Chapter – TORTURE

THE PROHIBITION OF TORTURE UNDER INTERNATIONAL LAW

This Chapter leads us toward discussing different enforcement and theoretical issues concerning torture
and further considers how all this manifests in practice. The prohibition of torture is an obligation erga
omnes – a norm in which all states have a legal interest and an obligation to act. This also means it exists
in customary international law and various international treaties. The prohibition of torture is
procedurally the best protection of all rights.

From a legal perspective, torture is not only a breach of human rights but an abuse of due process and
ultimately incompatible with the idea of the rule of law. Torture is an expression of power in its rawest
and crudest form.

Prohibiting Torture and other forms of ill-treatment:

The prohibition of certain forms of ill-treatment is central to every treaty relating to civil and political
rights. It is always one of the first substantive rights protected in each treaty. Each such treaty states
that a right cannot be derogated from at a time of emergency, nor do any of the treaties permit
limitations to the prohibition; the fundamental idea of human rights implies that torture is
unacceptable. The 'inherent dignity of the human person' is the foundation of the prohibition, but there
are also other sources that support this general principle. Beyond that, no treaty prohibits only torture.
Inhuman, cruel, and degrading treatment or punishment are among the other terms used and acts
prohibited. Such terms would not be used unless there was a rationale behind their additional use; thus,
some distinction needs to be drawn. The jurisprudence to be examined addresses this distinction. It is
important for you, however, to critically engage with the jurisprudence, and the discussion will highlight
some key issues.

We will start with UNCAT. Although it was adopted after the other provisions, it has been hugely
influential in the developing jurisprudence of the ECtHR and the HRC. Before examining UNCAT,
however, we should consider moral and practical issues.

The Convention Against Torture

The Preamble of the Convention places the prohibition on torture in the context of human rights. The
fundamental idea of human rights implies that torture is unacceptable. The 'inherent dignity of the
human person' is the foundation of the prohibition, but there are also other sources that support this
general principle. Article 5 of the Universal Declaration of Human Rights (UDHR), Article 3 of ECHR, and
Article 7 of the International Covenant on Civil and Political Rights (ICCPR) all state that no one shall be
subjected to torture, inhuman or degrading treatment or punishment. The UDHR and ICCPR also use the
term 'cruel,'
Article 1 begins with a definition of torture:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or a confession, punishing
him for an act he or a third person has committed or is suspected of having committed, or intimidating
or coercing him or a third person, or for any reason based on discrimination of any kind when such pain
or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity.

Thus, there are several elements to the definition, and we can ask several questions about the words'
meaning. First, torture is understood by the Convention as an intentional 'act.' This suggests that an
omission to act could also constitute torture if this omission were intentional. The intention is directed
towards particular purposes: obtaining information, punishment, intimidation, coercion, or
discrimination. In all instances, torture could be used either on the immediate victim or as a means of
punishing, intimidating, discriminating against, or obtaining information about a third party. The nature
of the act has to be such that it causes "severe pain and suffering.” This suggests that an act that does
not come up to this threshold of pain and suffering might not constitute torture. The definition is broad
enough to cover both physical and mental pain and suffering. It so could cover, for instance,
interrogation techniques that do not necessarily cause physical pain but cause mental pain and
suffering. Note, however, that the alleged acts of torture have to have an official nature; the 'pain and
suffering' have to be inflicted either directly by or with the 'consent or acquiescence' of a 'public official'
or someone acting in an official capacity. In this sense, torture that was inflicted in a private capacity,
without either direct or indirect official sanction, would fall outside of the Convention. However, it may
constitute an offense under the relevant national law.

There is an important caveat provided by Article 1: Torture 'does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions.' It would appear that if 'pain or suffering' is a
'lawful sanction,' the act would fall outside the Convention. This definition element effectively licenses
'pain and suffering' if done under lawful orders. This provision was included as a compromise to secure
the agreement of numerous states where corporal punishment is still widely used. The amputation of
hands and whipping, for example, cannot constitute torture so long as they are sanctions provided for
by law and carried out further to due process. Further, they will not be acts of torture, notwithstanding
the severe pain and suffering they cause, as they are not intended to induce a confession or the
extraction of information. Thus, we can see that while certain acts of ill-treatment will reach the
threshold amount of torture, they will not be 'torture' for the convention unless various other criteria
are also met.

Article 2 effectively gives the Convention Horizontal as well as vertical effect. Horizontal effect describes
how international law is primarily directed against states. Thus, it is vertically effective and can give rise
to duties that apply to non-state parties. Thus, by Article 2, States parties are obliged to take effective
legislative, administrative, judicial, or other measures to prohibit acts of torture in any territory under
their control or jurisdiction. A state is thus under a duty to enact legislation that makes it illegal for
private individuals to commit acts of torture. Articles 2(2) and 2(3) go to the heart of the Convention:
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political
instability, or any other public emergency, may be invoked as a justification for torture.

3. An order from a superior officer or a public authority may not be invoked as a justification for torture.

These paragraphs state important principles that address two significant justifications that have been
given to justify torture. Thus, there can be no defenses of extraordinary circumstances nor the excuse
that the official carrying out the acts of torture was acting on orders from a superior. Article 2 also
points to one of the foundational principles of the Convention. UNCAT is a 'jurisdictional Convention'.
This means that it aims to prohibit torture and to ensure that torture is unlawful in domestic law and
that acts of torture are punishable. As we will see from the provisions below, evidence or information
obtained by torture is inadmissible; the aim is to eradicate the 'utility' of torture.

Article 3 deals with considering this refoulment (a French word meaning to return or to turn back). The
basic principle is that a person should not be returned to the country they fled if there is a real risk of
being subject to ill-treatment, which breaches a certain level of severity. Thus, a state cannot return or
extradite' a person if there are substantial grounds for believing that he would be in danger of being
subjected to torture,' Article 3(2) elaborates how such grounds would be determined. The state intends
to return the individual and must consider all relevant considerations, including, where applicable, the
existence in the state concerned with a consistent pattern of gross, flagrant, or mass violations of
human rights.

Article 4 should be read alongside Article 2. This Article obliges a state party to 'ensure that all acts of
torture are offenses under its criminal law' and that attempts to commit acts of torture and 'complicity
or participation in torture' are similarly outlawed. Article 3 elaborates on the measures that a state must
take to prohibit torture. Prohibitions on torture must cover offenses that are committed on board 'ships
or aircraft' that are registered in the state and torture committed in territories under its control. They
must also allow the prosecution of alleged offenders who are nationals of the state in question. A state
has discretion as to whether it creates offenses that will enable victims who are nationals to remedy in
law. These two provisions are vital parts of the operative crux of the Convention. Article 4 criminalizes
torture; Article 5 obliges states to exercise their jurisdiction (power or authority for these purposes)
over those who commit torture.

