Module 1: International Legal Standards (Overview)

Avoiding incommunicado detention

International standards do not expressly prohibit incommunicado detention – where a detainee is denied all contact with the outside world – in all circumstances. However, international standards provide and expert bodies have maintained that restrictions and delays in granting detainees access to a doctor and lawyer and to having someone notified about their detention are permitted only in very exceptional circumstances for very short periods of time.

The Human Rights Committee has found that the practise of incommunicado detention is conducive to torture[1] and may itself violate Article 7 or Article 10 of the ICCPR.[2] It has stated that provision should also be made against incommunicado detention as a safeguard against torture and ill-treatment.[3]

The UN Commission on Human Rights has stated that “prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment.”[4] The UN Special Rapporteur on Torture has stated that “torture is most frequently practised during incommunicado detention. Incommunicado detention should be made illegal, and persons held incommunicado should be released without delay.”[5]


[1] Preliminary Observations of the Human Rights Committee: Peru, UN Doc. CCPR/C/79/Add.67, paras 18 and 24, 25 July 1996.

[2] Albert Womah Mukong v Cameroon, (458/1991), 21 July 1994, UN Doc. CCPR/C/51/D/458/1991; El-Megreisi v Libyan Arab Jamahiriya, (440/1990), 23 March 1994, UN Doc. CCPR/C/50/D/440/1990

[3] Human Rights Committee General Comment 20, para.11.

[4] Resolution 1997/38, para. 20.

[5] Report of the Special Rapporteur on Torture, UN Doc.A/56/156, July 2001, para. 39(f).

International standards do not expressly prohibit incommunicado detention – where a detainee is denied all contact with the outside world – in all circumstances. However, international standards provide and expert bodies have maintained that restrictions and delays in granting detainees … Continue reading

Module 1: International Legal Standards (Overview)

Objectives

  • To understand basic definitions of torture and other forms of cruel, inhuman and degrading treatment or punishment.
  • To familiarize students with the international legal standards on the prohibition of torture and ill-treatment
  • To obtain a clear understanding of the torture practises in the world today and relevant country-specific practises.
  • To be familiar with international and regional monitoring mechanisms.
  • To understand basic torture prevention and accountability measures, including specific safeguards for those deprived of their liberty.
  • To identify international and country specific needs for prevention and accountability measures, including specific safeguards for those deprived of their liberty.
  • To identify country-specific challenges in preventing torture and holding perpetrators accountable including effective remedial measures in this regard.

Content

  • Definition of torture and ill-treatment
  • Brief review of the purpose of torture and its history
  • Review of relevant international standards for torture prevention
  • Torture in the world today, including practises, the role of state and non-state actors, common situations for allegations
  • Review of country-specific legal standards and torture practises [to be provided by Instructors]
  • Overview of prevention and accountability measures
  • International and regional monitoring mechanisms and formal inspections of detention facilities
    • Human Rights Committee
    • UN Committee against Torture
  • Regional monitoring mechanisms
  • Other monitoring mechanisms
    • The UN Special Rapporteur
    • International criminal courts and tribunal
    • The International Committee of the Red Cross (ICRC)
  • Safeguards against torture for those deprived of their liberty
    • Notifying people of their rights
    • Use of officially recognised places of detention
    • Humane conditions of detention
    • Limits on interrogation
    • Access to a doctor
    • The right to challenge the lawfulness of detention
  • Safeguards for special categories of detainees
    • Women in detention
    • Juvenile detainees
    • People with mental health problems

Discussion Topics

  • Compare and contrast similarities and differences between international standards and national legislation
  • Develop a 10-12 point country-specific plan for torture prevention and accountability
  • Discuss how international, regional and national organisations can work together for the effective investigation and prevention of torture.
  • Discuss the role of health professionals in torture prevention and accountability.
  • Discuss the relationship between human rights and human security in general, and specifically with regard to national anti-terror policies/practises and torture.

Teaching Formats

  • Group Activity:
    • Divide the class into several groups and assign each group with one or more (or all) of the Discussion Topics listed above.
    • A facilitator should be identified to moderate the discussion and rapporteur should be identified to record the group’s findings and report them when the class reconvenes.
    • After 20-30 minutes of group discussion, the entire class should reconvene
    • Rapporteurs should briefly report on their group’s findings
    • Open class discussion
  • Individual Research/Assignment(s):
    • Conduct literature research on the psychology of abuse and write a two-page essay analyzing different theories. Provide your opinion with supporting information
    • Develop a 10-12 point, country-specific plan for torture prevention and accountability
    • Develop a country-specific list of organisations and bodies relevant to torture and ill-treatment
  • Journal Entry: (Instructor to assign students to write a few paragraphs — no more than a page on one or more of the following)
    • Respond to one or more of the Discussion Topics
    • Why do you think health professionals should or should not be concerned about torture and ill-treatment?

