|
This lesson will examine the provisions of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, supplemented by the Committee Against Torture’s General Comment No 2 (2007). In this the Committee elaborates on certain provisions.
Torture, ill treatment and non-derogability
Article 1
1. For the purposes of this Convention, the term "torture" means 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.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.
Non-derogable means that under no exceptional circumstances whatsoever can this right be denied by the state. Such circumstances include a state of war or threat thereof, internal political instability, any public emergency, any threat of terrorist acts, violent crime or armed conflict. Furthermore, in its General Comment No 2 (November 2007), the Committee Against Torture noted that the scope of “any territory under its jurisdiction” must also include situations where a State party exercises, directly or indirectly, de facto or de jure control over facilities or persons in detention.
Just as the prohibition of torture is non-derogable, the Committee holds that the prohibition of ill-treatment must also be considered non-derogable. This is because the definitional threshold between ill-treatment and torture is often not clear, and experience indicates that conditions giving rise to ill-treatment frequently facilitate torture. Measures required to prevent torture must therefore also be applied to prevent ill-treatment.
The Committee emphasizes that it would be a violation of the Convention to prosecute conduct solely as ill-treatment where the elements of torture are also present.
Punishing torture
Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
Article 5
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate.
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.
Article 14
1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.
2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.
Despite these provisions, the Committee Against Torture noted that there are serious discrepancies between the Convention’s definition and that incorporated into domestic law, which create actual or potential loopholes for impunity. It is particularly important that countries define the offence of torture as distinct from common assault or other crimes. Only then will the need for appropriate punishment that takes into account the gravity of the offence be realized, as well as the deterrent effect of the prohibition itself be strengthened, thereby enhancing the ability of responsible officials to track the specific crime of torture.
Torture complaints and investigations
Article 12
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
Article 13
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.
Measures to prevent torture
Article 10
1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.
2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.
Article 11
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.
The Committee emphasizes that the obligation to take effective preventive measures is of utmost priority. State Parties are obligated to eliminate any legal or other obstacles that impede the eradication of torture and ill-treatment; and to take positive effective measures to ensure that such conduct and any recurrences thereof are effectively prevented. This involves the continual review and improvement of national laws and performance under the Convention, as well as revision or introduction of new laws should the measures adopted by the State Party fail to accomplish the purpose of eradicating acts of torture.
Preventive measure may range from specific measures, for example, having same sex guards when privacy is involved, to more general measures aimed to improve the overall social environment, such as educating the general population on the history, scope, and necessity of the non-derogable prohibition of torture and ill-treatment, as well as that law enforcement and other personnel receive education on recognizing and preventing torture and ill-treatment.
Vulnerable groups
The protection of certain minority or marginalized individuals or populations especially at risk of torture is a part of the obligation to prevent torture or ill-treatment. According to the Committee, State parties should “ensure the protection of members of groups especially at risk of being tortured, by fully prosecuting and punishing all acts of violence and abuse against these individuals and ensuring implementation of other positive measures of prevention and protection”. This protection extends to all persons, including persons accused of political offences or terrorist acts, asylum seekers, refugees or others under international protection, or any other status or adverse distinction.
The Committee has outlined that each State Party should prohibit, prevent and redress torture and ill-treatment in all contexts of custody or control, for example, in prisons, hospitals, schools, institutions that engage in the care of children, the aged, the mentally ill or disabled, in military service, and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm.
Furthermore, it has been identified that eliminating employment discrimination and conducting on-going sensitization training in contexts where torture or ill-treatment is likely to be committed is also key to preventing such violations against and building a culture of respect for women and minorities. As such, States are encouraged to promote the hiring of persons belonging to minority groups and women, particularly in the medical, educational, prison/detention, law enforcement, judicial and legal fields, within state institutions as well as the private sector.
Specifically in relation to women, gender has been illuminated as a key factor, which intersects with other identifying characteristics or status of the person such as race, nationality, religion, sexual orientation, age, immigrant status to determine the ways that women are subject to or at risk of torture or ill-treatment and the consequences thereof. Women are at risk in contexts relating to deprivation of liberty, medical treatment, particularly those involving reproductive decisions, and violence by private actors in communities and homes.
Scope of state obligation and responsibility
Article 5
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate.
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.
The Convention imposes obligations on State Parties and not on individuals. The Committee specifies that States bear international responsibility for the acts and omissions of their officials and others acting in official capacity or on behalf of the State. Moreover, this obligation on State Parties extends to acts of torture or ill-treatment committed by non-State officials or private actors. As such, State Parties have an obligation to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture.
The Committee emphasizes that elements of intent and purpose in article 1 do not involve a “subjective inquiry into the motivations of the perpetrators, but rather must be objective determinations under the circumstances”. As such, it is imperative to investigate and establish the responsibility of the “chain of command” as well as that of the direct perpetrator(s).
This responsibility on the part of the State also extends to a situation whereby a person is transferred or sent to the custody or control of an individual or institution known to have engaged in torture or ill-treatment, or has not implemented adequate safeguards. The State, and its officials are subject to punishment for ordering, permitting or participating in such a transfer, as it is contrary to the State’s obligation to take effective measures to prevent torture.
An order of a superior or public authority can never be invoked as a justification of torture. The Committee explains that a subordinate may not escape accountability by seeking refuge in superior authority and should be held to account individually. Simultaneously, those exercising superior authority cannot avoid accountability or criminal responsibility for torture or ill-treatment committed by subordinates where they knew or should have known about acts, or possible acts, of torture, and they took no reasonable and necessary steps of prevention.
The Committee expresses the fact that persons who resist perceivably unlawful orders or who cooperate in the investigation of torture or ill-treatment, including by superior officials, should be protected against retaliation of any kind.
Questions For Discussion
1. Has your country ratified the Convention against Torture?
a. If yes, is there a domestic law in accordance with the Convention provisions?
b. If no, is there a campaign to pressure the government to do so?
2. Discuss the Convention’s provisions to prohibit and punish torture. What are the strengths and weaknesses?
3. Discuss how you can use the Convention to increase public awareness and debate regarding the issue of torture.
|
