Wednesday, November 21, 2012

United Nations Committee against Torture Adopts New General Comment on Right to Redress

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

The expert committee tasked by 153 states parties to interpret and monitor the implementation of the UN Convention against Torture has adopted an authoritative interpretation of the content and scope of the right to redress for victims of torture and cruel, inhuman, or degrading treatment.
General Comment No. 3, issued last Friday by the UN Committee against Torture (logo at left), is the first interpretive statement by a UN human rights treaty body aimed at clarifying this relatively ambiguous area of international law. It draws from and consolidates decades of the Committee’s jurisprudence on the right to redress, including views that the Committee has articulated in its periodic reviews of states parties and in decisions rendered on individual complaints.
General Comments are considered subsidiary evidence of the content of international law, and they have been conferred considerable weight by some national courts. General Comment No. 3 thus represents a historic codification of the Committee’s understanding of the nature of the right to redress, one that makes a significant contribution to the international understanding of states’ obligations in this area.
While an exhaustive review of the significance of the Committee’s General Comment No. 3 is beyond the scope of this post, this review of some of its key provisions should demonstrate that the pronouncement represents a significant victory for victims of torture and cruel, inhuman, or degrading treatment (to which this post refers as "ill-treatment"). Indeed, the point of departure for the Committee, as reflected early on in the General Comment, is that
'the restoration of the dignity of the victim is the ultimate objective in the provision of redress.'
General Comment No. 3 reminds states of the wide-ranging legislative, institutional, and policy measures they must undertake in order to genuinely ensure that redress for victims of torture and ill-treatment is available, adequate, and effective. In doing so, it represents a significant addition to the body of international legal opinion on victims’ rights more broadly.
Article 14 of the 1948 Convention against Torture, which articulates the right to redress, reads:
'1. Each State party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.
'2. Nothing in this article shall affect any right of the victim or other person to compensation which may exist under national law.'
General Comment No. 3 elaborates the Committee’s understanding of this article of the Convention over the course of more than 10 pages of text. The following points are of particular importance:

Definition of “victim” (¶ 3)
The Committee stresses that it understands the term “victim” as constituting all individuals who suffer harm as a result of conduct that constitutes a violation of the Convention, including immediate family members and dependents of victims of torture and ill-treatment. This articulation of family members of victims as victims in their own right is significant, and reflects past Committee practice.

Scope of conduct giving rise to victim status (¶ 1)
The Committee explains that the right to redress under the Convention extends not only to victims of torture but also to victims of ill-treatment. While the text of article 14 only refers to victims of “torture,” as the Committee stated in 2007 in its General Comment No. 2 on prevention of torture, the Committee understands the obligations to prevent torture and to prevent ill-treatment to be
'indivisible, interdependent and interrelated.'

Scope of states’ obligations with respect to victims who suffered harm not attributable to the state party (¶ 22)
Particularly significantly, the Committee explains that states parties to the Convention are obliged to ensure that all victims of torture and ill-treatment – not just those who were subjected to violations within the territory of the State party or by its agents – have an enforceable right to redress.
The Committee notes that it has commended states that provide civil remedies for victims subjected to violations of the Convention outside their territory, in an allusion to the U.S. Alien Tort Claims Act, without explicitly calling on all states parties to enact such legislation.
This elaboration of the scope of the right to redress is particularly important, as it makes it clear that refugees, asylum-seekers, stateless persons, and individuals tortured in states not party to the Convention against Torture are nevertheless entitled to protection and rights under the Convention once they enter a state party.

Dual nature of the right to redress (¶ 5)
The General Comment makes clear from the outset that the right to redress consists of both a:
► Procedural component – the legal and institutional mechanisms that enable victims to bring claims for redress to the attention of an impartial adjudicator and obtain a determination on their claims; and
► Substantive component – the actual relief provided by the state in response to the claim.

