C.         Right to Humane Treatment

1.         International Human Rights Law

147.      Perhaps in no other area is there greater convergence between international human rights law and international humanitarian law than in the standards of humane treatment and respect for human dignity. While governed by distinct instruments, both regimes provide for many of the same minimum and non-derogable requirements dealing with the humane treatment of all persons held under the authority and control of the state.[375]

148.      Moreover, violations of the prohibition of torture and other serious breaches of humane treatment norms are regarded as sufficiently grave under both bodies of law to give rise to not only to state responsibility as described below, but may also constitute international crimes entailing the individual criminal responsibility of those participating in the violations and their superiors.[376] Some of these violations may as such constitute crimes against humanity or even genocide[377] and may now fall under the jurisdiction of the International Criminal Court.[378]

149.      Within the inter-American system, the right to humane treatment is prescribed principally in Articles I, XXV and XXVI of the American Declaration and Article 5 of the American Convention, which provide as follows:

American Declaration

Article I. Every human being has the right to life, liberty and the security of his person.

Article XXV. […]  Every individual who has been deprived of his liberty […] has the right to humane treatment during the time he is in custody.

Article XXVI. Every person accused of an offense has the right […] not to receive cruel, infamous or unusual punishment.

American Convention

Article 5.1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. 3. Punishment shall not be extended to any person other than the criminal. 4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons. 5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. 6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.

Article 7.1.  Every person has the right to personal liberty and security.

150.      These provisions mirror similar human rights guaranteed under other regional and universal instruments,[379] and generally encompass three broad categories of prohibited treatment or punishment: (1) torture; (2) other cruel, inhumane, or degrading treatment or punishment; (3) other prerequisites for respect for physical, mental or moral integrity, including certain regulations governing the means and objectives of detention or punishment. The analysis below provides an overview of the meaning and content of these humane treatment protections, followed by a consideration of several areas of state conduct particularly pertinent to the right to humane treatment, namely methods of interrogation, conditions of detention and specific protections for children, women and non-nationals.

151.      Neither the American Convention on Human Rights nor the American Declaration expressly define “torture” or “other cruel, inhuman or degrading punishment or treatment.”

152.      The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on the other hand, defines torture for the purposes of that treaty 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 […].[380]

153.      Article 2 of the Inter-American Convention to Prevent and Punish Torture[381] provides a similar, though not identical, definition of torture as follows:

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish. The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this Article.

154.      Under the Inter-American Torture Convention regime, torture refers to acts committed by state agents or persons acting under the orders or instigation of state agents.[382] While analyzing the concept of torture for the purposes of Article 5 of the American Convention on Human Rights, the Commission has frequently referred to the definition provided for in the Inter-American Torture Convention,[383] and has also found violations of the Inter-American Torture Convention itself as against states parties to that instrument.[384] The Commission has considered that for torture to exist three elements have to be combined: 1.  it must be an intentional act through which physical and mental pain and suffering is inflicted on a person; 2.  it must be committed with a purpose (inter alia personal punishment or intimidation) or intentionally (i.e. to produce a certain result in the victim); 3. it must be committed by a public official or by a private person acting at the instigation of the former.[385] As discussed below, torture and inhumane treatment are distinct types of violations.[386]

155.      The American Convention prohibits the imposition of torture or cruel, inhuman or degrading treatment or punishment on persons under any circumstances.[387] While the American Declaration does not contain a general provision on the right to humane treatment, the Commission has interpreted Article I of the American Declaration as containing a prohibition similar to that under the American Convention.[388] In fact it has specified that "[a]n essential aspect of the right to personal security is the absolute prohibition of torture, a peremptory norm of international law creating obligations erga omnes."[389] It has also qualified the prohibition of torture as a norm of jus cogens.[390]

156.      Neither the American Convention nor the Convention to Prevent and Punish Torture establish what should be understood by "inhuman or degrading treatment," nor how it is to be differentiated from torture. Nevertheless, certain guiding principles may be drawn from the jurisprudence of the Inter-American Court and Commission for the purpose of evaluating whether certain conduct may fall within these categories of inhumane treatment. When analyzing allegations of violations of Article 5 of the American Convention, for example, the Inter-American Commission has taken into account decisions of the European Commission on Human Rights, according to which "inhuman treatment is that which deliberately causes severe mental or psychological suffering, which, given the particular situation, is unjustifiable" and that "treatment or punishment of an individual may be degrading if he is severely humiliated in front of others or he is compelled to act against his wishes or conscience."[391]

