Detention, Rendition and Torture

In one line

The prohibition of torture and other cruel, inhuman or degrading treatment is absolute in every instrument, is non-derogable, carries an accompanying prohibition on returning a person to a real risk of such treatment, and the transfer of a person outside any legal process to a place where they face that risk breaches the prohibition and several other rights at once.

The absolute prohibition

Article 7 of the Covenant: no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, and no one shall be subjected without his free consent to medical or scientific experimentation.

One sentence, no second paragraph, no limitation clause, and non-derogable under article 4(2).

Article 3 of the European Convention is the same, one sentence and non-derogable under article 15(2). Article 5 of the American Convention is non-suspendable under article 27(2). Article 5 of the African Charter prohibits it in a Charter with no derogation clause at all.

The Torture Convention of 1984 makes the point in terms. Article 2(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 of torture. Article 2(3): an order from a superior officer or a public authority may not be invoked as a justification of torture.

"Any other public emergency" covers a terrorist emergency in terms. There is no room for argument.

And the prohibition is a peremptory norm, so no treaty or agreement may derogate from it.

The definition and the second obligation

Article 1 of the Torture Convention: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining information or a confession, punishing, intimidating or coercing, or for any reason based on discrimination of any kind, when 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, excluding pain arising only from lawful sanctions.

Article 16 obliges each party to prevent other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture, where committed with the same official involvement.

The distinction between torture and other ill-treatment is one of severity and purpose, and both are absolutely prohibited; the distinction matters to the label and to certain consequences, not to permissibility.

Non-refoulement

Article 3 of the Torture Convention: no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture, and in determining this the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.