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The struggle against torture

Published online by Cambridge University Press:  23 November 2010

Walter Kälin
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Extract

Over the past fifty years, the struggle against torture has become a central concern of human rights law. The first international legal text specifically outlawing “torture” was the 1948 Universal Declaration of Human Rights (Article 5). The first treaty prohibiting torture — the European Convention on human rights (Article 3) — was adopted soon afterwards, in 1950. In 1984, the United Nations Convention against torture became the first binding international instrument exclusively dedicated to the struggle against one of the most serious and pervasive human rights violations of our time.

Type
50th anniversary of the Universal Declaration of Human Rights: Human rights and international humanitarian law
Information
International Review of the Red Cross (1961 - 1997) , Volume 38 , Special Issue 324: 1948—1998 Human rights and international humanitarian law , September 1998 , pp. 433 - 444
Copyright
Copyright © International Committee of the Red Cross 1998

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References

1 Article 7 of the Covenant on civil and political rights (CCPR), 19 December 1966; Article 37(a) of the Convention on the rights of the child (CRC), 20 November 1989; Article 5(2) of the American Convention on human rights (ACHR), 22 November 1969; Article 3 of the (European) Convention for the protection of human rights and fundamental freedoms (ECHR), 4 November 1950; Article 5 of the African Charter on human and peoples' rights, 26 June 1981.

2 Article 4(2) CCPR, Article 15(2) ECHR, Article 27(2) ACHR.

3 European Convention for the prevention of torture and inhuman or degrading treatment or punishment, 26 November 1987; Inter-American Convention to prevent and punish torture, 9 December 1985.

4 A prohibition of torture can also be deduced from other Articles, including 44 and 46; see Bassiouni, M. Cherif, “An appraisal of torture in international law and practice: The need for an International Convention for the prevention and suppression of torture”, Revue Internationale de droit pénal, Vol. 48, 1977, Nos. 3 and 4, p. 71.Google Scholar

5 Article 4, para. 2(a) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II).

6 Articles 13 and 14 of the Third Geneva Convention relative to the treatment of prisoners of war of 12 August 1949.

7 Articles 27 and 32 of the Fourth Geneva Convention relative to the protection of civilian persons in time of war of 12 August 1949.

8 Article 75, para. 2(a)(ii) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I).

9 See Meron, Theodor, Human rights in internal strife: Their international protection, Cambridge, 1987, p. 28 Google Scholar , and Kalin, Walter/Gabriel, Larisa, “Human rights in times of occupation: An introduction”, in Kalin, Walter (Ed.), Human rights in times of occupation: The case of Kuwait, Bern, 1994, pp. 26–29.Google Scholar

10 On the obligation to declare torture as an offence under domestic criminal law, see Article 4 of the Convention against torture.

11 Kooijmans, Peter H., “The role and action of the UN Special Rapporteur on torture”, in Cassese, Antonio (Ed.), The international fight against torture — La lutte Internationale contre la torture, Baden-Baden, 1991, p. 65.Google Scholar

12 Ibid.

13 Art. 79 ff.

14 Torture and other Cruel, Inhuman and Degrading Treatment or Punishment”, Report of the Special Rapporteur, Mr P. Kooijmans, 21 December 1991, UN Doc. E/CN.4/1992/17, para. 277.

15 Article 143(1) of the Fourth Geneva Convention. According to para. 5 of the same Article, the occupying power has to approve the appointment of delegates of the ICRC but not the principle of visits as such.

16 Article 81 of Protocol I reiterates these rights in general terms.

17 Common Article 3(2).

18 On the visits carried out by the ICRC see, in particular, Haug, Hans, Humanity for all — The International Red Cross and Red Crescent Movement, Berne/Stuttgart/Vienna, 1993, pp. 97–162 Google Scholar ; Comtesse, Francoise, “Activities of the ICRC in respect of visits to persons deprived of their liberty: conditions and methodology”, in Association for the Prevention of Torture (Eds), The implementation of the European Convention for the prevention of torture and inhuman or degrading treatment or punishment (ECPT) — Assessment and perspectives after five years of activities of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Geneva, 1994, pp. 239–248 Google Scholar ; Philippe de Sinner/Hernan Reyes, “Activités du CICR en matière de visites aux personnes privées de liberté: Une contribution à la lutte contre la torture”, in Cassese, supra (note 11), pp. 153–171.

19 Comtesse, supra (note 18), p. 247.

20 See the contributions by Gautier, Renaud and de Vargas, Francois in 20 ans consacrés à la réalisation d'une idée, Recueil d'articles en honneur de Jean-Jacques Gautier, APT, Genève, 1997, pp. 21–26 and 27–46.Google Scholar

21 On the European Convention for the prevention of torture (note 20) see Malcolm Evans and Rod Morgan, “The origins and drafting of the ECPT — a salutary lesson?”, supra, pp. 85–97; Antonio Cassese, The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, in Cassese, supra (note 11). pp. 135–152.

