Yemen should adopt a definition of torture consistent with the Convention against Torture

Alkarama highlighted the persistence of cases of torture and other cruel, inhuman or degrading treatment, noting that the definition of torture currently used in the Constitution does not abide by the Convention's standards. Alkarama formulated several questions, in particular: "Is Yemen planning to adopt a definition of torture which is consistent with Article 1 UNCAT*?"

Concerning the criminalisation of torture under domestic criminal law, Alkarama noted with concern that there is no clear and explicit provision within the domestic criminal system that incriminates acts of torture and other ill-treatment according to Convention's standards. As a consequence, Alkarama asked the State party "to explain what are the steps taken to criminalise effectively all forms of torture and other ill-treatment according to the UNCAT definition and modes of participation (i.e. attempt and complicity, Article 4 UNCAT**) and to provide detailed examples in which anti-torture provisions were invoked before or by a court."

Effective measures are necessary to prevent and punish torture

Alkarama also expressed its fears about the lack of effective measures taken by the authorities to prevent acts of torture, which led to numerous cases of torture that were not investigated or punished. Alkarama requested the State party "to provide information on the measures taken to establish an effective policy of eradication of torture by all elements of its security forces, as well as to investigate and prosecute non-state actors who committed such crimes."

Torture should be prohibited in all circumstances and in all places of detention

Since the Yemeni legal framework does not include any provision to ensure that no exceptional circumstances whatsoever may be invoked as a justification of torture or ill-treatment, Alkarama asked the State party "if they do recognise the absolute and non-derogating character of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment."

Referring to the prohibition of torture in counter-terrorism policies and laws, Alkarama pointed that the State's broad definition of terrorism, coupled with its current political and security situation, has led to the widespread use of torture, in particular with a view to extracting confessions. In its report to the UN experts, Alkarama also highlighted the fact that Yemen's Specialised Criminal Court, competent in cases of terrorism, continues to be used despite several calls from the CAT to dissolve it.

Moreover, this Court's procedural standards violate all customary international fair trial norms. Defendants are often held incommunicado for long periods during which they are subjected to torture and other ill-treatments, in addition to being denied the right to seek legal counsel. Alkarama asked the State party "what are the specific safeguards in law and practice taken in order to ensure that interrogation techniques used in counter-terrorism operations are not breaching its obligations under the Convention. Do the authorities plan to take effective steps to dissolve the Specialised Criminal Court?"

Given the numerous cases of torture committed by public officials in State-controlled detention facilities, Alkarama expressed particular concern regarding the effective incorporation of the prohibition of torture into domestic laws applicable to law-enforcement and military officials. Consequently, Alkarama asked the State party "what are the legal standards used to assess the superior's responsibility in case of torture committed by his subordinates? If so, are they in line with the international legal standards of command responsibility? Does it plan to adopt clear provisions stating that no order from a superior officer or a public authority may be invoked as a justification for torture or ill-treatment, and that no one should be exempted from liability for committing torture by invoking an order from a superior officer or a public authority?"

Places of detention should be effectively monitored to prevent torture

With regards to the review of interrogation rules and prison inspections, Alkarama expressed its concern over the lack of regular government inspection and independent monitoring in all detention centres. In particular, in view of the numerous cases of torture documented in detention centres that are under the authority of the Political Security Organisation – in charge of domestic intelligence in Yemen – Alkarama asked Yemen to explain the steps taken to ensure an independent and thorough monitoring and inspection of all places of detention, in particular if the State had "taken any steps to establish a national system to effectively monitor and inspect all places of detention."

Alkarama also reiterated its concerns about the State's failure to effectively provide all detainees with the fundamental safeguards from the beginning of their detention, notably their right to call their' family and to have access to a lawyer and a doctor. Alkarama has documented numerous cases of incommunicado and secret detentions carried out by the authorities, in which the victims were never informed of the charges pending against them and denied the right to see their family and lawyer, or even to receive an independent medical examination – see for instance the following cases on 14 May 2014, 30 June 2014 and 2 July 2014.

Alkarama pointed out that Yemeni law does provide persons held in pre-trial detention with the right to meet both their relatives and lawyer, provided that they obtain a written authorisation from the entity that issues the detention order. The non-respect of this rule has translated in practice in a widespread use of incommunicado detention during which torture is systematically practiced to obtain confessions. In this context, Alkarama requested the State party to provide information on both "the steps it is planning to take in order to ensure that no one is detained incommunicado, and to grant detainees with the necessary procedural safeguards with no exception whatsoever," and "the steps it has taken to ensure that all detainees are effectively informed of their rights and of the charges against them at the time of arrest are promptly brought before a judge."

No impunity for torturers

Concerning the independence of the judiciary and the prosecution of acts of torture, Alkarama expressed concern over the fact that Article 26 of the Yemeni Code of Criminal Procedure states that a complaint may not be filed against law enforcement officials or any public employee for a crime committed while on duty "except with the permission of the General Prosecutor, a delegated public attorney or heads of the prosecution." Consequently, Alkarama asked the following questions to the State party: "Can the State party provide information on eventual steps that it plans to take in order to ensure that the executive does not hinder the investigation or prosecution of high level officials due to a lack of independence and impartiality of the judiciary? Has anything been done to ensure that those cases lead to a prompt investigation and prosecution, without any interference?"

Concerning acts of torture and other ill-treatment committed by armed groups, Alkarama asked the State party what steps it is taking to ensure its citizens' rights to life, security and liberty, as well as to be free from torture and other ill-treatment committed by non-state actors. "Does the State party know about the detention conditions, legal safeguards and current number of people arrested by the Houthis as a non-state armed group, and can it provide information on their fate?"

Civilians living under drones are subjected to cruel inhumane and degrading treatment

In July and August 2014, Alkarama surveyed a sample of individuals who live in areas where drone operations are being carried out by the United States, in order to evaluate the Post-traumatic Stress Disorder (PTSD) syndromes they were suffering from. Alkarama's findings show that the fear of being killed or having a relative killed by a drone at any moment and without knowing the reasons that might cause such a death is so intense that it amounts to inhumane and degrading treatment in the sense of Article 16 UNCAT. Referring to the plight of civilians living under drones, Alkarama asked Yemen if it had made sure "that past agreements made with the US authorising drone strikes did not violate the prohibition from torture and other cruel, inhuman or degrading treatment, and if it had ensured that families of victims of drone strikes were able to seek redress, in particular through an independent, thorough and prompt investigation of claims of civilians killed in drone strikes, including children."

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* UNCAT, Art. 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.

** UNCAT, Art. 4: Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.