communications.
2.6 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
Although outlawed by all the major human rights treaties, the widespread practice of torture was considered to require more detailed legal regulation and more efficient implementation machinery. It was therefore decided to draft a Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by the United Nations General Assembly on 10 December 1984. It entered into force on 26 June 1987, and, as of 8 April 2002, there were 128 States parties to the Convention. The Convention created an expert body, the Committee against Torture, to supervise the implementation of the obligations of the States parties.
2.6.1 The undertakings of the States parties
According to the 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”. However, “it does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions” (art. 1).
Next, the Convention requires that “each State Party shall take effective legislative, administrative, judicial or other measures topreventacts of torture in any territory under its jurisdiction” (art. 2(1); emphasis added). It further specifies that“no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”(art. 2(2); emphasis added). This is simply a restatement of already existing international human rights law, given that the right to freedom from torture is made non-derogable in the major relevant treaties, including the International Covenant on Civil and Political Rights.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment makes it clear that “an order from a superior officer or a public authority may not be invoked as a justification of torture” (art. 2(3)). In other words, the principle of individual responsibility for acts of torture is clearly established.
2.6.2 The legal scope of the Convention
The following provisions of the Convention detail the responsibilities of the States parties to prevent, punish, and remedy acts of torture. However, only some of the legal obligations will be outlined here, and in general terms:
v “no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” – art. 3(1);
v “each State Party shall ensure that all acts of torture are offences under its criminal law” and the same shall apply to attempts to commit torture and acts that constitute
“complicity or participation in torture”. It shall, moreover, “make these offences punishable by appropriate penalties which take into account their grave nature” – art. 4(1) and (2);
v the States parties shall take the measures necessary to exercise their jurisdiction over the preceding offences and to submit the person alleged to have committed acts contrary to article 4 of the Convention to the “competent authorities for the purpose of prosecution” (arts. 5-7) and they shall moreover “afford one another the greatest measure of assistance in connection with criminal proceedings brought” in respect of any of these offences -art. 9;
v “the offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties”, which also
“undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them” – art. 8;
v the States parties shall further “ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment” – art. 10(1);
v for purposes ofpreventionof torture, the States parties “shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form” of deprivation of liberty – art. 11;
v “each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed ... ” – art. 12;
v each State party shall further ensure that any alleged victim of torture “has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities” – art. 13;
v “each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible” – art. 14;
v “each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”
– art. 15; and finally,
v each State party also undertakes “to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1” of the Convention – art. 16.
As is clear from this general description of the legal obligations incurred under this Convention, the question of torture and other cruel, inhuman or degrading treatment or punishment and the State’s actual response thereto is highly relevant to judges, prosecutors and lawyers, who must at all times be prepared to look for signs of the existence of such unlawful acts.
2.6.3 The implementation mechanism
The Committee against Torture, the independent ten-member expert body (art. 17(1)) set up to supervise the implementation of the Convention has, like all the other treaty Committees dealt with in this chapter, the task of considering the periodic reports submitted by the States parties, but can also, when the States parties have made declarations to this effect, receive and consider communications from States parties and individuals. Whilst, as will be seen below, the Convention authorizes the Committee to visit a country where torture is practised only with the consent of the State party concerned, efforts have been made since 1991 to draft an optional protocol to the Convention which would establish a preventive system of regular visits to places of detention. Although the participants in the World Conference on Human Rights unanimously called for the early adoption of this optional protocol,58no agreement has yet been reached on the contents thereof.59 In general terms, the monitoring procedures can be described as follows:
v the reporting procedure: the States parties are under an obligation to submit reports on the measures they have taken to give effect to their undertakings under the Convention within one year after its entry into force and thereafter every four years or when the Committee so requests (art. 19(1)). In order to facilitate the elaboration of the reports, the Committee has adopted general guidelines on the form and content of both the initial and periodic reports;60
v activities of the Committee under article 20: this article is specific to the Convention against Torture and provides that, “if the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State party”, it “shall invite that State Party to co-operate in the examination of the information and to this end to
58UN doc. A/CONF.157/23,Vienna Declaration and Programme of Action, p. 22, para. 61.
59See resolution E/CN.4/RES/2000/35 adopted by the Commission on Human Rights on 20 April 2000 onDraft optional protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; an open-ended Working Group is attempting to draft the protocol.
60UN docs. CAT/C/4/Rev.2 (as to the initial reports) and CAT/C/14/Rev.1 (as to the periodic reports). For more information about the initial reporting procedure under this Convention, see also Joseph Voyame, “The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, inManual on Human Rights Reporting, pp. 309-332.
submit observations with regard to the information concerned” (art. 20(1)).
However, the States parties may, when signing or ratifying the Convention or when acceding to it, declare that they donotrecognize this competence of the Committee (art. 28(1)). As of 18 May 2001 a total of nine States parties had made such a declaration.61 The documents and proceedings relating to the Committee’s functions under this article are confidential, although “the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report” to the States parties and to the General Assembly (art. 20(5));62
v inter-State communications:as of 18 May 2001, 43 States parties had declared that they recognize the competence of the Committee to receive and consider communications to the effect that a State party claims that another State party is not fulfilling its obligations under the Convention (art. 21(1)).63 The Committee will consider the communication only if the matter has not been settled to the satisfaction of both States parties. The procedure is confidential and the Committee
“shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention”. To this end it can set up an ad hoc conciliation commission.
If no friendly solution is reached in the case, the Committee shall draw up a report which shall merely contain a “brief statement of the facts” of the case (art. 21(1));
v individual communications:lastly, the Committee may receive communications from individuals claiming to be victims of a violation of the Convention if the State party concerned has expressly recognized its competence to do so (art. 22(1)). As of 18 May 2001, 40 States parties had made a declaration to this effect.64 The Committee shall however consider inadmissible any communication which is anonymous, or which it considers to be an abuse of the right of submission of communications or which is incompatible with the terms of the Convention (art.
22(2)). Before considering a communication the Committee must also, inter alia, ascertain that the individual has exhausted all available domestic remedies, unless the application of remedies is unreasonably prolonged or is unlikely to bring effective relief to the alleged victim (art. 22(5)(b)). Whilst the documents and proceedings relating to individual communications are confidential, the views of the Committee are communicated to the parties and also made available to the public.
The same also generally holds true with regard to the Committee’s decisions whereby it declares communications inadmissible.65Many of the Committee’s views and decisions are contained in its annual report to the General Assembly.
61UN doc.GAOR, A/56/44, Annex II, p. 79.
62UN doc.GAOR, A/54/44, p. 24, para. 231.
63UN doc.GAOR, A/56/44, Annex III, pp. 80-81.
64Ibid., loc. cit.
65UN doc.GAOR, A/54/44, p. 25, para. 236.