MODULE 1 Prevention through Documentation Project

PtD Project (IRCT, HRFT, REDRESS, PHR)

MODULE 1MODULE 1Prevention through Documentation ProjectPrevention through Documentation Project

International Legal Standards

CONTRIBUTORS:

Vincent Iacopino, MD, PhD, Physicians for Human RightsBent Sorensen, International Rehabilitation Council for Torture Victims

Module 1 OutlineModule 1 Outline

Definition of torture and ill treatments

Purpose and history of torture

International standards for prevention

Torture in the world today – practices– role of State and non-State actors– common situations for allegations


Module 1 Outline Module 1 Outline (continued)(continued)

Overview of prevention and accountability measures

Monitoring mechanisms– International– Regional– Other

Safeguards against torture for those deprived of libertyPtD Project (IRCT, HRFT, REDRESS, PHR)

Definition of Definition of TTortureorture ((UNUN Convention against Torture Convention against Torture))

“…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.”PtD Project (IRCT, HRFT, REDRESS, PHR)

Other DOther Definitionefinitionss of of TTortureorture The World Medical Association’s Declaration The World Medical Association’s Declaration

of Tokyo (1975),of Tokyo (1975),

“Torture is] the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason.”


Definition of Definition of IIll ll TTreatmentreatment(Cruel, Inhuman and Degrading Treatment (Cruel, Inhuman and Degrading Treatment

or Punishment- CID)or Punishment- CID)

Boundaries between torture and CID difficult to identify

Sharp distinctions not necessary as it is courts’ responsibility to determine torture vs. CID in individual cases

Essential elements of CID include:– Intentional exposure to significant mental or

physical pain or suffering;– By or with consent of state authorities– NOTE: CID is “less severe” and does not

require intent or a specific purpose PtD Project (IRCT, HRFT, REDRESS, PHR)

PPurpose of urpose of TTortureorture

Deliberate infliction of severe pain and suffering for:– Social control– Defense of ruling regimes – Suppression and punishment of political

opponents – Short-cut to confessions – Assist with ethnic cleansing– Induce a sense of terror in population– Extortion– No obvious purpose


Brief HBrief Historyistory of of TTortureorture Torture practiced throughout early history

as part of judicial systems until WWII– Romans: Crucifixion– Jews: Stoning– Egyptians: desert sun death

Medieval and Modern European courts: (i.e. hanged, drawn and quartered, burned at the stake) to extract confessions, often after sentencing.


Brief HBrief Historyistory of of TTortureorture

Colonial America: women in stocks with wooden clips on their tongues or subjected to the "dunking stool" for “talking too much”

Universal prohibition against torture was realized only in the aftermath of WWII in 1948

UN Convention Against Torture adopted by the UN General Assembly in 1984PtD Project (IRCT, HRFT, REDRESS, PHR)

IInternational nternational SStandards for tandards for TTorture orture PPreventionrevention

Apply to all legal systems in the world Prohibition is absolute, applying at all times and in all

circumstances as provided in:– Universal Declaration of Human Rights, 1948– International Covenant on Civil and Political Rights, 1966– European Convention on Human Rights (1950), the American

Convention on Human Rights (1978) and the African Charter on Human and People’s Rights (1981).

– Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 1984

– Geneva Conventions (1949) and Additional Protocols (I and II) Failure to prohibit torture in domestic law will not

release the state from its international legal obligationsPtD Project (IRCT, HRFT, REDRESS, PHR)

The United Nations Convention Against The United Nations Convention Against TortureTorture (1984) (1984)

Part I Articles: 1. Definition 2. Effective legislation, administrative, judicial measures to

prevent acts of torture. No exceptional circumstances, i.e. war, strife, orders from superior officer.

3. No extradition of being subjected to torture 4. Acts of torture are offenses under criminal law. Offenses

punishable by law 5. Establish jurisdiction: offense in state, offender in state 6. Alleged offender taken into custody, immediate inquiry, notify

state 7. State must prosecute, if not extradited, fair treatment for

alleged offender 8. Extradition: Even if no reciprocal agreement exists, this

convention serves as a treaty.PtD Project (IRCT, HRFT, REDRESS, PHR)

The United Nations Convention Against The United Nations Convention Against TortureTorture (1984) (1984)

Part I Articles: 9. Mutual state assistance in criminal proceedings 10. State ensures education re. prohibition of torture to: law

enforcement, civil or military, medical personnel, public officials, and others involved in custody or interrogation.

