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39 Cards in this Set
- Front
- Back
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Definition torture?
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Intentional infliction of severe pain or suffering on a powerless victim, ususally a detainee, for a specific purpose, such as extraction of a confession or information, intimidation or punshment.
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What is a part of the crime against humanity, when committed as a part of a widespread or systematic attack?
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enforced disappearance
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What distinguishes torture from ill treatment?
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Involvement of a public official.
Some, including ECtHR, believe that it is the amount of pain. Others the intention of the perpetrator, the purpose of the act and the powerlessness of the victim. |
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Which actors can torture?
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Public officials, but also private individuals. When the state fails to prevent it. Due diligence test.
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What does degrading treatment or punishment require?
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humiliating behaviour
lower threshold of pain or suffering mental force, (pulling, pushing or verbal abuse, in humiliating manner) corporal punishment is degrading punishment. |
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What is corporal punishment considered?
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degrading punishment.
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elements of torture
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severe pain or suffering
powerlessness of the victim intend and purpose. |
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On what depends the "severity" of a punishment?
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objective and subjective criteria
- physical and mental effect on the victim - age, gender, religion, sexual orientation, state of health, membership to a particular group. |
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Is stoning torture?
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Yes. all severe forms of corporal punishment
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Is amputation torture?
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Yes. All forms of severe corporal punshment. art1 CAT.
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Must the person be under the power of the torturer to amount as torture?
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Yes. powerlessness, direct control, direct power of the torturer. 'In custody or under the control of the accused.'
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Is torture subject to universal jurisdiction?
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Yes. It is a crime against humanity.
Filártiga v. Peña-Irala |
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Is physical pain inflicting during arrest torture?
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No. It might become if the subject is powerlessness, on the ground, and the police continue beating him for the purpose of intimidation, discrimination or punishment.
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Is Corporal punishment torture?
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Not always, but always degrading punishment prohibited article 7 CAT. It might be torture when the victim is powerless.
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Is the prohibition of torture absolute?
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Yes, and non-derogable.
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Can CIDT be ever justified?
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No. The prohibition of Cruel Inhuman or Degrading Treatment is absolute, non-derogable.
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When is force degrading treatment?
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when is excessive and humiliating.
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When is force cruel and inhuman treatment?
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when excessive and inflicts severe pain or suffering.
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When is severe pain or suffering no CIDT?
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When it is proportional (not excessive).
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Which hr are absolute and non-derogable?
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torture, slavery, slave trade, servitude, retroactive application of criminal law.
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are torture, slavery, slave trade, servitude, retroactive application of criminal law customary rules of IR.
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Yes, even jus cogens. Article 2(2) CAT
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What's in nsArticle 2(2) CAT
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The absolute character of the prohibition of torture.
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Does a state violate the prohibition of torture when it extradite a person to a state that practices torture?
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Yes when there is a risk that the extradited person will be tortured. Agiza v. Sweden. Despite diplomatic assurances.
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Does CAT prohibit sending a person to another state if the risk of torture emanates from non-state actors?
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No.
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Can torture in a state be systematic if the government does not have the intention?
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Yes, it can be against the direct intention of the government and it may result from factors beyond it's control.
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Does an applicant to provide highly probable evidence that she will be tortured?
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No. But the burden of proof is by the applicant if there is no systematic practice of torture in the home country.
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What is innovative to CAT?
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-states have to criminalize torture
-they have to eliminate safe havens for torturers. |
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If a dangerous terrorist is denied asylum, can he be removed to a country where there is a serious risk that he will be tortured?
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No. see Jurisprudence - CAT - Tapia Paez v. Sweden
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Do states have an obligation to legislate against CIDT according to CAT?
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No, they only have an obligation to criminalize torture.
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According to CAT. Do states have an obligation only to criminalize the torture itself?
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No, everything from article 1, attempt, instigation, incitement, superior order and instruction, consent and aquiescence, concealment and other forms of complicity and participation.
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How log is 'appropriate penalty' according to the Committee Against Torture?
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A few years. 'custodial sentenc of betwee six and twenty years would best correspond to the COmmittee's interpretation of requirements of Article 4(2).
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Jurisprudence - CAT - Guridi v. Spain
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pardoning civil guards, who have been found guilty of torture by an independent court, violated the victim's rights under Article 4(2) CAT
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Jurisprudence - CAT - Guengueng et al. v. Senegal
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Failure of the legislative power to establish universal jurisdiction constitute a violation of the article 5(1)(c) CAT
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Do states have an obligation to provide judicial assistance to the forum stats according to CAT?
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Yes.
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Are former heads of state immune from prosecution for torture before domestic courts in foreign states?
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No. Pinochet, Habre, Bouterse etc.
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Are current heads of state immune from prosecution for torture?
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No, not in international courts.
ICTR Kambada YCTY Milosevic SCSL Taylor |
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Do heads of states enjoy immunity under the Rome statute?
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No:
Article 27: Irrelevance of official capacity 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person |
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What found the House of Lords in the Pinochet case?
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That former heads of state do not enjoy immunity from extradition and prosecution for torture.
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ICJ Arrest Warrant
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Yerodina enjoyed immunity as incumbent Minister for Foreign Affairs. (immunity rationae personae)
But after they do not have the official funciton they loos this immunity. They still might have immunity for acts performed in exercise of an official capacity. (immunity ratione materiae) |
