The Act Of Torture, Does The End Justify The Means?

The Act Of Torture, Does The End Justify The Means?

Israel Akande.

Abstract

This paper seeks to examine the extent of the powers of the police and security operatives of the United Kingdom, in physically coercing a person to elicit information. It determines the scope of physical acts that constitute torture as well as show the various commentaries on the subject of torture. Torture is widely regarded as inflicting severe pain or mental anguish on a human being, usually in order to gain some information from the person being tortured, especially a confession. Amnesty International state that ‘torture is the systematic and deliberate infliction of acute pain in any form by one person on another, in order to accomplish the purpose of the former against the will of the latter.[1] Article 1 The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information constitutes torture.

While recognising the need to obtain information necessary to deal with certain situations, the global conception of human rights precludes the use of torture by any state or person on another human being. This assertion is lent credence under international law as the prohibition of torture derives from a number of instruments, notably Article 3 of the European Convention on Human Rights (ECHR), Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 5 of the Universal Declaration of Human Rights,[2] and from international jus cogens. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).[3] The UNCAT also requires that all member states criminalise torture in their national laws.[4]

The debate on torture affords several arguments, including appeals to the “greater good”, where concepts such as national security, antiterrorism measures, or other public safety objectives remain paramount[5]; other commentators express the view that a uniform standard of human rights against torture remain immutable. However emotive the arguments are there are no exceptions listed or permissible under International Law as the ban on torture is absolute even in times of war.[6]

The United Kingdom is a signatory to these conventions and has domestic laws that emphasize its position on torture. The Criminal Justice Act 1988[7] makes particular reference to classification of certain acts if committed by public officers that may be regarded as torture and is punishable by life imprisonment.[8] It is significant to note the use of the word “severe” in the description of the acts of torture as provided under the UNCAT and CJA. It is submitted therefore that the true test therefore lies in the degree of the coercion. An endeavour into the degree as envisaged by legislation often leads into the infamous slippery slope argument.

During Operation Demetrius, Britain used techniques such as sleep deprivation, exposure to extremes of hot and cold, prolonged stress positions, hooding and violent shaking against suspected terrorists in Northern Ireland[9] was used to extract information. These were however banned in 1978 following a case brought by the Republic of Ireland to the European Court of Human Rights[10]. Although it was held that the acts were not torture, such methods did amount to inhumane treatment, the court ruled. These same were also being used in Israel against suspected Palestinian terrorists until the Supreme Court of Israel in 1999 ruled that torture could never be justified, even in the case of a ticking bomb[11]. 

In a 2003 CNN interview[12], Harvard University law professor Alan Dershowitz responded to a question saying we should never under any circumstances allow low-level people to administer torture. If torture is going to be administered as a last resort in the ticking-bomb case, to save enormous numbers of lives, it ought to be done openly, with accountability, with approval by the president of the United States or by a Supreme Court justice. Ken Roth[13] in the same interview responded saying; the prohibition on torture is one of the basic, absolute prohibitions that exist in international law. It exists in time of peace as well as in time of war. It exists regardless of the severity of a security threat.

Conclusion

Although legislation does not define the sort of acts that are regarded as “severe” cases imply general acts of causing discomfiture not incidental to duty. The provisions of Section 134 (4) CJA[14] also creates a quandary as to when such acts are excusable. The House of Lords unanimously overruled the decision of the English Court of Appeal[15] making evidence gotten through torture inadmissible.

A poll conducted by the BBC in 2006 shows the views of the public in countries on the use of torture. The prevalent consensus suggests that it is unpopular. This creates a conflict between public policy and the practicality serving the “greater good”.

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[1]‘Can the Use of Torture be justified?’ <http://www.ukessays.com/essays/general-studies/torture.php> accessed 07 November 2011; Klayman, Barry M. (1978). The definition of torture in international law, v.51, London: Temple Law.

[2] GA Res. 217 (III), 10 Dec. 1948

[3] United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Article 1 defines torture as “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.

[4] UNCAT Art 4 (1).

[5] Nigel Rodley ‘Criminalisation of torture: state obligations under the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’ 2006 EHRLR.

[6] UNCAT Art 2 provides in part as follows Article 2(2). No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture

[7] Criminal Justice Act 1988, s 134.

[8] Criminal Justice Act s 134 (6).

[9] W. Royce Adams  Viewpoints: Readings Worth Thinking and Writing About (Wadsworth Publishing Company, 2009)

[10] Case No. 5310/71  Ireland v. the United Kingdom [1978] ECHR

[11]H.C. 5100/94 Public Committee against Torture in Israel v. The State of Israel 1999; Public Committee against Torture in Israel v. The State of Israel et al: Amand, Matthew G. St. Landmark Human Rights Decision by the Israeli High Court of Justice or Status Quo Maintained 25 N.C.J. Int'l L. & Com. Reg. 655 (1999-2000)

[12] Wolf Blitzer ‘Torture could be justified’ <http://edition.cnn.com/2003/LAW/03/03/cnna.Dershowitz/> accessed 07 November 2011.

[13] At the time of the interview Ken Roth was the executive director of The Human Rights Watch.

[14]Criminal Justice Act 1988 s 134 (4). It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct

[15] A and Others v. Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2005] 3 WLR 1249

Acceptable or not? The United Kingdom's position on prisoner voting rights.

The United Kingdom has a blanket legislation that restricts the rights of prisoners to vote. This legislation raises much controversy and questions on the violation of Human Rights. This legislation has been referred to the European Court of Human Rights and most recently subjected to a very comprehensive debate in the House of Commons in February 2011. This paper will attempt to show a chronology of the state of affairs as pertain to the legislation as well as form an opinion on the acceptability of the United Kingdom’s position on prisoner voting rights.The disqualification under Section 3 of the Representation of the People Act 1983 does not apply to prisoners imprisoned for contempt of court  or following default in non-compliance with a sentence such as payment of a fine  and, since the passage of the Representation of the People Act 2000, no longer effects prisoners held on remand.

In Hirst  the Grand Chamber of the European Court of Human Rights ruled that S.3 of the 1983 Act directly contravened the provisions ECHR art.3 Protocol 1 with its blanket ban of prisoner voting rights. They however confirmed that individual rights as stipulated by Art.3 Protocol 1 are not absolute, but cautioned that any limitations to the right to vote must not impair the “very essence” of ECHR art.3 Protocol 1.   S.3 of the 1983 Act was criticised for being a “blunt instrument” which imposed a “blanket restriction” and as such did not reflect “any direct link between the facts of any individual case and the removal of the right to vote”.  The violation of ECHR art.3 Protocol 1 was found by 12 votes to 5 and it is most significant to note that the British Judge, Sir Nicholas Bratza, voted with the majority.  A few cases that further reinforce the decision in the Hirst case include Green V United Kingdom and Frodl v Austria.   Essentially, S.3 of the 1983 Act has not been amended since the Hirst case, As a result, prisoners have been ineligible to vote in the general election in the United Kingdom in May 2010.

The case of Scoppola v Italy is noteworthy as it shows the latest attempt of the European Court of Human Rights in deliberating over  a blanket ban on prisoners’ right to vote. It held that a blanket ban constituted an automatic and indiscriminate restriction of a vitally important Convention right falling outside any acceptable margin of appreciation, however wide that margin may be". It held that a decision on disenfranchisement should be taken by a court and should be duly reasoned. While it was not disputed that the permanent voting ban imposed on the applicant had a legal basis in Italian law, the application of that measure was automatic since it derived as a matter of course from the main penalty imposed on him (life imprisonment). That general measure had been applied indiscriminately, having been taken irrespective of the offence committed and with no consideration by the lower court of the nature and degree of offence. The possibility that the applicant might one day be rehabilitated by a decision of a court did not in any way alter that finding. Thus, having regard to the automatic nature of the ban on voting and its indiscriminate application, the Court concluded that there had been a violation of Article 3 of Protocol No. 1.

It can be seen that section 3 of the 1983 Act imposes a restriction on prisoners’ voting rights, which runs contrary to Article 3 protocol 1 of the ECtHR that creates an individual right to vote which must not be disproportionately restricted. The House of Commons recently deliberated on this matter and the debate highlighted the rule of law, the sovereignty of Parliament and the separation of powers as to how human rights should be defined. Various UK public officers and MP’s have expressed a strong opposition to  allowing prisoners the right to vote and while there is a need for an acceptable and uniform framework of Human Rights in Europe, the peculiarity of individual nations must be taken into consideration. The yardstick within which the term acceptable is to be measured is difficult to interpret as a plethora of divergent opinions create an impasse. It is yet to be seen as to when the UK would comply with the ECHR rulings and if it does the class of prisoners affected.

The Libyan Revolution

The waves of civil disobedience and uprisings that would sweep the Arab world began in Tunisia with reaching repercussions that would culminate in the death of the erstwhile Leader of Libya, Muammar Gaddafi. A plethora of issues have arisen with various commentators expressing a myriad of opinions on concepts such as human rights, rule of law and national sovereignty. Muammar Gaddafi had been in power for 42 years and while some regard him as being belligerent and an autocrat, others view him as a leader and champion of Africa. Only a few years ago he was sitting to discuss with the President of the United States Barack Obama and a week ago was murdered in cold blood without so much as a trial. The series of events that would later be tagged as the Arab spring is certainly one of great implications.

This is further emphasised in the timeline of events that trail the civil war in Libya. Following the wave of riots and unrest, the United Nations passed a resolution allowing a NATO led military intervention in Libya which has resulted in the arming of civilians and ultimately the deposition and death of Muammar Gaddafi. The African Union has often been criticised as being ineffectual and lacking in dealing with issues as they affect the continent. It recently came under fire from the pan African parliament where the interference of the west in settling the civil unrest in Libya was viewed as an indication of the ineptitude of the African union. Analysts contend that the overlooking of the African Union original road map for resolving the Libyan civil war by the west shows a disregard for the sovereignty and institution of the African Union. General rumblings suggest economic and political motivations as being the real reason behind the western intervention of Libya. The New York Times article by Scott Shane October 28 2011 sports a title that reads 'West Sees Libya as Ripe at Last for Businesses'. It reports that barely a week after Gaddaffi's death, a delegation from 80 French companies arrived in Tripoli to meet officials of the Transitional National Council, the interim government. The British defence minister, Philip Hammond, was quoted as urging British companies to “pack their suitcases” and head to Tripoli. 

The true effects are left to be seen in the aftermath of the civil war as ideologies and concepts on political integrity sovereignty and global co-operation remain vague at most.

The Interminable CIF Question.

The FOB (free on board) and CIF (cost insurance freight) are among some of the oldest and frequently used trade terms in international sales contracts and domestic trade. The underlining functions of these concepts is to establish the nuances of risk and ownership between the buyer and seller. Under the CIF a seller is responsible for the supply of goods that match the description in the contract, insuring and shipping same to the port of consignment. The buyer undertakes to pay against the tender of the necessary documents and not the delivery of goods at the port of delivery, as such the seller's duty is completed upon the tender of the requisite document to the buyer. Scrutton J in Arnold Karberg & Co v. Blythe, Green Jourdain & Co [1915] 2 K.B. 379 at 388 expounded on the CIF trade term saying "It is not a contract that goods shall arrive, but a contract to ship goods complying with the contract of sale, to obtain, unless the contract otherwise provides, the ordinary contract of carriage to the place of destination and the ordinary contract of insurance of the goods on that voyage, and to tender these documents against payment of the contract price". Inference may be drawn from this judicial description that a seller under a [CIF] contract has to first ship at the port of shipment goods of the description contained in the contract, second to procure a contract of affreightment, under which the goods will be delivered to the destination contemplated in the contract, third to arrange for an insurance upon the terms current in the trade which will be available for the benefit of the buyer, fourth to make out an invoice and finally to tender these documents to the buyer so that he may know, what freight he has to pay and obtain delivery of the goods if they arrive, or recover for their loss if they are lost on the voyage. It follows that against tender of these documents, the bill of lading , invoice and policy of insurance the buyer must be ready and willing to pay the price. Scrutton J in the above case said that a CIF sale is not a sale of goods but a sale of documents relating to goods. While in a business perspective it may be regarded as a contract for sale of goods but certain arguments avail that it is a sale of documents.

This view was rejected by Bankes and Warrington Ljj in the court of appeal as they declared that a CIF contract is contract for sale of goods to be performed by the delivery of documents. Kerr J. also posited that it is an anathema to oversimplify a CIF contract as merely a sale of documents. However, Scrutton J's statement cannot be totally disregarded as a bundle of rights and liabilities are attached to the document tendered. Though the importance of documents cannot not be denied it is imperative that their importance be emphasised on the strength contract of the sale of goods. The importance of the documents in CIF contracts is further illustrated by the rule that allows the seller to tender documents even after the goods they represent have been damages or lost. It seems incredulous that such a rule could exist and even if it did exist that the sale was for the goods and not the documents. If the goods were of utmost importance and were to all intents and purpose the subject matter of the contract then this rule would not exist. The documents run to the very core of the contract and the CIF contract depends on the transfer of the documents which give the buyer control, and a right of disposal of the goods, and rights to recover compensation if they are damaged due to the default of the carrier or due to some insured peril it is concluded that this is fact a sale of documents. It seems impossible to argue otherwise than that a CIF is a sale of documents when we consider that the documents are key to all elements of the contract and they are central to shaping the parties duties, defining when risk passes, and determining the condition of the goods. It is these documents on which the entire contract is based.

Starting off in Newcastle

My name is Israel Akande and I am currently a student of International Trade Law LLM in Northumbria University Newcastle. I was born and raised in Nigeria, a beautiful oil rich country that is located in the Western part of Africa. I finished my secondary education at Gray's College and obtained an LLB (HONS) degree in law from the University of Lagos Nigeria and completed my Bar qualification exams soon after. I am a barrister and solicitor of the Supreme Court of Nigeria. I am the eldest of two children and my family live in Nigeria.
I like to think of my self as a highly motivated person who is kind and considerate, I loathe cruelty and violence. In my leisure time, I enjoy Neo-soul music, poetry and football.
I chose to study International Trade Law as it is a huge industry in my country and there is a lot of potential for growth and development. I like the intrigues of trying to broker deals and contracts that need peculiar attention to detail and as such the choice of an LLM in International Trade Law seemed obvious.
I love the city of Newcastle as it is removed from the vulgarity that comes natural to big cities and is a lovely place to explore and experience. The people are friendly, cordial and incredibly polite. I am very pleased with my choice of a place to study.
I aspire to be the best LLM student from Northumbria and look forward to enjoying the experience of starting off the course and living in Newcastle.