11. Systematic review of interrogation rules to prevent torture 12. Prompt and impartial investigation when act of torture

committed 13. Ensure that alleged victims have the rights to complain and

have case examined 14. Ensure system of redress, compensation for victims and for

rehabilitation 15. Statements obtained through torture invalid 16. Undertake to prevent torture

Part II Articles: Committee Against TorturePtD Project (IRCT, HRFT, REDRESS, PHR)

Torture in the Torture in the WWorld orld TTodayoday

Torture & CID in 81 countries in 2007 (Amnesty International)

5-35% of refugees have experienced torture – 15.9 million refugees and 26 million internally

displaced in 2007

1 in 9 foreign-born patients in a US urban primary care centre had a history of torture (Crosby, 2006)


Torture in the Torture in the WWorld orld TTodayoday Groups participating in torture:

– State actors: i.e. police, military, prison, para-military– Non-State actors: opposition groups, private groups

States are responsible for protection from third parties

Common situations for occurrence:– Any location and at any time – Usually initial phase of arrest and detention (pre-trial) – Persons deprived of liberty– Incommunicado detention (before access to a lawyer or court)– Conflict zones and situations of political unrest or violence


Health Professional Health Professional Complicity in TortureComplicity in Torture

Direct involvement (i.e. medical monitoring of torture)

Certifying someone fit for interrogation

Using medical knowledge to design/refine methods Assisting in cover-up (i.e. issuing false medical reports)

Acts of omission, i.e. failing to provide necessary treatment

Note: involvement in torture can lead to criminal charges against health professionals


Country-Specific Definitions, Country-Specific Definitions, LLegal egal SStandards and tandards and TTorture orture

PPracticesractices

[To be Provided by Instructors]


Overview of Overview of PPrevention revention MMeasureseasures

• Effective monitoring

• False confessions cannot be used as evidence

• Torture prohibition included in training of State officials, including medical personnel

• Non-refoulement: no transfer to country where torture is likely

• Unrestricted access to one’s own lawyer and doctor


Overview of Overview of PPrevention revention MMeasureseasures

Informing family members of detention

Providing detainees access to family members and friends

No incommunicado detention

Ensure right to legal challenge of detention before a judge


AAccountability ccountability MMeasureseasures

Effective investigation of allegations of torture – effective complaints procedure– provision of adequate victim and witness

protection– relevant authorities undertake prompt and

impartial investigation whenever there are reasonable grounds to believe that torture has been committed

– guaranteeing that all allegations of torture are effectively investigated.


AAccountability ccountability MMeasureseasures Ensure that alleged perpetrators are subject to

criminal proceedings – Criminalise acts of torture, including complicity or

participation, and excluding defences of necessity or superior orders;

– Ensure alleged perpetrators are subject to criminal proceedings if an investigation establishes that an act of torture appears to have been committed

– Impose punishments that reflect seriousness of crime– Enshrine the principle of universal jurisdiction, enabling

investigation and prosecution of torturers irrespective of place where torture was committed and nationality of victim or perpetrator; and

– Make torture an extraditable offence and provide assistance to other national governments seeking to investigate and/or prosecute persons accused of torture.


AAccountability ccountability MMeasureseasures

Reparation:

– Ensure that victims of torture have effective procedural remedies, judicial and non-judicial, to protect their right to be free from torture in law and practice

– Guarantee that domestic law reflects different forms of reparation recognised under international law and that the reparations afforded reflect the gravity of the violation(s)


International International MMonitoring onitoring MMechanismsechanisms

Human Rights Committee

UN Committee against Torture


Regional Regional MMonitoring onitoring MMechanismsechanisms

European Convention on Human Rights

European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment

American Convention on Human Rights

Inter-American Convention to Prevent and Punish Torture

African Charter on Human and Peoples’ Rights.


Other MOther Monitoring onitoring MMechanismsechanisms

The UN Special Rapporteur

International criminal courts and tribunal

The International Committee of the Red Cross (ICRC)


Safeguards Against Torture for Safeguards Against Torture for Those Deprived of Their LibertyThose Deprived of Their Liberty

Notifying individuals of their rights

Use of officially recognised places of detention

Humane conditions of detention

Limits on interrogation

Access to a doctor

Right to challenge the lawfulness of detention


Safeguards for Safeguards for SSpecial pecial CCategories of ategories of DDetaineesetainees

Women in detention

Juvenile detainees

People with mental health problems


MODULE 1 Prevention through Documentation Project

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