TORTURE, POLICE VIOLENCE AND MINORITY/INDIGENOUS RIGHTS DEFENDERS
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
1. For the purposes of this Convention, 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, or 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
1. If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.
2. Taking into account any observations which may have been submitted by the State Party concerned, as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.
3. If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory.
4. After examining the findings of its member or members submitted in accordance with paragraph 2 of this article, the Commission shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.
5. All the proceedings of the Committee referred to in paragraphs I to 4 of th is article s hall be con fidential , and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24.
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. 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.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Besim Osmani v Serbia (CAT)
Damian Gallardo Martinez et al v Mexico (CAT)
Danilo Dimitrijevic v Serbia and Montenegro (CAT)
Jovica Dimitrov v Serbia and Montenegro (CAT)
The definition of torture in Article 1 of the UN Convention Against Torture (UN CAT) focuses attention on prohibited acts carried out for ‘any reason based on discrimination of any kind’.362 The Committee Against Torture (CAT) has underlined the importance of this aspect of its mandate in its General Comment 2: ‘The protection of certain minority or marginalized individuals or populations especially at risk of torture is a part of the obligation to prevent torture or ill-treatment’.363 As a former CAT member noted, GC 2 ‘specifically highlights the broad range of “minority or marginalized individuals or populations especially at risk of torture”, reflecting the Committee’s own past findings.’364
Thus, CAT has expressed consistent concern as to torture by the police of members of minority groups. It has urged States Parties to ‘increase…efforts to combat police ill-treatment of minorities’.365 It has also noted that in order to determine whether there are substantial grounds for believing that a person would be in danger of being subjected to torture if deported, the existence in the State concerned of a consistent pattern of ‘harassment and violence against minority groups’ is an important indicator.366 CAT has urged States parties to establish human rights offices within police forces, and units of officers specifically trained to handle cases of violence against ‘religious, national or other minorities and other marginalized or vulnerable groups.’367 It has spoken also of the importance of minority rights in the provision of redress. Its GC 3 notes that ‘[c]ulturally sensitive collective reparation measures shall be available for groups with shared identity, such as minority groups, Indigenous groups, and others.’368
The concluding observations of CAT can and do raise minority and Indigenous rights issues. In a recent 2024 session, the Committee queried the definition of torture in the domestic legislation of Honduras, which limited aggravating circumstances based on the identity of victims to certain groups of persons and did not take into account others, including ‘Indigenous persons and other national or ethnic minorities’.369 It stated in relation to Azerbaijan: ‘The Committee is concerned about the effect that discriminatory statements made by high-level officials and disseminated in both online and offline media may have in creating an environment that greatly increases the likelihood of the commission of violence against persons of Armenian national or ethnic origin and other minority groups.’370 The Committee expressed concern about reports in Costa Rica ‘documenting harassment and attacks against the lives and physical integrity of Indigenous persons, human rights defenders and environmental activists during the period under review’.371 With regard to Colombia, it also expressed ‘serious concern at the numerous murders and attacks, threats, surveillance and other acts of intimidation suffered by human rights defenders, social, Indigenous and Afro-Colombian leaders and journalists and the scant progress made in carrying out effective investigations’.372 In concluding observations to Ethiopia, CAT discussed extensive violations in the regions of Tigray, Amhara and Afar such as summary executions, attacks on civilian populations, disappearances and torture, that are ‘ethnically motivated’.373
The Committee against Torture has focussed also on police profiling, brutality and killings of members of minority groups. In concluding observations to the United States, CAT stated its concern about ‘the numerous reports of police brutality and excessive use of force by law enforcement officials, in particular against persons belonging to certain racial and ethnic groups’.374 It expressed extreme concern as to ‘frequent and recurrent shootings or fatal pursuits by the police of unarmed black individuals’.375 It has raised similar issues in diverse States Parties, such as ‘police brutality against detained persons and…allegations of racial profiling during security operations’ in Cabo Verde;376 ‘discrimination on the basis of racial profiling and the ill-treatment and violent intrusion into the homes of persons of African descent and migrants from other Latin American countries by the security forces’ in Argentina;377 and how police ‘continue to target racial minorities during “stop-and-search”, leading to degrading treatment’ in the Netherlands.378
This is reflected also in CAT jurisprudence. In Danilo Dimitrijevic v Serbia and Montenegro (2005),379 the Roma complainant in police custody was locked into an office where ‘an unknown man in civilian clothes entered the office, ordered him to strip to his underwear, handcuffed him to a metal bar attached to a wall and proceeded to beat him with a police club for approximately one hour’.380 The complainant submitted that the allegations of violations of the Convention ‘should be interpreted against a backdrop of systematic police brutality to which the Roma and others in the State party are subjected’.381 The violation of UN CAT was upheld, although the decision did not pronounce on the systematic aspect of police treatment of Roma. Similarly, in Jovica Dimitrov v Serbia and Montenegro (2005),382 the author of Roma origin was in police custody where an arresting officer ‘struck the complainant repeatedly with a baseball bat and a steel cable’.383 The complainant also submitted that the allegations of violations of the Convention ‘should be interpreted against a backdrop of systematic police brutality to which the Roma and others in the State party are subjected’. The Committee found a violation but did not refer to systematic aspects. However, we may note that UN CAT provides a separate mechanism in its Article 20(1) whereby CAT may consider ‘reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party’.384
In Besim Osmani v Serbia (2009),385 CAT expressly recognised the link between torture and the vulnerability of the Roma as a minority group. The facts related to the demolition of the “Antena” Roma settlement in Belgrade which had been there since 1962, in which there was ill-treatment of the complainant by police officials in the course of the execution of the eviction order. The complainant’s submission argued:
‘The complainant’s association with a minority group historically subjected to discrimination and prejudice renders the victim more vulnerable to ill-treatment for the purposes of article 16, paragraph 1, particularly where, as in the Republic of Serbia, law enforcement bodies have consistently failed to address systematic patterns of violence and discrimination against Roma. He suggests that a “given level of physical abuse is more likely to constitute ‘degrading or inhuman treatment or punishment’ when motivated by racial animus and/or coupled with racial epithets”.’386
The Committee pronounced that ‘the infliction of physical and mental suffering aggravated by the complainant’s particular vulnerability, due to his Roma ethnic origin and unavoidable association with a minority historically subjected to discrimination and prejudice, reaches the threshold of cruel, inhuman or degrading treatment or punishment’.387 Here, the minority status of the complainant clearly informed the determination of a violation of UN CAT.
CAT has also protected Indigenous peoples in its Article 2 caselaw. In an important decision in Damian Gallardo Martinez et al v Mexico (2022),388 the principal complainant was a member of the Indigenous Ayuujk people in the state of Oaxaca who was a teacher and defender of Indigenous peoples’ rights and the right to education. He was arrested and tortured for approximately 30 hours in a secret detention centre, ‘beaten so that he would divulge information about other people involved in the education rights movement’.389 In upholding a violation of Article 2 UN CAT in which States Parties are required to prevent acts of torture in its jurisdiction, the Committee called for ‘full reparation, including fair and adequate compensation, to the complainants, and provide as full a rehabilitation as possible to Mr. Gallardo Martinez, ensuring that it is respectful of his worldview as a member of the Ayuujk Indigenous people’.390 It included also the requirement that the decision be disseminated ‘in a widely read newspaper in the state of Oaxaca.’ Finally, CAT called for the ‘cessation of the criminalization of the defence of Indigenous peoples’ rights’, citing a report of the UN Special Rapporteur on Indigenous Peoples.391 This is in line with the growing concern in relation to the protection of Indigenous human rights defenders exhibited in its State reporting mechanism.392
362 Felice Gaer, ‘Opening Remarks: General Comment No. 2’ 11(2) (2008) City University of New York Law Review 187-200, at 194.
363 CAT, General Comment 2 ‘Implementation of Article 2 by States Parties’ UN Doc. CAT/C/GC/2 (2008) paras 1 and 21. See also para 24.
364 Gaer, supra n 362.
365 Ronagh McQuigg, ‘How Effective is the United Nations Committee Against Torture?’ (2011) 22(3) European Journal of International Law 813-828, at 823, citing UN Doc. A/56/44 (2001) paras 113-114.
366 CAT, General Comment 4 ‘Implementation of Article 3 of the Convention in the context of Article 22’ UN Doc. CAT/C/GC/4 (2018) para 43.
367 CAT, General Comment 3 ‘Implementation of Article 14 by States Parties’ UN Doc. CAT/C/GC/3 (2012) para 35.
368 Ibid para 32.
369 UN Doc. CAT/C/HND/CO/3 (2024) para 8.
370 UN Doc. CAT/C/AZE/CO/5 (2024) para 24. Note that this issue is also the subject of an application under Article 22 ICERD before the International Court of Justice in Armenia v Azerbaijan. See further <https://www.icj-cij.org/case/180>
371 UN Doc. CAT/C/CRI/CO/3 (2023) para 38.
372 UN Doc. CAT/C/COL/CO/6 (2023) para 36.
373 UN Doc. CAT/C/ETH/CO/2 (2023) para 14.
374 UN Doc. CAT/C/USA/CO/3-5 (2014) para 26.
375 Ibid.
376 UN Doc. CAT/C/CPV/CO/1 (2017) para 20.
377 UN Doc. CAT/C/ARG/CO/5-6 (2017) para 35.
378 UN Doc. CAT/C/NLD/CO/7 (2017) para 44.
379 UN Doc. CAT/C/35/D/172/2000 (2005).
380 Ibid para 2.1.
381 Ibid para 3.2.
382 UN Doc. CAT/C/34/D/171/2000 (2005).
383 Ibid para 2.1.
384 For example, under Article 20(1), CAT has concluded that ‘torture was being systematically practised in the territory of Egypt.’ See UN Doc. A/72/44 (2016-17) paras 60 and 67-70.
385 UN Doc. CAT/C/42/D/261/2005 (2009).
386 Ibid para 3.3.
387 Ibid para 10.4.
388 UN Doc. CAT/C/72/D/992/2020 (2022).
389 Ibid para 2.3.
390 Ibid para 9(c).
391 Ibid para 9(e).
392 See for example OHCHR, ‘In Dialogue with Costa Rica, Experts of the Committee against Torture Praise the State’s Legal and Institutional Safeguards against Torture, Ask about Prison Overcrowding and Attacks on Indigenous Human Rights Defenders’ 3 November 2023 <https://www.ohchr.org/en/news/2023/11/dialogue-costa-rica-experts-committee-against-torture-praise-states-legal-and> Claude Heller, CAT Chair and Country Co-Rapporteur, noted that it was important that Costa Rica acknowledged the problems it faced, ‘particularly regarding indigenous human rights defenders’.
