a)Outline the nature of the violation Torture is a serious human rights violation and is strictly prohibited by international law however it still does continue in majority of the countries around the world. Torture is an act of deliberately inflicting severe pain on someone without any legal causes. Torture is not only physical pain but also includes the act of causing mental pain as well such as threats to family or loved ones.
Torture has been used as a punishment to intimidate or control a person. The term torture includes a variety of methods such as severe beatings, electric shock, sexual abuse and rape, hard labour, near suffocation etc. Torture is considered a violation of human rights under Article 5 of the UN UDHR which states ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’.
A location in which torture occurs is Guantanamo Bay detention camp (GTMO) in Cuba. GTMO is a detainment and detention facility of the United States located within Guantanamo Bay Naval Base. The facility was established by the Bush administration to hold detainees from the war in Afghanistan and later in Iraq. It is operated by the Joint Task Force Guantanamo of the United States government in Guantanamo Bay Naval Base, which is on the shore of Guantánamo Bay. A few torture methods being inflicted upon the detainees of GTMO includes sleep deprivation, beatings, locked in confined cold cells, sexual assault and torturing with broken glass, barbed wire and burning cigarettes
b)Outline the international instruments and mechanisms in place to deal with the violation, and outline how these mechanisms have been breached There are numerous laws in place to deal with events involving torture and the following are the international treaties and mechanisms that determine standards for the human right to be protected from torture and cruel, inhuman or degrading treatment.
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly. According to Article 5 of the UDHR which states that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ torture is a human rights violation. Torture is a breach of Article 5 of the UDHR as it is an act of deliberate severe pain inflicted on someone to gain information. Methods of torture such as beatings, sexual assault, rat torture, scaphism are all cruel, inhuman and degrading treatment which are prohibited and are a breach of the UDHR.
The International Covenant on Civil and Political Rights (ICCPR) is a treaty adopted by the General Assembly. This covenant elaborates the principles laid out in the UDHR. Torture is a violation of this convention as it is prohibited under Article 7, which states ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. As torture is a form of cruel, inhuman or degrading treatment it is classified a breach of this covenant.
The United Nations Convention Against Torture (UNCAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights instrument, under the review of the United Nations, that aims to prevent torture around the world. It is the principal UN treaty concerned with torture. It compromises 33 articles covering the rights at stake and the enforcement mechanisms. Torture is a violation of human rights as the Article 2 of the convention prohibits torture and no exceptional circumstances whatsoever may be raised to justify torture. Torture breaches this article as it torture still exist today even though there are laws prohibiting its occurrence.
The Optional Protocol to the Convention Against torture (OPCAT) entered into force on 22 June 2006 and is an important addition to the UNCAT. The purpose of the protocol as stated in Article 1 is to ‘establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment’. Torture is a breach of this Protocol because it occurs at GTMO as the detainees are treated unjustly such as being deprived of sleep and torturing of dangerous objects.
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. This convention defines humanitarian protection for prisoners of war. The convention states that prisoners of war ‘are entitled in all circumstances to respect for their persons and their honour’ (Article 14) and ‘must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity’ (Article 13). Article 17 specifies that ‘no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatsoever.
Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind’. Therefore torture is a severe breach of this convention as it is an act of inflicting cruel inhuman pain on prisoners of war to detain information which occurs at GTMO.
Even though there are various international instruments and mechanisms in place to deal with torture they are still breached which occurs at GTMO.
c)Analyse the effectiveness of international law in protecting the human rights you have identified International law is the body of legal rules that apply between sovereign states which are regarded and acknowledge highly by the international community. International law may be not as effective in other countries due to state sovereignty, a nation states values and interest and whether or not treaties have been signed or ratified.
The core principle of international law is sovereignty. This means that no authority is legally above the state. The states are not obliged to agree to the international law and apply it within their state because of state sovereignty. This may be a reason in which why torture still exists in the world today as it has not been entirely abolished because some states have not agreed to apply the international laws dealing with torture within their state e.g.
UNCAT where some states have both signed and ratified the convention, states have signed but not ratified and other states which have not signed nor ratified the covenant such as Papua New Guinea, Angola, Zimbabwe and Iran where torture is known to still occur today. As long as state sovereignty applies the nation state cannot have any external interference and therefore cannot be influenced as to whether the nation state should apply the international law into their state or not. This limits international law from becoming affective into the nation state.
Not every state will agree with the values as they are completely different to their own beliefs. It may be used by states to maintain positions of power and gain self interest. Therefore it is not used objectively. For example a state which disapproves of torture may agree to the international laws created to prohibit torture whereas a state which torture may occur and the leader of the state does not want to entirely prohibit torture, will not agree to the international laws as their goals and values differ of other states. If the international law does not benefit the nation state in anyway the nation state may not decide to apply that law into their nation state. So this weakens the developing and appliance of international law.
The ICCPR is a covenant respecting the civil and political rights of individuals. This treaty has been signed by Cuba however it has not been ratified. Therefore the nation state does not have to entirely comply with the treaty which results in torture occurring in Cuba at GTMO and the ICCPR loses its effectiveness. This is because no external interference can influence to comply with the treaty and prohibit torture occurring at GTMO.
OPCAT is an addition to UNCAT in which Cuba have yet signed or ratified. It is an international inspection system for places of detention such as GTMO. However since Cuba has not signed nor ratified the protocol OPCAT does not have the jurisdiction to inspect GTMO. This reduces the effectiveness of the international law assisting to prohibit torture occurring at GTMO.
As a result of state sovereignty, a nation states values and interest and whether or not the nation state has signed and ratified the treaty international is ineffective in reducing and prohibiting torture in occurring around the world today in such places such as GTMO located in Cuba.