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Abstract
The present article elaborates on the legal and normative foundations of the duty to prevent torture. It argues that the content of this duty is both deceivingly simple and complex. The duty, as currently understood, requires States to take a range of legislative, administrative and judicial measures to prevent acts of torture. However this range of measures and approaches opens the door to endless scenarios of potential relevance, that somewhat blur the content of the duty itself. In order to circumscribe and clarify the nature and scope of the duty it is argued that, first, it is necessary to sever the concept of prevention from the definitional elements on which the concept of prohibition of torture is premised and to focus on the conditions known to generate a risk of torture, namely those associated with deprivation of liberty. Second, the article suggests that by locating the duty to prevent in a positive obligation framework, more specifically in the positive obligation ‘to fulfil’, the general duty can be distinguished from the measures through which the former is actually fulfilled. The article suggests that such an approach would facilitate the anticipatory potential of the prevention of torture and allow thinking more broadly about implementation strategies to eradicate torture.
Acknowledgements
I would like to acknowledge the support received from the Arts and Humanities Research Council (AHRC). My gratitude also goes to Professor Rachel Murray and Professor Sandra Fredman for their comments on earlier drafts. Any mistakes remain, of course, my responsibility.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Isobel Renzulli is a Lecturer in Law at the University of Greenwich.
Notes
1. Article 5 of the 1948 Universal Declaration of Human Rights (UDHR), Article 7 of the 1966 UN International Covenant on Civil and Political Rights (ICCPR), the 1984 UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), Article 5 of the African Charter on Human and Peoples’ Rights (ACHPR), Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 5 of the 1969 American Convention on Human Rights (AmCHR), Article 8 of the 2004 Arab Charter on Human Rights (ArCHR), Common Article 3 of the four 1949 Geneva Conventions.
2. Amnesty International, Conference for the Abolition of Torture – Final Report (London: Amnesty International, 1973).
3. J. Burgers and H. Danelius, 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, 1988); M. Evans, ‘Editorial: Torture’, European Human Rights Law Review (2006): 101; M. Evans, ‘Getting to Grips with Torture’, International and Comparative Law Quarterly 51, no. 2 (2002): 365; M. Nowak and E. McArthur, The United Nations Convention Against Torture. A Commentary (Oxford: Oxford University Press, 2008); N. Rodley and M. Pollard, The Treatment of Prisoners under International Law, 3rd edn (Oxford: Oxford University Press, 2011); N. Rodley, ‘The Definition(s) of Torture in International Law’, Current Legal Problems 55, no. 1 (2002): 467.
4. CAT, ‘General Comment No 2: Implementation of Article 2 by States Parties’ CAT/C/GC/2 (24 January 2008); SPT, ‘The Approach of the Subcommittee to the Concept of Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment under the Optional Protocol’ CAT/OP/12/6 (30 December 2010); OHCHR, APT and APF, ‘Preventing Torture: An Operational Guide for National Human Rights Institutions’ (2010), http://www.ohchr.org/Documents/Countries/NHRI/Torture_Prevention_Guide.pdf
5. ECtHR, Affaire Cestaro c Italy, Requête No 6884/11, Arrêt 7 Avril 2015.
6. Ibid., para. 78.
7. N. Rodley and M. Pollard, ‘Criminalisation of Torture: State Obligations under the United Nations Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment’, European Human Rights Law Review 2 (2006): 115.
8. Ibid.
9. See N. Rodley, ‘Reflections on Working for the Prevention of Torture’, Essex Human Rights Review 6, no. 1 (2010): 21.
10. CAT, ‘General Comment No 2’, para. 2.
11. Ibid., para. 2.
12. Ibid., para. 13.
13. R. Murray et al., The Optional Protocol to the UN Convention Against Torture (Oxford: Oxford University Press, 2011), 61.
14. ‘Robben Island Guidelines for the Prohibition and Prevention of Torture’, ACHPR/Res. 61(XXXII) 02 (2002) at 7–9.
15. Association for the Prevention of Torture (APT), ‘Robben Island Guidelines for the Prohibition and Prevention of Torture. A Practical Guide for Implementation’ (2008), at 7–8, http://www.achpr.org/files/special-mechanisms/cpta/rig_practical_use_book.pdf (accessed March 2016).
16. Ibid.
17. ‘Concept Paper on the Development of a General Comment on Article 5 of the African Charter on Human and Peoples’ Rights’, ACHPR 2015, at para. 8, http://www.achpr.org/files/news/2015/05/d182/concept_paper.pdf (accessed March 2016).
