Domestication and Implementation Package A The duty to combat impunity.

Domestication and Implementation Package A

The duty to combat impunity

© The Article 5 Initiative, 2013

Introduction

• UNCAT and RIG imposes four broad duties on States:– The duty to combat impunity– The duty to prevent torture and other ill

treatment– The duty to provide redress to victims – The duty to report to CAT and ACHPR

• Each of the duties give rise to a number of obligations


DIP A Overview

• PART A. Torture carries the status of a peremptory norm and States have a duty to criminalise torture in domestic law, and to specify punishments reflecting the gravity of the crime.

• PART B. State Parties should establish jurisdiction over the crime of torture based on the territoriality and flag principle and the nationality principle. UNCAT establishes universal jurisdiction over the crime of torture.

• PART C. All persons deprived of their liberty should have the right to lodge a complaint with competent, independent and impartial authorities that have the ability to conduct prompt investigations. Whenever there are reasonable grounds to believe that an act of torture has taken place in a State Party’s jurisdiction, this should be investigated promptly by independent and impartial authorities.



DIP A Overview

• PART D. If States do not extradite suspected perpetrators of the crime of torture to the requesting State, they must prosecute the suspect.

• PART E. State Parties should render each other mutual assistance to ensure that there is no safe haven for suspects of the crime of torture. Torture is an extraditable offence, but there are mandatory objections to requests for extradition. States must adhere to the principle of non-refoulement.

• PART F. The treaty monitoring bodies should be allowed and assisted to conduct investigations and gather information when they receive any communications regarding alleged acts of torture in the territory of a State Party.


Criminalisation

• The crime of torture carries the status of a peremptory norm, meaning there can never be any excuse for its use

• States accept the norm to be absolutely binding, without exception

• States should criminalise torture in domestic legislation, incorporating a definition of torture containing at least the main elements of the definition of torture in article 1 of UNCAT:– It must result in severe mental and/or physical suffering – It must be inflicted intentionally – It must be committed by or with the consent or acquiescence of a

public official – It excludes pain and suffering as a result of lawful actions


CriminalisationThe criminalisation of torture in domestic law needs to specifically take account of:• the need to define the crime of torture as a specific offence committed by or at

the instigation of or with the consent of a public officialany special intent to extract a confession or other information, to punish arbitrarily, to intimidate, to coerce or to discriminate

• the need to legislate against complicity in torture and attempts to commit torture as equally punishable as committing acts of torture

• the need to exclude the legal applicability of any justification for acts of torture• the need to ensure that no statutory limitations are applied to the crime of torture• the need to procedurally exclude all evidence obtained by the use of torture in

criminal and all other proceedings (except in proceedings against the perpetrator of torture himself)

• the need to legislate for and to enforce the prompt and impartial investigation of any substantiated allegations of torture

• the need to recognise coercing another person to commit torture as an offence in domestic law


Sentencing

The punishment for torture should reflect the gravity of the crime and the harm it caused:• a custodial sentence of 6-20 years• life imprisonment if victim died


Jurisdiction

• States should establish jurisdiction over the crime of torture on the basis of the territoriality and flag principle:– Article 5(1) of UNCAT imposes an obligation on States to take ‘such measures as

may be necessary’ to establish jurisdiction over the crime of torture if the offence is committed anywhere in its territory

– Therefore territorial sea, airspace above the land and sea territories, ships or aircraft under the State’s flag, and territories under military occupation, overseas territories, and any other territories over which the State has (effective) control, such as oil-rigs and military bases

• States should establish jurisdiction on the basis of nationality:– Under the active nationality principle, a State may claim jurisdiction when the

alleged offender has the nationality of that State– Under the passive nationality principle, a State may claim jurisdiction over an

offence when the victim of that offence has the nationality of that State– The passive is discretionary


Universal Jurisdiction & Immunity

• UNCAT establishes universal jurisdiction over the crime of torture– It obliges State Parties to establish jurisdiction to prosecute the crime of torture in all cases

where the alleged offender is present in any territory under their jurisdiction, regardless of the nationality of the offender, and the place where the offence was committed

– This form of jurisdiction is known as ‘universal jurisdiction’

• CAT has consistently argued against the use of immunity and amnesty for the crime of torture

• Functional immunity, however, can only be invoked when criminal proceedings are initiated by means of an indictment, issuance of an arrest warrant or extradition request at a time when he or she is still holding office

• Functional immunity is lost as soon as an official ceases to hold his or her position

• While immunity may continue to exist for ‘official acts’ performed while holding a certain position, acts of torture or conspiracy to commit torture cannot be considered ‘official acts’ (Pinochet)


Complaints & Investigations

• Every person, including those deprived of their liberty, has the right to lodge a complaint regarding his or her treatment to an independent authority, including violations of the right to be free from torture and other ill treatment

• Article 13 of UNCAT requires each State Party to make sure that any person who claims that he/she was the victim of torture in any territory under its jurisdiction has the right to complain to, and have his/her case promptly and impartially examined by, the competent authorities (people and institutions that have the legal ability and/or mandate to carry out such an examination)

• Article 16 of UNCAT expressly extends this right to victims of other ill treatment


Complaints Mechanisms

• Mechanisms that people can use to make complaints must be set up both inside and outside places of detention, people must be able to use them without fear of reprisals, and people must know how to access these mechanisms

• This requires that detainees be told about the mechanisms and how to use them in a language they understand

• Such mechanisms could include, but are not limited to: – prison authorities– police officers– lawyers– social workers and psychologists– Judges– national human rights institutions– non-governmental organisations, etc.

