The Gravity of Torture
1. Legal Gravity : Torture is an offence jus cogens
Certain internationally recognised rights are regarded as so fundamental that they have achieved the status of jus cogens. The term is defined in the 1969 Vienna Convention on the Law of Treaties as:
“…a peremptory norm of general international law … [that is] accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
Jus cogens has a higher status than customary international law:
“‘International law provides that offences jus cogens may be punished by any state because the offenders are ‘common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution’; Demjanjuk v. Petrovsky (1985) 603 F.Supp. 1468; 776 F.2d 571.”
Where an individual has a credible claim to having been tortured by State agents, the notion of an effective remedy entails, in addition to payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible.
2. Social Gravity
Existing practices of torture within a society have enormous impact on that society:
- Acceptance of torture makes cruelty a common habit. When the State engages in cruelty, it lacks legitimacy to engage in socially civilising activities.
- Torture legitimises violence and thus makes total abhorrence to violence impossible: general abhorrence of violence is a precondition for a peace-loving society.
- Torture makes the evil nature of violence relative.
- Torture makes all values relative, whether love, kindness, equality, fair play, tolerance, honesty, trust, etc.
- Torture creates an underlying state of fear in society, which makes deeper cooperation among people impossible.
- Torture breeds contempt and creates low-spirited societies.
- Torture in the public sphere permeates the private sphere, especially in the form of violence against women and children.
3. Institutional Gravity
- Torture destroys the idealism of democratic institutions, particularly law enforcement agencies.
- Torture creates double standards within state institutions, especially the police, military and judiciary.
- Torture creates fear among people of state law enforcement agencies and in turn low esteem among colleagues in these agencies; a “we are part of a dirty service” mentality. It destroys cooperation between these institutions and the people.
- State institutions find it impossible to carry out their functions in an objective and efficient manner; it diminishes and finally destroys the criminal investigation function of law enforcement agencies.
- Torture poses a threat to fair trial and often makes fair trial impossible.
4. Gravity for Individuals
- Torture has enormous impact on victims, victims’ families, perpetrators and their families, and others who are aware of such torture in civil society, as well as law enforcement agencies.
Victims and their families
- Victims and their families suffer both in the short and long term, physically and mentally.
- Victims and their families experience social ostracisation.
- Children of victims suffer deep psychological and social effects from the torture of their loved ones.
- Victims and their families have low self-esteem.
Perpetrators and their families
Perpetrators and their families also suffer from similar psychological effects, though they hide them through a fa�ade of pride and superiority.
In family relationships, perpetrators suffer from having to put up a double image; nice fathers on the one hand, cruel persons on the other.
Society as a whole
- Not only victims or perpetrators suffer from widespread practices of torture; all individuals living in such societies suffer.
5. Gravity for the State
- A State that directly or indirectly encourages torture is guilty of an offence jus cogens and the leaders of the government will be liable for such an offence.
- A State that does not provide a legal remedy for such a violation also violates the obligation imposed under UN instruments.
- A State that relies on torture may in fact aggravate conflicts and encourage the rise of terrorism.
Note by the UN Secretary-General
Fifty-fourth session of the UN General Assembly, Agenda item 116 (a)
Human rights questions: implementation of human rights instruments: Torture and other cruel, inhuman or degrading treatment or punishment
The Secretary-General has the honour to transmit to the members of the General Assembly the interim report submitted by Sir Nigel Rodley, Special Rapporteur of the Commission on Human Rights on the question of torture and other cruel, inhuman or degrading treatment or punishment, in accordance with Assembly resolution 53/139 of 9 December 1998.
Annex
Report on torture and other cruel, inhuman or degrading treatment or punishment, submitted by Sir Nigel Rodley, Special Rapporteur of the Commission on Human Rights, in accordance with General Assembly resolution 53/139
I. Introduction
1. The present report has been submitted by the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment pursuant to General Assembly resolution 53/139 and resolution 1999/32 of the Commission on Human Rights. It is the first written report to be submitted to the General Assembly1 since the forty-first session of the Commission on Human Rights, at which the Commission adopted resolution 1985/33, in which it decided to appoint a special rapporteur to examine questions relevant to torture.
A. History
4. At its forty-first session, the Commission on Human Rights adopted resolution 1985/33, in which it decided to appoint a special rapporteur to examine questions relevant to torture, requesting him to seek and receive credible and reliable information on such questions and to respond to that information without delay. The mandate was ubsequently renewed by the Commission in 1986, 1987, 1988, 1990, in resolution 1992/32 (when the Commission extended the mandate for a period of three years), in 1995 and 1998.
5. Pursuant to this mandate, the Special Rapporteur established contact with governments requesting information on the legislative and administrative measures taken to prevent torture and to remedy its consequences whenever it occurs. Further, the provision of the mandate calling upon him to respond effectively to the credible and reliable information that comes before him led to the urgent action procedure by which the Special Rapporteur requests assurances from the concerned Government to ensure protection of the individual’s right to physical and mental integrity.
9. The right to be free from torture and cruel, inhuman or degrading treatment or punishment is a non-derogable right, the protection of which is explicitly affirmed in article 5 of the Universal Declaration of Human Rights, article 7 of the International Covenant on Civil and Political Rights, the Declaration of All Persons from Being Subjected to Torture and Other Cruel, Inhuman Treatment or Punishment and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment.
10. In accordance with article 2 of the Universal Declaration of Human Rights and articles 2 and 26 of the International Covenant on Civil and Political Rights, and pursuant to several other United Nations declarations and conventions, everyone is entitled to this right without distinction or discrimination of any kind, and all persons shall be guaranteed equal and effective access to remedies for the violation of this right.
III. Methods of work and other activities since 1993
13. The Special Rapporteur discharges his mandate mainly on the basis of information brought to his attention by non-governmental organizations, Governments, individuals and intergovernmental organizations. These communications contain specific cases of alleged torture and cruel, inhuman or degrading treatment or punishment and general information about questions related to torture.
B. Urgent appeals
18. An urgent appeal is made on the basis of information received by the Special Rapporteur expressing concern about the fact that a person is at risk of being subjected to torture. Such concern may be based, inter alia, on accounts by witnesses of the person’s physical condition while in detention, or on the fact that the person is kept incommunicado, a situation which may be conducive to torture. The Special Rapporteur, when making a determination as to whether there are reasonable grounds to believe that an identifiable risk of torture exists, takes into account a number of factors, any one of which may be sufficient, though generally more than one will be present. These factors include: (a) the previous reliability of the source of the information; (b) the internal consistency of the information; (c) the consistency of the information with information on other cases from the country in question that has come to the Special Rapporteur’s attention; (d) the existence of authoritative reports of practices of torture from national sources, such as official commissions of inquiry; (e) the findings of other international bodies, such as those established in the framework of the United Nations human rights machinery; (f) the existence of national legislation, such as that permitting prolonged incommunicado detention, that can have the effect of facilitating torture; and (g) the threat of extradition or deportation, directly or indirectly, to a State or territory where one or more of the above elements are present.
C. Government replies and follow-up communications
25. In its annual resolution on the question of torture and other cruel, inhuman or degrading treatment or punishment, the Commission on Human Rights has continuously called upon all Governments to cooperate with and assist the Special Rapporteur on the question of torture, to supply all necessary information requested by him and to react appropriately and expeditiously to his urgent appeals. While many Governments have replied in an expeditious manner to his communications, many others have failed to do so.
28. The Special Rapporteur carries out visits to countries on invitation, but also takes the initiative of approaching Governments with a view to carrying out visits to countries concerning which he has received information indicating the existence of a significant incidence of torture
A. Gender-specific forms of torture
39. In paragraph 5 of its resolution 1994/37 the Commission on Human Rights “invite[d] the Special Rapporteur to examine questions concerning torture directed disproportionately or primarily against women and conditions conducive to such torture, and to make appropriate recommendations concerning prevention of gender-specific forms of torture”
B. Violation of the prohibition of torture of children
40. In paragraph 5 of its resolution 1995/37 B the Commission on Human Rights invited the Special Rapporteur to examine questions concerning torture directed primarily against women and children and conditions conducive to such torture and to make appropriate recommendations concerning the prevention of gender specific forms of torture and the torture of children. In his report to the fifty-second session of the Commission on Human Rights, the Special Rapporteur considered the issue of torture and children (E/CN.4/1996/35, paras. 9-17).
C. Corporal punishment
41. In his report to the fifty-third session of the Commission on Human Rights, the Special Rapporteur addressed the issue of corporal punishment (E/CN.4/1997/7, paras. 3-11). He noted in this report that it had been the general practice of the mandate to take up cases involving corporal punishment, usually by means of the urgent appeal method. He further noted, however, that the Government of Saudi Arabia had contested the basis of the Special Rapporteur’s concern with corporal punishment and, therefore, he addressed the relationship of the practice to the mandate of the Special Rapporteur in that report.
D. Incommunicado detention
42. In his 1988 report to the Commission on Human Rights at its fifty-fourth session, the Special Rapporteur’s predecessor recommended, inter alia, that incommunicado detention should be declared illegal (E/CN.4/1988/17). Similarly, in its general comment (16) adopted at its sixteenth session, of 27 July 1982, the Human Rights Committee states: “Among the safeguards which may make control effective are provisions against detention incommunicado, granting, without prejudice to the investigation, persons such as doctors, lawyers and family members access to the detainees; provisions requiring that detainees should be held in places that are publicly recognized and that their names and places of detention should be entered in a central register available to persons concerned, such as relatives …”3 Based upon information received over the course of the past seven years, the Special Rapporteur is of the view that incommunicado detention is the most important determining factor as to whether an individual is at risk of torture. As such, the Special Rapporteur reiterates the recommendation of his predecessor and urges all States to declare incommunicado detention illegal.4
E. Torture of human rights defenders
43. In its resolution 1999/66, the Commission on Human Rights urged all treaty bodies and special representatives, special rapporteurs and working groups of the Commission and the Subcommission to give due regard to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (General Assembly resolution 53/144, annex) within their mandates. Article 12 (2) of the Declaration provides that “[t]he State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration”.
