The right not to be subjected to torture
Article 5 of the Universal Declaration of Human Rights states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The right not to be subjected to torture is considered one of the most fundamental human rights, and, under customary international law, is guaranteed to all persons without discrimination. In addition, this right is absolute and non-derogable, meaning that no exceptional circumstances of any kind may be used to justify the use of torture. According to Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the term “torture” refers to “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a 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, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”. Today, the vast majority of international and regional human rights agreements – including the UNCAT; the International Covenant on Civil and Political Rights (ICCPR); the Geneva Conventions; the European Human Rights Convention (ECHR), the Arab Charter of Human Rights (ACHR) and the African Charter on Human and Peoples’ Rights (ACHPR) – all stipulate a total prohibition of torture. By ratifying these conventions, states agree to integrate their provisions into national legislation, and to take all necessary measures to ensure these provisions are implemented in practice. In this regard, states have the obligation to:
• Prevent and prohibit acts of torture;
• Launch appropriate and sufficient investigations into allegations of torture and ensure perpetrators are prosecuted;
• Exclude statements obtained through the use of torture or ill-treatment as evidence;
• Compensate victims of torture;
• Respect the dignity and human rights of detainees by guaranteeing humane conditions of detention.
Torture in the United Arab Emirates
In July 2012, the United Arab Emirates ratified the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), though it is yet to ratify the Optional Protocol to the UNCAT (OPCAT). In spite of this, torture and other forms of ill-treatment of detainees remain common in the UAE, and numerous victims continue to be reported. The testimonies of individuals – both Emirati citizens and foreign nationals – who have been subjected to torture in the UAE show a common pattern. Victims are often arrested by state security agents without any warrant, and most of those persons are taken to secret detention facilities where they are held incommunicado and in solitary confinement for days, weeks or even months at a time. Denying detainees contact with their family and lawyers increases the risk of being subjected to torture or other forms of ill-treatment due to the fact that victims are placed outside of the protection of the law and have no access to legal remedies. Detainees have reported being deprived of daylight, exposed to bright electric light 24 hours a day, blindfolded and threatened, kept in very small cells without windows or a toilet, exposed to extreme temperatures, beaten, electrocuted, physically abused, forced to observe and witness the torture – including rape – of other inmates, subjected to verbal threats of harm and of death, and deprived of food and healthcare. Despite the UAE’s commitment to investigate all allegations of torture, impunity for perpetrators prevails. Allegations are consistently ignored, independent investigations into those complaints are never initiated, and forced confessions are regularly admitted as the sole piece of evidence to convict individuals to heavy sentences following unfair trials.
Universal Jurisdiction: fighting against impunity
Generally, a state has jurisdiction over crimes committed on its own territory, as well as by or against its citizens abroad. However, some crimes are so serious - such genocide, crimes against humanity, war crimes, and torture - that the principle of universal jurisdiction may apply because they affect the fundamental interest of the international community as a whole. By using Universal Jurisdiction, the national authorities of any state are allowed to investigate and prosecute the perpetrator of this crime even if it was committed in another country. Torture is considered one of the most serious crimes under international law and states must respect its prohibition without exception and are required to make these offences punishable by appropriate penalties in accordance with Article 4 (II) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Convention against Torture (art.6) requires that, each State Party “in whose territory a person alleged to have committed” the crime of torture “is present shall take him into custody or take other legal measures to ensure his presence” and the Article 7 (I) provides that each “State Party in whose territory a person alleged to have committed” the crime of torture shall “if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution”. In order to be prosecuted in Switzerland torture acts must also be punishable in the State where the crime was committed in application of the principle of double criminality, which is the case in the United Arab Emirates whose law provides from a formal point of view the prohibition of torture. Furthermore, a second condition asks that the perpetrator of the crime is on the territory and is not extradited. Universal Jurisdiction gives victims of international crimes access to justice and fills the lack of prosecution. This is more than important to encourage states to use this legal remedy in the fight against impunity.