Reporting Killings as Human Rights Violations Handbook

Combating Torture

A Manual for Judges and Prosecutors

By Conor Foley

Manual links: website home page
Table of Contents - Search - Introduction - 1: The Prohibition of Torture in International Law - 2: Safeguards Against Torture - 3: The Role of Judges and Prosecutors - 4: Conducting Investigations and Inquiries - 5: Prosecuting Suspected Torturers and Providing Redress - Appendices
1 The prohibition of torture in international law: section links...
The prohibition of torture in international law - General prohibition - The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 - Other relevant standards - Legal definitions - International supervisory machinery and complaints procedures

The prohibition of torture in international law

1.1 This chapter briefly sets out the prohibition of torture in international law and the obligations that flow from this prohibition. It also describes some of the supervisory bodies that have been established to monitor compliance with this obligation. The practice of these bodies can help inform the judge and prosecutor about the scope of international standards as they seek to apply them at the national level.

1.2 The international community has developed standards to protect people against torture that apply to all legal systems in the world. The standards take into account the diversity of legal systems that exist and set out minimum guarantees that every system should provide. Judges and prosecutors have a responsibility to ensure that these standards are adhered to, within the framework of their own legal systems. Even if a country has not ratified a particular treaty prohibiting torture, because the prohibition of torture is so fundamental, the country is in any event bound on the basis of general international law.1

1.3 In many countries, the courts are expected to apply treaties ratified by their states, or general (or customary) international law or both. Failure to do so is a failure of professional duty. Even in those countries where international law may not be directly invoked before the courts it is prudent that the judiciary do not place the state in violation of its international law obligations, including the prohibition of torture. This is because, under international law, no state may invoke its national constitution or laws to justify a breach of international law.

1.4 The standards cited in this manual have differing legal status. Some are contained in treaties that are legally binding on those states that have signed and ratified or acceded to them. Many of the more detailed safeguards against torture are contained in 'soft law' instruments -- such as declarations, resolutions, or bodies of principles -- or in the reports of international monitoring bodies and institutions. While not directly binding these standards have the persuasive power of having been negotiated by governments and/or adopted by political bodies such as the UN General Assembly. Sometimes they affirm principles that are already considered to be legally binding as principles of general or customary international law. They often also spell out in more detail the necessary steps to be taken in order to safeguard the fundamental right of all people to be protected against torture.

1.5 A number of UN bodies have been created by particular conventions to monitor compliance with these standards and provide guidance on how they should be interpreted. These bodies generally issue general comments and recommendations, review reports by states parties and issue concluding observations on the compliance of a state with the relevant convention. Some also consider complaints from individuals who claim to have suffered violations. In this way they can provide authoritative interpretations of the treaty provisions and the obligations that these place on states parties.

1.6 The UN has also set up a number of extra-conventional mechanisms to examine particular issues of special concern to the international community or the situation in specific countries. These monitor all states, irrespective of whether they have ratified a particular convention, and can draw attention to particular violations.


Notes:

1 Article 38 of the Statute of the International Court of Justice lists the means for determining the rules of international law as: international conventions establishing rules, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations and judicial decisions and the teaching of eminent publicists. General international law (customary international law) consists of norms that emanate from various combinations of these sources. [...back to main text]

 

General prohibition

1.7 The prohibition of torture is found in a number of international human rights and humanitarian treaties and is also regarded as a principle of general international law. The prohibition of torture is also considered to carry a special status in general international law, that of jus cogens, which is a 'peremptory norm' of general international law.2 General international law is binding on all states, even if they have not ratified a particular treaty. Rules of jus cogens cannot be contradicted by treaty law or by other rules of international law.

1.8 The prohibition of torture is found in Article 5 of the Universal Declaration of Human Rights (1948) and a number of international and regional human rights treaties. The vast majority of states have ratified treaties that contain provisions that prohibit torture and other forms of ill-treatment. These include: the International Covenant on Civil and Political Rights (1966),3 the European Convention on Human Rights (1950),4 the American Convention on Human Rights (1978)5 and the African Charter on Human and People's Rights (1981).6 The texts of the Articles relating to torture from some of these treaties and a table of country ratifications of selected universal treaties are included in the Appendices to this manual.

