The United Nations Committee against Torture has finally taken a position in response to the violations of Article 2 of the Convention Against Torture.
At the same time, the Working Group on Arbitrary Detention adopted deliberation no. 5 on the deprivation of liberty of migrants. These represent two great steps in protecting the human rights of migrants.
Article 2 of the Convention against Torture establishes that:
- Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
- No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
- An order from a superior officer or a public authority may not be invoked as a justification of torture.
The new document, known as General Comment no. 4, aims to help governments and states avoid violations of international human rights law. It also represents an added protection for migrants against torture and ill-treatment.
A list to avoid violations
The content of the new General Comment no. 4 is a list of the fundamental elements to avoid the breach of the principle of non-refoulement, which is a ban on expelling, returning or extraditing a person to another state where he or she could face torture.
The dual use of the General Comment lies in the fact that, while representing a useful tool for governments, it also provides an effective instrument for asylum seekers by assisting them in making their claims before national authorities, as clarified by Jens Modvig, chair of the committee.
Guarantees and vulnerabilities
Among other questions, the list asks states to keep in mind the implications of post-traumatic stress disorder (PTSD), which is common among victims of torture.
PTSD may affect the ability of a person to provide a consistent story on what he or she has faced in the origin country. Although the burden of proof belongs to the victim, who must provide clear evidence in support of their claim of torture, this duty can be assigned to the state if the person is not able to provide the requested documents.
Furthermore, the state has to provide guarantees to the victims, by assisting them medically, linguistically and legally. These guarantees are extremely important when dealing with vulnerable subjects.
The rise in migration flows has resulted in a humanitarian crisis in which migrants face the risk of being sent back to the place from where they desperately fled.
Deliberation no. 5
The UN Working Group on Arbitrary Detention, established in 1992 by the Commission on Human Rights, adopted in November 2017 a new deliberation on arbitrary detention of migrants.
The document established that “the prohibition of arbitrary detention is absolute, meaning that it is a non-derogable norm of customary international law, or jus cogens." This means that there are no exceptions to the rule, even in case of national emergency.
The working group highlights that any form of administrative detention or custody should be employed as last resort and for the shortest period, only if justified by a legitimate purpose.
It also addresses the situation of vulnerable migrants (as children, pregnant, elderly, etc.) by saying that in those cases detention must not take place.
The norms defined by the document apply to all states in all situations, even in case of sever migration flows.
A reminder for Italy and Europe
These updated documents are of great importance for Italy and Europe. In fact, they remind to all governments and politicians the importance to protect the human rights of migrants, one of the most vulnerable categories of people.
It is important to also recall that just last week a delegation from three human rights groups reported the inhuman conditions in which migrants were held in the Lampedusa hotspots.