Star Law report
Fight against torture -- Make it a crime
TORTURE and ill treatment of persons deprived of their liberty usually takes place in centres of detention that are inaccessible to any form of public scrutiny. This is the ideal context for torturers to operate with complete impunity. Torture constitutes one of the more gross violations of fundamental rights of human beings. It destroys the dignity of humans by degrading their bodies while causing injuries, some times irreparable, to their minds and their spirits. The horrific consequences of this terrible human rights violation spread to the family of the victims and into their social surroundings. Through these acts, the values and principles upon which democracy stands and any form of human coexistence loose their significance.
Throughout the years, experts, social organizations and governments have consolidated their efforts to combat the practice of torture, to sanction their perpetrators and to adopt programs that help victims and their families. However, nothing has stopped those who around the world continue to torture, with or without official consent.
The Convention Against Torture, adopted by the United Nations, signified an enormous progress by categorizing the practice of torture as an international crime and by creating the mechanisms to denounce it. However, despite efforts on the issue of prevention, progress has been small at the national and international level.
The international community has recognized torture as one of the most brutal and unacceptable assaults on human dignity from which no region in the world has managed to free itself. The prohibition of torture, inhuman and degrading treatment or punishment is, therefore, expressly prohibited by many international conventions, both of regional and universal character. For several decades prohibition of torture has been considered to form a part of customary international law, which cannot be derogated in time of peace or war, or under the pretext of imminent danger to national security. Accordingly, this unconditional ban on torture is an internationally recognized obligation for every State official, regardless of whether his or her government has ratified any human rights instruments. Yet, despite this universal condemnation, these appalling abuses still persist around the world.
Under international human rights law, the most widely recognised definition of torture is contained in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “UNCAT” or “the Convention against Torture). Article 1 of the UNCAT defines torture in the following way:
"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."
From this Article, three fundamentals of 'torture' can be deduced:
1) there must be severe physical or psychological pain or suffering;
2) it must be for a purpose; and
3) it must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or person acting in an official capacity.
Whilst there are varying definitions of torture at the international and regional levels, these essential distinguishing features of torture, contained in the UNCAT, are common to all definitions. The accepted approach under international law has been to avoid drawing up an exhaustive list of acts that could be considered to amount to torture, because of concerns that such a list could be too limited in its scope and could fail to adequately respond to developments in technology and values within democratic societies.
The UN Convention against Torture was adopted by the UN General Assembly on 10 December 1984 and entered into force on 26 June 1987. The UN Convention against Torture is the only legally binding treaty at the universal level concerned exclusively with the eradication of torture.
The UNCAT contains a range of obligations for States Parties aimed at prohibiting and preventing torture. It is important first and foremost because it contains an internationally recognized definition of torture and requires States Parties to ensure that acts of torture are made a criminal offence under their national law. It stipulates that torture is a non-derogable right, in other words, the prohibition of torture is to apply in all circumstances.
Position of Bangladesh
Bangladesh ratified the Convention against Torture (CAT) in 1998 and International Covenant on Civil and Political Rights (ICCPR) in 2000. However, the Optional Protocol to the Convention against Torture and Rome Statute of the International Criminal Court 1998 that established the International Criminal Court, have not been ratified by Bangladesh. Both are crucial instruments to eradicate torture that may prevent torture and other cruel, inhuman and degrading treatment as well as punish the perpetrators. The Rome Statute adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002.
Bangladesh constitution explicitly states that 'no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.' [Article 35(5)]. However, such explicit text is not sufficient indication to determine the locus of interpretation of this text and its implementation.
UN Committee against torture
Under the UN human rights system, specific bodies comprised of independent experts are created by treaties in order to monitor the compliance of States Parties to their international obligations contained in the treaties. The UN Committee against Torture (hereafter “the CAT” or “the Committee”) is the body created by the UN Convention against Torture to monitor the observance of the specific obligations established under the UN Convention against Torture. The CAT is comprised of ten independent experts with recognized competence in human rights.
What does the UN Committee against torture do?
Treaty bodies, including the UN Committee against Torture, have established a system of periodic reporting to monitor the extent to which States Parties are respecting their obligations to implement a particular treaty. States Parties must submit a written report to the Committee every four years (though in practice many states regularly fail to meet this deadline). The Committee then examines the report, including holding a formal public meeting with State representatives to clarify any questions and concerns.
The State Party is invited to co-operate and, where consent is given, the inquiry could involve a fact-finding mission by the CAT to the country concerned. The Committee then submits the findings and recommendations of the inquiry to the State Party.
The Committee can also consider communications from, or on behalf of, individuals who claim to be victims of a violation of the UN Convention against Torture, although a State Party must make a declaration accepting this competence of the CAT before it can consider any individual communications.
The Optional Protocol in international human rights law
The Optional Protocol to the UN Convention against Torture adopted in December 2002, provides a novel and realistic approach in preventing unacceptable human rights violation and crime against humanity. Although the instrument, which will establish a worldwide system of regular visits to places of detention, was successfully adopted by the UN General Assembly on 18 December 2002, a global campaign to ensure its prompt entry into force and its universal application is actively underway.
An Optional Protocol is an addition to an international treaty (also known as a charter, convention, covenant, or an accord) adopted either at the same time or after the primary treaty. A protocol introduces provisions or procedures that are absent from the primary treaty but which complement them. It is optional in the sense that its provisions are not automatically binding on States that have already ratified the primary treaty; they are free to ratify the protocol or not, as they see fit. Accordingly, an optional protocol has its own mechanism for ratification and entry into force that is independent from the treaty it is meant to complement.
Why was there a need for an Optional Protocol to the UN Convention against torture?
We have seen that the UN Convention against Torture provides a solid legal framework to combat this practice, while the UN Committee against Torture is a competent body to oversee that States Parties respect their obligations to prohibit, prevent and punish torture. In addition, various norms and mechanisms against torture and ill-treatment also exist at a regional level. Nonetheless, these practices still persist and are widespread throughout the world. For this reason, an entirely new approach was sorely needed to effectively prevent these violations.
This new approach, enshrined in the Optional Protocol to the UN Convention against Torture, is based on the premise that the more open and transparent places of detention are, the less abuse will take place. Since places of detention are by definition closed to the outside world, persons deprived of their liberty are vulnerable and particularly at risk of torture and other forms of ill-treatment as well as other human rights violations. Furthermore, respect for their fundamental rights depends exclusively upon the authorities in charge of the place of detention and they are dependent upon others for the satisfaction of their most basic needs. Violations to people deprived of liberty can arise from a policy of repression as well as inadequate systems of oversight.