Actualization of International Prohibition of Torture and Cruel, Inhuman or Degrading Treatment or Punishment: Through Member States

By Joshua Olewu – LL.B (Nig.), ACArb.

1 Introduction

The societies of the world have achieved the submission of human and peoples’ interests under certain forms of government. The governance of the individual and collective interest of these people, have become the basic concern of law and other factors consequent from international relations. They place duties on governments to guarantee that every one of its citizens—including the “disabled, suspects, detainees, and prisoners—is treated with respect at all times and in conformity with certain recognized rights.” The establishment of fundamental human rights has made this feasible to varying degrees per country or region. One of the many other essential human rights is the prohibition against “torture and cruel, inhuman, or degrading treatment or punishment”. This Right serves as the cornerstone for defending “human dignity and upholding the standards of decency demanded of any civilized nation”.

In response to the gravity of cases of torture, the United Nations declared June 26 as “International Day in Support of Victims of Torture” on December 12, 1997. This was done in order to completely abolish the practice of torture and ensure that applicable treaties, conventions, declarations, and legislation that explicitly or implicitly protect against torture are being effectively followed. This important action by the United Nations is intended to encourage states to uphold human dignity regardless of the circumstance.

REDRESS report of 2016 makes a compelling case for this, highlighting the seriousness of torture thus; “torture is one of worst scourges known to humankind.  …this underscores why taking active steps to prevent torture and other forms of ill-treatment is so important. It also underscores why torturers must be prosecuted and why the survivors of torture must receive reparation, including compensation for the harms they suffered and access to rehabilitation.”

Beyond torture,- which is the practice of putting a person through extreme physical and mental suffering in order to either elicit information or a confession or to force a person to perform an action; a broader concept of “cruel, inhuman or degrading treatment or punishment”, is part of the focus of this work. This frequently refers to “methods of treatment that are not considered to be torture or that are less harsh than it. It still entails mistreatment or humiliation. Acts that degrade a person, inflict mental torment, instill despair, agony, or a sense of inferiority are examples of this type of behavior.”

The notorious “Special Anti-Robbery Squad” (SARS), which continues to use torture and other ill-treatment despite the 2017 “Anti-Torture Act” in order to “execute, punish, and extract information from suspects”, is a great example of systematic torture by state authorities in Africa’s largest economy (Nigeria). This impunity led to increasing levels of theft, extortion, unlawful imprisonment, and abuse of civilians.

Miracle Onwe, age 23, was reported as a “torture survivor” by Amnesty International in February 2017. Mr. Onwe was accused of stealing a laptop and was “arrested, detained, and subjected to torture” at the SARS detention facilities in Anambra state, for 40 days before being charged and brought before a judge. This is an extract from his story:

“…their leader directed them to go and hang me. They took me to the back of the hall and tied me with ropes. Then they started using all manner of items to beat me, including machetes, sticks, inflicting me with all kinds of injuries. One of the officers used an exhaust pipe to hit me on my teeth, breaking my teeth. I was left on that hanger for more than three hours…”

As has been correctly observed, these have a well-known reputation for showing “…absolute disregard for international human rights laws and standards”.

This essay intends to examine the “human right against torture and cruel, inhuman, or degrading treatment or punishment”; to show the duty of states towards its realization and limitations thereto.

2 The Right against Torture and Cruel, Inhuman or Degrading Treatment or Punishment

2.1 Sources of the Right

The fundamental “physical and psychological integrity” of a person is violated by torture. The fact that torture is forbidden under “international, regional, and national” legislation is not unexpected. The legal frameworks prohibiting “torture, cruel, inhuman, or degrading treatment or punishment” has undergone multiple phases of advocacy and today derives its justification from several sources. The following list ensues:

1. International treaties, conventions and declarations includes the: “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (UNCAT) 1984, “Universal Declaration of Human Right” (UDHR) 1948, “International Covenant on Civil and Political Right” (ICCPR), 1966. These instruments, although generally not directly-binding in terms of international law, they are widely acknowledged as outlining the commitments made by UN Member States.
2. Regional Charters includes the “African Charter on Human and People’s Rights” (ACHPR); “European Convention on Human Right” (ECHR) 1950.
3. National Constitutions and Legislation includes: “Constitution of the Federal Republic of Nigeria” 1999 (as amended), “Prevention and Prohibition of Torture Act” 2012 in Uganda, Nigeria’s “Anti-Torture Act” 2017. These national legislation are responses of the concerned countries to their covenants under the existing “International Conventions”.
4. Case laws emanating from judicial decisions across courts and sovereign territories.

The provisions and efforts stated through the aforementioned sources will play a significant role in the discourse of this human right’s substance.

2.2 Meaning

The arguments about what constitutes “torture” are outside the purview of this article. The definition and safeguards against torture provided by various legal instruments are substantially relied upon in this article.

Article 1 of the “UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” 1984, defines the term “torture” to mean;

“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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.

Weissbrodt & Heilman accurately point out that the aforementioned definition focuses on the nature of the acts, the harm they cause, their aim and intent, the culpability of both private citizens and public officials, and the fact that they do not result from legal punishments. Under the ICCPR, such acts as mentioned above would still amount to “torture” even though perpetrated by “private persons”.

Beyond “torture”, – which is the practice of putting a person through extreme physical and mental suffering; a broader concept of “cruel, inhuman or degrading treatment or punishment”, frequently refers to methods of treatment that are not considered to be torture or that are less harsh than it. It still entails mistreatment or humiliation and also, acts that degrade a person, inflict mental torment, instill despair, agony, or a sense of inferiority- are examples of this type of behavior. Regional and national leaderships have through certain legal instruments, established protection for its citizens against torturous acts, “cruel, inhuman or degrading treatment or punishment”.

The International Justice Resource Center, reports that: “beating, electric shocks, stretching, submersion, suffocation, burns, rape and sexual assault” are some of the most popular forms of physical torture. While psychological “torture and ill-treatment” frequently consists of “isolation, threats, humiliation, mock executions, mock amputations, and witnessing the torture of others”,” these types of “torture and ill-treatment” frequently have the greatest enduring effects on victims.

Article 5 of the “African Charter on Human and Peoples’ Rights”, states that “Every individual shall have the right to the respect of dignity inherent in a human being (…) All forms of exploitation and degradation of man particularly (…) torture, cruel, inhuman or degrading punishment and treatment, shall be prohibited”. This protection is just as in art. 5 of the “Universal Declaration of Human Rights” 1948 and art 7 of the “International Covenant on Civil and Political Rights” 1976.

At national levels, inalienable rights, such as the right to human dignity and the freedom from all forms of demeaning treatment, are protected by the constitution and for Nigeria, is included in “section 34(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria.”  The application of physical punishment to any adult has been deemed degrading by courts under Nigerian law. In Mogaji v Board of Custom and Excise, the court made an order that; 

“the action by customs men aided by police officers and soldiers with the use of guns, the firing of same, the use of house-whips, and tear-gas for the apprehension, seizing, and detention of goods suspected to be prohibited as was meted to first, second, third, fourth, fifth, sixth, seventh, and eight plaintiffs and the removal of their goods without due investigation; violates the rights of the plaintiffs under the Constitution of the Federal republic of Nigeria not to be subjected to any inhuman or degrading treatment”.

The motive of torture is to reduce a person to the point of losing their “human dignity”, the right to freedom from “torture and cruel, inhuman, or degrading treatment or punishment” is hence, a pack of rights so fundamental to human existence that it amounts to an international crime.

2.3 Application of the Right

The right to be free from “torture and cruel, inhuman, or degrading treatment or punishment” relevantly applies to acts that have the potential to:

1. inflict severe “physical or mental suffering or humiliation on another person”;
2. grant new or expand existing authority to police, inspectors, or other authorized officers to violate this right; or permit modifications to the rules of evidence and procedure that would permit the use of evidence obtained through torture or other inhuman or degrading treatment; or
3. control how people are treated at any location where a public entity is in charge, such as a public hospital, an authorized mental health facility, a prison, a government school, a facility for people with disabilities or the elderly, or a supported residential facility; permit extended periods of segregation or other harsh prison policies.

It has been argued that the precedents and guidelines used by international organizations such as the “Human Rights Committee” of the United Nations, the “European Court of Human Rights,” and “international criminal tribunals” established by the UN should guide the criteria used by the States to determine whether actions are prohibited as “torture and other cruel, inhuman, or degrading treatment or punishment”.

