Torture Defined Legally
United Nations Convention Against Torture
(from Wikipedia, the free encyclopedia)
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) is an international human rights instrument, organized by the United Nations and intended to prevent torture and other similar activities. It created the UN Committee Against Torture, which focuses on the duties of national leaders in a preventive role. The Committee is one of seven UN-linked Human rights treaty bodies. UNCAT came into force in June 1987.
The Convention Against Torture is one of a series of UN agreements that seek to protect human rights. The most relevant articles on torture are articles 1, 2, 3 and the first paragraph of article 16.
Article 1
1. 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. 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.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Article 3
1. No State Party shall expel, return (”refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
Section 1: torture is defined as severe pain or suffering, which means there must be levels of pain and suffering which are not severe enough to be called torture (often termed “cruel, degrading or inhumane treatment”). Discussions on this area of international law are influenced by a ruling of the European Court of Human Rights (ECHR) on sensory deprivation.
The Convention also requires states to take effective measures to prevent torture within their borders…
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U.S. Code § 2340. Definitions – Torture
[as used in this chapter – 113C]
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death;
[this is what they did…by the end of it I hallucinated…I understand
this doesn’t appear to directly apply per jurisdiction but it provides
a definition…also note the severity of punishment…it rivals the level
of punishment for serious violent crimes such as kidnapping, rape, etc.]
U.S. Code § 2340A. Torture
(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
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Although these standards provide that restraints should be used only when ‘’strictly necessary'’ to prevent damage or injury, the chairs appear to be routinely used in some facilities to punish or control prisoners who are disruptive but not a danger to themselves or others. Information suggests that the chairs are often used against mentally disturbed or intoxicated individuals in the ‘’Intake'’ sections of local jails, often at night when there may be few staff on duty and in circumstances where there is little regulation or monitoring. [My situation matches this exactly.]
· International Covenant on Civil and Political Rights
This covenant, to which the USA is a state party specifies that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 7) as does the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The actions of police and custody officials also appear to have contravened the UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. These provide that officials ‘’shall, as far as possible, apply non-violent means before resorting to the use of force…'’(7) and that force should be used only when strictly necessary and must always be proportionate to the threat encountered and designed to minimize damage and injury. [[ This is not how it was handled by the ADC in my situation…not even close..]]
- (7) Article 4 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials [adopted by the Eighth UN Congress on the Prevention of Crime and Treatment of Offenders on 7 September 1990].
· UN Standard Minimum Rules for the Treatment of Prisoners…
…stipulate that restraints should never be applied as a punishment, and provide that restraints may be used only when other measures are ineffective and only for so long as is ‘’strictly necessary'’.
[[I was punished via the restraint chair, handcuffs, wrist restraints; and I was restrained far longer than’ strictly necessary’, far longer than remotely necessary, and in agony for over 3 hours to boot]]
· American Correctional Association (ACA) Standards…
…also ban the use of restraints as punishment, and state that four-point restraint should be used only in extreme instances and only when other types of restraint have proven to be ineffective and should not be applied in any event ‘’for more time than is absolutely necessary'’. They also state that advance approval must be obtained from the warden or designee and that the health authority or designee must be notified to assess the inmate’s physical or mental health. The standards further provide that direct visual observation by staff of someone in restraints must be continuous prior to obtaining approval from the health authority or designee, with 15-minute checks thereafter. [[total violation in all respects: punishment, nothing else was tried, longer than necessary, no assessment, barely observed, fractional second health & wellness checks]]
· American Public Health Association (APHA) Standards…
…provides for automatic termination of restraints after four hours, renewable for a maximum of four more hours. [[their plan was for the full four hours maximum right from the beginning and no consideration for releasing me from the agony…because it was so obviously intended…]
· UNCAT Recommendation to Abolish Restraint Chairs…
…In May 2000, the United Nations (UN) Committee against Torture issued recommendations to the US Government, one of which was to abolish use of restraint chairs as a method of restraining people in custody, on the ground that their use led to breaches of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment.(8) [[I support this ban. I hope you do too.]]
