International Human Rights: Torture versus Ill-Treatment

Why does international human rights law distinguish between the concepts of ‘torture’ and ‘ill-treatment’? Do you consider this distinction well-founded?

The distinction between torture and ill-treatment is not well-founded because there is no functional framework defining the purposes of these two differentiated concepts. To rectify this lack of clarity, torture and ill-treatment should be understood as completely distinct tools that address separate issues. Cleaving the two ideas apart and setting them against different social ills not only creates a clearer distinction that simplifies the legal regime addressing coercive state action (torture), but it also develops a more comprehensive human rights framework that can now use one of its foundational concepts (ill-treatment) to address systemic failures.

International human rights distinguishes between torture and ill-treatment. The distinction exists throughout human rights legal documents, starting with the Universal Declaration of Human Rights (UDHR). Article 5 says that, “No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Cruel, inhuman, or degrading treatment is similar to the concept of ill-treatment in other international human rights documents, such as the European Convention on Human Rights (ECHR).

Wording distinctions should be given meaningful legal difference. Torture is defined in the Convention Against Torture (CAT) as (1) the infliction of “severe pain or suffering,” (2) “intentionally,” (3) “for [specific] purposes,” (4) by “a public official or other person acting in an official capacity.” Definitions of torture differ in other international human rights treaties but, for our purposes, this definition captures the essence of torture’s legal components. Ill-treatment may be distinguished along three dimensions. First, by a lower level of pain or suffering. Second, lacking intentionality or purposiveness. Third, a person acting in their private capacity, or in an unofficial capacity.

Ill-treatment has been defined by bounded thresholds of physical and mental suffering. The European Court of Human Rights (ECtHR) thinks that, “ill-treatment must attain a minimum level of severity if it is to fall within [ECHR] Article 3. Assessment of this minimum is relative: depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, [and] its physical or mental effects.” A v UK (1998). On the other end of the spectrum, the CAT’s Article 16 defines ill-treatment relative to torture; as acts that are similar, but do not amount, to torture. The Human Rights Committee (HRC) has similarly identified the “severity” of ill-treatment as a distinguishing factor, along with its “nature [and] purpose.” Along this dimension, ill-treatment amounts to some minimum level of suffering but not too much suffering.

Ill-treatment has also been distinguished based on the intentions of the defendants. The ECtHR in Gafgen v Germany (2010) emphasized the purposive elements of torture, which are not necessary for ill-treatment. The distinction is an important broadening of the scope of what is captured by ill-treatment. Perpetrators actions may be purposive, such as torturing a victim to get information, but not intentional towards someone suffering severe mental anguish, such as the torture victim’s mother. Stripping away intentionality as a legal element also opens the door to broader conceptions of ill-treatment, such as social torture, which can be seen in American ghettos that “systemically reproduc[e] its deepest pattern of social exclusion, inter-racial hostility, and interpersonal violence.” Social Torture: The Case of Northern Uganda. To fully incorporate a concept as broad as social torture, ill-treatment must also be distinguished along a third dimension: private versus public actors.

The prohibition against torture is targeted towards public officials and those acting in an official capacity. This requirement is sensible in the modern human rights paradigm that focuses on controlling state action. Thus, in that dynamic, the prohibition on torture operates erga omnes (an obligation that a state owes to everyone) to prohibit states and state institutions from torturing. However, the obligation is broad and often captures the actions of nominally private actors. States can violate the prohibition against torture when, for example, “detention centers are privately owned or run . . . [such] that personnel are acting in an official capacity on account of their responsibility for carrying out the State function . . . to prevent torture and ill-treatment.” CAT Committee GC 2. States can also violate the prohibition against torture if “they fail to exercise due diligence,” to investigate and intervene in potential torture or ill-treatment. Id. The prohibition also applies to non-state actors who “exercise certain prerogatives that are comparable to those normally exercised by legitimate governments.” Elmi v Australia (CAT, 1999). To date, neither the CAT Committee, ECtHR, HRC, nor any other relevant interpretative body has distinguished ill-treatment as an obligation that might apply to private actors more broadly than the prohibition on torture already might. Such a distinction would, most likely, sit uncomfortably in a state-centric human rights regime.

Often, legal distinctions, especially those of closely related concepts like torture and ill-treatment, are made to delineate differential repercussions. For example, those convicted of 1^st degree homicide, 2^nd degree homicide or manslaughter receive different sentences. However, international human rights does not distinguish ill-treatment from torture for any such differentiated punitive application. At most, states that commit torture are subject to more international condemnation, since the word torture carries more stigma than ill-treatment. It is unlikely that any rigorous sanctions follow findings that a state committed torture rather than ill-treatment. The lack of penal differentiation is a feature of international human rights, which is characterized by systems that are geared to enhance transparency but that are backed by weak enforcement powers.

So, if international human rights does not distinguish between torture and ill-treatment to tailor punishment to the crime, why does international human rights distinguish between the two concepts?

One explanation might be the desire of states to retain policy flexibility in their use of force. While torture is non-derogable (states may not, for any reason, exempt themselves from the obligation not to torture), ill-treatment might be. Torture is explicitly non-derogable in several treaties. CAT Art. 2(2), ECtHR Art. 15(2), ICCPR Art. 4(2). In contrast, there is no such restriction on ill-treatment. The CAT said in its 2^nd General Comment that ill-treatment should also be non-derogable, but its wording is telling: ill-treatment should be non-derogable. States wrote and ratified the treaties, and they did not include express provisions of non-derogability for ill-treatment. This can be read as a sign that they wished to retain flexibility for coercive force that should not be stigmatized as torture.

Another explanation is that the UDHR (and other relevant treaties) introduced a broad prohibition that actually does not merit the distinctions previously discussed. The UDHR prohibits ill-treatment just as forcefully as torture. In practice, the definitional threshold between ill-treatment and torture is often not clear because the conditions that give rise to ill-treatment frequently facilitate torture. If ill-treatment is a precursor to, or a less severe form of, torture, and there are no differences in derogability or punishment, then there is no need to distinguish the two concepts. Once state action meets the threshold for ill-treatment, that state may be condemned. On this reading, international human rights distinguishes between ill-treatment and torture either because of some misunderstandings about why we make legal distinctions and operationalize treaty language, or because there is value in distinguishing torture, because it does carry more stigma, even though there are no hard legal repercussions as in criminal law.

Neither of these explanations is satisfactory. In fact, the differences between ill-treatment and torture are muddled in the case law, as some fact-specific assessment of severity and purpose, precisely because the legal establishment does not have a coherent working thesis for why ill-treatment and torture should be distinguished. To create useful rules or standards distinguishing the two concepts, their purposes must be clarified.

The purpose of condemning states that commit torture should be to call the attention of outside actors: states, companies and civil society, that a particular geographic governance institution is corrupt in the most base, moral sense. Torture should be used as a mechanism to highlight the worst coercive state institutions in the world. Therefore, torture should be a prohibition on specific state action. This is, essentially, the definition of torture today: incorporating private actors who assume state functions and condemning non-action by states that should investigate private acts. Findings of torture do carry substantial stigma, which operates effectively against states, and keeping the definition of torture relatively static comports with state obligations under relevant treaties.

Ill-treatment, on the other hand, should be broadened a great deal. It should serve a radically different purpose than torture; in fact, it should be an altogether different concept. It can encompass lower thresholds of suffering, although setting the threshold of suffering is a hard-to-define and inconclusive exercise. As different and unrelated concepts, torture and ill-treatment might encompass overlapping minimum thresholds of suffering, but need not. More concretely, ill-treatment can be defined without reference to purpose, intention, or to any particular actors, official or otherwise. Ill-treatment should be used to highlight situations of broad social suffering, to raise awareness of a systemic failure causing extreme suffering. While the purpose of the prohibition on torture is to shame and isolate particular institutions, the purpose of the prohibition on ill-treatment would be to galvanize action to support and strengthen local governance and economic institutions to alleviate the situation.

What are the legal repercussions of such a re-imagining of ill-treatment vis-à-vis torture? Most radically, the requirement of state action or inaction melts away in an analysis of ill-treatment. This change does not mean, however, that ill-treatment operates against private actors. It simply means that proving the existence of ill-treatment in a particular state does not require the participation of anyone in particular. It may encompass a broad range of actors. Otherwise, ill-treatment can still be assessed and brought-to-light within the same human rights treaties and institutions that already exist. Moreover, the CAT was correct to write that ill-treatment should also be non-derogable. Some states may not derogate from what amounts to a prohibition on systemic deprivation because (1) the deprivation is outside of their control and (2) the motives of human rights institutions are to galvanize support for the state to rectify the situation, or (3) because a state has the power to create and maintain systemic deprivation and there are no good reasons why that state should be allowed to exercise that power.

Torture and ill-treatment should be understood as completely distinct concepts that address separate issues. Cleaving the two ideas apart and setting them against different social ills not only creates a clearer distinction that simplifies the legal regime addressing coercive state action, but it also develops a more comprehensive human rights framework that can now use one of its foundational concepts to address systemic failures. Thereby, ill-treatment can be used to highlight issues like social torture in Northern Uganda. In social torture contexts, the range of actors is larger and more complex, and the nature of their involvement is more nuanced than a rigid perpetrator-victim distinction. The categories of perpetrator, bystander and victim are fluid. And suffering is of relatively low intensity, time-indifferent, and has a wide geographic and social impact. These situations undeniably constitute ill-treatment in a colloquial sense and require interventions at the level of social systems. International human rights should incorporate systemic concerns more deeply into its institutional frameworks and can consolidate legal claims through the concept of ill-treatment.