Articles 6 to 9 further elaborate the measures that must be taken against those who are alleged to have
committed acts of torture. Article 6 clarifies the obligations that a state party has to detain an alleged
perpetrator of torture who is in its territory. A state party in whose territory the alleged torturer is
present must take that person into custody or otherwise assume control over the alleged perpetrator.
After a preliminary investigation into the facts of the case, the alleged perpetrator must be helped to
communicate with the authorities of the state he is a national or, if a 'stateless person,' a representative
of the 'state where he usually resides.' The state detaining the alleged perpetrator must also report to
the detainee's nation or relevant authorities the fact of the detention and indicate whether or not it
intends to prosecute under its national laws. These technical provisions are necessary to work out the
mechanisms that relate to prosecutions for torture.

Article 7 states that the detaining government can either extradite the alleged perpetrator or prosecute
under the relevant national laws. Should the state choose the latter option, then the alleged perpetrator
must be accorded due process and a fair trial. Article 8 relates to the extraditable nature of acts of
torture. The offenses covered in Article 4 must be treated as extraditable offenses and deemed part of
any extradition treaties between the relevant state parties. Article 9 provides that states shall cooperate
to the best of their abilities in prosecuting offenses of torture. These articles between them universalize
jurisdiction when it comes to torture. Thus, a person can commit an act of torture anywhere in the
world and can be tried by any state. The aim of these provisions, when read together, is to ensure there
is no impunity for a torturer. There is, of course, the issue of what benefit or interest there is to a state
to prosecute a perpetrator who has committed such acts. Still, there are a number of examples of state
parties prosecuting such persons. In 2013, for example, the British authorities prosecuted a Nepalese
army colonel for acts of torture committed in Nepal against Nepalese nationals. The colonel was a
resident of the UK. The difficulty of such prosecutions was laid bare when the defendant was acquitted
after a trial costing over £ 1 million. It is likely that only in the case of high-profile or infamous torturers
will there be enough accessible evidence to secure a prosecution in such situations. On this issue, see
the discussion of the Pinochet case later in the chapter.

Article 10 shifts the focus of the Convention from measures that apply to the prosecution of torture
offenses to the obligations of the state parties to 'ensure' that the prohibition on torture is widely
publicized among those parties who 'may be involved' in the custody, interrogation or treatment of any
individual subjected to any form of arrest, detention or imprisonment.

The following Articles contain provisions that relate to how a national legal system must respond to
allegations of torture.

Article 11 requires a state party to keep the matters specified under Article 10 under 'systematic
review,' Article 12 ensures that any allegations are promptly and impartially investigated. Article 13
gives a victim of an alleged act of torture the 'right to complain' to competent authorities. The article
states that the alleged victim and perpetrator must be 'protected against ill-treatment' while the
investigation is ongoing. Article 14 is a strong statement of the rights to redress that must be provided
by national law:

1. Each state party must legally ensure that the victim of torture obtains redress and has an enforceable
right to fair and adequate compensation, including full rehabilitation. In the event of the death of the
victim as a result of an act of torture, his dependants shall be entitled to compensation.

Article 15, statements made as a consequence of torture should not be used as evidence in proceedings
against the person who has been tortured; however, a statement extracted by torture could be used
against the alleged torturer as evidence that a statement was made as a result of torture.
Article 16 relates to Articles 10 to 13. States that earlier provisions apply equally to actions that fall
short of the definition of torture provided by Article 1 but which are acts of cruel, inhuman, or
degrading treatment or punishment. Public officials or those acting in public capacities must have
carried out these acts.

PART 2
In Part 2 of the UNCAT, the convention has moved from the substantive principles of protecting rights or
defining key terms to creating an overseeing body. Article 17 establishes the Committee, and 17(1)
represents the Committee as staffed by a body of experts elected by state parties but serving in their
capacities. Article 18 describe in detail the composition of the Committees and the procedure relating to
the appointment of its members. Article 19 requires state parties to submit reports to the Committees.
State parties must submit an initial report within a year of the Convention entering into force in their
law and subsequently every four years. Article 20 gives another vital power to the Committee to
conduct a “confidential Inquiry” in cooperation with the state party.

OPTIONAL PROTOCOL

The Optional Protocol to the United Nations Convention against Torture (OPCAT) is an international
treaty aimed at preventing torture and other cruel, inhuman, or degrading treatment or punishment. It
was adopted by the United Nations General Assembly in 2002 and entered into force in 2006. OPCAT
supplements the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) adopted in 1984.

The Optional Protocol establishes a system of regular visits to places of detention by independent
international and national bodies. These bodies, known as National Preventive Mechanisms (NPMs) and
the Subcommittee on Prevention of Torture (SPT), have the mandate to visit places where people are
deprived of their liberty, such as prisons, police stations, immigration detention centers, and psychiatric
hospitals. Their goal is to prevent torture and ill-treatment by monitoring conditions of detention,
assessing the treatment of detainees, and making recommendations to national authorities for
improvements. Every year, the Chairperson of the subcommittee submits an annual report to the
General Assembly.

The UNCAT is enforced globally with over 160 state parties, OPCAT is now enforced in around half of
those states. 2014, the Subcommittee visited Azerbaijan, Ecuador, Maldives, Malta, Nigeria, Nicaragua,
and Togo. 2015, it visited seven countries: Guatemala, Italy, Nauru, the Netherlands, the Philippines,
Turkey, and Brazil. Due to fewer resources, the Subcommittee cannot increase its work. As the number
of state parties increases, this time lag will also increase (Analyse it). 2019, the SPT visited eight states,
including the UK, Switzerland, Costa Rica, Sri Lanka, Palestine, Senegal, Ghana, and Cape Verde. In 2020
and 2021, due to COVID-19, there were no visits after March 2020. The Subcommittee cannot
realistically increase its work and number of visits any further unless there is a far greater level of
resources devoted to it. As the number of state parties increases, the time lag will increase. Considering
the point of OPCAT is prevention, this will make it harder for the Subcommittee to fulfill its objectives. A
clear shift in approach has been the shortening of visits. In its early years, visits by the Subcommittee
lasted at least a week. The more recent documentation shows that many recent visits are considerably
shorter and focus on a limited number of issues, such as the establishment or functioning of the NPM or
the situation of a particular category of detainees. For example, the 2015 visit to Italy focused almost
entirely on migrants and how refugees were being detained. While the choice of priority may make
sense, as is always the case, having such a focus inevitably means that many other issues concerning
prevention remain under-explored. In 2019, the visit to Liberia lasted three days; that to Ghana, five
days, and to the United Kingdom, 11 days. The SPT is also adjusting its visits to the size of the state and
seeking to focus on the most pressing issues. The Subcommittee’s mandate is to provide for the
unannounced visiting of any place within a state party where the Subcommittee believes that persons
may be deprived of their liberty. This means that both the timing of the visit and the places to be visited
are to be decided upon by the Subcommittee. Several states have started questioning the timing of
Subcommittee visits, as the annual reports make clear. However, this is not a global problem and is
limited to a relatively small number of states.

States that ratify the Optional Protocol must establish or designate one or more NPMs within their
jurisdiction to carry out these preventive activities. They are also obliged to cooperate with the SPT and
facilitate its visits to places of detention within their territories.

The Committee Against Torture in action

Two of the pressing issues before the Committee Against Torture in recent years have been the
refoulement of persons, where such persons are thought to be involved in terrorist activities, and the
detention of suspects in certain conditions. The jurisprudence on aspects of these issues is addressed in
the readings. Still, it is worth examining some of the exchanges and concluding observations and
recommendations of the Committee concerning the USA. This is not only to get a more holistic view but
also to highlight how pressure and the work of human rights bodies such as the Committee can compel
positive change even among the most stubborn state parties. Once we have examined the USA, we will
look at the Committee in action in the context of the UK and how it was, among other things, central in
a critical case involving a notorious military dictator, General Pinochet of Chile.

The Committee Against Torture and the USA

The USA has been one of the central actors in the so-called ‘war on terror.’ The war on terror can
perhaps be understood, at least in a basic sense, as the response of the USA and its allies to the attacks
on New York, Washington, and Philadelphia on 11 September 2001. President Bush presented the war
on terror as an expression of law and justice. However, it was and is essentially a military response,
including, inter alia, the invasions of Afghanistan and Iraq. The Committee considered the position of the
USA in 2000 when certain issues had not come to the fore. After 2001, concern started to focus on the
use of torture at the US facility at Guantánamo Bay (in Cuba), which accommodates detainees defined
as ‘enemy combatants’ who were captured in Afghanistan and several other places. Under international
law, the USA is required to treat these detainees (including civilians) as prisoners of war unless a
competent tribunal rules otherwise and either charges them with criminal offenses or allows their
release. Any persons detained at Guantánamo at any point in time have been entitled to various rights
and not to be held without trial. Although the number of persons held at Guantánamo has decreased
over time, there were, at the end of 2018 (the last date for which the State Department has publicly
issued data), still 40 or so captives there. Around 800 or so persons have been held there in total.
Concerns about the treatment of Guantánamo detainees must be seen alongside other initiatives. One
practice has been ‘rendition’ or the ‘outsourcing of torture’: the transfer or return of suspects to
countries where they will face torture and inhuman and degrading treatment. It is widely considered
that countries such as Poland, Egypt, Malaysia, and Pakistan made facilities and interrogators available
for the extraction by torture of information needed in the war against terror. These issues are discussed
in more detail in the readings from Alston and Goodman. The Committee had the opportunity to
consider these issues in 2006 and then again in 2014. The UNCAT has not considered the position in the
USA since then. In 2006, the Committee tackled several issues head-on and noted, inter alia, about the
USA:

14. The Committee regrets the state party’s opinion that the Convention is not applicable in times and in
the context of armed conflict, based on the argument that the ‘law of armed conflict’ is the exclusive
lex specialis (law governing a specific subject matter) applicable and that the Convention’s application
‘would result in an overlap of the different treaties which would undermine the objective of eradicating
torture’… The state party should recognize and ensure that the Convention applies at all times, whether
in peace, war, or armed conflict, in any territory under its jurisdiction and that the application of the
Convention’s provisions is without prejudice to the provisions of any other international instrument,
under paragraph 2 of its Articles 1 and 16.

15. The Committee notes that several of the Convention’s provisions apply to ‘territory under [the state
party’s] jurisdiction’ (Articles 2, 5, 13, 16). This includes all areas under the de facto effective control of
the state party by whichever military or civil authorities such power is exercised. The Committee
considers the state party’s view that those provisions are geographically limited to its own de jure
territory to be regrettable. The State party should recognize and ensure that the requirements of the
Convention expressed as applicable to ‘territory under the state party’s jurisdiction’ apply to and are
thoroughly enjoyed by all persons under the effective control of its authorities, of whichever type,
wherever located in the world.

16. The State party does not always register persons detained in territories under its jurisdiction outside
the United States, depriving them of an adequate safeguard against acts of torture (Article 2). The state
party should register all persons it detains in any territory under its jurisdiction as one measure to
prevent acts of torture. Registration should contain the identity of the detainee, the date, time, and
place of the detention, the identity of the authority that detained the person, the ground for the
detention, the date and time of admission to the detention facility, and the state of health of the
detainee upon admission and any changes to it, the time and place of interrogations, with the names of
all interrogators present, as well as the date and time of release or transfer to another detention facility.

17. The state party has established secret detention facilities, which are not accessible to the
International Committee of the Red Cross. Detainees are allegedly deprived of fundamental legal
safeguards, including an oversight mechanism regarding their treatment and review procedures
concerning their detention. The Committee is also concerned by allegations that those detained in such
facilities could be held for prolonged periods and face torture or cruel, inhuman, or degrading
treatment. The Committee considers the state party's ‘no comment’ policy regarding such secret
detention facilities and its intelligence activities regrettable (Articles 2 and 16). The state party should
ensure that no one is detained in any secret detention facility under its de facto effective control.
Detaining persons in such conditions constitutes, per se, a violation of the Convention. The state party
should investigate and disclose the existence of such facilities, the authority under which they have
been established, and how detainees are treated. The state party should publicly condemn any policy of
secret detention. The Committee recalls that intelligence activities, notwithstanding their author,
nature, or location, are acts of the state party, fully engaging its international responsibility.

18. The Committee is concerned by reports of the involvement of the state party in enforced
disappearances. The Committee considers the state party’s view that such acts do not constitute a form
of torture to be regrettable (Articles 2 and 16). The state party should adopt all necessary measures to
prohibit and prevent enforced disappearance in any territory under its jurisdiction and prosecute and
punish perpetrators, as this practice constitutes, per se, a violation of the Convention.

19. Notwithstanding the state party’s statement that ‘under U.S. law, there is no derogation from the
express statutory prohibition of torture’ and that ‘no circumstances whatsoever…may be invoked as a
justification or defense to committing torture’, the Committee remains concerned at the absence of
explicit legal provisions ensuring that the Convention’s prohibition against torture is not derogated from
under any circumstances, in particular since 11 September 2001 (Articles 2, 11 and 12). The state party
should adopt explicit legal provisions to implement the principle of absolute prohibition of torture in its
domestic law without any possible derogation. Derogation from this principle is incompatible with
paragraph 2 of Article 2 of the Convention and cannot limit criminal responsibility. The state party
should also ensure that perpetrators of acts of torture are prosecuted and punished appropriately. The
state party should also ensure that any interrogation rules, instructions, or methods do not derogate
from the principle of absolute prohibition of torture and that no doctrine under domestic law impedes
the full criminal responsibility of perpetrators of acts of torture. The state party should promptly,
thoroughly, and impartially investigate any responsibility of senior military and civilian officials
authorizing, approving, or consenting, in any way, to acts of torture committed by their subordinates.

20. The Committee is concerned that the state party considers that the non-refoulement obligation,
under Article 3 of the Convention, does not extend to a person detained outside its territory. The
Committee is also concerned by the state party’s rendition of suspects, without any judicial procedure,
to states where they face a real risk of torture (Article 3). The state party should apply the non-
refoulement guarantee to all detainees in its custody and cease the rendition of suspects, in particular
by its intelligence agencies, to states where they face a real risk of torture to comply with its obligations
under Article 3 of the Convention. The state party should always ensure that suspects can challenge
decisions of refoulement.

21. The Committee is concerned by the state party’s use of ‘diplomatic assurances’ or other guarantees,
assuring that a person will not be tortured if expelled, returned, transferred, or extradited to another
state. Moreover, there is secrecy in such procedures, including the absence of judicial scrutiny and the
lack of monitoring mechanisms to assess if the assurances have been honored (Article 3). When
determining the applicability of its nonrefoulement obligations under Article 3 of the Convention, the
state party should only rely on ‘diplomatic assurances’ regarding states that do not systematically
violate the Convention’s provisions and after a thorough examination of the merits of each case. The
state party should establish and implement clear procedures for obtaining such assurances, with
adequate judicial mechanisms for review and practical post-return monitoring arrangements. The state
party should also provide detailed information to the Committee on all cases since 11 September 2001,
where assurances have been provided.

22. The Committee, noting that detaining persons indefinitely without charge constitutes per se a
violation of the Convention, is concerned that detainees are held for protracted periods at Guantánamo
Bay without sufficient legal safeguards and judicial assessment of the justification for their detention
(Articles 2, 3 and 16). The state party should cease to detain any person at Guantánamo Bay and close
this detention facility, permit access by the detainees to the judicial process, or release them as soon as
possible, ensuring that they are not returned to any state where they could face a real risk of being
tortured, to comply with its obligations under the Convention.

23. The Committee is concerned that information, education, and training provided to the state party’s
law-enforcement or military personnel are not adequate and do not focus on all provisions of the
Convention, in particular on the non-derogable nature of the prohibition of torture and the prevention
of cruel, inhuman and degrading treatment or punishment (Articles 10 and 11). The state party should
ensure that education and training of all law-enforcement or military personnel are conducted regularly,
particularly for personnel involved in interrogating suspects. This should include training on
interrogation rules, instructions, and methods and specific training on how to identify signs of torture
and cruel, inhuman, or degrading treatment. Such personnel should also be instructed to report such
incidents.

The state party should also regularly evaluate the training and education provided to its law-
enforcement and military personnel and ensure regular and independent monitoring of their conduct.

24. The Committee is concerned that in 2002, the state party authorized the use of specific interrogation
techniques that have resulted in the death of some detainees during interrogation. The Committee also
regrets that ‘confusing interrogation rules’ and techniques defined in vague and general terms, such as
‘stress positions,’ have led to severe abuses of detainees (Articles 11, 1, 2, and 16).

The state party should rescind any interrogation technique, including methods involving sexual
humiliation, ‘waterboarding,’ ‘short shackling,’ and using dogs to induce fear, that constitutes torture or
cruel, inhuman, or degrading treatment or punishment in all places of detention under its de facto
effective control, to comply with its obligations under the Convention.

The honesty and straightforward approach of the Committee towards the USA was commendable. It
tackled the issues head-on. The US representatives defended the USA’s policy and practice robustly, but
the breaches and their scale were apparent. By 2014, when the Committee again considered the
situation, certain noteworthy developments had occurred. The US Supreme Court in (Boumediene v
Bush 2008) had determined the extraterritorial application of constitutional habeas corpus rights to
aliens detained by the military as enemy combatants at Guantánamo Bay. This meant that under US
Constitutional Law, they could not be arrested and were entitled to certain rights. The Committee
considered the broader developments as well.

10. Extraterritoriality

The Committee welcomes the state party’s unequivocal commitment to abide by the universal
prohibition of torture and ill-treatment everywhere, including at Bagram [note: a former Soviet base in
Afghanistan where many notorious abuses took place] and Guantanamo Bay detention facilities, as well
as the assurances that United States personnel are legally prohibited under international and domestic
law from engaging in torture or cruel, inhuman, or degrading treatment or punishment at all times and
in all places. The Committee notes that extraterritorial application of the Convention applies to ‘certain
areas beyond’ its sovereign territory and, more specifically, to ‘all places that the state party controls as
a governmental authority,’ noting that it currently exercises such control at ‘the United States Naval
Station at Guantánamo Bay, Cuba, and overall proceedings conducted there, and concerning U.S.-
registered ships and aircraft. Moreover, ‘the obligations in Article 16 apply beyond the sovereign
territory of the United States to any territory under its jurisdiction’ under the abovementioned terms.

The Committee reiterates ... that the State party should take adequate measures to prevent acts of
torture, not only in its sovereign territory but also ‘in any territory under its jurisdiction.’

11. Counter-terrorism measures

The Committee expresses grave concern over the extraordinary rendition, secret detention, and
interrogation programme operated by the United States Central Intelligence Agency (CIA) between 2001
and 2008, which comprised numerous human rights violations, including torture, ill-treatment, and
enforced disappearance of persons suspected of involvement in terrorism-related crimes.

While noting the content and scope of Presidential Executive Order 13491, the Committee regrets that
the state party only provided scant information about the now-shuttered network of secret detention
facilities, which formed part of the high-value detainee program publicly referred to by President Bush
on 6 September 2006. It also regrets that the state party did not provide information on the practices of
extraordinary rendition and enforced disappearance, nor on the extent of the abusive interrogation
techniques, such as waterboarding, used by the CIA on suspected terrorists. In that regard, the
Committee is closely following the declassification process of the United States Senate Select Committee
on Intelligence report on the CIA Detention and Interrogation Programme (arts. 2, 11 and 16).

The Committee recalls the absolute prohibition of torture contained in Article 2, paragraph 2, of the
Convention: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as a justification of torture.’
In that regard, the Committee draws the state party’s attention to its general comment No. 2 (2007),
which states that exceptional circumstances include ‘any threat of terrorist acts or violent crime as well
as armed conflict, international or non-international.’

The Committee urges the State party to:

(a) Ensure that no one is held in secret detention anywhere under its de facto effective control. The
Committee reiterates that detaining individuals in such conditions constitutes, per se, a violation of the
Convention (CAT/C/USA/CO/2, para.17);

(b) Take all necessary measures to ensure that its legislative, administrative, and other antiterrorism
measures are compatible with the provisions of the Convention, in particular the provisions of Article 2;

(c) Adopt adequate measures to ensure, in law and practice, that all detainees are afforded all legal
safeguards from the very outset of the deprivation of their liberty, including the safeguards mentioned
in paragraphs 13 and 14 of the Committee’s general comment No. 2 (2007). The Committee calls for the
declassification and prompt public release of the Senate Select Committee on Intelligence report on the
CIA secret detention and interrogation programme, with minimal redaction ...

12. Inquiries into allegations of torture overseas

The Committee expresses concern over the ongoing failure on the part of the State party to thoroughly
investigate allegations of torture and ill-treatment of suspects held in United States custody abroad,
evidenced by the limited number of criminal prosecutions and convictions. In that respect, the
Committee notes that during the period under review, the United States Department of Justice
successfully prosecuted two instances of extrajudicial killings of detainees by Department of Defense
and CIA contractors in Afghanistan. It also notes the additional information provided by the State party’s
delegation regarding the criminal investigation undertaken by Assistant United States Attorney John
Durham into allegations of detainee mistreatment while in United States custody at overseas locations.
The Committee regrets, however, that the delegation was not in a position to describe the investigative
methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed.
Thus, the Committee remains concerned about information before it that some former CIA detainees
who had been held in United States custody abroad were never interviewed during the investigations,
which casts doubts as to whether that high-profile inquiry was conducted correctly. The Committee also
notes that the Justice Department had announced on 30 June 2011 the opening of a full investigation
into the deaths of two individuals while in United States custody at overseas locations. However, Mr.
Durham’s review concluded that the admissible evidence would not be sufficient to obtain and sustain
convictions beyond a reasonable doubt. The Committee shares the concerns expressed at the time by
the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment
over the decision not to prosecute and punish the alleged perpetrators. It further expresses concern
about the absence of criminal prosecutions for the alleged destruction of torture evidence by CIA
personnel, including the destruction of the 92 videotapes of interrogations of Abu Zubaydah and Abd al-
Rahim al-Nashiri that triggered Mr. Durham’s initial mandate. The Committee notes that, in November
2011, the Justice Department had decided, based on Mr. Durham’s review, not to initiate prosecutions
of those cases (arts. 2, 12, 13 and 16).

The Committee urges the State party to:

(a) Carry out prompt, impartial, and effective investigations wherever there is reasonable ground to
believe that an act of torture and ill-treatment has been committed in any territory under its
jurisdiction, especially in those cases resulting in death in custody;

(b) Ensure that alleged perpetrators of and accomplices to torture, including persons in positions of
command and those who provided legal cover, are duly prosecuted and, if found guilty, given penalties
commensurate with the grave nature of their acts. In that connection, the Committee draws the state
party’s attention to paragraphs 9 and 26 of its general comment No. 2 (2007);

(c) Provide effective remedies and redress to victims, including fair and adequate compensation and as
full rehabilitation as possible, by the Committee’s general comment No. 3 (2012) on the implementation
of article 14 of the Convention by states parties;

(d) Undertake a full review of how the responsibilities of the CIA were discharged regarding the
allegations of torture and ill-treatment against suspects during United States custody abroad. If
investigations are reopened, the state party should ensure that any such inquiries are designed to
address the alleged shortcomings in the thoroughness of the previous reviews and investigations.

The change in approach by the US authorities is noteworthy, but the limits of what was achieved should
not escape our scrutiny either. President Obama vowed repeatedly to close the facility at Guantánamo
Bay but found himself unable to do so. President Trump did not feel under pressure to take any action.
Indeed, his administration showed disdain for the UN human rights treaty bodies and the UN more
broadly. Whether President Biden will adopt a different approach remains to be seen, but it seems
unlikely.

UNCAT before the UK Courts

It was noted above that the UK is one of a relatively small number of state parties that have undertaken
prosecutions under UNCAT relating to those who have committed acts of torture while abroad against
non-nationals of the UK, although in the example discussed, the trial was unsuccessful. The Convention
was central in several high-profile cases before the UK courts. We will examine a few of them. We are
not concerned with the enforcement mechanisms under the Convention and how states (such as the
USA) have responded but with how UNCAT has been cited in national law and used in litigation.

Some of these cases further illustrate the problems involved in prosecutions for torture. The first set of
cases focuses on the question of whether or not General Pinochet could claim immunity from
prosecution and thus prevent his extradition from the UK to Spain, where he would face torture charges.
The Pinochet case shows that prosecution is far more complex than simply bringing charges against an
individual. It reveals the problems that are attendant on bringing charges against former heads of state
who may claim immunity from prosecution and may not be in the territory where the acts of torture
were allegedly committed.

The background to the litigation is that during a private visit to the UK for medical treatment in October
1998, General Augusto Pinochet Ugarte, former Head of State and dictator of Chile, was arrested by the
police on an international warrant issued by a Spanish judge. General Pinochet assumed power after a
military coup in 1973. His regime was notorious for human rights abuses that took place between 1973
and 1990. It is thought that 4,000 civilians ‘disappeared’ or were murdered by the Chilean secret police.
Torture was widely practiced. The arrest warrant alleged the murder of Spanish citizens in Chile during
the military regime established after the military coup that brought Pinochet to power and further
charged Pinochet with the crimes of genocide and terrorism. The main charges in the warrant were that
Pinochet had not himself taken part in torture or murder but that he had used the state to that end. The
Crown Prosecution Service, acting on behalf of the Kingdom of Spain, applied for General Pinochet’s
extradition to Spain. In October 1998, the Spanish judge issued a more detailed second arrest warrant,
charging Pinochet with, among other things, torture and conspiracy to torture. The issue came before
the House of Lords in November 1998. Five Law Lords decided (R v Bow Street Metropolitan
Stipendiary Magistrate, ex p Pinochet Ugarte (No 1) [1998]– known as Pinochet No 1 by a majority of
three to two that the immunity of a former Head of State was confined to acts performed in the
legitimate exercise of his official functions, and that these did not include torturing political opponents.
Lord Steyn cited examples of torture practiced by the Pinochet regime:
The most usual method was ‘the grill’ consisting of a metal table on which the victim was laid naked and
his extremities tied, and electrical shocks were applied to the lips, genitals, wounds, or metal prosthesis;
also two persons, relatives or friends, were placed in two metal drawers one on top of the other so that
when the one above was tortured the psychological impact was felt by the other; on different occasions,
the victim was suspended from a bar by the wrists and the knees, and over a prolonged period while held
in this situation electric current was applied to him, cutting wounds were inflicted, or he was beaten, or
the ‘dry submarine’ method was applied (i.e., placing a bag on the head until close to suffocation). Also,
drugs were used, and boiling water was thrown on various detainees to punish them as a foretaste for
the death that they would later suffer.

