Torture

Cecilia M. Bailliet

Torture as Jus Cogens

Inter-American Commssion of Human Rights:

An essential aspect of the right to personal security is the absolute prohibition of torture, a peremptory norm of international law creating obligations erga omnes.

Violations engage state responsibility and individual criminal responsibility

May constitute a crime against humanity

Convention Against Torture, Article 1

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.

UN Convention Against Torture, Article 2

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.

Convention Against Torture, Article 3

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.

For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

UN Committee Against Torture The Committee has made clear that where State authorities or

others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts.

Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non-State actors to commit acts impermissible under the Convention with impunity, the State’s indifference or inaction provides a form of encouragement and/or de facto permission. The Committee has applied this principle to States parties’ failure to prevent and protect victims from gender-based violence, such as rape, domestic violence, female genital mutilation, and trafficking.

UN GA 1975 Declaration

Torture constitutes an aggravated and deliberate form of cruel, inhuman and degrading treatment or punishment

International Covenant on Civil and Political Rights, Article 7

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.

See Also UDHR, Article 5 and the American Convention on Human Rights, Article 5

CCPR General Comment 20 5. The prohibition in article 7 relates not only to acts that cause physical pain but also

to acts that cause mental suffering to the victim. In the Committee's view, moreover, the prohibition must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure. It is appropriate to emphasize in this regard that article 7 protects, in particular, children, pupils and patients in teaching and medical institutions. 6. The Committee notes that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7. As the Committee has stated in its general comment No. 6 (16), article 6 of the Covenant refers generally to abolition of the death penalty in terms that strongly suggest that abolition is desirable. Moreover, when the death penalty is applied by a State party for the most serious crimes, it must not only be strictly limited in accordance with article 6 but it must be carried out in such a way as to cause the least possible physical and mental suffering. 7. Article 7 expressly prohibits medical or scientific experimentation without the free consent of the person concerned. The Committee notes that the reports of States parties generally contain little information on this point. More attention should be given to the need and means to ensure observance of this provision. The Committee also observes that special protection in regard to such experiments is necessary in the case of persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment. Such persons should not be subjected to any medical or scientific experimentation that may be detrimental to their health.

CCPR General Comment 20

11. In addition to describing steps to provide the general protection against acts prohibited under article 7 to which anyone is entitled, the State party should provide detailed information on safeguards for the special protection of particularly vulnerable persons. It should be noted that keeping under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment is an effective means of preventing cases of torture and ill-treatment. To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends. To the same effect, the time and place of all interrogations should be recorded, together with the names of all those present and this information should also be available for purposes of judicial or administrative proceedings. Provisions should also be made against incommunicado detention. In that connection, States parties should ensure that any places of detention be free from any equipment liable to be used for inflicting torture or ill-treatment. The protection of the detainee also requires that prompt and regular access be given to doctors and lawyers and, under appropriate supervision when the investigation so requires, to family members. 12. It is important for the discouragement of violations under article 7 that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.

14. Article 7 should be read in conjunction with article 2, paragraph 3, of the Covenant. In their reports, States parties should indicate how their legal system effectively guarantees the immediate termination of all the acts prohibited by article 7 as well as appropriate redress. The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective. The reports of States parties should provide specific information on the remedies available to victims of maltreatment and the procedure that complainants must follow, and statistics on the number of complaints and how they have been dealt with. 15. The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.

European Convention on Human Rights, Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Inhuman treatment is that which deliberately causes severe mental or psychological suffering, which, given the particular situation, is unjustifiable.

Treatment or punishment of an individual may be degrading if he is severely humiliated in front of others or he is compelled to act against his wishes or conscience

Consider duration of treatment, its physical and mental effects, sex, age and health of the victim, Moldovan Case ECHR

See also European Convention on Torture

Inhuman treatment

Includes degrading treatment- fear, anxiety and inferiority induced for the purpose of humiliating the victim and breaking his physical and moral resistance. Look at vulnerability of the person

Psychological and moral suffering, accompanied by psychic disturbance during questioning, may be deemed inhuman treatment

Torture is an aggravated form of inhuman treatment perpetrated with a purpose (to obtain confession, information, or to punish)

Examine intensity and duration of suffering inflicted to distinguish between torture and inhuman or degrading treatment, look at physical and mental effects on victim, and personal circumstances of the victim

ECHR Chahal Case 1996

Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct.

European Commission & Court of Human Rights

Commission: Greek Case, severe beatings to all parts of body constitutes torture and ill-treatment- The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which in the particular situation is unjustifiable. The word torture is often used to describe inhuman treatment which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punsihshment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his will or conscience.

Court: Aksoy v. Turkey, stripping detainee naked and suspending by his arms which were tied behind his back (Palestinaian hanging) constituted torture as it was deliberately inflicted to obtain information from the victim

Court: Aydin v. Turkey, Rape of woman over 3 days combined with use of blindfold, forcing her to parade nude in humiliating circumstances, interrogation, and constant state of physical pain and mental anguish amounted to torture.

