Dissertations / Theses on the topic 'Torture and cruel, inhuman and degrading treatment'

Is it an activity qualified as torture only when it is carried out for certain purposes? At the heart of the debate lies the question of whether or not corporal punishment is a form of torture. Aspects of corporal punishment remain acceptable according certain religious traditions. An example of this is found in traditional Islamic law, which has banned both torture and other cruel, inhuman and degrading treatment or punishment, when used for the express purpose of obtaining confessions or information. In other circumstances, however, severe corporal punishment is acceptable in Islamic law. As a result, some Islamic states whose domestic law is rooted in traditional Islamic law, justify their use of torture by invoking Islamic traditions: they claim that corporal punishment is derived from God's will. These states tend to consider its use as lawful sanctions, and it is made legal under their domestic law. In this paper, Iran is studied as one such state.

Magister Legum - LLM
I attempt to analyze South Africa's legal position pertaining to torture, in relation to the international legal framework. Since it has been established that torture and cruel inhuman and degrading treatment (CIDT) usually occur in situations where persons are deprived of personal liberty, I examine legislation, policies and practices applicable to specific places of detention, such as correctional centres, police custody, repatriation centers, mental health care facilities and child and youth care centers. I establish that although South Africa has ratified the UNCAT and is a signatory to the OPCAT, our legal system greatly lacks in structure and in mechanisms of enforcement, as far as the absolute prohibition and the prevention of torture and other forms of cruel and degrading treatment or punishment are concerned. I submit that South Africa has a special duty to eradicate torture, since many of its citizens and several of its political leaders are actually victims of torture, who suffered severe ill treatment under the apartheid regime. I argue that the South African legal system is sufficiently capable of adopting a zero-tolerance policy toward torture and to incorporate this with the general stance against crime. In many respects, South Africa is an example to other African countries and should strongly condemn all forms of human rights violations, especially torture, since acts of torture are often perpetrated by public officials who abuse their positions of authority. I conclude by making submissions and recommendations for law reform, in light of the obstacles encountered within a South African context.
South Africa

This thesis will assess the United Kingdom’s implementation of the United Nations Convention Against Torture and other Cruel Inhuman and Degrading Treatment or Punishment. It will first focus on a contextual analysis of the problem of torture, examining the circumstances in which it has historically been used, philosophical and theoretical perspectives on the practice and the political aspects of torture, including its effect on international relations. This will illustrate the circumstances in which torture is used, the motivation behind it and the way in which it affects its victims. The argument will then be made that, in view of the uniquely grave nature of the practice of torture, it is insufficient for States to merely criminalise it and punish the offenders. They must actively seek to eradicate it from society and ultimately prevent it from occurring. It is against this aim that the thesis will examine the compliance of the United Kingdom with its obligations under the Convention. This examination will look first at the international regime for the prevention of torture, focusing on the work of the United Nations Committee Against Torture. The engagement of the United Kingdom with this body will be explored in detail and the argument made that more needs to be done in order to ensure that the Committee’s recommendations are put into effect and that treatment contrary to the Convention is prevented from taking place. The final part of the thesis will assess the United Kingdom’s State practice with a focus on key institutions of the State including the courts and the legislature. This part of the thesis will seek to explore the extent to which the practices of these institutions is consistent with an overall aim of preventing torture and the extent to which they show awareness of the Convention and its requirements of the Convention in the discharge of their functions. The conclusion will be drawn that, while the Human Rights Act has gone some way towards improving compliance, more needs to be done to insure a complete implementation by the United Kingdom of its obligations under the Convention and full prevention of torture. The State must actively engage with the Committee and the organs of the State must consider the Convention Against Torture in the discharge of all of their functions to ensure that these aims are achieved.

The use of mechanical restraint is a common practice in psychiatric care, often defended by medical necessity but seldom questioned from a human rights perspective. The purpose of this thesis has been to investigate under which circumstances mechanical restraint by bed through belt fixation could amount to torture and other cruel, inhuman or degrading treatment or punishment. Persons with psychosocial disabilities are in a particularly vulnerable situation and as the International Convention on the Rights of Persons with Disabilities (CRPD) is the most comprehensive rights framework for this group, it has been discussed whether the CRPD sets out additional safeguards in relation to restraint.  A legal doctrinal approach is the basic methodology used in order to outline the current international and European legal framework on torture and other ill-treatment and disability rights. A survivor-controlled research methodology has been applied and to amplify other voices of persons with firsthand experience of being mechanically restrained, interviews have been conducted with persons from Sweden and Spain. Healthcare professionals have also been interviewed. A feminist perspective on the law is applied.  Different international conventions and bodies of the United Nations have diverse interpretations on what acts or omissions that amount to torture and other cruel, inhuman or degrading treatment or punishment, although there is an aim and will to streamline the conventions. It is clear that the use of mechanical restraint can create such intense mental or physical suffering required to reach the common criterion of seriousness. However, some people do not experience the required levels of suffering for it to be considered torture, meaning that it might not amount to torture but rather other ill-treatment. The threshold for being considered torture according to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) seems to be somewhat higher than that of the International Covenant on Civil and Political Rights (ICCPR) and the European Convention of Human Rights (ECHR). In this thesis it was found that the most critical element for this is the requirement of intent. Intent can however be implied under certain circumstances if the practice is of discriminatory nature. If a person has a psychosocial disability, intent might be presumed if States do not provide appropriate health care. In the case of girls and women, intent might also be presumed since they seem to have a higher risk of getting restrained for unlawful reasons.  The main conclusion in this thesis is that mechanical restraint by bed through belt fixation could amount to torture or other cruel, inhuman or degrading treatment or punishment according to the UNCAT, ICCPR and ECHR.

Approved for public release
The atrocities committed by Americans at Abu Ghraib shocked the collective American moral conscience. Guilty of inhumane treatment of its prisoners there, Abu Ghraib did immeasurable damage to U.S. credibility and made clear that American detainee policy is off-track and needs to comply with objective standards of law, morality, and operational effectiveness. The emotional aftermath of 9/11 created a politically permissive environment within which the military organizational structures was unsuited for the critical tasks assigned to them relative to the context of the Bush Administration’s “new paradigm.” Two issues sit at the forefront of the political context of U.S. detainee policy: war powers and human rights. This thesis will utilize a synthesized decision-making model to analyze the President’s decisions leading to the current detainee policy. Policy alternatives require smaller corrections to bureaucratic process, not a major reorganization of bureaucratic structure. This thesis will provide policy-makers with a moral and legal framework for a corrected detainee policy. Adoption of the full framework of the 1949 Geneva Conventions, including U.S. ratification of Additional Protocols I and II (1977), provides the best framework to combat transnational insurgency, while retaining the moral and legal high ground required of the world’s superpower.
Major, United States Air Force

La France a mis en place en juillet 2015 une réforme en vue de transposer le nouveau « paquet asile » européen alors que le Canada a renforcé depuis décembre 2012 ses procédures d’asile en adoptant des changements ayant essentiellement pour objet de lutter contre les abus du système d’asile canadien. En s’orientant vers des politiques dissimulées visant les expulsions expéditives des demandeurs d’asile déboutés et des personnes indignes de la protection, la France et le Canada, connus en tant que terre d’asile, respectent-ils toujours leur obligation international du non-refoulement ? Cette thèse s’appuie sur les lois en vigueur des deux États notamment le Code de l’entrée et du séjour des étrangers et du droit d’asile (France) et la Loi sur l’immigration et la protection des réfugiés (Canada), les jurisprudences nationales et internationales, et les textes internationaux. Elle met en lumière les pratiques et législations nationales relatives à l’octroi de l’asile et à l’éloignement des demandeurs d’asile et des réfugiés qui peuvent ou pourraient porter atteinte au principe de non-refoulement, tel que consacré par le droit international des réfugiés ainsi que par le droit international des droits de l’homme
In July 2015, France adopted an asylum reform bill in order to transpose the EU asylum legislative package. In comparison, Canada has, since 2012, strengthened its national asylum procedures by introducing a number of changes with the objective of preventing the abuse of Canada’s inland refugee determination system. In moving towards hidden policies aimed at the efficiency of removals of failed refugee claimants and persons unworthy of international protection, are France and Canada, known as safe havens, respecting their international obligations of Non-Refoulement ? This thesis focuses on the laws in force in both States in particular the Code of the Entry and Stay of Foreigners and Asylum Law (France) and the Immigration and Refugee Protection Act (Canada), national and international jurisprudence, and other relevant international documents. The present study aims at highlighting the national legislations and practices relating to the grant of asylum and the expulsion of asylum seekers and refugees which violate or could violate the Principle of Non-Refoulement as enshrined in both International Refugee Law and International Human Rights Law