Lord Nicholls argued that:

It hardly needs to be said that torture of his subjects, or aliens, would not be regarded by international
law as a function of a Head of State. All states disavow the use of torture as abhorrent, although from
time to time, some still resort to it…International law recognizes, of course, that the functions of a Head
of State may include activities that are wrongful, even illegal, by the law of his state or by the laws of
other states. But international law has made plain that certain types of conduct, including torture…are
not acceptable conduct on the part of anyone. This applies as much to Heads of State, or even more so,
as it does to everyone else; the contrary conclusion would make a mockery of international law.

It followed that since the acts of torture were an offense under UK law, the applicant could not claim
immunity from the criminal process, and this included extradition. However, in an unprecedented move,
this decision was set aside by a House of Lords Committee in (R v Bow Street Metropolitan Stipendiary
Magistrate, ex p Pinochet Ugarte (No 2) [1999] because of the disqualification of one of the majority
judges, Lord Hoffmann. Lord Hoffmann had failed to disclose that he had served as a director of
Amnesty International (AI) and that AI had intervened in the case. The fact that the decision was a 3:2
majority was vital. A 5:0 or 4:1 decision may not have led to such an outcome. But there was a possible
perception of bias – there was no claim there was bias on Lord Hoffmann’s part – and for that reason,
Pinochet No. 2 set aside the judgment in Pinochet No. 1. Pinochet No 2 did not decide that Pinochet
No. 1 was incorrect in law – simply that the judgment had to be set aside and the issues and matters
reconsidered by a new and differently constituted panel of judges. Thus, in March 1999, a new panel
composed of the seven most senior Law Lords again considered the matter and, this time, rejected
Pinochet’s claim to immunity in respect of charges of torture by a majority of six to one (R v Bow Street
Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 3) [1999]. However, a majority of five
Law Lords found that English courts had no jurisdiction over torture offenses committed by foreigners
abroad before the enactment of s.134 Criminal Justice Act 1988, by which the UK had implemented
UNCAT into domestic law. Once these issues had been resolved, the Stipendiary Magistrate, having
received the answers he needed, ruled that Pinochet could be extradited to Spain with regard only to
charges relating to torture. The Chilean government, which had intervened in Pinochet No 3 to assert
immunity on behalf of General Pinochet, requested in October 1999 that the then Home Secretary, Jack
Straw, consider releasing Pinochet on medical grounds. A subsequent medical examination established
that Pinochet was unfit to stand trial, and in March 2000, the Home Secretary ordered the release of
Pinochet, and he immediately returned to Chile. Upon landing, he seemed to have recovered and
appeared in good health. Pinochet died of ill health caused by old age in 2006.
While Pinochet did not stand trial for his human rights abuses in Spain, Pinochet No 1 and No 3 are
fundamentally important in stressing how domestic law sought to give effect to UNCAT. In subsequent
cases before the House of Lords (as it was then), UNCAT was again central. In the context of the war on
terror, the UK has been one of the closest allies of the USA, and concerns have been expressed about
aspects of government policy relating to torture. It is worth noting at this point that opposition to
torture in English law has existed for centuries and long before the UK became a party to UNCAT. The
UK, in its periodic report to the Committee Against Torture in 2004, for example, stressed that the
common law has prohibited torture since the 17th century. The Treason Act of 1709 definitively stated
that no one accused of a crime could be tortured, and alongside this Act, both the common law and the
Offences Against the Person Act of 1861 criminalized the act of torture. The law against torture was
updated when the UK acceded to UNCAT by s.134 Criminal Justice Act 1988. This made it an offense for
a public official or someone acting in a public capacity to commit torture or engage in cruel, inhuman, or
degrading treatment or punishment. Criminal liability attaches to the act of torture under this section
irrespective of the nationality of the alleged torturer or where in the world the offense was committed.
This is the universalization of torture—international protection of human rights.

The commitment to outlawing torture in domestic law and honoring international obligations must be
seen in light of more recent legal reforms as part of the ongoing response to global terrorism. The
reaction of the UK government to the terrorist attacks of September 2001 had several aspects, but the
one we will deal with is the enactment of Part 4 of the Anti-terrorism, Crime and Security Act 2001.
This part of the legislation has now been repealed, but it is essential to understand how the UK courts
considered UNCAT in domestic law. The powers enacted in Part 4 were immigration powers rather than
the creation of new criminal offences. Part 4 allowed the Home Secretary to detain foreign nationals
under suspicion of involvement in terrorism if they were believed to be a risk to the UK’s national
security. The detention of foreign nationals had to be under such circumstances that they could not be
deported from the UK if this would have exposed them to the possibility of torture. This would have put
the UK in breach of Article 3 UNCAT and Article 3 ECHR (we will examine this further below). Detained
individuals could appeal to the Special Immigration Appeals Commission (SIAC). Because it dealt with
sensitive matters involving state security, the Special Immigration Appeals Commission (Procedure)
Rules 2003 allowed the Commission to receive and consider evidence that would not be admissible in a
court of law. This could include evidence obtained by torture by officials acting for foreign governments.
It did not allow evidence obtained by torture perpetrated by UK officials. Evidence obtained by torture
is, however, deemed inadmissible by Article 15 UNCAT, the relevant part of which states: ‘Each state
party shall ensure that any statement which is established to have been made as a result of torture shall
not be invoked as evidence in any proceedings.’ The admissibility of such evidence by SIAC came before
the House of Lords in A v Secretary of State for the Home Department (No 2) [2005]. The Court of
Appeal had considered the issue. It ruled on this particular point: Article 15 UNCAT had not been
incorporated by any validating statute into, nor was it a part of, domestic law. As there was no rule
prohibiting evidence obtained by torture elsewhere, SIAC could consider it. Although there were
apparent differences between the approaches adopted by the different judgments in the Court of
Appeal, it is clear that the primary line of argument was that a constitutional principle prohibits torture.
However, provided that the state did not directly or indirectly procure or collaborate in that torture, and
providing that the Secretary of State was acting in good faith, then such evidence may be admissible.
This is because the Secretary of State is responsible for national security, and the common law principle
that all relevant evidence is admissible in a trial to ascertain innocence or guilt seems to nullify the
prohibition on evidence obtained by torture.

When the House of Lords considered the matter, they reversed the decision of the Court of Appeal. The
House of Lords held that evidence obtained by torture was unreliable and ‘incompatible’ with a moral
administration of justice. As such, evidence obtained by torture, no matter whether or not this was by a
third party outside of the UK, was inadmissible in court. The House of Lords also considered using such
information in the detention or arrest of a person ordered by the Home Secretary. Although the Home
Secretary did not act ‘unlawfully’ in making use of ‘tainted’ information in these executive decisions, the
Commission reviewing the reasonableness of the Home Secretary’s suspicion could not admit evidence
obtained by torture (although it could admit a wide range of material’ which would not be inadmissible
in ‘judicial proceedings’). Furthermore, as those detained under the Home Secretary’s decision had ‘only
limited access’ to evidence that was being used against them, it was necessary to use a specific
approach to the issue of the burden of proof in deciding whether or not a statement had been obtained
by torture. In these circumstances, if a detainee was able to show a ‘plausible reason’ that evidence was
obtained by torture, then the Commission had to ‘initiate relevant inquiries.’ The correct approach was
to be found in Article 15 UNCAT. Under the Convention, if, on the balance of probabilities, evidence has
been obtained by torture, it should not be admitted. However, if the Commission doubted whether
evidence had been so obtained, the evidence should not be accepted.