1.9 A number of treaties have also been drawn up specifically to combat torture. These are:

The absolute prohibition of torture and ill-treatment is underlined by its non-derogable status in human rights law. There are no circumstances in which states can set aside or restrict this obligation, even in times of war or other emergency threatening the life of the nation, which may justify the suspension or limitation of some other rights.7 States are also restricted from making derogations which may put individuals at risk of torture or ill-treatment -- for example, by allowing excessive periods of incommunicado detention or denying a detainee prompt access to a court.8 This prohibition operates irrespective of circumstances or attributes, such as the status of the victim or, if he or she is a criminal suspect, upon the crimes that the victim is suspected of having committed.9

1.10 State officials are prohibited from inflicting, instigating or tolerating the torture or other cruel, inhuman or degrading treatment or punishment of any person. An order from a superior officer or a public authority may not be invoked as a justification for torture.10 States are also required to ensure that all acts of torture are offences under their criminal law, establish criminal jurisdiction over such acts, investigate all such acts and hold those responsible for committing them to account.11

1.11 Torture and other ill-treatment of any person in the power of another party are also banned as a war crime under the laws of armed conflict (humanitarian law).12 The prohibition against torture in humanitarian law is expressly found in Common Article 3 of the Geneva Conventions and in various provisions of the four Geneva Conventions, including the grave breaches provisions,13 and the Additional Protocols of 1977.14 Torture is also considered to be a crime against humanity when the acts are perpetrated as part of a widespread or systematic attack against a civilian population, whether or not they are committed in the course of an armed conflict. Thus, for example, Article 7 of the Rome Statute of the International Criminal Court (ICC) includes torture and rape within the Court's jurisdiction. The text of Common Article 3 of the Geneva Conventions and Articles 7 and 8 of the Rome Statute are included in Appendix One of this manual.

1.12 The main focus of this manual is on torture and ill-treatment by state agents, particularly law enforcement officials. However, there is also a growing acceptance of the importance of safeguarding people from similar treatment carried out by private groups or individuals against persons under the effective control of those groups or individuals. States are responsible for safeguarding the rights of everyone within their jurisdiction and may be held accountable for acts carried out by private individuals if it supports or tolerates them, or fails in other ways to provide effective protection in law against them.15

1.13 The right of an individual to protection against torture and other prohibited forms of ill-treatment includes the right not to be returned to a country where there are substantial grounds for believing that he or she is at risk of suffering such treatment.16 People have a right not to be forcibly returned where they are at risk of suffering torture -- even if they have not yet been recognised as refugees. A state responding to an extradition request also needs to ensure that the other country is complying with its obligations under international law in respect of torture and ill-treatment before it may hand someone over to that jurisdiction.17


Notes:

2  Human Rights Committee, General Comment 24 (52), General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994), para 10. See also, International Criminal Tribunal for the former Yugoslavia, Prosecutor v Delalic and Others, Case IT-96-21-T, Judgment 16 November 1998, paras 452, 454; Prosecutor v Furundzija, Case IT-95-17/1-T, Judgment 10 December 1998, paras 139 and 143; Prosecutor v Kunarac and Others, Case IT-96-23-T & IT-96-23/I-T, para 466. [...back to main text]

3 ICCPR Article 7 and 10(1). [...back to main text]

4 ECHR Article 3. [...back to main text]

5  ACHR Article 5(2). [...back to main text]

6 African Charter Article 5. [...back to main text]

7 Article 4 of the ICCPR, Article 15 of the ECHR and Article 27 of the ACHR provide, in certain strictly defined circumstances, that states may derogate from certain specified obligations, to the extent that is strictly required by the exigencies of the situation. No derogations are permitted with respect to the Articles prohibiting torture or cruel, inhuman or degrading treatment or punishment. The African Charter contains no emergency clause and therefore allows no such derogation. [...back to main text]

8 Human Rights Committee General Comment No. 29, States of Emergency (art. 4), adopted at the 1950th meeting, on 24 July 2001, para 16; Aksoy v Turkey, ECtHR, Judgment 18 December 1996; Brannigan and MacBride v UK, ECtHR, Judgment 26 May 1993; Brogan v UK, ECtHR Judgment 29 November 1988; 'Habeas Corpus in Emergency Situations', Advisory Opinion OC-8/87 of 30 January 1987, Annual Report of the Inter-American Court, 1987, OAS/Ser.L/V/III.17 doc.13, 1987; and 'Judicial Guarantees in States of Emergency', Advisory Opinion OC-9/87 of 6 October 1987, Annual Report of the Inter-American Court, 1988, OAS/Ser.L/V/III.19 doc.13, 1988. [...back to main text]