This thesis aims to examine a selection of the standards identifiable in the published work of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the CPT"). Part I commences with an examination of the mandate and modus operandi of the Committee, followed by an exposition of the two fundamental principles - of confidentiality and co-operation - which inform its work. The CPT's standard-setting work is introduced by means of an examination of its evolution and rationale, the purport of standards set and the ways in which such standards find expression. Part II concerns CPT precepts on police custody. It begins with an examination of the CPT's "three fundamental safeguards against ill-treatment": the rights to notify a third party of the fact of one's detention, of access to legal advice and to a medical examination by a doctor of one's own choosing. It then considers, in turn, the duty to inform a detainee of all his rights; the conduct of police interrogations; the electronic recording of interviews; the maintenance of custody records; and police complaints and inspection procedures. Part III is devoted to a number of matters considered under the umbrella term "imprisonment". It begins with a detailed examination of the phenomenon of prison overcrowding, its effects on detainees and the prison environment, and policies designed to eradicate it or at least mitigate its effects. There then follow two sections on recourse to and safeguards attending, the use of force and/or instruments of restraint and solitary confinement in places of detention (which places include, for the sake of completeness, police establishments, immigration detention centres, psychiatric establishments, etc.). Part IV attemptst o draw everything together, to assess the impact of CPT standards on national criminal justice and penal policy and to consider ways in which that impact might be enhanced.

Thesis (L.L.D.)--University of Pretoria, 2005.
Title from PDF t.p. (viewed on July 22, 2006). "Submitted in fulfilment of the requirements for the degree Doctor of Laws (LLD) in the Faculty of Law, University of Pretoria." Includes bibliographical references (p. 355-386).

Torture is a relevant issue in human interactions for its pervasiveness, gravity and tremendous consequences. Unfortunately is still remains a reality in many countries of the world. This presentation aims approach to the concept of torture and the situation of torture in Portugal and worldwide; analyze international laws and ethical principles on documentation and investigation of torture; and address the contribution and importance of clinical forensic medical examination in these situations, how it best can be carried out and what kind of results may provide. There is no consensus about how to define torture but the most cited definitions in literature are those put forward by the World Medical Association and the United Nations. Both of these definitions include severe physical and psychological forms of suffering and require coercive intent by perpetrators with the consent or acquiescence of state authorities. The prohibition of Torture is absolute and applies to all times and in all circumstances. This prohibition is present in several international treaties and agreements. In 1984 the United Nations adopted the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment highlighting the particular attention given to this absolute prohibition, creating a legally-binding document and providing additional rules to assist in prevention and investigation of allege cases of torture. Nevertheless, between January 2009 and May 2013, Amnesty International received reports of torture and other ill-treatment committed by state officials in 141 countries, and from every world region. This only indicates cases reported to or known by the organization and does not necessarily reflect the full extent of torture worldwide. Besides forbidding it, International law also obliges states to investigate allegations of torture and to punish those responsible. It also requires that victims are able to obtain reparation. One of the major challenges in accomplishing this is to obtain sufficient evidence in cases against perpetrators. If there is no proof that torture took place, a climate of impunity can come to exist and the practice will endure. Medico-legal reports are a way of gathering evidence of torture. Even in countries where a fair trial is rare, medico-legal documentation strengthens the victims’ position since it becomes more difficult to disregard the complaint. The area of application of the medico-legal reports is not restricted to medico-legal investigation. It can be broadened to the investigation and documentation of other violations of human rights in national and international legal proceedings, and monitoring such as cases of asylum seekers, cases of forced confessions through torture, identification of therapeutic needs of victims and the need for reparation and redress by the state. There are also a role for it in activities like research, advocacy and lobbying. Therefore, participation and support of health professionals are of crucial importance for the abolition of torture and other forms of ill-treatment. Ensuring that doctors are aware of how to perform a medico-legal report and how to use it in legal proceedings is a needed step forward in the prevention of torture. Because a large of the large number and the severe suffering of many survivors, the question of torture should become a part of health care curricula.
A tortura é uma questão relevante nas interações humanas pela sua perversidade, gravidade e consequências tremendas. Infelizmente ainda continua a ser uma realidade em muitos países do mundo. O objectivo principal deste trabalho é o de proceder à elaboração de um texto que permita aos profissionais de saúde, adquirirem com a sua leitura uma rápida percepção do que é tortura e os maus tratos, do enquadramento legal destas situações e do potencial que uma adequada abordagem do ponto de vista médico pode proporcionar para uma correta identificação de tais práticas. Neste sentido, o presente trabalho procede inicialmente a uma revisão do conceito de tortura e da situação da tortura a nível mundial e ao nível de Portugal. Seguidamente, efetua uma breve análise das leis internacionais relativas à investigação e documentação de tortura e aborda as questões éticas levantadas por esta temática. Por último analisa o contributo do exame médico-legal nestas situações, como pode ser realizado e quais as mais valias que pode proporcionar. Não há consenso sobre como definir a tortura mas as definições mais citadas na literatura são as fornecidas pela Associação Médica Mundial e pela Organização das Nações Unidas. Ambas incluem formas físicas e psicológicas graves de sofrimento e exigem uma intenção coerciva por parte dos agressores, com o consentimento ou aquiescência das autoridades do Estado. A definição da Organização das Nações Unidas exige ainda que a agressão seja perpetuada especificamente por membros do, ou ao serviço do, Governo ou por forças militares ou policiais pertencentes ao Estado. Há também outras práticas que, apesar de não estarem incluídas nas definições de tortura, são um ataque à vida humana em toda a sua dignidade. Este outro tratamento cruel, desumano e degradante, que será referido neste trabalho como "maus-tratos", também tem a intenção de expor os indivíduos a condições que causam sofrimento físico ou mental significativo, mas sem um propósito específico. As pessoas vítimas desta prática, serão neste trabalho equiparadas a vítimas de tortura. A proibição da tortura e maus-tratos é absoluta e aplica-se a todos os momentos e em todas as circunstâncias. Esta proibição está presente em diversos tratados, acordos internacionais e o direito a estar livre de tortura é contemplado na Declaração Universal dos Direitos do Homem. Em 1984, as Nações Unidas adoptaram a Convenção Contra a Tortura e Outros Tratamentos Cruéis, Desumanos, Degradantes ou de Punição (CAT) destacando a particular atenção dada a esta proibição absoluta. Este é um documento juridicamente vinculativo que prevê regras adicionais para auxiliar na prevenção e investigação de alegados casos de tortura. Apesar de todas as normas e tratados que contemplam a proibição de tortura, esta continua a ser ainda uma prática comum e mundialmente disseminada. Entre Janeiro de 2009 e Maio de 2013, a Amnistia Internacional recebeu relatos de tortura e outros maus-tratos cometidos por funcionários do Estado em 141 países, e de todas as regiões do mundo. Isso só indica casos notificados ou conhecidos pela organização, e não reflecte necessariamente a extensão total da tortura em todo o mundo. Portugal não é excepção a isto. Além de proibir a prática de tortura, a lei Internacional obriga também os Estados a investigar alegações de tortura e a punir os responsáveis. Requer ainda que as vítimas possam ser ressarcidas da forma mais completa possível. Um dos principais desafios na realização disto é a obtenção de elementos de prova suficientes em casos contra os agressores. Se não há nenhuma prova de que a tortura ocorreu, um clima de impunidade pode vir a existir e a prática será perpetuada. Relatórios médico-legais são uma forma de apresentar provas de tortura. Mesmo em países onde um julgamento justo é raro, a documentação médico-legal fortalece a posição das vítimas tornando mais difícil ignorar a acusação Para mais, médicos da área dos cuidados de saúde primários são importantes detectores na identificação das vítimas. Eles podem encontrar sobreviventes de tortura em contextos de cuidados primários ou nos serviços de urgência e emergência médica, e serem quem inicia o encaminhamento para o tratamento destas vítimas e acciona os mecanismos legais necessários. A área de aplicação dos relatórios médico-legais não se restringe à investigação médico-legal. Estes podem ser utilizados na investigação e documentação de outras violações dos direitos humanos, em processos judiciais nacionais e internacionais. Podem ter ainda um papel importante em casos de requerentes de asilo, na identificação das necessidades terapêuticas das vítimas e da necessidade de reparação e reparação por parte do Estado. Há também um papel para ele em atividades como pesquisa, advocacia e lobby. Portanto, a participação e apoio de profissionais de saúde é de importância crucial para a abolição da tortura e outras formas de maus-tratos. Garantir que os médicos estão cientes de como executar um relatório médico-legal e como usá-lo em processos judiciais é um passo necessário na prevenção da tortura. Dado a grande quantidade de pessoas vítimas desta prática e o papel preponderante dos médicos na sua prevenção, a abordagem da tortura e o exame médico-legal deveriam tornar-se parte dos currículos das escolas médicas.

