Torture

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What is Torture?

Under international law, the prohibition against torture is considered a right that is absolute in nature and does not tolerate exceptions. The prohibition is consecrated in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted by the United Nations General Assembly on 10 December 1984.

Many international instruments have further elaborated the general prohibition according to different situations, people, and scenarios where torture is likely to happen [1]

This guide primarily focuses on the class of ill-treatments that are called torture, although many of these guidelines would also apply to inhuman or degrading treatment and other forms of mistreatment. The question of whether a class of treatments qualifies as torture is often difficult to answer. In one court, a given class of treatments may constitute torture, while in another court, it may not. Ill-treatment may be considered torture or inhuman or degrading treatment, depending on the facts.

International Legal Framework

The United Nations Convention Against Torture

The prohibition against torture is contained in the most important human rights international instruments,[2]but the most comprehensive definition of torture is given in the Convention Against Torture (CAT), first adopted by the United Nations on 10 December 1984. The Convention defines torture 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.

According to the norm, then, the following elements, must all be satisfied in order for an act to be classified as torture: - The actor must be a public official or another person acting in an official capacity. - The act must be intentionally inflicted. - The pain or suffering must be severe. - The purpose of the act must be obtaining information or a confession. - Torture is excluded if it is inherent or incidental to lawful sanctions.

The Perpetrator

The “State Action”

Only a public official or another person acting in an official capacity can commit torture. People who do not represent the state’s interest in any capacity cannot be punished for the specific crime of torture, under the CAT. However, article 1(2) of the CAT leaves open the possibility that other international instruments or national legislation may contain wider provisions that would reach a broader definition of perpetrators.

The U.N. Special Rapporteur on Torture, Nigel S. Rodley, interprets the state action requirement to be met when public officials are “unable or unwilling to provide effective protection from ill-treatment (i.e., fail to prevent or remedy such acts), including ill-treatment by non-State actors.” [3]

Under the CAT, each state must refrain from acting, but also has a positive obligation to prevent torture. Article 2 declares that the states must take “effective legislative, administrative, judicial or other measures” in order to prevent acts of torture under its jurisdiction. Furthermore, under Article 4, states must ensure that torture, the attempt to commit torture, and complicity or participation in torture are considered criminal offenses and punished consequently. States also have the obligation to provide victims of torture with the possibility to complain before a judge and seek redress. It must also provide compensation for the victim’s heirs in case of death. [4]

No war or internal emergency can be invoked by the State to derogate from the absolute prohibition of torture. Additionally, no substantive defense (e.g., self-defense, state of necessity or superior order) or procedural means (e.g.,statutes of limitation or prescription) can avoid responsibility for torture. [5]

Other perpetrators

The international system addresses the State as duty-holder and typically does not contemplate the individual’s responsibility. The CAT adopts the same approach.

Nonetheless, non-State actors are increasingly engaged in conducts which violate international human rights standards, including torture. Non-State actors include, for example, private individuals, companies, members of de facto regimes, and members of rebel groups hostile to the formal government. [6]. The violation of Common Article 3 of the 1949 Geneva Conventions,[7] or the commission of a crime against humanity, as defined by the Statute of the International Criminal Court [8] are examples of such conduct.

Yet even when these violations occur, a link to an organization—such as a party to the conflict or a group carrying out attacks on the civilian population as part of a policy—is necessary to impose individual criminal responsibility. [9].

The International Criminal Tribunals have upheld this view of the state action requirement. [10] The Inter-American Court of Human Rights has generally upheld the State's obligation to protect individuals from torture, even if an act was not committed in an official capacity. For example, in Velasquez Rodriguez v. Honduras, the Court held the State responsible for the “acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside of the sphere of their authority or violate international law.” [11]

An Intentional Act

The second element that must be present to qualify an act as torture under the CAT is an intentional act. Webster's English Dictionary defines intent as a state of mind that is “usually clearly formulated or planned purpose”. [12]. Thus, a police officer hitting a suspect during interrogation is an intentional act, whereas a prisoner getting sick due to prison conditions, may not implicate the State.

How broad the “intent” requirement can be?

The CAT reads the intent requirement broadly. Article 3 indicates that no State Party "shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Thus, even if the State doesn't sponsor torture in its own country, it has a responsibility under the CAT not to send people to places where it is likely that torture would occur, otherwise the State itself risks to be considered acting with the intent to commit torture.

The European Court of Human Rights (ECHR) has made the intent requirement easier to satisfy by creating a rebuttable presumption of torture for those who are injured while in police custody. In Selmouni v. France, the ECHR noted that “where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused.” [13]

Severe Pain or Suffering

The third element of torture under the CAT definition is severe pain or suffering. There are different tests used to determine whether pain or suffering is severe enough to constitute torture.

One approach is to distinguish between torture and inhuman or degrading treatment, essentially creating “two degrees” of ill treatment. The CAT prohibits inhuman and degrading treatment as well as torture. According to Article 16, each State must prevent other acts of cruel, inhuman or degrading treatment, which, even if they do not amount to torture, 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.” A single act may be both torture and inhuman or degrading treatment. The distinction between the two levels is essentially subjective, and is based on the intensity of the suffering inflicted.

In Ireland v. UK, the European Court of Human Rights (ECHR) ruled that acts of inhuman or degrading treatment must attain a “minimum level of severity,” whereas torture must involve “serious and cruel suffering.” The Court can consider the duration of the treatment, the physical effects of the treatment, the mental effects of the treatment, and the sex, age and state of health of the victim in making the assessment.[14]

The ECHR also requires consideration of the customary practices of different cultures. For example, beatings may not be considered torture in some places, while just tearing a woman's clothes in other places could be considered torture. [15]

The Human Rights Committee of the International Covenant on Civil and Political Rights also noted that inhuman or degrading treatment "depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical and mental effects as well as the sex, age and state of health of the victim". The Committee also stated that corporal punishment constitutes cruel, inhuman and degrading treatment. [16]

A second approach to defining what constitutes severe pain is to view human contact more broadly, seeing any contact as potentially a violation of the right to physical and psychological integrity.[17] This is also a subjective test, but it may be easier to convict people of torture under this standard.

Committed for Wrongful Purpose

The fourth requirement in the CAT’s definition of torture is a wrongful purpose. This purpose distinguishes torture from the other forms of ill treatment in Article 16. In order to satisfy this element, according to Article 1, the act must be done for such purposes as obtaining information or a confession, punishment for an act the victim 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 being "based on discrimination of any kind". This list is generally viewed as offering non-exhaustive examples. Many countries have interpreted the purpose requirement differently, with some eliminating it altogether.

Not Arising Out of Lawful Sanctions

The fifth element of torture under the CAT is that the treatment cannot arise out of lawful sanctions. This means judicially imposed sanctions and other enforcement actions authorized by law cannot be torture. Paradoxically, these “lawful sanctions” would seem to include the death penalty, while simultaneously excluding sanctions that defeat the object and purpose of the CAT–prohibiting torture. For this reason, the provision has been criticized for undermining the universality of CAT.

The Special Rapporteur on Torture has clarified that the term "lawful sanctions" refers to sanctions which are allowed by both national and international standards. Thus, although a sanction, such as a death sentence, may be legal under national law, if it violates international standards, including the absolute prohibition against torture and cruel, inhuman or degrading treatment or punishment, the sanction is not considered “lawful” under the CAT. For example, corporal punishment is prohibited in all situations, by the International Covenant on Civil and Political Rights Article 7.[18] Any other interpretation would defeat the purpose of international standards that aim to prohibit torture.[19]

Standard Minimum Rules for the Treatment of Prisoners

The Standard Minimum Rules for the Treatment of Prisoners[20] were adopted in1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders and approved by the Economic and Social Council with two resolutions in 1957 and 1977.[21]

The document set out accepted good principles and practices on how to treat prisoners, including conditions and access to help. For example, Article 93 noted that “[f]or the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions.”[22] It is generally extremely important that prisoners have access to legal services, especially those who have been tortured—as they may be more vulnerable than other types of prisoners.

The Standard Minimum Rules apply to all categories of detainees and lay down minimum standards for administration of detention facilities, underlining the absolute prohibition of all cruel inhuman or degrading punishment, including corporal punishment for disciplinary reasons.[23]

