Integrity of the person - Torture and ill-treatment Flashcards
Torture and ill-treatment: main sources
Non-derogable where derogation is permitted. ICCPR, ECHR, ACHR, ACHPR, UNCAT. international customary law (torture = jus cogens). Unclear if ill-treatment is a peremptory norm. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has been widely ratified.
What is “torture”?
Credibly threats of physical or mental/suffering. Only the most severe forms of pain and suffering both mental and/or physical (not arising from lawful sanctions). Intentionally inflicted with a purpose (including punishing) by a public official.
Some definitions note that it should not arise from lawful sanctions. This could mean:
- That severe pain and suffering would constitute torture only if it is not sanctioned by the law -clearly this is not what the meaning of the treaty is, or it would allow states to pass laws justifying torture.
- That the severe pain and suffering should be within the law both domestically and internationally - an act will not be constitute of torture if it falls within the realm of domestic and international law.
- That an act that causes severe pain or suffering would automatically constitute torture because of the level of severity of that pain or suffering, unless it is sanctioned by the law. Allows a certain margin of appreciation where each state can draw the bar in one way or the other.
What is “cruel, inhuman, or degrading treatment or punishment”?
Main difference is the level of pain and suffering involved. Physical or mental pain/suffering of a lesser severity than torture. It doesn’t need to have a specific purpose to be categorized, like torture does (can be done for fun). Need not be purposeful or inflicted by a public official.
Three phases that people in detention go through
- The investigative phase
–> While proceedings happen, evidence is collected and cases are made etc..
–> Risk of torture is the highest (for info, confession) - The remand phase
–> When the judge issues the detention of the individual before the individual is convicted
–> Risk just as high as investigative phase - The post-conviction phase
–> After individual is sent to prison
–> Still some risk, but risk is lower because the utility of torturing them is lower
Torture and ill-treatment as an obligation
Primarily a negative obligation
Positive obligation of means: due diligence
The obligation that you have to do everything in your power to prevent acts of torture by third parties - The state would be responsible for the torture by a third party only if the torture happened because the state wa negligent. Effective investigation of suspected torture.
Positive obligation of means: due diligence - Prosecute suspected tortures (HR limit on amnesties)
UNCAT (Art 7): Prosecute or extradite. You either have to persecute that individual, or if you can’t, you have the obligation to extradite them to some other country that has the jurisdiction to prosecute them. Since torture is a peremptory norm, any court in the world could have jurisdiction over that alleged crime.
Positive obligation of means: due diligence - Prevention of domestic violence? Human trafficking?
In the past the answer was no, and it fell within the privacy of the household. The expectations for the state have changed. Now, one of the positive obligations derived is that certain laws must be passed that criminalize acts of domestic violence.
Positive obligation of means: due diligence - Non-refoulement (Extraordinary renditions
If you send someone somewhere where you know that they are likely to be subject to torture, it will make you responsible, because it is an act of negligence. Your obligation is not just to refrain from practicing torture, but also to do everything you can to prevent and individual from being tortured.