22 Draft Optional Protocol to the Convention against torture and other cruel, inhuman or degrading treatment or punishment, annexed to the letter dated 15 January 1991 from the Permanent Representative of Costa Rica to the United Nations Office at Geneva addressed to the Under-Secretary-General for Human Rights, UN Doc E/CN.4/1991/66.

23 The proposed full title is “Sub-Committee for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture”.

24 See Hans-Peter Gasser, “Suivre les travaux du groupe Gautier …”, supra (note 20). p. 67.

25 Follow-up visits are possible but their primary purpose is not to revisit individual prisoners.

26 See Roland Bank, “Preventive measures against torture: An analysis of standards set by the CPT, CAT, HCR and Special Rapporteur”, supra (note 20), p. 129; Alleweldt, Ralf, “Präventiver Menschenrechtsschutz — Ein Blick auf die Tätigkeit des Europäischen Komitees zur Verhütung von Folter und unmenschlicher oder erniedrigender Behandlung oder Strafe (CPT)”, Europäische Grundrechte-Zeitschrift, 1998, pp. 245–271.Google Scholar

27 Article 10(2), European Convention for the prevention of torture and inhuman or degrading treatment or punishment.

28 Article 16 of the Draft Optional Protocol, UN Doc. E/CN.4/1998/42, 2 December 1997, Annex I.

29 See also Article 126 of the Third Geneva Convention.

30 Article 8 of the European Convention on the prevention of torture.

31 Article 59 of the Regulations of the Inter-American Commission on Human Rights.

32 See Association for the Prevention of Torture, “Standard operating procedures of international mechanisms carrying out visits to places of detention”, Workshop, 24 May 1997, Geneva, 1997.Google Scholar

33 Article 19(1).

34 Articles 7 and 40.

35 Article 20 of the Convention.

36 Such visits need the consent of that country.

37 See Kooijmans, supra (note 11), pp. 56–72.

38 Besides the Special Rapporteur on Torture, many of the country-specific Rapporteurs, the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions and the Working Groups on Arbitrary Detention and on Disappearances are concerned with cases of torture and ill-treatment.

39 Articles 21 and 22. These procedures can take place only if the country concerned has made a declaration recognizing the competence of the Committee against Torture to receive such communications.

40 Article 50 of the First, Article 51 of the Second, Article 130 of the Third and Article 147 of the Fourth Geneva Convention.

41 Article 49 of the First, Article 50 of the Second, Article 129 of the Third and Article 146 of the Fourth Geneva Convention.

42 Articles 2(b) and 5(f) of the Statute of the International Tribunal for the persecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, 32 I.L.M. 1170 (1993), and Articles 3(f) and 4(a) of the Statute of the International Tribunal for Rwanda, 33 I.L.M. 1602 (1994).

43 Articles 18(c) and 20(a)(ii) of the Draft Code of crimes against the peace and security of mankind, Human Rights Law Journal, Vol. 18, 1997. pp. 96–134. See also Draft Statute for the International Criminal Court, UN Doc. A/CONF. 183/2/Add. 1 (14 April 1998), draft article on crimes against humanity.

44 See Burgers, J. Herman/Danelius, Hans, The United Nations Convention against torture, Dordrecht/Boston/London, 1988, pp. 56–57 Google Scholar and p. 130, who mention as sources of inspiration the Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents, the Convention against the taking of hostages or the Convention for the suppression of the unlawful seizure of aircraft.

45 Formerly Article 50, ECHR.

46 For details see the study by Dannemann, Gerhard, Schadenersatz. bei Verletzung der Europäischen Menschenrechtskonvention, Köln/Berlin/Bonn/München, 1994 Google Scholar . See also, e.g., ECHR, Kurt v. Turkey judgment of 24 May 1998, Reports 1998 (not yet printed), paras. 171–175.

47 Velasquez Rodriguez Case, Judgment of July 29, 1988, Series C No. 4 (1988).

48 See Theo van Boven, “Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms”, dated 2 July 1993 and submitted to the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Forty-fifth session, UN Doc. E/CN.4/Sub.2/1993/8, paras. 60–79. Especially rich is the case law of the Human Rights Committee established under the Covenant on Civil and Political Rights (van Boven, paras. 50–59).

49 See Article 3 of the Hague Convention regarding the laws and customs of war on land, 18 October 1907. The Four Geneva Conventions all provide that parties cannot absolve themselves of liability in respect of grave breaches, and Protocol I, in Article 91, stipulates that parties to a conflict shall be “liable to pay compensation” for violating provisions of the Conventions or of the Protocol.

50 According to Decision 1 of the Governing Council of the Compensation Commission, paras. 11–13 (30 I.L.M. 1713 [1991]) the amounts were set at between 2,500 and 10.000 USS. These amounts were later raised to 30,000 USS per claimant and 60,000 US$ per family unit (Governing Council Decision 8, para. 3 and 4, 31 I.L.M. 1036 [1992]).

51 UN Compensation Commission, Governing Council Decision 1, para. 10, 30 I.L.M. 1713 (1991).

52 UN Compensation Commission, Governing Council Decision 3 defining the terms “personal injury and mental pain and anguish” as consequences inter alia arising from torture.