Torture, Inhuman or Degrading Treatment.

One year and nine months ago...and I will NEVER forget Omars eyes, I hope that our love can heal...
This article is about Geneve and nobody who cares about and against torture.
Torture, Inhuman or Degrading Treatment.


Introduction
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Torture is a serious violation of human rights and is strictly prohibited by international law. As the use of torture strikes at the very heart of civil and political freedoms, it was one of the first issues dealt with by the United Nations (UN) in its development of human rights standards. One of its earliest measures was to abolitish corporal punishment in colonial territories in 1949. International law prohibits torture and other forms of inhuman and degrading treatment, which cannot be accepted under any circumstances.

Despite being stringently outlawed, torture continues to be practiced in a majority of countries round the world. A 2001 report by Amnesty International highlighted the use of torture by 140 states between 1997 and 2001, and found that every year thousands of perpetrators beat, rape and electrocute other human beings.

What is torture?

In the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment torture is defined 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 acquiesance of a public official or other person acting in an official capacity". (Article 1)

Definitions of torture vary slightly between different international treaties but generally cover any act which:
- causes severe pain or suffering;
- is intentionally inflicted on a person;
- is done to obtain informatikon or a confession, punishment for an act he or a third person has committed or is suspected of having committed, or to intimidate or coerce him or a third person, or for any reason based on discrimination of any kind; and
- is done at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.

The term "torture" encompasses a variety of methods including severe beatings, electric shock, sexual abuse and rape, prolonged solitary confinement, hard labour, near drowning, near suffocation, mutilation, and hanging for prolonged periods.

Although there is no exhaustive list of prohibited acts, international law has made it clear that torture is "cruel, inhuman, or degrading treatment." In addition to the types of severe pain and suffering mentioned above, torture thus also includes being forced to stand spread eagled against the wall for hours; being subjected to bright lights or blindfolding; being subjected to continuous loud noise; being deprived of sleep, food or drink; being subjected to forced constant standing or crouching; or violent shaking.

Moreover, torture is not limited to acts causing physical pain or injury. It includes acts that cause mental suffering, such as through threats against family or loved ones.

And, regarding human scientific experimentation conducted by governments without the knowledgeable consent of victims, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does not contain this provision, although the earlier prohibition against torture in article 7 of the International Covenant on Civil and Political Rights stipulates that "no one shall be subject without his free consent to medical or scientific experimentation." The human experiments conducted by the Nazis during World War II would fall under this category.

Whether the definition of torture encompasses judicial corporal punishment (e.g. amputation, branding and various forms of flogging, including whipping and caning) or the death penalty, is a contested issue. Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, often refered to as the UN Convention against Torture, excludes "pain or suffering arising only from, inherent in or incidental to lawful sanctions". Some states have used this provision to argue that legally authorized criminal penalties resulting in physical harm do not constitute torture. Moreover, they claim that this wording by its very existence legitimizes the use of the death penalty or corporal punishment. Opponents disagree saying these provisions are without prejudice to other international treaties which safeguard the right to life and the security of a person. In fact, in some cases, international and regional institutions have found that certain forms of corporal punishment do amount to torture or inhuman and degrading treatment.

Rights at Stake

International and regional human rights law protect a number of key rights relating to torture and inhuman or degrading treatment. This includes:

(a) Right to be protected from torture

Liability of the state for torture committed by agents of the state (e.g. police officers, soldiers, prison guards etc.) is clear under international law. Some argue that the state is also responsible for torture carried out by private individuals ("non-state actors") in the form of racist attacks or domestic violence, for example, if it does not do enough to prevent such abuses.

Every state is required to take effective legislative, administrative, judicial, or other measures to prevent acts of torture in its territory. Acts of torture must be offences under criminal law. There is no justification to the use of torture in exceptional situations, e.g. during a state of war, internal political instability, or any other public emergency. Following an order from superior authorities also does not justify torture (UN Convention against Torture, articles 2 and 4).

(b) Duty to prosecute torturers

All governments are responsible for the prosecuting offenders under the international criminal prosecution system that applies to torture. The principle of universal jurisdiction obliges all countries where alleged offenders are found to either extradite those who torture for prosecution by the government that is more directly affected (e.i., the country where the offences were committed, or the country of citizenship of the victims or the abusers), or to initiate prosecution themselves. (See UN Convention against Torture, articles 5, 6, 8).

Unfortunately, successful prosecutions for torture are rare. In some cases this is due to lack of political will and the absence of media and public scrutiny. Governments have been criticized for subjugating the obligation to prosecute to political interests.