9 Article 2, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. See also The Reports of the Committee Against Torture, Mutambo v Switzerland (13/1993) GAOR, 49th Session Supplement No.44 (1994) Khan v Canada (15/1994), GAOR, 50th Session, Supplement No.44 (1995); and Ireland v UK, ECtHR Series A 25, (1978); Chahal v UK, ECtHR, Judgment 15 November 1996; Tomasi v France, ECtHR, Series A, No. 241-A (1993); Selmouni v France, ECtHR, Judgment 28 July 1999. [...back to main text]

10 Article 2, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This principle was also enshrined in the Charter of the Nuremberg and Tokyo Tribunals 1946, and subsequently reaffirmed by the UN General Assembly. It can also be found in the Statutes of the international criminal tribunals for Rwanda and Yugoslavia and, with minor modification in the Statute of the International Criminal Court. [...back to main text]

11 Articles 4, 5, 7, 12 and 13 the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. See also Human Rights Committee General Comment 20, paras 13 and 14. [...back to main text]

12 War crimes include 'grave breaches' of the Geneva Conventions 1949, committed in the course of an international armed conflict against persons or property protected by the Conventions and, as confirmed by the International Criminal Tribunal for the former Yugoslavia (ICTY), violations of Common Article 3 of the Geneva Conventions (Prosecutor v Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-I-AR72, 2 October 1995, para 134). Crimes Against Humanity are acts committed as part of a widespread or systematic attack against a civilian population, whether or not they are committed in the course of an armed conflict. [...back to main text]

13 Article 12 and 50 Geneva Convention I; Article 12 and 51 Geneva Convention II; Article 13, 14, 87 and 130 Geneva Convention III; Article 27, 32 and 147 Geneva Convention IV. [...back to main text]

14 Article 75 of Additional Protocol 1 and Article 4 of Additional Protocol 2. [...back to main text]

15 Velásquez Rodríguez Case, Judgment 29 July 1988, Inter-Am. Ct HR Series C, No. 4; H.L.R. v France, ECtHR, Judgment 29 April 1997; D. v UK, ECtHR, Judgment 2 May 1997. [...back to main text]

16 Article 3, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Article 33, Convention Relating to the Status of Refugees, Chahal v UK, ECtHR, Judgment 15 November 1996. [...back to main text]

17 Soering v UK, ECtHR, Judgment 7 July 1989, Ser. A No. 161. [...back to main text]

 

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984

1.14 The UN Convention against Torture was adopted by the UN General Assembly in 1984. One hundred and thirty states were party to the Convention by August 2002. The Convention defines torture and specifies that states parties must prohibit torture in all circumstances. Torture cannot be justified during a state of emergency, or other exceptional circumstances, nor because of superior orders received by an official.18 The Convention prohibits the forcible return or extradition of a person to another country where he or she is at risk of torture.19 States must ensure that all acts of torture are offences under its criminal law -- including complicity and participation in and incitement to such acts.20 States must establish jurisdiction over such offences in cases of torture where the alleged offenders are not extradited to face prosecution in another state, regardless of the state in which the torture was committed, or the nationality of the perpetrator or the victim ('universal jurisdiction').21 In exercising universal jurisdiction states are obliged to take suspected perpetrators of torture into custody, to undertake inquiries into allegations of torture and to submit suspected torturers to the prosecuting authorities.22 States must also co-operate with one another to bring torturers to justice.23 Statements made as a result of torture may not be invoked in evidence -- except against the alleged torturer.24 Victims of torture also have a right to redress and adequate compensation.25

1.15 The Convention against Torture also obliges states parties to take effective measures to combat torture. States undertake to train law enforcement and medical personnel, and any other persons who may be involved in the custody, interrogation or treatment of detained individuals, about the prohibition of torture and ill-treatment.26 Interrogation rules and custody arrangements are to be kept under review with a view to preventing any acts of torture and ill-treatment.27 States must actively investigate acts of torture and ill-treatment -- even if there has not been a formal complaint about it.28 Individuals have a right to complain about acts of torture and ill-treatment, to have their complaints investigated and to be offered protection against consequent intimidation or ill-treatment.29 Acts of cruel, inhuman or degrading treatment or punishment that do not amount to acts of torture are also prohibited and the provisions discussed in this paragraph also apply to such acts.30


Notes:
18 Article 2, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [...back to main text]

19 Article 3 ibid. [...back to main text]

20 Article 4, ibid. [...back to main text]

21 Articles 5, ibid. [...back to main text]

22 Articles 6-8, ibid. [...back to main text]

23 Article 9, ibid. [...back to main text]

24 Article 15, ibid. [...back to main text]

25 Article 14, ibid. [...back to main text]

26 Article 10, ibid. [...back to main text]

27 Article 11, ibid. [...back to main text]

28 Article 12, ibid. [...back to main text]

29 Article 13, ibid. [...back to main text]

30 Article 16, ibid. [...back to main text]

 

Other Relevant Standards

1.16 In addition to international human rights law and the laws of armed conflict, a considerable range of other rules and standards have been developed to safeguard the right of all people to protection against torture and other forms of ill-treatment. Although not of themselves legally binding, they represent agreed principles which should be adhered to by all states and can provide important guidance for judges and prosecutors. These include:

Selected extracts from some of these instruments are contained in Appendix One of this manual.

Legal definitions

1.17 Article 1 of the Convention against Torture sets out an internationally agreed definition of acts that constitute 'torture'. This states that:

the term 'torture' means 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.

1.18 The exact boundaries between 'torture' and other forms of 'cruel, inhuman or degrading treatment or punishment' are often difficult to identify and may depend on the particular circumstances of the case and the characteristics of the particular victim. Both terms cover mental and physical ill-treatment that has been intentionally inflicted by, or with the consent or acquiescence of, the state authorities. The 'essential elements' of what constitutes torture contained in Article 1 of the Convention against Torture include:

1.19 Cruel treatment, and inhuman or degrading treatment or punishment are also legal terms. These refer to ill-treatment that does not have to be inflicted for a specific purpose, but there does have to be an intent to expose individuals to the conditions which amount to or result in the ill-treatment. Exposing a person to conditions reasonably believed to constitute ill-treatment will entail responsibility for its infliction. Degrading treatment may involve pain or suffering less severe than for torture or cruel or inhuman treatment and will usually involve humiliation and debasement of the victim. The essential elements which constitute ill-treatment not amounting to torture would therefore be reduced to:

It is often difficult to identify the exact boundaries between the different forms of ill-treatment as this requires an assessment about degrees of suffering that may depend on the particular circumstances of the case and the characteristics of the particular victim. In some cases, certain forms of ill-treatment or certain aspects of detention which would not constitute torture on their own may do so in combination with each other. Ill-treatment is, however, prohibited under international law and even where the treatment does not have the purposive element or, as far as degrading treatment is concerned, is not considered severe enough (in legal terms) to amount to torture, it may still amount to prohibited ill-treatment.31

1.20 The Human Rights Committee has stated that: 'The Covenant does not contain any definition of the concepts covered by article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.'32 It has, however, stated that the prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim.33 The European Court of Human Rights has also noted in Selmouni v France: 'Certain acts which were classified in the past as 'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in the future ... the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.'34

1.21 The drafters of the Geneva Conventions also avoided a detailed list of prohibited acts. In its Commentary on the Geneva Conventions, the International Committee of the Red Cross has stated 'It is always dangerous to go into too much detail -- especially in this domain. However great the care taken in drawing up a list of all the various forms of infliction, it would never be possible to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible, and, at the same time, precise.'35


Notes:
31 Only the practice of the European Court of Human Rights explicitly uses the notion of relative severity of suffering as relevant to the borderline between 'torture' and 'inhuman treatment'. The usual approach is to use the existence or otherwise of the purposive element to determine whether or not the behaviour constitutes torture. [...back to main text]

32 Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1. at 30 (1994), para 4. [...back to main text]

33 Ibid., para 5. [...back to main text]

34 Selmouni v France, ECtHR Judgment of 28 July 1999, para 101. [...back to main text]

35 Jean Pictet Commentary -- IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ICRC, 1958, p.39. [...back to main text]

 

International supervisory machinery and complaints procedures

The Human Rights Committee

1.22 The Human Rights Committee is established as a monitoring body by the International Covenant on Civil and Political Rights (ICCPR). The Committee comprises 18 independent experts elected by the states parties to the Covenant. It examines reports which states parties are obliged to submit periodically and issues concluding observations that draw attention to points of concern and make specific recommendations to the state. The Committee can also consider communications from individuals who claim to have been the victims of violations of the Covenant by a state party. For this procedure to apply to individuals, the state must also have become a party to the first Optional Protocol to the Covenant. The Committee has also issued a series of General Comments, to elaborate on the meaning of various Articles of the Covenant and the requirements that these place on states parties. The General Comment regarding Article 7 is contained in Appendix One of this manual.

