MODULE 1 Prevention through Documentation Project

1. MODULE 1Prevention 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)

2. Module 1 Outline • Definition of torture and ill treatments • Purpose and historyof torture • International standards for prevention • Torture in the world today • practices • role of State and non-State actors • common situations for allegations PtD Project (IRCT, HRFT, REDRESS, PHR)

3. Module 1 Outline (continued) Overview of prevention and accountability measures Monitoring mechanisms International Regional Other Safeguards against torture for those deprived of liberty PtD Project (IRCT, HRFT, REDRESS, PHR)

4. 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)

5. Other Definitions of Torture The World Medical Association’s Declaration of Tokyo (1975), • “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)

6. 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)

7. 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)

8. Brief Historyof 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)

9. Brief Historyof 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)

10. 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)

11. The United Nations Convention Against Torture (1984) • 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)

12. 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 • Part II Articles: Committee Against Torture PtD Project (IRCT, HRFT, REDRESS, PHR)

13. Torture in the World Today • Torture& CID in 81 countries in 2007 (Amnesty International) • 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)

14. Torture in the World Today • Groups participating in torture: • State actors: i.e. police, military, prison, para-military • Non-State actors: opposition groups, private groups • States are responsible for protection from third parties • Common situations for occurrence: • 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)

15. Health Professional Complicity in Torture • Direct involvement (i.e. medical monitoring of torture) • Certifying someone fit for interrogation • Using medical knowledge to design/refine methods • Assisting in cover-up (i.e. issuing false medical reports) • 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)

16. Country-Specific Definitions, Legal Standards and Torture Practices • [To be Provided by Instructors] PtD Project (IRCT, HRFT, REDRESS, PHR)

17. 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)

18. Overview of Prevention Measures Informing family members of detention Providing detainees access to family members and friends No incommunicado detention Ensure right to legal challenge of detention before a judge PtD Project (IRCT, HRFT, REDRESS, PHR)

19. 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)

20. Accountability Measures • Ensure that alleged perpetrators are subject to criminal proceedings • Criminalise acts of torture, including complicity or participation, 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)

21. Accountability Measures • 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)

22. International Monitoring Mechanisms • Human Rights Committee • UN Committee against Torture PtD Project (IRCT, HRFT, REDRESS, PHR)

23. Regional Monitoring Mechanisms • European Convention on Human Rights • European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment • American Convention on Human Rights • Inter-American Convention to Prevent and Punish Torture • African Charter on Human and Peoples’ Rights. PtD Project (IRCT, HRFT, REDRESS, PHR)

24. Other Monitoring Mechanisms • The UN Special Rapporteur • International criminal courts and tribunal • The International Committee of the Red Cross (ICRC) PtD Project (IRCT, HRFT, REDRESS, PHR)

25. Safeguards Against Torture for Those Deprived of Their Liberty • Notifying individuals of their rights • Use of officially recognised places of detention • Humane conditions of detention • Limits on interrogation • Access to a doctor • Right to challenge the lawfulness of detention PtD Project (IRCT, HRFT, REDRESS, PHR)

26. Safeguards for Special Categories of Detainees • Women in detention • Juvenile detainees • People with mental health problems PtD Project (IRCT, HRFT, REDRESS, PHR)