I attempt to analyze South Africa&rsquo
s legal position pertaining to torture, in relation to the international legal framework. Since it has been established that torture and cruel inhuman and degrading treatment (CIDT) usually occur in situations where persons are deprived of personal liberty, I examine legislation, policies and practices applicable to specific places of detention, such as correctional centres, police custody, repatriation centers, mental health care facilities and child and youth care centers. I establish that although South Africa has ratified the UNCAT and is a signatory to the OPCAT, our legal system greatly lacks in structure and in mechanisms of enforcement, as far as the absolute prohibition and the prevention of torture and other forms of cruel and degrading treatment or punishment are concerned. I submit that South Africa has a special duty to eradicate torture, since many of its citizens and several of its political leaders are actually victims of torture, who suffered severe ill treatment under the apartheid regime. I argue that the South African legal system is sufficiently capable of adopting a zero-tolerance policy toward torture and to incorporate this with the general stance against crime. In many respects, South Africa is an example to other African countries and should strongly condemn all forms of human rights violations, especially torture, since acts of torture are often perpetrated by public officials who abuse their positions of authority. I conclude by making submissions and recommendations for law reform, in light of the obstacles encountered within a South African context.

The crime of torture and other inhuman and cruel treatment Abstract This master thesis concerns itself with a concept of torture and other cruel, inhuman or degrading treatment or punishment and how is this concept perceived through the international, regional and last but not least national system of law. Not to mention particular efforts aiming at the eradication of torture and other forms of ill treatment in the context of all the systems of law mentioned above. At the very beginning I am trying to deal with very specific historical approaches towards the torture and other forms of ill treatment themselves. Through this I am trying to provide for more comprehensive view on the given problematics as well as better understanding of why are torture and other forms of ill treatment still subject to controversy. Following chapter is dedicated to legal anchoring of the prohibiton on torture and other forms of ill treatment, especially within the international and regional system of law including particular attempts to define torture and other cruel, inhuman or degrading treatment throughout these systems mentioned above. Next chapter concerns itself with the conception of prohibiton on torture and other forms of ill treatment as a part of the system of fundamental human rights and freedoms followed by thorough...

This thesis deals with the prohibition of torture in international law. The prohibition of torture is considered one of the fundamental values of democratic states, it is an absolute right and a part of customary international law and such a rule of conduct from which we can under no circumstances deviate. Although it might seem that this topic is not too current, the opposite is true. The violation of the prohibition of torture is almost worldwide. The inspiration and impetus to select this topic for me was the situation about the U.S. war against terror and torture of prisoners at U.S. military bases. The work is divided into two blocks. The first part is a theoretical question, which aims to define the very concept of torture and other cruel, inhuman and degrading treatment and punishment and their relationship and to map the universal and particular international mechanisms in which the prohibition of torture is established. In this respect, the important document is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is the only universal document that provides a precise definition of torture. The aim of the first part was also to describe how the control mechanisms checked in compliance with the prohibition of torture in the world. The second...