157.      The Inter-American Commission has also considered the jurisprudence of the European Court of Human Rights, according to which a treatment must attain a minimum level of severity in order to be considered "inhuman or degrading." The evaluation of this "minimum" level is relative and depends on the circumstances in each case, such as the duration of the treatment, its physical and mental effects, and, in some cases, the sex, age, and health of the victim.[392]

158.      In addition, with regard to the conceptual difference between the term "torture" and "inhuman or degrading treatment", the Inter-American Commission has shared the view of the European Commission on Human Rights that the concept of "inhuman treatment" includes that of "degrading treatment", and that torture is an aggravated form of inhuman treatment perpetrated with a purpose, namely to obtain information or confessions or to inflict punishment.[393] The Inter-American Commission has also relied upon the European Court of Human Rights’ view that the essential criterion to distinguish between torture and other cruel, inhuman or degrading treatment or punishment "primarily results from the intensity of the suffering inflicted".[394]

159.      The Inter-American Court has similarly relied upon the jurisprudence of the European Court of Human Rights in finding that, even in the absence of physical injuries, psychological and moral suffering, accompanied by psychic disturbance during questioning, may be deemed inhuman treatment. According to the Inter-American Court, the degrading aspect of a treatment is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical and moral resistance.[395] The Court also noted that the degrading aspect of the treatment can be  exacerbated by the vulnerability of a person who is unlawfully detained.[396]

160.      Finally, this Commission has considered that both the American Convention and the Inter-American Convention to Prevent and Punish Torture provide the Commission with certain latitude in assessing whether, in view of its seriousness or intensity, an act or practice constitutes torture or inhuman or degrading punishment or treatment. According to the Commission, such classification should be done on a case-by-case basis, taking into account the peculiarities thereof, the duration of the suffering, the physical and mental effects on each specific victim, and the personal circumstances of the victim.[397]

161.      While it is not possible to provide an exhaustive accounting of the type of conduct that might constitute torture or other cruel, inhuman or degrading punishment or treatment, some guidance can be drawn from existing inter-American jurisprudence, which has found certain acts to amount to inhumane treatment, generally and specifically in the context of interrogation and detention.[398] Examples include:

•                 prolonged incommunicado detention;[399]

•                         keeping detainees hooded and naked in cells and interrogating them under the drug pentothal;[400]

•                         imposing a restricted diet leading to malnutrition;[401]

•                        applying electric shocks to a person;[402]

•                        holding a person’s head in water until the point of drowning;[403]

•                       standing or walking on top of individuals;[404]  

•                        beating,[405] cutting with pieces of broken glass,[406] putting a hood over a person’s head and burning him or her with lighted cigarettes;[407]

•                         rape;[408]

•                         mock burials, mock executions, beatings, deprivation of food and water;[409]

•                         threats of a behavior that would constitute inhumane treatment;[410] threats of removal of body parts, exposure to the torture of other victims;[411]

•                       death threats;[412]

162.      Guidance in this respect can also properly be drawn from other international authorities. The United Nations Special Rapporteur on Torture has listed several acts which involve the infliction of suffering severe enough to constitute torture. These include, for example, beating, extraction of nails, teeth, etc., burns, electric shocks, suspension, suffocation, exposure to excessive light or noise, sexual aggression, administration of drugs in detention or psychiatric institutions, prolonged denial of rest or sleep, food, sufficient hygiene, or medical assistance, total isolation and sensory deprivation, being held in constant uncertainty in terms of space and time, threats to torture or kill relatives, and simulated executions.[413] The United Nations Human Rights Committee has considered similar conduct to constitute torture or other inhumane treatment, including beatings, electric shocks and mock executions, forcing prisoners to remain standing for extremely long periods of time, and holding persons incommunicado for more than three months while keeping that person blindfolded with hands tied together, resulting in limb paralysis, leg injuries, substantial weight loss and eye infection.[414]

163.      The European Commission of Human Rights and the European Court of Human Rights have also had occasion to evaluate conduct alleged to constitute torture or other inhumane treatment for the purposes of the European Convention on Human Rights. In particular, in the Greek Case, the European Commission of Human Rights considered that the practice of administering severe beatings to all parts of the body, constituted torture and ill-treatment.[415] Similarly, in Aksoy v. Turkey, the Court considered that the victim had been subjected to torture when he was stripped naked and suspended by his arms which had been tied together behind his back, the treatment was deliberately inflicted, a certain amount of preparation and exertion had been required to carry it out, and it appeared to have been administered with the aim of obtaining admissions or information from the victim.[416] In Aydin v. Turkey, the European Court considered that the rape of the victim during her detention over a period of three days, together with the fact that she has been blindfolded, paraded naked in humiliating circumstances, interrogated, and kept in a constant state of physical pain and mental anguish from her circumstances, amounted to torture.[417]

