This chapter discusses Article 3 of the European Convention on Human Rights. Article 3 prohibits torture and inhuman or degrading treatment or punishment. It imposes a negative obligation on states not to engage in such treatment or punishment and a positive obligation to act to prevent state actors and private persons from doing so. There is also a procedural obligation to investigate allegations of ill-treatment. Article 3 applies to treatment in all life contexts, including treatment in prisons. Unlike most Convention Articles, Article 3 is expressed in unqualified terms so that proscribed ill-treatment is never permitted, even for the highest reasons of public interest.
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6. Article 3: Freedom from Torture or Inhuman or Degrading Treatment or Punishment
David Harris, Michael O’boyle, Ed Bates, Carla M. Buckley, KreŠimir Kamber, ZoË Bryanston-Cross, Peter Cumper, and Heather Green
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7. Torture and aggression
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses two classes of international crimes — torture and aggression — that have repeatedly drawn international attention and condemnation but have not been adjudicated as stand-alone crimes. It begins by considering the different reasons for the treatment — in practice, if not always in theory — of these two crimes as outside the ‘core crimes’ involving the most heinous offences: war crimes, crimes against humanity, and genocide. This is followed by discussions of torture as a discrete crime; torture as a war crime and a crime against humanity; the emergence of the notion of the crime of aggression and its falling into lethargy; the elements of the crime of aggression; the need to disentangle criminal liability of individuals from state responsibility; and whether conspiracy to wage aggression is criminalized.
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17. Freedom from torture; cruel, inhuman, and degrading treatment or punishment
This chapter examines the prohibition of torture and similar forms of punishment by international human rights law. Regional and international human rights bodies have developed specific instruments and monitoring systems designed to combat such practices. The chapter argues that exhaustive definitions of the components of the prohibition on torture would not help in abolishing the practice; there is a real risk that such a list would encourage ever more innovative and horrific examples of inhumanity.
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Ireland v United Kingdom (1979-80) 2 EHRR 25, European Court of Human Rights
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Ireland v United Kingdom (1979-80) 2 EHRR 25, European Court of Human Rights. This case concerned whether interrogation techniques employed by the United Kingdom in Northern Ireland between 1971 and 1975 amounted to torture or inhuman or degrading treatment, contrary to Article 3 of the European Convention on Human Rights. More generally, the case note considers the differences between absolute, limited, and qualified rights. The case predates the passage of the Human Rights Act 1998. The document also includes supporting commentary and questions from author Thomas Webb.
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10. Terrorism
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on terrorism as a contested concept and the controversy surrounding its definition, along with the debate about the relationship between anti-terror law and human rights. It looks at the issue of compatibility between anti-terror law and human rights in the context of the rule of law and proportionality. The chapter also examines the European Court of Human Rights’ (ECtHR) interpretation of Article 3 of the European Convention on Human Rights (ECHR) as well as the conditions under which states can derogate from the ECHR. Finally, it considers anti-terror law in the UK and the challenges it has faced in the courts.
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9. Integrity of the Person
Carla Ferstman
This chapter examines the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment and the right to life. These are fundamental rights which stem from the concepts of human dignity and the integrity of the person, both foundational principles of human rights law. Following explanations of both these principles, the chapter sets out the meaning and content of the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment. It then explains the right to life, analysing similarly the content of the right and its limitations and how it has been interpreted in recent jurisprudence and treaty body commentaries.
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19. The Repression of International Crimes
Paola Gaeta, Jorge E. Viñuales, and Salvatore Zappalà
This chapter begins with an overview of international crimes, namely, offences entailing the personal criminal liability of the individuals concerned (as opposed to the responsibility of the State) under international law. International crimes include war crimes, crimes against humanity, genocide, torture, aggression, and terrorism. The discussion then turns to the prosecution and punishment by State courts, focusing on the grounds of criminal jurisdiction and in particular universal criminal jurisdiction. It ends with an overview of the prosecution and punishment by international criminal courts and tribunals, with an emphasis on the International Criminal Court, and with an assessment of the main problems besetting international criminal proceedings.
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Antonio Cassese and Paola Gaeta
This third edition of Cassese’s International Criminal Law provides an account of the main substantive and procedural aspects of international criminal law. Adopting a combination of the classic common law and more theoretical approaches to the subject, it discusses: the historical evolution of international criminal law; the legal definition of the so-called core crimes (war crimes, crimes against humanity, genocide) plus aggression, torture and terrorism; the forms and modes of criminal responsibility; and the main issues related to the prosecution and punishment of international crimes at the national and international level, including amnesties, statutes of limitations and immunities. The book guides the reader through a vast array of cases and materials from a number of jurisdictions, providing analysis that brings the political and human contexts to the fore. The International Criminal Court and all the other modern international criminal courts are fully covered, both as regards their structure, functioning and proceedings, and as far as their case law is concerned.
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9. Article 3: prohibition of torture
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter the absolute ban on torture and inhuman or degrading treatment that Article 3 requires. The basic terms (torture and inhuman and degrading treatment and punishment) are defined. The absolute nature of the ban is discussed. The chapter also discusses the broad nature of state responsibility to prevent suffering that is severe enough to violate Article 3. Article 3 creates limits to what is acceptable as punishment and, more importantly, applies in a wide range of situations for which the state has responsibility in respect to otherwise lawful activity not involving an intention to harm.
Book
Bernadette Rainey, Pamela McCormick, and Clare Ovey
Seventy years after the founding of the European Court of Human Rights it has dispensed more than 22,000 judgments and affects the lives of over 800 million people. The eighth edition of Jacobs, White & Ovey: The European Convention on Human Rights provides an analysis of this area of the law. Examining each of the Convention rights in turn, this book lays out the key principles. Updated with all the significant developments of the previous three years, it offers a synthesis of commentary and carefully selected case-law, focusing on the European Convention itself rather than its implementation in any one Member State. Part 1 of the book looks at institutions and procedures, including the context, enforcement, and scope of the Convention. Part 2 examines each of the Convention rights including the right to a remedy, right to life, prohibition of torture, protection from slavery and forced labour, and respect for family and private life. Part 2 also examines the freedom of thought, conscience, and religion; the freedom of expression; and the freedom of assembly and association. The rights to education and elections are considered towards the end of Part 2, as are the freedoms of movement and from discrimination. Part 3 reflects on the achievements and criticisms of the Court and examines the prospects and challenges facing the Court in the present political climate and in the future.
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29. Terrorism
Martin Scheinin
This chapter first addresses the question of whether terrorism constitutes a violation of human rights, or whether the notion of human rights violations can only be applied to action by states, and then considers challenges to the applicability of human rights law in the fight against terrorism, particularly since 9/11. It focuses on the notion of terrorism, and in particular the risks posed to human rights protection by vague or over-inclusive definitions of terrorism. The main section of the chapter deals with some of the major challenges posed by counter-terrorism measures to substantive human rights protections. It is argued that the unprecedented post-9/11 wave of counter-terrorism laws and measures that infringed upon human rights was a unique situation, and that governments and intergovernmental organizations are realizing that full compliance with human rights in the fight against terrorism is not only morally and legally correct but is also the most effective way of combating terrorism in the long term.
