UN Special Rapporteur on Torture: Thematic Workstream on Extra-Custodial Use of Force
Questionnaire
Extra-Custodial Use of Force and the Prohibition of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
In his report to the Human Rights Council (A/HRC/34/54, 14 February 2017), the UN Special Rapporteur on Torture expressed his intention to examine the extent to which the use of force by State agents outside the context of detention[1] (‘extra-custodial use of force’) can violate the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment, and to submit a thematic report on the matter to the UN General Assembly in October 2017.
There are several reasons for such a systematic investigation:
- First, while the constitutive elements ordinarily associated with torture and other cruel, inhuman or degrading treatment or punishment (CIDTP) are prevalent primarily in the context of detention, they can also mark extra-custodial contexts, such as crowd-control, curfew enforcement, searches and a broad range of abuse inflicted for personal gain. Indeed, international and national court cases, as well as numerous NGO reports, show that the extra-custodial use of force bears a significant risk of inflicting unnecessary, excessive or otherwise arbitrary harm, which may have implications under the prohibition of torture and CIDTP.[2]
- Second, while international case law and widely recognized soft-law instruments have established a consolidated regulatory framework governing the extra-custodial use of force (e.g. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and Code of Conduct for Law Enforcement Officials), the extent to which such force raises issues under the prohibition of torture andCIDTP has not been adequately explored. In clarifying this question, and in developing concrete recommendations on the matter, the Special Rapporteur hopes to strengthen the capacity of States to ensure effective prevention of, and accountability for, torture and CIDTP in extra-custodial settings. Moreover, in complementing existing international standards governing the use of force, this exercise aims to contribute to the development of seamless guidance on the entire spectrum of the use of force, from non-lethal to deliberately lethal, and thereby to support States in ensuring full compliance with their human rights obligations. Lastly, this clarification process also aims at generating and strengthening synergies between mechanisms tasked with the protection against torture and those involved in overseeing and regulating the use of force more generally.
- Thirdly, the envisaged clarification process can help to sharpen the generic criteria and thresholds rendering a particular treatment or punishment ‘cruel’, ‘inhuman’ or ‘degrading’.
In order to gather a maximum of relevant input for his report, the Special Rapporteur decided to consult widely with specialized experts and institutions, including through the broad circulation of a questionnaire addressing the most relevant questions to be resolved.
Questionnaire
In completing this questionnaire...
please consider not only treaty law but, whenever appropriate, also custom and general principles of law, as well as interpretations provided in soft-law instruments and case law;
please consider whether a distinction should be made between torture and CIDTP;
please provide reasons or examples for your answers, and feel free to cross-reference your answers in case of overlap;
please clarify whether your argument is based on existing international law (lexlata) or on your assessment of what the law "ought to be" (lexferenda).
Questions:
- In what circumstances, if any, does the extra-custodial use of force[3]by State agents amount to torture or CIDTP?
- In terms of control, to what extent are any of the following constitutive elements of torture and / or CIDTP?
(a)physical custody;
(b)other control exercised by the perpetrator over the victim;
(c)a relationship of relative power and powerlessness between perpetrator and victim;
(d)other elements.
- Does the extra-custodial use of force in contravention of one or several of the criteria listed below necessarily amount to torture or CIDTP?
(a)the lawfulnessof the purpose for the use of force;
(b)the necessity of the force used to achieve that purpose;
(c)the proportionality between harm and benefit expected to result from the use of force;
(d)the precautions taken with a view to avoiding or minimizing the use of force;
(e)other criteria?
- How can reference to the evaluative criteria listed in question 3 be reconciled with the absolute nature of the prohibition of torture and CIDTP?
- In terms of intention, in order to amount to torture or CIDTP, does failure to comply with the relevant requirements governing extra-custodial use of force have to be deliberate, reckless or merely negligent? Or is intent irrelevant?
- Should the extra-custodial use of certain means, such as certain types of ammunition, riot control agents, electric devices, or robots,be considered either: (a) intrinsically or (b) presumptively cruel, inhuman or degrading? If so, why and what are the legal consequences in either case? If not, why not?
- With a view to regulating or controlling the extra-custodial use of force in compliance with the absolute prohibition on torture and CIDTP, please:
(a)identify any good or desirable practice;
(b)identify any gaps in international law, as well as in the national regulatory frameworks you are most familiar with;
(c)provide your recommendations, if any, with a view to the further development of the law.
[1] Detention here denotes circumstances involving the deprivation of liberty.
[2]For example, severe beating (incl. with rubber truncheons) of a protestor taking shelter within a school was regarded as torture in: ECtHR, Cestaro v Italy(App No 6884/11, Judgment of 7 April 2015), and excessive force in the context of demonstrations was regarded as inhuman and degrading treatment in: ECtHR, Muradova v Azerbaijan (App No 22684/05, Judgment of 2 April 2009) and ECtHR, Güler and Öngel v Turkey (App Nos 29612/05 and 30668/05, Judgment of 4 October 2011).
[3] The notion of "extra-custodial" use of force refers to the use of force against persons who are not detained, arrested or otherwise deprived of their liberty.