164.      The jurisprudence of the inter-American and other human rights systems provides insights into several aspects of the right to humane treatment that may be particularly pertinent in analyzing anti-terrorist initiatives. These include the conduct of interrogations, conditions of detention, and the treatment of persons in situations of particular vulnerability or disadvantage including children, women and non-nationals. In particular, the Inter-American Commission and the Inter-American Court have addressed the right to human treatment guaranteed under the Convention and the Declaration when considering some of the above mentioned acts applied on persons during their interrogations by state agents.[418] In so doing, the Commission[419] and the Court[420] have referred to the notable discussion by the European Court of Human Rights in the Ireland v. UK case[421] and have suggested that techniques similar to those addressed by the European Court are prohibited in any interrogations undertaken by state agents. The facts in that case dealt with the "interrogation in depth" which involved the combined application of five particular techniques, or methods, sometimes termed "disorientation" or "sensory deprivation" techniques, which included

(a)           wall-standing (forcing the detainees to remain for periods of some hours in a "stress position"); (b) hooding (putting a hood over the detainees' heads and, at least initially, keeping it there all the time except during interrogation); (c) subjection to noise (pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise); (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the detention centre and pending interrogations.[422]

165.      The European Court of Human Rights considered that these interrogation techniques constituted inhumane treatment but not torture as prohibited by Article 3 of the European Convention on Human Rights.[423] In its analysis the Court specified:

•                        In order to constitute torture or inhumane treatment, the treatment must attain a minimum level of severity which is assessed by taking into consideration all the circumstances of the case, such as, but not exclusively, the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim;[424]

•                  In the specific case, the acts did fall in the category of inhumane treatment because they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation; [425] 

•                       The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance;[426]

•                        The Convention contains a distinction between "torture" and "inhuman or degrading treatment" and as such attaches to torture a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.[427]

•                        In the specific case, the five techniques did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. [428]  

166.      Moreover, the Inter-American Court has specified that any use of force that is not strictly necessary to ensure proper behavior on the part of the detainee constitutes an assault on the dignity of the person in violation of Article 5 of the American Convention. According to the Court, the exigencies of the investigation and the undeniable difficulties encountered in the anti-terrorist struggle must not be allowed to restrict the protection of a person's right to physical integrity.[429]

167.      The Inter-American Commission and the Court have also dealt with the right to human treatment guaranteed under the Convention and the Declaration when considering the issue of detention conditions in individual cases and in country reports. In this context, the Commission has made specific reference[430] to the United Nations Standard Minimum Rules for the Treatment of Prisoners[431] as prescribing basic benchmarks against which to evaluate whether the treatment of prisoners satisfies the standards of humanity under the inter-American instruments in such areas as accommodation,[432] hygiene,[433] clothing and bedding,[434] food,[435] recreation,[436] exercise and medical treatment,[437] discipline, punishment and use of instruments of restraint,[438] and the separation of convicted from unconvicted prisoners and minors from adults.[439]

168.      The Court and the Commission have been particularly critical of circumstances in which individuals are held incommunicado for long periods of time in poor conditions,[440] and have identified other considerations that must regulate the obligations of states in this area:  

•                       the level of development of a particular state party to the Convention is irrelevant in the analysis of compliance with Article 5;[441]

•                         once a person falls into the custody of state agents, any inhumane treatment subsequently suffered by that person is presumed to be the responsibility of the state;[442]

•                        the state must refrain from any use of force against prisoners that is not strictly necessary for the maintenance of security and order in an institution or where personal safety is threatened;[443]

•                         in light of the serious consequences for detainees of excessive or inappropriate uses of force by their custodians, states are subject to a particularly strict duty to conduct proper and thorough investigation of allegations that detainees have been subjected to mistreatment by state officials and, if those allegations are determined to be well-founded, to take appropriate remedial measures.[444]

169.      In addition to the above-mentioned provisions, in particular Article 5(5) of the American Convention,[445] the inter-American instruments also provide for specific guarantees for children that relate in certain respects to their humane treatment:

American Declaration

Article VII. All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.

American Convention

Article 19. Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.

