Convention against Torture & other Inhuman, Degrading Treatment or Punishment

The Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment is an international human rights treaty, under the review of the United Nations that aim to prevent torture and other acts of cruel, inhuman or degrading treatment or punishment around the world.   The Convention requires states to take effective measures to prevent torture in any territory under their jurisdiction, and forbids states to transport people to any country where there is reason to believe they will be tortured.   The text of the Convention was adopted by the United Nations General Assembly on 10th December 1984 and following ratification by the 20th state party, it came into force on 26th June 1987. 26th June is now recognized as the International Day in Support of Victims of Torture, in honor of the Convention. Since the convention’s entry into force the absolute prohibition against torture and other acts of cruel, inhuman, or degrading treatment or punishment has become accepted as a principle of customary international law. As of June 2018, the Convention has now 164 state parties.   The Covenant follows the structure of the Universal Declaration of Human Rights (UDHR), International Covenant on Economic, Social and Cultural Rights (ICESCR), with preamble and 33 articles divided into three parts:

Part I (Article 1-16) contains a definition of torture (Article 1), and commits parties to taking effective measures to prevent any act of torture in any territory under their jurisdiction (Article 2). These include ensuring that torture is a criminal offense under a party’s municipal law (Article 4), establishing jurisdiction universal jurisdiction to try cases of torture where an alleged torturer cannot be extradited (Article 5). Parties must promptly investigate any allegation of torture (Articles 12 and 13), and victims of torture or their dependents in case victims died as a result of torture, must have an enforceable right to compensation (Article 14). Parties must also ban the use of evidence produced by torture in their courts (Article 15), and are barred from deporting, extraditing, or refouling people where there are substantial grounds for believing they will be tortured (Article 3).   Parties are required to train and educate their law enforcement personnel, civilian or military personnel, medical personnel, public officials and other persons involved in the custody, interrogation, or treatment of any individual subjected to any form of arrest, detention or imprisonment regarding the prohibition against torture (Article 10). Parties also must keep interrogation rules, instructions, methods and practices under systematic review regarding individuals who are under custody or physical control in any territory under their jurisdiction, in order to prevent all acts of torture (Article 11).   Parties are also obligated to prevent all acts of cruel, inhumane or degrading treatment or punishment in any territory under their jurisdiction, and to investigate any allegation of such treatment. (Article 16).

Part II (Articles 17-24) governs reporting and monitoring of the Convention and the steps taken by the parties to implement it. It establishes the Committee against Torture (Article 17), and empowers it to investigate the allegations of systematic torture (Article 20). It also establishes an optional dispute-resolution mechanism between parties (Article 21) and allows parties to recognize the competence of the Committee to hear complaints from individuals about violations of the Convention by a party (Article 22).

Part III (Article 25-33) governs ratification, entry into force and amendment of the Convention. It also includes an optional arbitration mechanism for disputes between parties (Article 30).

Optional Protocol

The Optional protocol to the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (OPCAT), adopted by the General Assembly on 18th December 2002 and in force since 22nd June 2006, provides for the establishment of “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhumane or degrading treatment or punishment,” to be overseen by a Subcommittee on Prevention of Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.   As of October 2016, the Protocol has 75 signatories and 83 parties.

Committee against Torture

The Committee against Torture (CAT) is a body of human rights experts that monitors implementation of the Convention by State parties. The Committee is one of eight UN-linked human rights treaty bodies. All state parties are obligated under the Convention to submit regular reports to the CAT on how rights are being implemented. Upon ratifying the Convention, states must submit a report within one year, after which they are obligated to report every four years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations.” Under certain circumstances, the CAT may consider complaints or communications from individuals claiming that their rights under the Convention have been violated.   The CAT usually meets in April/May and November each year in Geneva. Members are elected to four-year terms by State Parties and can be re-elected if nominated.

Main Provisions

Definition of torture

Article 1.1  of the Convention defines torture as:

For the purpose 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, 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. The words “inherent in or incidental to lawful sanctions” remain vague and very broad. It is extremely difficult to determine what sanctions are ‘inherent in or incidental to lawful sanctions’ in a particular legal system and what are not. The drafters of the Convention neither provided any criteria for making such determination nor did it define the terms. The nature of the findings would so differ from one legal system to another that they would give rise to serious disputes among the Parties to the Convention. It was

suggested that the reference to such rules with semblance to legal binding force. This allows state parties to pass domestic laws that permit acts of torture that they believe are within the lawful sanctions clause. However, the most widely adopted interpretation of the lawful sanctions clause is that it refers to sanctions authorized by international law. Pursuant to this interpretation, only sanctions there are authorized by international law will fall within this exclusion. The interpretation of the lawful sanctions clause leaves no scope of application and is widely debated by authors, historians and scholars alike.

Ban on Torture

Article 2 prohibits torture, and requires parties to take effective measures to prevent it in any territory under their jurisdiction. The prohibition is absolute and non-derogable. “No exceptional circumstances whatsoever” may be invoked to justify torture, including war, threat war, internal political instability, public emergency, terrorist acts, violent crimes or any form of armed conflict. In other words, torture cannot be justified as a means to protect public safety or prevent emergencies. Subordinates who commits acts of torture cannot abstain themselves from legal responsibility on the grounds that they were just following orders from their superiors.

The prohibition on torture applies to anywhere under a party’s effective jurisdiction inside and outside of its borders, whether on board its ships or aircraft or in its military occupations, military bases, peacekeeping operations, health care industries, schools, day care centers, detention centers, embassies or any other of its areas, and protects all people under its effective control, regardless of nationality or how that control is exercised.

The other article of part I lay out specific obligations intended to implement this absolute prohibition by preventing, investigating and punishing acts of torture.

Ban on Refoulment

Article 3 prohibits parties from returning, extraditing, or refouling any person to a state “where they are substantial

grounds for believing that he would be in danger of being subjected to torture.” The Committee against Torture has held that this danger must be assessed not just for the initial receiving state, but also to states to which the person may be subsequently expelled, returned or extradited.

Ban on Cruel, Inhumane, or Degrading Treatment or Punishment

Article 16  requires parties to prevent “other acts of cruel, inhumane or degrading treatment or punishment which do not amount to torture as defined in article 1” in any territory under their jurisdiction. Because it is often difficult to distinguish between cruel, inhuman or degrading treatment or punishment and torture, the Committee regards Article 16’s prohibition of such act as similarly absolute and non-derogable.

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