Common Methods of Torture Around the World

  • Blunt trauma, such as a punch, kick, slap, whipping, a beating with wires or truncheons or falling down;
  • Positional torture, using suspension, stretching limbs apart, prolonged constraint of movement, forcedpositioning;
  • Burns with cigarettes, heated instruments, scalding liquid or a caustic substance;
  • Electric shocks;
  • Asphyxiation, such as wet and dry methods, drowning, smothering, choking or use of chemicals;
  • Crush injuries, such as smashing fingers or using a heavy roller to injure the thighs or back;
  • Penetrating injuries, such as stab and gunshot wounds, wires under nails;
  • Chemical exposure to salt, chilli pepper, gasoline, etc. (in wounds or body cavities);
  • Sexual violence to genitals, molestation, instrumentation, rape;
  • Crush injury or traumatic removal of digits and limbs;
  • Medical amputation of digits or limbs, surgical removal of organs;
  • Pharmacological torture using toxic doses of sedatives, neuroleptics, paralytics, etc.;
  • Conditions of detention, such as a small or overcrowded cell, solitary confinement, unhygienic conditions, no access to toilet facilities, irregular or contaminated food and water, exposure to extremes of temperature, denial of privacy and forced nakedness;
  • Deprivation of normal sensory stimulation, such as sound, light, sense of time, isolation, manipulation of brightness of the cell, abuse of physiological needs, restriction of sleep, food, water, toilet facilities, bathing, motor activities, medical care, social contacts, isolation within prison, loss of contact with the outside world (victims are often kept in isolation in order to prevent bonding and mutual identification and to encourage traumatic bonding with the torturer);
  • Humiliation, such as verbal abuse, performance of humiliating acts;
  • Threats of death, harm to family, further torture, imprisonment, mock executions;
  • Threats of attack by animals, such as dogs, cats, rats or scorpions;
  • Psychological techniques to break down the individual, including forced betrayals, accentuating feelings of helplessness, exposure to ambiguous situations or contradictory messages;
  • Violation of taboos;
  • Behavioural coercion, such as forced engagement in practices against the religion of the victim (e.g. forcing Muslims to eat pork), forced harm to others through torture or other abuses, forced destruction of property, forced betrayal of someone placing them at risk of harm;
  • Forcing the victim to witness torture or atrocities being inflicted on others [24].

Country Specific Applications

Article 4(1) CAT states that “Each State Party shall ensure that all acts of torture are offences under its criminal law [...]”.

According to the Committee Against Torture, the definition of torture in national legislations should, at least, cover the elements provided by the CAT in its Article 1(1),[25] but it could also be broader, according to Article 1(2).[26] Therefore, the implementation of the CAT may vary significantly among countries.

A brief overview of some national systems is useful to understand which acts generally fall under the umbrella of torture, and who can be punished as torturer. For instance, under CAT only a public official or another person acting in an official capacity can commit torture. However, states can decide to punish private individuals who have committed torture.

Often such human rights abuses by non-state actors are actionable only through the application of the criminal or civil law, without recourse to human rights provisions. Most of the times, private human rights abuses will be in breach of existing national law. Lawyers should ask Courts to extend constitutional or human rights protection where the national law is lacking.[27]

Azerbaijan

Azerbaijan acceded to CAT on 16 August 1996. In the national legislation, torture is defined in Article 133 of the Criminal Code.

Under Article 133(1) torture is “Causing strong physical pains or mental sufferings by regular causing battery or other violent actions, not entailed to consequences provided in Articles 126 and 127 of the present Code is punished by imprisonment for the term up to three years.” According to the norm, anyone can commit torture, however, the punishment is higher if those acts are committed by an “official with use of service position or his instigation with a view to receipt information or compulsion of his recognition, or with a purpose of punishment for committed act or to which commitment the given person is suspected.”

Strong physical pains or mental sufferings are considered torture only if they are the result of battery or other violent acts, but only when these acts are persistent. Occasional brutalities cannot be considered amounting to torture.

Notwithstanding this provision, according to Human Rights Watch, “torture and ill-treatment in custody continue to be a widespread problem and occur with impunity. The Azerbaijan Committee against Torture, an independent group that monitors penitentiary institutions, received over 90 complaints alleg- ing torture and ill-treatment in custody. In each case where law enforcement agencies responded to the complaint, they denied that torture or ill-treatment had taken place. At least three prisoners are reported to have died in custody in 2009 after allegedly being ill-treated.[28]

In addition to the previous article, Article 126 (Deliberate Causing of Serious Harm to Health) and Article 127 (Deliberate Causing of Minor Serious Harm to Health) of the Criminal Code might be useful tools to punish whomever commits acts which cannot be classified as torture under Article 133, but have the same consequences on the victims or are perpetrated by a public official in order to reach the same results.

In April 2009, the European Court of Human Rights found that Azerbaijan violated Article 3 of the European Convention on Human Rights ((the prohibition against inhuman or degrading treatment) in relation to Mahira Muradova, a participant in opposition protests following the October 2003 presidential election. Muradova alleged that she had been subjected to an act of police brutality (resulting in the lost of her sight) and that the authorities failed to carry out an adequate investigation of the incident.

