit (for eg.- whether the act was committed to degrade the self-esteem of the person and embarrass the person so as to make them more susceptible and vulnerable to interrogation). In the case of Ireland vs. United Kingdom, the intention to degrade the IRA members was not found by the Compton Committee.[18] This is problematic because broad terms such as the ones above are open to interpretation and their inclusion in domestic laws by Dualist States might differ according to their choices.
CONCLUDING REMARKS
The analysis given above does not point to the question whether torture, degrading/inhuman/cruel treatment should be fully sanctioned by law. But the narrative it points to is when can these acts be permitted, whether there are exceptions and justifications for committing these acts or not. It can be argued that these exceptions should exist due to the “ticking time bomb” test, which implies that in greater public interest the information necessary to avoid greater public suffering should be extracted by any means, including torture. Contrary to the same, the rights and dignity of the person sought to be subjected to such means should be considered. Is there no middle ground?
Although a list of guidelines cannot be formulated, however to find the solution to the same, Bentham’s view on Torture [19]can be considered. However, it is pertinent to mention that the “Margin of Appreciation” need not be paid heed to in this case. The liberty should not be with States to implement rules on Prohibition of Torture, Degrading/Inhuman/Cruel Treatment non-uniformly, according to their historical and social conditions. This would create problems of legitimacy in the backdrop of the assumption that domestic law prevails over international law. The case studies given above are problematic due to this assumption, and margin of appreciation plays an important part of this roadblock. The prospective system should be uniform so as to cure some defects of the lack of absoluteness of the law on Torture.[20]
Bentham has a fairly understandable view of Torture and its exceptions and treatments, even though Torture is understood as an inherently incorrect act, public interest can be a valid exception. However, the safeguards given by Bentham make these views relevant even today. The cardinal rule would be determining if it is an Improper Case (when it can be applied) and Improper Degree (to what extent Torture can be inflicted, in terms of the act).[21] Two of the most interesting and applicable features of the rules given by Bentham are as follows – Firstly, the requirement of proof, which should be proportionate to the severity of the punishment to be imposed on the person. This implies that in addition to the proof required, there shall be an additional standard of proof to inflict means of interrogation which might fall under the ambit of Torture; Cruel/ Degrading/ Inhuman treatment. In the case of Javaid, who was tortured and killed by security personnel in Jammu and Kashmir, no assumption would allow them to subject a 17 year old student to such degree of treatment. Secondly, the idea of constant checks and upgradation of the standards to employ these means, would help in accommodating relativity when different circumstances, other than known circumstances are used as justification to use torture. This could also help in keeping a check on the agencies of the State that employ these means on persons. For example, in the case of Prakash Singh vs. Union of India, the Police Act was revamped to keep stringent checks on the Police against custodial violence and death.
[1]Steven Greer, “Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law?” Human Rights Law Review, {Volume 15, Issue 1, 1 March 2015} Pg 101–137, available at :https://doi.org/10.1093/hrlr/ngu035
[2] Stiener, Alston, Goodman, “Torture Revisited” International Human Rights in Context :Law, Politics, Morals {Third Edition, Oxford University Press 2012}
[3] Hilary Charlesworth, Universal Declaration of Human Rights (1948) [February 2008] available at: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e887
[4] Article 5, Universal Declaration of Human Rights, (1948)
[5] Article 7, ICCPR (1966)
[6] Article 3, 129, 130, Geneva Convention (1949)
[7] Moeckli, Shah, Shivkumaran “Implementation of Human Rights” International Human Rights Law { Second Edition, Oxford University Press, 2014}
[8] Amnesty Report: “Denied, Failures in accountability for Human Rights violations by Security Force Personnel in Jammu and Kashmir” [ Amnesty International 2015]
[9] S.C. Israel H.C. 5100/94
[10] Supra Note 7, pg 102
[11] Supra Note 9 Para 33
[12] Supra Note 7, pg 103
[13] Supra Note 1
[14] Supra Note 12
[15] Supra Note 9, Para 22
[16] ECHR (1978) 2 EHRR 25
[17] Steven Greer, “Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law?” Human Rights Law Review, {Volume 15, Issue 1, 1 March 2015} Pg 101–137, available at :https://doi.org/10.1093/hrlr/ngu035
[18] Supra Note 16.
[19] Twining and Twining “Bentham on Torture” [24 N. Ireland Leg. Q 305 (1973)]
[20] Supra Note 7. Pg 104-105
[21] Supra Note 19.
