14 Tainted by Torture: Examining the Use of Torture Evidence | 2018 preventative obligations on states in relation to the prohibition on torture and other cruel, inhuman and degrading treatment or punishment. The UN Human Rights Committee listed among the safeguards which may make the control against torture effective, ‘provisions making confessions or other evidence obtained through torture or other treatment contrary to article 7 inadmissible in court’.33 4 For example, Ellen Gerrity, Terence M. Keane and Farris Tuma (eds.), The Mental Health Consequences of Torture (Springer, 2001). 5 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, ICJ Reports 2012, 422, para 99; Prosecutor v Furundzija (Judgment) IT-95-17/1-T (10 December 1998), para 151. 6 Jus cogens is a Latin phrase which literally means ‘compelling law’ and, in a legal context, designates a fundamental, overriding principle of international law, from which no derogation is ever permitted. 7 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217(A)(III), Article 5. 8 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, Articles 7 and 10(1). 9 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, Article 37(a). 10 UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158, Article 10. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5, Article 3. 11 12 Organization of American States (OAS), American Convention on Human Rights, 22 November 1969, Article 5(2). 13 Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights, 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 5. 14 UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465. Council of Europe, European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment,26 November 1987, ETS 126. OAS, Inter-American Convention to Prevent and Punish Torture, 9 December 1985, OAS Treaty Series, No. 67. 15 16 17 18 19 20 21 22 23 24 25 26 International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, Article 4. International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, 75 UNTS 31, Article 12(2); ICRC, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 12 August 1949, 75 UNTS 85, Article 12(2); ICRC, Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135, Articles 13, 17(4), 87(3), 89; ICRC, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287, 12 August 1949, Articles 27, 32. ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3, Article 75(2); ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609, Article 4(2). For example, UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Articles. 7(1)(f), 8(2)(a)(ii), 8(2)(c)(i). Erga omnes is a Latin phrase which literally means ‘towards all’ or ‘towards everyone’, for example erga omnes rights or obligations of states are owed to everyone in the international community. This was affirmed by the UN Committee Against Torture which has indicated in GK v Switzerland that ‘the broad scope of the prohibition in article 15, proscribing the invocation of any statement which is established to have been made as a result of torture as evidence ‘in any proceedings’, is a function of the absolute nature of the prohibition’ – GK v Switzerland, CAT/C/30/D/219/2002, UN Committee Against Torture (CAT), 7 May 2003, para 6.10. For example, Joyce Nawila Chiti v Zambia, Communication no. 1303/2004, UN Doc CCPR/C/105/D/1303/2004, 28 August 2012, para 12.6; Söylemez v Turkey, App no. 46661/99 (ECtHR, 21 September 2006), para 122; Othman (Abu Qatada) v The United Kingdom, App no. 8139/09 (ECtHR, 17 January 2012), para 264: ‘experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture’. Ipso facto is a Latin phrase which literally means ‘by the fact itself’ or ‘by the mere fact’ i.e. something which is the inevitable result of an existing state of affairs, rather than dependent on other factors. The People v B (1980), Zambia Law Reports 219, para 26, cited in Daniel D. Ntanda Nsereko, ‘The Poisoned Tree: Responses to Involuntary Confessions in Criminal Proceedings in Botswana, Uganda, and Zambia’, African Journal of International and Comparative Law, 5 (1993), pp. 609, 617. John Murray v United Kingdom, App no. 18731/91 (ECtHR, 8 February 1996), paras 43-63. 27 Magee v The United Kingdom, App no. 28135/95 (ECtHR, 6 June 2000), paras 43-46. 28 Marc Thommen and Mojan Samadi, ‘The Bigger the Crime, the Smaller the Chance of a Fair Trial? Evidence Exclusion in Serious Crime Cases Under Swiss, Dutch and European Human Rights Law’, European Journal of Crime, Criminal Law & Criminal Justice, 24 (2016), pp. 65, 82. Othman (Abu Qatada) v The United Kingdom, App no. 8139/09 (ECtHR, 17 January 2012), para 264. See also Jalloh v Germany, App no. 54810/00 (ECtHR, 11 July 2006), para 105. Gäfgen v Germany, App no. 22978/05 (ECtHR, 1 June 2010), para 178: ‘the admission of evidence obtained by conduct absolutely prohibited by Article 3 might be an incentive for law-enforcement officers to use such methods notwithstanding such absolute prohibition.’ See also, UN Human Rights Committee (HRC), CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992, para 12. 29 30 31 32 33 Juan E. Mendez, ‘How International Law Can Eradicate Torture: A Response to Cynics’, Southwestern Journal of International Law, 22 (2016), pp. 247, 262. P. Kooijmans, Report of the Special Rapporteur, Mr. P. Kooijmans, Pursuant to Commission on Human Rights Resolution 1992/32, UN Doc E/CN.4/1993/26, 15 December 1992, paras 589-591. HRC, CCPR General Comment No. 7: Article 7 (Prohibition of Torture or Cruel, Inhuman or Degrading Treatment or Punishment), 30 May 1982, para 1.