In December 2009, the UN Committee Against Torture (CAT) released its Consideration of the report submitted from Azerbaijan at the 43rd CAT Session (Geneva, 2-20 November 2009).[29]

Burundi

Burundi acceded to the CAT on 18 February 1993, and it recognizes the competence of the Committee of the United Nations Against Torture to receive and consider individual communications in accordance with article 22(1) of the CAT.

The Burundian Constitution explicitly forbids torture in Article 22, and the new 2008 Criminal Code brought the country into compliance with Article 1 CAT. The new Code criminalizes Torture and Other Cruel, Inhuman and Degrading Treatments in Chapter III, articles 204-209.[30] Article 204 follows the CAT in defining what is torture, providing that only public officials or other persons acting in an official capacity can be responsible for torture under national law. The domestic provisions provide for aggravating circumstances, such as committing torture on a witness, a victim or a civil part, either to prevent them denouncing the facts or because their statements, complaint or deposition.

Any act of torture committed by a private individual can be prosecuted only under general assault charges,6 which provide relatively minor penalties for such a grave crime.

Cambodia

Cambodia is a civil law system resulting from a mixture of French-influenced codes, the United Nations Transitional Authority in Cambodia (UNTAC) period, royal decrees, and acts of the legislature. However, influences of customary law and remnants of communist legal theory, as well as increasing influence of common law, are all present.

In October 2009, the National Assembly of the Kingdom of Cambodia adopted a new Penal Code, which draws largely on the French Penal Code, and it replaces the UNTAC Code of 1992. It entered into force in December 2010.

Cambodia acceded to the CAT on 15 October 1992, however, 18 years later, the country’s legal and judicial system is unable to effectively prevent and punish acts of torture. The definition of “torture” remains unclear under Cambodian law, and the government did not use the opportunity as provided by the new Penal Code to include a proper definition of torture.

According to Article 38(4) of the Cambodian Constitution, “Coercion, physical ill- treatment or any other mistreatment that imposes additional punishment on a detainee or prisoner shall be prohibited. Persons who commit, participate or conspire in such acts shall be punished according to the law”.

Acts of torture refer to inhuman or cruel acts or acts of treating someone like a second-class human. Severe pain or suffering (whether physical or mental) is considered torture, and it is punishable with an imprisonment according to Articles 210, 211, 212, and 213 of the new Penal Code.

Only internationally inflicted acts are considered as torture.

Concerning the torturer, according to Cambodian law, torture can be committed by public officials, people acting in an official capacity, or by lay people. If a public official or a person acting in an official capacity commits torture against any individual during his duty, he shall be punished with imprisonment from 10 to 20 years (Art. 213 of the Penal Code: Aggravating Circumstances in Relation to Perpetrator). If private people torture or commit barbarous acts against any individual, they shall be punished with imprisonment from 7 to 15 years (Art. 210: Tortures and Barbarous Acts).

The evidence collected by various NGOs indicates that the majority of cases of torture occur in police custody, often in the form of extracting confessions.[31]

There is no comprehensive and transparent system of receiving complaints against the police and other law enforcement officials, and the government has not yet established a national preventive mechanism in accordance with its obligations under the Optional Protocol to the Convention against Torture (OPCAT).[32] However, when torture is committed by a public official, there are still some mechanisms available to protect victims. The first one is Article 38(5) of the Constitution, which reads that a confession obtained by physical or mental force shall not be admissible. During a hearing, the investigating judge always asks the accused person if torture took place in police custody. In case of torture, the coercive confession will be then nullified.

Lawyers have the right to visit their clients after the 24-hour-police custody, and if the suspected person claims torture, lawyers may file a complaint to the court and seek for the punishment of the public official responsible for the acts of torture (Art. 213 Penal Code: Aggravating Circumstances in Relation to Perpetrator and Article 98 Penal Code: Assistance of Lawyers during Police Custody). Lawyers may also file a complaint against judicial police officers during the investigating judge phase to the Chamber of Investigation in order to nullify coercive confession (Art.253 Penal Code Complaint to Investigation Chamber). At least one defender has brought a complaint about torture to the Svay Rieng Court.

Another way to protect victims is prevention. The Ministry of Justice has tried to accelerate its intense efforts to train police officers, court clerks, Royal Prosecutors, and judges about the correct application of the law and so possibly reduce torture. Some locals also received these legal trainings.

China

China acceded to the CAT on 4 October 1988, but there is no specific provision about torture in the Chinese legal system, as required by the Convention. Very broadly, Article 38 of the Constitution of the People’s Republic of China guarantees “the personal dignity of citizens.”