ECHR Moldovan Case

According to the Court’s case law, ill-treatment must attain a minimum level of severity it it is to fall within the scope of Article 3. The assessment of this minimum is relative. It depends on all the circumstances of the case, such as duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.

ECHR Selcuk v. Turkey

Destruction of homes and property in front of elderly amounted to Article 3 violation.

Cairo Declaration on Human Rights in Islam Article 20

It is not permitted without legitimate reason to arrest an individual, or restrict his freedom, to exile or to punish him. It is not permitted to subject him to physical or psychological torture or to any form of humiliation, cruelty or indignity. Nor is it permitted to subject an individual to medical or scientific experimentation without his consent or at the risk of his health or of his life. Nor is it permitted to promulgate emergency laws that would provide executive authority for such actions.

African Charter on Human Rights Article 5

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.

Inter-American Convention to Prevent and Punish Torture (1985)

Article 2 For the purposes of this Convention, torture shall be understood to

be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose.

Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.

Inter-American Convention to Prevent and Punish Torture

Intentional act- physical and mental pain and suffering

Committed with a purpose or intentionally

Must be committed by a public official or by a private person at the instigation of the former.

Art. 5 states of war, threat of war, state of siege or emergency, domestic disturbance, strife, suspension of constitutional guarantees, domestic political instrability or other public emergencies or disasters shall not be invoked or admitted as justification of torture

Examine conduct of interrogations, conditions of detention, and treatment of vulnerable persons (children, women and non-nationals)

Inter-American Court of Human Rights

Any use of force that is not strictly necessary to ensure proper behavior on the part of the detainee constitutes an assault on the dignity of the person in violation of Article 5 of the American Convention

Exigencies of investigation and anti-terrorist struggle must not restrict the protection of a person’s right to physical integrity

Inter-American System- State Responsibility

Once a person falls into the custody of state agents, any inhumane treatment subsequently suffered by that person is presumed to be the responsibility of the state

The state must refrain from any use of force against prisoners that is not strictly necessary for the maintenance of security

State are subject to a particularly strict duty to conduct proper and thorough investigation of allegations of mistreatment of detainees and grant appropriate remedial measures

Inter-American System

Velasquez Rodriguez (Court) Mejia (Commission) (Look at Inter American Convention on Prevention,

Punishment and Eradication of Violence Against Women- Rape as torture) Cantoral Huamani (Court) Miguel Castro Castro (Court) Tibi (Court) Maritca Urrutia (Court) The Street Children (Court) Bayari (Court) Cesar (Court) Alfonso Martin del Campo Dodd (Court) Bamaca Velasquez (Court) Cantoral Benavides (Court) Goiburu (Court)- Operation Condor-systematic practie of torture and

arbitray dention of ”subversives” Brothers Gomez (Court)

Torture, cruel, inhuman and degrading treatment (offence to human dignity)

Humiliation is at essence

Holding detainees in painful and/or stressful conditions Deprivation of Sleep, Light or Food for Prolonged Periods Prolonged denial of sufficient hygiene or medical assistance Hanging from the air and jet spraying with cold water Solitary confinement Prolonged total isolation and sensory deprivation (can result in serious psychological

problems and suicide), prolonged incommunicado detention Keeping one in constant uncertainty in terms of space and time Threats to kill or torture relatives, being forced to help torture relatives or watch or

hear their torture Total abandonment Simulated execution Disappearance of relatives Secret detention, prolonged incommunicado detention Denial of access to lawyers or review of legal status through habeus corpus or

amparo proceedings to impartial judical entity Refoulement (Diplomatic assurances not respected) Exposure to Extreme Heat or Cold Exposure to Excessive Noise and Light Blindfolding and Hooding, Hooding and keeping detainee naked Asphyxiation by placing bags over the head (with or without gas) Suffocation by near drowning in water (submarine, waterboarding) Plugging the nose with limestone

Electric shock (telephone- electric shock to the ear) to any part of the body Suspension by feet, hands, testicles, knees hands and ankles tied together and

person hangs from iron bars until he faints Humiliating sexual harassment Rape or other form of Sexual violence Insertion of objects into the orifices of the body (tearing of perineum) Sexual mutilation Forced abortion Forced Miscarriage Virginity testing Domestic Abuse Excessive Physical Abuse Beating- blows to the feet, blows with rifle butt or bludgeons, lashing that causes

wounds, internal bleeding, fractures, cranial traumatism Falanga hitting the feet with a stick or metal instrument that provokes a long term

syndrome (insensitivity of the soles of the feet) without apparent wounds on the feet Extraction of nails or teeth Burns (cigarette, electrical, wax, boiling oil, ignited cotton mixed with petrol placed

between toes) Parilla- attachment of the prisoner to a grill of burning coal Amputation or threat of removal of body parts Caning or flogging Deprivation of Clothing Stripping Detainees Naked Threatening detainees with dogs Administration of drugs, e.g. to cause vomiting, to cause asphyxia by paralyzing the

respiratory muscles, neuroleptics to make the subject apathetic Mock burial, Mock execution Force feeding (not out of medical necessity) Nevmerzhitsky v. Ukraine ECHR

UN Rapporteur on Torture Anti-terrorism measures Children Convention against Torture /Optional Protocol to CAT Cooperation with regional organisations Corporal punishment Corporal punishment of children Cruel, inhuman and degrading treatment Death penalty in light of the prohibition of cruel, inhuman and degrading punishment Diplomatic assurances Disabilities (persons with) Disappearance Drug policies and human rights Effective investigation of torture and the role of forensic expertise in combating impunity for torture Evidence extracted by torture Gender-specific forms of torture Guarantees for persons deprived of their liberty HIV/AIDS and torture Human rights defenders Impunity Incommunicado detention International Criminal Court Intimidation Mechanisms to visit places of detention/Optional Protocol to CAT National standards Non-refoulement Poverty Prevention and transparency Psychiatric institutions, persons with disabilities Racism Reparations Responsibility Role of medical personnel and of forensic expertise Sexual minorities Solitary confinement Torture equipment /Trade in torture tools Universal jurisdiction Victims Visit methodology Women (Strengthening the protection of women from torture)

UN Rapporteur on Torture Country Visits

Kazakhstan, Uruguay, Azerbaijan Brazil,Cameroon Chile China Colombia Georgia Denmark Equatorial Guinea Indonesia Jordan Kenya Mexico Moldova Mongolia Nepal Nigeria Pakistan Paraguay Romania Russian Federation Spain Sri Lanka Togo Turkey Uzbekistan Venezuela

International Humanitarian Law

Prohibition of Torture, cruel or inhuman treatment and outrages upon personal dignity

Common Article 3 Geneva Conventions Geneva I, Articles 12, 50 Geneva II, Articles 12, 51 Geneva III, Articles 17, 87, 89, 130 Geneva IV, Articles 32, 147 ICC Statute Articles 8(2) Protocol I, Articles 75(2) Protocol II Articles 4(2)

ICRC Customary International Humanitarian Law

Rule 90 Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited

ICTY Furundzija Case, Kunarac Case- customary nature of the prohibition of torture in international and non-international armed conflicts

ECHR Ireland v. UK

Wall-Standing- stress position

Hooding

Subjection to Noise

Deprivation of Sleep

Deprivation of Food and Drink

Court finds this to amount to ”inhuman and degrading treatment”

ECHR Judge O’Donoghue, Ireland v. UK, dissent

One is not bound to regard torture as only present in a mideval dungeon where the appliances of rack and thumbscrew or similar devices were employed. Indeed in the present-day world there can be little doubt that torture may be inflicted in the mental sphere.

ECHR Judge Evirgenis, Ireland v. UK

The Court’s interpretation in this case seems also to be directed to a conception of torture based on methods of inflicting suffering which have already been overtaken by the ingenuity of modern techniques of oppression. Torture no longer presupposes violence, a notion to which the judgment refers expressly and generically. Torture can be practised-and indeed is practised- by using subtle techniques developed in multidisciplinary laboratories which claim to be scientific. By means of new forms of suffering that have little in common with the physical pain caused by conventional torture it aims to bring about, even if only temporarily, the disintegration of an individual’s personality, the shattering of his mental and psychological equilibrium and the crushing of his will. I should very much regret it if the definition of torture which emerges from the judgment could not cover these various forms of technologically sophisticatd torture. Such an interpretation would overlook the current situation and the historical prospoects in which the European Convention on Human Rights should be implemented.

US DOJ 2002 Memo on Standards of Conduct for Interrogation

Torture: it must inflict pain that it is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture it must result in significant psychological harm of significant duration, e.g. lasting for months or even years. We can conclude that mental harm also must result from on one of the predicate acts listed in the statute, namely: threats of imminent death, threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture, use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality, or threatening to do any of these things to a third party.

Institutionalization of Torture

US DOD Techniques Category 2 Guantanamo 2002

Stress positions (like standing) max. 4 hours

Isolation up to 30 days

Use of false documents of reports

Deprivation of light and auditory stimuli

Hooding

20 hour interrogations

Removal of comfort items (including religious items)

Removal of clothing

Denial of hot rations

Forced grooming (shaving of facial hair)

Induced stress via phobia (fear of dogs)

US DOD Category 3 Guantanamo 2002

Use of scenarios to convince inmate that death or severely painful consequences are imminent for him and/or his family

Exposure to cold water or weather

Use of a wet towel and dripping water to induce the misperception of suffocation

Use of mild, non-injurious physical such as grabbing, poking in the chest, light pushing