Monitoring Detention, Custody, Torture and Ill-treatment

A Practical Approach to Prevention and Documentation

Jason Payne-James, Jonathan Beynon, Duarte Vieira, Jason Payne-James, Jonathan Beynon, Duarte Vieira

• Editorial: CRC Press
• Año: 2017
• ISBN:
  9781351812726
• Edición: 1
• Categoría: Diritto
• Categoría: Scienza forense

This landmark practical guide assists all those involved in monitoring detention conditions and investigating and preventing torture. The prestigious global author team identify the medical, legal and professional frameworks and international instruments applicable to those detained, and highlight how torture or other cruel and inhuman degrading treatments or punishments are identified, investigated and should be prevented.

· A comprehensive and wide range of detention settings and circumstances are covered including police stations, prisons, mental health, and social care civil conditions to prisoner of war, detention camps, military, and armed conflict.

· Advice, monitoring, and assessment is given for special groups, including the custody of women, children, vulnerable adults, and individuals on hunger strike

· Practical guidelines are given for the assessment of ill-treatment of individuals in custody including sexual abuse

· Online links to the latest legal, ethical, and medical guidelines for key countries help to make this book appropriate for all.

Challenging, thought-provoking yet thoroughly practical, this book is essential reading for anyone involved in the monitoring of detention conditions and the treatment and investigation of individuals in any form of custody. The content is aimed primarily at healthcare professionals but it also highly relevant for anyone who may form part of a visiting team, including lay individuals, lawyers and law enforcement professionals, as well as for academics.

1International Legal Framework on Torture

Juan E. Méndez

Introduction

State Obligations

Obligation to Investigate, Prosecute, and Punish Torture

Nonrefoulement

Exclusionary Rule

Right to a Remedy and Reparations and Rehabilitation

Adaptation of Legislation and Regulation to Bring It into Conformity with CAT

Other Obligations

International Mechanisms for the Protection of All Persons against Torture

The Universal Protection System

Regional Protection

Europe

The Inter-American System

African System

Other Regions

Conclusions

References

Introduction

Of all protections against attacks on human dignity that are included in the canon of international human rights law, the prohibition on torture and other cruel, inhumane, or degrading treatment (CIDT) or punishment enjoys the broadest consensus among nations and societies. There is universal condemnation of the brutality involved in the deliberate infliction of pain and suffering on other human beings. Countries where torture is practiced despite this condemnation tend to deny the facts or to deny that “enhanced interrogation techniques” amount to torture. Cynical as such denials may be, they ratify the existence of a moral, legal, and political condemnation that is truly universal. That is why the right to physical and mental integrity—or the right to be free from torture—has been at the center of the development of international law on human rights that began after the end of World War II. In fact, one can trace the prohibition of torture even further, to the so-called Martens clause in the Hague Convention of 1899 that established that “… populations and belligerents remain under the protection and empire of the principles of the laws of humanity and the requirements of the public conscience” (Preamble, Hague II 1899; Preamble, Hague IV 1907). The prohibition of torture is one of a handful of international laws that are jus cogens, an imperative norm of international law from which no nation can depart because it is a constitutional provision of the international community, similar to the prohibition of the use of force between nations, the mandatory peaceful resolution of disputes, and the principle of nonintervention in internal affairs of other nations. In addition, the prohibition of torture is unanimously recognized as a customary international law norm. For these two reasons, it applies to all states and societies, regardless of whether or not they have ratified the relevant treaties. In that sense, the treaty norms to follow are considered to have codified obligations that exist beyond and before them; there is no sense, therefore, in a state claiming to be bound by them only from the date of ratification.

The right to personal integrity is established in the Universal Declaration of Human Rights (UDHR) of December 10, 1948 (UDHR 1948). It is also clearly spelled out in the first comprehensive treaty intended to make the UDHR legally binding, the International Covenant on Civil and Political Rights (ICCPR) (1966). More recently, these norms were elaborated upon by the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT [Convention against Torture] 1984). The CAT distills specific legal consequences and binding obligations that derive from and apply to the prohibition of torture, all of which are also considered to codify customary international law (Office of High Commissioner for Human Rights 1992). Later, the United Nations (UN) adopted an Optional Protocol to CAT (OPCAT) directed toward the prevention of torture by means of regular and ad hoc visits to facilities that hold persons deprived of freedom (OPCAT 2006). In terms of universal standards, it is worth mentioning that the prohibition of torture and ill-treatment applies also in wartime, both because in such circumstances international human rights law and the laws of armed conflict apply coextensively (Prosecutor v. Dragolijub Kunarca et al. 2001) and because the Geneva Conventions of August 12, 1949 includes a specific prohibition on “outrages against personal dignity” of detained enemy combatants and similar protections for the civilian population (The Geneva Conventions of August 12, 1949).1 A common feature of all those provisions is that the prohibition of torture is absolute. International law extends that absolute nature to the comparatively lesser offense of CIDT. The differences between torture and CIDT are (1) the severity of the pain and suffering inflicted, CIDT being less severe than torture; (2) that torture requires specific intent to inflict pain and suffering, whereas CIDT can be committed by negligence, as, for example, in inhumane prison conditions; (3) the legal obligations triggered by one and the other, as discussed later in the text (CAT 1984, Article 16). The absolute prohibition means that no state of war or national emergency can be invoked to justify any departure from it. Even in states of emergency that are publicly declared, the right to personal integrity is one of the fundamental rights that are nonderogable, meaning that they cannot be suspended, even temporarily, due to such circumstances (ICCPR 1966; CAT 1984 [Articles 2.2 and 4.2, respectively]).