Physical abuse of detainees is contemplated by the Prison Law of the People’s Republic of China, and the People’s Police Law of the People’s Republic of China. The Police Law obligates all Chinese police to “exercise their functions and powers respectively in accordance with the provisions of relevant laws and administrative rules and regulations”.[33] The Prison Law stipulates that guards cannot humiliate detainees or violate their personal safety,[34] use torture or corporal punishment,[35] “beat or connive at others to beat a prisoner,”[36] or “humiliate the human dignity of a prisoner."[37] The Chinese government’s National Human Rights Action Plan (2008-2010) prioritizes the development of measures to prohibit “corporal punishment, abuses, insult of detainees or extraction of confessions by torture and obligates police and prison authorities to undertake effective measures to prohibit “abuse (and) insult of detainees.”

Article 247 of the Criminal Law lists several offences related to the prohibition of torture, including “torture to coerce a confession” (xingxun bigong) and “extorting testimony by violence” (baoli quzheng) however, it provides only for prosecution of “judicial officials” for these offences, and not other, broader categories of personnel. Article 248 prohibits “beating or physically ill-treating” (ouda huozhe tifa nuedai) detainees but only for policemen or other officers of an institution of detention or by other detainees at the instigation of these officers. Neither provision provides a catchall category of personnel thus potentially excluding from prosecution individuals who might be in a position to inflict torture or other ill-treatment.[38]

In China, victims of torture who are not officially restricted in their personal liberty cannot find protection in the above mentioned norms. However, the brutality could still be prosecuted under Article 234 of Criminal Law of the People's Republic of China[39] which punishes intentional body injuries.

India

India has not ratified the CAT, but the government has enacted laws which have widened CAT’s definition of torture.

The use of torture and other cruel, inhuman or degrading treatment or punishments have been explicitly recognized by the government in a number of laws concerning “atrocities” against the scheduled Castes (Dalits) and scheduled Tribes under the scheduled Castes and the scheduled Tribes (Prevention of Atrocities) Act, 1989, the Dowry Prohibition Act, the Protection Of women From Domestic violence Act, 2005 and section 3 of the scheduled Castes and the scheduled Tribes (Prevention of Atrocities) Act, 1989 which defines “atrocities” is relevant.

Atrocities are defined as: “whoever, not being a member of a Scheduled Caste or a Scheduled Tribe”, among others,“(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance; (ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighborhood; (iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity; (iv) compels or entices a member of a Scheduled Castes or a Scheduled Tribe to do ‘begar’or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government; (v) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; (vi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonor or outrage her modesty; (vii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed; (viii) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Castes or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used; (ix) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any Section thereof have a right to use or access to; and (x) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence.”

Despite legal protection, lower castes continue to be particularly vulnerable to violation because of the failure to implement these laws. The 2007 Annual Report of the national Crime Records bureau reported a total of 30,031 cases - including 206 cases under the Protection of Civil Rights Act and 9,819 cases under the sC/sT (Prevention of Atrocities) Act of 1989 – against the scheduled Castes in 2007. There is no law in India for compensation of victims and the law enforcement officials enjoy impunity for acts committed as part of duty. However Courts have regularly awarded compensation to victims and prosecuted the accused.[40]

Indonesia

Indonesia ratified the Convention Against Torture (CAT) on 28 October 1998, with Law 5/1998. However, so far, no national law has been promulgated to implement CAT in the Indonesian system, nor has the Optional Protocol to the Convention been ratified. The Indonesian Coalition Against Torture is still conducting advocacy to criminalize torture.

This means that Indonesia does not have an official definition of torture. However, there are at least two articles of the Indonesian Criminal Code that can be invoked to charge public officials who commit acts of torture.

Article 351 of the Criminal Code criminalizes anybody who commits maltreatment. Article 422 specifically criminalizes public officials who commit an action of coercion in order to get a confession or information. The penalty under the two provisions is vey mild.

While in theory Article 422 can be used to invoke public officials’ criminal responsibility, the hard part is proving the act of torture or assimilated actions. Most of the victims choose not to denounce the perpetrator because they do not feel comfortable, for at least two reasons. The first reason is that they do not have enough evidence to prove they have been victims of torture.

The second one is that even if they have evidence, the fear of being tortured again is huge. Since the victims are usually detained in police office detention centers, the chance of being tortured again is very much a possibility.

In some cases, the fact that the accused suffered from ‘torture’ is used as a tool to say that the accused’s right to a fair trial has been violated.

Rwanda

Rwanda acceded to the CAT on 5 December 2008. The Rwandan Constitution restates the importance of the prohibition against torture saying that: “Every person has the right to physical and mental integrity. No person shall be subjected to torture, physical abuse or cruel, inhuman or degrading treatment. No one shall be subjected to experimentation without his or her informed consent. The modalities of such consent and experiments are determined by law.”

Moreover, the Rwandan Criminal Code specifically addresses torture in Articles 316 and 388. Article 316 states that whoever will use torture or acts of cruelty for the commission of any crime will be punished like if he had committed murder.[41] Article 388[42] provides for the culpability of the torturer in the context of kidnapping, arrest and detention. While the last two cases are clearly implying the official capacity of the torturer, in case of kidnapping in theory everybody could be responsible for committing torture.

United States

The US ratified the CAT on 21 October 1994.

The US Supreme Court has held since at least the 1890s that punishments that involved torture are forbidden under the Eighth Amendment which states that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted ".

Torture is also prohibited under 18 U.S.C. § 2340. The definition resembles the one found in CAT , and accordingly, people not acting in an official capacity cannot be responsible for such a crime.[43]

In 2004 the Immigration and Nationality Act[44] was amended to make aliens who have committed torture, extrajudicial killings, or particularly severe violations of religious freedom while abroad inadmissible to the United States, and so deportable.

As a party to the Convention, the US is required to submit periodic reports describing its compliance with the CAT. In the Initial Report submitted to the Committee Against Torture in 1999,[45] the US answered the following questions: “Is torture a crime in the US?”, “What remedies are available”?

Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture.[46]

The US also affirmed that although there is no federal law criminalizing torture per se, any act falling within the Convention's definition of torture is clearly illegal and prosecutable everywhere in the country, for example as an assault or battery, murder or manslaughter, kidnapping or abduction, false arrest or imprisonment, sexual abuse, or violation of civil rights.[47]

The United States law provides various avenues for seeking redress, including financial compensation in cases of torture and other violations of constitutional and statutory rights relevant to the Convention.[48]

Zimbabwe

Zimbabwe has not ratified the UN CAT. However, Article 15(1) of the Constitution states that “No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

The Criminal Law (Codification And Reform) Act 24 of 2004 does not elaborate further the prohibition of torture. Section 3 of the Criminal Act ousts the Roman Dutch Common Criminal Law which, on the contrary, Section 82 of the Constitution states that this must be the law to be applied in Zimbabwe. Unless there will be an amendment of Section 82 of the Constitution, there will always be disputes as to the Constitutionality of the Code.

However, the Code is currently being applied in Zimbabwe since 22 June 2005. Acts of torture could be punished under Article 89 which criminalizes assault according, for instance, to the degree of violence used in the assault or if the person carrying out this crime intended to inflict serious bodily harm.

