Shaping understanding and application of the prohibition of torture

Professor Natasa Mavronicola

Professor of Human Rights Law

Natasa Mavronicola researches and teaches on human rights, public law, and legal theory, as well as on the interplay between counter-terrorism and human rights and on key intersections between human rights and criminal justice. She has published on these topics in a number of journals, including the Human Rights Law Review and the Modern Law Review, edited collections, and a recently published monograph on Torture, Inhumanity and Degradation under Article 3 ECHR.

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Professor Mavronicola’s research has informed a body of work for the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Professor Nils Melzer. Serving as Special Advisor to the Rapporteur between March 2017 and July 2019, Professor Mavronicola collaborated closely with the Rapporteur in developing multiple flagship thematic reports which provide paradigm-shifting, globally applicable interpretations of the prohibition of torture and establish international best-practice standards on torture and other cruel, inhuman or degrading treatment or punishment, and which have already prompted on-the-ground change around the world.

A/72/178: Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (20 July 2017)

This report highlights that any unnecessary, excessive or otherwise arbitrary use of force by law enforcement officials is incompatible with the absolute prohibition of cruel, inhuman or degrading treatment. Additionally, where such force intentionally and purposefully inflicts pain or suffering on powerless persons it is conclusively unlawful, and may amount to torture. This has considerable implications for policing practices, including training, equipment, and relevant instructions.

Moreover, the report’s findings entail that certain weapons or riot control devices may be inherently cruel, inhuman or degrading, or (likely to be) used in a cruel, inhuman or degrading manner, and the acquisition, trade and use of weapons must be regulated and reviewed accordingly. As the report specifies, a weapon or device will be inherently cruel, inhuman or degrading, and therefore prohibited, if it is specifically designed, or is of a nature (that is, of no other practical use than) to employ unnecessary, excessive or otherwise arbitrary force, against persons.

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A/HRC/37/50: Migration-related torture and ill-treatment (20 November 2018)

This thematic report tackles the incidence of torture and other cruel, inhuman or degrading treatment or punishment in irregular migration contexts, and establishes that many contemporary State practices on migration that States perceive or claim to be lawful in fact violate the prohibition of torture and ill-treatment. The report identifies various restrictive and obstructive migration laws, policies and practices that have pushed growing numbers of irregular migrants (including refugees, asylum-seekers, and/or torture victims) into grave danger and (further) abuse, in violation of the prohibition of torture and ill-treatment. In particular, the report condemns extraterritorial “pushback” and “pullback” operations, border closures, readmission arrangements that facilitate collective expulsion, and of mandatory detention based solely on migration status, and demands that States refrain from such abusive practices and foreground the protection of all persons on irregular migration journeys from torture and abuse.

A/73/207: Seventieth anniversary of the Universal Declaration of Human Rights: reaffirming and strengthening the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (20 July 2018)

This report, marking the 70-year anniversary of the recognition of torture’s absolute prohibition in human rights law through the Universal Declaration of Human Rights, tackles the most significant ways in which the prohibition’s realisation is undermined across the world today, and provides recommendations towards better upholding it. It addresses attempts at circumventing and misinterpreting the prohibition and underlines that the prohibition of torture and ill-treatment is not just a technicality to be manoeuvred around in the pursuit of desired government action, but a fundamental norm which embodies the humanism of the international legal edifice, and whose letter and spirit must be followed in all State pursuits. Crucially, the report also makes explicit the way in which torture and ill-treatment proliferate in contexts of systemic or structural discrimination, inequality, or disempowerment. The report establishes that alleviating circumstances conducive to such ill-treatment therefore requires a systematic overhaul of ‘legal, structural and socioeconomic conditions that may increase exposure to violence and abuse by State officials and non-State actors’ (para 77(i)).

A/HRC/40/59: The relationship between corruption and torture or ill-treatment (16 January 2019)

This report unpacks key patterns of interaction between corruption and torture, and outlines the circumstances conducive to the occurrence of both phenomena. The report highlights the particular and accumulated impact of both torture and corruption on persons who are discriminated against and/or socioeconomically marginalised. It offers recommendations towards strengthening the protection against torture and ill-treatment in contexts affected by corruption, in both custodial and non-custodial settings, including the recommendation of mutual mainstreaming: that the prevention of torture and ill-treatment should be systematically incorporated into anti-corruption policies and practices and the prevention of corruption should be systematically incorporated into anti-torture policies and practices. The report also mandates proactive efforts to ensure adequate funding, training and equipping of public services and institutions, and fostering a general culture of personal and professional integrity throughout all public services, and towards alleviating social exclusion, socioeconomic marginalization and discrimination, which increase exposure to torture and corruption.

