Transcript Module 1 - PHR Toolkits

MODULE 1
Prevention through Documentation Project
International Legal Standards
CONTRIBUTORS:
Vincent Iacopino, MD, PhD, Physicians for Human Rights
Bent Sorensen, International Rehabilitation Council for Torture Victims
PtD Project (IRCT, HRFT,
REDRESS, PHR)
Module 1 Outline
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Definition of torture and ill treatments
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Purpose and history of torture

International standards for prevention
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Torture in the world today
– practices
– role of State and non-State actors
– common situations for allegations
PtD Project (IRCT, HRFT, REDRESS, PHR)
Module 1 Outline (continued)

Overview of prevention and
accountability measures
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Monitoring mechanisms
– International
– Regional
– Other
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Safeguards against torture for those
deprived of liberty
PtD Project (IRCT, HRFT, REDRESS, PHR)
Definition of Torture
(UN Convention against Torture)

“…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.”
PtD Project (IRCT, HRFT, REDRESS, PHR)
Other Definitions of Torture
The World Medical Association’s Declaration of
Tokyo (1975),
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“Torture is] the deliberate, systematic or wanton
infliction of physical or mental suffering by one or
more persons acting alone or on the orders of any
authority, to force another person to yield
information, to make a confession, or for any other
reason.”
PtD Project (IRCT, HRFT, REDRESS, PHR)
Definition of Ill Treatment
(Cruel, Inhuman and Degrading Treatment
or Punishment- CID)

Boundaries between torture and CID difficult to
identify

Sharp distinctions not necessary as it is courts’
responsibility to determine torture vs. CID in
individual cases

Essential elements of CID include:
– Intentional exposure to significant mental or
physical pain or suffering;
– By or with consent of state authorities
– NOTE: CID is “less severe” and does not require
intent or a specific purpose
PtD Project (IRCT, HRFT, REDRESS, PHR)
Purpose of Torture

Deliberate infliction of severe pain and suffering for:
– Social control
– Defense of ruling regimes
– Suppression and punishment of political opponents
– Short-cut to confessions
– Assist with ethnic cleansing
– Induce a sense of terror in population
– Extortion
– No obvious purpose
PtD Project (IRCT, HRFT, REDRESS, PHR)
Brief History of Torture

Torture practiced throughout early history as
part of judicial systems until WWII
– Romans: Crucifixion
– Jews: Stoning
– Egyptians: desert sun death

Medieval and Modern European courts: (i.e.
hanged, drawn and quartered, burned at the
stake) to extract confessions, often after
sentencing.
PtD Project (IRCT, HRFT, REDRESS, PHR)
Brief History of Torture

Colonial America: women in stocks with
wooden clips on their tongues or subjected to
the "dunking stool" for “talking too much”

Universal prohibition against torture was
realized only in the aftermath of WWII in
1948

UN Convention Against Torture adopted by
the UN General Assembly in 1984
PtD Project (IRCT, HRFT, REDRESS, PHR)
International Standards for
Torture Prevention


Apply to all legal systems in the world
Prohibition is absolute, applying at all times and in all
circumstances as provided in:
– Universal Declaration of Human Rights, 1948
– International Covenant on Civil and Political Rights, 1966
– European Convention on Human Rights (1950), the American
Convention on Human Rights (1978) and the African Charter on
Human and People’s Rights (1981).
– Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment, 1984
– Geneva Conventions (1949) and Additional Protocols (I and II)

Failure to prohibit torture in domestic law will not
release the state from its international legal obligations
PtD Project (IRCT, HRFT, REDRESS, PHR)
The United Nations Convention Against
Torture (1984)
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Part I Articles:
1. Definition
2. Effective legislation, administrative, judicial measures to prevent
acts of torture. No exceptional circumstances, i.e. war, strife, orders
from superior officer.
3. No extradition of being subjected to torture
4. Acts of torture are offenses under criminal law. Offenses
punishable by law
5. Establish jurisdiction: offense in state, offender in state
6. Alleged offender taken into custody, immediate inquiry, notify state
7. State must prosecute, if not extradited, fair treatment for alleged
offender
8. Extradition: Even if no reciprocal agreement exists, this convention
serves as a treaty.
PtD Project (IRCT, HRFT, REDRESS, PHR)
The United Nations Convention Against
Torture (1984)

Part I Articles:
9. Mutual state assistance in criminal proceedings
10. State ensures education re. prohibition of torture to: law
enforcement, civil or military, medical personnel, public officials, and
others involved in custody or interrogation.
11. Systematic review of interrogation rules to prevent torture
12. Prompt and impartial investigation when act of torture committed
13. Ensure that alleged victims have the rights to complain and have
case examined
14. Ensure system of redress, compensation for victims and for
rehabilitation
15. Statements obtained through torture invalid
16. Undertake to prevent torture
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Part II Articles: Committee Against Torture
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PtD Project (IRCT, HRFT, REDRESS, PHR)
Torture in the World Today
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Torture & CID in 81 countries in 2007 (Amnesty
International)
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5-35% of refugees have experienced torture
– 15.9 million refugees and 26 million internally displaced in
2007

1 in 9 foreign-born patients in a US urban primary
care centre had a history of torture (Crosby,
2006)
PtD Project (IRCT, HRFT, REDRESS, PHR)
Torture in the World Today
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Groups participating in torture:
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States are responsible for protection from third parties
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Common situations for occurrence:
– State actors: i.e. police, military, prison, para-military
– Non-State actors: opposition groups, private groups
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Any location and at any time
Usually initial phase of arrest and detention (pre-trial)
Persons deprived of liberty
Incommunicado detention (before access to a lawyer or court)
Conflict zones and situations of political unrest or violence
PtD Project (IRCT, HRFT, REDRESS, PHR)
Health Professional Complicity
in Torture

Direct involvement (i.e. medical monitoring of torture)
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Certifying someone fit for interrogation
Using medical knowledge to design/refine methods
 Assisting in cover-up (i.e. issuing false medical reports)
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Acts of omission, i.e. failing to provide necessary treatment
Note: involvement in torture can lead to criminal charges
against health professionals
PtD Project (IRCT, HRFT, REDRESS, PHR)
Country-Specific Definitions,
Legal Standards and Torture
Practices
 [To
be Provided by Instructors]
PtD Project (IRCT, HRFT, REDRESS, PHR)
Overview of Prevention
Measures
• Effective monitoring
• False confessions cannot be used as evidence
• Torture prohibition included in training of State
officials, including medical personnel
• Non-refoulement: no transfer to country where
torture is likely
• Unrestricted access to one’s own lawyer and
doctor
PtD Project (IRCT, HRFT, REDRESS, PHR)
Overview of Prevention
Measures
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Informing family members of detention
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Providing detainees access to family
members and friends
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No incommunicado detention
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Ensure right to legal challenge of detention
before a judge
PtD Project (IRCT, HRFT, REDRESS, PHR)
Accountability Measures

Effective investigation of allegations of
torture
– effective complaints procedure
– provision of adequate victim and witness
protection
– relevant authorities undertake prompt and
impartial investigation whenever there are
reasonable grounds to believe that torture has
been committed
– guaranteeing that all allegations of torture are
effectively investigated.
PtD Project (IRCT, HRFT, REDRESS, PHR)
Accountability Measures

Ensure that alleged perpetrators are subject to criminal
proceedings
– Criminalise acts of torture, including complicity or participation,
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and excluding defences of necessity or superior orders;
Ensure alleged perpetrators are subject to criminal proceedings
if an investigation establishes that an act of torture appears to
have been committed
Impose punishments that reflect seriousness of crime
Enshrine the principle of universal jurisdiction, enabling
investigation and prosecution of torturers irrespective of place
where torture was committed and nationality of victim or
perpetrator; and
Make torture an extraditable offence and provide assistance to
other national governments seeking to investigate and/or
prosecute persons accused of torture.
PtD Project (IRCT, HRFT, REDRESS, PHR)
Accountability Measures
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Reparation:
– Ensure that victims of torture have effective
procedural remedies, judicial and non-judicial, to
protect their right to be free from torture in
law and practice
– Guarantee that domestic law reflects different
forms of reparation recognised under
international law and that the reparations
afforded reflect the gravity of the violation(s)
PtD Project (IRCT, HRFT, REDRESS, PHR)
International Monitoring Mechanisms
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Human Rights Committee
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UN Committee against Torture
PtD Project (IRCT, HRFT, REDRESS, PHR)
Regional Monitoring
Mechanisms
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European Convention on Human Rights
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European Convention for the Prevention of Torture and
Inhuman and Degrading Treatment or Punishment
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American Convention on Human Rights
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Inter-American Convention to Prevent and Punish Torture
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African Charter on Human and Peoples’ Rights.
PtD Project (IRCT, HRFT, REDRESS, PHR)
Other Monitoring Mechanisms

The UN Special Rapporteur
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International criminal courts and
tribunal
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The International Committee of the
Red Cross (ICRC)
PtD Project (IRCT, HRFT, REDRESS, PHR)
Safeguards Against Torture for
Those Deprived of Their Liberty
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Notifying individuals of their rights
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Use of officially recognised places of detention
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Humane conditions of detention
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Limits on interrogation
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Access to a doctor
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Right to challenge the lawfulness of detention
PtD Project (IRCT, HRFT, REDRESS, PHR)
Safeguards for Special
Categories of Detainees
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Women in detention
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Juvenile detainees
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People with mental health problems
PtD Project (IRCT, HRFT, REDRESS, PHR)