Scribd Logo
Upload

Welcome to Scribd!

  • 6 views

    Istanbul Protocol-Torture

    Uploaded by

    Gerlyn Gamolo

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content

    You might also like

    Istanbul Protocol-Torture

    Uploaded by

    Gerlyn Gamolo
    6 views4 pages

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    6 views4 pages

    Istanbul Protocol-Torture

    Uploaded by

    Gerlyn Gamolo

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 4
    The Law on Torture and the Istanbul Protocol” Jute Ado 8. Azoa!* Good morning everyone. We would like to thank the College of Melicine f the Univesity of the Philippines, Manila and the Inemational Rehabilitation Counal for Torture Victns (Denmark) for sponsoring tht trining workshop co tlk about and popularize the Inanbl Pots, We Would like to thank the officers and onganives, expecially Dean Alberto Rowafor inviting us. We fel i i most timely that ve are having ths trining workshop this month considering that we are talking about one of the mast deate and controversial ues in oman ight, ‘Today, we shall be discussing one of the most potent human rights document: The Manual on Effective Investigation and Documentation of ‘Torture and Other Crue, Inhuman or Degrading Treatment or Punishment, ‘or what is commonly called 2 the “Istanbul Protocol."* % “This Keynote Adve: was delivered before the Univenisy of dhe Phlippnes allege of Medicine Seminar on IRCT-SMU Training. of User. (TOU) “Prevention shrough Documenttion” on Js. 19,” 3008, at the Meso Managemene and Lesdenhip Development Cinter (MMLDC) Foundation, In, Semolog Highway, Anspoo Cy. #7 Asocine Janice, Supreme Court of the Philppine. ‘62 LLB., Ateneo de Manila Univerity School of Le, cam ln 's9 AB, Ateneo de Manila Universi, sath mes. jice Arcam was edtorinhief of Volume 11 ofthe Ate Lat Journal. é ‘The author's previous works inthe Jal include: The Supreme Court ond Pac Inca Lays iggzie, 46 ATENIO TJ. 24 (401); The Wit of Ampar: A Reniy Exfoce Fanlanentel Rights, 37 ATENEO LJ. 23 (993), The Hutoy of ‘Teaching bert Law in the Pipi, yo ATENEO L). 45 (1986); The Vina Sis Coneton nex: ried Nations Connon on Conta fr Intestinal Sole of Godt, 28 ATENEO L}. 30 {1963}; The Reant Amend! te Piping Niioaion f Retail Tide La 38 ATENEO}. 24 (1970: The Dodie of ering the Val of Coarse Feo: Resow and Anal of Phe Supreme Court Dons 18 ATEWOL}. 9 (agp: The Leal Efcs of Prague ales or Disbiy 11 ‘ArENEOLJ.246 (i963) Gite as 52 ATENEO LJ, 723 (2007) 1. United Nations High Commisioner for Human Rights, btanbul Protocol, ‘Manca on Effecve Investigation and Docimentation of Tortre and Other Cruel, Inhuman oe Degrading Trestmene or Punishment, U.N. Doe HR/P/PT/S. UN. Siles No. EorXIVa (1999) [herein lstanbul Protocol 2007] ‘THE LAW ON TORTURE 23 Te an Ps i wie Erwan dln tepring the methods of invetigion and documentation of Brave Ie intended fo seve as 2 tof Ivemaoa guidelines fr the ssestrent of pesons wh allege torte and dexter, fr inven of ese of alleged ous, and fr seporing such ining the juicy ind anyother ivestpaive body ‘Torture. That is the subject matter of the Istanbul Protocol. Ifwe are to {ally grasp the insights ofthe guidelines contained inthe Protocol, we should first understand and reflect on the subject of torture, ‘According to the United Nations Convention against Torture “{Mlomsre™ means any act by which severe pain or suing, whether physical or mental is inentionaly dicted on 2 peson for such purposes 3 btrning fom him or a third peson information or 2 confession, punishing him for an act he or 3 third peron his commited or is suspected [St having commited, oF intimidating or coercing bim ors third penn for fny rexton based on discrimination of any kind, when such pain ot suffering is, infcted by or at the instigation of or with the consent of Sequiesence of a public official or other person acting in an offical capacity. It doesnot include pain or sulfering arising only fom, inherent or incidental to awful nets.) Accondingly, torte i the intention inition of severe pain or suflering, ‘whether phiysial ex mental, by of on behalf of a public oficial (such asthe police or security forces) of with their consent. The cleubted abuse ofan Sndividoal’s physical and psychological integrity, in a way that is designed Specifically to undermine the peson's dignity, is homble in any Ssrcumstance, But when cis act is perpetrated by or on behalf ofa pubic oficial Gomeone with the very reponsbiity to protecx an individal’s Fight) the crime becomes al he mote reprehensible. Torue i, theefore, 2 esiminal act perpetrated or condoned by those official who are sponsible for uphelding and enforcing the low.