The following cases have evidenced these thus;

Numerous instances of this right being used to shield people from torture have occurred over the years. One of such cases, is the case of Selmouni v. France, a historic ruling by the “European Court of Human Rights” that found the use of electric shocks during interrogation to be torture and in violation of “Article 3 of the European Convention on Human Rights”. The facts of this case underscores the very horrible experience of Mr. Selmouni and are represented below:

“Mr Selmouni was a joint Netherlands and Moroccan national, who was sentenced to thirteen years in prison after being convicted of drug trafficking offences in France. After being arrested on 25th November 1991, Mr Selmouni was held in custody for a total of three days. During this time, he alleges that he was the subject of repeated serious ill treatment. This included ‘being repeatedly punched, kicked, and hit with objects’ which include a baseball bat, being urinated over by a police officer who demanded that he suck his penis, and being threatened with a blowlamp and syringe’; he also alleged that he was anally raped by an officer using a truncheon, who told the claimant that ‘you Arabs enjoy being screwed’. Mr Selmouni complained repeatedly that he was being subjected to ill treatment, and a medical practitioner examined him on no fewer than five separate occasions over the three days that he was initially detained. A medical report submitted in response to the allegations noted at least 22 separate injuries, concluding that ‘lesions of a traumatic origin [….] were sustained at a time which corresponds to the period of police custody’. The police officers concerned claimed that the injuries were sustained as a result of a struggle upon arrest. However, a doctor reviewing Mr Selmouni’s medical notes commented that that although some of the injuries could be attributed to such a struggle, others ‘were not seen on the first examination and would certainly have been sustained after arrest’ supporting the claimant’s version of events”.

In another significant Nigerian case of Wabali v. C. O. P, the defendant was suspected of murder and held without charge for a protracted length of time. The court concluded that “a person’s detention in abhorrent prison conditions constitutes a violation of every man’s fundamental right to the respect of his person”.

In addition, other cases include Ahmed v. United Kingdom, which dealt with difficulties relating to incarceration without trial, and A v. Secretary of State for Home Department, which dealt with extradition to nations where there was a risk of torture.

Each of these cases, illustrates how the worldwide prohibition of torture has been used in diverse situations to shield people from this horrible crime.

3.4 Qualifications to the Right

Clarity regarding the absolute nature of the ban on torture is provided by the UNCAT, which states in art 3 that “no exceptional circumstances, including a state of war or the threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture.” The rule against torture has received a lot of attention, as evidenced by the fact that it is one of the few articles in multiple conventions from which no exceptions may be granted during “times of war or other national emergencies”. See also; art 15 of the “European Convention”.

In a dissenting opinion from the majority, the Judge noted in Al-Adsani v United Kingdom, that:

“It would be a travesty of law to allow exceptions in respect of civil liability by permitting the concept of state immunity to be relied on successfully against a claim for compensation by any victim of torture. The rationale behind the principle of international law that those responsible for atrocious acts of torture must be accountable is not based solely on the objectives of criminal law. It is equally valid in relation to any legal liability whatsoever (Per Judge Loucaides)”.

Even the instruments under which some kind of exceptions are allowed over the covenants of State-parties, the issue of torture is not inclusive. According to art 4 of the ICCPR, nations may take actions that disobey certain of the Covenant’s requirements “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed”. However, the prohibition against “torture and other cruel, inhuman, or degrading treatment” is expressly left out of the list of responsibilities that might be waived.

3.5 Correlated Rights

The exercise of other “human rights” may also be correlated to the criminalization of torture and other cruel treatment. In this sense, the realization or otherwise of the “freedom from torture” affects how well or how poorly (as the case may be) an individual is able to exercise other “fundamental human rights”.

 The following is a list of the rights that are thought to be potentially impacted:

1. The “right to privacy” – art 17 of the ICCPR.
2. The “right to liberty and security” under art 9 of the ICCPR
3. The “right to fair treatment in criminal proceedings” as in art 14 of the ICCPR.
4. Human “right to life” as obtainable under art 6 of the ICCPR. The possibilities of loss of life during incidences of torture; are not therefore, discountenanced.

4 The Duties of States in the Realization of this Right.

The international community recognizes the freedom from torture as a basic human right, but, it is one thing to list rights in a document; it is quite another to take action on those rights. In accordance with certain human rights systems, states are required to protect citizens’ rights to be free from “torture and cruel, inhuman, or degrading treatment or punishment”. These obligations of states will be discussed in the section following. Since that sovereign nations are often exempt from the direct application of international law, it is crucial that governments take proactive measures to uphold these responsibilities in order to “guarantee a world free from torture”.

