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The international prohibition of torture and other cruel, inhuman

The international prohibition of torture and other cruel, inhuman or degrading treatment or punishment. ________________________________________________________________________ Therese Maria Rytter, University of Lund, December 2013

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The international prohibition of torture and other cruel, inhuman

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  1. The international prohibition of torture and other cruel, inhuman or degrading treatment or punishment ________________________________________________________________________ Therese Maria Rytter, University of Lund, December 2013 ________________________________________________________________

  2. AGENDA 1) The prevalence of torture 2) The prohibition of torture and CIDT under international law 3) UN Convention against Torture 4) Optional Protocol to the UN Convention against Torture 5) Global challenges

  3. Prevalence of systematic and widespread torture Source: UN Human Rights Committee, UN Committee against Torture, UN Special Rapporteur on Torture and UN Human Rights Commission country mechanisms, cf. Redress Given that UN bodies have not systematically analyzed the degree of torture in every country, the countries highlighted in this map is somewhat incomplete.

  4. Prevalence of torture and other ill-treatment Source Amnesty International, cf. Redress

  5. Status of ratification ofthe UN Convention against Torture Global Status: 154 States parties (December 2013)

  6. II. The prohibition of torture and other cruel, inhuman or degrading treatment or punishment under international law

  7. Prohibition of tortureunder international law I. General international conventions - International Covenant on Civil and Political Rights (1966) - Geneva Conventions I-IV (1949) and the Additional Protocols (1977) II. Specific conventions against torture - UN Convention against Torture (1984) and the Optional Protocol (2002) - European Convention for the Prevention of Torture (1987) - Inter-American Convention for the Prevention and Punishment of Torture (1985) III. Regional conventions - European Convention of Human Rights (1950) - Inter-American Convention on Human Rights (1969) - African Charter on Human Rights (1981) - Arab Charter on Human Rights (1994) IV. Statutes of international criminal courts - Former Yugoslavia (1993) and Rwanda (1994) - Rome Statute of the International Criminal Court (1998)

  8. Prohibition of torture under international human rights law 1)General prohibition of torture (CCPR art. 7 and ECHR art. 3) No one shall be subjected to torture or to other cruel, inhuman or degrading treatment or punishment. 2) Specific prohibition of torture (CAT art 2) No exceptional circumstances whatsoever may be invoked as a justification of torture, including a) a state of war or a threat of war b) internal political instability or other public emergency c) an order from a superior officer or public authority

  9. Definition of tortureUN Convention against Torture 1) Torture is an intentional act (or omission) • Infliction of severe pain or suffering, physical or mental 3) For purposes of obtaining a confession or information, punishing, intimidating or coercing the victim/third person, or for any other reason based on discrimination • Inflicted by a public official or with his consent or acquiescence

  10. Definition of cruel, inhuman or degrading treatment or punishment International conventions: - No definition Jurisprudence from the UN Committee against Torture - Inhuman: Does not require a specific purpose - Degrading: Does not require severe pain or suffering or a specific purpose Jurisprudence from the European Court of Human Rights - Inhuman: If the act is intentional (optional), lasting hours (optional), and/or if the act causes bodily harm or intense physical/mental suffering - Degrading: If the act gives rise to a feeling of fear or inferiority, which may humiliate the victim or break down his physical or moral resistance

  11. When does an act constitute torture or inhuman treatment? Individual assessment of the concrete circumstances in each case Decisive elements: 1) Intensity 2) Duration 3) Physical and mental consequences 4) The victim’s gender, age and health condition

  12. Physical torture (examples) • Beatings (e.g. Falanqa) • Suspension in painful positions (Palestinian hanging) • Suffocation (e.g. Waterboarding) • Electric shocks • Sexual torture and rape • Burns (iron, cigarettes, etc.) • Extraction of nails and teeth • Incarceration in tiny cells/cages for days • Beatings (e.g. Falanqa) • Suspension in painful positions (Palestinian hanging) • Suffocation (e.g. Waterboarding) • Electric shocks • Sexual torture and rape • Burns (iron, cigarettes, etc.) • Extraction of nails and teeth • Incarceration in tiny cells/cages for days

  13. Mental torture (examples) • Threats of execution • Simulated executions • Threats of torture or killing of the victims or his/her family • Forced presence at the torture of others • Application of mind altering substances or practices, which are aimed at profoundly disrupting the victim’s senses or personality • Threats of execution • Simulated executions • Threats of torture or killing of the victims or his/her family • Forced presence at the torture of others • Application of mind altering substances or practices, which are aimed at profoundly disrupting the victim’s senses or personality

  14. III. UN CONVENTION against torture and other cruel, inhuman or degrading treatment or punishment

  15. Main obligations 1) State obligations to prevent torture 2) State obligations to criminalize torture and to prosecute and punish perpetrators 3) State obligations to provide remedies and reparation to victims of torture

