Saturday, October 25, 2014

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10: Monitoring the Prohibition on Torture

Despite an absolute prohibition on torture, it is still in practice. How is freedom from torture being enforced internationally?
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A prison dormitory at Robben Island prison, South Africa. Photograph by Dallas75.

I – KEY TO INTEGRITY

The preamble to each constituent part of the International Bill of Human Rights – the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights – explicitly mentions respect for human dignity as one of the foundational principles of the human rights movement. The prohibition of torture, along with the right to life, is a springboard from which many other human rights proceed and is said to guarantee the inherent dignity of individuals.

Yet the use of torture in modern times has continued. It has been used as a tool of repression, and has largely been tied to the realm of security operations – a place often beyond critique, in the name of ‘national interests’. Moreover, as methods of torture have diversified and grown in sophistication, they have become harder to detect.

II – AN OVERVIEW OF THE LEGAL PROHIBITION ON TORTURE

Given its importance to the international community, it should be of no surprise that the prohibition of torture is a peremptory norm and is thus expressed in several treaties and recognised as being part of customary international law.

i) International condemnation

Article 5 of the Universal Declaration of Human Rights states that “no-one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment” and forms the foundation upon which subsequent documents have been drawn at both an international and a regional level. Articles 7 and 10 of the International Covenant on Civil and Political Rights are designed to enact this prohibition. Regional instruments such as the European Convention on Human Rights (Article 3), the American Convention on Human Rights (Article 5) and the African Charter on Human and Peoples’ Rights (Article 5) have given this further expression. The prohibition is so widespread and fundamental to conceptions of a just society that it is also part of customary international law.

Torture is also prohibited in international humanitarian law through Articles 3, 12 and 50 of the Geneva Convention I, Articles 3, 12 and 51 of the Geneva Convention II, Articles 3, 17, 87 and 139 of Geneva Convention III and Articles 3, 32 and 147 of Geneva Convention IV. Furthermore, as the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC) have shown, individuals can be held liable under international criminal law for acts of torture.

ii) UNCAT

The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) provides further detail on this issue. Article 1 defines torture as:

“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.”

UNCAT requires states to ensure torture is a criminal offence in national law and that they have the necessary jurisdiction over these offences. In such circumstances state parties are obliged to prosecute or extradite suspects.

iii) Nature of the obligations on the state

Although many human rights are subject to limitations, the prohibition of torture is guaranteed in absolute terms, regardless of whether states are officially party to the relevant treaties. The Human Rights Committee in General Comment 20 concerning prohibition of torture and cruel treatment or punishment (Article 7) states that “no justification or extenuating circumstances may be invoked to excuse a violation” of the right – a point further reinforced in the International Criminal Tribunal for the former Yugoslavia's case of Prosecutor v. Furundzija 1998 in which the Trial Chamber found that the prohibition against the use of torture had attained the status of jus cogens.

There are two types of obligations that human rights and international law can impose upon a state – negative, which requires the state to refrain from a particular course of action, and positive, which requires state action. In the context of torture, this includes a negative obligation to prohibit and criminalise all acts of torture, and a positive obligation to investigate allegations of torture.

III – REGIONAL INSTRUMENTS

All states who are members of the African Union have also agreed to be legally bound by the African Charter on Human and Peoples’ Rights as the regional human rights treaty. The African Charter, among its many rights, also expressly prohibits torture, noting in Article 5:

“Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

The body established to promote and protect the rights in the Charter, the African Commission on Human and Peoples’ Rights, has a wide mandate including the ability to adopt resolutions, create working groups and special rapporteurs on thematic issues, and adopt decisions on complaints submitted by individuals and others who allege that a state has violated their rights under the Charter.

Although states have been increasingly willing to engage with the Commission’s work, it is a quasi-judicial body with few enforcement mechanisms. Nevertheless, on numerous occasions the African Commission has held states to have been in violation of the prohibition on torture, whether in the context of condemning lashings as a sentence under Sharia law (in a case against Sudan, Communication 236/00, Curtis Francis Doebbler/Sudan), the treatment of detainees, or the conditions of detention in prisons.

Poor treatment in detention – such as failure to provide access to doctors, poor quality of food, overcrowding and solitary confinement – are seen to violate the prohibition on torture. And the prohibition has also been interpreted as requiring states to take certain positive actions, including ensuring detainees have access to effective complaints procedures; instituting human rights training for law enforcement agencies, and prosecuting and punishing private actors who commit acts of torture. Furthermore, the African Commission has called on states to ensure that remedy and compensation in the form of medical care, rehabilitation and support is provided by states to victims of torture.

To monitor states’ protection of these rights, certain bodies have been established. In 1996, for example, a Special Rapporteur on Prisons and Other Conditions of Detention was set up to examine the situation of persons deprived of their liberty; methods of work include visits to prisons across Africa and the proposal of recommendations for improvements to the authorities, sometimes returning to follow-up on findings. And in 2002, the African Commission adopted the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman and Degrading Treatment or Punishment in Africa (Robben Island Guidelines) (2002) and set up a committee – now the Committee on the Prevention of Torture in Africa (CPTA) – to monitor and promote their implementation.

IV – MONITORING DETENTION

One of the main aims in creating the Robben Island Guidelines was to highlight and encourage the need for states in Africa to sign up to other international agreements against torture, specifically the UN Convention Against Torture and its Optional Protocol (OPCAT).

There are a variety of bodies that visit places of detention on the continent, although they generally require the prior consent of relevant states. UN bodies such as the Working Group on Arbitrary Detention, the Committee Against Torture, and the Special Rapporteur on Torture all have a role to play in monitoring detention. The International Committee of the Red Cross (although strictly confidential), field mission offices of the Office of the High Commissioner for Human Rights, the UNDP, and the UN High Commissioner for Refugees also visit places of detention. In conflict situations, UN peacekeeping missions, such as the UN Mission in Liberia (UNMIL) have also undertaken this function.

Perhaps the most visible of these bodies, and those with the most potential to be effective are, at the international level, the UN Committee Against Torture and the mechanisms established under OPCAT, and at the regional level, the African Commission’s Committee on the Prevention of Torture in Africa and its Special Rapporteur on Prisons and Other Conditions of Detention.

OPCAT is particularly important and innovative in its approach to torture prevention. It has established an international body mandated to visit places of detention (the Subcommittee on Prevention of Torture [SPT]) and also requires states to select from among existing national bodies, or establish a new body, as a ‘national preventive mechanism’ (NPM) to visit places of detention internally with the aim of preventing torture.

These NPMs can be the existing national human rights commission (as in Mali and Mauritius), or an ombudsman (with civil society involvement or acting alone), or a newly-established body (for example, the National Observatory of Places of Deprivation of Liberty in Senegal). Torture prevention expert organisations such as the Association for the Prevention of Torture (APT) have long advocated for the creation of such visiting bodies based on the understanding that regular, independent visits, particularly unannounced visits, to places of detention will prevent torture occurring.

Furthermore, places of detention in this context are not just prisons or police cells. OPCAT is much broader than this and therefore states should provide, as part of their international obligations, their national bodies with the powers to visit a non-exhaustive list of places where people may be deprived of their liberty; for example, psychiatric institutions, immigration detention facilities, secure accommodation for juveniles, or witch camps that exist in some states.

i) Why have so few African states agreed to this monitoring system?

So far, 11 states in Africa have agreed to be legally bound by OPCAT, although not all of them have set up their own national bodies to monitor places of detention. This is a relatively low take-up rate despite the admirable efforts of organisations such as the APT and others on the continent. What is preventing African states from ratifying these important instruments?

It may be in part be due to a suspicion of an international visiting body, and a concern by states that a body composed of experts from outside the continent will not be sufficiently aware of specific challenges in Africa. The reluctance may also be exacerbated by the fact that there are few SPT members from Africa and that the SPT has had limited capacity to develop its work on the continent.

