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Torture and Human Rights in Africa

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Presentation on theme: "Torture and Human Rights in Africa"— Presentation transcript:

1 Torture and Human Rights in Africa
In an International and Regional Context

2 Torture at Abu Ghraib prison 2004

3 Torture and Ill-treatment in Africa
Amnesty International Report 2005

4 Overview General Prohibition against torture
Sources of specific obligations Substance of the specific obligations The UN Convention against Torture International and regional mechanisms Specific obligations in an African context African Mechanisms Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

5 General Prohibition No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights (“ICCPR”), 1966, Geneva Conventions, 1949, Rome Statute of the International Criminal Court, 1998, European, American, African regional human rights treaties. Peremptory Norm of Customary International Law Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

6 Sources of Specific Obligations
Customary International Law Treaties Other Instruments Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

7 Specific Obligations: Customary International Law
The obligation not to subject people to torture is a rule of customary international law. Obligations of states: Respect the prohibition of torture, prevent torture and punish acts of torture, whether or not they are party to a treaty Peremptory norm – states may not derogate from the. May not withdraw from their obligation to respect them under any circumstances. Jus Cogens: a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Vienna Convention on the Law of Treaties (article 53). Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

8 Specific Obligations: Treaties
UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), 1984. Inter-American Convention to Prevent and Punish Torture, 1985. The African Charter on Human and Peoples’ Rights, 1986 European Convention for the Prevention of Torture, 1987. Optional Protocol to the UNCAT (“OPCAT”), 2002. UN Convention on Enforced Disappearances, 2006 African Charter has been ratified by all 53 member states of the Afircan Union Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

9 Specific Obligations: Other Instruments
UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1975. UN Standard Minimum Rules for the Treatment of Prisoners, 1955/1977. UN Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, 1988. Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

10 Specific Obligations: Other Instruments
Kampala Declaration on Prison Conditions in Africa, 1996. Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, (The Robben Island Guidelines) Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

11 UNCAT - African Ratifications
Morocco Tunisia Algeria Libya Mauritania Egypt Mali Niger Senegal Chad Guinea Ethiopia Burkina Faso Djibouti Benin Uganda Sierra Leone Somalia Liberia Kenya Ivory Coast Burundi Ghana Zambia Togo Nigeria Malawi Cameroon Botswana Eq. Guniea Mozambique Gabon Congo Seychelles Mauritius Namibia Swaziland South Africa Lesotho Cape Verde Total number of African ratifications: 41 Total number of ratifications: 146

12 Definition of Torture Torture is infliction of severe pain or suffering, whether physical or mental. Torture is a deliberate action. Torture seeks to force confessions, information or punishment or for any reason based on discrimination of any kind. Torture is carried out by a public authority – which encourages or consents to the use of torture. UNCAT, Art. 1 Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

13 Suspension

14 Sexual Torture

15 Sexual Torture

16 Falanga

17 Submarino – water torture

18 Substance of Specific Obligations
Prohibition: State actors must not perpetrate or allow torture or other ill-treatment. All torture must be criminalized. No exceptions based on notions such as necessity, national emergency, public order or superior orders. Persons cannot be sent to a real risk of torture or other ill-treatment elsewhere. (principle of non-refoulement) No use of information obtained through torture in any proceedings. Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

19 Substance of Specific Obligations
Prevention: laws and other measures. no secret detention. judicial supervision and access to judicial review. independent lawyers and medical care. contact with the outside world, incl. family members. Education of law enforcement agencies Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

20 Substance of Specific Obligations
Investigation, Punishment and Remedy: Impartial investigation No impunity - Perpetrators of torture must be criminally prosecuted. Punishment should match the grave nature of acts of torture. “No safe haven” for torturers. Right to public redress, rehabilitation and compensation. Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

21 Institutional framework (UN)
Charter Bodies Treaty Bodies Member States

22 International Mechanisms
UN Treaty-based mechanisms A distinguishing factor of most treaty-based mechanisms is that they are responsive to information submitted to them. Committee Against Torture (CAT) Consideration of State Party reports. (Art. 19) Look into allegations of systematic torture by a State Party. (Art. 20) Hear complaint from a State against another State. (Art. 21) Hear individual complaints. (Art. 22) Only 8 African States have declared that they accept the CAT to hear individual complaints. CAT: CAT is an exception to the fact that most treat based mechanisms are responsive to information submitted to them. CAT can conduct investigations on its own initiative if there are allegations of the systematic practice of torture. May involve a visit to the state concerned. CAT cannot undertake regular visits to places of detention. 8 countries: Burundi, Cameroon, Ghana, Senegal, Seychelles, South Africa, Togo, Tunisia Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

23 International Mechanisms
UN Charter based mechanisms Special Rapporteur on Torture 3 man activities: Urgent Appeals and allegations letters Fact finding missions Annual report Shortcomings: Visits to States Parties dependent on their accept Recommendations without binding character Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

24 International Mechanisms
International Committee of the Red Cross (ICRC) European Committee for the Prevention of Torture (CPT) Optional Protocol to the Convention against Torture (OPCAT) ICRC: In times of war an occupation may visit all places where protected persons may be, including places of internment and imprisonment (e.g. prisons, barracks, police stations, transit centres. What is checked: The right to life, the physical integrity and dignity of the prisoners of war and civilian internees are respected and not tortured. ICRC has no mandate to operate in times of peace In situation on non-international conflict visits require the consent of the conflicting parties. CPT Established in the European Convention fro the Prevention of Torture from 1997. Visit all places where persons are deprived of their liberty (e.g. police stations, administrative detention centers for foreigners, disciplinary premises and hospitals) Purpose: see how detained persons are treated and if necessary recommend improvement to the states. Cooperation with the national authority is at the heart of the Committee’s work – since aim is to protect persons deprived of their liberty rather than to condemn states for abuses. Monitoring visits have a preventive effect as: Being subject to external control can have a deterrent effect on authorities who will not wish to subject to external criticism and might otherwise believe that they will never be held accountable for their actions. Visits enable independent experts to examine first hand the treatment granted to persons deprived of their liberty and judge conditions and make relevant recommendations. Periodic ad hoc visits. Reports are confidential, but may be made public if the state in question fails to cooperate with the recommendations of the CPT. Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

25 Specific Obligations in an African Context
Article 5 ”Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. African Charter on Human and Peoples’ Rights, 1986. The African Charter was adopted in 1981 and came into force in Adopted by the OAU – today the AU. 53 African countries tallying all members of the African Union have ratified the Charter. The Robben Island guidelines Outcome of workshop held on Robben Island by APT and Commission in February 2002. First regional instrument designed to be a specific tool towards combating torture. Assist states to meet their national, regional and international obligations for enforcement and implementation of the prohibition of torture. Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

26 Specific Obligations in an African Context
Article 5 All four forms of ill-treatment are mentioned. Torture, cruelty, inhuman and degrading treatment. No clear categorisation elaborated in case law. Violation of personal dignity (Krishna Achutan vs. Malawi) Chaining persons for days without access to sanitary facilities, no access to food water or sunlight, beating them with sticks and iron bars, keeping prisoners in solitary confinement Inhuman Treatment (Ghazi Sulaiman v. Sudan) Detention without contact to family Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

27 Specific Obligations in an African Context
Robben Island Guidelines, 2002. Part 1 – Prohibition of torture Part 2 – Prevention of torture Part 3 – Responding to the needs of victims Follow-up Committee to ensure the implementation of the Robben Island guidelines set-up in 2002. Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

28 African Mechanisms African Commission on Human and Peoples’ Rights, 1987. A body of 11 independent experts Promote, protect and interpret the rights of the Charter Examination of States reports Visits to States Parties Consider States complaints Consider individual complaints African Commission on Human and Peoples’ Rights No formal criteria for appointment to the Commission Lack of staff due to insufficient ressources State Reports Article 62: States Parties must submit report to Commission every two years on legislative and other measures undertaken to implement the Charter – “Backbone of the mission of the Commission” in monitoring implementation of the Charter by States. After submitting initial report Commission may ask additional questions. Should be answered during next session of the Commission. The aim of the procedure is to create a constructive dialogue between the Commission and the State. Shortcoming: Poor reporting record. Little if any follow up to the procedures. State complaints Until now only one such case Individual complaints: No policy of follow-up of the decisions Publicity of decisions is minimal The attitude of states has been to generally ignore the recommendations 78 cases in 11 years from 96 to 2007 The decisions of the Commission are not legally binding The AU Assembly may decide to follow up cases with sanctions, but this has not been done. The fact that such snactions are imposed does not make the decisions legally binding No follow-up mechanism African Court 23 ratifications Court delayed because of merger with Court of justice of the African Union. Court may hear individual complaints if states so agree to in a declaration. No formal overview of status of declarations. Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

29 African Mechanisms African Court on Human and Peoples’ Rights
Protocol to the African Charter Adopted 10 June 1998 – entered into force 25 January 2004. 23 States have ratified the Protocol Will be merged with the African Court of Justice Individual complaints only if state makes declaration Judgments are legally binding Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

30 African Mechanisms 3 means of action to fulfill mandate:
The Kampala Declaration on Prison Conditions in Africa, 1996. The Special Rapporteur on Prisons and Conditions of Detention in Africa, 1997. 3 means of action to fulfill mandate: Examination of individual complaints Urgent Action Procedure Investigation and reporting through country visits Upon invitation from Governments Visit places of detention Mandate covers all places where people are deprived of their liberty – pre –trail and convicted prisoners. Means to fulfill mandate: Ordinary procedure Examination of individual complaints: Complaint sent anonymously to State Party for comments Comments and recommendations made by the SRP. 2. Urgent Action The SRP requests information and asks govt to provide guarantees to ensure the protection of the persons concerned. No clear guidelines for urgent appeals. No systematic record of actions or measures taken. No action has been taken due to lack of resources Mentioned in the annual report 3. Country visits Only states from which an invitation has been received No North African States have been visited. Scheduled visits to places of detention. Only rare visits unnanounced Reporting has not been very good Reports published on average one year after the visit Reports are not approved by the Commission Only three follow-up visits have taken place Problem has been the lack of specificity in the initial report making it hard to follow-up. Continuous contact with visited states has been neglected. Assistance to Commission with communications to States Parties. Promotion of the rights of prisoners and international penal standards in Africa. In general the SRP lacks visibility in Africa. Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009

31 African Regional Mechanisms
ECOWAS (Economic Community of West African States) ECOWAS Community Court Human rights mandate since 2005 Individuals and NGOs may bring cases before the Court No requirement to exhaust domestic remedies Decisions of the court are final and legally binding Approximately 15 decisions on human rights cases since 2005 Lecture on Torture and Human Rights in Africa Centre for African Studies February 2009


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