Primary Resources

  • The Istanbul Protocol, Chapters I and III, Annex I
  • The Torture Reporting Handbook
  • Action Against Torture: A Practical Guide to the Istanbul Protocol for Lawyers
  • Medical Investigation and Documentation of Torture: A Handbook for Health Professionals
  • Combating Torture: A Manual for Judges and Prosecutors
  • The Torture Reporting Handbook

Objectives To understand basic definitions of torture and other forms of cruel, inhuman and degrading treatment or punishment. To familiarize students with the international legal standards on the prohibition of torture and ill-treatment To obtain a clear understanding of the … Continue reading

Reparation

(i) To ensure that victims of torture have the right to an effective remedy and adequate reparation by:

  • Ensuring that victims of torture have effective procedural remedies, both judicial and non-judicial, to protect their right to be free from torture in law and practice;
  • Guaranteeing that domestic law reflects the different forms of reparation recognized under international law and that the reparations afforded reflect the gravity of the violation(s).

(i) To ensure that victims of torture have the right to an effective remedy and adequate reparation by: Ensuring that victims of torture have effective procedural remedies, both judicial and non-judicial, to protect their right to be free from torture … Continue reading

History of Torture

Torture has been practiced throughout history. The Romans, Jews, Egyptians and many other cultures in history included torture as part of their justice system. Romans had crucifixion, Jews had stoning and Egyptians had desert sun death. All these acts of torture were considered necessary (as to deter others) or good (as to punish the immoral).

Medieval and early modern European courts used torture, depending on the accused’s crime and social status. Torture was deemed a legitimate meens to extract confessions or to obtain the names of accomplices or other information abbout a crime. Often, defendants already sentenced to death would be tortured to force them to disclose the names of accomplices. Torture in the Medieval Inquisition began in 1252 and ended in 1816 when a papal bull (formal statement by the Pope) forbade its use.

Universal prohibition against torture was realized only in the aftermath of WWII in 1948 and the UN Convention on Torture against Torture was adopted by the UN General Assembly considerably later in 1984.

Torture has been practiced throughout history. The Romans, Jews, Egyptians and many other cultures in history included torture as part of their justice system. Romans had crucifixion, Jews had stoning and Egyptians had desert sun death. All these acts of … Continue reading

International Supervisory Machinery and Complaints Procedures

Notifying people of their rights

Everyone deprived of liberty has the right to be given a reason for the arrest and detention. Article 9(1) of the ICCPR states that: ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.’

Everyone deprived of liberty has the right to be given a reason for the arrest and detention. Article 9(1) of the ICCPR states that: ‘Everyone has the right to liberty and security of person. No one shall be subjected to … Continue reading

Other monitoring mechanisms

A number of other mechanisms have been developed by the UN Commission on Human Rights (since 2006, the UN Human Rights Council) to look at specific types of human rights violations wherever in the world they occur. These country-specific and thematic mechanisms include special rapporteurs, representatives and independent experts or working groups. They are created by resolution in response to situations that are considered to be of sufficient concern to require an in-depth study. The procedures report publicly to the Commission on Human Rights each year and some also report to the UN General Assembly.

The main thematic mechanisms of relevance for this manual are: the Special Rapporteur on Torture, the Special Rapporteur on Violence Against Women, the Special Rapporteur on the Independence of Judges and Lawyers, the Working Group on Enforced or Involuntary Disappearances, and the Working Group on Arbitrary Detention. A number of other thematic mechanisms also exist. The work of these bodies is not mutually exclusive and they may make either joint or separate interventions in connection with the same allegation.

