Post on 16-Dec-2015
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Overview
General Prohibition against torture Sources of specific obligations Substance of the specific obligations
The UN Convention against Torture International and regional mechanisms Specific obligations in an African context African Mechanisms
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
General Prohibition
Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political
Rights (“ICCPR”), 1966, Geneva Conventions, 1949,
Rome Statute of the International Criminal Court, 1998,
European, American, African regional human rights treaties.
Peremptory Norm of Customary International Law
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Sources of Specific Obligations
Customary International Law Treaties Other Instruments
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Specific Obligations: Customary International Law
The obligation not to subject people to torture is a rule of customary international law.
Obligations of states: Respect the prohibition of
torture, prevent torture and punish acts of torture, whether or not they are party to a treaty
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Specific Obligations: Treaties
UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), 1984.
Inter-American Convention to Prevent and Punish Torture, 1985.
The African Charter on Human and Peoples’ Rights, 1986
European Convention for the Prevention of Torture, 1987.
Optional Protocol to the UNCAT (“OPCAT”), 2002.
UN Convention on Enforced Disappearances, 2006
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Specific Obligations: Other Instruments
UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1975.
UN Standard Minimum Rules for the Treatment of Prisoners, 1955/1977.
UN Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, 1988.
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Specific Obligations: Other Instruments
Kampala Declaration on Prison Conditions in Africa, 1996.
Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, 2002. (The Robben Island Guidelines)
UNCAT - African Ratifications
Morocco TunisiaAlgeria Libya Mauritania EgyptMali NigerSenegal Chad
Guinea EthiopiaBurkina Faso DjiboutiBenin UgandaSierra Leone SomaliaLiberia KenyaIvory Coast Burundi Ghana ZambiaTogoNigeria MalawiCameroon Botswana Eq. Guniea MozambiqueGabonCongo Seychelles
MauritiusNamibia SwazilandSouth Africa Lesotho Cape Verde
Total number of African ratifications: 41Total number of ratifications: 146
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Definition of Torture
• Torture is infliction of severe pain or suffering, whether physical or mental.
• Torture is a deliberate action.• Torture seeks to force confessions, information
or punishment or for any reason based on discrimination of any kind.
• Torture is carried out by a public authority – which encourages or consents to the use of torture.
UNCAT, Art. 1
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Substance of Specific Obligations Prohibition:
State actors must not perpetrate or allow torture or other ill-treatment.
All torture must be criminalized.
No exceptions based on notions such as necessity, national emergency, public order or superior orders.
Persons cannot be sent to a real risk of torture or other ill-treatment elsewhere. (principle of non-refoulement)
No use of information obtained through torture in any proceedings.
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Substance of Specific Obligations Prevention:
laws and other measures.
no secret detention.
judicial supervision and access to judicial review.
independent lawyers and medical care.
contact with the outside world, incl. family members.
Education of law enforcement agencies
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Substance of Specific Obligations
Investigation, Punishment and Remedy:
Impartial investigation No impunity - Perpetrators of torture must be criminally
prosecuted.
Punishment should match the grave nature of acts of torture.
“No safe haven” for torturers.
Right to public redress, rehabilitation and compensation.
Institutional framework (UN)
Member States
GeneralAssembly
GeneralAssembly
Human Rights
Council
Human Rights
Council
Special Rapporteur on
Torture
Special Rapporteur on
Torture
Working Group on Arbitrary Detention
Working Group on Arbitrary Detention
Working Group on Enforced
Disappearance
Working Group on Enforced
Disappearance
Special Rapporteur on Terrorism and Human Rights
Special Rapporteur on Terrorism and Human Rights
Convention against Torture
Convention against Torture
Committee against Torture
Committee against Torture
State Reports
State Reports
Individual Complaints
Individual Complaints
Covenant on Civil and Political Rights
Covenant on Civil and Political Rights
Human Rights
Committee
Human Rights
Committee
State Reports
State Reports
Individual Complaints
Individual Complaints
High Commissioner
for Human Rights
OHCHR Treaties and Commission BranchOHCHR Special Procedures Branch
Charter Bodies Treaty Bodies
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
International Mechanisms
UN Treaty-based mechanisms
A distinguishing factor of most treaty-based mechanisms is that they are responsive to information submitted to them.
Committee Against Torture (CAT) Consideration of State Party reports. (Art. 19) Look into allegations of systematic torture by a State Party.
(Art. 20) Hear complaint from a State against another State. (Art. 21) Hear individual complaints. (Art. 22)
Only 8 African States have declared that they accept the CAT to hear individual complaints.
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
International Mechanisms
UN Charter based mechanisms
Special Rapporteur on Torture
3 man activities: Urgent Appeals and
allegations letters Fact finding missions Annual report
Shortcomings: Visits to States Parties
dependent on their accept Recommendations without
binding character
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
International Mechanisms
International Committee of the Red Cross (ICRC)
European Committee for the Prevention of Torture (CPT)
Optional Protocol to the Convention against Torture (OPCAT)
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Specific Obligations in an African Context
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.
African Charter on Human and Peoples’ Rights, 1986.
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Specific Obligations in an African Context Article 5
All four forms of ill-treatment are mentioned. Torture, cruelty, inhuman and degrading treatment. No clear
categorisation elaborated in case law.
Violation of personal dignity (Krishna Achutan vs. Malawi)
Chaining persons for days without access to sanitary facilities,
no access to food water or sunlight, beating them with sticks and iron bars, keeping prisoners in solitary confinement
Inhuman Treatment (Ghazi Sulaiman v. Sudan)
Detention without contact to family
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
Specific Obligations in an African Context
Robben Island Guidelines, 2002.
Part 1 – Prohibition of torture
Part 2 – Prevention of torture
Part 3 – Responding to the needs of victims
Follow-up Committee to ensure the implementation of the Robben Island guidelines set-up in 2002.
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
African Mechanisms
African Commission on Human and Peoples’ Rights, 1987. A body of 11 independent experts Promote, protect and interpret the rights of
the Charter Examination of States reports Visits to States Parties Consider States complaints Consider individual complaints
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
African Mechanisms
African Court on Human and Peoples’ Rights Protocol to the African Charter
Adopted 10 June 1998 – entered into force 25 January 2004. 23 States have ratified the Protocol Will be merged with the African Court of Justice Individual complaints only if state makes declaration Judgments are legally binding
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
African Mechanisms The Kampala Declaration on
Prison Conditions in Africa, 1996.
The Special Rapporteur on Prisons and Conditions of Detention in Africa, 1997.
3 means of action to fulfill mandate:
Examination of individual complaints
Urgent Action Procedure
Investigation and reporting through country visits
Upon invitation from Governments
Visit places of detention
Lecture on Torture and Human Rights in AfricaCentre for African Studies
February 2009
African Regional Mechanisms
ECOWAS (Economic Community of West African States) ECOWAS Community Court
Human rights mandate since 2005 Individuals and NGOs may bring cases before the Court No requirement to exhaust domestic remedies Decisions of the court are final and legally binding Approximately 15 decisions on human rights cases since
2005