http://www.pvchr.asia/?id=95
Amit Singh
Independent researcher
evolutionyog@gmail.com
Can
Government official be held accountable for torture?
Torture
is the worst ever human invention-
The
main focus of this article is on the preventative measures against torture and
ill-treatment by state agents, particularly law enforcement officials. In
addition brief information on standards on torture is given
along with rights of torture victims.
No
official government or private, after committing the heinous act of torture,
can escape the punishment under the pretext (or justification) of receiving
order from their superior as had been established in Nuremberg trials
ruling. Even if a country has not
ratified a particular treaty prohibiting torture, because the prohibition of
torture is so fundamental and customary, the country is in any event bound on
the basis of general international law. The prohibition of torture is found in
a number of international human rights and humanitarian treaties and is also
regarded as a principle of general international law. The prohibition of
torture is also considered to carry a special status in general international
law, that of jus cogens, which is a 'peremptory norm' of general international
law. General international law is
binding on all states, even if they have not ratified a particular treaty.
Rules of jus cogens cannot be contradicted by treaty law or by other rules of
international law.
State
officials are prohibited from inflicting, instigating or tolerating the torture
or other cruel, inhuman or degrading treatment or punishment of any person. An
order from a superior officer or a public authority may not be invoked as a
justification for torture. States are
also required to ensure that all acts of torture are offences under their
criminal law, establish criminal jurisdiction over such acts, investigate all
such acts and hold those responsible for committing them to account.
Accountability
of law enforcement personnel
Prime responsibility of law enforcement
personnel is not to commit torture, and to prevent others from doing so: to
stop the creation of victims. If torture has been inflicted then the rights of
the victim come into play, and numerous specific responsibilities for law
enforcement personnel arise. These include:
·
Preventing further
torture taking place;
·
Giving the victim an
opportunity to complain;
·
Granting access for
proper medical and psychological care and legal advice;
·
Ensuring the complaint
is properly investigated and suspected perpetrators brought to justice as with
other crimes;
·
Playing a role in
preventing such illegal acts in future.
Any instance of torture creates multiple
duties and obligations on law enforcement personnel to go as far as reasonably
possible to stop and put right the wrong which has occurred; conversely, not to
cover-up the wrong but on the contrary to have the truth revealed and to help
correct the damage done (physical, mental, economic and social) to the victim,
without fear or favor.
Code
of Conduct for Law Enforcement Officials (adopted by General Assembly
resolution 34/169 of 17 December 1979)
is an important and impressive international instrument to check and control on
the practice of torture perpetrated by government official. Article 1 illustrates:
Law
enforcement officials shall at all times fulfill the duty imposed upon them by
law, by serving the community and by protecting all persons against illegal
acts, consistent with the high degree of responsibility required by their
profession.
Further Article 2 says, “In the performance
of their duty, law enforcement officials shall respect and protect human
dignity and maintain and uphold the human rights of all persons”.
Nonetheless,
Article 3 stress that force can be used only when ‘strictly necessary’. Law
enforcement officers are allowed to use the force only in exceptional
circumstances, however, with utmost carefulness and to proportionate to the
situation. Moreover, the use of force can never be legitimized to achieve the
objectives (such as extracting information by force). Furthermore, commentary
on Article 4 elaborates that firearms should not be used except when a
suspected offender offers armed resistance or otherwise jeopardizes the lives
of others and less extreme measures are not sufficient to restrain or apprehend
the suspected offender.
Nonetheless, Article 5 highlights:
No
law enforcement official may inflict, instigate or tolerate any act of torture
or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement
official invoke superior orders or exceptional circumstances such as a state of
war or a threat of war, a threat to national security, internal political
instability or any other public emergency as a justification of torture or
other cruel, inhuman or degrading treatment or punishment.
This
prohibition derives from the Declaration on the Protection of All Persons from
Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT).
Article
6 instructs that “Law enforcement officials shall ensure the full protection of
the health of persons in their custody and, in particular, shall take immediate
action to secure medical attention whenever required”.
Elaborating
further commentary on Article 6 says, “While the medical personnel are likely
to be attached to the law enforcement operation, law enforcement officials must
take into account the judgment of such personnel when they recommend providing
the person in custody with appropriate treatment through, or in consultation
with, medical personnel from outside the law enforcement operation. It is
understood that law enforcement officials shall also secure medical attention
for victims of violations of law or of accidents occurring in the course of
violations of law”.
International
human rights standards related to Torture
Apart
from the Convention against Torture (CAT) number of international human rights
instruments and Conventions has made the provision to effective the curtail and
eliminate the practice of torture. These international human rights instruments
are following.
(A)Universal
Declaration of Human Rights (1948), Article 5
"No
one shall be subjected to torture or to cruel, inhumane or degrading treatment
or punishment."
(B) Geneva Conventions (1949) Article 99, Third
Convention
"No
moral or physical coercion may be exerted on a prisoner of war in order to
admit himself guilty of the act of which he is accused”
(C) UN
Minimum Standards for the Treatment of Prisoners (1957),Rule 31
"Corporal
punishment, punishment by placing in a dark cell, and all cruel, inhumane or
degrading punishments shall be completely prohibited..."
(D)
International Convention on the Elimination of All Forms of Racial
Discrimination
(a) "...
to guarantee the right of everyone, without distinction to race, color or
national or ethnic origin, to equality before the law, notably in the enjoyment
of the following rights:
"(b) The right to security of
person and protection by the State against violence or bodily harm, whether
inflicted by government officials or by any individual group or
institution..."
(E) UN
Declaration on the Protection of All Persons from Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (1975)
"No
State may permit or tolerate torture... Exceptional circumstances such as a
state of war... or any other public emergency may not be invoked as a
justification of torture or other cruel inhumane or degrading treatment or
punishment."
In
addition to international human rights law and the laws of armed conflict, a
considerable range of other rules and standards have been developed to
safeguard the right of all people to protection against torture and other forms
of ill-treatment. Although not of themselves legally binding, they represent
agreed principles which should be adhered to by all states and can provide
important guidance for judges and prosecutors. These include:
(A)Standard
Minimum Rules for the Treatment of Prisoners (1957 as amended in 1977)
(B) Declaration
on the Protection of All Persons from Being Subjected to Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (1975)
(C) Code
of Conduct for Law Enforcement Officials (1979)
(D)Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)
(F) Body
of Principles for the Protection of all Persons under any Form of Detention or
Imprisonment (1988)
(G)Basic
Principles for the Treatment of Prisoners (1990)
(H)Principles
on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions (1990)
(I) Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)
(J) Declaration
on the Protection of All Persons from Enforced Disappearance (1992)
(K) Principles
on the Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) (1999)
Witness protection
In
addition to these standards, witness protection, however, is a key element in the
fight against of torture; to prosecute the perpetrator and to get the grievance
redressed of the victim of the torture. Convention against Torture expressly
requires states to protect complainants and witnesses from intimidation.
International criminal tribunals have made major advances in the recognition of
the rights of complainants and witnesses to be free from intimidation,
harassment or ill treatment. The Special Rapporteur on Torture has recommended
that witness protection schemes be established, and that alleged perpetrators
be suspended pending the results of investigations, provided the allegation of torture
is not manifestly ill founded.
What
a torture victim can do?
There are several way where a torture victim
can get their grievances redressed, such as by taking part in investigations
and receive information about the progress and outcome of investigations and
prosecutions. The Committee against Torture has held that complainants are
entitled to give evidence, and the failure to allow this goes to the root of
the lack of impartiality. It has also noted that a failure to inform
complainants of the result of investigations breaches their right to a remedy.
The complainant must have effective access to the investigation process and
should have the opportunity to make statements.
What
can be done?
The
international institutions, mechanisms and instruments created to monitor (Human
rights committee, Special procedures, Individual complains) and enforce human
rights at the level of state responsibility. Through these, violations can be
raised, recorded and reported on, and steps taken to persuade states to remedy
failures to investigate, to grant reparations, and to deal with officials who
failed to fulfill their duties and obligations.
A
public official who neglects his or her duty can be an accomplice to a cover-up
and at the very least lay themselves open to claims for civil damages, both in
the state concerned and outside of it. Law enforcement personnel who
intentionally or negligently fail to respect the rights of victims to an
effective remedy and adequate reparations will have compounded the original
wrong - the breach of the prohibition against torture - instead of fulfilling
their duty to repair it. Law enforcement personnel responsible for torture are
liable to:
•
Pay compensation;
•
Make an apology to the victim(s) and/or their families;
•
Face disciplinary sanctions, including dismissal from services as well as
criminal charges.
Nonetheless,
civil society can play a very crucial role to combat the menace of state
torture. In fact, NGO such as People Vigilance Committee on Human Rights (PVCHR)
has taken some exemplary steps to counter the practice of police torture by
highlighting the cases of torture in Indian state. By advocating against the
torture and spreading awareness among vulnerable or susceptible population,
PVCHR has set the landmark trend by raising the voice against police torture.
In its mission to help torture victims, not only PVCHR is providing them
(victim) psychological therapy but also has awarded the victims.
In
sum, it can be said that even though Indian government has not rectified the
Convention on Torture, but still owes huge obligation under international law
to protect its citizen from torture. Needless to say, law on paper is useless
until enforced strictly, particularly to hold the errant official accountable.
Be it military or civil personnel, if breached the code of conduct or have
violated the international principle on torture, must be prosecuted and
punished.
References
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