International Human Rights Law 26 November 2012
The term “torture” according to Article 1 of the UN Convention against Torture and scope of the Convention.
Helene Inga Stankiewicz Björg Thorarensen
TABLE OF CONTENTS
1. Introduction………………………………………………………………….…...…3 2. The Convention against Torture…………………………………………..….….…3 3.1. Structure of the Convention………………………………………….……..…4 3. Article 1: Definition of Torture……………………………………………..............4 4.2. The Conduct.……………………………………………………………….….5 4.3.1. “Act”……………………………………………………………….…...5 4.3.2. “Severe Pain or Suffering”………………………………………….….5 4.3.3. “Physical or Mental”……………………………………………………6 4.3. The Purpose and Intention of the Conduct…………………………………….6 4.4.4. “Intentional and purposeful”………………………………….………...6 4.4. The Offender’s Identity………………………………………………….…….6 4.5.5. “Public Official”…………………………………………………….….6 4.5. The Exclusions……………………………………………………………..…..7 4.6.6. “Does not include pain or suffering from lawful sanctions”...…………7 4. The Scope of the Convention……………………………………………………….7 5.6. Obligation and Responsibility of States……………………………………......7 5.7. Monitoring Mechanisms……………………………………….........................8 5.8.7. Individual Complaint…………………………………………………...9 5. Conclusion……………………………………………………………….................9
Since immemorial time many peoples in different societies and various cultures have practiced torture. Though torture in the form of slavery was legally eliminated in continents of Europe and America in the course of the 18th and 19th centuries it continued to exist and re-appear in various forms during the 20th century. The extremely tragic torture and inhuman treatment operations that were conducted most notoriously under the totalitarian rule of Stalinism and National Socialism throughout the two World Wars stimulated an increased interest in human rights which finally evolved into a reaction against this background by prohibiting all such practices in a catalogue of international provisions starting with the Universal Declaration of Human Rights in 1948. Further on, the prohibition was included in 1966 in the International Covenant on Civil and Political Rights and in 1950 in the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as other regional human rights mechanisms. The most thorough international agreement prohibiting torture is the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which was adopted on 10 December 1984. The Convention was the first international agreement to make an effort of defining the term ‘torture’. In spite of a consensus on the prohibition of torture there are disputes regarding the scope and meaning of the term. There are still multiple legal definitions and interpretations of the term ’torture’. Agreeing upon a universal definition and understanding the scope and nature of the Convention is critical if torture is to be eradicated.
2. Convention against Torture
Even though important efforts had been made to abolish acts of torture since the establishment of the United Nations, there were instances of horrific torture activities in some States of the world during the second part of the 20th century. This highlighted the necessity to define the term ‘torture’ more explicitly to advance the possibility of increased collaborative international action to eliminate this crime against humanity. Therefore the now extinct Commission on Human Rights was petitioned by the General Assembly to outline a Convention against Torture in the year 1977. The issues that caused negotiations and debates regarding definitions and structure finally reached an agreement and the Convention started operating in 1987 and is currently signed by 147 State parties.
3.1. Structure of the Convention
The Convention’s articles are divided into three parts. Part I (articles 1-16) contains the substantive rights. Most of these rights give an account of torture only, but a limited number apply to all categories. Part II (articles 17-24) provides the implementation machinery. These articles supply different forms of international supervision regarding the observance by State Parties and their obligations under the substantive rights. Part III (articles 25-32) provides the final clauses. These articles deal with the ratification and signature of the Convention, its amendments, denunciation, entry into force, settlements of disagreements regarding the Convention’s application and interpretation, and one of the implementation rights optional exclusion.
3. Article 1: Definition of Torture.
The Convention provides an explication on the term ‘torture’ but no detailed description of the terms ‘cruel’, ‘inhuman’, ‘degrading treatment or punishment’. Its definition on the subject matter consists of four legal aspects: 1. The Conduct, 2. The Purpose and Intention of the Conduct, 3. The Offender’s Identity, and 4. The Exclusions.
4.2. The Conduct. 4.3.1. “Act”
The conduct which is prohibited is specified as ‘any act by which severe pain or suffering whether physical or mental…’. By an ‘act’ the question arises if torture can occur as a consequence of an omission? According to VCLT, treaties are to be interpreted in the light of their object and purpose. “
The purpose and effect of the conduct are decisive elements in determining whether they constitute torture. Negative acts may inflict as much physical and mental harm as positive acts and achieve the same inhuman ends.
