African Commission Launches General Comment on Torture Victims’ Right to Redress

The African Commission on Human and Peoples’ Rights during the 21st Extraordinary Session
Credit: ACHPR

The African Commission on Human and Peoples’ Rights (ACHPR) recently launched General Comment No. 4 on the right to redress for victims of torture and other cruel, inhuman, or degrading punishment or treatment, which was previously adopted during the 21^st Extra-Ordinary Session of the ACHPR. See ACommHPR, General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), (adopted at the Commission’s 21^st Extra-Ordinary Session, held from February 23 to March 4, 2017). Launched on May 8, the General Comment provides an authoritative interpretation of the scope of the right to redress, and States parties obligations, under Article 5 of the African Charter on Human and Peoples’ Rights (African Charter). The General Comment addresses the obligations to provide prompt, full, and effective redress; to ensure rehabilitation; to protect against intimidation and reprisals; and to provide redress for collective harms. See id. [IRCT Press Release] Additionally, the General Comment offers guidance on the right to redress within the contexts of sexual and gender-based violence, armed conflict, transitional justice processes, and violence carried out by non-State actors. See General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), (adopted at the Commission’s 21^st Extra-Ordinary Session, held from February 23 to March 4, 2017). According to the International Rehabilitation Council for Torture Victims (IRCT) – a global civil society organization dedicated to the rehabilitation of torture survivors – this General Comment takes a significant step towards achieving protections for victims of torture and other ill-treatment in the region due to its victim-centered approach to rehabilitation and to its acknowledgement that redress should be provided to victimized communities in addition to individual victims. [IRCT Press Release]

General Comment No. 4: The Right to Redress

The ACHPR’s General Comment No. 4 interprets Article 5 of the African Charter, which links the right to human dignity with the right to the prohibition of “all forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment.” See General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), (adopted at the Commission’s 21^st Extra-Ordinary Session, held from February 23 to March 4, 2017), at paras. 2-3. According to the General Comment, the right to redress applies to all people who have been tortured or treated inhumanly without discrimination. See id. at para. 16.

General Obligations

To fulfill the right to redress, remedies must be effective, which means that the remedy should be available, sufficient to “repair the harm suffered,” and offer “a prospect of success.” See id. at para. 23. The General Comment also finds that States parties must provide legal aid, such as representation, advice, education, alternative dispute resolution, and restorative justice, to victims so they can seek redress. See id. at para. 24.

States parties are obligated to conduct prompt, impartial, and independent investigations into claims of torture or ill-treatment, and to prosecute the perpetrators of the harm. See id. at para. 25. A failure to be prompt in this regard, the African Commission states, results in a de facto denial of redress. See id. at para. 26. Further, States parties must prosecute or extradite alleged perpetrators in their control and must not grant immunity for acts of torture. See id. at para. 28.

Victim-Centered Approaches and Protection Mechanisms

According to General Comment No. 4, States parties must protect the dignity of victims and apply a victim-centered approach during the redress process. See id. at para. 18. A victim-centered approach entails an analysis of the harm allegedly suffered and an understanding of the victim’s goals in seeking redress. See id. States parties are obligated to establish processes for redress that provide special measures to ensure access for people that are detained, discriminated against, or otherwise disadvantaged. See id. at para. 22. Special measures, the General Comment elaborates, include establishing clinics that provide trauma counseling; utilizing mobile law clinics; developing outreach programs to victims; and supporting civil society initiatives and community organizations providing aid to victims. See id.

The General Comment requires that States parties establish protection mechanisms to prevent intimidation or reprisals against victims, witnesses, their relatives, investigators, lawyers, health-care personnel, human rights defenders, monitoring bodies, and others helping victims access redress. See id. at paras. 29-31. Such mechanisms, according to the General Comment, may include creating laws criminalizing threats, harassment, and intimidation; establishing independent oversight mechanisms in places of detention; and removing persons reasonably suspected of perpetrating acts of torture or ill-treatment from positions of power over victims or those aiding them. See id.

The Right to Rehabilitation and the Right to Reparation

According to the General Comment, the right to redress includes the right to an effective remedy and to adequate and effective reparations. See id. at paras. 8, 33. Reparations must be adequate and proportionate to the gravity of harms suffered, taking into consideration the culture, personality, history, and background of the victim. See id. at para. 34. The General Comment notes that the right to reparation includes restitution, compensation, rehabilitation, and satisfaction, which includes the right to the truth and to non-repetition. See id. at para. 10. The General Comment goes on to say that the goal of reparations is to make the victim of torture and ill-treatment whole, and, thus, reparations include physical, psychological, social, cultural, and spiritual aspects. See id. The right to reparation is independent of the identification, prosecution, or conviction of alleged perpetrators; limited resources will not justify a failure to provide reparation. See id. at paras. 33-34.