A/74/148: Relevance of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment to the context of domestic violence (12 July 2019)

This report establishes that domestic violence in virtually all circumstances amounts to cruel, inhuman or degrading treatment, and in some circumstances may amount to torture, irrespective of whether it may be attributed to the State. It establishes that States bear positive obligations to prevent, protect against, respond to and offer redress for domestic violence and identifies practices such as coercive control and reproductive coercion as examples of such abuse. Underlining the importance of foregrounding the rights and needs of victims, including the best interests of the child, it makes a series of recommendations towards mitigating risks of domestic violence and empowering (potential) victims, notably by demanding accessible helplines, shelters, the provision of socioeconomic support, and steps towards dismantling patriarchal and discriminatory structures in which such abuse proliferates. The report also highlights that under no circumstances should States send persons to places where they face a real risk of domestic violence.

Organization for Security and Co-operation in Europe

The OSCE’s report Human Dimension Commitments and State Responses to the Covid-19 Pandemic uses A/74/148 to highlight that domestic violence amounts to cruel, inhuman or degrading treatment, or torture, and that restrictions in public services including the closure of shelters and limitations in interventions by police or courts to protect domestic violence victims have undermined the effective fulfilment of States’ obligations to prevent, protect against, respond to, prosecute and provide redress in cases of domestic violence. The report recommends that domestic violence prosecutions and redress are prioritised; that information dissemination campaigns are used to reach marginalized women, women from minority backgrounds and women with disabilities; to step up the accessibility of violence reporting mechanisms; ensure alternative accommodation for victims; and that shelters and crisis centres are classified as essential during all stages of emergencies. The OSCE recommends that support is increased to civil society organizations assisting victims of domestic violence, and that effective legal protection and guarantees to prevent and combat domestic violence and other forms of gender-based violence are set up through national legislation, and that enforcement mechanisms are thoroughly revised where gaps have been reported during the pandemic.

Fundación para la Justicia y el Estado Democrático de Derecho

This non-governmental organisation used the report A/72/178 in an amicus curiae intervention to successfully challenge the constitutionality of Internal Security Law 2017 before Mexico’s Supreme Court, thus hindering the militarisation of the policing of protest.

Défenseur des Droits

The Défenseur des Droits (Defender of Rights) is an independent constitutional authority in France. In 2017, it utilised the arguments made in report A/72/178 to recommend that the French Parliament end the use of rubber bullets and kettling, and promote ‘de-escalation’ techniques in policing protests.

D.D. V Spain

Several civil society organisations employed the report A/HRC/37/50 in an amicus curiae intervention to successfully challenge Spanish pushbacks in Melilla. Their arguments were upheld by the Committee on the Rights of the Child, which found Spain to have violated the child applicant’s right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

Professor Mavronicola’s body of research on the right not to be subjected to torture and ill-treatment prompted the Council of Europe (CoE) and Greece to commission her to produce a concept note on torture and inhuman and degrading treatment and punishment in policing practices in Greece. This concept note underpinned a reform-oriented roundtable in Athens attended by influential stakeholders, including senior prosecutors, police officers, politicians, the United Nations Special Rapporteur on Torture, and CoE officials. This mobilisation, which informed a follow-up report on professional policing by Professor Mavronicola and was widely reported in Greece, resulted in the issuing of a circular by the Supreme Court Prosecutor to prosecutors across Greece mandating close attention to and investigation of allegations of torture or ill-treatment at all stages of the criminal justice process, and influenced the Greek government towards proposing legal reform that appropriately widens the definition of torture.

• N. Mavronicola, ‘Is the Prohibition against Torture and Cruel, Inhuman and Degrading Treatment Absolute in International Human Rights Law? A Reply to Steven Greer’ (2017) 17(3) Human Rights Law Review 479–498.
• N. Mavronicola, ‘Taking Life and Liberty Seriously: Reconsidering Criminal Liability under Article 2 of the ECHR’ (2017) 80(6) Modern Law Review 1026-1051.
• N. Mavronicola, ‘Torture and Othering’ in Benjamin Goold and Liora Lazarus (eds), Security and Human Rights (2nd edn, Hart Publishing 2019).
• N. Mavronicola, ‘The Mythology and the Reality of Common Law Constitutional Rights to Bodily Integrity’ in Mark Elliott and Kirsty Hughes (eds), Common Law Constitutional Rights (Hart Publishing 2020).
• N. Mavronicola, ‘Bouyid v Belgium: The “Minimum Level of Severity” and Human Dignity’s Role in Article 3 ECHR’ (2020) 1(1) The European Convention on Human Rights Law Review 105-124.
• N. Mavronicola, Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs (Hart Publishing 2021).
• N. Mavronicola, ‘Institutionalized Inhumanity: From Torture to Assassination' in Robin Geiß and Nils Melzer (eds), Oxford Handbook on the International Law of Global Security (Oxford University Press 2021).

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