International laws on torture §

• Concention on Torture

  • Ratified 173 states

• A33: Proscecution of torture cases are still “innocent until proven guilty”

  • Defendant still can hire lawyer and go through due process of justice system

• A14: Compensations must be made for victims of torture

  • Compensations to family of inaccessible victims

Problems with proscecuting torture §

• Hard to proscecute leaders who still have military power, usually proscecuted after power

CH14 - Freedom from Torture §

In general, what is torture? §

‼️ **TORTURE :**

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 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.

Art 1, United Nations Convention against Torture 1984

Can you give examples both in historical and contemporary contexts? §

• historically,
  • used during a period of detention (legal or otherwise) to extract information or confessions or issued as a punishment
• contemporarily,
  • “enhanced interrogation”
  • isolation — solitary confinement
  • debilitation — food, water, and sleep deprivation; extreme temperatures
  • disorientation — confinement in small spaces; being denied natural light resulting in losing all sense of time and date
  • threats, degradation
  • medical manipulations

Tell us about the background of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment! §

Background to the Convention

• adopted by the UNGA on 10 December 1984
• ratified by the 20th state party — came into force on 26 June 1987
• first committee meeting in April 1988, Geneva
• how does the convention protect people?
  • activities of states parities to prevent the act of torture:
    • returning, expelling, or extraditing someone to another country where there are grounds to believe they will face torture;
    • arrest, detention, and imprisonment;
    • interrogation; and
    • the training of police (civil or military), medical staff, public officials, and anyone else who may be involved in the arrest, detention, and questioning a person.

How many articles in total? Can you briefly talk about a few articles? §

Part I: 16 art, Part II: 8 art, Part III: 9 art.

• 33 articles, according to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • Article 1 - defining the term ‘torture’
  • Article 13 - Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

How many General Comments have been made? Briefly talk about each of them! ¹ §

• General Comment No. 1 - 1998
  • the implementation of article 3 of the Convention in the context of article 22
• General Comment No. 2 - 2008
  • Implementation of Article 2 by States parties
• General Comment No. 3 - 2012
  • Implementation of Article 14 by States parties
• General Comment No. 4 - 2018
  • Implementation of Article 3 of the Convention in the context of article 22
    • communications received by the Committee = violation by States parties (article 3)
    • provides guidance to States parties — on how the Committee assesses the admissibility and the merits of the individual communication submitted to the Committee for its consideration

How many countries have ratified this convention? How many have not? §

• Signatory: A State that expresses its consent to be bound by a treaty by signing the treaty without the need for ratification, acceptance, or approval. A State may definitively sign a treaty only when the treaty so permits.
• Party: A Party to a Treaty is a State or other entity with treaty-making capacity that has expressed its consent to be bound by that treaty by an act of ratification, acceptance, approval or accession, etc. where that treaty has entered into force for that particular State.

10. What are the major issues mentioned in relation to threat of torture? (Page 6 and 7) (2 people: Jay, Dalen) ➔ Returning or extradite refugees, asylum seeker and criminal to a State that those inidual might suject to torture. Based on article 3 of the UN convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment, state must not expel or return a person to the other state that the person might be in danger of being torture. Thus, before returning the individual, the hosting state has the accountability in considering any pattern of human rights violation in the particular country. ➔ A state may be liable even if the torture occurs outwith its jurisidction and prima facie control if knowledge of the situation can be implied. ➔ However, state has the right to repatriate individual if there is proof that such action will not pose a threat of torture to the individual ➔ In the case of MRP v Switzerland, The Committee against Torture held that Switzerland was not violating the Convention by denying asylum and deporting a Sikh back to Bangladesh. There were argument about how there was a real risk of torture on his return to Bangladesh, but the Committee agreed with Switzerland that there was insufficient evidence to prove a ‘real and foreseeable risk’ of being tortured in Bangladesh.

