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THE REGIONAL CONFERENCE ON DEFINING AND CRIMINALIZING TORTURE IN LEGISLATION IN THE ARAB REGION, 4-5 September 2019, Cairo, Egypt
04/09/2019
  1. Introduction

 

  1. The Regional Office of the High Commissioner for Human Rights for the Middle East and North Africa and the National Council for Human Rights will co-organize the Conference on Defining and Criminalizing Torture in Legislation in the Arab Region (here and after the Conference). The Conference will be organised in Cairo, Egypt, on 4-5 September 2019.

 

  1. Background

 

  1. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) came into force in June 1987, nearly 30 years ago.To date, 166 states have becomfmandae party to CAT, including 20 countries from the Arab region.Moreover, the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) came into force in 2006. To date, 89 countries have ratified OPCAT, including five countries from the Arab region, of which four have established the requisite National Preventive Mechanism (NPM).The absolute prohibition of torture is also laid down in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) providing that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. At the regional level, Article 13 (a) of the Arab Charter on Human Rights also prohibits torture, and cruel, inhuman or degrading treatment.

 

  1. Supremacy of international human rights obligations over national legislation vary from one country to another in the Arab Region. Some constitutions grant priority to international treaties and stipulate that legislation has to comply with these norms.

 

  1. Yet, concerning the criminalization of torture, despite the broad accession to CAT across the Arab Region, the definition reflected in national laws and regulations does not satisfy the requisite precision and clarity required under Article 1 of CAT. In addition, most of the existing laws, whether penal, anti-terrorism or penitentiary related, include insufficient penalties that do not take into account the grave nature of the acts. These concerns have been frequently reflected in the concluding observations of Treaty Bodies, the recommendations of the Universal Periodic Review and of the United Nations Special Procedures.

 

  1. Content to be discussed at the Conference

 

  1. The Conference will focus on specific aspects related to the definition of torture stipulated in Article 1 of CAT. The Conference will offer an overview on: a) the absolute prohibition of torture; b) the definition of torture; c) scope and application of anti-torture legislation; d) penalties and compensation; and e) the principle of non-discrimination.

 

  1. The Absolute Prohibition of Torture

 

  1. The absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment is one of the most established rules under international law, as reflected in its status as jus cogens. Regardless of whether or not a State has ratified international human rights treaties, or has sought to assert supremacy of its domestic laws/constitution, it is bound under international law to respect the absolute prohibition against torture as a customary widely accepted law.

 

  1. In addition to the prohibition enshrined in international treaties, including CAT and ICCPR, at the regional level, the Arab Charter on Human Rights also prohibits torture, and cruel, inhuman or degrading treatment, and expressly calls on states to criminalize such acts. It further provides that the prohibition is non-derogable.

 

  1. At the national level, the vast majority of the constitutions across the Arab region prohibit the use of torture, while some also prohibit the use of other forms of ill-treatment (e.g. Egypt, Jordan, Oman, Syria, and Yemen). Some constitutions and basic laws provide detailed prohibitions including proscribing the use of forced confessions obtained by torture (e.g. Oman, Jordan, State of Palestine, and Yemen), or by expressly excluding torture from the statute of limitations (e.g. Tunisia). In general, most constitutions lay down the general prohibition, deferring to domestic criminal law to elaborate on the definition and scope.

 

 

 

  1. Definition

 

  1. In defining the elements of the crime of torture, Article 1 of CAT provides a definition that States parties should adopt as a minimum requirement in their legislation. The definition comprises of four cumulative elements:

 

  • Any act that causes severe mental or physical pain or suffering;
  • That is inflicted intentionally;
  • With such purposes as obtaining from the him or third person information/confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind; and
  • Such pain/suffering is inflicted/instigated by or with the consent/acquiescence of a public official or other person acting in an official capacity.

 

  1. There is significant variation in the definition of torture in the criminal laws across the Arab Region. Some states have adopted an almost verbatim definition in line with Article 1 of CAT (e.g. Bahrain, Mauritania and Morocco). Others have defined and criminalized torture, but with incomplete or inconsistent definitions falling short of the minimum elements (see e.g. the Concluding Observations of the Committee against Torture [the Committee] and the Human Rights Committee [HRC] for Algeria, Iraq, Jordan, Lebanon, and Tunisia). Several Arab States have criminalized torture as such, but have failed to define what acts amount to torture, leading to uncertainty in the scope and application of the law (e.g. Egypt, Kuwait, Qatar, Saudi Arabia, Syria, UAE, and Yemen). Finally, though torture should be proscribed as a separate and specific crime under criminal law,certain states do not expressly legislate for the crime of torture, but instead prohibit the use of violence or coercion used to elicit confessions (State of Palestine).

