Dr. Omar Rahal - Shams Center
The human rights organizations of the PNA have been invited in each occasion to accede to international conventions. While those organizations were blaming the PNA of reluctance in not acceding to Convention against Torture and Other forms of Cruel, Inhuman or Degrading Treatment or Punishment. In addition to the Second Optional Protocol considering this accession with definite positive impact on the status of human rights in Palestine.
On May 14th of 2013, president Mahmoud Abbas “Abu Mazen” issued a decision on emphasizing on all entities related to arrest, detention and interrogation to significantly abide by 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 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 Conventions against Torture on April 1st of 2014 , doesn’t only represent rewarding the human rights’ movements’ 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 access hasn’t put an end for the violations since the reports issued by human rights organizations clarified that no genuine changes have occurred on the ground. While citizens haven’t recognized any difference or having two phases (pre and post- accession) to the conventions. (Annual report for ICHR no. 21 for 2016).
Prohibiting torture within 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 also prohibited 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 was 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. Which 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 on 10 December 1984. Where torture was 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, without regard to whether the State has ratified or 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. Where all the rules 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 and the value of the principle of prohibition is a fundamental pillar of a procedural rule other, 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 arise when addressing this question 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 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 Convention against Torture will represent an essential part of the applied Palestinian legislations, and the harmony between Palestinian legislations with related laws (article 13 and 16 of the Palestinian amended Basic Law of 2003). Palestinian legislators have 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.
Moreover, 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 and will increase cooperation, joint action and complementarity in performance. Not only in the activities and conferences, or the production of studies and research, but also to 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. And 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 which combines experts, specialists and specialists in law, international humanitarian law, human rights law and human rights activists. In addition to forensic physicians, psychiatrists, social and psychological specialists, media representatives, university instructors and judges. Through a law, that organizes its work, its manifesto, the mechanisms for its formation, its financial and administrative autonomy and a board of trustees are trusted persons a good reputation, a professional executive. Will certainly affirm that political will is available to ban torture, and to defend human dignity and to respect humanity.
References
- Amended Palestinian Basic Law of 2003.
- (Annual report of the ICHR no. (21) Of 2016).
- (Annual report of the ICHR no. (21) Of 2013).
- Society for the Prevention of Torture, 2009, Torture within International Law, Cairo: Ashraf Reda agency for publishing and advertising.
- Ali Mohammed Alsagheer, 2006, An introduction to legal sciences: theory of law theory of the Rights: Algeria, Dar Alo’loum.
- Convention against Torture , 1984.