References

  1. Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; United Nations Code of Conduct for Law Enforcement Officials (Article 5); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Principle 6); Standard Minimum Rules for Treatment of Prisoners (1957 as amended in 1977) art. 31; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975); Code of Conduct for Law Enforcement Officials (1979) - Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman or DegradingTreatment or Punishment (1982); Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985); Basic Principles on the Independence of the Judiciary (1985); Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (1987); Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment (1988); Basic Principles for the Treatment of Prisoners (1990); Basic Principles on the Role of Lawyers (1990); Guidelines on the Role of Prosecutors (1990); Rules for the Protection of Juveniles Deprived of their Liberty (1990); Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (1990); Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishments (1982).; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), Principles 7, 8; Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991) Declaration on the Protection of All Persons from Enforced Disappearance (1992)
  2. Universal Declaration of Human Rights, Article 5; International Covenant on Civil and Political Rights, Article 7; Common Article 3 of the four Geneva Conventions of 1949 (prohibiting torture in all armed conflicts) + Additional Protocols I and II; Rome Statute of the International Criminal Court, Articles 7-8.; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991(1993), Grave breaches of the Geneva Conventions of 1949 (b), Art. 5; Statute of the International Tribunal for Rwanda (1994), Article 3.; European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3; American Convention on Human Rights, Article 5; Inter-American Convention to Prevent and Punish the Crime of Torture, Article 2; Charter of fundamental rights of the EU (article 4)
  3. Office of the United Nations High Commissioner for Human Rights, Human Rights Fact Sheet: No. 4 Combating Torture, at 34 (May 2002)
  4. Arts. 13, 14 CAT
  5. For more information about article 2 CAT, refer to Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, General Comment No. 2, Implementation of article 2 by State Parties, at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/402/62/PDF/G0840262.pdf?OpenElement
  6. Redress, Not Only the States: Torture by Non State Actors. Toward Enhanced Protection, Accountability and Effective Remedies, at http://www.redress.org/downloads/publications/Non%20State%20Actors%209%20June%20Final.pdf
  7. Common Article 3 of the Geneva Conventions available at http://www.icrc.org/ihl.nsf/WebART/365-570006?OpenDocument
  8. Article 7 Rome Statute available at http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf
  9. The Definition of Torture: Proceedings of an Expert Seminar. Association for the Prevention of Torture. November 10-11, 2001.
  10. Prosecutor v. Zenjil Delalic et al, Case no. IT-96-21-T, 16 November 1998, See also Prosecutor v. Furundjia, Case no. IT-95-17/1-T, 10 December 1998
  11. Velasquez Rodriguez v. Honduras, (1988) Inter-Am.Ct.H.R. (Ser C) No.4
  12. Velasquez Rodriguez v. Honduras, (1988) Inter-Am.Ct.H.R. (Ser C) No.4, www.merriam-webster.com/netdict/intent
  13. Selmouni v. France, Application n. 25803/94, 28 July 1999, par. 87, available at http://www.unhcr.org/refworld/publisher,ECHR,,MAR,3ae6b70210,0.html
  14. Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No. 25, p. 66, para.167
  15. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1
  16. Communication No. 759/1997, G. Osbourne v. Jamaica (Views adopted on 15 March 2000), in UN doc. GAOR, A/55/40 (vol. 11), p. 138, para. 9.1
  17. I-A Court HR, Cae of Loayza Tamayo v. Peru, Judgment of September 17, 1997, in OAS doc. OAS.Ser.L/V/III39, doc 5, Annual Report of the Inter-American Court of Human Rights 1997, p. 211, para. 57
  18. Human Rights Committee, General Comment n°20, §5.
  19. Report of the Special Rapporteur on torture, UN Doc. E/CN.4 / 1988/17 par. 42, at http://ap.ohchr.org/documents/E/CHR/report/E-CN_4-1988-17.pdf. See also E/CN.4/1993/26, par 593, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G93/100/97/PDF/G9310097.pdf?OpenElement. For further lectures, Amnesty International, Fair Trials Manual, Chapter 25, Punishments available at http://www.amnestyusa.org/international_justice/fair_trials/manual/25.html
  20. The Standards are available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/TreatmentOfPrisoners.aspx
  21. Social Council Resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
  22. 24 Standards Minimum Rules for the Treatment of Prisoners.
  23. Standards Minimum Rules for the Treatment of Prisoners, Article 31
  24. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  25. Committee Against Torture, General Comment n°2, CAT/C/GC/2, §§8-9
  26. Article 1(2) CAT: “This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application”
  27. Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford, 2006, p. 528-29
  28. 2010 Human Rights Watch World Report, 378, available at http://www.hrw.org/world-report-2010
  29. The document and other reports are available at http://www2.ohchr.org/english/bodies/cat/cats43.htm