  16. General obligation to prevent torture and other ill-treatment (Art. 2 & 16) Each State shall take effective legislative, administrative, judicial or other measures to prevent torture and other CIDT

  17. Principle of non-refoulement (Art. 3) No State party may expel or extradite a person to another State, if there are substantial grounds for believing that he would be in danger of being tortured

  18. Education of law enforcement personnel (Art. 10) Each State party shall ensure that education and information about the prohibition against torture are included in the training of law enforcement personnel Each State party shall ensure that education and information about the prohibition against torture are included in the training of law enforcement personnel

  19. Criminalisation of torture (Art. 4) Each State party shall ensure that all acts of torture are offences under its criminal law, including attempts, complicity, participation, and are punishable by appropriate penalties

  20. Jurisdiction (Art. 5) Each State party shall establish jurisdiction over torture offences in the following cases: 1) When torture is committed in any territory under the State’s jurisdiction 2) When the alleged offender is a national of that State 3) When the victim is a national of that State, if the State considers it appropriate Each State party shall establish jurisdiction over torture offences in the following cases: 1) When torture is committed in any territory under the State’s jurisdiction 2) When the alleged offender is a national of that State 3) When the victim is a national of that State, if the State considers it appropriate

  21. Universal Jurisdiction (Art. 5) Each State party shall establish universal jurisdiction over torture offences ”Either extradite or prosecute” States parties shall ensure that persons suspected of torture are prosecuted, if present on the state territory, no matter where the torture has taken places or the nationality of the alleged offender

  22. Investigation (Art. 12) Each State party shall ensure that a prompt and impartial investigation is initiated, whenever there is reasonable ground to believe that torture has been committed on its territory Each State party shall ensure that a prompt and impartial investigation is initiated, whenever there is reasonable ground to believe that torture has been committed on its territory

  23. Prosecution (Art. 7) Each State party shall prosecute all persons under its jurisdiction who are alleged to have committed an act of torture

  24. Evidence in court (Art. 15) Each State party shall ensure that any statement, which is established to have been made as a result of torture, shall not be invoked as evidence in any legal proceedings Professor of Forensic Pathology Gudjonsson: “The greater the pressure on suspects, the greater the risk of false confessions”. Each State party shall ensure that any statement, which is established to have been made as a result of torture, shall not be invoked as evidence in any legal proceedings “The greater the pressure on suspects, the greater the risk of false confessions”, Prof. of Forensic Pathology Gudionsson.

  25. Reparation to victims (Art. 14) Each State party shall ensure in its legal system that victims of torture obtain redress and have an enforceable right to fair and adequate compensation and rehabilitation Each State party shall ensure in its legal system that victims of torture obtain redress and have an enforceable right to fair and adequate compensation and rehabilitation

  26. UN Committee against Torture: Monitoring compliance with the Convention - International expert committee (Art 17-18) - Periodic state reporting (Art 19) - Inquiries procedure, if suspicion of systematic torture (Art 20) - Inter-state complaints (Art 21) - Individual complaints (Art 22) - International expert committee (Art 17-18) - Periodic state reporting (Art 19) - Inquiries procedure, if suspicion of systematic torture (Art 20) - Inter-state complaints (Art 21) - Individual complaints (Art 22)

  27. IV. OPTIONAL PROTOCOLto the UN Convention against Torture

  28. International inspections of prisons, police stations, military camps, etc. Objective: OPCAT establishes a system of regular visits to places of detentions in order to prevent torture, etc. The visits are conducted by independent international and national bodies International: Sub-Committee on Prevention of Torture (25 experts) Mandate: Visit places of detention and make (confidential) recommendations to the States about how to strengthen the protection against torture and improve conditions.

  29. National inspections of prisons, police stations, military camps, etc. National: Each State party establishes a new or designates one or more existing National Preventive Mechanisms Mandate: - Visit places of detention - Examine the treatment of persons deprived of liberty - Recommend to the State how to strengthen the protection against torture and improve conditions of detention - Come up with proposals on draft laws or existing legislation

  30. V. Global Challenges 1) Shift of paradigm after 11 September 2001: Terrorism and counter-terrorism 2) Organised crime and human trafficking 3) Inhuman prison conditions 4) Arbitrary detention and enforced disappearances Global responses? • From standard-setting and monitoring to implementation (protection, enforcement and prevention) • World Court for Human Rights? 1) Shift of paradigm after 11 September 2001: Terrorism and counter-terrorism 2) Organised crime and human trafficking 3) Inhuman prison conditions 4) Arbitrary detention and enforced disappearances Global responses? • From standard-setting and monitoring to implementation (protection, enforcement and prevention) • World Court for Human Rights?

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