Debates sobre los derechos humanos y el sistema ... - Acnur

Gabriela Echeverría
Elizabeth Wilmshurst
The prohibition of torture and ill-treatment
Torture and other ill-treatment are prohibited in all the
major international treaties dealing with civil and political
rights, 10 by the four Geneva Conventions of 12 August
1949 and their two Additional Protocols covering
armed confl icts, and in national constitutions and domestic legislation
throughout the world. Article 2(2) of the UN Convention
Against Torture specifi es that “[n]o exceptional circumstances
whatsoever, whether a state of war or a threat of war, internal
political instability or other public emergency, may be invoked
as a justifi cation for torture.”
The prohibition of torture amounts to what is known
in international law as ius cogens, or a “peremptory norm” of
international law, which is binding on all States and to which
no exception or derogation can be made even in times of war
or public emergencies. 11 Both the Inter-American and the European
Court of Human Rights confi rmed that the prohibition
of torture is absolute. 12 13 In other words, the right not to be
tortured cannot be “balanced” against other rights such as the
right to security of others. This applies as much to times of
armed confl ict as to times of peace, and to prisoners or war as
to any kind of detainee.
The “ticking bomb” scenario
There is often discussion about the hypothetical situation in
which the extraction of information from one person about how
to defuse a bomb could save the lives of thousands. Is not an
absolute prohibition of torture in such circumstances unrealistic?
Arguments that there should be no justifi cation for torture,
even in such circumstances, go beyond legal considerations,
but include the point that even from a utilitarian point of view the
”ticking bomb” justifi cation is weak, since torture rarely extracts
useful information –the evidence that it works is at best mixed.
The argument is also forcefully made that torture is so inimical
to the morality of our society, so damaging to the torturer as
well as the tortured, that it cannot be allowed in any way that is
morally consistent (Bellamy 2006).
Obligations of States
International law requires States to: abstain from conduct involving
torture or inhuman treatment; to “take effective legislative,
administrative, judicial or other measures” to prevent such
conduct in their territory”; to investigate and prosecute such
conduct, or to extradite the suspects to countries which will prosecute;
not to use in proceedings information obtained by torture;
not to deport, extradite or otherwise transfer a person to a country
where he would be in danger of being tortured; and to afford effective
remedies and adequate reparation to the victims.
Measures to prevent torture and ill-treatment
To achieve the eradication of torture and other forms of ill-treatment
in practice, States must take steps to protect those in
custody, since it is when persons are in the custody of State
offi cials that they are most vulnerable. In particular, States must:
train law enforcement and other personnel coming into contact
with those in custody and review interrogation rules14 regularly;
monitor “under systematic review” the effectiveness of measures
to prevent torture or other ill-treatment such as regular
inspection of places of detention; 15 and put in place “custodial
10 The Universal Declaration of Human Rights of 1948; the International Covenant on Civil and Political Rights of 1966; the UN Torture Convention of
1984; the European Convention of Human Rights; the American Convention of Human Rights; the African Charter on Human and People’s Rights;
the Inter-American Convention to Prevent and Punish Torture; and implicitly by the European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment.
11 Prosecutor v. Tadic, Appeal on Jurisdiction of October 2, 1995. ICTY, IT-94-1-AR72,; See also the Human Rights Committee General Comment 20
on Article 7 of the International Covenant on Civil and Political Rights. (Forty-fourth session, 1992), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994).
12 See Caesar v Trinidad and Tobago, Judgment of March 11, 2005, Inter-Am. Ct. H.R. (Ser, C) No. 123 (2005).
13 Eur. Ct. H.R., Case of Chahal v United Kingdom. Judgment of November 15, 1996.
14 Article 10 of the UN Convention against Torture.
15 Article 11 of the UN Convention against Torture.
16 Principles 15-19 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (GA Res. 43/173, 9
December 1988); see also CPT, 12th General Report, the CPT Standards: substantive sections of the CPT's General Reports, CPT/Inf/E (2002) - Rev.
2003, para.40.
Inƒormación
109 | AÑO II Número 3 | SEPTIEMBRE DE 2007