170.      When considering cases dealing with allegations of torture or inhumane treatment of children, both the Commission and the Court have considered as particularly grave the status of human rights victims as minors[446] and have applied or referred to the above provisions,[447] as well as other pertinent international human rights treaties. These include provisions of the UN Convention on the Rights of the Child,[448] relating to such matters as the protection of children against all forms of discrimination or discriminatory punishment,[449] and the physical and psychological recovery of children from, inter alia, any form of neglect, exploitation or abuses, and all of which are grounded by the general principal of the best interest of the child.[450]

            171.      Of particular relevance in this connection is Article 37 of the Children’s Convention addressing the treatment of children during detention:

Article 37. States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

172.      Consistent with these provisions, the Commission has considered that imprisonment of children must only be used as a last recourse and for the shortest time, and that children must never be kept incommunicado or incarcerated with adults.[451]

173.      The inter-American human rights instruments also provide for particular guarantees concerning the rights of women that are relevant to the issue of humane treatment. In addition to the general prohibition of inhumane treatment under Article 5, these provisions include:

American Declaration

Article VII. All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.

American Convention

Article 11.1. Everyone has the right to have his honor respected and his dignity recognized.

174.      In assessing cases dealing with the humane treatment of women during detention, the Commission has taken these provisions into consideration. In its May 1977 final Resolution in Case 2029, for example, the Commission found Paraguay responsible for violations of Article I and Article VII of the American Declaration in connection with the detention and mistreatment of several women, including a pregnant woman who delivered and spent three years with her child in jail, as well as a victim who lost her unborn child under torture, did not receive medical attention, and was only released when she was near death.[452]

175.      Foremost among the relevant inter-American human rights instruments in this regard is the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women,[453] which defines and prohibits violence against women[454] and reaffirms the right of every woman to have her physical, mental and moral integrity respected, the right to personal liberty and security, and the right not to be subjected to torture.[455] It also places positive obligations on state parties to, inter alia, prevent, investigate and impose penalties for violence against women[456] and to promote the education and training of relevant state agents in this regard. [457] Of particular relevance in the irregular circumstances often created by terrorist violence and the responding measures by states is Article 9 of that Convention which provides that “the State parties shall take special account of the vulnerability of women to violence by reason of, among others, their race or ethnic background or their status as migrants, refugees or displaced persons. Similar consideration shall be given to women subjected to violence while pregnant or who are disabled, of minor age, elderly, socioeconomically disadvantaged, affected by armed conflict or deprived of their freedom.”

176.      As with the particular provisions of the American Convention and the American Declaration, the Commission has taken these provisions of the Convention on the Prevention, Punishment, and Eradication of Violence Against Women into consideration in cases involving female victims,[458] including those raising allegations of inhumane treatment.[459]  Of particular pertinence in this regard is the Commission's final report on the case of Raquel Martín de Mejía,[460] adopted in March of 1996, in which the Commission found the rape of the victim to constitute torture under the American Convention and under the Convention to Prevent and Punish Torture.[461]

177.      Further, in the case of X and Y v. Argentina, the Commission had occasion to address the integrity and privacy interests of both women and children. The complaint in this case concerned a practice in Argentina of routinely requiring that female family members wishing to have personal contact visits with an inmate undergo vaginal inspections.[462] A petition had been filed with the Commission in December of 1989, alleging that the wife of an inmate and their thirteen year old daughter had been subjected to such inspections without regard for whether there were special circumstances to warrant extraordinary measures.

178.      In balancing the interests of those subject to such searches against the state's interest in maintaining security within its prisons, the Commission characterized "a vaginal search [as] more than a restrictive measure as it involves the invasion of a woman's body."  "Consequently, the balancing of interests involved" must hold the government "to a higher standard."  In its report, the Commission set out a four part test to determine the lawfulness of a vaginal inspection or search: "1) it must be absolutely necessary to achieve the security objective in the particular case; 2) there must not exist an alternative option; 3) it should be determined by judicial order; and 4) it must be carried out by an appropriate health professional."   With respect to Ms. Y, who was thirteen years old at the time in question, the Commission found "it is evident that the vaginal inspection was an absolutely inadequate and unreasonable method."  The Commission determined that the facts denounced gave rise to State responsibility for violations of Articles 5 and 11, 25 and 8, and 1(1) of the American Convention.[463]

179.      Another category of persons in respect of whom particular humane treatment protections apply are aliens in the territory of a state. The pertinent principles and jurisprudence in this respect are discussed in Part III(H) below concerning the situation of migrant workers, asylum seekers, refugees and other non-nationals. 

180.      Finally, the Commission emphasized that the right to humane treatment is a non-derogable right, regardless of the existence or gravity of an emergency, as specifically provided for in Article 27(2) of the American Convention and reinforced through Article 5 of the Inter-American Torture Convention,[464] which provides:

The existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of torture. Neither the dangerous character of the detainee or prisoner, nor the lack of security of the prison establishment or penitentiary shall justify torture.

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