20 Tainted by Torture: Examining the Use of Torture Evidence | 2018 II.3 Does the ban on ‘torture evidence’ extend to other forms of cruel, inhuman or degrading treatment or punishment? II.3.1 International standards Article 15 of the UN Convention Against Torture focuses exclusively on statements procured through torture, as opposed to any other form of prohibited ill-treatment. Similarly, Article 10 of the InterAmerican Convention to Prevent and Punish Torture focuses on the ban on ‘torture evidence’ exclusively. These formulations differ from the earlier UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment,66 Article 12 of which provides for the exclusion of evidence obtained not only by torture, but also by cruel, inhuman and degrading treatment. This is also the approach taken in a number of other standardsetting texts,67 by UN human rights experts68 and by the official interpretive bodies of a host of other treaties.69 The bases for understanding the rule on the inadmissibility of ‘torture evidence’ to also cover statements procured by other forms of cruel, inhuman and degrading treatment or punishment fall into two main categories: i) ii) The inadmissibility rule arises out of the absolute prohibition on torture (and other illtreatment). The UN Convention Against Torture and the Inter-American Convention to Prevent and Punish Torture are rather unique in separating out torture from other forms of prohibited ill-treatment; in most treaties and standard-setting texts, the prohibition on torture and other ill-treatment are dealt with jointly as part of a single article. There is thus a tendency in these other treaties and texts to understand the obligations which flow from the prohibition as applicable to all forms of prohibited illtreatment and not only to torture.70 States are obliged to prevent torture as well as all other forms of prohibited ill-treatment. This is recognised in Articles 2(1) and 16(1) of the UN Convention Against Torture. The rule on the inadmissibility of statements procured by torture (and other ill-treatment) derives at least in part from this obligation to prevent. In particular, the prohibition on torture requires states to take all possible measures to prevent it from occurring, to investigate allegations and, where sufficient evidence exists, to prosecute and punish those found guilty of the crime. It also requires states to give victims access to a remedy and reparations for the harm they suffered. Consequently, given states’ obligations to prevent all forms of ill-treatment, the inadmissibility rule arguably applies to all forms of prohibited ill-treatment.71 In addition, there is debate about what distinguishes torture from other forms of ill-treatment. There is no definition of ‘other ill-treatment’ in the relevant treaty texts. Most would argue that severity of treatment and the existence of a specific purpose elevate an act of ill-treatment to torture. Nowak and McArthur understand the existence of a specific purpose to be the decisive factor.72 Under this view, all acts of cruel, inhuman or degrading treatment which are carried out for the specific purpose of eliciting a confession or statement, would amount to torture and therefore be automatically covered by the exclusionary rule. II.3.2 National implementation Our examination of domestic law focused exclusively on ‘torture evidence’: we did not ask about evidence obtained from other inhuman or degrading treatment or punishment, but this would be a valuable area for further research. However, the following observations can be made based on our existing research: i) As discussed above, the prohibition on ‘torture evidence’ often derives from the combination of the illegality of particular behaviours and the inability to rely on evidence obtained as a result of that behaviour. In such systems, a key question is whether inhuman or degrading treatment or punishment is considered illegal.