United Nations Convention against Torture

Summary

The Covenant 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 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 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).

Definition of torture

Article 1.1 of the Convention defines torture as:

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.

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" 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. 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 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.

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

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." 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, 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.

Optional Protocol

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," to be overseen by a Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Status of the Optional Protocol

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 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: