Convention against Torture in 1984 - Essay Example

Convention against Torture, 1984 Convention against Torture, 1984 The International Humanitarian Law (IHL) and the International Human Rights Law (IHRL) puts it clearly that the definition of torture is comprised of the following three main aspects. 1. Any given act that inflicts severe suffering and pain on a person and which may be physical or mental. 2. For the act to be considered as torture, it must be intentionally inflicted. 3. The act must be considered as instrumental for purposes such as: a) Getting information from affected individual or a third party b) Punishing the individual or a third party for an act committed or suspected to have been committed c) Intimidating the individual or the third party d) Coercing him or her as well as the third party e) Any other reason as per discrimination of any kind. The third aspect discussed above helps to distinguish torture from the other forms of ill-treatment such as inhuman, cruel and degrading treatment and other outrages on individual dignity. Cruel and inhuman treatment to a person has been defined as the infliction of extreme pain or suffering either physically or mentally and goes beyond mere humiliation or degradation. Outrages on personal dignity refer to the acts that are meant to humiliate, degrade or violate the dignity and self-respect of the person. It is not mandatory to target these acts to a specific purpose not like torture, which calls for infliction of the acts to a specific person. The only existing difference between the bodies is that IHL relate to all bash in an fortified conflict whereas IHRL treaties which includes the CAT 1984 that apply to states in an exclusive manner. Article 1 of the CAT 1984 act contains requirements that the forbidden acts be inflicted to a person with the consent of a public official or any other person acting in an official competence1. The CAT 1984 requires that signatories take appropriate measures aimed at ensuring that they end torture within the jurisdiction in their territories and to term all cases of torture as criminal cases. Unlike other international bodies and agreements prohibiting torture, CAT gives a general definition and description of the term torture2. In the convention, it is clearly stated that each state party is entitled to take judicial and legislative measures aimed at preventing torture within the territories of the state party. The clause also states that no circumstance whether wars or internal political instabilities or any other emergency of political interest shall be cited as justification of torture. This means that a torturer is subjected to trial and must be prosecuted if found guilty of torture irrespective of the state party he or she is residing at that particular period3. It is enshrined in the constitution under 3 that no party can eject a victim of torture to another country/state, instead, cases of torture must be dealt with at the state party where the victim was faced with the case. For instance, it means that law to allow the Germany government, if they chose to; prosecute a U.S official for torture crimes committed in Iraq. The Definition of Torture The definition of word torture, which emerged in the Torture Declaration, was not considered as precise and was largely criticized by Mach lawyers, researchers and scholars on various points. Various discussions resulted in a more precise and elaborate though more complex. This definition appears in the Torture Convention, article 1, paragraph 1. Torture is thus defined as an act that causes physical or mental pain or suffering when intentionally inflicted on a person or a third party for purposes of obtaining from the individual or the third party information or confessions, or punishing them for something that the third party committed. The pushing may also be where by a third party is suspected to have committed or coercing, intimidating and humiliating him or the third party based on discrimination. Such suffering is inflicted and witnessed by a public personnel or individuals who act in the official capacity. The CAT 1984 requires that signatories take appropriate measures aimed at ensuring that they end torture within the jurisdiction in their territories and to term all cases of torture as criminal cases. Unlike other international bodies and agreements prohibiting torture, CAT gives a general definition and description of the term torture4. Punishment that is commonly referred to as the Torture Convention was adopted and approved the United Nations’ National assembly on December 10th 1984. However, the convention entered into full force on June 26 1987 when it was ratified by 20 states. The Torture Convention came up as a result of many years’ work after the adoption of The Torture Declaration The intention of Torture Declaration was to be the starting point for extra work against torture. The Human rights Commission received an order to start its work of dealing with Torture cases in 1978. A group was initiated to deal with the whole issue of torture and the main discussions in the group were mostly about working on a draft convention which was presented by Sweden. During the subsequent years from that time until 1984, similar working groups were set up to push on the work on the draft convention. The issues