11. With regard to the scientific and medical experimentation, what are the international instruments, which address these issues? What has happened so far? (Page 7) (Lyta) ➔ The international instruments that address these issues are the council of europe, the 1997 convention for protection of human rights and dignity of human being, 1998 protocal as well as from the United Nations and UNESCO. ➔ Though a lot has been shown addressing the issues, not many progress have shown as the human rights committee has claimed that state did not provided enough information regarding this. Moreover, the boundaries for scientific and medical experimentation are forever extended depending on discoveries, innovation and experiment, which make it hard to take note on its progress. But there also noticable improvement as well, for instance, the case of inhuman treatment (an example of this is through the case of D v United Kingdom. The European Court considered deportation of a terminally ill man in the advanced stages of AIDS to his homeland (St Kitts), which had poorer medical resources, was ‘inhuman treatment as in human treatment.

12. What is Corporal punishment? (Maikheur) ➔ Corporal punishment is a punishment which threatens or harms the physical integrity of the individual and insults the inherent dignity of the person concerned. Or in short, Corporal punishment is a physical punishment such as caning and flogging. Moreover, it also includes the behaviour which constitutes assault. Corporal punishment is divided into two types such as judicial corporal punishment and corporal punishment of children. Besides, they have seen that corporal punishment still remains a feature of many legal systems in some countries.

13. What are the main points mentioned in the sub-sections of Judicial corporal punishment and Corporal punishment of children? (Page 8 and Page 9) (Pheakdey, Piseth) ➔ Judicial corporal punishment: ◆ Judicial corporal punishment even if it is under the protection of the jurisdiction of the constitution, it is still in the contrary to the International Covenant order on Civil and Political Rights, Art 7. In the case of Osbourne v Jamaica for example, where the man was sentenced and stroked of birch. ◆ In the case of Doebbler v Sudan, where a group of students were to be lashed. Sudan then was order to amend their law, withdraw the penalty, and compensate the victims. ➔ Corporal punishment of children ◆ The ban in Art 7 of the ICCPR also covers corporal punishment and severe chastisement as instructional or punitive means, according to the United Nations Human Rights Committee’s General Comment. Corporal punishment of children ◆ When an individual’s rights under the salient articles are violated, States may be under a positive obligation to respond, similar to when the right to life is violated. ◆ The care of a child, which included a violent beating (with an implement) by a step-parent, was not the state’s direct obligation. However, the failure of the state to punish the criminal (due to the invocation of the reasonable chastisement defense) made the state liable under the European Convention. ◆ Many states have outlawed the practice on their own initiative and in response to popular demand.