General approach of international law to torture Abstract The prohibition of torture exists at national and international level. The author focuses only on the general approach of international law to torture. He analyzes the individual elements of the definitions of torture contained in international documents. At the same time, he does not forget to mention the cruel, inhuman or degrading treatment or punishment that is inextricably linked to torture. He also highlights the importance of the threat of torture, which may under certain conditions separately constitute torture. He provides an overview of the current international regulation of the prohibition of torture enshrined not only in international human rights treaties, but also in the field of international humanitarian law and international criminal law. He also emphasizes the reflection of international regulation in the practice of individual protection mechanisms ensuring effective control over compliance with the prohibition of torture, specifically universal, European, Inter-American, African and other functioning mechanisms. Also, he places torture in the context of crimes under international law. He refers to the practice of the International Criminal Court and ad hoc criminal tribunals, which have even granted status of jus cogens to the...

This limited scope dissertation deals with the protection against torture in international law. The mechanisms which have been established over the years to protect individuals against torture are analysed. The principles of international customary law dealing with torture and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) have been examined against the failure by States to honour their obligations under the Treaty and other legal normative rules. This required deep exploration of the definition of torture and how States can compromise the rule of law by manipulating the definition of torture as contemplated by the Treaty or other instruments. Examples from the former US government highlight the ways in which domestic laws can be used and are continued to be used to allow the use of torture. Measures by South Africa in joining the international community in the fight against torture are also discussed as a case study. While all efforts have been made by the South African system to adopt desirable frame works on the protection of individuals against torture, the lack of education on torture remains the down fall of the system. The dissertation clearly explains that universal jurisdiction applies in respect of torture and this is recognised by both treaty law and customary law. Indeed despite all the current measures in place the use of torture persists. The research clearly reveals that countries hide behind their own laws to perpetrate acts of torture. It is then recommended that proper implementation of the legal structures, informed of the objectives of the structures, is essential in completely eradicating torture.
Public, Constitutional, and International Law
LLM

This paper examines the migrant detention centers in the United States through the lenses of the Convention Against Torture (CAT), and relevant United States law, such as the Supreme Court’s case law on the Eighth Amendment (cruel and unusual punishment). Specifically, we will address the treatment of children by the government while they are entering the United States in an attempt to claim asylum (either accompanied by their parents or unaccompanied). Additionally, the “zero tolerance policy” enacted by the US government in 2018, which forced the separation of children from their parents is examined. Both of these situations are studied to determine whether any of the treatment the children received violates the CAT and is considered to be either torture or cruel, inhuman or degrading punishment. Similarly, we will also analyze whether this treatment violates the Eighth Amendment of the United States Constitution. Looking at factual findings from complaints filed over the years against U.S. agencies responsible for immigration and detention, as well as reports studying migrant detention centers, multiple allegations of ill-treatment have been reported. Taking into consideration these factual findings with the case law and legal interpretations of torture and cruel, inhuman or degrading treatment, it is argued that this treatment of children could be qualified as torture and/or cruel, inhuman or degrading treatment under international law. Under United States law, it is also argued that these treatments constitute cruel and unusual punishment.

This diploma thesis with the topic of ,,The Concept of Serious Harm in Refugee Law" had three basic objectives. The first one was to analyse single notions which belong to the concept of serious harm. The second objective was to compare the concept of serious harm under the Qualification Directive and under the Czech Asylum Act. By means of the interpretation of single notions of serious harm and the comparison of the Qualification Directive with the Czech Asylum Act, I managed to answer the question ,,who is protected by Article 15 of the Qualification Directive and the second section of paragraph 14a in the Czech Asylum Act," which was the third basic objective of this diploma thesis, and at the same time its research question. My diploma thesis is structured into 6 chapters, further it contains the list of abbreviations, the introduction, the conclusion, the list of literature, the Czech and English abstract, and key words. The first chapter deals with the evolution of the concept of serious harm since the year 2001 till the contemporary version of the Qualification Directive from the year 2011, and with the incorporation of this concept into the Czech Asylum Act. From the depiction of history of the concept of serious harm in this chapter, it resulted how uneasy it was for the member states of...