III. Torture Under UK and International Law
The prohibition on torture is a bedrock principle of international human rights law. It is absolute and allows of no exceptional circumstances, including war, political instability or any other public emergency.[61]
The prohibition on torture is established as a matter of customary international law, as reflected in the Universal Declaration of Human Rights,[62] and in the major human rights treaties, most notably the International Covenant on Civil and Political Rights[63] and the Convention against Cruel, Inhuman and Degrading Treatment or Punishment (the Convention against Torture).[64] The prohibition is also found in regional human rights treaties, including the European Convention on Human Rights (ECHR).[65]
The UK Human Rights Act 1998 (HRA) incorporated the ECHR into British law. The HRA follows the language of the international treaties, providing that: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."[66]
The Convention against Torture basically defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person to obtain information or a confession, or as punishment, when such pain or suffering is "inflicted by or at the instigation of or with the consent or acquiescence of" a public official or agent.[67] The convention also prohibits all acts by state authorities that are cruel, inhuman and degrading, but do not amount to torture.[68]
The Convention against Torture requires states to reinforce the prohibition against torture through legislative, administrative, judicial and other measures.[69] States are to "ensure that all acts of torture are offences under its criminal law." This includes "an act by any person which constitutes complicity or participation in torture."[70]
The UN Committee Against Torture, the independent expert committee that monitors state compliance with the Convention against Torture, addressed complicity in torture in its General Comment 2. It said that states "are obligated to adopt effective measures to prevent public authorities... from directly committing, instigating, inciting, encouraging, acquiescing in or otherwise participating or being complicit in acts of torture" (emphasis added). This includes "consenting to or acquiescing in any acts of torture." States that fail to meet these obligations are in violation of the convention.[71]
International law places an obligation on states to prevent, investigate, prosecute and punish torture and other ill-treatment. The obligation to prosecute torture includes those who are complicit, as well as to those who directly participate, in torture. It also extends to those responsible in the chain of command.[72]
The Convention against Torture obligates states to "take such measures as may be necessary" to establish its jurisdiction over acts of torture when the alleged offender is a national of that state or when the victim is a national and the state considers it appropriate.[73] It requires states to take into custody any person present in their territory, who on the basis of available information are alleged to have committed an act constituting complicity or participation in torture, and to immediately conduct an inquiry into the facts.[74]
The ECHR does not have a specific provision requiring that torture be punishable under a state's criminal law. However, the European Court of Human Rights has repeatedly said, most recently in its June 23, 2009 judgment in Buzilov v. Moldova, that a state's duty to investigate "credible assertions" of torture and other ill-treatment by conducting an investigation that is capable of identifying and punishing those responsible.[75] In the court's landmark judgment on torture, Aksoy v. Turkey, the court emphasized that prohibition against torture must be read in conjunction with the right to an effective remedy under the ECHR.[76]
Section 134 of the UK Criminal Justice Act of 1988 gives effect to the UK's obligation under article 4 of the Convention against Torture by creating a legal obligation in British law to prosecute acts of torture. The law provides for universal jurisdiction-that is, jurisdiction to prosecute crimes regardless of the place of commission, the nationality of the perpetrator, or the nationality of the victim. It states that the person charged needs to be a public official or a person acting in an official capacity "whatever his nationality" and that the offense can be committed "in the United Kingdom or elsewhere."[77]
However, a defense to the charge of torture under section 134 suggests a loophole for officials who were following orders. Section 134 states:
It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct [emphasis added].[78]
The provision defines "lawful authority" not only to include UK officials acting under the laws of the United Kingdom, but also "under the law of the place where it [the severe pain and suffering] was inflicted."[79]
Some UK officials and agents may have been complicit in torture abroad-or acquiesced in the actions of others-in the belief that this legal provision would protect them from prosecution. However, to our knowledge, British courts have never supported this reading of the law, nor has the UK government endorsed it.
During the review of UK compliance with the Convention against Torture by the UN Committee Against Torture in 2004, the government argued that the "lawful authority" defense was not a loophole in the UK torture law. It said that the defense was meant to cover individuals such as surgeons, who inflict pain during the proper conduct of their duties.[80] The government contended that "lawful authority" means much more than "permission given by someone in authority" but rather that it must be "in accordance with law." The government discounted any possible ambiguity in the language of the law, but said that no British court, in accordance with the UK's obligations under international law, would accept the defense of superior orders as a justification for torture.[81]
The Committee Against Torture nonetheless expressed concern in its concluding observations to the 2004 UK report, noting that section 134 provides a defense for otherwise unlawful conduct committed outside the UK or that is permitted under foreign law.[82] It called upon the UK to take appropriate and if necessary explicit measures to ensure that any defenses available to a charge brought under Section 134 be consistent with the requirements of the Convention against Torture.[83]
The Intelligence Services Act 1994 might also provide a defense for officials implicated in torture that is contrary to international law. The act states:
If, apart from this section, a person would be liable in the United Kingdom for any act done outside the British Islands, he shall not be so liable if the act is one which is authorised to be done by virtue of an authorisation given by the Secretary of State under this section.... '[L]iable in the United Kingdom' means liable under the criminal or civil law of any part of the United Kingdom. [84]
Referred to by the media as the "James Bond opt-out," the statute permits British intelligence agents to break the law if, and only if, they get a warrant from the secretary of state, normally the foreign secretary. According to David Davis, a member of parliament involved in drafting the statute as a junior minister in the previous Conservative government, "[t]he purpose of requiring explicit ministerial approval was to ensure that the 'opt-out' from the law was never misused or, if it was, somebody would be held accountable. It was never remotely countenanced as covering killing or torture."[85]
The Intelligence Services Act sends a mixed signal to the intelligence community by suggesting that state agents who engage in all forms of conduct abroad that would be illegal under British law, including torture, are protected from punishment if provided authorization from the foreign secretary.[86]
International law is clear that an order by a superior or other public authority cannot be invoked as a justification for torture. The Committee Against Torture has stated that:
Subordinates may not seek refuge in superior authority and should be held to account individually. At the same time, those exercising superior authority-including public officials-cannot avoid accountability or escape criminal responsibility for torture or ill-treatment committed by subordinates where they knew or should have known that such impermissible conduct was, or was likely, to occur, and they took no reasonable and necessary preventive measures.[87]
Competent, independent and impartial prosecutorial and judicial authorities should fully investigate superior officials for direct instigation or encouragement of torture or ill-treatment or for consenting or acquiescing to such practices.[88] Moreover, under the Convention against Torture, a state is "obligated to eliminate any legal or other obstacles that impede the eradication of torture and ill-treatment," and to take "positive effective measures" to prevent such conduct in the future. The jurisprudence of the European Court of Human Rights makes clear that the ECHR imposes similar obligations.[89] A state that fails to eradicate acts of torture is required to revise its practices or adopt new, more effective measures.[90]
A further obstacle to the effective prosecution of torture is found in section 135 of the Criminal Justice Act 1988. This states that all prosecutions for torture under section 134 in England, Wales or Northern Ireland can only be begun by, or with the consent of, the attorney general. The crime of torture is the only offense under the Criminal Justice Act 1988 that requires such consent. The attorney general, unlike the director of public prosecutions, is a political, not an independent position. The role of the attorney general has been the subject of considerable controversy in recent years,[91] and the current attorney general announced in 2008 that she was considering giving up the power to consent to prosecutions in "almost all" cases. [92] However, in July 2009 the government abandoned any attempt to reform the position of the attorney general, whether to make the position independent of government or remove the power to intervene in prosecutions.[93]
In October 2008 the home secretary referred allegations of MI5 complicity in the torture of Binyam Mohamed, a former British detainee at Guantanamo, to the attorney general. In March 2009, the attorney general announced that the case had been referred to the Metropolitan Police.[94] In July 2009, nine months after the original referral, the Metropolitan Police announced that they were starting an investigation.[95] However, under section 135 of the 1988 act, any decision on prosecution will still have to be approved by the attorney general.
The power of the attorney general, a political figure, to intervene in torture prosecutions therefore seriously compromises the United Kingdom's ability to ensure that independent and impartial prosecutorial authorities fully investigate senior officials for crimes connected with torture. This power of the attorney general is particularly difficult to justify when it only applies to select crimes, including torture, and there exists an independent prosecution service, headed by the director of public prosecutions, who can take decisions on whether to prosecute in the most serious of cases.
Existing UK statutory provisions could possibly complicate the prosecution of government officials implicated for complicity in torture in Pakistan and elsewhere abroad. However, they in no way reduce the obligation of British prosecutors under international law to bring cases against those involved in torture, nor the duty of British judges to interpret UK law in a manner that is consistent with the country's international treaty obligations.
[61]See Committee Against Torture, General Comment 2, Implementation of article 2 by States Parties, U.N. Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2007), para. 11.
[62]Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).The prohibition on torture is recognized as jus cogens, that is, as a peremptory norm of general international law. A peremptory norm is one which is "accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Vienna Convention on the Law of Treaties (1969), art. 53.
[63]International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. The UK ratified the covenant on May 20, 1976.
[64]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987. The UK ratified the Convention against Torture in 1988.
[65]European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols Nos 3, 5, 8, and 11 which entered into force on September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively, CETS No.:005, http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CL=ENG (accessed July 6, 2009).
[66]Human Rights Act 1998, Office of Public Sector Information, http://www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_1 (accessed July 6, 2009), chapter 42, art. 3.
[67]Convention against Torture, art. 1.
[68]Ibid., art. 16.
[69]Ibid., art. 2(1).
[70]Ibid., art. 4.
[71]Committee Against Torture, General Comment 2, Implementation of article 2 by States Parties, U.N. Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2007), para. 17.
[72]Committee Against Torture, General Comment 2, Implementation of article 2 by States Parties, U.N. Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2007), para. 8.
[73]Convention against Torture, art. 5. The right of states to prosecute individuals for acts of torture regardless of where there are committed is also found in the "grave breaches" provisions of the Geneva Conventions of 1949 and its First Additional Protocol of 1977.
[74]Ibid., art. 6.
[75]ECHR, Case of Buzilov v. Moldova, (Application no. 28653/05), Judgment of June 23, 2009; [[2009] ECHR 973], available at www.echr.coe.int, paras. 28-29.
28.The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention", requires by implication that there should be an effective official investigation. … [S]uch investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.
29.The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard [citations omitted].
[76]The court in Aksoy held: "The nature of the right safeguarded under Article 3 [prohibiting torture] of the Convention has implications for Article 13 [right to a remedy]. Given the fundamental importance of prohibition of torture and the especially vulnerable position of torture victims, Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation into incidents of torture." Aksoy v. Turkey(Application 21987) Judgment of 18 December 1996; [[1997] 23 EHRR 533], available at www.echr.coe.int , para. 98.
[77]According to the Criminal Justice Act 1988: "A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties." Criminal Justice Act 1988, Office of Public Sector Information, July 29, 1988, http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880033_en_1.htm (accessed July 6, 2009), chapter 33, section 134(1).
[78]Criminal Justice Act 1988, Office of Public Sector Information, July 29, 1988, http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880033_en_1.htm (accessed July 6, 2009), chapter 33, section 134(2).
[79]Ibid. However, Pakistan is a signatory to the ICCPR and the Convention against Torture, both of which prohibit torture. The Pakistani Constitution prohibits torture in article 14(2) ("No person shall be subjected to torture for the purpose of extracting evidence"). As Lord Slynn noted in the Pinochet judgment regarding defenses for crimes under section 134: "If committed other than in the United Kingdom lawful authority, justification or excuse under the law of the place where the torture was inflicted is a defence, but in Chile the constitution forbids torture." Judgment - Regina v. Bartle and the Commissioner of Police for the Metropolis and others EX Parte Pinochet (Opinion of Lord Slynn), November 25, 1998, available at http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd981125/pino04.htm.
[80]The UK government stated to the Committee Against Torture regarding the intention behind the "lawful authority" provision:
The offence in the 1998 Act is cast widely. It covers anyone who intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties. That goes wider than the definition of "torture" in Article 1 of the Convention. For example, the Convention was clearly not intended to cover the pain lawfully caused by the proper conduct of a medical surgeon. Nor was it intended to cover the mental suffering that might accompany a proper sentence of imprisonment – indeed, Article 1 specifically excludes "pain or suffering arising from, inherent in or incidental to lawful sanctions". So section 134 of the 1988 Act provides a defence for a person charged with an offence of torture to prove that he had lawful authority, justification or excuse. That means that the surgeon I mentioned, or the prison governor administering ordinary imprisonment, is not criminalised for their proper and lawful conduct.
Government of the United Kingdom, "UNCAT Hearing: Provisions of Lists of Issues to State Parties," Response to Committee Against Torture 33rd Session – United Kingdom examination (November 17-18, 2004), undated, http://www2.ohchr.org/english/bodies/cat/docs/UKresponses.pdf (accessed November 19, 2009).
[81]The UK government told the Committee Against Torture that there is no "lawful authority" loophole that would justify torture: It is said that the defence benefits people who have acted in abuse of power-that it lets torturers get off by pleading that they were obeying superior orders. That is simply not the case. A defence using words like "lawful authority, justification or excuse" is quite common in UK law. It means much more than "permission given by someone in authority". The word "lawful" carries great weight. It requires the authority or excuse to be in accordance with law; to have the quality of law. Abuse of power, by a torturer or by his boss, could never achieve that standard. No court in the United Kingdom would tolerate such a plea. It is also a principle of UK law that an international treaty can be examined in British courts to assist in the interpretation of any Act of Parliament whose purpose was to give effect to the treaty. So a court faced with this question would turn to the Convention itself; and the Convention makes it quite clear that a defence of "superior orders" cannot possibly justify torture. Finally, if there were any ambiguity in section 134, the Human Rights Act would require the provision to be read in accordance with Article 3 of the ECHR. But we do not need to use the Human Rights Act. There is no ambiguity in the statute.
[82] According to the Committee Against Torture: [T]he Convention provides that no exceptional circumstances whatsoever may be invoked as a justification for torture; the text of Section 134(4) of the Criminal Justice Act however provides for a defence of "lawful authority, justification or excuse" to a charge of official intentional infliction of severe pain or suffering, a defence which is not restricted by the Human Rights Act for conduct outside the State party, where the Human Rights Act does not apply; moreover, the text of section 134(5) of the Criminal Justice Act provides for a defence for conduct that is permitted under foreign law, even if unlawful under the State party's law. Committee Against Torture, Conclusions and recommendations: United Kingdom of Great Britain and Northern Ireland, December 10 2004, CAT/C/CR/33/3, para. 4(a)(ii).
[83]Committee Against Torture, Conclusions and Recommendations: United Kingdom of Great Britain and Northern Ireland, December 10, 2004, CAT/C/CR/33/3, para. 5(a).
[84]Intelligence Services Act 1994, Office of Public Sector Information, http://www.opsi.gov.uk/ACTS/acts1994/Ukpga_19940013_en_1.htm (accessed July 6, 2009), chapter 13.
[85]David Davis, "We did things differently in my day, Mr Miliband," The Observer, March 29, 2009, http://www.guardian.co.uk/commentisfree/2009/mar/29/comment-binyam-mohamed-david-davis (accessed November 16, 2009).
[86]The UK government refused to respond–for "security reasons"–to a written request from the parliamentary Joint Committee on Human Rights seeking the number of times an authorization had been sought under the act. See Joint Committee on Human Rights, "Allegations of UK Complicity in Torture," August 4, 2009, http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/152.pdf (accessed November 16, 2009), para. 53 and letters annexed to report.
[87]Committee Against Torture, General Comment 2, Implementation of article 2 by States Parties, U.N. Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2007), para. 26.
[88]Committee Against Torture, General Comment 2, Implementation of article 2 by States Parties, U.N. Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2007), para. 26.
[89]Z and others v. United Kingdom (Application 29292/95), Judgment of May 2001; [[2002] 34 EHRR 97], available at www.echr.coe.int. Paragraph 73 of the judgment states that states have a positive obligation "to ensure that individuals in their jurisdiction are not subjected to torture or inhuman or degrading treatment…."
[90]Committee Against Torture, General Comment 2, Implementation of article 2 by States Parties, U.N. Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2007), para. 4.
[91]See e.g., Council of Europe, Parliamentary Assembly, Report of the Committee on Legal Affairs and Human Rights, "Allegations of politically-motivated abuses of the criminal justice system in Council of Europe member states," Doc. 11993, August 7, 2009, paras. 10-34.
[92] "Package of Reforms to Historic Role of Attorney General announced," Attorney General's Office, March 25, 2008, http://www.attorneygeneral.gov.uk/attachments/Changes%20to%20role%20of%20Attorney%20General%20announced%20-%20release%2025Mar08.pdf (accessed November 16, 2009).
[93]Patrick Wintour,"Attorney general survives shake-up unscathed," The Guardian, July 17, 2009, http://www.guardian.co.uk/politics/2009/jul/17/attorney-general-constitutional-reform (accessed November 16, 2009).
[94]"Binyam Mohamed: Baroness Scotland statement in full," The Telegraph, March 26, 2009, http://www.telegraph.co.uk/news/newstopics/politics/5055099/Binyam-Mohamed-Baroness-Scotland-statement-in-full.html (November 16, 2009).
[95] "Police to investigate Binyam Mohamed's torture claims," The Times, July 10, 2009, http://www.timesonline.co.uk/tol/news/world/article6683391.ece (November 16, 2009).