Group 2 Torture 14. What is the death-row phenomenon? (Page 10) Situations in which individuals have successfully argued that a lengthy period of detention following the handing down of a lawful sentence of death by a competent court may give rise to inhuman treatment. (The death row phenomenon is the emotional distress felt by prisoners on death row.) 15. What happened with these two cases, Soering v United Kingdom and Ng v Canada? (Page 10) The European Court of Human Rights paved the way for this in the 1989 case of Soering v United Kingdom. Extradition of Soering was sought. The case represented his last attempt to challenge the extradition order. Soering was wanted for murder in the United States of America and, if convicted, would most probably have been sentenced to death. The death penalty was still legal in Virginia where the alleged offence occurred. It was submitted that his return to the United States would cause the United Kingdom to infringe his freedom from inhuman treatment. The key issue before the Court was the time the applicant would spend on death row following a conviction—potentially over six years. In the instant case, the European Court decided that exposure to the delay from the ‘real risk’ of conviction to the execution itself gave rise to a violation of Art 3 (torture, inhuman or degrading treatment) of the European Convention. At para 89, the European Court did note that care had to be taken not to create safe havens for fugitives and thus undermine the foundations of extradition. Consequently, a pragmatic solution was reached and the eventual extradition was on guarantee of no death penalty. In applying Art 7 of the ICCPR, the Human Rights Committee came to a similar conclusion. In Ng v Canada, the author of the communication was a British subject born in Hong Kong and a resident of the United States of America. He was convicted in Canada for attempted theft and shooting. The United States then requested the author be extradited to stand trial in California on nineteen counts including kidnapping and twelve murders. Conviction could result in the death penalty. Canada effectively had abolished the death penalty but was not party to the Second Protocol of the International Covenant on Civil and Political Rights. The Canadian Supreme Court decided that extradition would not prejudice Canadian constitutional human rights or those protected under international law and ordered the extradition. The Human Rights Committee, on the other hand, decided that execution by gas asphyxiation constituted cruel and inhuman treatment (para 16.4) and thus Canada was in violation of Art 7 of the Covenant. 16. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Adoptedon 07 September 1990, by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990) Basic Principles on the Use of Force and Firearms by Law Enforcement Officials | OHCHR Briefly talk about General Provisions, especially Paragraph 4 and Paragraph 5 ● Paragraph 4: In carrying out the duty, law enforcement officials shall apply non-violent means as far as possible before resorting to the use of force and firearms. Using forces and firearms only when other means remain ineffective. ● Paragraph 5: Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: a) Exercise restraint in such use and act in proportion to the seriousness of the offense and the legitimate objective to be achieved; b) Minimize damage and injury, and respect and preserve human life; c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment; d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment. Briefly talk about Policing persons in custody or detention Part ● Law enforcement officials, in their relations with persons in custody or detention,: a) Shall not use force, except when strictly necessary for the maintenance of security and order within the institution, or when personal safety is threatened. b) Shall not use firearms, except in self-defense or in the defense of others against the immediate threat of death or serious injury, or when strictly necessary to prevent the escape of a person in custody or detention presenting the danger referred to in principle 9. ● The preceding principles are without prejudice to the rights, duties and responsibilities of prison officials, as set out in the Standard Minimum Rules for the Treatment of Prisoners Briefly talk about Qualifications, training and counseling Part ● Governments and law enforcement agencies shall ensure that all law enforcement officials are: a) Selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review. b) Provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorized to do so only upon completion of special training in their use. ● In the training of law enforcement officials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the understanding of crowd behavior, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms. Law enforcement agencies should review their training programmes and operational procedures in the light of particular incidents. ● Governments and law enforcement agencies shall make stress counseling available to law enforcement officials who are involved in situations where force and firearms are used. 17. What are the international positions toward the treatment of detainees? (Page 12) ● United Nations Standard Minimum Rules for the Treatment of Prisoners 1955: were adopted by the UN Congress on the Prevention of Crime and the Treatment of Offenders in 1955, and approved by the UN Economic and Social Council in 1957. It provides that corporal punishment, punishment by placing in a dark cell, and any cruel, inhuman, or degrading treatment or punishment shall be unacceptable (para 31). Such principles should be read as guidance for States in any situation when a person is deprived of his or her liberty. ● United Nations General Assembly Resolution 45/111, 14/12/90: contains the Basic Principles for the Treatment of Prisoners which, in some ways, updates the earlier Minimum Rules. Some of which include: ○ All prisoners shall be treated with respect due to their inherent dignity and value as human beings. ○ All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality. ○ Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. ○ The above Principles shall be applied impartially. ● Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment: was adopted by the General Assembly in 1988 to further clarify the application of torture in detention situations. ● For example: ○ Principle 1: all persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person. ○ Principle 2: arrest, detention or imprisonment shall only be carried out strictly in accordance with the provisions of the law and by competent officials or persons authorized for that purpose. Group 4 Among the treaty-monitoring bodies, there are guidance notes for state parties to follow and prepare their reports. For example, based on the link below, review and share with our classmates of the main themes of the reporting guidelines of CEDAW! You can do as follow: (1) Cover and summarize main points from II and III (A, B, C, and D on page 2 and page 3) (2) on specific articles, please just pick 3 your members want to cover or think some are short enough to cover. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/74/3&Lang=en From guidance II which is known as the Periodic Reporting Obligations. When the convention is ratified, a state has to submit an initial report on the measures adopted and the progress made and periodic reports every four years. As for guidance III called general guidance and requirements for reporting under the convention. In this guidance, I have chosen four points to present. The first point is a simplified reporting procedure in which the committee will prepare and adopt lists of issues prior to reporting. The second point is exceptional reports, and it does not affect the committee’s procedure that is related to any exceptional reports that may be requested and governed. The third point is the content of the report which should contain the Committee’s latest concluding observations including concerns, recommendations, and follow up actions on the current situation concerning. Moreover, under article 18, paragraph 2, of the convention, it stated that state parties should provide information related to the nature, extent of and reasons for any such factors. In addition, according to the Platform of Action, the report should contain information on how the implementation on 12 critical areas is integrated into the state’s party implementation of the Convention’s Substantive equality framework. Not only that, the report needs to include information on the implementation of the gender elements across the Sustainable Development Goals and regional human rights instruments and the results of the other United Nations conferences, summits and reviews. The fourth point, which is optional protocol, is divided into two guidelines. If the state party has ratified the optional protocol, the Convention specific documents including information about remedial steps taken in order to make sure that any situation giving rise to the communication does not recur. Another one is if the state has ratified and the Committee has conducted an inquiry under article 8, the document needs to contain information about measures taken as a response to the inquiry. According to article 7&8 which focuses on women in political and public life, the report should contain whether the legal framework guarantees equality between men and women related to voting, ange and many more. Whether laws or regulations on inclusive electoral systems include the prohibition of electoral and related violence. Last, but not least, whether women have equal rights to be judges, lawyers, or other judicial officers.