- (8) The international treaty body set up to monitor states’ compliance with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, which has been ratified by the USA. See Amnesty International Report: USA - A Call to Action by the UN Committee Against Torture, July 2000, AI Index AMR 51/107/00.
· Amnesty International has written to…the US Department of Justice, with the following recommendations:
- ensure that no-one is subjected to torture or other cruel, inhuman or degrading treatment; all allegations of ill-treatment should be the subject of a full, impartial inquiry, with the results made public and those found responsible for abuses brought to justice.
- each authority should review the use of the restraint chair in their facility, and consider discontinuing its use. There should be the strictest limitations on all use of restraints in accordance with international and US standards, with their use strictly documented and monitored.
- the federal authorities should take steps to implement the recommendations of the US Committee against Torture, one of which was for a ban on the use of restraint chairs. At the very least the government should take immediate steps to institute a rigorous, national inquiry into the use of restraint chairs in US custody facilities.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the United Nations General Assembly in 1984 and entered into force on June 26, 1987. It defines torture as 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/her or a third person information or a confession – obtaining from him/her or a third person information or a confession – punishing him/her for an act s/he or a third person has committed…[or suspected] – intimidating or coercing him/her 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.* [[this is what they did. period.]
· What constitutes ‘ill treatment’?
It is impossible to draw a clear dividing line between ‘’torture'’ and other ‘’cruel, inhuman or degrading treatment or punishment.” Whether an act of ill treatment constitutes torture depends on a number of factors, including the nature and severity of the abuse. Both torture and ill treatment are prohibited in all circumstances by international law.
· Every act of torture [and ill treatment] is a crime under international law.
- If torture is committed in an armed conflict, it constitutes the war crime of torture.
- If torture is committed as part of a systematic or a widespread pattern of similar acts, it constitutes the crime against humanity of torture.
- The Convention against Torture prohibits torture as an independent crime, as a war crime, and as a crime against humanity, absolutely and in all circumstances.
· Are there exceptions to the prohibition against torture?
- No. Article 2(2) of the Convention states 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.”
- The prohibition of torture has a special status in international law. It is part of customary international law, which means it is binding on all states, whether or not they have ratified any of the international human rights treaties.
- The prohibition on torture is also a ‘’peremptory norm,'’ which means that it cannot be overruled by any other law or by local custom.
· United States Acceptance (obligations per Convention against Torture?)
- The United States ratified the Convention against Torture in October 1994. The Convention entered into force for the United States on November 20, 1994.
· What statements has the United States government made about its compliance with the guidelines set forth by the Convention? Excerpts from the Report:
…It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory. [p. 5]
- Any act falling within the Convention’s definition of torture is clearly illegal
11. …. Although there is no federal law criminalizing torture per se, any act falling within the Convention’s definition of torture is clearly illegal and prosecutable everywhere in the country, for example as an assault or battery, murder or manslaughter, kidnapping or abduction, false arrest or imprisonment, sexual abuse, or violation of civil rights. [p. 6] [okay, but why not just name torture as a crime instead of confusing it with all these other crimes? like we do for instances of torture committed ‘outside of the United States’ - reference U.S. code 2340; not to mention cruelty to animals where torture is simply and directly named in MN law…hey, humans are animals…they treated me like an animal…I felt like animal for a long time afterwards…can we use MN’s Cruelty to Animals Statute?!]
…to the United States Constitution, which prohibits “cruel and unusual punishments”. This Amendment is directly applicable to actions of the Federal Government and, through the Fourteenth Amendment, to those of the constituent states…. While the constitutional and statutory law of the individual states in some cases offers more extensive or more specific protections, the protections of the right to life and liberty, personal freedom and physical integrity found in the Fourth, Fifth and Eighth Amendments to the United States Constitution provide a nationwide standard of treatment beneath which no governmental entity may fall. The constitutional nature of this protection means that it applies to the actions of officials throughout the United States at all levels of government; all individuals enjoy protection under the Constitution, regardless of nationality or citizenship. [p. 13]
(From the Amnesty International Website)