Both torture and CIDT must be committed by state agents, meaning public officials or other agents acting at “… the instigation of or with the consent or acquiescence of a public official or a person acting in an official capacity” (CAT 1984, Articles 1.1 and 16.1). Members of paramilitary groups or of gangs that do dirty work for a government certainly qualify as perpetrators of torture for the purposes of these provisions. In keeping with the evolution of international human rights law, states have also been held responsible for torture and ill-treatment in the hands of private parties in circumstances where the state knew or ought to have known of the risk and neglected to protect the victim. For that reason, some cases of domestic violence or abhorrent practices in healthcare, under appropriate circumstances, come under the definition (SRT [Special Rapporteur on Torture] 2013).

The definition requires a certain severity (different for torture from that for CIDT), but is not limited to custodial situations. For example, CIDT, and even torture, can take place in cases of excessive use of force in repressing street demonstrations, provided that the physical or mental pain and suffering is severe enough to qualify (UN News Centre 2014). International law defines torture as an “international crime,” in the sense of an offense that is so injurious to the conscience of humanity that it compels the interests of every state and of the international community to prevent and punish it. In this sense, torture stands alongside such other human rights violations as genocide, crimes against humanity, war crimes, slavery, and the slave trade. Even in comparison to those mass atrocities, torture is unique in that its nature as an international crime means that even a single episode of torture gives rise to the international community’s insistence on its investigation, prosecution, and punishment (Cassese 2005). In addition, when committed as part of a pattern of “widespread or systematic” violations, torture is a crime against humanity that triggers the jurisdiction of the International Criminal Court (ICC) (in cases where such jurisdiction is applicable on geographic or other grounds) (Rome Statute 1998).

For purposes of the subject-matter jurisdiction of the ICC, “widespread” torture necessitates a certain number of similar episodes. The “systematic” character is arguably satisfied by a smaller number of cases or an approach that applies torture only to suspects of certain crimes, as long as it can be shown that perpetrators implement a deliberate plan or that those officials charged with preventing and punishing it deliberately refuse to do so. In other words, acquiescence in or tolerance of torture is enough to make it systematic.

The jurisdiction of the ICC is premised on the territorial state being “unwilling or unable” to investigate, prosecute, and punish the crime of torture, a principle known as complementarity (Rome Statute 1998, Article 1.7). It must be noted that the rule does not apply to the ad hoc tribunals created by the UN Security Council to try war crimes and other offenses in the former Yugoslavia and Rwanda, courts that actually enjoy primacy over domestic jurisdictions. Whether or not organs of international criminal justice have jurisdiction in cases of torture, it is also clear that torture gives rise to the exercise of universal jurisdiction in states that choose to allow their own courts to hear cases despite the offense happening elsewhere and not involving nationals of the forum state, either as victims or perpetrators. This principle is codified in the CAT and is sometimes referred to under the Latin aphorism aut dedere aut judicare or aut dedere aut punire (CAT 1984, Articles 5.2 and 6.4). It means that the state that has or can obtain custody of a torture suspect must either extradite him/her to a state with legitimate jurisdiction, or transfer him to an international court. If it chooses not to extradite, the state must prosecute him. The clear language in CAT indicates that even a single case of torture that is not part of a widespread or systematic pattern can give rise to universal jurisdiction in the custodial state, or else to the obligation to extradite (R v. Bartle ex parte Pinochet 1999). In practice, all cases of universal jurisdiction to date have involved systematic patterns, and since universal jurisdiction is a permissive norm, not an obligation, it is unlikely that we will see such jurisdiction applied in isolated cases. But even then, the obligation to extradite would still be present.

State Obligations

The international law framework imposes the following obligations on states party to the CAT (as mentioned earlier, all of them are also customary international law obligations, so they apply to signatories and nonsignatories of CAT):

Obligation to Investigate, Prosecute, and Punish Torture

The obligation to investigate cases of torture is established in Article 12 of the CAT, and significantly, it also applies to acts that are not torture but amount to CIDT (CAT 1984, Article 16). The investigation has to be surrounded by guarantees that prevent it from being an exercise in futility or tokenism. It has to be “prompt and impartial” according to Article 12. By its terms, this norm would suggest that an internal investigation by the same law enforcement body whose agents are suspect could satisfy the requirement, as long as the body conducting it is given early access to all evidence (prompt) and conducts its inquiries without interference (impartial). In practice, international organs of protection against torture and CIDT also require the investigation to be “independent” in the sense that the body itself is not subordinate to authorities who may have an interest in the outcome. In several instances, international courts and organs have required the inquiry to be judicial in nature, as the only guarantee of independence and impartiality (e.g., Gutiérrez Soler v. Colombia [2005]) The inquiry must have the specific objective of identifying perpetrators and gathering evidence for purposes of prosecution and not simply as a truth-telling endeavor (Barrios Altos v. Peru 2001). Most importantly, it cannot be c...