looked at the same evidence as the commission and agreed with the implicit assumption that the level of suffering was the crucial factor. However, it drew the line at a different point, concluding, “Although the five techniques … undoubtedly amounted to inhuman and degrading treatment … they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.”56 The judgment insisted on the distinction between torture and inhuman or degrading treatment or punishment, arguing that torture “held a special stigma.”57 In making the distinction, the court cited the UN General Assembly resolution that defined torture as a particularly aggravated form of ill-treatment.58 The judges were reportedly persuaded to make the distinction by Sir Gerald Fitzmaurice, the British judge at the court and a former legal adviser to the British Foreign Office.59 However, Fitzmaurice also issued a dissenting opinion, which argued that it was impossible and undesirable to come up with a precise definition of torture, as it was an entirely subjective term.60 He then went on to claim that although the five techniques were “certainly harsh,” to call them inhuman or degrading was to “debase the currency of normal speech.” For Fitzmaurice, in a clear allusion to George Orwell’s 1984, calling the five techniques “torture” left no room to describe acts such as “kicking a man in the groin, or placing him in a blacked-out cell in the company of a bevy of starving rats.”61 For Fitzmaurice, the court was setting the threshold of suffering too low.
It is important to note two things about the court’s judgment. First, although the United Kingdom was found guilty of a breach of Article 3, the court was implicitly arguing that some breaches are worse than others. Torture was singled out for special censure. Second, the distinction that was being made here between torture and other forms of ill-treatment was in terms of the intensity of the suffering. However, the court offered no way to measure this pain, nor did it provide a sense of the level necessary to be considered “torture.” If the British had wanted to argue that its interrogation techniques were not torture it could not rely on a distinction based on intention, as the five techniques were openly aimed at eliciting information through physical and psychological pressure. Back in the United Kingdom, the press widely reported the decision as a victory for the British government, ignoring the fact that the government had still been found in breach of the convention (see, for example, Walker 1978). There was, however, considerable criticism of the judgment elsewhere. Gerald Fitt, the leader of the Social Democratic and Labour Party, the largest nationalist party in Northern Ireland at the time, accused the court of “playing with words” (Seton 1978, 5). The Northern Ireland Civil Rights Association accused the court of “nitpicking,” and Amnesty International announced it would continue to describe interrogation methods such as those used by the British in Northern Ireland as torture (Seton 1978, 5).
An International Torture Convention
The momentum gained by the Amnesty International Campaign Against Torture during the lobbying for the UN resolution against torture in 1975 continued with the drafting of a new Convention Against Torture (CAT) throughout the late 1970s and early 1980s. Originally, three drafts were reviewed, including one written by the International Penal Law Association, with heavy input from Amnesty International, and another by the Swiss-based Committee Against Torture. However, it was a draft prepared by the Swedish government that eventually formed the basis of negotiations. The new draft CAT built heavily on the 1975 Declaration Against Torture, using much the same definition, with its focus on the level of suffering and the intention of public officials.62 The drafting committee had originally been mandated to prepare a Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, although the name of the convention continued to include all forms of ill-treatment, in practice the final convention focused almost exclusively on torture. The aim of the convention was to set out specific legal obligations for states, such as the criminalization of ill-treatment within domestic law and the principle of universal jurisdiction, where states have the responsibility to prosecute perpetrators no matter where the act has been carried out. According to J. Herman Burgers, the Dutch chair of the drafting committee, and Hans Danelius, the Swedish diplomat who wrote the initial draft, many states were concerned that specific obligations such as these should not be tied to vague concepts like “cruel, inhuman or degrading treatment or punishment” (1988, 39). It is therefore only when we get to Article 16 that we hear mention of other forms of ill-treatment. The definition of torture differed from the jurisprudence of the European Court of Human Rights at the time, as it placed relatively greater weight on the intention of the perpetrator and less on the level of pain. Despite the arguments for precision, the definition of torture given in the convention is still not, according to probably the two most influential figures in its drafting, really a definition at all (Burgers and Danelius 1988, 122). Rather it is a description, including debatable terms such as “pain and suffering,” intended as a guide for implementation.
Although there were considerable limitations placed on the obligations of states, the United Kingdom still remained nervous about many of the articles in the convention. In particular, it was concerned that universal jurisdiction would be unworkable in practice (Burgers and Danelius 1988, 40). The United Kingdom also insisted, successfully, that the principle of “non-refoulement,” that no one should be returned to a state where they may face mistreatment, should be limited to situations of “substantial” rather than merely “reasonable” grounds for believing they may be subjected to torture (Burgers and Danelius 1988, 50). Against the background of the recent findings of the European Court of Human Rights with regard to Northern Ireland, the United Kingdom tried to persuade the drafting committee, unsuccessfully this time, to adopt a more restrictive definition of torture, as systematic and causing extreme pain, rather than simply intentional and causing severe pain (Burgers and Danelius 1988, 45). The United Kingdom, however, was more successful, again against the background of the European Court of Human Rights decision, in persuading the drafting committee to imply that cruel, inhuman, or degrading treatment were of lesser gravity than torture.63 A separate Swiss and French proposal suggesting that torture included other forms of ill-treatment was rejected (Burgers and Danelius 1988, 42, 47). The final draft said that cruel, inhuman, or degrading treatment did “not amount to torture.”64
On 10 December 1984, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was unanimously adopted by the UN General Assembly. As a result of ratifying the convention, the United Kingdom made torture a specific criminal offense for the first time in English law.65 In the debate to mark its ratification, most parliamentarians seemed to agree that it would make little difference to actual policy and practice in the United Kingdom but would serve to “reinforce the solidarity of the international community.”66 For domestic British politicians, as with the signing of the Universal Declaration and the European Convention on Human Rights, there was an assumption that the United Kingdom was already substantively, if not technically, compliant with the convention, and its signature was more of a call to the rest of the world.
Shortly after the election of Tony Blair in 1997, the Labour government announced that it would follow through on its preelection pledge to pass a Human Rights Act. The White Paper on the proposed law was entitled “bringing human rights home,” echoing the sense that human rights are somehow inherently British. The new law was motivated in part by the large number of British cases being taken to the European Court of Human Rights and the extensive delays found there. The Human Rights Act 1998 makes a remedy for breach of a convention right available in English courts without the need to go to the European Court of Human Rights. This includes Article 3 and the prohibition of torture and inhuman, or degrading treatment or punishment. Space was therefore opened for specific human rights claims about torture in English courts for the first time.
Torture after the “War on Terror”
For a visitor acquainted with the protests against the actions of the British army in 1930s Palestine, many of the arguments regarding the brutal treatment of detainees during the “war on terror” would seem very familiar. The sense that torture and other forms of brutality are
