Unmasking the Challenges: Interrogation and International Law

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Book Chapter

Reference

Unmasking the Challenges: Interrogation and International Law

GAGGIOLI GASTEYGER, Gloria, KILIBARDA, Pavle

GAGGIOLI GASTEYGER, Gloria, KILIBARDA, Pavle. Unmasking the Challenges: Interrogation and International Law. In: Steven J. Barela, Mark Fallon, Gloria Gaggioli, and Jens David Ohlin.

Interrogation and Torture: Research on Efficacy and Its Interplay with Legality and Morality. Oxford : Oxford University Press, 2020. p. 359-391

Available at:

http://archive-ouverte.unige.ch/unige:135825

Disclaimer: layout of this document may differ from the published version.

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Oxford University Press, 2020, pp. 359-391.

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UNMASKING THE CHALLENGES:INTERROGATION AND INTERNATIONAL LAW Gloria Gaggioli & Pavle Kilibarda

Abstract

International human rights law and international humanitarian law absolutely prohibit all forms of torture and CIDT at all times and against anyone, even the worst of criminals. International criminal law moreover provides for the individual criminal responsibility of perpetrators of torture, cruel or inhuman treatment. Nevertheless, there remains a number of legal and practical challenges to overcome in order to ensure the effectiveness of this prohibition. The most visible challenge pertains to the implementation of the prohibition not only in domestic law but also in the concrete practice of law enforcement officials and other State agents. Other – less visible and insufficiently-discussed – challenges concern laws and practices which may indirectly impact the effectiveness of the prohibition of torture and CIDT and whose acceptability under public international law is not crystal clear. For instance, is the prohibition of using evidence obtained through torture/CIDT (so-called “exclusionary rule” or “fruit of the poisonous tree”) absolute and applicable in all cases? How far does the international law obligation to prosecute and punish torture/CIDT perpetrators go? To what extent may individual perpetrators of torture/CIDT invoke mitigating circumstances or even justifications to avoid or diminish punishment for the commission of such acts in extreme circumstances (e.g. to prevent the unlawful taking of lives)? Does the passing of lenient sentences upon individual perpetrators of ill-treatment entail the responsibility of the State as a failure to punish? The present article will discuss these issues in light of contemporary international practice of various human rights bodies (treaty bodies and UN special procedures) and international/mixed criminal courts tribunals.

Keywords

Torture (definition), Cruel, inhuman and degrading treatments (definition); Absolute character of the prohibition, Exclusionary rule, Fruit of the poisonous tree, Obligation to prosecute and punish, Appropriate penalties.

Outline

I. INTRODUCTION ... 2 II. THE PROHIBITION OF TORTURE AND OTHER ILL-TREATMENT ... 3 III. LEGAL CHALLENGES TO THE EFFECTIVE ERADICATION OF INTERROGATIONAL ILL-TREATMENT .. 14 A. IMPLEMENTATION-RELATED CHALLENGES ... 14 B. LEGAL UNCERTAINTIES AND CONTROVERSIES ... 16 1. The Prohibition to Use of Information Extracted through Torture and Other Ill-Treatment ... 18 2. The Obligation to Prosecute Perpetrators of Torture and Other Ill-Treatment and the

“Appropriate” Character of Penalties ... 32 IV. CONCLUSION ... 40

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2 I. Introduction

The pervasive threat and fear of terrorism in the post-9/11 world have reignited debate about the possible merits of torture and other cruel, inhuman or degrading treatment or punishment (CIDT). Torture, not as sadism but as an instrument of achieving some alleged higher purpose, has come to permeate Western thought, art and society in the past decade. The resurgence of high-budget cinema dealing with the issue – from Miloš Forman’s 2006 period drama Goya’s Ghosts, containing thinly-veiled references to modern interrogation techniques, to Kathryn Bigelow’s award-winning 2012 film Zero Dark Thirty, covering the search for Bin Laden – is symptomatic of society’s renewed reflections on the moral dilemma of extracting information through cruelty.¹

Whereas the ethical debate on torture is old,its straightforward legal prohibition is quite recent.² Contemporary international law prohibits torture and other forms of ill-treatment at all times, regardless of the circumstances under which they are committed. Nevertheless, certain aspects of the political and moral controversy surrounding torture have had implications for its legal status as well. For example, a judicial body may pay lip service to the prohibition of torture when passing a verdict but only issue a symbolic sentence to its perpetrators who were acting for a perceived greater good.³ Similarly, a democratic government may officially abhor torture

1 For an up-to-date overview of the psychological and social conditions allowing torture to occur, see Jonathan Lake Austin & Riccardo Bocco, “Becoming a torturer: Towards a global ergonomics of care” [2016] 98:3 IRRC 859-888 (2016).

2 For example, in the medieval Christian West, torture was seen as a legitimate means of extracting confessions from suspected heretics, and was even at times mandated upon secular authorities by religious powers. Thus Pope Innocent IV decreed in 1252, “The head of state or ruler must force all the heretics whom he has in custody, provided he does so without killing them or breaking their arms or legs, as actual robbers and murderers of souls and thieves of the sacraments of God and Christian faith, to confess their errors and accuse other heretics whom they know, and specify their motives, and those whom they have seduced, and those who have lodged them and defended them, as thieves and robbers of material goods are made to accuse their accomplices and confess the crimes they have committed.” See David P. Gushee, “The Contemporary U.S. Torture Debate in Christian Historical Perspective” [2011] 39:4 The Journal of Religious Ethics 589-597, 593.

3 See, e.g. ECtHR, Gäfgen v. Germany, 1 June 2010, App. no. 22978/05, paras 57-52.

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and publicly renounce torture-extracted information, but nevertheless leave the door open for using such information under “exceptional circumstances”.⁴ The persistence of such issues, which are often steeped into extra-judicial considerations, represents one of the key contemporary challenges to what is otherwise a clear legal prohibition.

