Inhuman Treatment, Evidence, and the Military Commissions Act

‘Torture is an unqualified evil.’ So it is. Statements obtained by the use of torture are inadmissible in evidence. Again, that’s very true. Article 15 of the UN Convention against Torture says as much. So does § 948r (b) of the Military Commissions Act of 2006, in words taken almost verbatim from the Torture Convention. But what of cruel, inhuman and degrading treatment? How evil is that? And what do we do if any statements are obtained by those means, and are adduced in evidence?

The answer to the first question seems easy enough. Article 5 of the Universal Declaration of Human Rights, Article 5(2) of the American Convention on Human Rights (ACHR), Article 7 ICCPR and Article 3 ECHR are as one in outlawing torture and ‘cruel, inhuman or degrading treatment or punishment’ (CIDT) in the same breath. There is no discernable difference in the prohibition. Articles 27(2) ACHR, 4(2) ICCPR and 15(2) ECHR are also agreed in declaring both prohibitions as non-derogable even in times of war or public emergency.
Admittedly, the Torture Convention has relatively little to say about CIDT; only its Article 16 makes reference to it, imposing an obligation on states to prevent the practice, and declaring certain articles of the Convention applicable to CIDT as to torture. Those articles notably do not include the duties of criminalization and prosecution (Articles 4 to 7). But the fact that the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (my emphasis) treats the lesser category of CIDT differently from the recognized crime that is torture with respect to its criminal provisions, does not mean that CIDT is any more permissible. The Convention simply does not center on the prohibition, but for the most part establishes ancillary rules, not unlike the Genocide Convention. (I should refer here to the excellent article by Prof. Malcolm D. Evans, ‘All the Perfumes of Arabia’: The House of Lords and ‘Foreign Torture Evidence’, 19 Leiden J. Int’l. L. (2006), 1125, 1130 et seq.)

What, then, of statements in evidence obtained by CIDT? Things get a little murkier here, in that Article 15 of the Torture Convention, the provision on the exclusion of evidence, is not rendered applicable to CIDT by Article 16. This has led some to say that evidence obtained by CIDT is admissible, if only of very little weight owing to its unreliability: see A and Others v. Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2006] 2 AC 221, paras. 53, 97, 126; Ahmad v. Government of the United States of America [2006] EWHC 2927, [2007] HRLR 8, paras. 34-36. The reason is not immediately obvious. If torture and CIDT are both subject to absolute prohibitions, usually expressed in the same sentence, why attach different consequences to the violations? [The ECtHR, incidentally, may not have done this: Jalloh v. Germany, paras. 99, 105]

The Military Commissions Act makes the same distinction as the judges cited, although it does not draw quite the same consequences. As observed above, § 948r (b) more or less reproduces Article 15 of the Torture Convention, including its limitation to torture. However, § 948r (d) renders statements obtained by CIDT inadmissible if they have been so obtained after the enactment of the Detainee Treatment Act of 2005 (which had – domestically – introduced the prohibition of CIDT). If the same conduct has occurred before the critical date of December 30, 2005, the resulting statement is potentially admissible (under § 948r (c) of the MCA, but only if ‘the interests of justice would be best served by admission of the statement’).

I suspect this distinction between torture and CIDT for the purposes of the law of evidence is mistaken, but not on the narrow ground that Article 15 does apply to CIDT, after all. Article 16 precludes that very simple solution.

Instead, I think we should seek to understand why Article 15 is not applied to CIDT by Article 16, and what it is that distinguishes the two concepts. That, of course, is a highly contentious matter. One strand of opinion holds that the difference is one of degree; the victim of torture has to suffer more than the victim of CIDT; the ECtHR is probably the most prominent actor to have taken this position: see Ireland v. United Kingdom, para. 167.
The competing test looks at the purpose of the ill-treatment: if serious suffering is inflicted for one of the purposes listed in Article 1 of Torture Convention, it falls to be qualified as torture. If not, it is CIDT. On this view, torture and CIDT have the same threshold test on the severity of suffering; the difference is in the context of the treatment. The Committee against Torture may be seen as having joined that view: it has qualified certain treatment as torture not by saying that the treatment had caused particularly serious suffering, but by saying only that severe pain and suffering had been caused for certain purposes, or ‘in the context of the investigation of a crime’: Dragan Dimitrijevic v. Serbia and Montenegro (2004), para. 5.3; Jovica Dimitrov v. Serbia and Montenegro (2005), para. 7.1; Danilo Dimitrijevic v. Serbia and Montenegro (2005), para. 7.1.
In doing so, the Committee has done little more than repeat the wording of Article 1 of the Torture Convention, which provides in pertinent part:

For the purposes of this Convention, torture means any act by which severe pain or suffering … is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession …, when such pain or suffering is inflicted by … a public official.
[Note that the list, from which I omit some listed purposes, is not exhaustive: ‘for such purposes as ….’ Hence the reference to ill-treatment ‘in the context of the investigation of a crime’ by the Committee.]

Article 16 then only defines CIDT negatively as ‘other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, committed by … a public official.’ This does not help much, as the word ‘other’ opens the door to all and any distinctions. But note that the only element missing from the definition, as compared to article 1, is the requirement of a certain purpose.

For what it’s worth, I think the purpose test is more convincing than that based on the degree of suffering. For one thing, I suspect the former test is more in keeping with a natural understanding of the word ‘torture’: it seems to me, for instance, that ill-treatment in interrogations is readily described as torture; holding someone in extremely squalid conditions of detention is not. Also, if a state agent subjects a person to brutal treatment for a specific purpose or reason, then the state maintains that the integrity of the human person has to give in to its interests and motivations. That, more than anything, is to treat the victim ‘as a thing and not a person’, and thus to offend the very essence of the prohibition of torture, namely the insistence that everyone should always be treated with the appropriate respect for the dignity of the human person.

Returning to the question of the admissibility of evidence resulting from CIDT, I cannot help but feel the question as such is misleading. Evidence will usually result only from a situation in which the perpetrator of ill-treatment has every intention of obtaining information from the victim. Under the purpose test, such a situation will always qualify as torture. Indeed, it would be a freak accident if someone subjected to ill-treatment without any intention of obtaining information suddenly volunteered such information anyway: for instance, someone held in terrible conditions in pre-trial custody will not suddenly blurt out that he or she is, in fact, guilty. Outside of the interrogation context, there is no incentive to do so, as the victim is not told that the ill-treatment will cease once some information is surrendered (if so, clearly the purpose of ‘obtaining information’ will be engaged).
This being so, I think we can say that the drafters of the Torture Convention never expected that the situation of Article 15 (the use of statements unlawfully obtained) would arise with respect to CIDT; they would have pictured the scene of violent interrogations, which would, on the better definition of the term, always constitute torture. Article 15 therefore is not in terms applied to CIDT, but nor is that necessary. The drafters did not have to cater for the remote possibility that someone might surrender information to his tormenters even if they never intended that he should. But if such a situation ever arises, I think Article 15 can be extended to cover it, the drafters having simply overlooked the point.

Evidence resulting from the use of CIDT therefore a) usually does not exist, or b) is inadmissible. This construction, based on the purpose test of the concept of torture, has the advantage of reconciling the evidentiary question with the prohibition of CIDT and torture. [It may therefore also confirm the correctness of the purpose test.]