Human Rights: A look at torture PDF

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DEFINING TORTURE: BRIDGING THE GAP BETWEEN RHETORICAND REALITYTorture: It is described as a ius cogens norm that cannot be set aside. It is forbidden in international law. Article 2: (2) Even a state of war, political or civil unrest cannot be used as a justification of torture. (3) An order from a ...

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DEFINING TORTURE: BRIDGING THE GAP BETWEEN RHETORIC AND REALITY Torture: It is described as a ius cogens norm that cannot be set aside. It is forbidden in international law. Article 2: (2) war, political or civil unrest cannot be used as a justification of torture.

Even a state of

(3)

An order from

a superior officer cannot be used as a justification of torture

 ‘Cruel assault upon the defenceless’ with an aim to destroy a human’s dignity, personality, identity and soul’ 1984 United Nations Conventions against Torture and Other Cruel Inhuman, or Degrading Treatment or Punishment: Article 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 .

Torture is a tool of state policy that remains ingrained in law enforcement. Article 2:

take legislative, administrative, judicial or any other measure to ensure that

acts of torture are prevented.

Article 4:

Ensure torture is an offence under national criminal law

Compulsory Universal application: Apply to all the states of the world. Therefore, acts of torture committed in a non-signatory state can be punishable within a state party to the convention.

Article 3:

No state shall extradite any person if they are substantial grounds that the

person will be subjected to torture in the State requesting the extradition.

Article 15:

Evidence obtained through torture is inadmissible unless it’s used as

evidence by the victim to show the statement/ evidence was attained through torture

1. Intention to inflict This requires that the person inflicting the harm, should have intended to inflict pain and cause harm. If they did not, it won’t constitute torture. ICTY and ICTR retain this requirement. The European Court of Human Rights (ECHR) retains the same and has shifted the burden of proof to the government rather than the victim. Use of the pen case. In the case of Selmouni v France; if an individual is taken into police custody in good health and leaves injured, it is upon the government to provide a plausible explanation as to why/ how those injuries occurred. Morales v Guatemala: Having seen evidence of infliction of harm on the autopsies of the body, the Inter American Court of Human Rights concluded that the state (officials) had committed torture. No intent was needed based on circumstantial evidence. Liberal interpretation of intent among international courts. 2. Severe pain and suffering

There is no definition for severe. Hence courts tends to have a hierarchy. The most severe form of pain and suffering is torture, after which comes cruel inhumane and degrading treatment Ireland V UK: Establishing an intensity test: use of hooding, standing, deprivation of sleep and food, subjection to noise to a long period of time to terrorist suspects is not torture but CIDT. Z and Others v UK: When assessing where an act falls in this hierarchy certain aspects are looked at: (usually subjective to each case) such as age (to protect children against severe harm), sex, duration of harm, culture, physical and mental effect of the victim. Objective standards: the nature of the act, the purpose of the act and consistency of the acts The 1984 Convention on Torture: criminalizes torture but not CIDT. Therefore, states prosper on the above ambiguity of severity in as long as they can establish it falls under CIDT rather than torture. 3. Intended purposes The 1984 Convention lists certain purposes that such acts pertain to: punish or extraction of information. However, the list is not exhaustive and any additional purpose can be considered. Prosecutor v Furundzijc. If the purpose is to humiliate the victim, it stands as it goes against the central theme of protecting human dignity in International law. Some courts such as the ECHR recognize the listed purposes in the CoT as elaborate in Egmez v Cyprus

4. Public official/ state action If the torture is state driven could be through public officials. However, if state does not take measures to protect civilians against torture or ill treatment by a private person, this amounts to negligence of their affirmative obligation to protect against torture. Z and Others v UK Elmi v Australia: groups that have quasi-governmental powers can fall under state actors: therefore you can’t send refouler back to country run by such when it is evident there will be torture. Case law Zimbabwe NGO forum v Zimbabwe: The state by failing to investigate and take measure to protect human rights of its citizens was in violation of Article 1 of the African Charter: this includes not investigation on claims of torture, providing clemency to those who committed crimes that were politically motivated even when it included torture. Violation of article 2 of the African Charter: ‘enjoy human rights without discrimination.’ Claimed to have been discriminated on the basis of political opinion Article 3: Equal protection before the law: The National Police where prejudiced against the victims due to their political opinion and did not investigate on their claims. At times they were the perpetrators of the violence.

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.

The fact that there is no distinction between torture and CIDT in the African Charter: Timonah will send a book to explain this

Severe mental and physical suffering occurred. Those believed to be in favor of opposition party were marched into re-education camps where they were beaten by various objects, forced to sing the national anthem of ZANU, required to roll in the mud as they were sprayed with water, asked to perform indecent acts for the pleasure for their assailants. Furthermore, when this was reported to the police, death threats and non-action by the police would follow. Asked court to uphold the decision in the Pen case that: ‘the prohibition in Article 5 included not only actions which cause serious physical or psychological suffering, but also actions which humiliate the individual or force him or her to act against his will or conscience.’ The State had taken measures to ensure that their citizens were not inflicted to torture by holding some assailants to account. Hence they had fulfilled their obligation under International law for state responsibility.

Of course, this can be considered a stringent interpretation of public official in the 1984 CoT. Since we have established through Z and Others v UK that state negligence to protect against torture can amount to accountability of the state due to it affirmative responsibility. Pen case  Held in police custody with no bail, in handcuffs and leg irons. Severely beaten, denied access to a lawyer, to talk to his family and denied medicine to control his blood pressure: Saro-Wiwa  16 Ogoni’s held with no charge, no possibility of bail and for over three months. Where they were beaten held in dirty and airless cells, chained to the walls in the cells. This constitutes physical and mental suffering. Additionally, the court stated that torture and CIDT are prohibited under article 5 of the African Charter: it not only constitutes physical and mental suffering but also humiliation that causes the individual to act against their will.

2019: QN 1

Canton and Kuwali are two developing countries in the wider continent of Hope. Samson Al Husseni is a Kuwalian national by birth and a trained air-fighter jet pilot. He went to the State of

Canton in 2003 during the Canton-Kuwali war to aid in the war effort. During this time, he served as a member of the Republic Kuwali Air Force. After the Kuwali invaded Canton and the war between the two countries ended in 2005, he chose to remain in Canton as a member of the resistance movement against the new dictatorial government of General Mirali Kombora, the President of Canton. On 5th January 2006 during his time in Canton, he came into possession of videotapes involving Victoire Kapena in corruption and bribery activities. Kapena is brother in-law to General Mirali Kombora, the President of Canton and in 2006 he was serving as the Minister of State in charge of defence. By some means the tapes that Al Husseni possessed entered general circulation in social media platforms like salamzapp and kitabusura. Kapena was said to be so incensed about the circulation of these videos that he vowed to teach Al Husseni a lesson he would never forget. A few weeks after the videotapes appeared in social media, Kapena and two others gained entry into Al Husseni’s house, beat him and took him at gunpoint in a government jeep to the Canton State Security Prison. Al-Husseni was “imprisoned” there for ten (10) days during which he was repeatedly beaten by security guards. He was released on 5 May 2006, having been forced to sign a false confession (article 15) and never having been presented formally to a court of law. On or about 7 May 2006

Kapena

‘rearrested’

Al

Husseni

at

gunpoint

in

a

government car and took him to the palatial home of Major Ndungu-Kali. Major Ndungu-Kali is the brother of the Cantonese President and the Inspector General of Police in Canton. At first Al Husseni’s

head

was repeatedly

held underwater in a

swimming-pool containing corpses, and he was then dragged into a small room where Pastor Kapena set fire to mattresses soaked in petrol, as a result of which the Al-Husseni was seriously burnt. Initially Al Husseni was treated in a Cantonese hospital, and on 17 May 2006 he returned to Kuwali, his home state, where he spent six weeks in hospital being treated for burns covering 25% of his body. He also suffered psychological damage and has been diagnosed as suffering from a severe form of post-traumatic stress disorder, aggravated by the fact that, once in Kuwali, he received threats warning him not to take any action or give publicity to his plight. You are an award-wining international human rights lawyer in Kuwali. Al Husseni approaches you for legal advice on the following legal issues:

(i). If both Kuwali and Canton are parties to the UN Convention against

Torture and

Other Cruel,

Inhuman or

Degrading

Treatment or Punishment and the International Covenant on Civil and Political Rights (ICCPR); advise him on possible international human rights violations he can pursue against Canton as a State. (10 Marks)

Article 1CoT: Torture, establish if there is torture Article 2: allowed torture to exist within their state Article 4: Torture should be considered a criminal offence and have laws in place to this effect Article 7 of ICCPR: Against torture Article 9 of ICCPR: Right to liberty and security of persons, no arbitrary detention Article 10 of ICCPR: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Article 15: Evidence obtained through torture is inadmissible

(ii). If both Kuwali and Canton are members of the African Union (AU), United Nations (UN) and both states have ratified the African Charter on Human and Peoples’ Rights (Banjul Charter), its Protocol on Establishment of the African Court on Human and Peoples’ Rights, and have both made declarations under Article 34(6) to the Protocol; Advise Al-Husseni on how he can seek remedies from both the African Human Rights System and the UN human rights system. (10 Marks)

State the minimum requirements such as contravention of the charter, exhaustion of remedies. (List the 7 requirements as an introduction) AU: Treaty bodies that can be good for implementation: African Court, African Commission (Is there a difference between the two) UN: The committee against Torture can listen to individual complaints. For it to be brought, the state has to have Okayed the jurisdiction of the committee (read on this) Human Rights Committee Tribunals? (iii). Can Al Husseni institute a civil suit against the Cantonese government in Kuwali? Advise Al Husseni on this matter focusing on whether immunity can be granted to Canton as a State in a civil lawsuit involving compensation for damages resulting from a torture claim. (10 Marks) Total possible score (30 marks) State immunity: A person cannot sue a state in the domestic realm. 2018 QN 6 Although prohibition of torture is universally accepted as firmly absolute,

the

definition

of

torture

itself

has

attracted

considerable debate. Critically examine the various elements that make up definition of torture, citing relevant authorities. (15 marks)

2017 QN 5 The forceful disappearance of persons evolved from a fact situation into a distinct legal category. Discuss the factors that distinguished this fact situation and legal characteristics of this recent legal category. (10 marks) 8 CORE HUMAN RIGHTS TREATIES: It falls under forced disappearance.

2016 QN 2 Discuss

any

three

(3)

progressively

realizable

state

obligations arising from the absolute prohibition of torture and ill treatment or punishment. (15 marks) 1.Respect: Does not partake in the violation. The preamble. Article 2: ‘Article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to

cruel, inhuman or degrading treatment

or

punishment.’ Pen case: The Nigerian government did not respect article 5 of the African Charter and partook in torture.

2.Protect: When states hold private actors. Compulsory universal application where other states can be held accountable Article 2: Ensure other parties cannot infringe on any other parties rights based on prohibition of torture. Z and Others v UK Article 3: non-refoulement (holds state accountable) Falling to the extent that a state (non-refoulement) cannot extradite any person when there is conclusive evidence that where they are being taken they will be subjected to torture Zimbabwe Forum case: states have the responsibility to ensure all their citizens are protected against torture. 3.Fulfill and promote: Tied to their general structure that promotes. Article 2: Adopt laws for preventing torture. Article 4: all acts of torture are offenses and are criminal Article 10: Educate officials on the requirements on the CoT (Promote) Article 11: Constant review interrogation rules, instructions, method. (Promote)

HUMAN RIGHTS AND THE ENVIRONMENT: tomorrow...