A number of other mechanisms have been developed by the UN Commission on Human Rights (since 2006, the UN Human Rights Council) to look at specific types of human rights violations wherever in the world they occur. These country-specific and … Continue reading

Safeguards Against Torture for Those Deprived of Their Liberty

It is important for clinicians who conduct medical evaluations of torture and ill-treatment to be familiar with legal safeguards against torture for those deprived of their liberty. Everyone has the right to liberty and security of person — including the right to be free from arbitrary arrest or detention.[1] When the state deprives a person of liberty, it assumes a duty of care to maintain that person’s safety and to safeguard his or her welfare. Detainees are not to be subjected to any hardship or constraint other than that resulting from the deprivation of liberty.[2] These rights are guaranteed by Article 7 and 10(1) of the International Covenant on Civil and Political Rights (ICCPR) which, respectively, prohibit torture and ill-treatment and safeguard the rights of people deprived of their liberty. The prohibition on torture and ill-treatment apply to all people all the time. Certain rights in the treaties, such as the right not to be subject to arbitrary detention, may under certain circumstances be restricted in a public emergency, but safeguards necessary for the prohibition of torture, such as limiting periods in which people can be held in incommunicado detention, must continue to apply.[3]

Individuals may be at risk of torture or ill-treatment before they are subject to legal formalities such as arrest and charge. Indeed the European Committee for the Prevention of Torture (CPT) has stressed that it is during the period immediately following deprivation of liberty that the risk of torture and ill-treatment is at its greatest.[4] The following international standards, therefore, apply from the moment that someone is deprived of his or her liberty.


[1] Article 9 (1) International Covenant on Civil and Political Rights; Article 5 European Convention on Human Rights; Article 6 African Charter of Human and People’s Rights; Article 7 American Convention on Human Rights.

[2] Human Rights Committee, General Comment 21, Article 10 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRIGEN1Rev.1 at 33 (1994), para. 3.

[3] Human Rights Committee General Comment No. 29, States of Emergency (art. 4), adopted at the 1950th meeting, on 24 July 2001, para. 16. See also Aksoy v Turkey, ECtHR, Judgment 18 December 1996; Brannigan and MacBride v UK, ECtHR, Judgment 26 May 1993; Brogan v UK, ECtHR Judgment 29 November 1988; ‘Habeas Corpus in Emergency Situations’, Advisory Opinion OC-8/87 of 30 January 1987, Annual Report of the Inter-American Court, 1987, OAS/Ser.L/V/III.17 doc.13, 1987; and ‘Judicial Guarantees in States of Emergency’, Advisory Opinion OC-9/87 of 6 October 1987, Annual Report of the Inter-American Court, 1988, OAS/Ser.L/V/III.19 doc.13, 1988.

[4] European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, the CPT Standards, Substantive Sections of the CPT’s General Reports, Council of Europe, October 2001, CPT/Inf/E(2002), p.12, para. 41.

It is important for clinicians who conduct medical evaluations of torture and ill-treatment to be familiar with legal safeguards against torture for those deprived of their liberty. Everyone has the right to liberty and security of person — including the … Continue reading

Humane conditions of detention

The Human Rights Committee has stated that the duty to treat detainees with respect for their inherent dignity is a basic standard of universal application. States cannot claim a lack of material resources or financial difficulties as a justification for inhumane treatment. States are obliged to provide all detainees and prisoners with services that will satisfy their essential needs. Failure to provide adequate food and recreational facilities constitutes a violation of Article 10 of the ICCPR, unless there are exceptional circumstances. The Committee has also stated that prolonged solitary confinement may amount to a violation of the prohibition against torture and ill-treatment in Article 7 of the ICCPR.[1]

The Basic Principles for the Treatment of Prisoners provide that states should undertake efforts to abolish solitary confinement as a punishment or to restrict its use.[2] The Standard Minimum Rules for the Treatment of Prisoners specify that ‘corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.[3] The CPT has stressed that solitary confinement can have “very harmful consequences for the person concerned” and that, in certain circumstances, solitary confinement can “amount to inhuman and degrading treatment” and should, in all circumstances, be applied for as short a period as possible.[4]


[1] Human Rights Committee General Comment 20, para. 6.

[2] Principle 7 of the Basic Principles for the Treatment of Prisoners.

[3] Rule 31.

[4] CPT/Inf/E (2002) 1, p.20 para. 56(2).

The Human Rights Committee has stated that the duty to treat detainees with respect for their inherent dignity is a basic standard of universal application. States cannot claim a lack of material resources or financial difficulties as a justification for … Continue reading

Other Definitions

The World Medical Association’s Declaration of Tokyo (1975), which proscribes physician involvement in torture, uses a briefer, less legalistic definition which omits the element of severity of suffering but which otherwise embodies the elements of torture cited above.

[Torture is] the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting along or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason.

— [Preamble.]

The World Medical Association’s Declaration of Tokyo (1975), which proscribes physician involvement in torture, uses a briefer, less legalistic definition which omits the element of severity of suffering but which otherwise embodies the elements of torture cited above. [Torture is] … Continue reading