UN TREATY BODIES
1
treatment, though such “distinctions depend on the nature, purpose and severity
of the treatment applied.”17 Therefore, in its jurisprudence, the HRC often does
not specify precisely which aspect of the prohibition has been breached, but
simply states that there has been a violation of Article 7.
The HRC has indicated that the assessment of whether particular treatment
constitutes a violation of Article 7 “depends on all circumstances of the case, such
as the duration and manner of the treatment, its physical or mental effects as well
as the sex, age and state of health of the victim.”18 Elements such as the victim’s
age and mental health may therefore aggravate the effect of certain treatment
so as to bring it within Article 7. However, it is not sufficient that treatment be
capable of producing an adverse physical or mental effect; it must be proven
that this has occurred in a specific case.19
The second sentence of Article 7 ensures that the prohibition is understood to
include any medical or scientific experimentation conducted without the free
consent of the subject. This specific prohibition was a response to atrocities
committed by doctors in Nazi concentration camps during World War II. In
this regard, the Committee has stated that special protection is necessary for
persons not capable of giving valid consent, in particular those deprived of
their liberty, who should not be subjected to any medical or scientific experimentation that may be detrimental to their health.20
In contrast to the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (UNCAT), discussed below,
there is no requirement in the ICCPR for a level of involvement or acquiescence
by a State official for an act to be qualified as torture or ill-treatment. Rather,
“It is the duty of the State Party to afford everyone protection through legislative
and other measures as may be necessary against the acts prohibited by Article 7,
whether inflicted by people acting in their official capacity, outside their official
capacity or in a private capacity.”21
Ibid. §4.
Vuolanne v Finland, HRC Communication No. 265/1987, 7 April 1989, §9.2.
Ibid.
20
Ibid. §7.
21
HRC, General Comment No. 20, 1992, §2.
17
18
19
8
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents