2 The Prohibition of Torture and other Forms of Ill-treatment and of Trafficking in Human Beings 2.1 Torture and other Forms of Ill-treatment 2.1.1 What are Torture and other Forms of Ill-treatment? Torture and other forms of ill-treatment are prohibited under international law. The prohibition of torture is both absolute and non-derogable, even in times of war and other emergencies. It therefore must be respected at all times and may not be restricted even for compelling reasons. The OSCE emphasizes the absolute character of torture in the Copenhagen Document of 1990 which points out, similar to Art. 2 UNCAT, “that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”. 7 Additionally, the prohibition of torture is a peremptory norm of international law (also referred to as belonging to jus cogens) which means that the prohibition of torture is binding for all States irrespective of whether the relevant international human rights treaties have been signed or ratified.8 Stressing its importance, the prohibition of torture or other forms of ill-treatment can be found in many international and regional human rights treaties. Torture In general, torture takes place in situations in which one person exercises unrestricted power over another person.9 The definition of torture as provided in Art. 1 UNCAT10 comprises four main elements: the involvement of a public official, the infliction of severe pain or suffering, the intention of the torturer to inflict severe pain or suffering and a specific purpose for this act. At the level of the United Nations, the most important document is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). In addition the International Covenant on Civil and Political Rights (ICCPR) contains in Art. 7 a prohibition of torture or other ill-treatment. Concerning children, the Convention on the Rights of the Child (CRC) holds that children shall not be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Art. 37). At the regional level, the European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 3), the American Convention on Human Rights (Art. 5) as well as the African Charter on Human and Peoples’ Rights (Art. 5) also prohibit torture or other ill-treatment. The first element is the involvement of a public official. Torture and other forms of ill-treatment are only covered by UNCAT when these acts are “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” 11. The limitation to public officials is a traditional state-centred definition, following the view that States can only be held accountable for acts of State organs.12 Secondly, torture and other forms of ill-treatment require an infliction of severe pain or suffering, whether physical or mental. The assessment has to be done individually in each case, since there is no list of specific methods which can be qualified as torture or minimum standards of the required severity of pain or suffering. The assessment of severity is relative and depends on the circumstances and context of a case and includes factors such as sex and age of the victim or duration of the act.13 Beating by police officers causing sustained injuries on both arms and legs, an open wound on the back of the head and numerous injuries all over the back have been assessed as torture by the Committee against Torture.14 Solitary confinement in inadequately The United Nations Convention against Torture: A Commentary Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 11 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE The Fight against Torture: The OSCE Experience International Human Rights Law 14 13 Report 14 Gender and Torture – Conference Dragan Dimitrijevic v Serbia and Montenegro