To ensure the protection of this right, many duties under “international human rights law” must be met by states as follows:

1. States must make torture a crime and make sure that those who commit it are held accountable. All acts of torture; including attempts, must be considered crimes under each State Party’s domestic criminal code; and  suitable punishments imposed to reflect their serious nature.
2. They must ensure the rehabilitation and compensation of torture victims and offer them suitable remedies.
3. States shall forbid any cooperation in torture carried out by other states or non-state actors.
4. Responsibility to avoid torture by taking steps including educating law enforcement personnel about human rights principles and putting independent oversight procedures in place.
5. Under the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” 1984, there is obligation on states to criminalize and prosecute offenders, aid the extradition of offenders, and even where the offender is not extradited; to bring him before appropriate authorities. These obligations have been observed to ensure that it is difficult for an offender to escape the consequences of his acts by fleeing to another territory.
6. Reviewing questioning techniques in a highly methodical manner.
7. Ensure the inadmissibility of evidence obtained via torture.
8. Obligation to submit a report on the implementation of the contents of the Convention – art 40 ICCPR and art 19 UNCAT.

5 Factors Challenging the Realization of this Right

Throughout the course of human history, the issue of torture has persisted. Several obstacles in the battle against torture still need to be resolved since despite the efforts of the international community, it still exists in a number of nations worldwide.

1. One of the main obstacles is that international treaties that forbid and make acts of torture illegal do not directly apply to the state-members they are directed to. Even when members enact laws with respect to the Convention, there may be limitations, exclusions or variations to certain degrees. For instance, evidence is accepted by the court even though it is connected to “any impropriety or illegality”; once it is “relevant and admissible”. The “Nigeria Evidence Act” however, gives the court the discretion to exclude such evidence so improperly obtained. Some learned authors in this jurisdiction have sought a balance between “complete exclusion or inclusion” of such evidence.
2. Some nations lack the political will to confront the issue of torture. The use of torture is still common in various nations, and the authorities frequently ignore it (often because those who torture are state actors). This frequently occurs in nations with autocratic governments and little regard for human rights.
3. The fact that torturers are not held accountable is another issue. Even though it is prohibited in several nations, torturers seldom face charges or punishment. As a result, there is a culture of impunity, whereby those who torture feel free to do so.
4. There are also social, religious and cultural variables that support the continuation of torture. It could be seen as legitimate in some communities as a way to get information or punish criminals. For instance, in Nigeria, the Northern part of the country’s Penal Code permit the use of whipping/assault to correct a wife and other types of cruel punishment.
5. In the framework of the UN treaty bodies, the follow-up procedures have been considered to be inadequate, particularly with relation to state reporting procedures.
6. Infrastructural leprosy of public facilities like; police incarceration rooms, prison, etc. Since keeping anyone in deplorable confines breaches this right; lack of good infrastructure is a challenge towards realizing the right against “torture”.

6 Recommendations

There are a number of ideas that might be put into practice to overcome these obstacles.

1. Adopting a zero-tolerant-policy against torture by all nations is one of the viable recommendations. This would assist to establish a culture of respect for human rights and convey a strong message that torture is abhorrent.
2. The creation of an impartial committee to look into allegations of torture in institutions and agencies of Government. The team in question would be in charge of making sure that offenders are held accountable for their conduct; through coordinated investigations.
3. To guarantee that offenders are held accountable for their conduct, more stringent accountability procedures must also be implemented. No matter the performers’ backgrounds- religious, cultural, marital, medical, or political—the check should be intense.
4. To increase public understanding and education about the subject of torture, governments and civil society groups must work together. This might be done by incorporating human rights education into school curricula, disseminating information through the media, and instructing law enforcement authorities on how to handle people who are in their care properly.
5. It would be more likely that people would be protected from “torture and inhuman treatment” if a global system of visitation was implemented and highly good rules were made in this regard.
6. In addition, there has to be more inter-governmental collaboration in the battle against torture. This might be accomplished by exchanging best practices and giving technological support to States in need of same. In the end, it will take a team effort from all parties involved to make the worldwide human right against torture a reality.

7 Conclusion

Finally, it should be noted that the international community must work together actively to combat torture. There are a number of suggestions that may be put into practice to deal with this problem, notwithstanding the difficulties that present. These include the adoption of a “zero-tolerance” approach to torture, the creation of an impartial authority to look into allegations of torture, more public awareness and education, and improved inter-governmental collaboration. With these safeguards in place, it is possible to preserve people’s human rights and make sure that torture is completely eliminated.

Author: Joshua Olewu – LL.B (Nig.), ACArb.  Joshua Olewu is an LL.B Degree holder from the University of Nigeria, and an Associate of the Nigerian Institute of Chartered Arbitrators (NICArb). He is an avid reader, researcher and academic writer. His special interest areas in law includes: Intellectual Property Law, Corporate and Commercial Law, Arbitration, Consumer protection Law, and Human Rights. He can be reached via: joshuauolewu@gmail.com (email) https://www.linkedin.com/in/joshua-olewu-acarb-4a763b116/ (LinkedIn). 

