Difference between revisions of "Torture"

From Criminal Defense Wiki
Jump to navigationJump to search
Line 38: Line 38:
  
 
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. <ref> 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  </ref>
 
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. <ref> 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  </ref>
 
  
 
[[Other perpetrators]]
 
[[Other perpetrators]]

Revision as of 10:34, 17 November 2010

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]

Notes

  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 the 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; The 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; The Rome Statute of the International Criminal Court (ICC), 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