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Torture in International Torture in International Law A guide to jurisprudence Association for the Center for Justice and Prevention of Torture International Law The Association for the Prevention of Torture The Center for Justice and International Law (APT) is an independent non-governmental (CEJIL) is a non-governmental, non-profit organisation based in Geneva. It was founded human rights organization with consultative by the Swiss banker and lawyer, Jean-Jacques status before the Organization of American Gautier, in 1977. States (OAS) and the United Nations (UN), The APT envisions a world in which no one and observer status before the African Com- is subjected to torture or cruel, inhuman or mission on Human and Peoples’ Rights. degrading treatment or punishment, as pro- CEJIL’s mission is to advocate for the full mised by the Universal Declaration of Human implementation of international human Rights. rights norms in the Member States of the OAS, The APT focuses on the prevention of torture, through the use of the Inter-American System rather than denunciations of individual cases for the Protection of Human Rights (IAS). or the rehabilitation of victims. This strategic CEJIL works towards its mission and objecti- focus on preven tion enables the APT to colla- ves through borate with state authorities, police services, 1) the litigation of paradigmatic cases as well the judiciary, national institutions, academics as monitoring their outcome; and NGOs that are committed to insti tutional 2) training human rights defenders and govern- reform and changing practices. ment officials on the use of the IAS and inter- To prevent torture, the APT focuses on three national human rights standards; and integrated objectives: 3) a comprehensive strategy to advocate before 1. Transparency in institutions the OAS, IAS and Member States for increa- To promote outside scrutiny and accountabi- sed transparency, dialogue and effective- lity of institutions where people are deprived of ness of human rights protection. their liberty, through independent visiting and CEJIL takes a victim-centered approach, other monitoring mechanisms. working in partnership with human rights defenders and organizations to contribute 2. Effective legal frameworks to social justice. Founded in 1991 by a group To ensure that international, regional and of prominent human rights defenders in national legal norms for the preven tion of tor- the Americas. CEJIL currently has offices in ture and other ill-treatment are universally Washington D.C., USA; San Jose, Costa Rica; promoted, respected and implemented. Buenos Aires, Argentina; and Rio de Janeiro, 3. Capacity strengthening Brazil. In 2006–2007, CEJIL held activities in To strengthen the capacity of national and 23 countries. international actors concerned with persons deprived of their liberty by increasing their knowledge and commitment to prevention practices. Association for the Prevention of Torture Center for Justice and International Law (APT) (CEJIL) 10, Route de Ferney, P.O. Box 2267 1630 Connecticut Ave., NW, Suite 401, 1211 Geneva 2 – Switzerland Washington D.C. 20009 – 1053, U.S.A. Tel: +41 22 919 21 70 – Fax: +41 22 919 21 80 Tel. + 1 202 319 3000 – Fax +1 202 319 3019 E-mail: [email protected] – Website: www.apt.ch [email protected] – www.cejil.org Torture in International Law A guide to jurisprudence Torture in International Law, a guide to jurisprudence Jointly published in 2008 by the Association for the Prevention of Torture (APT) and the Center for Justice and International Law (CEJIL). For copies of this publication and further information, please contact: Association for the Prevention of Torture (APT) P.O. Box 2267, CH-1211 Geneva 2 Switzerland Tel +41 22 919 2170 Fax +41 22 919 2180 [email protected] www.apt.ch Center for Justice and International Law (CEJIL) 1630 Connecticut Ave., NW, Suite 401, Washington D.C. 20009 – 1053 U.S.A. Tel +1 202 319 3000 Fax +1 202 319 3019 [email protected] www.cejil.org COPYRIGHT © 2008, Association for the Prevention of Torture (APT) and Center for Justice and International Law (CEJIL) All rights reserved. Materials contained in this publication may be freely quoted or reprinted, provided credit is given to the source. Requests for permission to reproduce or translate the pub- lication should be addressed to the APT and CEJIL. ISBN 2-940337-27-6 Designed by minimum graphics Printed by SRO-Kundig, Geneva Summary of Contents Introduction 1 Chapter 1: UN Treaty Bodies 5 Introduction 6 1.1 Definitions 7 1.2 State Parties’ Obligations 13 1.3 Scope of Application 29 Conclusion 53 Chapter 2: The European Regional System 55 Introduction 56 2.1 Definitions 56 2.2 States Parties’ Obligations 63 2.3 Scope of Application 72 Conclusion 90 Chapter 3: The Inter-American