• The right to complain will be further facilitated by ensuring access for persons deprived of their liberty to a lawyer, doctor and family members, as well as to independent monitoring bodies such as national human rights institutions and NGOs (as discussed in DIP B)


Victim & Witness Protection

• States should ensure that persons who have lodged complaints of torture and other ill treatment, as well as witnesses to such acts, are protected from retaliation and intimidation

• Article 13 of UNCAT and RIG 49 both outline the need to make sure that complainants and witnesses are protected against ill treatment and intimidation after they have reported torture or other ill treatment

• RIG 49 also calls for investigators, human rights defenders, and families to be protected

• Examples of measures to protect against retaliation and intimidation include:– removing personnel who have been accused of torture or other ill treatment from active duty– moving the person who made the complaint to another place of detention – changing the personnel who are responsible for the complainant

• Regular contact with lawyers, family members, and monitoring bodies as well as regular examinations by doctors can also offer more protection

• Victim and witness protection units within courts and/or law enforcement agencies also have an important role to play


Investigation

• Whenever there are reasonable grounds to believe that an act of torture has taken place in a State Party’s jurisdiction, this should be investigated promptly by independent and impartial authorities

• Article 12 of UNCAT requires State Parties to make sure that there is a prompt and impartial investigation when there are reasonable grounds (fairly good reasons) to believe that someone has committed an act of torture or other ill treatment in any territory under the State’s jurisdiction

• The purpose of investigation is to find evidence of torture and/or other ill treatment so that perpetrators can be held accountable for their actions and the interests of justice may be served

• In order to comply fully with this obligation, investigations need to be:– prompt– impartial– thorough– able to lead to the identification of those responsible– carried out by a competent authority


Investigation

• UNCAT does not explain what ‘reasonable grounds’ are, but CAT has interpreted this broadly, and information that could trigger an investigation could come from many sources

• UNCAT calls on investigations to be ‘prompt and impartial’, although these terms are not defined. CAT has stated that –

“promptness is essential both to ensure that the victim cannot continue to be subjected to such acts and also because in general, unless the methods employed have permanent or serious effects, the physical traces of torture, and especially of cruel, inhuman or degrading treatment or punishment, soon disappear.”

• In order for investigations to be impartial, they must not be conducted by anyone who has close personal or professional links with the persons suspected of committing torture or other ill treatment, or who may want to protect these persons or the organisation/unit to which they belong

• The Istanbul Protocol is an important tool for any investigation into allegations of torture and other ill treatment


Prosecute or Extradite

• States should either prosecute or extradite suspected perpetrators of the crime of torture

• Doing nothing is not an option

• Cases of torture must be referred to prosecutorial authorities where jurisdiction over the offence is established under article 5 of UNCAT, and where the State Party is not extraditing the suspect

• Article 7(1) does imposes a strict obligation to submit the case to domestic prosecuting authorities if the State Party has either (a) decided against granting a request for extradition; or (b) no request for extradition has been received from another State with possible jurisdiction

• States must ensure that the prosecutorial process, including standards of evidence for prosecution and conviction, are commensurate to the ordinary processes for serious criminal offences under domestic law


Procedural Safeguards for Prosecutions• The right to a fair trial is a peremptory norm of international customary law and

enshrined in article 14 of ICCPR

• Articles 9, 10 and 15 of ICCPR inform the content of a fair trial by establishing procedural safeguards to promote:– the right of everyone to full equality and to a fair and public hearing by an independent and

impartial tribunal – the right to equality before the courts and tribunals– the protection of suspects from arbitrary detention– guarantees of the presumption of innocence and the right to have a case heard before an

independent court or tribunal– restriction of the use of incommunicado detention – guaranteed access to lawyers, doctors and family– independent internal and external oversight

• RIG also includes additional safeguards, such as the right of an accused to inform a third party of his or her detention, the maintenance of comprehensive records of interrogations, and the establishment of independent complaints mechanisms for places of detention


Evidence

• State Parties should prohibit the use of evidence collected as a result of torture, except as evidence in proceedings against a person accused of committing an act of torture

• Article 15 of UNCAT, RIG 29 and customary international law (the law that has developed based on the practices of States) prohibit the admissibility of statements or evidence that are established to have been made as a result of torture (including direct and indirect physical or psychological coercion)