If omissions are deliberately conducted they can amount to torture. In the case of Denmark et al. v. Greece, the European Commission on Human rights came to the conclusion that “the failure of the Government of Greece to provide food, water, heating in winter, clothing, …constitutes and “act” of torture in violation of article 3 of ECHR.”
4.3.2. “Severe Pain or Suffering”
Though it was frequently proposed during the drafting of the Convention to abolish the term from the definition it was retained.
The scope of severe encompasses prolonged coercive or abusive conduct, which in itself, is not severe, but becomes so over a period of time.
In order to determine what constitutes ‘severe’ under article 1, there should be made a reference to the above definition and thorough application to the circumstances of each case. Support oft this view is in the case of Ireland v. U.K. where ECHR concluded that:
Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Art. 2. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and in some cases, the sex, age and state of health of the victim, etc.
4.3.3. “Physical or Mental”
The definition does not exclusively refer to a physical pain but mental suffering as well. The ECHR has defined mental torture in the Greek case as “The infliction of mental suffering through the creation of a state of anguish and stress by means other than bodily assault.”
4.3. The Purpose and Intention of the Conduct. 4.4.4. “Intentional and Purposeful”
The definition provides that torture must be caused intentionally and for specific enlisted purposes. The term ‘intentionally’ could connote the exclusion of negligent behavior from the application of Article 1. In the case of Selmouni v. France, the ECHR concluded “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 cause.” In this case the State was found guilty of torturing an individual without evidence of intent. Therefore is it not only the intention of the subject but the act and nature of its effect upon the victim undergoing the treatment, which are decisive. 4.4. The offender’s identity 4.5.5. “Public Official”
Recording to the definition the act must have an involvement of a public official or a person acting in an official capacity. Gruesome acts of abuse will not be acknowledged as torture violating CAT if the State is not involved and would instead be punishable under national criminal laws. Either are the acts actually committed by a public official or by non-state agents that tolerated, either explicitly or implicitly, torturous acts. The case of Zheng v. Ashcroft shows an expansion on the interpretation of the term “acquiescence” by explicating that torture does not require the officials to be purposefully accepting it themselves but it is sufficient for them to be aware of torturous acts.
4.5. The Exclusions: 4.6.6. “Does not include pain or suffering from lawful sanctions”
Acts that meet the criteria of the definitions first sentence will however not be considered to acts of torture if they are imposed in connection with lawful sanction. The sanction of the particular country should be assessed to determine the sanction’s legality.
4. The Scope of the Convention 5.6. Obligation and Responsibility of States
The Convention enforces responsibilities on States Parties and not on individuals. The States are internationally responsible for the acts and omissions of their officials and others. According to Article 2(1) the primary obligation of State Parties is not only to refrain from the practice of torture as an official policy but also to enact the legislative, administrative and judicial measures needed to prevent acts of torture.
The prohibition of torture has evolved into a rule of customary international law that also implements States, which have not ratified these conventions. This peremptory rule, jus cogens, is defined in article 53 of the Vienna Convention on the Law of Treaties which says that ”a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm.” The prohibition of torture is absolute and non-derogable according to article 2(2) of the Convention, even in times of emergencies or war. After the attacks of 11 September 2001 the Committee highlighted and reinforced the obligations contained in articles 2.
The fundamental right of non-refoulement is provided in article 3 where States are not allowed to extradite a person from their State “if there are substantial grounds for believing that he would be in danger of being subjected to torture.” Guidelines have been provided in a General Comment from CAT that have been useful in determining the validity of the applicant’s claim under this article. An example is the Committee’s conclusion in the case of A.S. v. Sweden were they decided that the State party had an obligation under this article to refrain from expelling the author to Iran.
The Convention constitutes particular preventive acts in articles 3 to 16, that the States Parties should view it essential to hinder torture, inhuman or degrading treatment in f. ex; interrogation, custody, investigation or detention. The States should take effective preventive measure surpassing the items counted in these articles of the Convention and the General Comments provided. 5.7. Monitoring Mechanisms
The convention provides four methods of monitoring implementations, which consist of; the reporting procedure (19), the inter-State complaints procedure (21), the individual complaints procedure (22) and at last, the initiation of an enquiry (20). The only compulsory procedure is the reporting procedure. 5.8.7. Individual complaint procedure
CAT provides private individuals the right to complain in certain circumstances if they claim that the State party has violated one or more of the Convention’s provisions. This procedure requires an approval of the State party. 64 out of 147 States have declared the competence of CAT. The merits are examined if the conditions (that are specified in the Convention) for admissibility are met. 5. Conclusion
The U.N. has made it possible for the international community to get closer to eradicating torture by adopting the CAT. The principle purpose of the Convention is not to outlaw torture and other cruel, inhuman or degrading treatment or punishment but “to strengthen the existing prohibition of such practices by a number of supportive measures” due to, that the aforementioned practices are as of now outlawed in international law. Despite the fact that the universal condemnation of torture has acquired jus cogens status and all human rights instruments prohibit and condemn torture and other forms of ill-treatment, horrific events still take place around the globe and demonstrate how much still needs to be done to accomplish this goal. In order to do that it is essential that international agreements prohibiting torture are working effectively. A key reason why the CAT’s achievement has not reached its peak is the lack of a universal fair, clear and precise legal definition. Torture has persisted and weights on humanity’s basic morality and needs to reach the goal of elimination.
