The global prohibition against torture
The use of torture has been acquiesced and practiced by law enforcement, military, security and other public officials for centuries. Regrettably its use persists today. Torture has been wrongly considered a necessary means to extract confessions or gather information, and alarmingly continues to be instrumentalised to instil fear, foment unrest and oppress populations.
The serious negative consequences of torture are incontrovertible: torture leads to false confessions and unreliable testimony, spreads distrust in public institutions, and causes long-term physical and psychological pain and suffering not just for those directly targeted, but also for their families and communities, requiring deep healing and reconciliation. The practice of torture is a stark indicator of a distressed state, and interferes with economic and social progress.
Seeing torture as a dehumanizing act that causes great suffering, the international community has consistently condemned its use, and its prohibition was first documented unanimously in the Universal Declaration of Human Rights (UDHR). Since the UN General Assembly’s adoption of the UDHR in 1948, it has been universally understood that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The prohibition of torture and other forms of ill-treatment has further been enshrined in several binding international treaties, such as the 1949 Geneva Conventions, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and most clearly, the Convention against Torture. The torture prohibition is equally found in all regional human rights conventions. Torture is a jus cogens norm of international law, meaning it is binding on all States and can never be justified under any circumstances.
UN Convention against Torture (UNCAT)
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), adopted in 1984, is the most important international human rights treaty that deals with torture and pushes for its universal eradication. The Convention hopes to unite States to fight against torture and take affirmative action to prevent its use, both domestically and as members of the international community of States.
Specifically, the Convention requires State parties to criminalise torture as a specific offence under its national laws, take action to investigate and prosecute complaints, train personnel, and provide redress to victims. Prohibiting and preventing torture rely heavily on enforcement through domestic institutions, and this is where the work of CTI is primarily focused. Further, the Convention creates a means to monitor implementation of the Convention’s provisions through an international mechanism, the UN Committee against Torture. The main obligations of the Convention are as follows :
- Prohibition: States are to criminalise and prosecute offences of torture under domestic law. Evidence including statements or confessions made as a result of torture are to be excluded from any proceedings.
- Prevention: States are to take effective legislative, administrative, judicial or other measures to prevent torture.
- Training: States are to educate and train law enforcement personnel, civil or military, medical personnel, public officials or other persons involved in custody, interrogation or detention, and to include the prohibition in the rules or instructions of such professions.
- Review of procedures: States are to keep under systematic review interrogation rules, institutions, methods and custody arrangements and detention.
- Investigation, prosecution and punishment: States are to adopt or adjust laws, procedures and institutions to receive, investigate and hear complaints of torture or ill- treatment. Torture offences are to be punishable with appropriate penalties taking into account the grave nature of the offence.
- Cooperation on extradition: The Convention enables and facilitates cooperation among States on extradition of those suspected of or responsible for offences of torture by establishing a scheme of cooperation. States have an obligation not to expel, refoul or extradite any person to where they may risk torture.
- Redress: States are required to ensure that victims have an enforceable right to fair and adequate compensation, as well as the fullest rehabilitation as possible.
- Reporting: States are required to submit periodic (every 4 years) reports to the Committee against Torture on the measures taken to implement the Convention.
Committee against Torture
The Convention against Torture establishes a treaty monitoring body known as the Committee against Torture (CAT), the primary function of which is to review State parties’ performance against their commitments on the basis of submitted periodic reports.
The Committee consists of 10 experts, nominated and elected by State parties, of high moral standing who have a recognised competence in the field of human rights. These experts are nationals of State parties; however, they serve in their own personal capacity. In electing members to the Committee, States parties have been encouraged to give consideration to equitable geographical and gender distribution and legal expertise. Members serve four-year terms and may be re-elected.
State parties to the Convention are to submit reports periodically to the Committee containing information on the legislative, judicial, administrative or other measures they have taken to implement the Convention. States submit their first report within one year after the Convention has entered into force in their country, and supplementary reports every four years thereafter. The Committee meets three times a year, where it reviews 8-9 country reports per session. During a session, the Committee examines each report, addresses concerns of the State (usually appearing in-person), and provides recommendations (called “concluding observations”). Additionally, the Committee carries out 3 further functions, subject to the State party accepting its jurisdiction to do so, namely:
- Confidential inquiries
An “examination” may be initiated by the Committee if there are “well-founded indications” of the systematic practice of torture in a State party’s territory, where the State party has accepted this inquiry procedure at the time of ratification/accession or subsequently. States concerned are invited to cooperate in the examination of the information such as by providing its own observations. On the basis of this information, the Committee can decide to carry out a confidential inquiry, which may include an in-country visit in cooperation with the State party, and then provide the State confidentially with comments and recommendations. The results of the inquiry may be released publically, only with the consent of the State party.
- Individual complaints
The Committee may consider complaints (called “communications”) from individuals who claim to be victims of a violation of a provision of the Convention. Prior to a communication being admitted, the victim must satisfy the Committee of various admissibility criteria, among which is that they have exhausted domestic remedies. The Committee’s “views” on the complaint are public, and a summary of the communications examined are included in the Committee’s Annual Report.
- Inter-State complaints
The Committee may receive and consider communications from a State party that alleges another State party is not fulfilling its obligations under the Convention.
→ Read more: Reporting to the UN Committee against Torture
Optional Protocol to the Convention against Torture
On 18 December 2002 the UN General Assembly adopted the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). The Optional Protocol entered into force on 22 June 2006, in an effort to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment and to establish a preventative system. The preventative system is made up of two elements:
- When a State joins the Optional Protocol, it agrees to set up, designate or maintain an independent National Preventative Mechanism (NPM) for the prevention of torture and ill-treatment at the domestic level, which is to possess the authority, functional independence and resources to undertake regular and unannounced visits to places of detention in its territory and to make recommendations to the State authorities. The NPM is further to be empowered to make proposals or recommendations regarding existing or draft legislation.
- Permit the UN Subcommittee on Prevention of Torture (SPT) to conduct visits to any place of deprivation of liberty in the State party and make confidential recommendations to the State party. The SPT is composed of 25 independent and impartial experts from different backgrounds and various regions of the world. Similar to the Committee against Torture, experts are elected by State parties, considered to have high moral character, and serve in their personal capacity. The SPT has 3 primary functions: to visit the State party to inspect and assess places of deprivation of liberty confidentially, guide the State party on the establishment of NPMs and their functions, and cooperate with relevant UN organs and mechanisms to strengthen the protection and prevention of torture and ill-treatment.