United_Nations_Convention_against_Torture

United Nations Convention Against Torture

United Nations Convention Against Torture

International human rights instrument against torture and cruel or unusual punishment

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention Against Torture (UNCAT)) is an international human rights treaty under the review of the United Nations that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.

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The Convention requires member states to take effective measures to prevent torture in any territory under their jurisdiction, and forbids member 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 10 December 1984[1] and, following ratification by the 20th state party,[3] it came into force on 26 June 1987.[1] 26 June is now recognized as the International Day in Support of Victims of Torture, in honor of the convention. Since the convention's entry was enforced, 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.[6] As of April 2022, the convention has 173 state parties.[1]

Summary

The Convention follows the structure of the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), with a preamble and 33 articles, divided into three parts:

Part I (Articles 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 over acts of torture committed by or against a party's nationals (Article 5), ensuring that torture is an extraditable offense (Article 8), and establishing universal jurisdiction to bring cases of torture to trial 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 public servants and private citizens 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 obliged to prevent all acts of cruel, inhuman, 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 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 (Articles 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).

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, 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 would make the issue more complicated, for it would endow the rules with a semblance of 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 that 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.[7]

Ban on torture

Article 2 prohibits torture, and requires parties to take effective measures to prevent it in any territory under their jurisdiction. This prohibition is absolute and non-derogable. "No exceptional circumstances whatsoever"[8] may be invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any form of armed conflict.[6] In other words, torture cannot be justified as a means to protect public safety or prevent emergencies.[8] Subordinates who commit acts of torture cannot abstain themselves from legal responsibility on the grounds that they were just following orders from their superiors.[6]

The prohibition on torture applies to anywhere under a party's effective jurisdiction inside or 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.[6]

The other articles of part I lay out specific obligations intended to implement this absolute prohibition by preventing, investigating, and punishing acts of torture.[6]

Ban on refoulement

Article 3 prohibits parties from returning, extraditing, or refouling any person to a state "where there are substantial grounds for believing that he would be in danger of being subjected to torture."[9] 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.[10]

Obligation to prosecute or extradite

Article 7 obligates the government of the state in which the alleged offense occurred to either prosecute the accused party, or extradite them to a state that will, under the principle of aut dedere aut judicare.[11]

Ban on cruel, inhuman, or degrading treatment or punishment

Article 16 requires parties to prevent "other acts of cruel, inhuman 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.[6]

Signatories and ratifications

More information Participant, Signature ...

As of 17 November 2021, there are 173 States parties. 22 UN Member States are not yet party to the convention.

Optional Protocol

Main article: Optional Protocol to the Convention Against Torture
  states parties
  states that signed, but have not ratified
  states that have not signed

The Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), adopted by the General Assembly on 18 December 2002 and in force since 22 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, inhuman or degrading treatment or punishment,"[15] to be overseen by a Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

As of April 2022, the Protocol has 76 signatories and 91 parties.[16]

Committee Against Torture

Main article: Committee Against Torture (UN)

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 obliged 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 obliged 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. The current membership of the CAT, as of June 2023:[17]

More information Name, State ...

Effects

A 2021 study in the American Journal of Political Science found that countries that adopt national laws that prohibit torture (defining it in line with the standards codified in the UN Convention against Torture) subsequently experience reductions in police torture.[18]

See also

References

  1. [1]
    United Nations Treaty Collection: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Retrieved on 26 June 2018.
  2. [2]
    General Assembly resolution 40/128 (13 December 1985), Status of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/40/128, under 2.
  3. [3]
    Convention Against Torture Archived 9 November 2007 at the Wayback Machine, Article 27. Retrieved on 30 December 2008.
  4. [4]
    Convention Against Torture Archived 9 November 2007 at the Wayback Machine, Article 25. Retrieved on 30 December 2008.
  5. [5]
    Convention Against Torture Archived 9 November 2007 at the Wayback Machine, Article 33. Retrieved on 30 December 2008.
  6. [6]
    "CAT General Comment No. 2: Implementation of Article 2 by States Parties" (PDF). Committee Against Torture. 23 November 2007. p. 2. Retrieved 16 June 2008.
  7. [7]
    Ronli Sifris (4 December 2013). Reproductive Freedom, Torture and International Human Rights: Challenging the Masculinisation of Torture. Routledge. p. 145.
  8. [8]
    "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment". OHCHR. Retrieved 16 March 2022.
  9. [9]
    Convention Against Torture Archived 9 November 2007 at the Wayback Machine, Article 3.1. Retrieved on 30 December 2008.
  10. [10]
    "CAT General Comment No. 01: Implementation of article 3 of the Convention in the context of article 22". UN OHCHR. 21 November 1997. Retrieved 15 June 2008.
  11. [11]
    Nowak, Manfred; Birk, Moritz; Monina, Giuliana (14 November 2019). United Nations Convention Against Torture and its Optional Protocol: A Commentary. Oxford University Press. ISBN 978-0-19-884617-8.
  12. [12]
    "Italy passes law making torture a crime, critics say full of holes". Reuters. 5 July 2017. Retrieved 6 July 2017.
  13. [13]
    Bashfield, Samuel (1 June 2022). "The BIOT: A judicial vacuum now consuming Tamil refugees". Al Jazeera. Retrieved 10 June 2022.
  14. [14]
    "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Addendum to Initial reports of States parties due in 1995" (PDF). U.S. Department of State. Retrieved 10 December 2018.
  15. [15]
    OPCAT, Article 1.
  16. [16]
    "9.b Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment". United Nations Treaty Collection. United Nations. Retrieved 10 December 2018.
  17. [17]
    "Committee Against Torture – Membership". United Nations OHCHR. 2023. Retrieved 12 June 2023.
  18. [18]
    Berlin, Mark S. (2021). "Does Criminalizing Torture Deter Police Torture?". American Journal of Political Science. 67 (4): 932–947. doi:10.1111/ajps.12684. ISSN 1540-5907. S2CID 244550445.

Further reading

  • Carey, Henry (Chip); Mitchell, Stacey M. (2023). "Legalization of Reform of Torture Laws and Practices: Compliant, Exceptionalist, and Hybrid Types". Legalization of International Law and Politics: Multi-Level Governance of Human Rights and Aggression. Springer International Publishing. pp. 95–125. ISBN 978-3-031-17169-7.
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