The human rights organizations of the Palestinian National Authority (PNA) have been invited on several occasions to accede to international conventions. While those organizations were blaming the PNA of reluctance in not acceding to the Convention against Torture and Other forms of Cruel, Inhuman or Degrading Treatment or Punishment in addition to its Two Optional Protocols, considering this accession will result in a definite positive impact on the human rights status in Palestine.
On May 14th of 2013, President Mahmoud Abbas “Abu Mazen” issued a decision emphasizing that all entities related to arrest, detention and interrogation should significantly abide to the articles of the Palestinian Basic Law and other laws which prohibit all forms of torture, degrading treatment and any behavior that affects the human dignity. Besides, assuring the respect for human rights conventions, charters and declarations, based on the report of the Independent Commission for Human Rights (ICHR annual report no. 18 for 2013), this decision represented a kind of support for human rights movement in Palestine and rewarding its effective efforts towards respecting and defending human rights.
Palestine’s accession to fifteen international conventions and foundations including the Convention against Torture on April 1st 2014, doesn’t only represent a reward to the human rights’ movement efforts, reports, demands and mechanisms; but also, a reaction by the Palestinian leaders in response to the occupation’s failure and unwilling to abide by its obligations to peace process. It is worth noting that accession to such conventions and treaties without reservation is considered as an achievement and a good chance for human rights activists. However, this accession hasn’t put an end to the violations since the reports issued by human rights organizations clarified that no genuine changes have occurred on the ground. Citizens haven’t recognized any difference between the two phases (pre- and post- accession) to the conventions. (Annual report for ICHR no. 21 for 2016).
Prohibiting Torture at International Level
It is worth noting that Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights stipulate the prevention of torture and other forms of ill-treatment. Also, Article 7 of the Rome Statute of the International Criminal Court (ICC) also prohibits torture and considered it as a crime against humanity if committed as part of a broader attack targeting any group of civilians with prior knowledge of the attack. Furthermore, Article 8 of the Rome Statute states that torture and other forms of ill-treatment constitute war crimes when committed as part of a plan, public policy or large-scale campaign to commit such crimes. When the crime of torture or ill-treatment is committed in the context of non-international armed conflicts, it would constitute a breach of Article 3 common to the four Geneva Conventions of 1949. Torture and ill-treatment also constitute grave breaches of the Geneva Convention of 12 August 1949, as defined in Article 147 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. Violations of the Geneva Convention represent war crimes according to the provisions of Article 8 of the Rome Statute of the International Criminal Court. (Society for the Prevention of Torture, 2009).
Definitely, torture is also prohibited by the international community based on a UN resolution adopted by the UN General Assembly in its Resolution No. 52/25 of 12 December 1997. This resolution aimed at the total elimination of torture and the effective functioning of the Convention against Torture and Other cruel, cruel, inhuman or Degrading Treatment or Punishment adopted by the General Assembly of the United Nations. Torture is considered a crime under international law and was totally prohibited and could not be justified under any circumstances under all relevant international instruments. The prohibition of torture is a part of customary international law and is binding on all members of the international community, regardless of whether the State has or not ratified treaties that expressly prohibit torture. (Convention against Torture, 1984).
Considering the principle of prohibition as a compulsory rule comes in line with international rules on the non-Applicability of Statutory Limitations to war crimes and crimes against humanity. It stipulates that all the rules in the International Convention or customary law, which is contrary to the principle of non-prescription, is void, as this principle is another factor in the fight against impunity and irresponsible wrongdoers of physical violations. To achieve basic human dignity and value, the principle of prohibition is a fundamental pillar of a procedural rule order; the rule of universal jurisdiction which represented the complementarity of internal justice and international justice on the one hand, and the movement of wrongdoers of the crime of torture on the other hand. (Ali 2006).
Formulation of the National Commission against Torture
Some people may wonder about the next steps following Palestine’s accession to Convention against Torture and Other cruel, cruel, inhuman or Degrading Treatment or Punishment. Definitely, there will be ideas and creative suggestions arising when this question is addressed by experts or individuals interested in the issue. Hence, I would like to affirm that formulating a national commission against torture should be a priority, based on the Optional Protocol Annexed to Convention against Torture of 2002. It is not only satisfying in terms of being the best solution to ban torture and victims’ redress, but also to assure that the Palestinian political system is moving steps forward for the respect of dignity for citizens, and enhancing human rights law to be in a good status.
Establishing a national commission against torture indicates that the Convention against Torture will represent an essential part of the applied Palestinian legislations, and the harmony between Palestinian legislations with related laws (Articles 13 and 16 of the Palestinian amended Basic Law of 2003). Palestinian legislators have a done great job in criminalizing torture by law, however, issuing a law against corruption is significant. But the most important thing is represented in preventing torture in practices, and to disseminate anti-torture culture.
Additionally, the formulation of a national commission against Torture is also the culmination of the efforts of the Government and of the human rights institutions and it will also unify formal and civil efforts to eliminate this phenomenon as well as increase cooperation, joint action and complementarity in performance. The commission will not only benefit the activities and conferences, or the production of studies and research, but also protect the dignity of the citizen, and to conduct visits for the centers of correction, rehabilitation, detention and arrest. In addition to have periodic review of the procedures of the reform, rehabilitation, arrest and detention to ensure that they conform to international standards. The commission will equally ensure that quarterly and annual reports are issued on the situation of torture in Palestine, which indicates greater oversight, responsibility and community accountability to combat the phenomenon of torture.
The formulation of the national commission against torture is an initiative which will combine experts, specialists and specialists in law, international humanitarian law, human rights law and human rights activists, forensic physicians, psychiatrists, social and psychological specialists, media representatives, university instructors and judges. The board of trustees of the commission will be composed of professional executives of trusted persons with good reputation. Through a law, that organizes its work, its manifesto, the mechanisms for its formation, its financial and administrative autonomy, the commission will certainly affirm that political will is available to ban torture, and to defend human dignity and to respect humanity.
Dr. Omar Rahal
Director of Human Rights and Democracy Media Center “SHAMS”, Palestine.