  30. Article 204: “Est considéré comme torture tout acte par lequel une douleur ou des souffrances aiguës, physiques ou mentales sont intentionnellement infligées à une personne aux fins notamment d’obtenir d’elle ou d’une tierce personne des renseignements ou des aveux, de la punir d’un acte qu’elle ou une tierce personne a commis ou est soupçonnée d’avoir commis, de l’intimider ou de faire pression sur elle ou d’intimider ou de faire pression sur une tierce personne, ou pour tout autre motif fondé sur une forme de discrimination quelle qu’elle soit, lorsqu’une telle douleur ou de telles souffrances sont infligées par un agent public ou toute autre personne agissant à titre officiel ou à son instigation ou avec son consentement exprès ou tacite. Ce terme ne s’étend pas à la douleur ou aux souffrances résultant uniquement de sanctions légitimes, inhérentes à ces sanctions ou occasionnées par elles.” Article 205: Quiconque soumet une personne à des tortures ou autres traitements cruels, inhumains ou dégradants, est puni de la servitude pénale de dix à quinze ans et à une amende de cent mille à un million de francs. Article 206: L’infraction est punie de la servitude pénale de vingt ans lorsqu’elle est commise: 1) Sur un mineur de moins de dix-huit ans ; 2) Sur une personne vulnérable en raison de son âge , de son état de santé, d’une infirmité, d’une déficience physique ou psychique ou d’un état de grossesse ; 3) Sur un témoin, une victime ou une partie civile, soit pour l’empêcher de dénoncer les faits, de porter plainte ou de déposer en justice, soit en raison de sa dénonciation de sa plainte ou de sa déposition; 4) Par plusieurs personnes agissant en qualité d’auteurs ou de complices; 5) Avec usage ou menace d’une arme. Article 207: Le coupable est puni de vingt ans de servitude pénale lorsque la torture et autres peines ou traitements cruels, inhumains ou dégradants ont entraîné une mutilation ou une infirmité permanente ou lorsqu’elle est accompagnée d’agression sexuelle. Il est puni de la servitude pénale à perpétuité lorsqu’elle a entraîné la mort de la victime. Article 208: Aucune circonstance exceptionnelle, quelle qu’elle soit, qu’il s’agisse de l’état de guerre ou de menace de guerre, d’instabilité politique intérieure ou de tout autre état d’exception, ne peut être invoqué pour justifier la torture et autre peine ou traitements cruels ou inhumains ou dégradants. L’ordre d’un supérieur ou d’une autorité publique ne peut être invoqué pour justifier la torture. Article 209: Les peines prévues aux articles 205, 206, et 207 sont incompressibles. Le juge prononce, en plus des peines principales, l’interdiction d’exercer la fonction à l’occasion de laquelle la torture a été pratiquée, sans préjudice d’autres peines complémentaires prévues par le présent code.
  31. Joint Cambodian NGO Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the Kingdom of Cambodia. Presented to the UN Committee Against Torture (CAT) prior to Cambodia’s second periodic report at the 45th session of CAT, held in Geneva from 1 to 19 November 2010, October 2010, available at http://www.sithi.org/temp.php?url=media_view.php&mid=3260&publication=1&
  32. Joint Cambodian NGO Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the Kingdom of Cambodia. Presented to the UN Committee Against Torture (CAT)
  33. Prison Law Article 18
  34. Prison Law Article 7
  35. Prison Law Article 18
  36. Prison Law Article 3
  37. Prison Law Article 5
  38. Amnesty International, People's Republic of China: Briefing for the Committee against Torture in advance of their consideration of China's fourth periodic report, 3-21 November 2008, at 1.
  39. Article 234: “Whoever intentionally inflicts bodily injury upon another person shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Whoever, by committing the crime mentioned in the preceding paragraph, causes severe bodily injury to another person shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years. If he causes a person's death or causes severe bodily injury resulting in severe deformity to another person by especially cruel means, he shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death. Where this Law has other provisions, such provisions shall prevail.” (The full text is available at http://www.asianlii.org/cn/legis/cen/laws/cl104/#9).
  40. For Instance: the judgment of the High Court of Punjab and Haryana at Chandigarh dated 23.09.2009 in Nachhattar Singh alias Khanda and Ors Vs State of Punjab case; judgment of High Court of Orissa dated 6 january 2009 in the case of Ahalya Pradhan Vs. State of Orissa and Ors. For details see Asian Centre for Human Rights, Torture in India 2010, at 55 and followings.
  41. Article 316: “Sera puni comme coupable d'assasinat celui qui, pour l'exécution de son crime, quelle qu'en soit la dénomination, emploie des tortures ou commet des actes de barbarie”.
  42. Article 388: “Sera puni d'un emprisonnement de cinq ans à dix ans celui qui, par violences, ruses ou menaces, aura arbitrairement enlevé ou fait enlever, arrêté ou fait arrêter, détenu ou fait détenir une personne quelconque. Si la personne enlevée, arrêtée ou détenue est âgée de moins de 18 ans, le maximum de la peine sera prononcé. Si la détention ou la séquestration a duré plus d'un mois, la peine de l'emprisonnement pourra être portée à vingt ans. Lorsque la personne enlevée, arrêtée ou détenue aura été soumis à des tortures corporelles, le coupable sera puni de l'emprisonnement à perpétuité. Si les tortures ont causé la mort, le coupable sera condamné à mort. Quiconque aura prêté un lieu pour exécuter la détention ou séquestration subira les mêmes peines”.
  43. 18 U.S.C. § 2340 “Definitions”: (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—(A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and (3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
  44. Immigration and Nationality Act, Section 237 (a)(4)(D), available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=f3829c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextoid=f3829c7755cb9010VgnVCM10000045f3d6a1RCRD
  45. CAT/C/28/Add.5
  46. CAT/C/28/Add.5, § 6, at 5.
  47. CAT/C/28/Add.5, § 11, at 6.
  48. CAT/C/28/Add.5, §§ 45-53.
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