introduction to the article 5 initiative and the key instruments for promoting freedom from torture...

Introduction to the Article 5 Initiative and the key instruments for

promoting freedom from torture and other ill treatment

© The Article 5 Initiative, 2013

The Article 5 Initiative

• Our name comes from: – Article 5 of the Universal Declaration of Human Rights – Article 5 of the African Charter on Human and Peoples’ Rights

• A5I works for the prevention and eradication of torture and other cruel, inhuman and degrading treatment in Africa

• A5I supports African institutions to meet the standards set by the United Nations Convention against Torture (UNCAT) and the African Charter on Human and Peoples’ Rights (AChHPR)


A5I cont.

• Methods: research and the development of Domestication & Implementation Packages (DIPs)

• 6 post-conflict and developing countries: Burundi, Kenya, Mozambique, Rwanda, South Africa, Uganda

• Collaboration of 4 organisations: the Gender, Health & Justice Research Unit, the Civil Society Prison Reform Initiative, African Policing Civilian Oversight Forum, Human Rights Implementation Centre

• Supported by the European Union through the European Instrument for the Development of Human Rights


A5I cont.

• The majority of African States have ratified UNCAT but little has been achieved in practice

• UNCAT does not specify how to prevent and eradicate torture and other ill treatment

• UN Standard Minimum Rules for the Treatment of Prisoners are out of date

• The African Charter and the Robben Island Guidelines (RIG) go some way to addressing this

• Compliance is a problem


A5I cont.

• The ACHPR Special Rapporteur on Prisons and Conditions of Detention, and the Committee for the Prevention of Torture in Africa (CPTA) promote adherence to UNCAT and RIG, but

• They lack the necessary resources and tools to properly monitor implementation

• The 6 A5I States have made varied progress in strengthening the rule of law, developing good governance and oversight structures, and basic criminal justice reform


The DIPs

• A5I’s Domestication & Implementation Packages (DIPs) contain practical, context-specific norms, guidelines and reporting tools

• DIPs can be used by government and civil society to guide the implementation of methods of preventing and eradicating torture and other ill treatment

• Two main objectives:– Ensuring compliance (State Parties)– Monitoring compliance (NHRIs, CPTA, CSOs)


The DIPs cont.

• Beneficiaries: people deprived of their liberty, who are at risk of torture and other ill treatment

• Focus on prisons and police holding cells

• Applicable to other places of detention (e.g. repatriation centres, psychiatric institutions, juvenile detention centres, etc.)


A5I targets …

• Special mechanisms under ACHPR and other regional actors (e.g. UN agencies)

• State organs and institutions

• National Human Rights Institutions and national monitoring mechanisms

• Civil society organisations and NGOs working with, or advocating for the rights of, victims of torture

• Victims of torture and other ill treatment


The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

“No one shall be subjected to torture or to cruel, inhuman and degrading

treatment or punishment”

Article 5 of the Universal Declaration of Human Rights


INTERNATIONAL INSTRUMENTS

1948 Universal Declaration of Human Rights

1957 UN Standard Minimum Rules for the Treatment of Prisoners

1982 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

1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force 1987)

2002 Optional Protocol to UNCAT (entered into force 2006)


The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment

• Adopted by the United Nations General Assembly on 10 December 1984

• Came into force on 26 June 1987 (International Day in Support of Victims of Torture)

• 150 parties, 78 signatories

• Monitoring and reporting:– UN Committee against Torture (CAT or “the Committee”): an international

monitoring body based on Art 17 of UNCAT– UN Special Rapporteur– ACHPR Committee for the Prevention of Torture in Africa (CPTA)– ACHPR Special Rapporteur on Prisons and Conditions of Detention in Africa

(SRP)– National Human Rights Institutions (NHRIs)

Summary of UNCAT


ARTICLE 1Definition of Torture

‘… 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.’