 

  1. Given the substantial differences amongst the criminal law definitions across the Arab Region, it is timely for states to come together to identify best practices in order to increase the quality and precision of legislation, in line with Article 1 of CAT.

 

  1. Scope and application

 

  1. Most states in the Arab region expressly prohibit the use of information, confessions or other evidence extracted through torture. However, some laws are silent on this prohibition (e.g. Algeria), while the Committee and HRC have identified the de facto use of forced confessions as evidence in court, even where it is expressly prohibited by law. The widespread use of forced confessions has been raised in the Concluding Observations by the committees in the context of numerous states in the Arab region (see e.g. Bahrain, Iraq, Kuwait, Lebanon, Morocco, Qatar, and Saudi Arabia), prompting concern as to gap between the law in letter and in practice.

 

  1. Another issue of particular concern in the criminalization of torture – in particular in the Arab region – is the applicability of the statute of limitations. The Committee, in its General Comment No. 3, has made clear that statutes of limitations should not be applicable for the crime of torture “as these deprive victims of the redress, compensation, and rehabilitation due to them. For many victims, passage of time does not attenuate the harm and in some cases the harm may increase as a result of post-traumatic stress that requires medical, psychological and social support.” While certain countries in the Arab Region have categorically removed the statute of limitations for the crime of torture (e.g. Bahrain, Mauritania, Tunisia, and Yemen), other states in the region continue to limit temporally the redress available for torture (see e.g. the Concluding Observations of the Committee and the HRC on Jordan and Lebanon). As emphasised by the Committee, “States parties shall ensure that all victims of torture or ill-treatment, regardless of when the violation occurred or whether it was carried out by or with the acquiescence of a former regime, are able to access their rights to remedy and to obtain redress.”

 

  1. Penalties and compensation

 

  1. Article 4 of CAT obliges States parties to ensure “appropriate penalties, which take into account [the] grave nature of [all acts of torture].”While the Convention does not delimit what penalties are considered “appropriate”, the Committee has frequently commented in its Concluding Observations where it believes the sentencing is too lenient – in particular where torture can be treated as a misdemeanor or minor crime (see e.g. Concluding Observations on Kuwait and Jordan). In Kuwait, for example, the Committee considered that the maximum sentence of five years imprisonment was not commensurate with the gravity of the crime of torture.

 

  1. Penalties for torture across the Arab Region vary significantly. While the United Arab Emirates mirrors Kuwait in its maximum penalty of five years imprisonment, Libyan law imposes a five-year minimum penalty. Meanwhile, Oman, which has not ratified CAT, provides in its penal code a penalty range of between six months and three years for torture. States with particularly detailed penalties for torture include Bahrain, Libya, Mauritania, Morocco, and Tunisia, all of which provide for life imprisonment where the torture leads to the death of the victim. Additionally, many states in the region have also introduced fines in addition to imprisonment. 

 

  1. In terms of redress for the victim of torture, Article 14 (1) of CAT provides that, “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.” Despite the unequivocal recognition of the right to compensation – as notably provided for in Mauritanian domestic law – few other states in the Arab region expressly provide for this in their legislation.

 

  1. The principle of non-discrimination

 

  1. The principle of non-discrimination is a general principle in the protection of human rights and fundamental to the interpretation and application of CAT. Non-discrimination is included within the definition of torture itself in article 1, paragraph 1 of the Convention, which explicitly prohibits specified acts when carried out for “any reason based on discrimination of any kind…” Some national laws in the Arab region reflect Article 1 by recognising within the definition of torture certain acts motivated by any form of discrimination (Bahrain, Libya, Mauritania and Morocco). Meanwhile, Tunisia limits the definition to encompass racially based discrimination only, and many other Arab States do not expressly reflect the principle of non-discrimination in their definition.  

 

  1. The principle of non-discrimination under the Convention further calls on States parties to ensure that their laws are in practice applied to all persons without distinction. Additionally, according to the Committee’s General Comment No. 2,  states must “ensure the protection of members of groups especially at risk of being tortured, by fully prosecuting and punishing all acts of violence and abuse against these individuals and ensuring implementation of other positive measures of prevention and protection.”

 

  1. Gender-based discrimination is one factor that needs to be addressed as it intersects with other identifying characteristics or status of the person such as race, nationality, religion, sexual orientation, age, immigrant status etc., and is mostly determine the ways that women and girls are subject to or at risk of torture or ill-treatment and the consequences thereof. Few Arab countries have emphasized the non-discrimination principle in the definition of torture with no specificity of types of discrimination, like Jordan and Bahrain, while Tunisia had listed only the race as a base for non-discrimination.  

 

  1. Both men and women and boys and girls may be subject to certain gendered violations of the Convention such as rape or sexual violence and abuse. Other violations of the Convention also are to be on the basis of their actual or perceived non-conformity with socially determined gender roles.  Listing the forms of tortures in the definition in most of the legislations in the region does not recognize sexual violence including rape as one form of torture, while it is widely used in detention centres against both male and female.

 

  1. Efforts of the United Nations in combatting torture

 

  1. Since 1948, an impressive institutional framework has been established specifically to prevent torture and ill-treatment. In addition to the judicial and quasi-judicial treaty bodies that oversee the implementation of the general human rights instruments and the international criminal courts and tribunals that adjudicate a broad range of crimes, some international mechanisms focus on the prohibition of torture and ill-treatment.

 

  1. Since 1 January 1988, the Committee against Torture, which is made up of independent experts, monitors the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment began to function by reviewing the reports of State parties, hearing individual complaints and carrying out inquiries.

 

  1. Since February 2007, under the Optional Protocol to the Convention, the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Subcommittee on Prevention of Torture) began its mandate. Each State party to OPCAT is required to set up NPMs.

 

  1. Since the establishment of the United Nations Voluntary Fund for Victims of Torture in 1981, more than $180 million in aid has been provided through grants to more than 630 organizations worldwide.

 

  1. The first Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment was appointed by the United Nations Commission on Human Rights in 1985, with a mandate to examine issues of torture and ill-treatment in all Member and Observer States of the United Nations, regardless of their treaty obligations. To date the SR continues to follow on the status of torture and ill-treatment across the world through actions, visits and studies.

 

  1. The Committee against Torture has played a vital role in clarifying the obligations and protections under CAT. It has issued four General Comments to date, providing interpretation of treaty provisions and providing recommendations to States parties for the application of these provisions. In 1998, the Committee issued a report, which was the General Comment No.1. In 2008, General Comment No. 2 which identifies the scope of States parties obligations and responsibility for the implementation of article 2, which promotes the absolute prohibition of torture.[In 2012, General Comment No. 3 was issued which elaborates on the scope of the obligations arising from article 14, in which each State party is required to ensure each victim of an act of torture obtains redress and compensation, including rehabilitation. The most recent General Comment No. 4 was issued in 2018, related to the implementation of article 3 of the Convention in the context of article 22. This General Comment provide guidance to States parties and the complainants and their representatives on the scope of article 3 and on how the Committee assesses the admissibility and the merits of the individual communications submitted to the Committee for its consideration.

 

  1. Objectives of the conference

 

  1. While many states in the Arab Region have undergone substantial legal reform to prevent and punish the use of torture and ill-treatment, the region as a whole has significant room for improvement both in law and in practice. The Regional Office of the High Commissioner for Human Rights in the Middle East and North Africa, in partnership with National Council for Human Rights, will co-organize the Conference to:

 

  • Review national legislation in the region, and provide specific definition and criminalization of torture in accordance with CAT and the general comments of the Committee against Torture;
  • Analyse the concluding observations of the Committee against Torture in the region, and discuss how best to implement them;
  • Discuss ways to provide a definition of torture that recognizes gender-specify aspects and provides more protection to groups at risk of discrimination or marginalization;
  • Explore the role of National Human Right Institutions, and National Preventive Mechanisms in promoting robust protection and accountability under anti-torture legislation; and
  • Identify other measures and services for redress and reparation for victims of torture, including compensation, psychotherapy and rehabilitation.

 

  1. Participants

 

  1. The conference will bring together more than 50 participants from the following Arab countries: Algeria; Bahrain; Egypt; Jordan; Kuwait; Iraq; Lebanon; Libya; Mauritania; Morocco; Oman; Qatar; Saudi Arabia; State of Palestine; Syria; Sudan; Tunisia; United Arab Emirates; and Yemen.

 

  1. The participants will include representatives of Arab governments and parliaments; governmental and non-governmental organizations; regional entities, the Arab Council for Ministries of Interior; and Arab experts and media professionals; and international and regional organizations including United Nations agencies.

 

  1. Recognising that National Human Rights Institutions play a vital role in the protection system of any State, especially in promoting and ensuring the harmonization of national legislation, regulations and practices with the international instruments to which the State is a party, and their effective implementation, therefore NHRIs from the Arab region will feature prominently amongst the participants.

 

 

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