• The only exception is if the statement is used as evidence against a person accused of torture in order to prove that they obtained a statement through torture

• The obligation to exclude statements obtained by torture also extends to statements extracted by other forms of ill treatment, as defined in article 16 of UNCAT, and applies to statements made about third parties (and therefore any information or evidence obtained as a result of that statement)


Superior Orders

• States must prohibit the use of the ‘superior orders’ defence as a justification for the use of torture in all criminal proceedings

• Domestic criminal procedure legislation must ensure that there is no defence of ‘superior orders’ available to individuals brought to trial for the crime of torture

• If someone committed an act of torture because he or she was asked to do so by his or her superior, he or she will nevertheless be guilty

• Conversely, persons who resist what they view as unlawful orders (i.e. the order to commit torture or other ill treatment) or who cooperate in the investigation of torture or other ill treatment, including by superior officials, should be protected against retaliation of any kind


Extradition

• States Parties should render each other mutual assistance to ensure that there is no safe haven for suspects of the crime of torture

• Article 8 of UNCAT imposes an obligation on States to make the crime of torture an extraditable offence which is included in every extradition treaty to which the State is a party

• In circumstances where there is no extradition treaty, UNCAT can be relied on as the basis for extradition for the crime of torture

• States must adhere to the principle of non-refoulement:– ‘no 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’


Extradition Safeguards & Mandatory Objections

• Safeguards include: – legislation that establishes clear procedures for extradition hearings that

accord with the rule of law and procedural fairness– judicial decisions to ensure that extradition would be compatible with

international human rights obligations – the right to a fair hearing and the right to access legal counsel, medical

assistance, consular support, etc.

• There are certain mandatory objections to requests for extradition:– Death Penalty– Torture and other ill treatment– Conditions of detention that violate a person’s humanity and inherent

dignity– Reasonably foreseeable that right to fair trial to be violated – Political offences– Discrimination


Mutual Assistance

• States must not provide mutual assistance to another State where doing so would give effect to a human rights violation in, or by, the State requesting that mutual assistance

• ‘Mutual assistance’ refers to the request by one State to one or more States Parties to assist in the investigation of a criminal matter, including allegations of torture and other ill treatment

• Mutual assistance can include: – requests to assist with obtaining evidence (whether physical evidence or by way of

interrogation and interviews)– locating or identifying persons– serving documents– transferring prisoners

• States’ mutual assistance arrangement should be guided by the Model Treaty on Extradition


Investigations by treaty monitoring bodies

• The mechanisms of the United Nations Committee against Torture:– Investigation, on its own initiative (Art 20); no reservations– Inter-State communication (Art 21); no reservations from both and declare

competence– Individual communication (Art 22); no reservations and declare competence &

exhausted domestic remedies

• The mechanisms of the African Commission on Human and Peoples’ Rights:– Investigation: this mechanism is used when ACHPR receives several individual

communications against a State Party on serious human rights violation; often takes form of mission to State

– Inter-State communication: This mechanism is used when one State Party alleges that another fails to comply with a provision or provisions of AChHPR; States cannot make reservations

– Individual communication: This mechanism is used when a person has suffered a violation of a right contained in AChHPR; States cannot make reservations


Other Special Mechanisms and Special Procedures

UN• Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment• Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions• Special Rapporteur on the Promotion of Truth, Justice, Reparation & Guarantees on

Non-Recurrence• Special Rapporteur on the Situation of Human Rights Defenders• Special Rapporteur on the Independence of Judges And Lawyers• Special Rapporteur on the Promotion and Protection of Human Rights and

Fundamental Freedoms while Countering Terrorism• Working Group on Arbitrary Detention• Working Group on Enforced or Involuntary Disappearances

ACHPR level• Special Rapporteur on Prisons and Conditions of Detention in Africa• Committee for the Prevention of Torture in Africa


Special Procedures and Special Mechanisms

• Unlike the two treaty monitoring bodies examined above (CAT and ACHPR), Special Procedures and Special Mechanisms cannot find State Parties in violation of their international obligations

• However, they have the authority to conduct a variety of activities in order to fulfil their mandate, including: – conducting country visits on invitation– conducting investigations into particular human rights situations– receiving and responding to individual complaints, including by referring the complaint to other institutions and

organisations– sending urgent appeals to State Parties to address a particular situation– generally promoting the prevention and elimination of human rights abuses

• Their activities are not dependent upon a State having ratified a particular treaty

• State Parties can offer their support and cooperation to the UN Special Procedures by issuing them ‘standing invitations’, which are permanent invitations to the Special Procedures to visit the country and review particular human rights situations

• States cannot issue standing invitations to the ACHPR Special Mechanisms

• The Special Procedures report to the UN on their activities once a year and Special Mechanisms report to ACHPR twice a year

Domestication and Implementation Package A The duty to combat impunity.

Documents

crime of torture

criminalisation of torture

definition of torture

act of torture

alleged acts of torture

impunity slide

use states

exception states