From the link below, pick 3 or 4 experts (more if you like or want to) and look into their profiles (education, work experience and others) and then explain and share with our classmates how they fit in the so-called, “independent experts who are persons of high moral character and recognized competence in the field of human rights” https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Membership.aspx

1.    Ms. Acosta Vargas, Gladys, a Peruvian nationality. She is fitting to the role as an independent expert in the field of human rights because of her specialist in the field which she has gained through her educations and most importantly is from her careers experience which she had participated in many activities related to Women’s rights. 
   

•    Regarding her educational background, she has only achieved a bachelor degree in Law in Peru and a master’s degree in Sociology in France. Interestingly, she is multilingual, which she can speak Spanish, English, Portuguese and French.  
  

•    However, her job experience has contributed to her specialization in women affairs. She has worked with many international organizations and institutions since 1990. As of now, her experience in promoting women equality is about 32 years. 
  

•    She also had activities in the field relevant to the mandate of the Convention on the Elimination of All Forms of Discrimination against Women as well. 
  

•    Besides, she also contributes to the promotion of women equality and rights through several articles that she has published so far. 
  

2.    Ms. AKIZUKI, Hiroko, a Japanese nationality. 
   

•    We can consider as a powerful and strong woman who is currently holding different positions in Japanese government despite, male domination in the country’s government. She is a professor, a member of ministry of foreign affairs of Japan, member of the ministry of Justice of Japan and a Chairperson at Tokyo Organizing Committee of the Olympic and Paralympic Games. 
  

•    She has been lecturing and researching in the areas of the international law, the UN and other international organizations for almost 25 years. 
  

•    She has served the UNDP, UNCTAD, worked with public service for the promotion of Gender Equality. Most importantly, she is a member of the Drafting Committee for the Ordinance on Rights of the Child 
  

•    Regarding her educational backgrounds, she is currently holding a Ph.D in Public Administration
  

•    So far, she has published 5 research documents already and mostly in the field of international law and human rights. 
  

3.    Nicole Ameline: titled as the Doctor of Law
   

Educational Background: • Institute of Political Studies, Paris - Diplôme ‘études supérieures spécialisées (DESS) (diploma of specialized advanced studies) in public law, with a major in Community law, University of Caen Current Position: • Deputy for Calvados (elected member of the French Parliament since 1991) • Member of the Foreign Affairs Committee o Chairperson of the study group entitled “Globalization; economic and social regulations” and of the “France-United Kingdom” friendship group - Vice-Chairperson of the National Advisory Committee on Human Rights Other main activities in the field relevant to the mandate of the treaty body concerned: • Former representative of the French Government to the International Labour Organization (ILO) and former ambassador for social and gender issues in international relations o Support for women’s access to positions of political responsibility • Expert advice to Governments for the development of women’s rights Former Minister for Gender Issues and Professional Equality • Preparation and implementation of a plan to promote women’s empowerment • Implementation of a legislative mechanism to combat domestic violence
• Definition of a policy of equal pay between men and women o Combating of stereotypes, prejudices and discriminatory traditions • Launching of the international initiative “Partners for Beijing+10” She focuses strongly on women rights and encourage women to have more roles in politics shows that she is a very inspiring person. She is very competitive and the expert advices that she gave to the French government proves that she is no ordinary person.

