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Prevention of Torture - A Lot Still Needs to be Done

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The President of the United States Barack Obama signed the United Nations Convention on the Rights of Disabled Persons (CRDP) which is a human rights document that hopes to make human rights protection a reality for the world's 600 million disabled persons. Thus it is the role of the executive branch of the United States government and especially the function of the US Department of Justice to see that the promises made by the President of the United States Barack Obama are fulfilled.

"However, the real work of implementing the Convention is still to be done," said Jennifer Lynch, Chair of the International Coordinating Committee (ICC) of National Human Rights Institutions. "National institutions must do what they can to inform their governments and citizens of how the Convention can make societies just, equal and accessible for all."

The role of national human rights institutions to promote, protect and monitor the rights of people with disabilities is set out in Article 33 of the CRPD. The Asia Pacific Forum or APF developed a background paper on Article 33. The role of protecting the rights of the disabled falls not just on national institutions but also requires a partnership with people with disabilities who understand the social environment which underlies disability discrimination and disadvantage. Thus through collaborative partnerships and cross agency and cultural communication we can build a deeper understanding of disability issues and address the structural barriers that lie at the heart of discrimination. [i]

How can we prevent Torture?

Association for the Prevention of Torture focuses on these objectives for the prevention of torture and ill-treatment.

1. Transparency

2. Effective legal frameworks

3. Capacity building

The principle of transparency should be applied to closed, as well as to open institutions, where disabled persons live, as well as outside service delivery systems. An important aspect of torture is the act of legal incapacitation which restricts personal freedom and self-determination. Individual autonomy is important as is the entitlement to support when needed in order to ensure substantial equality in the exercising one's legal rights within a constitutional or human rights context. Legal capacity refers to an individual's status and authority within a given legal system. It encompasses both passive rights (such as ownership or inheritance of property) and active rights (such as the rights to conclude contracts, administer property, appear in court as a party or witness, or give or refuse consent to medical procedures). Capacity to act implies personal authority to exercise rights and responsibilities; without it, a person may have rights and responsibilities in name only, and decision-making authority can be transferred to another person or institution. Capacity to act presupposes the capacity to have rights.

The right of respect for integrity of the person is recognized in regional human rights treaties and may also be seen as a positive and more general expression of the right to be free from torture and cruel, inhuman or degrading treatment or punishment. This human right is the right "to protect both the dignity and the physical and mental integrity of the individual." It is also important to protect "free and informed consent of the person concerned, according to the procedures laid down by law."[ii] Any laws regarding free and informed consent would also have to comply with non-discrimination and equal recognition of legal capacity. The United Nations Human Rights documents do not appear to allow for any substantive regulation or limitation of the right, consistent with its elevation as an aspect of respect for integrity of the person. This right is non-derogable right guaranteed by international treaty. Non-derogable is used within a legal context to stipulate those rights specified in a treaty that nation states cannot violate under any circumstances. These differ from derogable rights. In the practice of international human rights law, any state can formally file a notice of derogation from a human rights treaty during a state of emergency. This is a public statement to the effect that they are no longer protecting the rights under particular clauses of the treaty in question. Britain did this in 2001, for instance, derogating from clauses in the European Convention on Human Rights, allowing them to implement certain anti-terrorism measures.

However, there are certain rights that are considered to be 'non-derogable,' meaning that states have no legal basis, even in a state of emergency, to refuse to honor these rights. The right to life and rights protecting against torture generally fall within this category in most international human rights treaties and as part of customary international law, although others can be included depending on the treaty in question. The provisions of international law prohibiting torture and cruel, inhuman or degrading treatment or punishment are among the most serious obligations placed on any state; the prohibition of torture in particular has the status of a peremptory norm of international law that can never be derogated and is imposed independent of whether a state is party to any particular treaty. The prohibition of torture and cruel, inhuman or degrading treatment or punishment, is understood broadly to protect against acts done in a public or private capacity. Cruel, inhuman, and degrading treatment or punishment, unlike torture, is not defined in international law, but similar preventive obligations apply, and these obligations also require eliminating conditions that facilitate torture or cruel, inhuman or degrading treatment or punishment.

What is Torture?

The CAT [iii] definition is the most widely applicable. It reads:

"...the term 'torture' means 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 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."
(Article I, United Nations Convention Against Torture, 1984)

""torture is defined as the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority to force another person to yield information, to make a confession, or for any other reason."
(World Medical Association, Declaration of Tokyo, 1975)

This can be broken down into the following elements:

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