The UN Committee against Torture

1.23 The Committee against Torture is a body of ten independent experts established under the Convention against Torture. It considers reports submitted by States Parties regarding their implementation of the provisions of the Convention and issues concluding observations. It may examine communications from individuals, if the state concerned has agreed to this procedure by making a declaration under Article 22 of the Convention. There is also a procedure, under Article 20, by which the Committee may initiate an investigation if it considers there to be 'well-founded indications that torture is being systematically practised in the territory of a State Party'.

1.24 A new Optional Protocol was adopted by the UN General Assembly in December 2002. This established a complementary dual system of regular visits to places of detention in order to prevent torture and ill-treatment. The first of these is an international visiting mechanism, or a 'Sub-Committee' of ten independent experts who will conduct periodic visits to places of detention. The second involves an obligation on states parties to set up, designate or maintain one or several national visiting mechanisms, which can conduct more regular visits. The international and national mechanisms will make recommendations to the authorities concerned with a view to improving the treatment of persons deprived of their liberty and the conditions of detention.

Regional mechanisms

1.25 A number of regional human rights treaties have also been developed within the Council of Europe (CoE), the Organisation of American States (OAS) and the African Union (AU).36 The rights protected by these treaties derive from, and are similar to, those of the Universal Declaration of Human Rights, but each treaty has developed unique approaches when seeking to implement them. The principal instruments referred to here are:

1.26 The European Court of Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the African Commission on Human Rights and the (soon to be established) African Court on Human Rights are responsible for monitoring state-compliance with their respective treaties. These bodies examine allegations of torture on the same level as other alleged human rights violations. However, the Council of Europe has also created a specific body for preventing torture in its member states.

1.27 The European Committee for the Prevention of Torture (CPT) was set up under the 1987 Council of Europe European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment. It is composed of as many independent and impartial members as there are states parties to the Convention and may be assisted by ad hoc experts. Currently all members of the Council of Europe have also ratified the European Convention for the Prevention of Torture. The CPT conducts periodic and ad hoc visits in any places under the jurisdiction of a contracting state where persons are deprived of their liberty by a public authority. States parties are obliged to provide the CPT with access to its territory and the right to travel without restriction; full information on the places where persons deprived of their liberty are being held; unlimited access to any place where persons are deprived of their liberty, including the right to move inside such places without restriction; and other information which is necessary for the CPT to carry out its task.37 The CPT is also entitled to interview in private persons deprived of their liberty and to communicate freely with anyone whom it believes can supply relevant information. The report on the visit and detailed recommendations sent to the government are confidential unless the government concerned decides that they can be published. In practice, most reports have been made public.

Other monitoring mechanisms

1.28 A number of other mechanisms have been developed by the UN Commission on Human Rights to look at specific types of human rights violations wherever in the world they occur. These country-specific and thematic mechanisms include special rapporteurs, representatives and independent experts or working groups. They are created by resolution in response to situations that are considered to be of sufficient concern to require an in-depth study. The procedures report publicly to the Commission on Human Rights each year and some also report to the UN General Assembly.

1.29 The main thematic mechanisms of relevance for this manual are: the Special Rapporteur on Torture, the Special Rapporteur on Violence Against Women, the Special Rapporteur on the Independence of Judges and Lawyers, the Working Group on Enforced or Involuntary Disappearances, and the Working Group on Arbitrary Detention. Numerous of other thematic mechanisms also exist. The work of these bodies is not mutually exclusive and they may make either joint or separate interventions in connection with the same allegation.

The UN Special Rapporteur on Torture and other Cruel, Inhuman and Degrading Treatment or Punishment

1.30 This mandate was established in 1985 by the UN Commission on Human Rights. It is a non-treaty, 'UN Charter-based' body the purpose of which is to examine international practice relating to torture in any state regardless of any treaty the state may be bound by. On the basis of information received, the Special Rapporteur can communicate with governments and request their comments on cases that are raised. He or she can also make use of an 'urgent action' procedure, requesting a government to ensure that a particular person, or group of persons, are treated humanely. The Special Rapporteur can also conduct visits if invited, or given permission, by a state to do so. The reports of these missions are usually issued as addenda to the main report of the Special Rapporteur to the UN Commission on Human Rights.