4.    BONIFAZ ALFONZO, Leticia
   

Educational Background: • Bachelor degree and a PhD in Law by the National Autonomous University of Mexico Current Position: • Consultant for the United Nations Development Program (UNDP) and professor at the National Autonomous University of Mexico • Gender and human rights consultant for various government institutions, non-governmental organizations and private companies, for the development of laws, analysis of contentious cases, development of public policies, and training of public servants. Other main activities in the field relevant to the mandate of the Convention on the Elimination of All Forms of Discrimination against Women: • Part of the Council of the System for the protection Girls, Boys and Adolescents (of SIPINNA), as well as part of the Assembly of the Council to Prevent Discrimination, CONAPRED. Publications achieved: • Coordinator of the Human Rights collection published by the Supreme Court of Justice (2018). The evolution of women’s rights from the Constitution of 1917. 100 Anniversary Constitution 1917 (2017). Various opinion articles in the national newspaper El Universal. She has focused toward the fight against discrimination against women. This made her an important figure as she promotes the rights of women around the world and make sure that they deserved what they got. Discrimination against women is a big issue as women make up the majority of the world’s population. As she made her publications, her work is making a huge impact on how women view the world they live in. Therefore, inspiring them to be stronger and fights for what they should deserved.

CEDAW: report of the state parties; Sri Lanka case! You can cover the following parts:

• Para 2. Sri Lanka’s previous reports • The initial report at the 6th session held in Vienna in March 1987 • 2nd periodic Report at its 11th session in New York in January 1992 • 3rd and 4th combined periodic reports at its 26th session in New York in January 2002 • 5th to 7th combined periodic reports at its 48th session in Geneva in January 2011.

• Responses to concluding comments of the Committee consequent to the consideration of the fifth, sixth and seventh period • Para10: Article 12 (2) of the Constitution of Sri Lanka recognizes the right to equality before the law which provides that “No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds. Nothing in Article 12 would prevent special provisions being made by law for the advancement of women, children, and disabled persons. Any form of discrimination against women can be challenged under the supervision entrenched in the supreme legal instrument of the country, even in the absence of any separate legal provision. • Para11: In the absence of written law, Supreme Court has time and again exercised its jurisdiction in regards to the provisions of International Conventionsions. • Para 12: The pronouncements of the Supreme Court recognize the right to equality and avoid discrimination on the grounds of gender. • Para13: Article 12 (a) of the Constitution of Sri Lanka, the highest law of the land, clearly prohibits any discrimination of persons, on the grounds of sex. • Para16: The legitimacy of the continued validity of certain personal laws was examined by the court in the light of the allegation made that the continued validity of certain personal laws under Article 16(1) was inconsistent with the Constitution.

• Trafficking and exploitation of prostitution Para 41 and Para 42
  https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2FC%2FLKA%2F8&Lang=en The offence of trafficking in persons as contained in the Penal Code is a new offence introduced in 2006. Since 2009, There have been 12 indictments, 3 convictions and no acquittals during this period. Sri Lanka also continues its efforts to overcome gender role stereotyping in the formal education by providing ample opportunities for women to pursue fields of their choice. Opportunities in the vocational training sector too are open to all irrespective of gender. The Asian Development Bank Education Sector Development Programme (2013-2018) in Sri Lanka has its Gender Action Plan which aims to increase the participation of girls in the new Technology stream in Grades 12 and 13, develop gender sensitive training modules and capacity development plans for teachers, especially in non-traditional fields such as technology. In Universities, female students are a majority in most streams such as Arts 76.7%; Education 85.2%; Indigenous medicine 76.6% and Para medical 78.1%. It is only in the Information Technology and Engineering courses that men are in the majority, i.e.47.9 % of female students in Information Technology and 24% of female students in Engineering. Given that women are assured complete freedom of choice, the lesser percentage of women in Engineering is not a cause for intervention.

References §

Footnotes §

1. OCHR-Background Conventions ↩