44. The Special Rapporteur has continuously received allegations concerning the torture or ill-treatment of human rights defenders. In the latest statistics available to the Special Rapporteur, in the years 1997 and 1998 21 human rights defenders were tortured or ill-treated or at risk of torture or ill-treatment. The repression of human rights defenders has a chilling effect on the promotion and protection of human rights and thus is of grave concern to the Special Rapporteur. In his forthcoming report to the Commission on Human Rights, the Special Rapporteur will address this issue in greater detail.
F. Question of non-refoulement
45. Article 3 (1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment provides that “[n]o State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”The Human Rights Committee has also stated, in its general comment 20 (44) of 3 April 1992, that “States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. States parties should indicate in their reports what measures they have adopted to that end.”5
46. The Special Rapporteur has utilized the urgent appeal mechanisms to intervene in cases where an individual is to be deported, extradited, expelled or returned to another country where he or she is thought to be at risk of torture or ill-treatment. In this regard, the Special Rapporteur wishes to emphasize that he does not request the concerned State not to return the individual, but rather, he calls upon the State to take effective steps to ensure that the individual would not be subjected to such treatment if he or she is indeed returned.
G. Question of impunity
47. Both the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment establish an obligation for the State to carry out an impartial investigation, even if there has been no formal complaint, where there is reasonable ground to believe that an act of torture has been committed. Further, States have an obligation to ensure that all acts of torture are offences under its criminal law and that these offences shall be punishable by appropriate penalties. Moreover, any person alleged to have committed such an offence shall be taken into custody or shall have other legal measures taken against him to ensure his presence.
48. The Special Rapporteur is of the view that impunity continues to be the principal cause of perpetuation and encouragement of human rights violations and, in particular, torture. The Special Rapporteur is in agreement with his colleague, the Special Rapporteur on extrajudicial, summary or arbitrary executions, that even if in exceptional cases Governments may decide that perpetrators should benefit from measures that would exempt them from or limit the extent of their punishment, the obligation of Governments to bring them to justice and hold them formally accountable stands (see A/51/457, para. 120).
H. Compensation and rehabilitation of torture victims
49. Both the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provide that a State should ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full a rehabilitation as possible.
50. In this regard, the Special Rapporteur calls upon all States to support to the maximum extent possible the United Nations Voluntary Fund for Victims of Torture. Further, all States should support and assist rehabilitation centres that may exist in their territory to ensure that victims of torture are provided means for as full a rehabilitation as possible.
I. Ratification of or accession to the Convention against Torture
51. There are currently 117 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In its annual resolutions on the question of torture, the Commission on Human Rights has continuously called upon all States to become parties to the Convention. Further, it has invited all States ratifying or acceding to the Convention and those States parties that have not yet done so to make the declaration provided for in articles 21 and 22 of the Convention and to avoid making, or consider the possibility of withdrawing, reservations to article 20 (see, for example, resolution 1999/32).
52. The Special Rapporteur joins in this call, noting that ratification of or accession to the Convention demonstrates a State’s commitment to eradicating the practice of torture.
J. Manual on the effective investigation of torture
53. During 1999, the Special Rapporteur participated in two meetings concerning the preparation of a manual on effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment, the first held in Istanbul, Turkey, from 11 to 13 March 1999 and the second held in Geneva at the Palais Wilson on 9 September 1999. The manual, inspired by the Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions6 is intended to serve as international guidelines for the assessment of persons who allege torture and ill- treatment, for investigating cases of alleged torture, and for reporting such findings to the judiciary and other investigative bodies. While the manual was developed to enable States to address the problem of effective documentation, it is also intended to apply to other contexts including human rights investigations and monitoring by ntergovernmental and non-governmental organizations, evaluations of applications for political asylum, the defence of individuals who “confess” to crimes during torture, and needs assessments for the care of torture victims. The conceptualization and preparation of the manual was a collaborative effort between forensic doctors, physicians, psychologists, human rights monitors and lawyers representing 41 organizations or institutions from 15 countries.
54. The manual will include principles on the effective documentation of torture and other cruel, inhuman or degrading treatment or punishment, which would outline minimum standards for States to ensure the effective documentation of torture.
55. The Special Rapporteur is of the view that the manual will be an important tool for States in carrying out investigations concerning allegations of torture or ill-treatment.