ARTICLE 2:State Measures

• Requires States to take effective legislative, administrative, judicial or other measures to prevent torture in any territory under their jurisdiction

• Excludes exceptional circumstances as a justification for torture (state of war, threat of war, internal political instability, public emergency)

• Excludes superior orders as a justification for torture


ARTICLE 3 Non-Refoulement and Extradition

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds to believe that he/she would be subjected to torture

ARTICLE 4Criminalisation and punishment

Each State Party must ensure that all acts of torture, attempts to commit torture, and complicity or participation in torture are offences punishable by law


ARTICLE 5Jurisdiction and Nationality

• Each State Party shall establish its jurisdiction over offenses relating to torture when they are committed:– in any territory under its jurisdiction– on board a ship or aircraft registered in that State– when the alleged offender is a national of that State; and – when the victim is a national of that State, if appropriate

• Each State Party shall also establish its jurisdiction in cases where the alleged offender is in a territory under its jurisdiction and it does not extradite


ARTICLE 6Custody and Preliminary Inquiry

Any State Party in whose territory a person alleged to have committed, attempted or participated in torture is present, shall:

– take this person into custody– make a preliminary inquiry into the facts– make a notification of custody if the person is not a national of that State

ARTICLE 7Prosecution and Fair Treatment

If the State Party does not extradite the alleged offender, it must submit the case to competent authorities for prosecution. The alleged offender shall be guaranteed fair treatment at all stages of the proceedings


ARTICLE 8Extradition

• Torture, attempted torture, or participation in torture are deemed extraditable offences in any extradition treaty existing between State Parties

• The Convention may be considered a legal basis for extradition if no extradition treaty exists

ARTICLE 9Mutual Judicial Assistance

State Parties shall provide each other with the greatest degree of judicial assistance possible , including the supply of all of the evidence at their disposal necessary for proceedings


ARTICLE 10Training and Instructions

Each State Party must ensure that education and information regarding the prohibition against torture are fully included in the training and instructions of:

– civil and military law enforcement personnel

– medical personnel

– public officials

– any persons involved in the custody, interrogation, or treatment of any individual subjected to arrest, detention, or imprisonment


ARTICLE 11Systematic Review

Each State Party must keep under systematic review:– interrogation rules and instructions– methods & practices– custody & treatment of arrestees– detainees & prisoners

ARTICLE 12Prompt and Impartial Investigation

Each State Party shall ensure that its authorities proceed with a prompt and impartial investigation wherever there are grounds to believe that an act of torture has been committed in a territory under its jurisdiction


ARTICLE 13Complaints

Each State Party shall ensure that any individual who alleges that he/she has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his/her case promptly examined by, competent authorities

ARTICLE 14Redress, 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


ARTICLE 15Prohibition of the use of evidence obtained through torture

ARTICLE 16 Cruel, inhuman or degrading treatment or

punishment (other than torture)

Specific reference to State obligations in relation to Articles 10, 11, 12 & 13, with the substitution for references of torture to other forms of cruel, inhumane and degrading treatment


ARTICLE 17Committee against Torture

Establishes the Committee against Torture:– ‘ten experts of high moral standing and recognised

competence in the field of human rights’– elected to 4-year terms– equitable geographical distribution

ARTICLE 18Committee against Torture

Development of rules of procedure for the Committee


ARTICLE 19State Party Reporting

• States’ reports to be submitted to the Committee every 4 years through the Secretary-General of the UN– Reports include measures taken by the State Party to give effect to their

obligations under the Convention• Committee responds to the State Report with general comments by the Committee

ARTICLE 20Indication of Torture in Territory of State Party

If there is evidence of torture being systematically practiced by a State Party, the Committee will invite the State Party to cooperate in the examination of this information and to submit observations

– Confidential inquiries may be made by the Committee– Visits to the country concerned may also take place– These proceedings are confidential


United Nations Committee against Torture


Committee against Torture (CAT)

• Monitors States’ compliance with their obligations under UNCAT, using three different mechanisms:– State reporting– Inquiries– Individual and State communications

• Composed of 10 independent experts acting in their personal capacity, serving a 4-year, renewable, term


Inquiry

• Article 20 of UNCAT authorises CAT to conduct an inquiry into allegations of systematic torture practiced in a State Party

• Inquiries can be based on information received from other States, UN agencies, civil society, individuals or any other source

• If the State agrees, CAT will visit the country to assess the situation

• The entire proceedings and the final report are confidential, but the State Party can agree that a summary of the report be published in CAT’s annual report


Communications

• Articles 21 and 22 of UNCAT mandate CAT to receive communications from other State Parties or individuals, claiming that a State Party is not complying with its obligations under UNCAT

• Opt-in system: State Parties have to make a declaration accepting CAT’s competence to hear communications

• Communications enable CAT to provide further interpretation of the rights and obligations contained in UNCAT


Communications cont.

• The communications procedures are confidential• CAT will rule on whether a violation of UNCAT took place• All domestic remedies must first have been exhausted, and

the matter cannot be under investigation by another international body

• The outcome of the inter-State communication is confidential

• CAT decides whether the decision on an individual communication is made public

• Effective system of follow-up, both by CAT and the State Party, is essential


CAT’s General Comments

• General Comments are documents in which CAT provides its interpretation of articles of UNCAT

• They provide authoritative guidelines on how UNCAT should be interpreted, but are not binding on State Parties

• CAT has published three general comments


General Comments cont.

• General Comment No. 1 (1996): on refoulement and communications procedure

• General Comment No. 2 (2004): on implementation of article 2 of UNCAT

• General Comment No. 2 provides a wide range of clarifications on the extent of States’ obligations under UNCAT

• General Comment No. 3 (2012): on the implementation of article 14 of UNCAT (redress for victims of torture) by State Parties


UN Special Procedures

• The UN Human Rights Council has established ‘Special Procedures’ to monitor and address specific human rights situations

• The Special Rapporteurs are individuals, while the Working Groups are composed of several members

• Special Procedures are not attached to a specific UN convention, but have a broader thematic mandate

• State Parties are encouraged to issue ‘standing invitations’ to Special Procedures, which is a permanent open invitation to visit the country and examine a particular human rights situation


UN Special Procedures cont.

Special Procedures have a broad promotional and oversight mandate, which includes:– Conducting country visits– Conducting investigations into particular human rights

situations– Sending urgent appeals to State Parties to address a

particular situation– Receiving individual complaints, and referring the

complaint to other institutions and organisations– Promoting the prevention and elimination of human

rights abuses


UN Special Procedures cont.

• Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

• Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions

• Special Rapporteur on the Promotion of Truth, Justice, Reparation & Guarantees on Non-Recurrence

• Special Rapporteur on the Situation of Human Rights Defenders

• Special Rapporteur on the Independence of Judges And Lawyers

• Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism

• Working Group on Arbitrary Detention

• Working Group on Enforced or Involuntary Disappearances


Article 5 of the African Charter & the Robben Island Guidelines


Article 5 of the African Charter on Human and Peoples’ Rights

“Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”


Other Articles of the African Charter relevant to the prohibition and prevention of torture and

other ill treatment

• Article 4: Right to respect for life and integrity of the person

• Article 6: Right to liberty and security of the person• Article 7: Right to have “cause heard” including: right

to appeal; right to be presumed innocent; right to a defence; right to be tried within reasonable time; no retrospective criminal liability

• Article 18: protection of the rights of women and children including the right not to be discriminated against


The Robben Island Guidelines

• Elaborates on the general obligation to prohibit and prevent torture and other ill treatment under Article 5 of the African Charter

• Drafted in February 2002 at an expert workshop in South Africa

• Adopted by the African Commission on Human and Peoples’ Rights in October 2002

• Special Mechanism established in 2004 to monitor implementation

• In 2009 ‘Follow-up Committee’ becomes ‘Committee for the Prevention of Torture in Africa’ (CPTA)


Overview of RIG

• Only African instrument focused solely on the prohibition and prevention of torture and other ill treatment

• Provides a framework for national action• Three main parts:– Prohibition– Prevention– Responding to the needs of victims


Part 1: Prohibition

Main focus:• Ratification and implementation of existing

international and regional instruments • Cooperation with international and regional

mechanisms• Criminalisation of torture in accordance with UNCAT• Non-refoulement• Combating impunity• Establishment of complaints and investigation

procedures


Criminalisation

• Articles 4 to 14 of RIG deal with aspects related to the criminalisation of torture

• Mirror obligations contained within UNCAT• Also contain elements not found within the text of UNCAT:

– Gender-related forms of torture and other ill treatment (article 5 RIG)

– Torture and other ill treatment of ‘young persons’ (article 5 RIG)

– A call for the prohibition and prevention of the use, production and trade of ‘torture equipment’ and abuse of any other equipment or substance (article 14 RIG)


Combating Impunity and Establishing Effective Complaints and Investigation Procedures

• Combating impunity is essential to combating torture and other ill treatment

• Article 16 of RIG calls on States to ensure that those responsible for torture or other ill treatment are subject to an effective legal process

• Central to combating impunity is the need for effective complaints and investigation procedures (articles 17 to 19 of RIG)


Part 2: Prevention

Main focus:• Safeguards for all persons deprived of their

liberty• Conditions of detention• Establishment of oversight mechanisms• Training on human rights and developing

codes of conduct• Public education and awareness-raising


Safeguards for persons deprived of their liberty

• Articles 20 to 32 set out essential safeguards for persons deprived of their liberty

• Many relate to the pre-trial detention context when the risk of being subjected to torture and other ill treatment is high

• Many restate or make reference to other international instruments such as UNCAT, ICCPR, UN Body of Principles and UN Standard Minimum Rules

• These safeguards should form the essential ‘backbone’ to any national framework to prevent torture and other ill treatment


Conditions of detention

• Articles 33 to 37 set out measures States should take to ensure that persons are held in conditions of detention that are in conformity with international standards

• These provisions are linked to the right to the inherent dignity of persons – Article 5 of the African Charter and Article 10 of the ICCPR


Mechanisms of Oversight

• Independent oversight of the treatment of detainees and conditions of detention is an effective measure to prevent abuse

• An independent judiciary is essential to ensure effective oversight and to combat impunity

• Independent and accessible complaint mechanisms must be established and supported

• States have a responsibility to ensure that impartial and thorough investigations are carried out


Training and Empowerment

• Raising awareness of human rights is an essential tool and safeguard against abuse

• Human rights training should be included in the regular education curricula of all law enforcement personnel; security personnel; judges; lawyers; medical personnel, etc.

• Training should ensure that issues relating to ‘vulnerable groups’ are adequately reflected

• Codes of conduct should be developed and promoted• Public education initiatives on the rights of detainees

should be encouraged and supported


Part 3: Responding to the needs of victims

Main focus:• Protection of victims and witness from

violence and intimidation• Provision of reparation for victims• Recognition that families and communities

affected by torture and other ill treatment are also victims


The African Commission on Human and People’s Rights and

its Special Mechanisms


African Commission on Human and People’s Rights

Monitors States’ compliance with their obligations under the African Charter using a range of procedures: • Periodic State Reporting• Individual and State Communications• promotional and fact-finding missions• Special Mechanisms


State Reporting

• Article 62 of the African Charter requires State Parties to submit a report to the African Commission every 2 years on the implementation of the African Charter

• States should engage fully with the State Reporting process and develop procedures to follow up on observations

• Civil society organisations and NHRIs have a role to play in raising awareness of the State Report and following up on observations from the African Commission


Communications

• Articles 47-59 of the African Charter provide for State Communications and Individual Communications

• Avenue of complaint once domestic remedies exhausted

• Enables African Commission to develop own interpretation of Article 5 of the African Charter

• Effective system of follow up at the regional and national level is essential


Promotional and Fact-finding Missions

• The African Commission is able to conduct missions to countries in accordance with articles 45(1)(a) and 46 of the African Charter

• Part of their promotional and protective mandate

• Provides an opportunity to develop constructive dialogue


Special Mechanisms

• Established by the African Commission as way to assist them to implement their mandate

• Special Mechanisms that consider issues relating to torture and other ill treatment:– Committee for the Prevention of Torture in Africa

(CPTA)– Special Rapporteur on Prisons and Conditions of

Detention in Africa (SRP)


Committee for the Prevention of Torture in Africa (CPTA)

Broad mandate to:• organise seminars to disseminate the Robben Island

Guidelines to national and regional stakeholders• develop and propose to the African Commission

strategies to promote and implement the Robben Island Guidelines at the national and regional levels

• promote and facilitate the implementation of the Robben Island Guidelines within member States

• make a progress report to the African Commission at each ordinary session.