In what follows, we shall first revisit the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, which has since its inception affirmed itself as an absolute and non-derogable norm of international law. This analysis shall be primarily conducted in the context of interrogation, which is one of the most common reasons for deliberate ill-treatment. After having recalled problems in relation to the implementation of the prohibition of torture and other CIDT, we shall examine two main hidden contemporary challenges, namely the use of information extracted through torture and other ill-treatment and the inadequate punishment of perpetrators of such acts, as well as consider how these challenges may be addressed from the perspective of positive law. Our analysis will draw as appropriate from the practice of international human rights mechanisms as well as domestic case law.

II. The Prohibition of Torture and Other Ill-Treatment

While today the prohibition of torture and other cruel, inhuman or degrading treatment or punishment represents one of the cornerstones of international human rights law (IHRL), its prohibition in times of armed conflict as part of international humanitarian law (IHL) actually predates the equivalent provision in IHRL. Already the Geneva Convention of 1929 required the humane treatment of prisoners of war⁵ and prohibited any form of corporal punishment and cruelty;⁶ depravities committed during World War II would subsequently be treated as war

4 See Government of Canada, Ministerial direction to Global Affairs Canada: Avoiding complicity in mistreatment by foreign entities: Appendix C of the Ministerial Direction: Decision-making process for the use of information that was likely obtained through the mistreatment of an individual by a foreign entity, 14 December 2017, available at <http://international.gc.ca/gac-amc/publications/transparency-transparence/ministerial_directions- instructions_du_ministre.aspx?lang=eng>.

5 Convention relative to the Treatment of Prisoners of War. Geneva, 27 July 1929, Art. 2.

6 Ibid, Art. 46.

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crimes by the International Military Tribunal in Nuremberg.⁷ All four of the Geneva Conventions of 1949 and their Additional Protocols of 1977 prohibit torture and other forms of ill-treatment,⁸ and according to the International Committee of the Red Cross (ICRC), this legal principle represents a long-standing norm of customary IHL.⁹

Outside the context of armed conflict, torture and other ill-treatment were first prohibited at the international level by the Universal Declaration of Human Rights (UDHR) in 1948,¹⁰ which, while it now reflects customary law, was adopted in the form of a resolution of the United Nations General Assembly and does not have, as such, binding character. However, the wording employed by the UDHR was subsequently (with minor alterations) adopted for the European Convention on Human Rights of 1950 (ECHR),¹¹ and later – at the universal level – for the International Covenant on Civil and Political Rights of 1966 (ICCPR).¹² Both of these treaties are legally binding instruments of international law. The prohibition is also reproduced in the American Convention on Human Rights (ACHR).¹³ Finally, in 1984, the United Nations

7 The Statute of the International Military Tribunal explicitly foresees its jurisdiction over ill-treatment inflicted upon the civilian population or prisoners of war, which is listed as a war crime. See UN, Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, 8 August 1945, Art 6 (b).

8 See Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (GC I), Arts 3 and 12 (2);

Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (GCII), Arts 3 and 12 (2); Geneva Convention III Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (GCIII), Arts 3, 17 (4), 87 (3) and 89; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (GCIV), Arts 3 and 32; Protocol I Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (API), Art. 75 (2); and Protocol II Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (APII), Art 4 (2).

9 The ICRC describes this customary norm as being applicable both to international and non-international armed conflicts. See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol I: Rules (Cambridge, Cambridge University Press, 2005), pp. 315-319. See also ICRC, “Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949:

Commentary of 2016” (2016), para. 1372.

10 UNGA, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Art. 5.

11 European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, ETS 5, entered into force on 3 September 1953, Art. 3.

12 International Covenant on Civil and Political Rights of 16 December 1966, 999 UNTS 171, entered into force on 23 March 1976, Art. 7.

13 American Convention on Human Rights of 22 November 1969, entered into force on 18 July 1978, OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99 (1969), Art. 5 (2).

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Convention against Torture¹⁴ was adopted, establishing the most comprehensive prohibition of torture and other CIDT at the universal level.

Other human rights treaties which are not specific to torture and other ill-treatment may nevertheless be indirectly relevant to their prohibition. For example, the existence of ill- treatment may be presupposed in some cases of the complex phenomenon of enforced disappearance,¹⁵ and in worst cases it may even be part of the actus reus of the crime of genocide.¹⁶

While there may be interpretational differences in the jurisprudence of the mechanisms monitoring the implementation of each of the aforementioned treaties, there is a crucial element which is common to all of them, and that is the absolute and non-derogable nature of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

According to the United Nations Human Rights Committee (HRC), the ICCPR monitoring body, “No justification or extenuating circumstances may be invoked to excuse a violation of article 7 [of the ICCPR] for any reasons, including those based on an order from a superior officer or public authority.”¹⁷ The absolute nature of the prohibition of torture has also been re-

14 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, 1465 UNTS 85, entered into force on 26 June 1987

15 The Inter-American Court of Human Rights in particular has been willing to presume the existence of ill- treatment in cases of enforced disappearance. See e.g. Inter-American Court of Human Rights (IACtHR), Velásquez-Rodríguez v. Honduras, 29 July 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), paras 149-158; IACtHR, Goiburú et al. v. Paraguay, 22 September 2006, Inter-Am. Ct. H.R. (Ser. C) No. 153, paras 74-94; IACtHR, Anzualdo Castro v. Peru, 22 September 2009, Inter-Am. Ct. H.R. (Ser. C) No. 202, paras 68-86.

16 The International Criminal Tribunal for the Former Yugoslavia (ICTY) found that the massacre in Srebrenica constituted genocide in the sense of Article II (a-b) of the Genocide Convention and Article 4 (2) (a-b) of the ICTY Statute; the actus reus of genocide included not only the killing of the military-aged Muslim men of Srebrenica, but the serious bodily or mental harm that had been inflicted on the few who survived; see ICTY, Prosecutor v.

