Rehabilitation in Article 14 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

• Author: Nora Sveaass - Felice Gaer - Claudio Grossman
• Position: Nora Sveaass is Associate Professor at the Department of Psychology at the University of Oslo, former member of the Committee Against Torture and current member of the Subcommittee on Prevention of Torture, nora.sveaass@psykologi.uio.no; Felice Gaer is Director of the Jacob Blaustein Institute for the Advancement of Human Rights of the America ...
• Pages: 1-24

Rehabilitation in Article 14 of the Convention

Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment

N

ORA

S

VEAASS

, F

ELICE

G

AER

,

AND

C

LAUDIO

G

ROSSMAN

*

I. Introduction

Persons exposed to torture have suffered serious attacks on their lives,

relationships, health, and sense of dignity. The torture they experienced will

remain a part of them even if they manage to move ahead and work through

the pain. The destructive power of torture affects life on so many levels:

mind and body, values and relationships, and the capacity for work and

leisure. Providing opportunities to reconstruct lives after torture should be a

priority in the international effort to prevent and prohibit torture.

International recognition of the right to redress, including rehabilitation

for all victims of torture and other cruel, inhuman, or degrading treatment,

as provided in Article 14 of the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (CAT),

1

is an

important step in countering the negative effects of torture. Recognition of

this right will shed light on the many aspects of rehabilitation and the

different initiatives that States must undertake to comply with their

obligation under Article 14. As such, the Committee Against Torture

(Committee) developed General Comment 3 (GC 3) on Article 14, which

“clarifies that the right to redress under [CAT] extends both to victims of

torture and victims of . . . ‘ill-treatment.’”

2

This “reflects long-standing

* Nora Sveaass is Associate Professor at the Department of Psychology at the University of

Oslo, former member of the Committee Against Torture and current member of the

Subcommittee on Prevention of Torture, nora.sveaass@psykologi.uio.no; Felice Gaer is

Director of the Jacob Blaustein Institute for the Advancement of Human Rights of the America

Jewish Committee and current Vice-Chair of the Committee Against Torture, gaerf@ajc.org;

and Claudio Grossman is Professor of Law and Dean of American University Washington

College of Law (WCL) and the Raymond Gerald Scholar for International and Humanitarian

Law, and former chair of the Committee Against Torture, grossman@wcl.american.edu.

1. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment art. 14, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://

www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx [hereinafter CAT].

2. Felice Gaer, The Treatment of Torture Victims: What Are a Government’s Obligations? 8,

C

HATHAM

H

OUSE

(Jan. 21, 2013), https://www.chathamhouse.org/sites/files/chathamhouse/

public/Research/International%20Law/210113summary.pdf; Comm. Against Torture, Gen.

Comment No. 3: Implementation of Article 14 by States Parties, U.N. Doc. CAT/C/GC/3, at

¶ 1, (2012), available at http://www2.ohchr.org/english/bodies/cat/docs/GC/CAT-C-GC-

3_en.pdf [hereinafter GC 3].

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committee jurisprudence, which argues, inter alia, that ill-treatment as

outlined in [A]rticle 16 also violates [CAT] and requires redress.”

3

In

adopting the General Comment, the Committee constantly referenced the

United Nations 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

(Basic Principles), which “identify mechanisms, modalities, procedures and

methods for the implementation of existing legal obligations under

international human rights law and international humanitarian law . . .”

4

The Basic Principles establish five forms of redress for such violations:

“restitution, compensation, rehabilitation, satisfaction and guarantees of

non-repetition.”

5

Rehabilitation is defined in the Basic Principles as

including “medical and psychological care as well as legal and social

services.”

6

This definition of rehabilitation may sound like a medical term

with a narrow scope, but the Committee has interpreted it to include the

many aspects involved in the reconstruction of the lives of victims of torture

and not exclusively as a medical undertaking.

Studies show that there is a wide range of reactions following torture, and

not all victims of torture need rehabilitation in the form of special care or

treatment.

7

This underpins the importance of identifying individual victim’s

needs and claims. Furthermore, rehabilitation is not an action that is “done”

or “given to” someone but a series of measures that must be based on close

collaboration and planning between the person who is in need of such care

and the service provider. Giving voice to and respecting the decisions and

agency of torture survivors are vital components of a process of recovering

life and dignity. Failure to take victim participation into account in this

process not only violates important ethical principles but also risks

continued humiliation of victims of torture. The lack of specificity with

regard to rehabilitation and the lack of State engagement as to planning,

implementing, and evaluating rehabilitation programs has called for a more

in-depth approach to the obligation of States.

3. Gaer, supra note 2; see also Sonko v. Spain, Comm. Against Torture, U.N. Doc. CAT/C/

47/D/368/2008, ¶¶ 10.4, 10.8 (Feb. 20, 2012), available at http://www.worldcourts.com/cat/

eng/decisions/2011.11.25_Sonko_v_Spain.pdf; Keremedchiev v. Bulgaria, Comm. Against

Torture, U.N. Doc. CAT/C/41/D/257/2004 ¶¶ 3, 9.2, 9.3 (Nov. 21, 2008), available at http://

www.bayefsky.com/pdf/bulgaria_t5_cat_257_2004.pdf; Dzemajl v. Serbia & Montenegro,

Comm. Against Torture, U.N. Doc. CAT/C/29/D/161/2000 ¶ 9.6 (Nov. 21, 2002), available at

http://www.univie.ac.at/bimtor/dateien/cat_2002_dzemajl_vs_serbia.pdf.

4. G.A. Res. 60/147, pmbl., ¶ 7 (Dec. 16, 2005), available at http://www.ohchr.org/EN/

ProfessionalInterest/Pages/RemedyAndReparation.aspx.

5. Id. ¶ 18.

6. Id. ¶ 21.

7. Metin Basoglu, Prevention of Torture and Rehabilitation of Survivors – Review of the UN

Committee Against Torture Working Document on Article 14: Convention Against Torture and other

Cruel, Inhuman or Degrading Treatment or Punishment, M

ASS

T

RAUMA

, M

ENTAL

H

EALTH

&

H

UMAN

R

IGHTS

(July 29, 2011), https://metinbasoglu.wordpress.com/2011/07/29/200/.

THE YEAR IN REVIEW

AN ANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW