The case of Ireland v. United Kingdom approves of the contention that torture is not similar to inhuman or degrading treatment, as interpreted under the Convention against Torture. By a vote of thirteen to four, the court ruled that the practices known as “the five techniques,”—the heart of the applicants’ claim for breach of Article 3 of Europe’s Convention for the Protections of Human Rights and Fundamental Freedoms (“European Convention”)—“did not constitute . . . torture [as understood under the treaty].”
The court also concluded by a vote of sixteen to one that the techniques under consideration were “inhuman and degrading treatment.” Upon these findings, the court established with consensus that it “cannot direct the respondent State to institute criminal or disciplinary proceedings against those members of the security forces who have committed the breaches of Article 3 found by the Court and against those who condoned or tolerated such breaches.”
Ireland v. United Kingdom did not recognize them as such. The Office of Legal Counsel, therefore, misattributes the reasoning of the court to an unrelated conclusory statement.
Furthermore, the Office of Legal Counsel on one occasion shows its careful reading by leaving out the fact that these “massive,” “substantial,” and “severe” beatings were the object of dissent by 14 members of the security forces who were said to have witnessed or perpetrated them. The Commission maintained that some claims of the claimants were blown up, invented or improbable. The conclusion that can be drawn from the abovementioned and without going into the complex debate is that the claims of the claimants were not as intense as they were told.
One claimant did suffer from an injury—a perforated eardrum—during his detention, which validates the argument that the court sees slight physical maltreatment as unqualified to be termed torture. This argument bases itself on the difference between torture and cruel, degrading and inhuman treatment drawn out by the European Convention.
Anticipating the argument of a stretched definition of torture since Ireland, the Standards of Conduct Memorandum seeks to found its finding on the more recent case of Public Committee Against Torture in Israel v. Israel.
The Office of Legal Counsel asserts that “while the Israeli Supreme Court concluded that these acts amounted to cruel and inhuman treatment, the court did not expressly find that they amounted to torture.”
In fact, the Supreme Court of Israel, sitting as the High Court of Justice, could not maintain that these acts were akin to cruel and inhuman treatment. Not more than once the court referred to the findings of the European Court of Justice in Ireland v. United Kingdom when it referred to the use of a similar—though not identical method as “inhuman and degrading treatment.” Nevertheless, the court did not term the techniques employed by the General Security Services (“GSS”) of Israel as either torture or inhuman and degrading treatment, since it dealt exclusively and restrictively with the question of whether the Government of Israel or the Head of the GSS had the legitimate authority “to establish directives regarding the use of physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general rules which can be inferred from the very concept of an interrogation itself.”
Furthermore, the Office of Legal Counsel fails to point out the declaration of GSS which imply that the use of physical violence and the method known as the “Shabach” had either been halted or was never used during grilling of the accused under consideration before the hearing of the case.
However, GSS officials did not assure that these methods would not be used again as opposed the officials in the case of Ireland v. United Kingdom.
The court per se did not even consider the question of whether these methods being used were torture or not. If it had done so, the need to consider the European Convention especially the one against torture would never have arisen. The Court certainly would have considered the notions and methods used by the European Court of Human Rights. Nonetheless, its examination would not have been restricted to Ireland v. United Kingdom due to the increase in the lawsuits considering the topic of torture versus ill treatment over a twenty-year time span between that decision and Public Committee Against Torture in Israel.
A reference to torture was included in the definition of crimes against humanity comprised within Control Council Law No. 10, which was taken up on December, 1945. In addition to terming torture a crime, this definition also drew on the provisions of the Charter of the International Military Tribunal by including rape and imprisonment.
"It was this more expansive enumeration of acts of crimes against humanity, including torture, found in Control Council Law No. 10, that was drawn upon by the United Nations Security Council when it adopted the Statute of the International Criminal Tribunal for the former Yugoslavia.”
The Security Council also included "torture or inhuman treatment, including biological experiments" as a grave breach of the Geneva Conventions,' drawing upon provisions in those instruments.'
In his report preliminary to the adoption of the ICTY Statute, the Secretary-General suggested that in his view the crimes within the subject matter jurisdiction of the Tribunal were all then acknowledged "beyond any doubt" as incurring individual criminal responsibility under customary International law.'^
Before adopting the ICTY Statute, the Security Council had been informed of acts of torture being committed during the conflict in
Doubts about the state of customary international law were soon laid to rest by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. In perhaps its most important consideration, on October 2, 1995, the Appeals Chamber determined that, under customary International law, crimes against humanity could be committed in peacetime and that war crimes were punishable when committed in non-international armed conflict.
These findings are relevant to the international criminalization of torture, which already came to be acknowledged as a crime against humanity as well as a war crime, but only in a constricted ambit. On a superficial reading of the law, depending on the Nuremberg case law and international humanitarian law treaties, it had been established that the crime against humanity of torture may only be committed in case of armed conflict, and indeed this is what Article 5 of the ICTY Statute seemed to corroborate. Likewise, the traditional view that war crimes could only be committed in international armed conflict would have excluded torture prosecutions with respect to civil wars.
In order to justify the use of forceful interrogation techniques in the war on terror, the US Defense Department has adopted two legal strategies to get around the prohibition on torture. The US is not the first western state to insist that its forceful interrogation techniques fall short of torture. Before the UN Convention came into force, both France and the UK made similar claims. In both cases, however, judicial authorities either rejected the claim or found that the use of measures deemed ‘short of torture’ was also prohibited because they were ‘degrading and inhumane’.
The historical record shows that torture is used for malicious reasons far more often than not. It is most recurrently used to silence government foes.
The prohibition of torture is thus central to the safeguarding of democracy and liberal government. There is therefore a clear consensus between law and ethics that torture and other forms of cruel and degrading treatment against prisoners are wrong.
Although loopholes may be found in individual treaties, customary rules or philosophical arguments, taken together they constitute a powerful case. That this is so is reflected in the fact that very few political actors are willing to defend the use of torture publicly. Sadly, torture is a moral inconsistency and many states either apply it in their criminal investigations or are ready to use it in contingent situations.