1.31 The Special Rapporteur reports annually and publicly to the UN Commission on Human Rights and to the UN General Assembly. The reports to the Commission contains summaries of all correspondence transmitted to governments by the Special Rapporteur and of correspondence received from governments. The reports may also include general observations about the problem of torture in specific countries, but do not contain conclusions on individual torture allegations. The reports may address specific issues or developments that influence or are conducive to torture in the world, offering general conclusions and recommendations.

International criminal courts and tribunals

1.32 National criminal courts are primarily responsible for the investigation and prosecution of crimes of torture and other criminal forms of ill-treatment. A number of ad hoc international criminal tribunals have been established in recent years -- including the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Crimes of torture as crimes against humanity and war crimes are included in the Statute of ICTY,38 ICTR39 and the Rome Statute of the International Criminal Court (ICC).40 The Statute of the ICC was agreed in 1998 and received the 60 ratifications necessary for it to come into effect in 2002. The ICC will, in future, be able to prosecute some crimes of torture when national courts are unable or unwilling to do so.

The International Committee of the Red Cross (ICRC)

1.33 The International Committee of the Red Cross is an independent and impartial humanitarian body with a specific mandate assigned to it under international humanitarian law, particularly the four Geneva Conventions. It is active in providing many forms of protection and assistance to victims of armed conflict, as well as situations of internal strife. In cases of international armed conflict between states party to the Geneva Conventions, the ICRC is authorised to visit all places of internment, imprisonment and labour where prisoners of war or civilian internees are held. In cases of non-international armed conflicts, or situations of internal strife and tensions, it may offer its services to the conflicting parties and, with their consent, be granted access to places of detention. Delegates visit detainees with the aim of assessing and, if necessary, improving the material and psychological conditions of detention and preventing torture and ill-treatment. The visit procedures require access to all detainees and places of detention, that no limit be placed on the duration and frequency of visits, and that the delegates be able to talk freely and without witness to any detainee. Individual follow-up of the detainees' whereabouts is also part of ICRC standard visiting procedures. Visits and the reports made on them are confidential -- although the ICRC may publish its own comments if a state publicly comments on a report or visit.


Notes:

36 Formerly the Organisation for African Unity (OAU). [...back to main text]

37 Article 8, European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment 1987. [...back to main text]

38 Article 5, ICTY. [...back to main text]

39 Article 3, ICTR. [...back to main text]

40 Articles 7 and 8, ICC. [...back to main text]

 

Namunjepo & Ors v The Commanding Officer, Windhoek Prison & Anor, Namibia, Supreme Court, 9 July 1999, 2000 (6) BCLR (NmS); [2000] 3 LRC 360; (1999) 2 CHRLD 331 (Namibia)

The appellants, five prisoners in pre-trial detention, were placed in chains after four of them escaped from prison and the fifth was alleged to have attempted to do so. They filed an application arguing that their constitutional rights to dignity and to be free from torture, cruel, inhuman or degrading treatment or punishment had been violated.

The Supreme Court drew on international standards when considering the case including the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Revised European Standard Minimum Rules for the Treatment of Prisoners. It also stated that Namibia's accession to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights is significant and 'makes clear that prisoners retain their right to respect for their human dignity and their humanity.' The Court also noted that the case law and legislative provisions of other countries indicate a movement away from the arbitrary and unnecessary use of mechanical restraints. Most countries use these only when absolutely necessary, under strict control and for short periods of time; in some countries, their use is prohibited.

The Court held that: 'Whatever the circumstances, the practice to use chains and leg-irons on human beings is a humiliating experience which reduces the person placed in irons to the level of a hobbled animal whose mobility is limited so that it cannot stray. It is furthermore still a strong reminder of days gone by when people of this continent were carted away in bondage to be sold like chattels. To be continuously in chains or leg-irons and not to be able to properly clean oneself and the clothes one is wearing sets one apart from other fellow human beings and is in itself a humiliating and undignified experience.'

 

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1 The prohibition of torture in international law: section links...
The prohibition of torture in international law - General prohibition - The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 - Other relevant standards - Legal definitions - International supervisory machinery and complaints procedures
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Table of Contents - Search - Introduction - 1: The Prohibition of Torture in International Law - 2: Safeguards Against Torture - 3: The Role of Judges and Prosecutors - 4: Conducting Investigations and Inquiries - 5: Prosecuting Suspected Torturers and Providing Redress - Appendices
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