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]

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