What is important here is the fact that Article 15 UNCAT was not directly incorporated into UK domestic
law. But as UNCAT was the key international treaty in this regard, reference to it when considering
evidence obtained by torture was unavoidable. The House of Lords did so repeatedly to support their
view that such evidence should not be admissible.

Expulsion and the Threat of Torture

In this final section, we will consider an issue we have mentioned in passing on more than one occasion.
Article 3 UNCAT explicitly prohibits the expulsion, return, or extradition of a person to another state
where there are substantial grounds for believing that they would be in danger of being subjected to
torture. It should be noted it extends to a prohibition where there is a risk of torture, not inhuman
treatment, for example. Article 7 ICCPR and Article 3 ECHR do not refer to the principle of non-return
but have been interpreted to that end by the Human Rights Committee and the European Court of
Human Rights. The Human Rights Committee’s approach has changed, as seen in Kindler v Canada and
Judge v Canada. These communications, among others, are discussed in the reading. The context of
these two communications, however, is the use of the death penalty for capital crimes committed in the
USA by persons who fled to Canada to escape prosecution. The controversy relating to such
communications is easy to see. You have persons strongly suspected of committing serious crimes in the
USA entering a state (in these communications, Canada). Yet, Canada may not be able to return them to
the USA as they will face the death penalty. Canada, however, is in most scenarios unlikely to be able to
prosecute the persons either as the rules on jurisdiction under international law would only allow
Canada to prosecute such persons if it had some connection to the crime committed in the USA, for
example, if the victim was a Canadian national. Thus, Canada has someone highly likely to have
committed a severe crime elsewhere residing in its territory. Still, it cannot prosecute that person, and it
cannot return that person either. Usually, such an ‘undesirable’ would not be admitted to a state or
expelled upon discovering their misdeeds, but the state cannot do so here. In essence, such persons
may escape liability for their crimes. If a person in the USA wished to commit a capital crime, why not do
so and then flee to Canada? Of course, the federal state of the USA concerned may agree to waive the
use of the death penalty to secure the return, but if they do not, then the return may be prohibited.

In the context of ICCPR, there have been twists and turns, as covered in the reading, but in the context
of ECHR, the ECtHR has long interpreted Article 3 by prohibiting return. Cases such as Soering v United
Kingdom, Chahal v United Kingdom, and Saadi v Italy will be covered. The law relating to refugees and
refoulement (the prohibition of return) is a central principle under the 1951 Geneva Convention Relating
to the Status of Refugees. Refugee status, however, requires satisfying specific critical criteria; certain
rights are attached if satisfied. An individual who does not meet the requirements still cannot be
returned; however, if there is a real risk of torture in a country that seeks that individual’s extradition,
usually the state of nationality. This became a significant issue in the context of the war on terror. Let us
take an example.

Suppose a Jordanian national is involved in activities in Jordan and is deemed a ‘terrorist’ by the law in
Jordan. The individual seeks to overthrow the regime as he disagrees with the Jordanian state’s policies
on various matters of a political nature. The individual flees to the UK before he is charged with any
crimes in Jordan. In the UK, he seeks political asylum as a refugee, which is granted. While in the UK, he
continues supporting plans to overthrow the regime in Jordan. The Jordanian authorities asked the UK
to extradite the individual to Jordan so he could face charges. Jordan, however, is well known as a state
where torture is widespread and tolerated. Article 3 ECHR would prohibit the UK from returning the
individual to Jordan if there was a real risk of him being exposed to torture. However, such individuals
may be perceived, rightly or wrongly, to be a threat to the UK. It is for such reasons that states like the
UK entered into Memorandums of Understanding with countries such as Jordan, stipulating that such
individuals can be returned if the UK receives adequate assurances that the individual will not be
tortured and that evidence obtained by torture will be deemed inadmissible in any trial. The example is
not purely hypothetical – it is inspired by a controversial and protracted case that was eventually
considered by the ECtHR, Othman (Abu Qatada) v United Kingdom 2012.

The first noteworthy case for our purposes is Soering v United Kingdom 1989. Here, the person in
question was a German national wanted by the authorities in Virginia, USA, for the murder of his
girlfriend’s parents. He was in the UK, and the question was whether he could be deported from the UK
to Virginia, where he would be exposed to ‘death row syndrome.’ It is worth noting that at the time of
the ECtHR’s decision in 1989, there was no absolute prohibition on the use of the death penalty among
Council of Europe states as there is now, further to the adoption of Protocol 13 ECHR. At para.91 of its
judgment, the Court set out the basic principle:

…the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3…and
hence engage the responsibility of that state under the Convention, where substantial grounds have
been shown for believing that the person concerned, if deported, faces a real risk of being subjected to
torture or inhuman or degrading treatment or punishment in the requesting country. Establishing such
responsibility inevitably involves an assessment of conditions in the requesting country against the
standards of Article 3…In so far as any liability under the Convention is or may be incurred, it is a liability
incurred by the extraditing Contracting State because of its having taken action which has as a direct
consequence the exposure of an individual to proscribed ill-treatment.

What is important here is that the prohibition to extradite does not refer to torture only – it is drawn
more broadly than that. Based on the facts, it was not the death penalty itself that was the issue but
‘death row syndrome.’ As the Court concluded in para.111 based on the facts: ‘having regard to the
very long period spent on death row in such extreme conditions, with the ever-present and mounting
anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant,
especially his age and mental state at the time of the offense, the applicant’s extradition to the United
States would expose him to a real risk of treatment going beyond the threshold set by Article 3.’
Accordingly, the Secretary of State’s decision to deport the applicant to the USA would if implemented,
give rise to a breach of Article 3. In the later 1996 case, Chahal v United Kingdom, the issue relating to
terrorism was coming into focus. Here, a Sikh nationalist who was residing in the UK was due to be
deported by the UK to his native India. The deportation was ordered on the ground that his continued
presence in the UK was unconducive to the public good for reasons of national security, including the
fight against terrorism. Mr. Chahal (one of several applicants in the case) had been arrested in the UK on
suspicion of involvement in a conspiracy to assassinate the Indian Prime Minister, Mr. Rajiv Gandhi, in
the UK. He was released without charge for this matter. Still, the UK government considered him to be
directly supporting Sikh terrorists in India, and he had numerous terrorist-related convictions for his
activities in India. Mr. Chahal claimed, however, that if he returned to India, he would be tortured by
the Indian security services due to his activities and well-known support for Sikh separatists. The UK
government had sought and received assurances from the Indian government that no harm would come
to Mr. Chahal if he were returned to India. Having considered numerous human rights reports
concerning police torture in India (especially in Punjab, where the majority of India’s Sikhs live and
where there was most unrest and persecution of Sikhs at the time) and the impunity with which police
torturers acted, at para.107, the Court concluded that due to:

…the attested involvement of the Punjab police in killings and abductions outside their state and the
allegations of serious human rights violations which continue to be leveled at members of the Indian
security forces elsewhere, the Court finds it substantiated that there is a real risk of Mr. Chahal being
subjected to treatment contrary to Article 3 if he is returned to India.