In the absence of regular visits by an international body, it becomes even more important that states fulfil their obligations under OPCAT to establish, designate or maintain a national body as an independent monitor within the state. These NPMs have a greater capacity to visit all places of detention and engage in a regular dialogue with the authorities to prevent torture and implement their recommendations. The visits by NPMs, however, should continue to run alongside, rather than replace civil society organisations which also visit places of detention. Even with a fully-functioning NPM that takes into account all the requirements in OPCAT, there is still space and a need for civil society organisations to monitor places of detention and the work of the NPM itself.

ii) What role should regional monitoring bodies play?

What can African bodies add to this international system? And how should these different mandates be coordinated? Torture prevention on the continent is also supported by the regional Committee on the Prevention of Torture in Africa, which has visited states to promote African torture prevention standards and encourage states to set up their own national preventive mechanism under OPCAT. Together with its Special Rapporteur on Prisons, the African Commission has a credible history of work in this area. However, it is perhaps the availability of a universally-accepted and respected treaty in the UN Convention against Torture, and its Optional Protocol which has left the African bodies, in part, in limbo in identifying the role they can fill on the continent.

What is arguably needed now is for the African Commission to take a strategic role in consolidating its work on torture at the regional level. It can do so through adopting more substantive interpretations and codifying provisions under the African Charter and its Robben Island Guidelines.

The African Commission, its Special Rapporteur and Committee on the Prevention of Torture need to work closely with the SPT, other UN bodies and other actors in specific states to raise awareness of these mechanisms. Given that so few African states have ratified OPCAT and therefore established national mechanisms, the initial role of the Robben Island Guidelines still stands and the African Commission should encourage states in this regard. It is arguably through the establishment of national mechanisms with a role not only in monitoring places of detention but also in undertaking a broader torture preventive mandate that will have the greatest capacity to prevent torture on the ground.

For more information about the course please read our introductory blog post.

Think Africa Press welcomes inquiries regarding the republication of its articles. If you would like to republish this article, provide feedback, ask or answer questions or request new content please contact rom.bhandari@thinkafricapress.com or get in touch via Twitter at @romromromTAP.

QUESTIONS TO CONSIDER:

1. How does the international community uphold the prohibition on the use of torture? Upon what basis is it accepted as a principle of jus cogens.

2. What are the problems associated with acting on and prosecuting in cases of alleged use of torture?

3. How effective are the current bodies that have been set up to stop the use of torture? 

4. What explanations are there for the relatively low uptake of monitoring systems in Africa?

FURTHER READING:

Muntingh, L. (2010), ‘The betrayal of Steve Biko-South Africa’s Initial Report to the UN Committee against Torture and responses from civil society’, Law Democracy and Development, 12(1), pp. 29-48

Harper, J. (2009), ‘Defining Torture: Bridging the Gap Between Rhetoric and Reality’, Santa Clara Law Review, 49(3), pp. 893-928

Hessbruegge, J.A. (2010), ‘ECOWAS Court Judgement in Habré v. Senegal Complicates Prosecution in the Name of Africa’, Insights, American Society of International Law, 15(4)

Edmondson, A. (2012), ‘The Moral Justification Against Torture’, The Manchester Review of Law, 72, pp.77-85

Gilligan, M.J and Nesbitt, N.H. (2009), ‘Do Norms Reduce Torture?’ The Journal of Legal Studies, 38(2), pp.445-470

Muntingh, L. (2008), ‘Guide to the UN Convention Against Torture in South Africa’, Civil Society Prison Reform Initiative, available at http://ppja.org/countries/south-africa/Guide%20to%20UN%20Convention%20Against%20Torture%20in%20South%20Africa%202008.pdf

Ikpang, A.J. (2011), ‘Criminalisation of Torture in Nigeria: A Desideratum’, Sacha Journal of Human Rights, 1(1), pp. 1-13

Hajjar, L. (2009), ‘Does Torture Work? A Sociological Assessment of the Practice in Historical and Global Perspective’, Annual Review of Law and Social Science, 5, 311-45

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