International human rights norms and standards
know the boundaries of state power, the state’s subjects also need to be wellinformed of their rights if those rights are to be protected. If the domestic courtstreat torture simply as a serious form of assault, the public will never be educatedto understand the severe effects of torture on the lives of those subjected to it.The fact that the so-called War on Terror has led many old democracies to becomesoft on torture
makes it even more important for all members of the TortureConvention to comply with the treaty’s requirements and make torture a speciccrime. If not, the examples of the powerful nations in their ‘war on terror’ will become the example the rest of the world follows.
Since the treaties ratied by Namibia form part of Namibian law, is it not possiblefor the law enforcement agencies to apply the treaties and prosecute violators of the Torture Convention? However, since the treaty as an international instrumentdoes not include a penalty clause, it cannot form the object of a criminal offence.The Committee against Torture has acknowledged that, despite the broad framingof Articles 4, 5, 10 and 11, the Torture Convention is not entirely self-executing;and even if a constitution allows for the direct effect of international law – as Namibia’s does – a domestic legal framework is necessary for the implementationof the important aspects.
Thus, while the Namibian Constitution provides for the direct implementation of the human rights treaties, it seems almost impossible to implement those treaties
See e.g. the statement of US Secretary of Defense, Donald Rumsfeld, stating that theiniction of pain to obtain information does not constitute
; or the recent statement of US Attorney General A Gonzalez that
only occurs when the iniction of pain leadsto organ failure. See Center for Constitutional Rights. 2006.
Report on torture and cruel,inhumane and degrading treatment of prisoners at Guantanamo Bay
. New York, NY:Center for Constitutional Rights. The latest development in the US is a Bill that not onlydeprives so-called enemy combatants from the habeas corpus remedy, but also provides for
See e.g. the response of Gen. M. Shalli to cross-examination relating to alleged tortureduring the military and police action following the failed secession attack on strategic places in Katimo Mulilo in northern Namibia. See Menges, W. 2003. “Shalli on warpath intreason case”.
, 9 October 003.9
See Committee against Torture. [n.d.].
Summary Records of the 28th meeting,
29 April – 17
May 00, and
Note 15, of the 30th meeting,
28 April – 16 May 2003. Geneva: Ofce of the High Commissioner for Human Rights. For a discussion of the criminalisation of theoffences listed in of Article 4 in domestic law, see Ingelse, C. 2001.
The UN Committeeagainst Torture
The Hague: Kluwer Law International, pp 337–360.