+ ‘The central characteristic of the legal concept of torture js tha it is an intrinsic pare of the narrative of official behavior. It involves sate agents, public officials, or other persons acting in an oficial capacity. ice of torture is a powerful institutional expesion of state and social contol. The official use of torture, even if denied in 1 Convention Again Torture and Other Cros), Inbumen and Degading ‘Treatment of Punishment, G.A. Res, 39/46, 1465 UN-TS. 85 (Dee. 1984) {hereinster Convention Against Tore) 3 Mann. 44 Redvers Trust forthe Isanbul Protocol Implementation Project, A Practical Guide to the Istanbul Protocol eo Lawyers in Uginds, 1 af hup// ww redees ong publications/Natonal-adaptation-Ugand legal rmsteral pd (ast accewed Mer. 15,208), 74 ATENEO LAW JOURNAL vou. sa:722 theory but used im practice, functionally means that the state uses these powers (as citical components of security) to intimidate or sometimes even. climinate its enemies or indeed, non-enemies. When torture becomes routine practice in governance, the state does not represent the moral order of the community, but instead is the repository of authorized violence and ‘impermissible coercion, “Torture may cause physical injury such s broken bones and wounds that heal slowly, or can leave no physical scars. Offen torture will lead to ‘eychologial scars such as an inabiiy to trust, and a lifculty to relax in fase the torture happens again, even in a safe environment. Torture survivors ‘may experience difficulty in getting co sleep or may wake up carly, sometimes shouting or with nightmares. They may have difficulties with ‘memory and concentration, experience istbility, persistent feelings of fear and anxiety, depression, and/or an inability to enjoy any aspect of life Sometimes these symptoms mest the diagnostic criteria for post-traumatic stres disorder (PTSD) and/or major depression. Physical and psychological scars can ast lifetime. To someone who has no experience of torture, these symptoms might appear excessive or illogical, but they can be a normal response to sama. ‘The word “torture” will to most people, invoke images of some of the ‘most horsfc forms of physical and psychological suffering — the pulling out ‘of fingemails, eleczic shocks, mock executions, being forced co watch the torture of parents or children, rape. The vaciety and severity of the methods of torture and cruel, inhuman, of degrading treatment or punishment may sienpy defy belief Torre is a ceaive way of clicking involuntary information. Hence ther tno exhaustive tof ac that conte trre; oreres continue iver new way rata indi And there no iit on who en be veimied suv of ote come fom ll vals of le and fom Sher comc nnd the wo ven chen my be wi, Bat mow Begun, torre univer. ie clini mipec, victims Shciminaton en the grounds of politcal ble, ct, etic, selon, rode or onal Men ‘Torture isa crude but effective way of achieving power or information through brute farce. Machiavelli ance wrote that the ends justify any ‘means wsed — but we must remember that when power is maintained by practices of torture and ill treatment, the claim to state legitimacy is ‘undermined, How so? Because the democratic consensus is that the only purpose by which govemments exist is for the well being of the society. “The care of human life and happiness, and not their destruction, is the fist and only 2007] ‘THE LAW ON TORTURE mas object of good government.” And because torture involves state agents, and the individual is obviously powerless against official, it has become a general concern for humanity. ‘As the Istanbul Protocol declares in its introductory section, “Torture is 2 profound concem of the word community. Is purpore i 10 destroy delibersely not only the physical and emotional well-being of individuals bac abo, in some insances, the dignity and will of entice communities, It concerns all member of the human fmiy becaure i impugns the very meaning of cur exitence and our hopes fr a brighter farre Torture is among the most despicable acts perpetrated by sate agents Other dubious and deplorable practices used by the sate o intimidate or sometimes even eininat its enemies or non-enemies are the fllowing® (1) extnjuicial executions; (2) forced disappearances, (3) imprisonment of prisoners of conscience; (4) unfit wil; and (3) detention wahoue charge or val? ‘Modern human rights law prohibits torture, Iti generally recognized today that modém human rights law evolved in response to the atrocities committed during the Second World War and to the effort to provide a ‘mora as well a judicial reckoning and understanding of the legacy of that conflict. The creation of the United Nations Charter in 1045 represented an effort to specifically prescribe certain obligations on states. These revolutionary obligations related to the matters of aggresion, peace and security, and fundamental human rights that implicitly recognized that the idea of sate and the idea of sovereignty are not unlimited — that respect for the individual human being isa global concern. Further developments, especially the Universal Declaration of Haman Righs,? recognized rights for the individual that might be exercised against 2 sovereign state, another milestone achievement. 5 16 THE WRITINGS OF THOMAS JEFFERSON 359 (Andrew A. Lipscomb & Albert Ellery Bergh, ed. 1903-04) 5 6. Istanbul Protocol, supe note 1,2 (citing V. Ieoping, Tite of soon of pola ote: Commentary, 21 The Journal of Ambulatory Car Management $= 19 (998) 7 See, Facts and Figures: The work of Amnesty Intematonal January to December 2002, at _htsp//archive est orglibrary/Index/ENGPOL 1000 $2003 opendafENG-2EU (tt aceed Feb. 2 2008) 8. The Charter of the United Nations was signed at the United Nations Conference on Intemational Organization in San Francisco, California, United States on June 26,1945, 9. Universal Decltion of Homan Right, G.A. Ret 2178, UN. GOAR, 3d Sess, 15 plen. Mig, UN. Doe. A/$i0 (Dec. 10,1948). 