Torture

Torture is the act of inflicting severe pain (whether physical or psychological) as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has taken on a wide variety of forms, and has often been used as a method of political re-education, interrogation, punishment, and coercion. In addition to state-sponsored torture, individuals or groups may be motivated to inflict torture on others for similar reasons to those of a state; however, the motive for torture can also be for the sadistic gratification of the torturer.

“The right to freedom from torture, as defined in the international and regional instruments, encompasses the prohibition of seven distinct forms of conduct: torture, cruel treatment, degrading treatment, cruel punishment, inhuman punishment, and degrading punishment. In respect of each forms of conduct, the human rights instruments prohibit in absolute and non-derogable terms the use of torture or cruel, inhuman or degrading treatment or punishment.” (Jayawickrama Nihal, The Judicial Application of Human Rights Law, Cambridge University press, United Kingdom, 2002, p.298)

Torture, according to the 1984 United Nations Convention Against Torture (an advisory measure of the UN General Assembly) is:

[…]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.

This definition was restricted to apply only to nations and to government-sponsored torture and clearly limits the torture to that perpetrated, directly or indirectly, by those acting in an official capacity. It appears to exclude:

1.torture perpetrated by gangs, hate groups, rebels or terrorists who ignore national or international mandates;

2.random violence during war; and

3.punishment allowed by national laws, even if the punishment uses techniques similar to those used by torturers such as mutilation or whipping when practiced as lawful punishment. Some professionals in the torture rehabilitation field believe that this definition is too restrictive and that the definition of politically motivated torture should be broadened to include all acts of organized violence.

In 1986, the World Health Organization working group introduced the concept of organized violence, which was defined as:

"The inter-human infliction of significant, avoidable pain and suffering by an organized group according to a declared or implied strategy and/or system of ideas and attitudes. It comprises any violent action that is unacceptable by general human standards, and relates to the victims’ feelings. Organized violence includes “torture, cruel inhuman or degrading treatment or punishment” as in Article 5 of the United Nations Universal Declaration of Human Rights (1984). “Imprisonment without trial, mock executions, hostage-taking, or any other form of violent deprivation of liberty, also fall under the heading of organized violence."

An even broader definition was used in the 1975 Declaration of Tokyo regarding the participation of medical professionals in acts of torture:

For the purpose of this Declaration, torture is defined as 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.

This definition includes torture as part of domestic violence or ritualistic abuse, as well as in criminal activities. Since 1973 Amnesty International has adopted the simplest, broadest definition of torture:

"Torture is the systematic and deliberate infliction of acute pain by one person on another, or on a third person, in order to accomplish the purpose of the former against the will of the latter."

Torture is prohibited under international law and the domestic laws of most countries in the 21st century. It is considered to be a violation of human rights, and is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights. Signatories of the Third Geneva Convention and Fourth Geneva Convention officially agree not to torture prisoners in armed conflicts. Torture is also prohibited by the United Nations Convention Against Torture, which has been ratified by 147 countries.

National and international legal prohibitions on torture derive from a consensus that torture and similar ill-treatment are immoral, as well as impractical. Despite these international conventions, organizations that monitor abuses of human rights report widespread use condoned by states in many regions of the world. Amnesty International estimates that at least 81 world governments currently practice torture, some of them openly.

Committee against Torture: Monitoring the prevention of torture and other cruel, inhuman or degrading treatment or punishment

The Committee Against Torture (CAT) is the body of 10 independent experts that monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by its State parties.

All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Convention and then every four years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of "concluding observations".

In addition to the reporting procedure, the Convention establishes three other mechanisms through which the Committee performs its monitoring functions: the Committee may also, under certain circumstances, consider individual complaints or communications from individuals claiming that their rights under the Convention have been violated, undertake inquiries, and consider inter-state complaints.

The Optional Protocol to the Convention, which entered into force in June 2006, creates the Subcommittee on Prevention of Torture (SPT). The SPT has a mandate to visit places where persons are deprived of their liberty in the States parties. Under the Optional Protocol, States parties shall establish a independent national preventive mechanisms for the prevention of torture at the domestic level which has also a mandate to inspect places of detention.

The CAT meets in Geneva and normally holds two sessions per year consisting of a four week session in April/May and another four week session in November.

The Committee also publishes its interpretation of the content of the provisions of the Convention, known as general comments on thematic issues

For more information about the work of the Committee Against Torture, click here.

