Torture and ill-treatment from the perspective of international law

International law imposes an absolute prohibition on torture and on cruel, inhuman, or degrading treatment (hereafter cruel, inhuman, and degrading treatment is referred to as “ill-treatment”). Unlike other norms, countries are not allowed to derogate from it or balance it against other rights or values, even in emergency situations. Furthermore, for some time now, there has been broad consensus around the world that the absolute prohibition on torture and ill-treatment is customary law, meaning that it applies with respect to every country, organization, or person, for their acts committed anywhere, without regard to the application of one international convention or another.

This prohibition is enshrined in the two principal branches of international law that apply to Israel with respect to Palestinian detainees: international human rights law, which deals with the obligations of a state to every person under its jurisdiction, and international humanitarian law, which deals, among other things, with the obligations of a country to residents of occupied territory. The two principal conventions in the first branch, in which the prohibition on torture and ill-treatment is specified, are the International Covenant on Civil and Political rights and the Convention against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. One of the main conventions in the second branch of international law is the Fourth Geneva Convention.

The prohibition on torture and ill-treatment also holds a prominent place in another branch of international law: international criminal law. Under international criminal law, breach of this prohibition is an international crime. Persons who commit this crime, including those who order others to torture or maltreat or aid in commission of the action, bear criminal responsibility. This responsibility is in addition to, and separate from, that imposed on the state for which the officials acted. Therefore, every country is required to enshrine in its domestic law the involvement in commission of these crimes as criminal offenses and to prosecute offenders. If the state does not do so, other countries are empowered to arrest the alleged perpetrators when they in their territory, and prosecute or extradite them, regardless of where the act of torture took place, the nationality of the alleged perpetrator, or the nationality of the victim.

The most accepted definition of “torture” appears in section 1(1) of the Convention against Torture. It reads as follows:

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Under this definition, four conditions are required for an act to constitute torture:

1. it must be intentional
2. it must cause severe pain or suffering
3. it must be intended to achieve one of the purposes mentioned, obtaining information being one of them
4. it must be done by, or with the acquiescence of, a public official

Of the four conditions, the second raises problems and disagreements with respect to the means in interrogation, in particular to sophisticated and combined means of interrogation, such as those used by Israeli security forces. In this context, it should be noted that, inasmuch as pain and suffering are subjective experiences, with respect to certain acts, it is impossible to make an abstract determination if the suffering was severe, and the determination can only be made in a certain situation and with respect to a particular individual. For example, it might be that a certain interrogation method causes substantial, but not severe, suffering to a young, healthy man, while the same method would cause severe pain to an older, or ill, person.

None of the conventions provide a definition for ill-treatment. The relevant case law and literature indicate that two major criteria distinguish torture from ill-treatment: the intensity of the suffering, and the purpose underlying the method used. Therefore, a method that causes substantial, but not severe suffering, or which causes severe suffering but not to obtain information (for example, the use of excessive force against a person resisting arrest), is defined as ill-treatment and not torture.

Major quasi-judicial bodies, primarily the UN Human Rights Committee, which is responsible for examining complaints of individuals with respect to breach of the International Covenant on Civil and Political Rights, often relate to the two prohibitions as one block, without noting in specific cases whether the act falls into one category or the other. Other bodies, the most prominent being the European Court of Human Rights, make a distinction, although it holds in principle that the two prohibitions are absolute to the same degree. The justification for this distinction according to the court is that the term torture carries with it a “special stigma,” which should be placed on only the most serious acts.