In addition, there are often legal obstacles:
- True universal jurisdiction and enforcement may prove problematic as countries incorporate international law into domestic law in different ways, resulting in varying definitions and penalties. (Torture may not be a specific crime in national law or it may be defined too narrowly.)
- Other laws may facilitate the commission of torture, such as incommunicado detention (detention without access to lawyers, doctors, relatives or friends) or laws that allow confessions to be extracted under torture, which are then used as evidence in trials to gain convictions.
- National amnesty laws may shield perpetrators.
- It may be difficult to find evidence. Torturers may hide their identities or choose methods that leave few physical traces. Evidence may be tampered with or destroyed. False reports may be filed. There may be a code of silence preventing people speaking up against colleagues. Or witnesses may be intimidated and threatened with physical or legal retaliation.
- Systems of investigation, prosecution and conviction may be flawed, inefficient or corrupt.

(c) Right not to be expelled, returned or extradited to another state where one may face danger

"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". (UN Convention against Torture, article 3)

This article creates an unconditional right of a person not to be expelled, returned or deported to another country where torture is a likely result. Return is prohibited under all circumstances on an unconditional basis, providing there are substantial grounds for believing there would be a danger of torture. This would be determined by taking all relevant considerations into account including whether there is a "consistent pattern of gross, flagrant or mass violations of human rights".

This creates a stronger provision against refoulement than other instruments, e.g., the 1951 Convention Relating to the Status of Refugees, whereby prevention of refoulement is conditional on establishing persecution on the basis of race, religion, nationality, political opinion or membership of a particular social group. Past actions, e.g. involvement in criminal activity may, be a basis for disqualification under the Refugee Convention, but are not a ground for exclusion under the UN Convention against Torture.

(d) Right of victims to obtain redress, fair compensation, including rehabilitation and the right of victims to make a complaint, to have it impartially investigated, and to be protected from retaliation for making complaints

There are five types of reparation: financial compensation, medical care and rehabilitation, restitution (seeking to restore the victim to his or her previous situation), guarantees of non-repetition, and forms of satisfaction such as restoration of their dignity and reputation and a public acknowledgment of the harm they have suffered (see UN Convention against Torture, article 13, 14).


Key assistance agencies

United Nations Voluntary Fund for Victims of Torture

The United Nations Voluntary Fund for Victims of Torture provides humanitarian, legal and financial aid to victims of torture and their families. The fund depends entirely on voluntary contributions and is administered by the UN Secretary-General with the assistance of a Board of Trustees, which is composed of a chairman and four members with wide experience in the field of human rights. Most funds are spent on finance and rehabilitation with the remainder on training projects to fund medical specialists.

Many other international and national organizations are involved in combating torture and in providing assistance to victims. Links to some such organizations can be found in the Other Resources section below

International and Regional Instruments for Protection and Promotion

International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.

The binding treaties can be used to force governments to respect the treaty provisions that are relevant to the prevention of torture and inhuman or degrading treatment. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies.

The following are the international treaties, declarations and commitments that determine standards for the human right to be be protected from torture and cruel, inhuman or degrading treatment:


UNITED NATIONS

Universal Declaration of Human Rights (1948) (article 5)
This fundamental UN human rights document asserts that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Several provisions of the Universal Declaration of Human Rights have become part of customary international law, which means that they are binding on all states, regardless of whether the state is a party to the specific universal or regional instrument. Torture is consequently prohibited by international customary law whether it is committed on a widespread and systematic basis and, therefore, a crime against humanity, or committed against a single victim. The prohibition of torture is also an obligation for the entire international community, which all states have a right to enforce through the exercise of universal jurisdiction over suspects found in their territory.

International Covenant on Civil and Political Rights (1966) (article 7)
This treaty, also known as ICCPR, was adopted by the General Assembly in December 1966 and entered into force in 1976. It elaborates the principles laid out in the UDHR. Torture is prohibited under article 7, which states "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation." This provision cannot be suspended or limited even in times of emergency.

Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975)
This declaration was adopted by the General Assembly in December 1975. It contains 12 articles and a definition of torture.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
This is the principal UN treaty concerned with torture. It was adopted by UN General Assembly and came into force in June 1987. It comprises 33 articles covering the rights at stake and the enforcement mechanisms.

The treaty created a Committee Against Torture under article 17. The Committee is composed of ten experts elected for a four-year term. The Committee reviews periodic reports by state parties to the Convention. It is able to invite UN agencies, regional and non-governmental bodies, to submit information.

