COMBATING TORTURE AND OTHER ILL COMBATING COMBATING TORTURE AND OTHER ILL-TREATMENT A MANUAL FOR ACTION - TREATMENT AMNESTY INTERNATIONAL Amnesty International is a global movement of more than 7 million people who campaign for a world where human rights are enjoyed by all. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. Amnesty International’s mission is to conduct research and take action to prevent and end grave abuses of all human rights – civil, political, social, cultural and economic. From freedom of expression and association to physical and mental integrity, from protection from discrimination to the right to housing – these rights are indivisible. Amnesty International is funded mainly by its membership and public donations. No funds are sought or accepted from governments for investigating and campaigning against human rights abuses. Amnesty International is independent of any government, political ideology, economic interest or religion. Amnesty International is a democratic movement whose major policy decisions are taken by representatives from all national sections at International Council Meetings held every two years. Check online for current details: www.amnesty.org First published in 2016 by Except where otherwise noted, Amnesty International Ltd content in this document is Peter Benenson House, 1 Easton licensed under a Creative Street, London WC1X 0DW Commons (attribution, non- United Kingdom commercial, no derivatives, © Amnesty International 2016 international 4.0) licence. Index: POL 30/4036/2016 https://creativecommons.org/ ISBN: 978-0-86210-494-8 licenses/by-nc-nd/4.0/legalcode A catalogue record for this For more information please visit book is available from the the permissions page on our British Library. website: www.amnesty.org Original language: English Combating torture and other ill-treatment 1 ACKNOWLEDGEMENTS Amnesty International is grateful to the following people and organizations for their contributions to the preparation of this manual. Debra Long, Senior Research Associate at the Human Rights Implementation Centre, was the principal drafter. From the University of Bristol Law School: Victoria Barlow, Richard Costidell, Clair Gammage, Charlotte Holder, Ben Hudson, Helen Ingram, Rachel Murray, Sarah Okimaru, Danielle Soskin and Elina Steinerte. From Omega Research Foundation: Neil Corney and Abi Dymond. James Welsh provided comment on the work of medical and forensic professionals in investigating and combating torture. Eric Prokosch was the main contributor to the First Edition, on which this manual is based. 2 Combating torture and other ill-treatment CONTENTS FURTHER READING 8 STANDARDS CITED AND ABBREVIATIONS USED 11 FOREWORD 18 INTRODUCTION 22 CHAPTER 1: TORTURE AND OTHER ILL-TREATMENT: A GLOBAL PROBLEM 25 1.1 Key events in international efforts to combat torture and other ill-treatment 25 1.1.1 The origins of international action against torture and other ill-treatment 27 1.1.2 Action in the 1970s 30 1.1.3 Action in the 1980s 31 1.1.4 Action in the 1990s 33 1.1.5 21st century challenges and action 34 1.2 The establishment of international and regional bodies and mechanisms to implement the obligation to prohibit and prevent torture and other ill-treatment 36 1.2.1 Key international bodies and mechanisms concerned with torture and other ill-treatment 37 1.2.2 Key regional bodies and mechanisms concerned with torture and other ill-treatment 40 1.3 Freedom from torture and the inherent dignity of persons under international law 43 1.3.1 Freedom from torture and the inherent dignity of persons under human rights law 44 1.3.2 Inherent dignity of persons under international humanitarian law 45 1.3.3 Torture and discrimination 46 1.4 Ongoing challenges to the absolute prohibition of torture and other ill-treatment 47 1.4.1 Poverty, corruption and torture and other ill-treatment 47 1.4.2 A failure to criminalize torture under national law 49 1.4.3 Torture today 52 CHAPTER 2: THE PROHIBITION OF TORTURE AND OTHER ILL-TREATMENT UNDER INTERNATIONAL LAW 53 2.1 The prohibition of torture under international human rights law 54 2.1.1 General human rights instruments 55 2.1.2 Specialized instruments on the prohibition and prevention of torture 56 and other ill-treatment 2.1.3 Other specialized human rights treaties 58 Combating torture and other ill-treatment 3 2.1.4 Prohibition under customary international law 60 2.2 The prohibition of torture under international humanitarian law 61 2.3 What conduct is prohibited? 64 2.3.1 Definitions of torture 65 2.3.2 What is other cruel, inhuman and degrading treatment and punishment? 