Regional System 93 Introduction 94 3.1 Definitions 94 3.2 States Parties’ Obligations 101 3.3 Scope of Application 111 Conclusion 123 Chapter 4: The African Regional System 125 Introduction 126 4.1 Definitions 126 4.2 State Parties’ Obligations 129 4.3 Scope of Application 137 Conclusion 144 iii Chapter 5: International Tribunals 145 Introduction 146 5.1 Definitions 147 5.2 Scope of Application 169 5.3 The International Criminal Court 174 Conclusion 176 Conclusion 179 Table of cases 183 iv Contents Abbreviations x Foreword xi Introduction 1 Chapter 1: UN Treaty Bodies 5 Introduction 5 1.1 Definitions 7 1.1.1 The ICCPR and the Human Rights Committee 7 1.1.1.1 Article 7 ICCPR 7 1.1.1.2 Article 10 ICCPR 9 1.1.2 The UNCAT and the Committee against Torture 10 1.1.2.1 “Intentional” infliction of “severe pain or suffering” 12 1.1.2.2 Purpose 13 1.2 State Parties’ Obligations 13 1.2.1 Duty to protect from ill-treatment by private actors 13 1.2.2 Duty to investigate 15 1.2.3 Duty to enact and enforce legislation criminalising torture 18 1.2.3.1 Universal jurisdiction 21 1.2.4 Duty to exclude statements obtained by torture or other ill-treatment 23 1.2.5 Duty to train personnel and provide procedural safeguards 24 1.2.6 Duty to grant redress and compensate victims 27 1.3 Scope of Application 29 1.3.1 The absolute nature of the prohibition of torture and other ill-treatment 30 1.3.2 Lawful sanctions 31 1.3.2.1 The death penalty 32 1.3.2.2 Corporal punishment 36 1.3.3 Conditions of detention 38 1.3.4 Solitary confinement 41 1.3.5 Incommunicado detention and enforced disappearances 43 1.3.6 Relatives of victims of human rights violations 45 v 1.3.7 Extradition and expulsion 46 1.3.7.1 Diplomatic assurances 51 Conclusion 53 Chapter 2: The European Regional System 55 Introduction 56 2.1 Definitions 56 2.1.1 Torture 56 2.1.2 Inhuman treatment 60 2.1.3 Degrading treatment 61 2.2 States Parties’ Obligations 63 2.2.1 Duty to protect from ill-treatment by private actors 63 2.2.2 Duty to investigate 65 2.2.3 Duty to enact and enforce legislation 68 2.2.4 Duty to exclude evidence obtained by torture or other ill-treatment 69 2.2.5 Duty to train personnel and provide procedural safeguards 70 2.2.6 Duty to grant redress and compensate victims 72 2.3 Scope of Application 72 2.3.1 The absolute nature of the prohibition of torture and other ill-treatment 72 2.3.2 Lawful sanctions 75 2.3.2.1 The death penalty 75 2.3.2.2 Corporal punishment 76 2.3.3 Conditions of detention 77 2.3.4 Solitary confinement 81 2.3.5 Incommunicado detention and enforced disappearances 82 2.3.6 Relatives of victims of human rights violations 83 2.3.7 Extradition and expulsion 84 2.3.7.1 Diplomatic assurances 89 Conclusion 90 Chapter 3: The Inter-American Regional System 93 Introduction 94 3.1 Definitions 94 3.1.1 Torture 95 3.1.2 Cruel, inhuman or degrading treatment or punishment 98 vi 3.1.3 Humane treatment of detainees 99 3.2 States Parties’ Obligations 101 3.2.1 Duty to protect from ill-treatment by private actors 101 3.2.2 Duty to investigate 103 3.2.3 Duty to enact and enforce legislation 105 3.2.3.1 Universal jurisdiction 106 3.2.4 Duty to exclude evidence obtained by torture or other ill-treatment 107 3.2.5 Duty to train personnel and provide procedural safeguards 108 3.2.6 Duty to grant redress and compensate victims 110 3.3 Scope of Application 111 3.3.1 The absolute nature of the prohibition of torture and other ill-treatment 111 3.3.2 Lawful sanctions 113 3.3.2.1 The death penalty 113 3.3.2.2 Corporal punishment 114 3.3.3 Conditions of detention 115 3.3.4 Solitary confinement 116 3.3.5 Incommunicado detention and enforced disappearances 118 3.3.6 Relatives of victims of human rights violations 120 3.3.7 Extradition and expulsion 121 3.3.7.1 Diplomatic assurances 122 Conclusion 123 Chapter 4: The African Regional System 125 Introduction 126 4.1 Definitions 126 4.1.1 Dignity 127 4.1.2 Torture 127 4.1.3 Cruel, inhuman or degrading punishment and treatment 128 4.2 State Parties’ Obligations 129 4.2.1 Duty to protect from ill-treatment by private actors 129 4.2.2 Duty to investigate 132 4.2.3 Duty to enact and enforce legislation criminalising torture 132 4.2.4 Duty to exclude statements obtained by torture or other ill-treatment 133 4.2.5 Duty to train personnel and provide procedural safeguards 133 4.2.6 Duty to grant redress and compensate victims 136 vii 4.3 Scope of Application 137 4.3.1 The absolute nature of the prohibition of torture and other ill-treatment 137 4.3.2 Lawful sanctions 138 4.3.2.1 The death penalty 138 4.3.2.2 Corporal punishment 139 4.3.3 Conditions of detention 140 4.3.4 Solitary confinement 140 4.3.5 Incommunicado detention and enforced disappearances 141 4.3.6 Relatives of victims of human rights violations 142 4.3.7 Extradition and expulsion 142
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