Radislav Krstić, IT-98-33-T, Judgement of 2 August 2001, para. 543. This approach has been mirrored by the International Court of Justice (ICJ), which considered, inter alia, beatings and acts of sexual violence as coming within the meaning of Article II (b) of the Genocide Convention; see ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. Reports 43, Judgement of 26 February 2007, paras 291-319 and ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 2015 I.C.J. Reports 3, Judgement of 3 February 2015, paras 157-160, 296-360, 494-496 and 499.

17 HRC, CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992, para. 3.

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stated by the Committee against Torture,¹⁸ which monitors the implementation of the Convention against Torture. In the jurisprudence of the European Court of Human Rights (ECtHR), the absolute nature of the prohibition contained in Article 3 of the ECHR has been confirmed many times, regardless of the particular treatment’s classification as either torture or inhumane or degrading treatment.¹⁹ The derogation clauses of the ICCPR,²⁰ the ECHR²¹ and the ACHR²² all foresee that the prohibition of torture and other ill-treatment cannot be derogated from under any circumstances.

However, neither the ICCPR nor regional treaties such as the ECHR or ACHR provide a definition of the various forms of ill-treatment that they prohibit. The most widely accepted definition of torture²³ (but not cruel, inhuman or degrading treatment or punishment) is provided by the Convention against Torture, which defines it as:

[A]ny 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

18 UN Committee against Torture (CAT), General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2, para. 5.

19 See, e.g. ECtHR, Ireland v. The United Kingdom, 18 January 1978, App. no. 5370/71, paras 163, 167-168;

ECtHR, Selmouni v. France, 28 July 1999, App. no. 25803/94, para. 95; ECtHR, Aktaş v. Turkey, 24 April 2003, App. no. 24351/94, paras 310-313.

20 International Covenant on Civil and Political Rights of 16 December 1966, 999 UNTS 171, entered into force on 23 March 1976, Art. 4 (2).

21 European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, ETS 5, entered into force on 3 September 1953, Art. 15 (2).

22 American Convention on Human Rights of 22 November 1969, entered into force on 18 July 1978, OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99 (1969), Art. 27 (2).

23 The Convention against Torture is not the only human rights treaty to provide a definition of torture. The Inter- American Convention to Prevent and Punish Torture provides a definition which is considered wider than the one in the CAT (e.g. the text does not require that the physical or mental pain be “severe”, and in some situations, where the methods are calculated to “obliterate the personality of the victim or to diminish his physical or mental capacities”, torture may be found to exist even if no actual pain has been inflicted). However, that definition is arguably more stringent than the one existing in customary law and therefore only legally binding upon the Inter- American Convention’s States Parties. See Inter-American Convention to Prevent and Punish Torture of 9 December 1985, OAS Treaty Series, No. 67, entered into force on 28 February 1987, Art. 2 (1). Jurisprudence in the Inter-American system has also invoked practice under the CAT, and has accordingly found that, in spite of the wording of the Inter-American Convention, in order for pain inflicted upon a victim to reach the threshold of torture, it must indeed be “severe”. See Diego Rodríguez-Pinzón & Claudia Martin, The Prohibition of Torture and Ill-treatment in the Inter-American Human Rights System: A Handbook for Victims and Their Advocates, OMCT Handbook Series Vol. 2, 2006, pp. 105-107.

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in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.²⁴

Several elements necessary for treatment to be classified as torture under international law may be gleaned from this provision. First of all, it must involve the infliction of “severe pain or suffering, whether physical or mental”; such pain or suffering must be inflicted intentionally, “for some ulterior motive,”²⁵ which goes beyond pure sadism or sexual gratification, for instance; and there must be some level of state agent involvement, if not directly, then through acquiescence at least.²⁶

Although torture may be committed outside custodial settings and interrogation booths, the link between torture and interrogation is real²⁷ and is the main reason why the Convention against Torture requires States Parties to educate law enforcement personnel about the absolute prohibition of torture as well as to keep interrogation rules under review.²⁸ In the words of Louise Doswald-Beck, “[t]he infliction of ill-treatment during interrogation is an obvious threat.”²⁹ Even traditional democracies have shown that they are not immune to the lure of the use of torture-extracted information, as was poignantly demonstrated by the legally-discredited US “Torture Memos”.³⁰ In his broader criticism of modern human rights law, Eric Posner

24 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, 1465 UNTS 85, entered into force on 26 June 1987, Art. 1 (1).

25 Adam McBeth, Justine Nolan & Simon Rice, The International Law of Human Rights, 2^nd edn, Oxford University Press, 2017, p. 81.

26 Manfred Nowak recalls, however, that, “On the basis of the due diligence test, states are increasingly held accountable for acts of ill-treatment committed by non-state actors.” Manfred Nowak, “Torture and Enforced Disappearance”, in Catarina Krause & Martin Scheinin (eds), International Protection of Human Rights: A Textbook, Åbo Akademi University Institute for Human Rights, 2009, 153-187, at p. 156. In armed conflict situations, the International Criminal Tribunal for the Former Yugoslavia (ICTY) has held that there is no requirement under customary law for the involvement of a state agent; see ICTY, The Prosecutor v. Anto Furundžija, IT-95-17/1-T, Judgement of 10 December 1998, paras 159-164.

27 See Nowak & Molina in the present volume holding that the most typical situation of torture is during interrogation.

28 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, 1465 UNTS 85, entered into force on 26 June 1987, Arts 10 and 11. See Nowak & Molina in the present volume on the obligation of systematic review under Article 11 of the UN CAT, as well as the chapter by Méndez

& Nicolescu on universal standards for non-coercive interviews.

29 Louise Doswald-Beck, Human Rights in Times of Conflict and Terrorism, Oxford University Press, 2011, at p.

219.