Word count: 1873
List of References
Boulesbaa, A. (1999). The U.N. Convention on Torture and the prospects for enforcement. The Hague: M. Nijhoff Publishers
Burgers, J. H., and Danelius, H. (1988). The United Nations Convention against
Torture: A handbook on the Convention against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment. Dordrecht: M. Nijhoff.
Ghandhi, S. (2012). Blackstone 's international human rights documents. Oxford [etc.:
Oxford University Press
Rehman, J. (2010). International human rights law. Harlow, England:
UN Committee Against Torture (CAT), General Comment No. 1: Implementation of
Article 3 of the Convention in the Context of Article 22 (Refoulement and
Communications), 21 November 1997, A/53/44, annex IX, available at: http://www.unhcr.org/refworld/docid/453882365.html [accessed 21 November 2012]
UN Committee Against Torture (CAT), General Comment No. 2: Implementation of
Article 2 by States Parties, 24 January 2008, CAT/C/GC/2, available at: http://www.unhcr.org/refworld/docid/47ac78ce2.html [accessed 22 November 2012]
[ 1 ]. Rehman, J. 2010:808.
[ 2 ]. Article 5 of the Declaration says: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
[ 3 ]. Burgers, J. H. and Danelius, H.1988: 5-10.
[ 4 ]. Article 7 of the ICCPR provides: “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.”
[ 5 ]. Article 3 of ECHR: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
[ 6 ]. Article 5 of the ACHR (1969); Article 5 ARCHPR (1981), (Rehman, J. (2010). 809).
[ 7 ]. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51(1984)(from now on sometimes “CAT”).
[ 8 ]. Rehman, J. 2010: 810.
[ 9 ]. Statute of the International Criminal Court, Article 7(f) provides: For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: “torture.”
[ 10 ]. Rehman, J. 2010: 809- 811.
[ 11 ]. The States that have either ratified, signed, acceded or sanctioned to the Convention are: Afghanistan, Albania, Algeria, Antiguea and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Belarus, Bolivia, Bosnia and Herzegovina, Bulgaria, Burundi, Cameroon, Cambodia, Canada, Cape Verde, Chile, China, Colombia, Costa Rica, Cote d’Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Estonia, Ethiopia Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana, Holy See, Honduras, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Japan, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Latvia, Lebanon, Lesotho, Liberia, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Maldives, Mali, Malta, Mauritius, Mexico, Monaco, Mongolia, Morocco, Mozambique, Namibia, Nauru, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Republic of Korea, Republic of Moldoca, Romania, Russian Federation, Saint Vincent and the Grenadines, San Marino, Sao Tome and Principe, Saudi Arabia, Senegal, Serbia and Montenegro, Seychelles, Sierra Leone, Slovakia, Slovenia, Somalia, South Agrica, Spain, Sri Lanka, Sudan, Swaziland, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, The Former Yogoslav Republic of Macedonia, Timor- Leste, Togo, Turkey, Turkmenistan, Uganda, Ukraine, United Kingdom of Great Britain and Northern-Ireland, United States of America, Uruguay, Uzbekistan, Venezuela, Yemen, Zambia (http://www2.ohchr.org/english/law/cat-ratify.htm).
[ 12 ]. Ghandhi, S. 2012: 75-84.
[ 13 ]. Rehman, J. 2010: 813
[ 14 ]. The definition of torture is the following: 1. For the purposes of this Convention, the term "torture" means 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. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. 14
[ 15 ]. Article 31(1) of the Vienna Convention on the Law of Trieties provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
[ 16 ]. Boulesbaa, A. 1999: 15
[ 17 ]. Greek Case Yearbook XII (1969) 1, at p.461.
[ 18 ]. Rehman, J. 2010: 813
[ 19 ]. M.C. Bassiouni, Commentary on the Draft Convention for the Prevention and Suppression of Torture of the International Association of Penal Law, 48 Revue Internationale de Droit Penal, No. 3-4 (1978), pp. 282-94.
[ 20 ]. See Ireland v. U.K. European Human Rights Reports, vol. 2 (1979-80), p. 79.
[ 21 ]. Greek Case, 5 November 1969, YB XII, p. 501.
[ 22 ]. Rehman, J. 2010: 813
[ 23 ]. Boulesbaa, A. 1999: 20-21.
[ 24 ]. Selmouni v. France, 29 E.H.R.R. 403, 426 (2000).
[ 25 ]. Selmouni v. France, 29 E.H.R.R. 403, 426 - 427(2000).
[ 26 ]. Zheng v. Ashroft, 332 F.3d 1186, 1194 -97 (9th Cir. 2003)
[ 27 ]. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 355 (5th Cir. 2002). Later on adopted by the Second Circuit, which held that “[i]n terms of state action, torture requires only that government officials know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it.” Khouzam, 361 F.3d at 170-71
[ 28 ]. Boulesbaa, A. 1999: 30-33.
[ 29 ]. Boulesbaa, A. 1999: 54.
[ 30 ]. Article 2 of the CAT provides: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture.”
[ 31 ]. Boulesbaa, A. 1999: 3.
[ 32 ]. Burgers, J. H., & Danelius, H. 1988: 12
[ 33 ]. Article 2 of the CAT provides: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture.” Ghandhi, S. (2012): 75-84.
[ 34 ]. UN Committee Against Torture (CAT), General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2
[ 35 ]. Article 3 of CAT provides 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.” Ghandhi, S. 2012: 75-84
[ 36 ]. UN Committee Against Torture (CAT), General Comment No. 1: Implementation of Article 3 of the Convention in the Context of Article 22.
[ 37 ]. Rehman, J. 2010:Æmplaints procedur and lastly thN Convention against Torture and cope of thetional. indicidual complaints procedur and lastly th 820-21
[ 38 ]. UN Committee Against Torture (CAT), General Comment No. 1: Implementation of Article 3 of the Convention in the Context of Article 22.
[ 39 ]. Rehman, J. 2010: 831-844
[ 40 ]. Rehman, J. 2010: 831-844
[ 41 ]. Article 22 of CAT provides: The Committee shall not consider any communication from an individual under this article unless it has ascertained that: The same matter has not been, and is not being examined under another procedure of international investigation or settlement; The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.
[ 42 ]. Burgers, J. H., & Danelius, H. 1988: 1
[ 43 ]. Burgers, J. H., & Danelius, H. 1988: 1
References: Boulesbaa, A. (1999). The U.N. Convention on Torture and the prospects for enforcement Burgers, J. H., and Danelius, H. (1988). The United Nations Convention against Torture: A handbook on the Convention against Torture and Other Cruel, Ghandhi, S. (2012). Blackstone 's international human rights documents. Oxford [etc.: Oxford University Press Rehman, J. (2010). International human rights law. Harlow, England: Longman/Pearson. [ 6 ]. Article 5 of the ACHR (1969); Article 5 ARCHPR (1981), (Rehman, J. (2010). 809). [ 7 ]. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51(1984)(from now on sometimes “CAT”). [ 8 ]. Rehman, J. 2010: 810. [ 12 ]. Ghandhi, S. 2012: 75-84. [ 13 ]. Rehman, J. 2010: 813 [ 14 ] [ 17 ]. Greek Case Yearbook XII (1969) 1, at p.461. [ 18 ]. Rehman, J. 2010: 813 [ 19 ] [ 20 ]. See Ireland v. U.K. European Human Rights Reports, vol. 2 (1979-80), p. 79. [ 22 ]. Rehman, J. 2010: 813 [ 23 ] [ 24 ]. Selmouni v. France, 29 E.H.R.R. 403, 426 (2000). [ 25 ]. Selmouni v. France, 29 E.H.R.R. 403, 426 - 427(2000). [ 26 ]. Zheng v. Ashroft, 332 F.3d 1186, 1194 -97 (9th Cir. 2003) [ 27 ] [ 28 ]. Boulesbaa, A. 1999: 30-33. [ 29 ]. Boulesbaa, A. 1999: 54. [ 32 ]. Burgers, J. H., & Danelius, H. 1988: 12 [ 33 ] [ 37 ]. Rehman, J. 2010:Æmplaints procedur and lastly thN Convention against Torture and cope of thetional. indicidual complaints procedur and lastly th 820-21 [ 38 ] [ 39 ]. Rehman, J. 2010: 831-844 [ 40 ] [ 42 ]. Burgers, J. H., & Danelius, H. 1988: 1 [ 43 ]
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