2.1. the prevention of ill-treatment and the principle of non-refoulement The absolute prohibition of torture and ill-treatment Article 3 ECHR provides that “No one shall be subjected to torture or to inhumane or degrading treatment or punishment.” The prohibition of torture or cruel, inhuman or degrading treatment or punishment (hereinafter ill-treatment) is one of the few absolute human rights obligations meaning that it cannot be limited, balanced against any other right or interests “even in the most difficult of circumstances such as the fight against terrorism and crime”. It cannot be derogated from, even under exceptional circumstances such as “war or a threat of war, internal political instability or any other public emergency.”77 The special status of the prohibition of torture and ill-treatment is explained due to its particular severity as a direct attack on human dignity with often irreversible consequences for the survivor. Challenges to the absolute prohibition to torture, for the fight against terrorism and crime are rebutted as torture has proven to be ineffective and any exceptions would lead down a slippery slope towards widespread practice and impunity.78 While international law prohibits both, a distinction is made between torture and ill-treatment. Definition of torture and ill-treatment The definition of torture cumulates four essential criteria. Firstly, severe physical or mental pain or suffering must be inflicted on a person. The pain or suffering must “attain a minimum level of severity.”79 Secondly, the aim must be to achieve a specific purpose such as extracting of a confession, a punishment, intimidation and so forth. Article 1 UNCAT is claimed to be a demonstrative, but not an exhaustive list of purposes suitable to be considered relevant under the prohibition of ill-treatment.80 Thirdly, the pain or suffering must be caused intentionally to achieve a specific purpose. Lastly, the involvement of a public official is required. This provision, however is understood broadly, as to include “the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” There is no corresponding definition of cruel, inhuman and degrading treatment and punishment (ill-treatment) and in practice a differentiation to torture is not always clear.81 International bodies have differentiated according to the intensity of the pain or suffering,82 the purpose of the conduct and the powerlessness of the victim.83 According to the ECtHR in order for treatment or punishment to be considered cruel or inhuman it needs to reach a minimum threshold of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects, the sex, age and state of health of the victim as well as the purpose for which the treatment was inflicted.84 77 Aksoy v. Turkey, Application No 21987/93 (ECtHR, 18. Dec. 1996), para. 62. Tomasi v France (27 August 1992) para 115 ; Art. 2(2) UNCAT ; Art. 7, 4(2) ICCPR 78 See also APT, Defusing the Ticking Bomb Scenario Why we must say No to torture, always, 2007, at: http://www.apt.ch/content/files_res/tickingbombscenario.pdf. 79 EHRR, Ireland v. the UK (18 January 1978) para. 162. 80 M Novak, UN Convention against Torture, A commentary, Oxford Commentaries on International Law, Oxford University Press, p 75. 81 CAT, General Comment No. 2, “Implementation of article 2 by States Parties”, UN Doc. CAT/C/GC/2/CRP.1/Rev.4 (23 November 2007), para. 3. 82 Ireland v. UK 5310771 (1978) ECHR 1. 83 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, UN Doc. E/CN.4/2006/6 (23 December 2005), para. 39. 84 See, among others ECtHR, Ireland v. the United Kingdom,; El-Masri, § 196; Aksoy v. Turkey, § 64) 27