30 The Torture Memos were a set of memoranda signed by US Assistant Attorney General Jay S. Bybee, stating the Attorney General’s office’s views on permissible conduct in the context of interrogation in 2002. By putting an extremely high threshold of suffering necessary for torture, the widely-discredited Memos are overwhelmingly

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highlights the pressure exerted on police officers to combat crime in democratic countries such as Brazil, India or South Africa as providing an incentive to use extrajudicial methods, particularly torture, to extract confessions.³¹

Due to the risk of ill-treatment arising in the context of interrogation, different stakeholders have given their opinion on the standards that need to be respected in order for this risk to be minimized.³² Nevertheless, interrogation as such does not amount to ill-treatment. As further explained below, depending on the jurisprudence and interpretative approach of the deciding body in casu, not even all instances of forced interrogation will amount to torture as defined in the Convention against Torture.

Unlike torture, cruel, inhuman or degrading treatment or punishment are not defined by the Convention against Torture. The CAT has not offered a working definition in its General Comments, but has highlighted that “[t]he obligation to prevent ill-treatment in practice overlaps with and is largely congruent with the obligation to prevent torture,” indicating the similarities between the different forms of ill-treatment and recalling that the prohibition of CIDT is also non-derogable.³³ Like the CAT, the HRC has not felt inclined to define the different forms of treatment prohibited by Article 7 of the ICCPR.³⁴ The fact that the ICCPR contains a blanket prohibition of torture and other cruel, inhuman or degrading treatment or punishment in the same provision, and without any definitions of such ill-treatment, has granted

seen as an attempt at legalizing the ill-treatment perpetrated under the Bush Administration in the aftermath of 9/11.

31 Eric Posner, “The case against human rights”, The Guardian, 4 December 2014, available at <

https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights>.

32 See, e.g. UNGA, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), 8 January 2016, UN Doc. A/RES/70/175; as well as European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 2^nd General Report of the CPT, published in 1992, CPT/Inf(92)3-part1.

33 UN Committee Against Torture (CAT), General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2, para. 3.

34 “The Covenant does not contain any definition of the concepts covered by article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.” HRC, CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992, para. 4.

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the HRC sufficient flexibility not only to often avoid classifying ill-treatment in individual cases,³⁵ but also to apply virtually all aspects of the prohibition of torture to other CIDT.³⁶ As we shall see in the following section, the wording of the Convention against Torture has not given the same level of flexibility to the CAT when deliberating individual communications, in spite of the position taken in its general comments and concluding observations that the provisions of the Convention apply in equal measure to torture and other forms of CIDT.

While, like Article 7 of the ICCPR, Article 3 of the ECHR equally prohibits torture and other inhuman or degrading treatment, the European Court’s approach differs significantly, and exhibits much more complexity than that of the HRC. In its early case of Ireland v. The United Kingdom, the Court had the opportunity to scrutinize the UK’s interrogation practice during the Northern Ireland conflict. The Court established that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.”³⁷ It reiterated that all forms of ill- treatment are prohibited by the Convention “in absolute terms” and that there could be no derogation from this prohibition. Nevertheless, in its analysis, it found that it was necessary to differentiate “torture” from “inhuman or degrading treatment”.³⁸ According to the Court, the

“five techniques” used by the police:

were applied in combination, with premeditation and for hours at a stretch; they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation. They accordingly fell into the category of inhuman treatment within the meaning of Article 3 (art. 3). The techniques were also degrading since they were such as to arouse in their victims feelings of

35 See e.g. HRC, Marieta Terán Jijón v. Ecuador, 26 March 1992, Communication No. 277/1988, para 5.2; and HRC, Roberto Zelaya Blanco v. Nicaragua, 18 August 1994, CCPR/C/51/D/328/1988, para. 10.5-10.6.

36 Thus, the HRC has clearly considered obligations that the Convention against Torture does not explicitly establish with respect to CIDT, such as the prohibition of using evidence extracted by ill-treatment and the right of victims to compensation, as being implicit in Article 7 of the ICCPR; this reasoning may be gleaned from its concluding observations on States Parties’ reports, e.g. HRC, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee: United States of America, 18 December 2006, CCPR/C/USA/CO/3/Rev.1, and HRC, Concluding observations on the seventh periodic report of the Russian Federation, 28 April 2015, CCPR/C/RUS/CO/7.

37 ECtHR, Ireland v. The United Kingdom, 18 January 1978, App. no. 5370/71, para. 162.

38 Ibid, para. 164.

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fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.³⁹

The Court emphasized its belief that the distinction between torture and inhuman or degrading treatment “derives principally from a difference in the intensity of the suffering inflicted” and that the “special stigma” of torture must be attached to “deliberate inhuman treatment causing very serious and cruel suffering.”⁴⁰ Accordingly, the UK’s interrogation practice reached “only” the threshold of inhuman or degrading treatment, but was nevertheless in violation of the absolute prohibition contained in Article 3 of the ECHR.⁴¹

In its subsequent case law, the European Court would often concisely summarize its findings in Ireland v. UK on the concept of ill-treatment as follows:

The Court has considered treatment to be ‘inhuman’ because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be ‘degrading’ because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them.⁴²

The Court has also taken a more adaptable approach to torture, relying on the definition provided by the Convention against Torture. It has held that “certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified

39 Ibid, para. 167.

40 Ibid.

41 This finding was widely criticized at the time by human rights activists. Recently, the European Court rejected a request by Ireland to revise its judgment in the 1978 Ireland v. The United Kingdom case based on alleged new facts (i.e. that the UK concealed that it knew at the time that the 5 techniques had “substantial, severe and long- lasting” effects and that this interrogation method was adopted purposefully at the ministerial level) and to decide that the five techniques did, in fact, amount to torture. The fact that the Court refused to revise the original judgment might be disappointing, but this does not mean that the Court holds the view that the five techniques do not amount to torture today. The refusal to revise the judgment was merely based on technical considerations (i.e. the extent to which the additional facts were really new and whether they had a “decisive influence” on the judgement as per Rule 80 § 1 of the Rules of Court). In the 2018 revision judgement, the Court highlights the extent to which the prohibition of torture has evolved since 1978, thus implicitly acknowledging that the 5 techniques would be considered as torture today. See ECtHR, Case of Ireland v. the United Kingdom, Judgment (Revision), 20 March 2018, App. no. 5310/71, para. 124. For a criticism of the Court’s revision judgment, see dissenting opinion of Judge O’Leary. For supportive views, see: Iulia Padeanu, “Why the ECHR Decided Not to Revise its Judgment in Ireland v. the United Kingdom Case”, EJIL: Talk!, 5 April 2018; and Michael O’Boyle, “Revising the verdict in Ireland v. UK: time for a reality check?”, EJIL: Talk!, 6 April 2018.

42 See, e.g. ECtHR, Kudla v. Poland, 26 October 2000, App. no. 30210/96, para. 92; ECtHR, Ilaşcu and Others v.

Moldova and Russia, 8 July 2004, App. no. 48787/99, para. 425; and ECtHR, Rizvanov v. Azerbaijan, 17 April 2012, App. no. 31805/06, para. 44.

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differently in future” and that “the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.”⁴³ Nevertheless, the Court has never abandoned the distinction between torture and inhuman or degrading treatment based on the intensity of the physical or mental abuse involved. This distinction goes far beyond purely theoretical considerations and may have palpable consequences in practice. The ECtHR is not isolated in its interpretative approach. The International Criminal Tribunal for the former Yugoslavia (ICTY) notably has similarly emphasized the higher severity threshold for torture as opposed to cruel or inhuman treatment,⁴⁴ as well as the Inter-American Court of Human Rights.⁴⁵

Unlike the European Court, which emphasizes the severity of ill-treatment as the distinguishing feature between torture and other CIDT (Nigel Rodley refers to this as the

“pyramid approach”),⁴⁶ the former United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, has held that “the distinguishing factor [between torture and other forms of CIDT] is not the intensity of the suffering inflicted, but rather the purpose of the conduct, the intention of the perpetrator and the powerlessness of the victim.”⁴⁷ He has clarified that, unlike torture, “cruel, inhuman or degrading treatment or punishment (…) means the infliction of pain or suffering without purpose or intention and outside a situation where a person is under the de facto control of another.”⁴⁸ This approach has been further refined by the current Special Rapporteur Nils

43 Ibid, para. 101.

44 ICTY, Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, IT-04-84bis-T, Judgement of 29 November 2012, para. 422.

45 IACtHR, Caesar v. Trinidad and Tobago, 11 March 2005, Inter-Am Ct. H.R., (Ser C) No. 123 (2005), para.

50 (b).

46 Sir Nigel Rodley, “Reflections on Committee Against Torture General Comment No. 2” 11 N.Y. City L. Rev.

356 (2007-2008), at p. 356-357.

47 UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak*, 9 February 2010, A/HRC/13/39, para. 60. See also Nowak & Molina chapter in the present volume.

48 Ibid.

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Melzer,⁴⁹ who maintains the concept of powerlessness but defines it very broadly as a situation in which a person “has been overpowered, in other words has come under the direct physical or equivalent control of the perpetrator and has lost the capacity to resist or escape the infliction of pain or suffering (emphasis added).”⁵⁰ Additionally, Melzer equally broadens the notion of purpose by considering that, although torture needs to be “purposeful”, it does not need to fulfil one of the specific purposes listed in the UN Convention against Torture.⁵¹ In brief, in his view, the key distinguishing factors between torture and CIDT are indeed intent, purpose and powerlessness, but the two latter factors are defined broadly (so broadly that one may question their actual continued relevance for distinguishing torture from other forms of CIDT).

The CAT jurisprudence has equally rejected the “pyramid approach” (which requires a higher level of severity for torture as opposed to other CIDT). The CAT has generally found torture to have been committed where the victim was subjected to deliberate ill-treatment, usually in the context of extracting a confession,⁵² whereas CIDT was identified where the victim was subjected to inadequate conditions of detention.⁵³ Contrariwise, the European Court has refrained from describing deliberate ill-treatment for the purposes of procuring evidence as torture, when these ill-treatments were not considered of a sufficient gravity.⁵⁴ Insofar as we may talk of two broad doctrinal approaches to the distinction between torture and other CIDT – the first emphasizing the elements of intent, purpose and/or powerlessness, the other the

49 See UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment*, 14 February 2017, A/HRC/34/54, para. 20; UN Human Rights Council, Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, 20 July 2017, A/72/178, paras 30-34.

50 Ibid., para. 31. In practice, this means that torture may also be committed outside custodial settings (e.g. police brutality in managing assemblies), and even without any physical control (e.g. excessive use of tasers).

51 Ibid.

52 See, e.g. CAT, Déogratias Niyonzima v. Burundi, 13 January 2015, CAT/C/53/D/514/2012; CAT, Abdulrahman Kabura v. Burundi, 25 January 2017, CAT/C/59/D/549/2013, para 7.2; CAT, Enaâma Asfari v. Morocco,18 April 2017, CAT/C/59/D/606/2014.

53 See e.g. CAT, Sergei Kirsanov v. Russian Federation, 19 June 2014, CAT/C/52/D/478/2011; CAT, Abdulrahman Kabura v. Burundi, 25 January 2017, CAT/C/59/D/549/2013, para 7.8.

54 ECtHR, Ireland v. The United Kingdom, 18 January 1978, App. no. 5370/71, para. 167; ECtHR, Jalloh v.

Germany, 11 July 2006, 54810/00, paras 75-83; ECtHR, Gäfgen v. Germany, 1 June 2010, App. no. 22978/05, paras 94-108.

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severity of pain – their differences nevertheless seem to be offset by their flexible understanding of the minimal threshold of severity, which depends primarily on the individual circumstances of the victim.⁵⁵ In any case, while the CAT might describe ill-treatment as “torture” where the European Court would only identify “inhumane or degrading treatment”, both of these bodies will discern and condemn in equal measure a violation of the human rights treaty in question, entailing the international liability of the offending state. Along the lines of the CAT, the Elements of Crimes of the International Criminal Court (ICC) highlight as the only difference between the war crimes of torture and inhuman treatment the instrumental purpose of torture.⁵⁶

The best way to deal with the above-mentioned differences is to recognize the fact that the Convention against Torture and the ECHR represent different legal jurisdictions with autonomous concepts arising in the jurisprudence of their respective treaty bodies. What they have in common is their unequivocal condemnation of all forms of ill-treatment as equally giving rise to a violation of a jus cogens norm of international law.⁵⁷

Last but not least, we must also recall the jurisprudence of international criminal tribunals, which has been limited to ascertaining individual criminal responsibility under international law, but nevertheless remains an important component in the prohibition and prevention of torture and CIDT. Both torture and CIDT may be prosecuted as war crimes, crimes against humanity or part of the actus reus of genocide, including when they take the form of rape or enforced disappearance.⁵⁸

55 ECtHR, Ilaşcu and Others v. Moldova and Russia, 8 July 2004, App. no. 48787/99, para. 427; IACtHR, Bueno Alves v. Argentina, 11 May 2007, Inter-Am Ct. H.R., (Ser C) No. 164 (2007), para. 83.

56 See International Criminal Court (ICC), Elements of Crimes, 2011, ISBN No. 92-9227-232-2, Articles 8 (2) (a) (ii)-1 and 8 (2) (a) (ii)-2.

57 See, e.g. former Special Rapporteur on Torture Juan Méndez: “The prohibition against torture and other cruel, inhuman or degrading treatment or punishment enjoys the enhanced status of a jus cogens or peremptory norm of general international law (…)”, in Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez*, 10 April 2014, A/HRC/25/60, para. 40; and the Inter- American Court of Human Rights, in IACtHR, Caesar v. Trinidad and Tobago, 11 March 2005, Inter-Am Ct.

H.R., (Ser C) No. 123 (2005), para. 100.

58 Such is the case, for example, with the statutes of the ICTY, ICTY and ICC. See UNSC, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 7 Julu 2009), 25 May 1993, Arts 2 (b- c), 3, 4 (2) (b) and 5 (f-g, i) (the Court’s jurisprudence on “cruel treatment” under Article 3 of the Statute is based

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III. Legal Challenges to the Effective Eradication of Interrogational Ill- Treatment

A. Implementation-Related Challenges

The greatest obstacle to the eradication of ill-treatment remains poor implementation of otherwise uncontroversial legal standards.⁵⁹ Despite the fact that States do not generally question the prohibition of torture and other CIDT, violations remain unfortunately numerous.

The practice of the CAT regarding state reports is a good indicator in this regard: in 2017 and 2018, the Committee published its concluding observations on the reports of 37 countries,⁶⁰ in most cases identifying credible instances of ill-treatment. The most frequent violations include reports of excessive use of force by the police⁶¹ and/or military,⁶² often in the context of public demonstrations,⁶³ as well as poor conditions of detention⁶⁴. Even in some countries where the

on that provision’s nature as a residual clause and the crime itself is absent from its wording); UNSC, Statute of the International Criminal Tribunal for Rwanda (as last amended on 13 October 2006), 8 November 1994, Arts 2 (2) (b), 3 (f-g, i) and 4 (a); and UNGA, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, Arts 6 (b), 7 (f-g, i, k) and 8 (2) (a-e).

59 Apart from explicit treaty provisions, a number of standards have emerged in the form of soft law instruments which nevertheless enjoy great authority in the field of prevention of ill-treatment. These include, inter alia, the recently-updated Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) and the UN Code of Conduct for Law Enforcement Officials. See UNGA, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), 8 January 2016, A/RES/70/175; and UNGA, Code of conduct for law enforcement officials, 5 February 1980, A/RES/34/169. Additional standards have also been developed outside the UN framework, notably by the Committee for the Prevention of Torture at the Council of Europe level.

60 These include Ecuador, Monaco, Finland, Turkmenistan, Cabo Verde, Armenia, Sri Lanka, Namibia, Argentina, Bahrain, Lebanon, South Korea, Pakistan, Afghanistan, Antigua and Barbuda, Ireland, Paraguay, Panama, Bulgaria, Timor Leste, Italy, Cameroon, Moldova, Rwanda, Mauritius, Bosnia and Herzegovina, Qatar, Norway, the Czech Republic, Belarus, Tajikistan, the Russian Federation, Chile, Mauritania, the Seychelles, Peru and the Maldives.

61 E.g. UN Committee against Torture, Concluding observations on the sixth periodic report of Bulgaria*, 15 December 2017, CAT/C/BGR/CO/6; UN Committee against Torture, Concluding observations on the combined fifth and sixth periodic reports of Italy*, 18 December 2017, CAT/C/ITA/CO/5-6; UN Committee against Torture, Concluding observations on the sixth periodic report of Bosnia and Herzegovina*, 22 December 2017, CAT/C/BIH/CO/6.

62 E.g. UN Committee against Torture, Concluding observations on the second periodic report of Afghanistan*, 12 June 2017, CAT/C/AFG/CO/2.

63 E.g. UN Committee against Torture, Concluding observations on the seventh periodic report of Ecuador*, 11 January 2017, CAT/C/ECU/CO/7; UN Committee against Torture, Concluding observations on the fourth periodic report of Armenia*, 26 January 2017, CAT/C/ARM/CO/4; UN Committee against Torture, Concluding observations on the fifth periodic report of Belarus* , 7 June 2018, CAT/C/BLR/CO/5.