ENDNOTES

^* Joshua Olewu is an LL.B Degree holder from the University of Nigeria, and an Associate of the Nigerian Institute of Chartered Arbitrators (NICArb). He is an avid reader, researcher and academic writer. His special interest areas in law includes: Intellectual Property Law, Corporate and Commercial Law, Arbitration, Consumer Protection Law and Human Rights. He can be reached via: joshuauolewu@gmail.com (email) https://www.linkedin.com/in/joshua-olewu-acarb-4a763b116/ (LinkedIn).

 Queensland Human Rights Commission (QHRC), ‘Right to Protection from Torture and Cruel, Inhuman or Degrading Treatment’ (QHRC Fact Sheet, November 202) <https://www.qhrc.qld.gov.au/your-rights/human-rights-law/right-to-protection-from-torture-and-cruel,-inhuman-or-degrading-treatment> accessed 10 April 2023.

 REDRESS, ‘Legal Frameworks to Prevent Torture In Africa: Best Practices, Shortcomings and Options Going Forward’ (REDRESS Report, March 2016) <https://www.refworld.org/pdfid/56e2d44e4.pdf> accessed 11 April 2023.

 QHRC, Supra (n1).

 Osai Ojigho, ‘Nigeria: Horrific reign of impunity by SARS makes mockery of anti-torture law’ (Amnesty International, 26 June 2020) <https://www.amnesty.org/en/latest/news/2020/06/nigeria-horrific-reign-of-impunity-by-sars-makes-mockery-of-anti-torture-law/> accessed 12 April 2023.

 Ibid.

 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III).

 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58.

 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR).

 Seen also in ICCPR, art 7.

 David Weissbrodt & Cheryl Heilman, ‘Defining Torture and Cruel, Inhuman, and Degrading Treatment ‘ (2011) 29 Law & Ineq 343.

 Office of the High Commissioner for Human Right, ‘General Comment No. 20: Article 7 (Prohibition of torture or other cruel, inhuman or degrading treatment or punishment) A/44/40 1992’ article 13 <https://seafarersrights.org/wp-content/uploads/2018/03/INTERNATIONAL_TREATY_HRC-GENERAL-COMMENT-NO-20-ARTICLE-7-CCPR_1992_ENG.pdf> accessed 15 April 2023.

 UNCAT, art 16.

 Performance Management Consultants Limited, ‘The Situational Analysis on The Prevalence of Torture in Uganda’ (November 2015) African Centre for Treatment and Rehabilitation of Torture Victims (ACTV) <https://actvuganda.org/download/Publications/ACTV-Situational-Analysis-on-the-Prevalence-of-Torture-in-Uganda-Report-June-2016_2.pdf> accessed 15 April 2023.

 (1982) 3 NCLR 552.

 David Weissbrodt & Cheryl Heilman, ‘Defining Torture and Cruel, Inhuman, and Degrading Treatment ‘ (2011) 29 Law & Ineq, 343.

 (2000) 29 ECHRR 403.

 (1985) 6 NCLR 429.

 (2013) 56 EHRR 1.

 (2004) UKHL 56.

 (2001) ECHR 751.

 UNCAT, art 4(1)(2); ICCPR, art 2(2).

 UNCAT, art 14; ICCPR, art 2(3).

 UNCAT, art 10.

 UNCAT, art 5.

 UNCAT, art 6.

 UNCAT, art 7.

 Hans Danelius, ‘Torture and Cruel, Inhuman or Degrading Treatment or Punishment’ (1989) 58 Nordic J Int’l L 172, 176.

 UNCAT, arts 11 and 16.

 UNCAT, art 15; ICCPR, art 14(3)(g).

 Evidence Act 2011, ss 1 and 2; Ali v The State (2019) 14 NWLR (1692) 315, 325

 Evidence Act 2011, ss 14 and 15.

 Gambo Abdulsalam, ‘Admissibility of Illegally and Improperly Obtained Evidence in Nigeria – A Lesson from the United State of America and the UK’ (2022) Int J Law Crime Justice 5(10) 406-415.

 Penal Code Northern Nigeria, s 55(1)(d).

 Roland Bank, ‘International Efforts to Combat Torture and Inhuman Treatment: Have the New Mechanisms Improved Protection’ (1997) 8 Eur J Int’l L 613.

 Ibid.