Preventing Torture An Operational Guide for National Human Rights Institutions Introduction: The concept of torture prevention and its application Key questions • Do States have an obligation to prevent torture? • How is the prevention of torture defined? • What are the key elements of an effective torture prevention strategy? • How can NHRIs contribute to the prevention of torture? 1. Introduction: A duty to prevent “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” states article 5 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948. The prohibition of torture and other forms of ill-treatment has a special status in the international protection of human rights. It is included in a number of international and regional treaties and also forms part of customary international law, binding all States. The prohibition of torture is absolute and can never be justified in any circumstance. This prohibition is non-derogable, which means that a State is not permitted to temporarily limit the prohibition on torture under any circumstance whatsoever, whether a state of war, internal political instability or any other public emergency. Further, the prohibition of torture is also recognized as a peremptory norm of international law, or jus cogens. In other words, it overrides any inconsistent provision in another treaty or customary law. Considering the particular importance placed on the prohibition of torture, the traditional obligations of States to respect, to protect and to fulfil human rights is complemented by a further obligation to prevent torture and other forms of ill-treatment.6 States are required to take positive measures to prevent its occurrence.7 “In the case of torture, the requirement that States expeditiously institute national implementing measures is an integral part of the international obligation to prohibit this practice.”8 6 In its general comment No.31: The nature of the general legal obligation imposed on States Parties to the Covenant, the Human Rights Committee stated that “[a]rticle 2 requires that States Parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations” (para. 7). It further added that “[i]n general, the purposes of the Covenant would be defeated without an obligation integral to article 2 to take measures to prevent a recurrence of a violation of the Covenant” (para. 17). 7 In the case of Velasquez Rodriguez, the Inter-American Court of Human Rights recognized that as a consequence of this obligation, “the States must prevent, investigate and punish any violation of the rights recognized by the Convention” (para. 166); Velasquez Rodriguez case (29 July 1988); Inter-Am.Ct.H.R. (Ser.C.) No. 4 (1988). In its general comment No.20, the Human Rights Committee “notes that it is not sufficient for the implementation of article 7 to prohibit such treatment or pubnishment or to make it a crime. States Parties should inform the Committee of the legislative, administrative, judicial and other measures they take to prevent and punish acts of torture (…)” (para. 8). 8 International Criminal Tribunal for the former Yugoslavia; Prosecutor v. Furundzija (10 December 1998); Case No. IT-95-17/I-T (para. 149). Introduction: The concept of torture prevention and its application | 1