64 E.g. UN Committee against Torture, Concluding observations on the initial report of Lebanon*, 30 May 2017, CAT/C/LBN/CO/1; UN Committee against Torture, Concluding observations on the third periodic report of Republic of Moldova*, 21 December 2017, CAT/C/MDA/CO/3.

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Committee did not receive significant allegations of ill-treatment, other issues may remain, such as the use of tasers or other controversial crowd-control weapons.⁶⁵ The countries in which the Committee has identified the use of impermissible methods of interrogation are fortunately few, but are usually those in which the Committee also found a general and systematic recourse to torture and CIDT.⁶⁶ While the reporting methodology leaves some room for ambiguity, it seems that the majority of cases of torture identified by the Committee take place precisely in the context of interrogation.⁶⁷ The Pakistan report is indicative of how the Committee explicitly links torture (and not only CIDT) to counter-terrorism activities (which presumably involve interrogation of suspected terrorists).⁶⁸ Obviously, State reporting to the UN CAT probably reveals only the tip of the iceberg, and interrogational ill-treatment is certainly more common than States are ready to admit.

In order to prevent such violations, it is necessary to have strong prohibitions at the international and domestic level, but this – as such – is insufficient.⁶⁹ Prevention requires also an appropriate selection and training of law enforcement officials in general, and interrogators in particular. In this context there are two promising developments: Nowak and Molina suggest constantly reviewing interrogation practices,⁷⁰ while Mendez and Nicolescu suggest giving interrogators alternatives by training them in non-coercive interviewing.⁷¹ It is also necessary to fight – with scientific backing – the myth of efficacy in gaining reliable information, which

65 See UN Committee against Torture, Concluding observations on the seventh periodic report of Finland*, 20 January 2017, CAT/C/FIN/CO/7, para. 26.

66 E.g. UN Committee against Torture, Concluding observations on the initial report of Pakistan*, 1 June 2017, CAT/C/PAK/CO/1; UN Committee against Torture, Concluding observations on the second periodic report of Afghanistan*, 12 June 2017, CAT/C/AFG/CO/2.

67 See Nowak & Molina chapter in the present volume: “More than 90% of all torture survivors whom Manfred Nowak has interviewed in his capacity as UN Special Rapporteur on Torture were tortured for [the purpose of interrogation] by police officials.”

68 UN Committee against Torture, Concluding observations on the initial report of Pakistan*, 1 June 2017, CAT/C/PAK/CO/1, para. 12.

69 As discussed in the following sections, domestic laws allowing for broad justifications in torture cases might be an issue.

70 See Chapter by Nowak & Molina in this volume.

71 See Chapter by Mendez and Nicolescu in this volume.

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affects not only the police, but also Courts and tribunals and the public at large.⁷² Lastly, accountability of States and individual perpetrators remains essential for preventing further violations and more work needs to be done at the domestic and international level to fight impunity.⁷³

B. Legal Uncertainties and Controversies

Beside implementation-related issues, other hidden challenges to the effective eradication of interrogational ill-treatment persist. For example, there is a real or purported lack of clarity within the existing legal framework, or even potential legal gaps. Unlike implementation- related issues, regarding which there may be factual controversy – i.e. whether the alleged violations have actually occurred or not – this second category of issues stem from legal uncertainty, or interpretational issues.⁷⁴ Such interpretational issues may be real or construed, more or less in good faith, to justify abusive conduct.

Recent history unfortunately demonstrates that such problems of interpretation may have far-reaching effects by giving an air of legality to clearly unlawful actions. Karin Loevy explains that authorities have a general “compulsion of legality”, i.e., a “strong urge to justify every act that is done in the name of state security by a claim to its conformity with the law.”⁷⁵ Thus, the Bush Administration sought legal arguments to justify its resort to torture in the context of the “War on Terror”. The aforementioned Bybee Torture Memos are a testament to this attempt at “legalizing” the Enhanced Interrogation Techniques. Rather than trying to negate the existence of torture and CIDT under US jurisdiction as a fact, the Bush Administration claimed that their actions were lawful. The Torture Memos employed dubious legal reasoning to claim that the standard of suffering necessary for ill-treatment to reach the threshold of torture

72 See chapters in Section II of this volume.

73 See chapter by Claire Finkelstein and Steve Xenakis in this volume.

74 On this issue, see also Jeremy Waldron, “Cruel, Inhuman and Degrading Treatment: The Words Themselves”, NYU School of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 08-36, November 2008.

75 See chapter by Loevy in the present volume.

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was extremely high, namely it had to “be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” in addition to the bizarre requirement that the torturer should actually desire to inflict such pain or suffering rather than collect information.⁷⁶ As waterboarding apparently fails to meet this threshold, it could only be qualified as CIDT, which, it was wrongly argued, the Convention against Torture does not actually criminalize, or even prohibit.⁷⁷ The US Government therefore armed itself with a line of legal arguments it could raise to justify its conduct, and in spite of widespread criticism by the international community, state-sanctioned ill-treatment in US extra- territorial detention sites only abated when the new Obama Administration took over.⁷⁸ While it may be argued that the years of unchecked and systematic torture perpetrated by US state agents may be attributed to the stubborn resolve of an increasingly isolated administration, it is submitted that the “quasi-legal” nature of the justifications involved made the practice particularly hard to root out.

Today, the Bush era practice of torture has been condemned and strongly renounced both internationally and within the US itself (with some exceptions, notably in statements by US President Donald Trump)⁷⁹. However, at least two major issues pertaining to interpretational controversies persistently plague contemporary efforts in the struggle against torture: the use of torture or other CIDT-extracted information, and the impunity of perpetrators of ill-treatment because of legal hurdles.

76 US Department of Justice Office of Legal Counsel, “Memorandum for Alberto R. Gonzales, Counsel to the President: Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A”, 1 August 2002, pp. 2-13.