Substantive scope of the right to redress (¶¶ 6-18)
In General Comment No. 3, the Committee endorses and adopts the five-part understanding of the scope of the right to redress (restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition) articulated in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which were drafted by Dutch jurist Theo van Boven (left) and adopted by the UN General Assembly in 2005. (photo credit)
The Basic Principles significantly advanced the international understanding of the right to redress, but they are not a binding instrument of international law.
In 2007, then-UN Special Rapporteur on Torture Manfred Nowak (left) prominently called for article 14 of Convention to be interpreted in light of the Basic Principles. (photo credit) Responding to this call, the General Comment represents a particularly significant endorsement of the approach of the Basic Principles. It also makes it clear that the Committee understands the concept of redress to be broader in scope than compensation and rehabilitation alone.
The text of the General Comment also elaborates on the meaning of the various elements of redress, adding particular clarity to the concept of rehabilitation for victims of torture and ill-treatment.

Recognition of the right to redress as an individual right (¶ 20)
The Committee emphasizes that the right to redress is an individual right, and that states should ensure that all victims have access to judicial remedies. While the Committee does not prohibit administrative and collective reparations programs, it emphasizes that even where such programs are established, these cannot have the effect of extinguishing an individual victim’s right to redress.

Interconnected nature of states’ obligations under the Convention
The Committee makes clear throughout the General Comment that states’ obligations under the Convention are highly interconnected, and that in order to satisfy the obligation to ensure that victims of torture obtain redress, states must also satisfy obligations set out in other articles of the Convention.
This includes the obligation under article 12 for states to undertake prompt, effective, and impartial investigations whenever there are reasonable grounds to believe that an act of torture has been committed in any territory under its jurisdiction and the obligation under article 13 for states to establish impartial and effective mechanisms to receive complaints of torture.

Nondiscrimination and the right to redress (¶¶ 32-34)
Over the course of the past decade, the Committee against Torture has frequently demonstrated a sophisticated understanding of the particular challenges that discrimination against women poses to the fulfillment of states parties’ obligations under the Convention.
For instance, the Committee’s General Comment No. 2 elaborates in part on the circumstances in which gender-based violence – whether perpetrated by state agents or by private actors – constitutes a violation of the Convention.
In General Comment No. 3, the Committee returns to the subject of the need for states to ensure that mechanisms are in place to allow victims to obtain redress for torture that are gender-sensitive and do not discriminate against women; for example, by affording their testimony in court less weight than that of men.
The General Comment also devotes significant attention to the need for states to ensure that victims who are members of other marginalized or vulnerable groups are not denied access to justice or mechanisms for seeking and obtaining redress on a discriminatory basis, and also stresses that states must ensure that procedures to determine redress do not pose obstacles to members of vulnerable groups that could prevent or discourage them from pursuing their claims.

Obstacles to the right to redress
The Committee articulates a number of factors that can impede the ability of victims of torture to obtain redress, and reminds states parties of their obligation to ensure that these obstacles do not impede victims’ ability to obtain redress. They include:
► Amnesties for torture or ill-treatment;
► Statutes of limitations for the offenses of torture or ill-treatment;
► Grants of immunity for torture or ill-treatment in violation of international law, as well as de facto impunity for torture or ill-treatment;
► Failure by a state party to execute foreign, regional or international court judgments awarding redress to victims of torture;
► Failure by a state party to ensure the protection of victims, their families, and witnesses from intimidation and retaliation for bringing claims for redress; and
► Reservations by states parties that limit the application of article 14, which the Committee deems incompatible with the object and purpose of the Convention.
The Committee first initiated the process of elaborating General Comment No. 3 at its November 2009 session (the Committee convenes in Geneva for 4 weeks twice a year).
 In June 2011, it made a draft of the General Comment available on its website and invited comments from stakeholders, including states parties, nongovernmental organizations, and national human rights institutions, and in November 2011, it convened a public discussion with stakeholders on the draft.
The Committee’s General Comment No. 3, in consolidating the Committee’s disparate jurisprudence on the subject of the right to redress into a single document and provoking introspection on the part of stakeholders to the Convention on the scope of that right, has already played a significant role in the evolution of the right to redress for victims. With its publication, General Comment No. 3 will not only provide a source of reference for the Committee in the years ahead, but will also serve as a positive influence on the practice of states parties to the Convention and domestic, regional, and international bodies and courts as they examine the question of how best to articulate and satisfy their obligations to victims of human rights abuse.

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