Chahal was controversial because the UK considered Mr. Chahal’s presence in the UK unconducive to
national security. However, it was still unable to return him to India. It is clear from these two cases that
the prohibition of ill-treatment contrary to Article 3 is absolute, so much so that it prohibits deportation
regardless of what the person in question may have done. The war on terror was fully engaged in 2008
by the time of Saadi v Italy 2008. Here, the applicant was considered by the Italian authorities to be
involved in terrorism and was imprisoned for some time. Saadi was a Tunisian national and had also
been convicted in absentia to 20 years imprisonment in Tunisia for terror-related activities. The Italian
authorities sought to return him to Tunisia but, due to the risk of torture, sought various assurances that
he would not be subject to ill-treatment, which would breach Article 3. Interestingly, the UK intervened
in the case and asked the Court to reconsider its earlier jurisprudence, as discussed in part above.

The UK government argued in Saadi that the principle in Chahal that, in view of the absolute nature of
the prohibition of treatment contrary to Article 3 of the Convention, the risk of such treatment could not
be weighed against the reasons, including the protection of national security, had caused a great many
difficulties for contracting states by preventing them in practice from enforcing expulsion measures. The
UK further argued that it was unlikely that any state other than the one of which the applicant was a
national would be prepared to receive into its territory a person suspected of terrorist activities. The UK
further noted that it was frequently impossible to use confidential sources or information supplied by
intelligence services to secure convictions. Other measures, such as detention pending expulsion,
placing the suspect under surveillance, or restricting his freedom of movement, provided only partial
protection. The UK conceded that the protection against torture and inhuman or degrading treatment
or punishment provided by Article 3 of the Convention was absolute. Still, it asked the Court to
reconsider its approach. The UK argued that, in cases concerning the threat created by international
terrorism, the approach followed by the Court in Chahal had to be altered and clarified. The UK stressed
the following:

1. The threat presented by the person to be deported must be assessed regarding the possibility and
nature of the potential ill-treatment. Each case's particular circumstances must be considered, and the
rights secured to the applicant by Article 3 of the Convention against those secured to all other
members of the community by Article 2 (right to life).

2. National security considerations must influence the standard of proof required from the applicant.
Thus, if the respondent state produced evidence that there was a threat to national security, more
substantial evidence had to be provided to prove the applicant would be at risk of ill-treatment in the
receiving country. In particular, the individual concerned must prove that it was ‘more likely than not’
that he would be subjected to treatment prohibited by Article 3.

3. Contracting states could obtain diplomatic assurances that an applicant would not be subjected to
treatment contrary to the Convention. Although, in Chahal, the Court had considered it necessary to
examine whether such assurances provided sufficient protection, it was probable that identical
assurances could be interpreted differently – it depended on the third state in question and the facts.

The Court rejected these arguments. It is strongly asserted in para.127 that:

Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment,
enshrines one of the fundamental values of democratic societies. Article 3 makes no provision for
exceptions, and no derogation from it is permissible under Article 15, even in the event of a public
emergency threatening the life of the nation…As the prohibition of torture and inhuman or degrading
treatment or punishment is absolute, irrespective of the victim’s conduct…the nature of the offense
allegedly committed by the applicant is, therefore, irrelevant for the purposes of Article 3.

137. The Court notes…that States face immense difficulties in modern times in protecting their
communities from terrorist violence…It cannot, therefore, underestimate the danger and threat of
terrorism today. That must not, however, call into question the absolute nature of Article 3.

138. Accordingly, Protection against the treatment prohibited by Article 3 is absolute; that provision
imposes an obligation not to extradite or expel any person in the receiving country who would run the
real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no
derogation from that rule…It must, therefore, reaffirm the principle stated in Chahal.

140. The Court reaffirms that for a planned forcible expulsion to be in breach of the Convention, it is
necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real
risk that the person concerned will be subjected in the receiving country to treatment prohibited by
Article 3…

146. …the Court considers that in the present case, substantial grounds have been shown for believing
that there is a real risk that the applicant would be subjected to treatment contrary to Article 3 of the
Convention if he were to be deported to Tunisia…

147. The Court further notes that…while the present application was pending, the Italian government
asked the Tunisian government for diplomatic assurances that the applicant would not be subjected to
treatment contrary to Article 3 of the Convention. However, the Tunisian authorities did not provide
such assurances. At first, they merely stated that they were prepared to accept the transfer to Tunisia of
Tunisians detained abroad…It was only in a second note verbal, dated 10 July 2007 (that is, the day
before the Grand Chamber hearing), that the Tunisian Ministry of Foreign Affairs observed that Tunisian
laws guaranteed prisoners’ rights and that Tunisia had acceded to ‘the relevant international treaties
and conventions’. In that connection, the Court observes that the existence of domestic laws and
accession to international treaties guaranteeing respect for fundamental rights in principle are not in
themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the
present case, reliable sources have reported practices resorted to or tolerated by the authorities which
are manifestly contrary to the principles of the Convention.

148. Furthermore, it should be pointed out that even if, as they did not do in the present case, the
Tunisian authorities had given the diplomatic assurances requested by Italy, that would not have
absolved the Court from the obligation to examine whether such assurances provided, in their practical
application, a sufficient guarantee that the applicant would be protected against the risk of treatment
prohibited by the Convention. The weight to be given to assurances from the receiving state depends, in
each case, on the circumstances prevailing at the material time.

149. Consequently, the decision to deport the applicant to Tunisia would breach Article 3 of the
Convention if it were enforced.

Saadi is very important in several respects. The Grand Chamber strongly reaffirmed the absolute nature
of Article 3 – in particular, the idea that the behavior or activities of the applicant are irrelevant. The
British government’s argument that a balance was needed between the state’s responsibility to protect
its population and their well-being and life (Article 2) against the applicant’s interests was rejected.
Finally, the notion that the degree of risk of torture had to be higher and more certain where there are
national security risks was also dismissed. The Court referred to states' difficulties in fighting terrorism
but remained steadfast.

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