77 Ibid, pp. 14-22.

78 See “President Issues Executive Order Banning Torture and CIA Prisons”, 103:2 American Journal of International Law 331-334 (2009).

79 See e.g. Jenna Johnson, “Donald Trump on Waterboarding: ‘If it doesn’t work, they deserve it anyway’”, The Washington Post, Nov. 23, 2015, available at https://www.washingtonpost.com/news/post- politics/wp/2015/11/23/donald-trump-on-waterboarding-if-it-doesnt-work-they-deserve-it-

anyway/?utm_term=.0dd5103e72b2, accessed December 2018.

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1. The Prohibition to Use of Information Extracted through Torture and Other Ill- Treatment

In the 1939 judgment in Nardone v. United States, the US Supreme Court reaffirmed the inadmissibility of evidence procured by unlawful wire-tapping in a federal court.⁸⁰ Conceived in such a broad manner, the so-called exclusionary rule has often been used to deem inadmissible evidence produced by unlawful entry and seizure (i.e., without a warrant),⁸¹ and covers not only physical evidence but statements as well.⁸² In the US jurisprudence, there are a number of recognized exceptions to the exclusionary doctrine, especially in situations where exclusion will not serve the underlying goal of deterring state agents from engaging in unconstitutional behavior in the future. The US Supreme Court has moreover first developed the notion of “fruit of the poisonous tree”, in order to prevent Courts from admitting other

“downstream” evidence, which – although obtained legally – was only found because of the illegally obtained evidence.⁸³ In international law, the exclusionary rule has emerged most clearly in relation to torture-extracted evidence, albeit existing due process guarantees may under certain circumstances go beyond the scope of the prohibition of torture and other CIDT.⁸⁴

The debate on the usefulness of torture and other CIDT-extracted information still persists. Utilitarian arguments in favour of torture in order to achieve a “greater good” are well- known throughout history.⁸⁵ In spite of the fact that international law explicitly prohibits at least

80 USSC, Nardone v. United States, 11 December 1939, 308 U.S. 338.

81 USSC, Mapp v. Ohio, 19 June 1961, 367 U.S. 643.

82 USSC, Wong Sun v. US, 14 January 1963, 371 U.S. 471.

83 The first case in which the doctrine was developed, but not named as such, was USSC, Silverthorne Lumber Co. v. United States, 26 January 1920, 251 U.S. 385. The term “fruit of the poisonous tree” was first used by Justice Frankfurter of the US Supreme Court in the case of Nardone v. United States and has since entered the standard legal vocabulary. See USSC, Nardone v. United States, 11 December 1939, 308 U.S. 338.

84 The European Court of Human Rights has left open the possibility that the individual interest of a person subject to criminal proceedings to have the evidence against them gathered lawfully may outweigh the public interest in the investigation and punishment of the particular offence in casu, and that therefore the introduction of unlawfully-produced evidence may amount to a violation of Article 6 of the European Convention. See ECtHR, Khan v. The United Kingdom, 12 May 2000, App. no. 35394/97; and ECtHR, P.G. and J.H. v. The United Kingdom, 25 September 2001, App. no. 44787/98.

85 See Steven J. Barela’s chapter in the present volume on Jeremy Bentham’s views on torture.

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the use of torture-extracted statements in formal proceedings,⁸⁶ such use remains to be rooted out, even at the international level. For example, in a controversial decision, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid tribunal, distinguished evidence “obtained” (directly) by torture from evidence “derived” (indirectly) from torture, finding that the latter was admissible “so long as the proposed use does not circumvent the prohibition against invoking the contents of torture-tainted confessions to establish their truth.”⁸⁷ Similarly, the European Court itself – whose jurisprudence is quoted at length by the ECCC – has reaffirmed that the use of torture-tainted statements in proceedings represents ipso facto a flagrant denial of justice,⁸⁸ but has been more reserved with respect to real evidence⁸⁹ stemming from ill-treatment.⁹⁰ Outside the framework of the judiciary, a recently-updated decision of the Canadian Foreign Minister on the use of information that was likely obtained through the mistreatment of an individual by a foreign entity permits the authorities to utilize said information “in exceptional circumstances” to deprive someone of their rights or freedoms “when, for example, information suggests someone is about to commit a terrorist act.”⁹¹ While the use of ill-treatment extracted information would remain absolutely

86 See e.g. Art. 15 UN CAT, further analyzed below. See also: Inter-American Convention to Prevent and Punish Torture, Article 10; African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, section N, para. 6 (d) (i); HRC, CCPR General Comment No. 32:

Article 14 (Right to Equality before Courts and Tribunals and to a Fair Trial), 23 August 2007, CCPR/C/GC/32, para. 6.

87 ECCC, Decision on Evidence Obtained Through Torture, 5 February 2016, Case File/Dossier No. 002/19-09- 2007/ECCC/TC, para 70.

88 ECtHR, Gäfgen v. Germany, 1 June 2010, App. no. 22978/05, para. 166.

89 The Merriam-Webster Dictionary defines physical or real evidence as “tangible evidence (as a weapon, document, or visible injury) that is in some way related to the incident that gave rise to the case.” In this sense, real evidence should be seen as referring to any material object produced in court which is not a statement or confession. “Evidence.” Merriam-Webster.com, 2018. < https://www.merriam-webster.com/dictionary/evidence>

(accessed 13 September 2018)

90 ECtHR, Gäfgen v. Germany, 1 June 2010, App. no. 22978/05, para. 174.

91 Government of Canada, Ministerial direction to Global Affairs Canada: Avoiding complicity in mistreatment by foreign entities: Appendix C of the Ministerial Direction: Decision-making process for the use of information that was likely obtained through the mistreatment of an individual by a foreign entity, 14 December 2017, available at <http://international.gc.ca/gac-amc/publications/transparency-transparence/ministerial_directions- instructions_du_ministre.aspx?lang=eng>.