12 Tainted by Torture: Examining the Use of Torture Evidence | 2018 Chapter I: The prohibition on torture and the exclusionary rule I.1 The prohibition on torture Torture is the administration of severe pain or suffering, whether physical or mental, for a specific purpose, such as to elicit a confession, to exercise control, to instil fear, to punish, or for any other reason on the basis of discrimination of any kind. It is inflicted by a person exercising some kind of authority with the aim of breaking the will of an individual. Torture is an extreme form of abuse of power. Its consequences have been well documented and can be severe and long-lasting both for the individuals subjected to the treatment as well as for the wider community or society.4 In recognition of the heinousness of torture, it is absolutely prohibited under international law. All states are obliged to prohibit it without exception; the right to be free from torture cannot be suspended or limited and its violation can never be justified, even in emergency situations or in the context of terrorism. The prohibition on torture operates irrespective of the particular circumstances or attributes of persons; non-citizens, illegal migrants, terror suspects, convicted criminals, persons suspected of having vital information about planned crimes, protesters and opposition leaders all benefit, like any other person or group of persons, from the right not to be subjected to torture or other prohibited ill-treatment. The prohibition on torture has been recognised as a principle of customary international law and a peremptory norm (jus cogens).5 Rules of jus cogens cannot be contradicted by treaty law or by other rules of international law.6 I.2 The fundamental human right not to be subjected to torture is reflected in numerous treaties and declaratory texts including the Universal Declaration of Human Rights,7 the International Covenant on Civil and Political Rights,8 the Convention on the Rights of the Child,9 the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,10 the European Convention on Human Rights,11 the American Convention of Human Rights12 and the African Charter on Human and Peoples’ Rights.13 Several treaties focus on torture specifically: the UN Convention Against Torture,14 the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment15 and the Inter-American Convention to Prevent and Punish Torture.16 Torture also features in international humanitarian law treaties. It is outlawed in the 1907 Hague Regulations respecting the Laws and Customs of War on Land.17 Common Article 3 of the four Geneva Conventions of 1949 and various other provisions in those conventions prohibit cruel treatment and torture, and outrages upon personal dignity, in particular humiliating and degrading treatment of civilians and persons hors de combat.18 Torture is also outlawed by the two Additional Protocols to the Geneva Conventions.19 It is one of the possible underlying offences for a war crime, a crime against humanity and genocide.20 The exclusionary rule – a key component of the absolute prohibition A part of what it means for torture to be absolutely prohibited is that states are not able to endorse, adopt or recognise acts that breach the absolute prohibition on torture. This would include taking account of statements or other evidence procured through torture. If courts were to recognise statements procured by torture, this would be incompatible with the jus cogens nature of the prohibition and the erga omnes21 obligations that flow from it. It is a relatively straight-forward proposition that information obtained by torture should not be admissible, nor should it be used, relied upon or proffered in any legal proceeding. This rule stems from