Difference between revisions of "Representing Victims of Torture"
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==== 1. An intentional act==== | ==== 1. An intentional act==== | ||
| − | The first element of torture under CAT is an intentional act. Webster's English Dictionary defines intent as a clearly formulated or planned purpose <ref> http://www.merriam-webster.com/netdict/intent </ref>. Thus a policeman hitting a suspect during interrogation is an intentional act, whereas if a prisoner got sick in prison due to prison conditions, the state may not be implicated. Yet the Convention Against Torture reads the intent requirement broadly, indicating 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" <ref> Convention Against Torture </ref>. Thus, even if the State doesn't sponsor torture in its own country, it has a responsibility under CAT not to send people to places where it is quite possible torture would occur, or risk being considered acting with intent to torture. Despite this prohibition, the US, among other countries, has been practicing extraordinary rendition, whereby people are arrested in one place and then sent to another for interrogation, which often involves torture. A 2006 Resolution drafted by the Parliamentary Assembly of the Council of Europe condemned the US for its methods of combating terrorism, and denounced extraordinary rendition <ref> http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta06/ERES1507.htm </ref>. Yet the US and other offending countries have yet to be held accountable, and the victims have had no recourse in US courts <ref> http://www.democracynow.org/2009/11/3/appeals_court_rules_in_maher_arar </ref>. | + | The first element of torture under CAT is an intentional act. Webster's English Dictionary defines intent as a clearly formulated or planned purpose <ref> http://www.merriam-webster.com/netdict/intent </ref>. Thus a policeman hitting a suspect during interrogation is an intentional act, whereas if a prisoner got sick in prison due to prison conditions, the state may not be implicated. Yet the Convention Against Torture reads the intent requirement broadly, indicating 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" <ref> Convention Against Torture, Article 3 </ref>. Thus, even if the State doesn't sponsor torture in its own country, it has a responsibility under CAT not to send people to places where it is quite possible torture would occur, or risk being considered acting with intent to torture. Despite this prohibition, the US, among other countries, has been practicing extraordinary rendition, whereby people are arrested in one place and then sent to another for interrogation, which often involves torture. A 2006 Resolution drafted by the Parliamentary Assembly of the Council of Europe condemned the US for its methods of combating terrorism, and denounced extraordinary rendition <ref> http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta06/ERES1507.htm </ref>. Yet the US and other offending countries have yet to be held accountable, and the victims have had no recourse in US courts <ref> http://www.democracynow.org/2009/11/3/appeals_court_rules_in_maher_arar </ref>. |
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" <ref> Selmouni v. France, 29 E.H.R.R. 403, 426 (2000) </ref>. | 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" <ref> Selmouni v. France, 29 E.H.R.R. 403, 426 (2000) </ref>. | ||
| − | + | Under CAT the State has an obligation not only to refrain from acting, but also has an obligation to prevent torture under Article 16. Thus the State can be held responsible for its omissions (failing to take effective measures to prevent torture from occurring/failing to prosecute perpetrators/failing to investigate allegations) <ref> Convention Against Torture, Article 16 | |
====2. Severe pain or suffering==== | ====2. Severe pain or suffering==== | ||
| − | The second element of torture under CAT is severe pain or suffering. There are several tests used to determine whether an act is severe enough to constitute torture. One approach is to distinguish between torture and inhuman or degrading treatment. The Convention Against Torture prohibits inhuman and degrading treatment as well as torture.<ref> Convention Against Torture, Article 16</ref>. A single treatment may be both torture and inhuman and degrading treatment. The distinction between torture and inhuman or degrading treatment is essentially subjective, and is based on the "intensity of the suffering inflicted," on whether the suffering was very serious and cruel <ref> Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No. 25, p. 66, para.167 </ref>. The Human Rights Committee of the International Covenant on Civil and Political Rights has stated that corporal punishment constitutes cruel, inhuman and degrading treatment | + | The second element of torture under CAT is severe pain or suffering. There are several tests used to determine whether an act is severe enough to constitute torture. One approach is to distinguish between torture and inhuman or degrading treatment. The Convention Against Torture prohibits inhuman and degrading treatment as well as torture.<ref> Convention Against Torture, Article 16</ref>. A single treatment may be both torture and inhuman and degrading treatment. The distinction between torture and inhuman or degrading treatment is essentially subjective, and is based on the "intensity of the suffering inflicted," on whether the suffering was very serious and cruel <ref> Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No. 25, p. 66, para.167 </ref>. The Human Rights Committee of the International Covenant on Civil and Political Rights has stated that corporal punishment constitutes cruel, inhuman and degrading treatment <ref> 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 </ref>. The Committee also noted that inhuman and 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"<ref>International Covenant on Civil and Political Rights </ref>. This test, used by the European Court of Human Rights, 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 <ref>http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1 </ref>. 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 <ref> 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 </ref>. This is also a subjective test, but it may be easier to convict people of torture under it than the other test. |
====3. Committed for wrongful purpose==== | ====3. Committed for wrongful purpose==== | ||
| − | The third element of torture under CAT is a wrongful purpose. In order to satisfy this element, 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 "based on discrimination of any kind" <ref> Convention Against Torture </ref>. This list has generally viewed as examples as opposed to an exhaustive list. Many countries have interpreted the purpose requirement differently, with some countries eliminating it altogether. | + | The third element of torture under CAT is a wrongful purpose. In order to satisfy this element, 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 "based on discrimination of any kind" <ref> Convention Against Torture, Article 1 </ref>. This list has generally viewed as examples as opposed to an exhaustive list. Many countries have interpreted the purpose requirement differently, with some countries eliminating it altogether. |
====4. State action==== | ====4. State action==== | ||
| − | The fourth element of torture under CAT is | + | The fourth element of torture under CAT is that there must be "State action". The Convention Against Torture, Article 16 requires States to prevent acts 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. <ref> Convention Against Torture, Article 16 </ref>. 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 illtreatment (i.e. fail to prevent or remedy such acts), including ill-treatment by non-State actors" <ref> Office of the United Nations High Commissioner for Human Rights, Human Rights Fact Sheet: No. 4 Combating Torture, at 34 (May 2002) </ref>. |
====5. Not arising out of lawful sanctions==== | ====5. Not arising out of lawful sanctions==== | ||
| − | + | The fifth element of torture under CAT is that the treatment cannot arise out of lawful sanctions. | |
===Torture Under Domestic Laws=== | ===Torture Under Domestic Laws=== | ||