76 ATENEO LAW JOURNAL, (vor. s2:722, ‘The 1949 Geneva Conventions!® and related protocols extended these developments in th field of humanitarian law. Furthermore, the growth of, national human rights law reflect a strong and compelling desire on the part of the international community to. ground che perspectives and ‘operations envisioned in the Universal Declaration of Human Rights in actual practice ‘The most important United Nations’ (U.N) teary for contolling, regulating, and prohibiting torture and reed practices is the Convention Against Tore and Other Covel, Inhuman or Degrading Treatment or Punishment" The drifing of ths Convention was commenced by the UN. Commision on Human Righs in 1978, and the document was adopted by the General Asserbly in 184. In its Gal frm, the Convention ‘gains’ Torre was based substantially, but not exclusively, on che Declaration Against Torture. The Convention Against Torture stipulates plc in Aricle 2 that, counrics under the Convention are obliged to take effective legdative,adnininaive, judicial and other mesures 10 prevent acs of torture.” This paricusr provision formally established the Speci legal obligation ofthe state to prevent torture. ‘Moder constitstion-making has tended to draw normative inspiration from the Universal Declaration of Human Rights and allied conventions that protect and promote human-rights. Many human rights provisions have found expression in post-war constnations of newly decolonized state Our very own 1987 Constitution is inspired by the Univeral Declaration of Human Rights, and more so, by our experience dusing che dark days of Martial Law. Our Constitution is cxcualy replete with human rights precection language, incfuding a textual prohibition of torture.” 10. Se, Geneva Convention for the Ameliontion of the Conditions of the ‘Wounded and Sick in Armed Fores inthe Field, 6 US.T. 3114, 75 UN-TS. 31 (Aug. 12,1949 Geneva Convention forthe Amelioration ofthe Condiion ‘of Wounded, Sick and Shipwrecked) Members of Armed Forces at Sen, 6 UST. sar7, 75 UNS. 85 (Aug. 12 1949); Geneve Convention Relative 10 the Treanent of Psoves of Wat, 6 UST. 3316, 75 UNTS. 135 (Aug. 12, 2940): Geneve Convention Relative to the Protection of Civilian Perons in ‘Time of War, 6 UST. 3516, 75 UN-TS. 287 (Aug.121995). 11, Convention Again Torture, spre note 2. fa, Mana, 13, PHL, CONST art 3,§ 12,92 No torture, fore, violence, threat, intimidation, of any other means which vitte che fee wil shall be used against (any penon wonder imesigation). Sscret detention place, sobary, incommonicado, ot cer similar fms of detention ae prohibited. (emphasis supplied) 2007) ‘THE LAW ON TORTURE 7 Although international human rights and international humanitarian law consistently prohibic corture under any circumstance, torture and il- lweament are practiced in more than half of the worll's counties. The striking disparity berween the absolute prohibition of torure and its prevalence in the world today demonstrate the need for countries and their governments to identify and implement effective measures (0 protect individuals fcom torere and ill-teatment.¢ Aside fiom addressing a most presing issue, the Istanbul Protocol should also give us reasons for rellection. Although it was adopted as an official United Nations document in 1999, the Istanbul Protocol began 26 2 work by non-governmental organizations. It was initiated by individual members of the civil society. Ifyou will look atthe drafters of this document, you will see that many ofthem are members ofthe civil society.4® The Istanbul Protocol began 2¢ a manual, a simple document. fe was initiated and coordinated by the Physicians for Human Rights in the United Saates of America (PHR-USA), and as their mame implies, they are doctors snd medical professionals who focused and devoted their time co helping alleviate the human rights condition of their country. Many people in the ‘world repect the United States for its liberal approach to government, but even there, human rights abuses have been found present. Recently, che United States Supreme Court has been besieged by habecs coms petitions cegarding the dewinees at Guantanamo Hay. Again, we must realize that the problem of human rights abuse is global, and we are all part of the solucion. As the physicians realized, we have to be par ofthe solution if we do not want the problem to remain. The PHR-USA was joined by the Action for Torture Survivors and the Human Rights Foundation of Turkey (HRFT), and over three years, over 40 other organizations joined inthe laudable fay, including the International Rehabilitation Counell for Torture Victims (ICR) and che World Medical sociation (WMA). ‘The Furopean Union took notice of ths growing collective action ard hhelped fund the “Istanbul Protacol Implementation Projece” becween March 2903 and March 2005. It successfilly laanched the projeet in five countries in 2006; namely Georgia, Mexico, Morocco, Sti Lanka, and Ugands ‘The Istanbul Protocol has been an important instrument in the fight against tonure, The effective investigation and documentation of torture 14, See, Facts and Figures. The work of Amnesty Intemational January co December 2002, et hp//archive amneity.

    You might also like