Sentenced to Stigma: Segregation of HIV-Positive Prisoners - AL.com

Human Rights StandardsThe Universal Declaration of Human Rights declares that “no one shall be subjected totorture or to cruel, inhuman or degrading treatment or punishment.” 30 The prohibition is alsoa matter of jus cogens, a peremptory norm of customary international law binding on allstates. 31 This principle is enshrined in the Convention Against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant onCivil and Political Rights (ICCPR), two treaties signed and ratified by the United States. 32Cruel and inhuman treatment includes that which inflicts severe pain and suffering, physicalor mental, without a legitimate purpose or justification, at the instigation of or with theconsent or acquiescence of public officials. 33 Degrading treatment has been defined as “theinfliction of pain or suffering, whether physical or mental, which aims at humiliating thevictim.” 34As stated in the ICCPR, prisoners have the right “to be treated with humanity and withrespect for the inherent dignity of the human person.” 35 Key to the interpretation of this rightis the principle that the loss of liberty itself should be the only form of punishment. The onlyrights forfeited at the prison door are those that are “unavoidable in a closedenvironment.” 36 Prisoners retain rights to privacy, informed consent, confidentiality and theright to be free from discrimination. 37 The ICCPR protects the right of prisoners torehabilitation, including access to educational, vocational, and in-prison work programs. 3830 Universal Declaration of Human Rights, UNGA Res. 217 (III), UN GAOR, 3d Session, Supp. No. 13, UN Doc. A/810 (1948),Article 5.31 M. Nowak and E. McArthur, The United Nations Convention Against Torture: A Commentary (Oxford University Press, 2008),p. 8 (hereinafter Commentary . A peremptory norm is one which is "accepted and recognized by the international communityof States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent normof general international law having the same character." Vienna Convention on the Law of Treaties (1969), art. 53.32 Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), adopted December 10,1984, G.A. Res. 39/46, annex, 39 UN GAOR Supp. (no. 51) at 197,UN Doc. A/39/51 (1984) entered into force June 26, 1987,ratified by the US on October 14, 1994,para.3; International Covenant on Civil and Political Rights (ICCPR), adopted December16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc.A/6316 (1966), 999 UNTS 171, entered into forceMarch 23, 1976, ratified by the U.S. on June 8, 1992, art.7.33 Even with a legitimate purpose, the infliction of pain should not be excessive or disproportional. Commentary, p. 558.34 Ibid.35 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAORSupp. (No. 16) at 52, UN Doc.A/6316 (1966), 999 UNTS 171, entered into force March 23, 1976, ratified by the U.S. on June 8,1992, arts. 6,7 10(1).36 UN Committee on Human Rights, General Comment No. 21, Article 10, Humane Treatment of Prisoners Deprived of theirLiberty, UN Doc. HRI/Gen/1/Rev.1 at 33 (1994), para. 3.37 United Nations Standard Minimum Rules for the Treatment of Prisoners, May 13, 1977, Economic and Social Council Res.,2076 (LXII); Basic Principles for the Treatment of Prisoners, UN General Assembly Resolution 45/111 (1990); Body of PrinciplesSentenced to Stigma 16