discussed were definition of Torture, Universal jurisdiction, International implementation, and the committee against torture among other issues5. In terms of Jurisdiction, the committee concentrated much on the concept of universal jurisdiction. The major question was whether a particular state should undertake, in terms of torture, to presume jurisdiction not based not only on the territory of the offender or his or her nationality but also in terms of acts of torture committed outside the territory by persons who are not nationals of the territory. The concept of universal jurisdiction was ultimately accepted and approved by the Torture Convention, Article 5, and Paragraph 2. This principle was had initially been adopted in other conventions, for instance, conventions against aircraft hijacking and other terrorist acts6. The supervision and implementation of the Torture Convention gave rise to further discussions upon which the concerned parties decided to form a committee against Torture, which was represented in article 17 of the Torture convention. The committee was tasked with the following: i. To receive, evaluate and comment on the reports from states on the measures have taken in ensuring the implementation of the Convention ii. To investigate any well-founded indications of torture being practiced in the territories of any of the state parties. iii. To receive and evaluate complaints by a state party that another party is violating or has violated the convention iv. To receive and evaluate applications of people who claim to be victims of torture. The competencies of the committee applied to several modifications, which included: A state party may decide to opt out and state that it does not recognize the competence of the committee to investigate any case of torture. The competence of the committee to examine complaints between states applies only when the affected state parties approves of committee competence. The competence of the committee to evaluate cases of suspected individual’s torture only applies when a state party has recognized this competence. The Committee against Torture (CAT) is mainly composed of 10 experts who are tasked with the work of monitoring and examining the establishment policies against torture. Every state party must submit their reports to the committee on how they have implemented the convention. The committee is said to be effective once it is able to examine a report and comes up with concluding observations that address its concerns to the affected state party. The main requirement of CAT is to take measures aimed at combating torture within their territories. They should train adequate personnel such as medical and law enforcement personnel or any other person who may assist in the interrogation and custody of detained persons on matters of prohibition of torture and any other ill treatment. State parties must show that they have actively investigated any act of torture and ill treatment substantially to the committee against torture. Since its adoption in 1984, the Convention against Torture has initiate several bodies meant to conduct investigations in the field and to intervene with governments as well as develop laws and practices7. Concept of Universal jurisdiction Universal jurisdiction allows states and other international bodies to declare criminal jurisdiction in terms of torture for an accused person despite the accused person’s nationality, residential country or where the suspected crime was committed or even regardless of the relationship between the accused and the prosecuting entity. Thus a torture can be tried anywhere in the world as stated in the Convention against Torture. All crimes prosecuted under the principle of universal jurisdiction are termed as crimes against all and cannot tolerate jurisdictional arbitrage8. Consider the case of Othman (Abu Qatada) v. United Kingdom, which was a 2012 judgment case of the Court of Human Rights in the European Union. It stated clearly under Article 6 of the European Convention on Human Rights that the United Kingdom (UK) could not deport Abu Qatadato lawfully to his mother country, Jordan due to the risk of torture based information. The judgment overturned the House of Lords judgment of RB (Algeria v secretary of the state for the Home department). This case of Abu Qatadato involved deportation, and inhuman or degrading treatment and punishment or basically torture. In other words, Abu was the torturer. He was born in Jordan but went to live in UK as an asylum seeker and was thus recognized as a refugee by the UK authority. He was a suspect of a terrorist attack and was thus arrested in 2002 under the Anti-terrorism, Crime and Security Act 2001. In 2005, the secretary involved with the case served the applicant with an intention notice to leave. This was against the provisions of the CAT 19849. The principle of universal jurisdiction is thus closely related to the fact that certain international norms are erga omnes meaning that they are owed to the complete world community. The norms are also relating to the concept of jus cogens meaning that certain international law requirements are binding to all states10. CAT 1984 defines universal jurisdiction as a ability of a court from any state to try criminal persons for crimes committed outside the territorial