75 2.4 The link between discrimination and torture 81 2.5 Specific forms of torture and other ill-treatment 84 2.5.1 Corporal punishment 84 2.5.2 Rape by state agents 88 2.5.3 Other forms of sexual abuse and humiliation by state agents 91 2.5.4 Criminalization of abortion 92 2.5.5 The threat of violence as a form of torture or other ill-treatment 93 2.5.6 Life imprisonment without the possibility of parole 95 2.5.7 Destruction of property 96 2.6 The death penalty 96 2.6.1 The death penalty under international human rights law 97 2.6.2 Practices of the death penalty constituting torture or other ill-treatment 98 2.6.3 The death penalty in itself as torture or other ill-treatment 106 2.7 No international transfers that contravene the protection against torture and other ill-treatment 107 2.8 Violence based on gender or sexual orientation 110 2.9 Non-state (private) actors 115 2.9.1 States’ obligations under international law for acts committed by non-state actors 115 2.9.2 Violence in the family and community 117 CHAPTER 3: SAFEGUARDS AGAINST TORTURE AND OTHER ILL-TREATMENT 123 3.1 What must states do? 124 3.2 Safeguards at arrest 126 3.2.1 Grounds and procedures for arrest 127 3.2.2 Informing individuals of the reasons for their arrest and of their rights 129 3.2.3 Notifying family members or others of an arrest 131 3.2.4 Safeguards during transport to and from a place of detention 132 3.2.5 Records of arrest 134 3.3 Enforced disappearance and secret detention 135 3.4 Bringing detainees promptly before a judicial authority 139 3.5 Right to legal counsel 142 3.6 Right to challenge the lawfulness of detention and other judicial remedies 144 3.7 Access to the outside world 145 3.7.1 Incommunicado detention 147 3.8 Access to medical examinations and medical care 148 3.8.1 Medical documentation of torture and other ill-treatment 151 3.9 Safeguards during questioning 153 3.9.1 Prohibition of the use of statements and other evidence obtained through torture or other ill-treatment and other coercive measures 155 4 Combating torture and other ill-treatment 3.9.2 Prohibited interrogation techniques and practices 159 3.9.3 Presence of a lawyer during questioning 160 3.9.4 Right to an interpreter 161 3.9.5 Records of all periods of questioning 162 3.9.6 Separation of the authorities responsible for detention from those in charge of questioning 163 3.10 Safeguards for specific categories of persons deprived of liberty in the criminal justice system 163 3.10.1 Pre-trial detainees 165 3.10.2 Children 166 3.10.3 Persons with disabilities 169 3.10.4 Elderly persons 171 3.10.5 Women 172 3.10.6 Lesbian, gay, bisexual, transgender and intersex people 173 3.10.7 Foreign nationals 175 3.10.8 Asylum-seekers and immigration detainees 175 3.11 Safeguards at release 176 3.12 Protection for persons deprived of their liberty in other contexts 177 3.12.1 Administrative detention on security grounds 178 3.12.2 Institutions for asylum-seekers and immigration detention 180 3.12.3 Institutions for people with mental or physical disabilities 184 3.13 Use of force in law enforcement 188 3.13.1 Police weapons and devices 190 3.13.2 Control of trade in weapons, devices and instruments 197 3.13.3 Torture and other ill-treatment within the law enforcement, military and security services 198 3.14 Safeguards during armed conflict 199 3.14.1 Safeguards for prisoners of war 199 3.14.2 Safeguards for other detainees during conflict 201 CHAPTER 4: CONDITIONS OF DETENTION 203 4.1 The right to humane conditions of detention 203 4.2 Reducing the use of custody and imprisonment 207 4.3 Accommodation 209 4.3.1 Physical conditions of accommodation 209 4.3.2 Separation of categories of detainees 211 4.3.3 Location of accommodation 213 4.3.4 Sanitation, hygiene, clothing and beds 213 4.4 Other aspects of treatment 215 4.4.1 Food and drink 215 4.4.2 Exercise, recreation and other facilities 216 4.5 Discipline and security 218 4.5.1 Use of force 218 4.5.2 Restraint techniques and devices 219 Combating torture and other ill-treatment 5 4.5.3 Disciplinary punishments 224 4.5.4 Searches 226 4.5.5 Solitary confinement 228 4.5.6 Preventing inter-prisoner violence 231 4.6 Record-keeping 233 CHAPTER 5: PREVENTING TORTURE AND OTHER ILL-TREATMENT 237 5.1 The obligation to prevent torture and other ill-treatment 237 5.2 Monitoring treatment and conditions within places of detention 241 5.2.1 The Optional Protocol to the Convention against Torture 244 5.2.2 The UN Subcommittee on Prevention of Torture 246 5.2.3 National Preventive Mechanisms 250 5.3 Other international monitoring mechanisms 253 5.3.1 The European Committee for the Prevention of Torture 253 5.3.2 The International Committee of the Red Cross (ICRC) 255 5.4 The role of the judiciary and legal professionals in the prevention of torture and other ill-treatment 256