Under article 20, the Committee also has the power to initiate state visits providing the consent of the state concerned is obtained. All proceedings are confidential and all actions carried out in cooperation with the state concerned. The treaty allows for individual complaints to the Committee under article 22, on the condition that all domestic remedies have been exhausted. This represented an important development in international law at the time as it enabled an individual to file a complaint to an international body about his/her own government. However, the application of this provision is subject to a government making a declaration that it accepts this article. To date, a minority of states have made such a declaration, meaning that most people do not have access to this procedure.

Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (2002)
Under article 2, the Optional Protocol sets up an expert body, a Sub-Committee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee Against Torture, to carry out inspection visits to places of detention and to submit confidential reports to the relevant authorities on how to prevent torture and ill-treatment. The Protocol also requires states to establish national bodies to make similar visits to places of detention.

Special Rapporteur on Torture
The Special Rapporteur on Torture collects information on legislative and administrative measures taken by governments, responds to concerned raised through an urgent action procedure, carries out consultations and country visits, and reports back to the UN Human Rights Council. Unlike the Committee Against Torture, the mandate extends to all Member and Observer States of the UN and not only those that are parties to the Convention against Torture.

The Special Rapporteur receives communications on violations from organizations and individuals. The Special Rapporteur is able to issue an urgent appeal to prevent imminent violations. Specific allegations are taken up by the Special Rapporteur directly with the government in question. Problems have been reported with the follow-up and some governments have failed to respond to issues taken up by the Special Rapporteur. Wider issues such as persistent reports of impunity or infringements of international human rights law by national legislation are contained in reports of the Special Rapporteur. The Special Rapporteur also carries out country visits for the purpose of obtaining first-hand information.

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 Punishment (1982)
These principles, adopted by the General Assembly in December 1982, oblige medical personnel to protect the physical and mental health of detainees and secondly, prohibits their active or passive engagement in acts of torture or inhuman or degrading treatment or punishment.

A number of UN treaties concerned with the rights of specific groups expressly or implicitly prohibit torture and other forms of inhuman and degrading treatment. Such concerns have therefore been raised with the bodies overseeing the implementation of these treaties:

Convention on the Rights of the Child (1989) (article 37)
Article 37 of the UN Convention on the Rights of the Child determines that "no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment" and violations have been registered with the UN Committee on the Rights of the Child.

In addition to children, women are particularly vulnerable to forms of sexual torture including rape, and other forms of sexual violence. Complaints have been lodged with the Committee on the Elimination of Discrimination Against Women as breaches of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). A Declaration on the Elimination of Violence Against Women, passed by the General Assembly in December 1993, explicitly makes reference to the right of women not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (article 3h).

Torture may also be used in a discriminatory fashion and target specific racial groups. In such circumstances it violates the International Convention on the Elimination of All Forms of Racial Discrimination and can be raised with the Committee on the Elimination of Racial Discrimination, which oversees the implementation of the convention.

The issue of torture is often interwoven with other human rights issues such as detention, arbitrary arrest and enforced disappearances. The occurrence of such human rights violations may make torture more likely. Treaties concerned with these issues are therefore also of relevance when considering torture and inhuman and degrading treatment.

A number of specific codes have been developed on such issues to supplement the general provisions of international human rights law. The Standard Minimum Rules for the Treatment of Prisoners were adopted by the first UN Congress on the Prevention of Crime and Treatment of Offenders in 1955. They set out general principles but do not go into detail. Rule 31 specifically determines that corporal punishment, punishment by placing in a dark cell and all cruel, inhuman or degrading punishment is absolutely prohibited. A Code of Conduct for Law Enforcement Officials was adopted by the General Assembly in December 1979, which prohibits torture. A Declaration on the Protection of All Persons from Enforced Disappearances was adopted by the General Assembly in December 1992. It recalls other UN treaties and reiterates, in article 1, the right to be protected from torture.

Rome Statute of the International Criminal Court (1998) (article 7, 8)
The Rome Statute specifically prohibits torture under various provisions, giving the International Criminal Court jurisdiction in such cases. If torture, defined as "intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions" (article 7e) is "committed as part of a widespread or systematic attack directed against any civilian population", it constitutes a "crime against humanity" (article 7). "Torture or inhuman treatment, including biological experiments" (article 8.2.a.ii) constitute "war crimes" (article 8).


International humanitarian law

The right to freedom from torture is absolute and includes times of war, as prohibited by the 1949 Geneva Conventions. There is a duty to protect the life, health and safety of civilians and other non-combatants, including soldiers who are captured or who have laid down their arms. Torture of such protected persons is absolutely forbidden. Common Article 3 to the Geneva Conventions, for example, bans "violence of life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" as well as "outrages upon personal dignity, in particular humiliating and degrading treatment."

Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) (article 31)
The use of force to obtain information is specifically prohibited in article 31 of the Fourth Geneva Convention, which states that "no physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties."

Geneva Convention relative to the Treatment of Prisoners of War (1949) (article 12, 14, 17, 130)
Provisions in the Third Geneva Convention say that prisoners of war "are entitled in all circumstances to respect for their persons and their honour" (article 14) and "must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity" (article 13). Article 17 stipulates that "no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." Torture or inhuman treatment of prisoners of war is a grave breach of the Convention (article 130).

Some elements of international humanitarian law have also become part of customary international law. This means that all detainees in wartime are protected by certain minimum safeguards irrespective of their legal status.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977) (article 75)
Article 75 ("Fundamental Guarantees") of the First Additional Protocol to the Geneva Conventions, which is recognized as restating customary international law, provides that "torture of all kinds, whether physical or mental" against "persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the [Geneva] Conventions," shall "remain prohibited at any time and in any place whatsoever, whether committed by civilian or military agents." "Cruel treatment and torture" of detainees is also prohibited under common article 3 to the 1949 Geneva Conventions, which is considered indicative of customary international law.




ORGANIZATION OF AMERICAN STATES (OAS)

American Convention on Human Rights (1978) (article 5)
The American Convention stipulates that "no one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person" (article 5.2).

Inter-American Convention to Prevent and Punish Torture (1985)
This treaty entered into force in February 1987. It elaborates the obligations of states regarding torture and details provisions similar to those contained in UN Convention against Torture.

National Assistance, Protection and Service Agencies

States that are parties to international treaties are required to implement these at the national level. Many states have failed to implement the international human rights treaties concerning the prevention of torture which they have ratified.

Articles from the UN Convention Against Torture that states have failed to implement include :
- article 4, which ensures that acts of torture are offences under criminal law;
- article 14, which ensures redress and fair and adequate compensation specifically for victims of torture;
- article 10, which ensures appropriate education regarding the prohibition of torture for law enforcement personnel, medical personnel and other persons involved in the detention of a person;
- article 2.1, which requires each state party to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Although this provision is very general, the UN has drawn up a detailed list of measures which should be implemented e.g. a detainee's right to consult a lawyer, the right to be informed of one's rights in a language one understands, the existence of a log-book in each police station which records every action that takes place during custody, the existence of a code of conduct for the police during interrogation, and the existence of formal or informal control mechanisms such as independent complaint bodies and visits of detention.

NGOs play a critical role in monitoring how well their governments are complying with these provisions. Advocacy and lobbying by national and international NGOs working in consort can serve to pressure governments into full compliance.

The regional mechanisms under the Council of Europe provide for particularly strong tool for enforcement. Monitoring of implementation and reporting on violations by NGOs and lawyers remains essential however in making protection from torture a reality.

Lessons learned in the prevention of torture at national level suggest a variety of steps:

* Increase regulation and monitoring of police conduct. This includes:
- Obligating police officers to inform criminal suspects of their rights in detention, e.g., the right to remain silent, right to the presence of an attorney at the interrogation. Failure to give these warning resulting in an exclusion of any confession obtained from the suspect.
- Encouraging police officials to videotape interrogations etc. to demonstrate that their compliance with standards.
- Reducing periods of incommunicado detention and detention by police.
- Making sure a lawyer is present during interrogation as well as a female official for female detainees, and parents or independent representative when a juvenile is being interrogated.

* Increase safeguards during detention.
- Ensure prisoner's right to have a right to telephone an attorney, to correspond with the media, family or others, and to have visits.
- Guarantee a prisoner's right to adequate, effective and meaningful access to the courts;
- Ensure access to prisoners by official bodies (ombudsman, procurator for human rights, etc.) and non-governmental monitoring bodies.

* Use civil rights litigation. A person who suffers torture or other forms of ill-treatment by any governmental official may sue for compensatory damages and punitive damages. In some jurisdictions, it is even possible for victims to sue their torturers for acts committed in other countries e.g. US Alien Tort Statute.

* Use criminal prosecution against torturers. In reality it can be difficult to bring cases against government officials. An unofficial code of silence among colleagues can make it difficult to adduce evidence to bring successful actions.

* Ensure that high-level government authorities condemn torture. This will send a clear message about the unacceptability of torture. Such statements should be accompanied campaigns to raise public awareness about torture.

* Coordinate sharing of information. Governments and NGOs could:
- Establish an international data bank of known torturers.
- Conduct campaigns when known torturers are sent on diplomatic or study missions, so that they will not be admitted into the country to which they have been sent.