Special Rapporteur on Prisons and Conditions of Detention in Africa (SRP)

Broad mandate to:• examine the state of the prisons and conditions of detention

in Africa and make recommendations with a view to improving them

• advocate adherence to the African Charter and international human rights norms and standards concerning the rights and conditions of persons deprived of their liberty

• examine the relevant national law and regulations as well as their implementation and make appropriate recommendations on their conformity with the African Charter and with international law and standards


SRP cont.

Broad mandate to:• make recommendations on communications• propose appropriate urgent action• conduct studies into conditions or situations

contributing to human rights violations of persons deprived of their liberty and recommend preventive measures and co-ordinate activities with other relevant Special Rapporteurs and Working Groups of the African Commission and United Nations


Overview of A5I DIPs and methodology


Introduction

• African States have ratified the established international instruments, including UNCAT and the African Charter, but monitoring has been difficult

• Standards and guidelines that may be achievable in one country may be operationally unrealistic and unattainable in others


The problem

• There are several barriers to preventing and eradicating torture, e.g.:– infrastructure at detention facilities – the absence of legislation criminalising torture – lack of mainstreaming attention to the prevention and eradication of

torture– the need for systematic and effective monitoring and reporting – the need for capacity-building of civil society organisations in order for

them to render support services– the competing agendas in law reform and pressure on governments to be

‘tough on crime and criminals’• There is a need to develop a ‘package’ of operational guidelines that

will support institutions to prevent and eradicate torture and other ill treatment in a manner that is not resource intensive, and suitable to the African context.


Methodology overview

• To develop a reporting methodology appropriate to the African indigenous human rights contexts for – (a) States to implement and monitor compliance with UNCAT &

RIG – (b) for ACHPR to measure States’ compliance with their

obligations under the African Charter – (c) civil society and oversight institutions to record and report on

allegations of torture and other ill treatment effectively• To address this, the project developed Domestication and

Implementation Packages (DIPs) for each country based on the provisions of UNCAT and Robben Island Guidelines.


The purpose of a DIP is to ….– Summarise the key provisions of a thematic area in UNCAT & RIG (e.g.

the criminalisation of torture) in a Guidance Note. The Guidance Note consists of generic comments based on international law, is applicable to all States and presents in plain language the provisions and obligations in a general manner

– Develop a Checklist that can be used to monitor and verify progress towards compliance with UNCAT & RIG

– Provide a Reporting Tool to be used by the State, oversight institutions and civil society to form the basis for reports submitted to the treaty monitoring bodies (i.e. CAT and ACHPR)

– Based on the Guidance Note, Checklist and Reporting Tool, each country should develop Guidelines for reform and improvement of compliance

– The Checklist and Reporting Tool are combined into 1 document

• Seen together, the components of a DIP should provide as complete as possible a description of a duty imposed by UNCAT and RIG


Methodology overview cont.

Guidance note Checklist Reporting

tool Guidelines

Baseline


The four duties

• UNCAT and RIG impose four broad duties on States:– The duty to combat impunity– The duty to prevent torture and other ill

treatment– The duty to provide redress to victims – The duty to report to CAT and ACHPR

• Each of the duties give rise to a number of obligations …


Conclusion

• The A5I research team developed an overview of the general requirements

• Through in-country consultation, stakeholders then developed these further to ensure that the contents are meaningful, in the local context

• Using the DIPs, each country should now develop its own guidelines for reform and improvement of domestic compliance

introduction to the article 5 initiative and the key instruments for promoting freedom from torture...

Documents

ill treatment slide

torture uncat

prevention of torture

eradicating torture

eradication of torture

risk of torture

peoples rights a5i

african institutions