Module 1 Answers

Torture as defined by CAT, involves the intentional infliction of severe mental or physical pain or suffering, by or with the consent or acquiescence of the state authorities, for a specific purpose, such as gaining information, punishment or intimidation or for any other reason. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Ill-treatment does not have to be inflicted for a specific purpose, but there does have to be an intent to expose individuals to the conditions which amount to or result in the ill-treatment. Like torture, ill-treatment is perpetrated by or with the consent or acquiescence of the state authorities.

Amnesty International documented cases of torture and other cruel, inhuman or degrading treatment in 81 countries in 2007.

Torture has been practiced throughout history, but universal prohibition against torture was codified in international law only in the aftermath of WWII in 1948. The UN Convention on Torture Against Torture was adopted by the UN General Assembly considerably later in 1984.

Torture commonly serves the purpose of suppressing and punishing political opponents and alleged criminals and to achieve social control by inducing a sense of terror in a population, but it is also frequently used in interrogations to force confessions. Moreover, torture can occur where there is no obvious purpose.

The prohibition of torture and ill-treatment is absolute; such acts cannot be justified under any circumstances including, national security, states of emergency, the need to counter terrorism, or following orders from one’s superiors.

Non-refoulment in the Convention against Torture refers to the forcible return or extradition of a person to another country where he or she is at risk of torture.

States are responsible for safeguarding the rights of everyone within their jurisdiction and may under some circumstances be held accountable for acts carried out by private individuals if it supports or tolerates them, or fails in other ways to provide effective protection in law and in practice against them.

Torture and ill treatment are often perpetrated in the process of criminal investigations in order to obtain false confessions to alleged crimes and in the context of claims of national security.

The prohibition of torture is not limited to a negative obligation to refrain from causing suffering, but also contains wider obligations: including the obligation to investigate allegations, even if there has not been a formal complaint about it, and to bring the perpetrators to justice. The UN Convention Against Torture states clearly in article 12: “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”

The ICRC’s findings are communicated and discussed on a confidential basis with the concerned authorities and are not made available to the public. The ICRC undertakes visits under nonnegotiable modalities which include: access to all places of detention and all people detained and to make a register of all those who wish to have their details recorded; the possibility to select individual detainees to talk with in private, and the possibility to repeat the visits as often as is deemed necessary. During visits, the ICRC takes the humane treatment of detainees to encompass not only freedom from torture and other ill-treatment, but also general conditions of detention that maintain both the physical and mental integrity of the individuals.

The prohibition of torture is the concern not only of those countries which have ratified particular treaties, but is also a rule of general or customary international law, which binds all states even in the absence of treaty ratification. In fact, the prohibition of torture is generally regarded as having the special status of a ‘peremptory norm’ of international law, and states cannot choose to disregard or derogate from it.

The Convention Against Torture (Article 14) indicates that victims of torture have a right to redress and adequate compensation.

People are particularly at risk when they are deprived of their liberty, held in pre-trial detention or subject to interrogation. The greatest risk is in the first phase of arrest and detention, before the person has access to a lawyer or court. People being held in incommunicado detention – without access to anyone in the outside world – are particularly vulnerable.

Optional Protocol to the UN Convention Against Torture established a complementary dual system of regular visits by independent international and national bodies to places of detention in order to prevent torture and ill-treatment.

The Human Rights Committee has stated that the protection of detainees requires that each person detained be afforded prompt and regular access to doctors. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment state that ‘a proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary. This care and treatment shall be provided free of charge. Detainees have the right to request a second medical opinion by a doctor of their choice, and to have access to their medical records.

Rule 22(2) of the UN Standard Minimum Rules for the Treatment of Prisoners states that detainees or prisoners needing special treatment must be transferred to specialised institutions or civil hospitals for that treatment.

All of the measures listed above are important in the prevention of torture and ill treatment. Additional prevention measures include non-refoulement or no transfer to a country where torture is likely, providing detainees access to family members and friends, and the training of state officials, including medical personnel, on torture prohibition.

Effective investigation of alleged torture and ill treatment and criminal prosecution of alleged perpetrators are essential for accountability. Adequate victim and witness protection is a critical component of such prosecutions. Allowing torture to be prosecuted as a lesser crime such as “abuse of police duty” would likely have a permissive effect on torture and ill treatment practices.

All detained people have the right to equal treatment without discrimination on the grounds of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status. Particular allowances should, however, be made for the rights and needs of special categories of detainees including women, juveniles, elderly people, foreigners, ethnic minorities, people with different sexual orientation, people who are sick, people with mental health problems or learning disabilities, and other groups or individuals who may be particularly vulnerable during detention.