18. Ibid., at para. 13.
19. R. Murray and D. Long. ‘Ten Years of the Robben Island Guidelines and Prevention of Torture in Africa: For What Purpose?’, African Human Rights Law Journal (2012): 346.
20. Most notably, the European Committee for the Prevention of Torture and the UN Sub-Committee for the Prevention of Torture. Among the NGOs, for example, the work of the Association for the Prevention of Torture (APT), ‘Torture Prevention in the Law’, http://www.apt.ch/en/torture-prevention-in-the-law/ (accessed March 2016).
21. L. Oette, ‘Implementing the Prohibition of Torture: The Contribution and Limits of National Legislation and Jurisprudence’, International Journal of Human Rights 16, no. 5 (2012): 717.
22. I. Renzulli, ‘Ali Hussein v Secretary of State for Defence: What Was Not Said of Shouting as a Lawful Interrogation Technique’, Public Law (October 2015): 550.
23. SPT, ‘The Approach of the Subcommittee to the Concept of Prevention’, para. 1.
24. CAT, ‘General Comment No 2’, para. 3.
25. Burgers and Danelius note ‘The history of the Declaration and the Convention (against Torture) make it clear that the victims must be understood to be persons who are deprived of their liberty or who are at least under the factual power or control of the person inflicting the pain’: Burgers and Danelius, The United Nations Convention against Torture, 120; Rodley and Pollard, The Treatment of Prisoners under International Law.
26. Rodley, ‘Reflections on Working for the Prevention of Torture’, 16.
27. UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998.
28. Article 7 (2) (e) of the Rome Statute reads: ‘“Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused.’
29. M. Nowak, ‘What Practices Constitute Torture?: US and UN Standards’, Human Rights Quarterly 28, no. 4 (2006): 832; M. Nowak and E. McArthur, ‘The Distinction between Torture and Cruel, Inhuman and Degrading Treatment’, Torture 16, no. 3 (2006): 147.
30. ‘Persons held in captivity, be it in police custody, remand facility or prison, or deprived of their liberty in any other context, find themselves in a situation of complete dependency and are therefore particularly vulnerable to any abuse.’ ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, UN Doc. A/HRC/13/39/Add.5 (5 February 2010), at para. 37.
31. Inter-American Court of Human Rights, ‘Juvenile Reeducation Institute’ v. Paraguay (Panchito Lopez), Series C No. 112, Judgment of 2 September 2004, paras 152–3; ECtHR, Affaire Torreggiani et Autres c Italie, Requêtes Nos 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 et 37818/10, Arrêt 8 Janvier 2013, at para. 94. The UN Working Group on Arbitrary Detention (WGAD) has pointed out that ‘The main element that defines deprivation of liberty is the inability of those who are in detention to defend and protect themselves, as their daily life is largely dependent on the decisions taken by the staff at the detention facilities’: WGAD, ‘Report of the Working Group on Arbitrary Detention’, UN Doc. A/HRC/10/21 9 (16 February 2009), para. 46.
32. A non-exhaustive list of standards would include: The Standard Minimum Rules for the Treatment of Prisoners ECOSOC Res 663c (XXIV) (31 July 1957), amended by ECOSOC Res 2076 (LXII) (13 May 1977); Code of Conduct for Law Enforcement Officials, GA Res 34/169 (17 December 1979); Principles of Medical Ethics relevant to the Role of Health Personnel particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel and Inhuman, Degrading Treatment or Punishment, GA Res 37/194 (18 December 1982); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment GA Res 43/173 (9 December 1988); Basic Principles for the Treatment of Prisoners, GA Res 45/111 (14 December 1990); Rules for the Protection of Juveniles Deprived of their Liberty, GA Res 45/113 (14 December 1990).
33. Article 1 of OPCAT sets out the objective of the instrument as being ‘to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty’.
34. ECtHR, Guzzardi v. Italy, Application No. 7367/76, Judgment of 6 November 1980, para. 92.
35. ECtHR, HL v. UK, Application No. 45508/99, Judgment of 5 October 2004, para. 91. P (by his litigation friend the Official Solicitor) (Appellant) v. Cheshire West and Chester Council and another (Respondents) [2014].
36. ECtHR, Rantsev v. Cyprus and Russia, Application No. 25965/04, Judgment of 7 January 2010, paras 314–19.
37. The Inter-American Commission’s definition is also very broad. ‘Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas’ (OEA/Ser/L/V/II.131 doc. 26).
38. Secretary of State for the Home Department v. JJ [2008] 1 AC 385.
39. CAT, ‘General Comment No 2’, para. 15.
40. Council of Europe, ‘The CPT at 25: Taking Stock and Moving Forward’ Background Paper Conference, 2 March 2015, Strasbourg – France, at 2.
41. Ibid.
42. Murray et al., The Optional Protocol to the UN Convention Against Torture, 46.
43. For example, the United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules) General Assembly UN Doc. A/RES/45/110 (14 December 1990) mention the role of community and volunteers in the application of the non-custodial sentences (Articles 17–19).
44. Guiding Principle 5(i) in SPT, ‘The Approach of the Subcommittee to the Concept of Prevention’.
45. The Convention on the Elimination of all Forms of Racial Discrimination (CERD) refers in its Preamble to all the necessary measures needed to prevent ‘racist doctrines and practices’; Art. 2(b)(e) of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) refers to an obligation to pursue a ‘policy of eliminating’ discrimination through the adoption of ‘appropriate legislative and other measures’; Arts 6, 23 and 24 of the Convention for the Protection of All Persons from Enforced Disappearances (CAED) place obligations upon the ratifying state to adopt ‘necessary measures’ to prevent enforced disappearances.
46. Arts 2 and 11(2) CEDAW; Art. 2 CERD.
47. Preamble CERD; Arts 6, 12, 22 CAED.
48. Also Art. 15(2) of the Convention on the Rights of Persons with Disabilities 2006 (A/RES/61/106) reads ‘States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment’.
49. Murray et al., The Optional Protocol to the UN Convention Against Torture, 58.
50. While there are different theories concerning the categorisation of duties the present discussion uses as an analytical tool, the tripartite typology of the obligations to respect, protect and fulfil, as expounded in the work of S. Fredman, Human Rights Transformed. Positive Rights and Positive Duties (Oxford: Oxford University Press, 2009). The categorisation of duties imposed by human rights obligations was originally identified by H. Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (Princeton, NJ: Princeton University Press, 1996). This approach was endorsed by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’, reprinted in Human Rights Quarterly 20 (1998): 691. See also A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing, 2004). On the categories and scope of obligations arising from human rights and the duty to prevent see W. Kälin and J. Künzli, The Law of International Human Rights Protection (Oxford: Oxford University Press, 2009), at 96-103-190; O. De Schutter, International Human Rights Law, 2nd edn (Cambridge: Cambridge University Press, 2014), Chapters 4–5.
51. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, para. 427.
52. Ibid., para. 430.
53. Ibid., para. 431.
54. Mahmut Kaya v. Turkey, Application No. 22535/93, Judgment of 28 March 2000, para. 115. The court adopted a similar line of reasoning in the Z v. UK case concerning the inhuman and degrading treatment suffered by four children at the hands of abusive parents and the failure of the local authority to intervene appropriately. The court stated that measures should ‘include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge’. ECtHR, Z v. UK, Application No. 29392/95, Judgment of 10 May 2001, para. 73.
55. This has been clearly articulated in ECtHR, Osman v. United Kingdom, Application No. 87/1997/871/1083, Judgment of 28 October 1998, para. 115.
56. Fredman, Human Rights Transformed, 77.
57. Ibid., 88.
58. Ibid.
59. Ibid.
60. Ibid.
61. SPT, ‘The Approach of the Subcommittee to the Concept of Prevention’, para. 3.
62. Fredman, Human Rights Transformed, 77.
63. Ibid.
64. Ibid.
65. Ibid.
66. Ibid.
67. H. Potts, Participation and the Right to the Highest Attainable Standard of Health (University of Essex Human Rights Centre, 2008).
68. Fredman, Human Rights Transformed, 77.
69. Ibid.
70. Ibid.
71. IACtHR, ‘Juvenile Reeducation Institute’ v. Paraguay (Panchito Lopez Case), para. 176.
72. Ibid., at paras 316–17.
73. Fredman, Human Rights Transformed, 80.
74. Whilst lack of or limited resources might be taken into account when considering the level of conformity or compliance with the duty to prevent, the state is still under an ‘immediate’ duty to take measures using its best efforts and taking the matter seriously. The Human Rights Committee (HRC) made clear that ‘[t]reating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party’. HRC, ‘General Comment No 9, Humane Treatment of Persons Deprived of Liberty (Art. 10)’ (30 July 1982), at para. 1. Similarly, the Inter-American Court of Human Rights (IACtHR) has stated that ‘the States cannot invoke economic hardships to justify imprisonment conditions that do not comply with the minimum international standards and respect the inherent dignity of the human being’. IACtHR, Vélez Loor v. Panama, Series C No. 218, Judgment of 23 November 2010, para. 198; IACtHR, Boyce et al v. Barbados, Series C No. 169, Judgment of 20 November 2007, para. 88.
75. SPT, ‘The Approach of the Subcommittee to the Concept of Prevention’, para. 5(c).
76. Murray et al., The Optional Protocol to the UN Convention Against Torture, 62.
77. A. Cassese, ‘A New Approach to Human Rights: The European Convention for the Prevention of Torture’, American Journal of International Law 83 (1989): 128–9.
78. Some examples of monitoring bodies visiting places of detention include the UN Committee against Torture, the UN Special Rapporteur on the Question of Torture, the UN Working Group on Arbitrary Detention, the UN Special Rapporteur on the Human Rights of Migrants, the Special Rapporteur of the Inter-American Commission on Human Rights on the Rights of Persons Deprived of Freedom, the African Committee for the Prevention of Torture (ACPT), the Special Rapporteur of the African Commission on Human and Peoples’ Rights on Prisons and Conditions of Detention in Africa, and human rights components of UN peace-keeping operations or Office of the United Nations High Commissioner for Human Rights (OHCHR) country offices.
79. Article 17 of the OPCAT expressly requires that each state signatory should designate an NPM. NPMs are national bodies that have the mandate to conduct regular visits to places of detention as well as make recommendations to the state to improve the situation of the persons deprived of their liberty.
80. Rodley, ‘Reflections on Working for the Prevention of Torture’, 9, 21.
81. Eighth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CAT/C/54/2 (26 March 2015), para. 64.
82. On issues relating to detention of lesbian, gay, bisexual, transgender and intersex persons see for example: ibid., paras 66–72. See also CPT Standards, CPT/Inf/E (2002) 1 – Rev 2010, covering a number of thematic areas.
83. SPT, ‘Guidelines on National Preventive Mechanisms’ CAT/OP/12/5 (9 December 2010). See further Murray et al., The Optional Protocol to the UN Convention Against Torture, Chapter 6.
84. CPT, ‘CPT Standards. “Substantive” Sections of the CPT’s General Reports’ (Council of Europe, 2015) CPT/Inf/E (2002) 1 – Rev 2010. Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Mali CAT/OP/MLI/1 (20 March 2014), paras 16–24; Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Sweden CAT/OP/SWE/1, para. 43; ‘General Comment No 2’, para. 13.
85. CPT/Inf/E (2002) 1 – Rev 2010; R. Morgan and M. Evans, Combating Torture in Europe: The Work and Standards of the CPT (Strasbourg: Council of Europe Press 2001); M. Murdoch, The Treatment of Prisoners – European Standards (Strasbourg: Council of Europe Press, 2006); ‘General Comment 2’, para. 13.
86. Torreggiani v. Italy, para. 95.
87. ECtHR, Norbert Sikorski c Pologne, Requête No17599/05, Arrêt 22 January 2010, para. 158.
88. ECtHR, Ananyev and Others v. Russia, Applications Nos 42525/07-60800/08, Judgment of 10 January 2012, para. 98 and para. 197.
89. SPT, ‘The Approach of the Subcommittee to the Concept of Prevention’, para. 5(d).
90. CPT, ‘The CPT at 25’, 16–20.
91. ‘Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to New Zealand’ CAT/OP/NZL/1 (28 July 2014), at para. 16 and para. 26.
92. Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/HRC/22/53 (1 February 2013).
93. P. Bartlett, ‘Implementing A Paradigm Shift: Implementing the Convention on the Rights of Persons with Disabilities, in the Context of Mental Disability Law’, in Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report, ed. Center for Human Rights & Humanitarian Law Anti – Torture Initiative (American University Washington College of Law, March 2014), https://www.wcl.american.edu/humright/center/resources/publications/documents/YESPDF_Torture_in_Healthcare_Publication.pdf (accessed March 2016).
94. P. Bartlett, ‘The CPT and Mental Disability: The Next 25 Years’, paper presented at the conference celebrating the 25th anniversary of the European Committee for the Prevention of Torture, Strasbourg, 1 March 2015.
95. Seventh Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CAT/C/52/2 (20 March 2014), paras 72–86.
96. Fredman, Human Rights Transformed, 90.