According to the General Comment, rehabilitation concerns the restoration of the victim’s functions or the acquisition of new skills to restore the victim’s independence and full participation in society. See id. at para. 40. States parties must adopt holistic measures for rehabilitation, including medical, physical, and psychological services; re-integrative and community reconciliation services; socio-therapy; family-oriented assistance; and vocational and educational training services. See id. at para. 41. These measures, the General Comment suggests, should be available as soon as possible to victims, and must take into account the resilience of the victim and the risk of re-traumatization. See id. at paras. 42-43.

Obligations in the Context of Sexual & Gender-Based Violence

According to the General Comment, States parties must take measures to ensure that victims of sexual and gender-based violence, defined in the General Comment, are able to access redress. See id. at para. 60. Measures include ensuring documentation; criminalizing all forms of sexual and gender-based violence; promoting accountability for abuses; taking the steps to identify, prevent, and eradicate sexual and gender-based violence; establishing reparation programs in consultation with victims; providing access to comprehensive health care, including physical, psychological, and socio-economic support; and promoting the dignity and safety of victims. See id. at para. 61.

Obligations in the Context of Armed Conflict

The General Comment reiterates that States parties may not derogate from the obligation to prohibit torture and other ill-treatment in any circumstance, including in emergency situations. See id. at para. 62. States parties are obligated to investigate, prosecute, and provide redress to victims of torture and ill-treatment in armed conflict for acts by both States and non-State actors. See id. at paras. 62-64. States parties are required to facilitate the activities of independent institutions, humanitarian agencies, civil society organizations, media, and other actors tasked with helping victims. See id. at para. 65.

Obligations in the Context of Transitional Justice Processes

Transitional justice redress mechanisms aim to explain the institutionalization of torture and other ill-treatment; prevent the future use of torture and other ill-treatment; and promote institutional and legal reforms. See id. at para. 67. The General Comment suggests that this pursuit includes providing access to all relevant information related to the abuse; documenting the information to contribute to society’s “collective memory;” and promoting healing through accountability and non-repetition. See id. at para. 68. To achieve these aims, the General Comment recommends repealing State secrecy and indemnity laws. See id. at para. 69. Additionally, States parties should pursue retributive, restorative, and redistributive elements of justice in consultation with victims. See id. at paras. 69-70.

Obligations in the Context of Collective Harm

States parties are responsible to provide redress for collective harm, which specifically includes harms that affect a group of people because of a common experience, identity, or other commonality. See id. at para. 50. Redress measures must ensure the full and informed participation of the collective with a particular emphasis on both inequalities within the collective and the voices of the most at risk members. See id. at paras. 52-53.

Non-state Actors

In line with Article 1 of the African Charter (the obligation to give effect to the rights in the Charter), the General Comment affirms that States parties are required to prevent, investigate, prosecute, and punish non-State actors that commit acts of torture and other ill-treatment. See id. at para. 73. Specifically, the General Comment recommends that States Parties ensure a legislative and financial framework for reparations including fines, forfeiture, freezing, and seizure of property belonging to non-State actors perpetrating the acts. See id. at para. 75.

Implementation of Obligations

According to the General Comment, States parties must make this General Comment accessible and must incorporate the abovementioned obligations in domestic policies, laws, budgets and trainings. See id. at para. 77. States parties should establish outreach and educational programs to raise awareness about the rights of victims and about how to access redress mechanisms. See id. Additionally, States parties are required to establish oversight mechanisms that evaluate and report on the provision of redress in the State. See id. at para. 78. States parties must include information on the steps taken to implement these obligations in periodic reports to the ACHPR. See id. at para. 79. Further, States parties should collect and report on disaggregated data relevant to the provision of redress. See id.

Background

This General Comment was written in response to the Robben Island Guidelines, produced in 2012, that called on the Committee for the Prevention of Torture in Africa – a special mechanism of the ACHPR – to prepare an authoritative interpretation on how to implement Article 5 of the African Charter. The ACHPR, the Committee, States, and non-State stakeholders contributed to the creation of this General Comment. See id. at Preface. Additionally, the General Comment drew from the jurisprudence of the ACHPR; relevant instruments like the African Charter, the AU Constitutive Act, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), and the African Charter on the Rights and Welfare of the Child; other Commission guidelines; and United Nations interpretations and guidance on the rights to redress and to reparations. See id. at paras. 4-6.

The General Comment contributes to the growing prevalence of the explicit recognition of the right to rehabilitation as a reparation and part of the right to a remedy. Rehabilitation as a form of reparation first appeared in a binding international human rights legal instrument in Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and later appeared in Article 24 of the International Convention for the Protection of All Persons from Enforced Disappearance. See REDRESS, Rehabilitation as a Form of Reparation under International Law (2009), 12-15. In a few binding judgments around the world, international human rights courts and bodies have recognized rehabilitation as a form of reparation. See, e.g., I/A Court H.R., Case of García Lucero et. al. v. Chile. Preliminary objection, merits and reparations. Judgment of August 28, 2013. Series C No. 267, para. 233. In the African region, the ACHPR previously defined the scope of the right to rehabilitation as a reparation in Resolution 303, which was adopted during its 56^th Ordinary Session in 2015. [IJRC: Resolution]