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

The United Nations Commission on Human Rights, in resolution 1985/33, decided to appoint an expert, a special rapporteur, to examine questions relevant to torture. The mandate was extemded for 3 years by Human Rights Council resolution 8/8 in June 2008.

It covers all countries, irrespective of whether a State has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The mandate comprises three main activities:

1) transmitting urgent appeals to States with regard to individuals reported to be at risk of torture, as well as communications on past alleged cases of torture;

2) undertaking fact-finding country visits; and

3) submitting annual reports on activities, the mandate and methods of work to the Human Rights Council and the General Assembly.

Unlike the complaints mechanisms of the human rights treaty monitoring bodies, the Special Rapporteur does not require the exhaustion of domestic remedies to act. When the facts in question come within the scope of more than one mandate established by the Commission, the Special Rapporteur may decide to approach other thematic mechanisms and country rapporteurs with a view to sending joint communications or seeking joint missions.

Optional Protocol to the Convention against Torture (OPCAT)

Subcommittee on Prevention of Torture

The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“SPT”) is a new kind of treaty body in the United Nations human rights system. It has a purely preventive mandate focused on an innovative, sustained and proactive approach to the prevention of torture and ill treatment. The SPT started its work in February 2007.

The SPT was established pursuant to the provisions of a treaty, the Optional Protocol of the Convention against Torture (“OPCAT”). The OPCAT was adopted on December 2002 by the General Assembly of the United Nations and entered into force in June 2006.

The SPT is composed of 25 independent and impartial experts coming from different backgrounds and from various regions of the world. Members are elected by States parties to the OPCAT for a four-year mandate and can be re-elected once.

Mandate – The SPT has an operational function which consists in visiting all places of detention in States parties, and an advisory function which consists in providing assistance and advice to both States parties and National Preventive Mechanisms (“NPM”). In addition, the SPT cooperates, for the prevention of torture in general, with the relevant United Nations organs and mechanisms as well as with international, regional, and national institutions or organizations. The SPT presents a public annual report on its activities to the Committee against Torture and convenes three times a year for sessions of one week duration at the United Nations Office at Geneva.

Visits –Under the OPCAT, the SPT has unrestricted access to all places of detention, their installations and facilities and to all relevant information. The SPT visits police stations, prisons (military and civilian), detention centres (e.g. pre-trial detention centres, immigration detention centres, juvenile justice establishments, etc.), mental health and social care institutions and any other places where people are or may be deprived of their liberty.

The SPT must also be granted access to have private interviews with the persons deprived of their liberty, without witnesses, and to any other person who in the SPT’s view may supply relevant information including Government officials, NPMs, representatives of national human rights institutions, non-governmental organizations, custodial staff, lawyers, doctors, etc. People who provide information to the SPT shall not be subject to sanctions or reprisals for having provided information to the SPT.

The visits are conducted by at least two members of the SPT. These members may be accompanied, if needed, by experts of demonstrated professional experience and knowledge in the field.

Assistance and advice – Pursuant to article 17 of the OPCAT, State parties have an obligation to establish NPMs, which are independent national bodies for the prevention of torture and ill-treatment at the domestic level. The OPCAT provides guidance concerning the establishment of those bodies, including their mandate and powers. It is the responsibility of the State to ensure that it has in place a NPM which complies with the requirements of the OPCAT.

For its part, the SPT's mandate includes assisting and advising States in the establishment of NPMs. To this end, the SPT has set out Guidelines on NPMs to add further clarity on the establishment and operation of NPMs. The SPT also assists NPMs in reinforcing their power, independence and capacities and strengthening safeguards against ill-treatment of persons deprived of their liberty. To that purpose, the SPT makes itself available for continuous dialogue and works in close collaboration with the NPMs, in order to ensure ongoing monitoring of all places of detention.

The SPT undertakes country missions, by sending a delegation to visit places of deprivation of liberty. During its visits, the SPT examines conditions of individuals’ daily lives in places of detention, legislative and institutional frameworks, and other areas that may be related to the prevention of torture and ill-treatment. At the end of its country visits, it communicates its recommendations and observations to the State by means of a confidential report, and if necessary, to the NPMs. However, State parties are encouraged to request the SPT to publish the visit reports.

The SPT is guided by the principles of confidentiality, impartiality, non-selectivity, universality and objectivity. The SPT conducts its work in a spirit of co-operation. It aims to engage with States parties via constructive dialogue and collaboration rather than condemnation. Nevertheless, if the State party refuses to co-operate or fails to take steps to improve the situation in light of the SPT’s recommendations, the SPT may request the Committee against Torture to make a public statement or to publish the SPT report