boundaries and are not linked to the state by the suspect’s nationality. At times, the rule seems to be permissive universal jurisdiction. This principal rule has become part of the customary international law. Whenever a national court exercises jurisdiction over the conduct of crimes under the international law or crimes under the national laws of international concern but committed abroad, the court in this case is acting as the international community agent enforcing international law. An example is the Eichmann case, which was within the jurisdiction the Israeli Supreme Court. The court explained that universal jurisdiction, as an essential international justice tool is the ability of a court from any given state to try suspected criminal persons for crimes committed outside the state’s territory and are not linked to the state in terms of nationality of the suspect or the states national interests. The National Assembly of UN has been convening annual meetings so as to discuss the scope and applicability of this principle rule of customary International law. The legal committee was requested to undertake this by the African Union (AU) who proclaimed their support for the principle of universal jurisdiction11. Punishments for torture crimes are determined by the domestic law. Nonetheless, the CAT 1984 provides that state parties shall make such offences punishable through the use of appropriate penalties which take into perspective their grave nature. Judges and prosecutors are supposed to ensure that any act of torture is treated as an abuse to the authority and a major betrayal of the public trust12. The whole concept of trying and prosecuting a victim of torture anywhere in the world has been generally addressed as the universal jurisdiction concept. This concept serves two main functions13: It provides victims of international crimes such as torture with justice access. This concept allows a state party to arrest and convict a person accused of committing acts of cruelty or torture irrespective of their nationality. Through this, both parties affected by the act receive justice. This concept bridges the impunity gap. The concept of universal jurisdiction allows each state party to investigate and prosecute cases of torture to ensure that victims don’t escape unpunished whatsoever. Jus Cogens These peremptory norms were formulated in the Vienna Convention of the Treaties Law and how the norms apply in the implementation of human rights. Jus Cogens, which is a compelling law, is a technical term that is given to the norms of general international law and that are considered as hierarchically superior. Peremptory human rights norms are considered as projections of persons and collective ethics and are the basic principles of the international community, which are further considered as powerful collective values. This analysis is based on the legal imp acts of these peremptory norms. If a certain human right can be considered as ‘jus cogens’ then it subsequently brings better and superior procedural effects to its implementation in relation to the principles of state sovereignty. The first major effect of ‘Jus Cogens’ is that it disables the state (de jure imperii and de jur gestionis) form getting into contractual relations that can be detrimental to the human rights that are considered ‘jus cogens’14 The International Criminal Court (ICC) described clearly the normative relations and obligations emanating from the concept of ‘jus cogens’ in the case Prosecutor v. Furundzija, paragraph 153. There are several authors among them Georg Schwarzenberger who claim that there can only exist ‘Consensual jus cogens’ norms but not peremptory in teal situations. However, this kind of criticism has no grounds and could not in any way be justified by the nature and development of international law which is less state-centered15 . Bibliographies Bassiouni, M (2012). Introduction to International Criminal Law, 2nd Revised Edition. Boston: Martinus Nijhoff Publishers. Danelius, H. & Herman Burgers (1988). The United Nations Convention against Torture. A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dordrecht, Martinus Nijhoff Publishers. Beigbeder, Y. (2005). International justice against impunity: Progress and new challenges. Boston: Martinus Nijhoff Publishers. Brody, R., & Ratner, M. (2000). The Pinochet papers: The case of Augusto Pinochet Ugarte in Spain and Britain. Boston: Kluwer Law International. Cryer, R. (2005). Prosecuting international crimes: Selectivity and the international criminal law regime. Cambridge: Cambridge University Press. Garcia, M. J. (2010). U. N. Convention Against Torture (CAT): Overview and Application of Interrogation Techniques. Pennsylvania: Diane Publishing. Lattanzi, F., & International Criminal Court. (1999). Essays on the Rome statute of the international criminal court. Ripa Fagnano Alto, AQ: il Sirente. McArthur, E. & Nowak, N. (2008). The United Nations Convention Against Torture: A Commentary. Oxford: Oxford University Press. Murray, R. (2011). The Optional Protocol to the UN Convention Against Torture. Oxford: Oxford University Press. Teitel, R. (2011). Humanitys Law. Oxford: Oxford University Press, USA. Gavouneli, M. (2007). Functional jurisdiction in the law of the sea. Leiden, The Netherlands: Martinus Nijhoff. Read More