Conventions Against Torture and Other Cruel, Inhuman, and Degrading Treatment

Torture is an evil that cannot and will not be tolerated in our times. Since the end of World War II, international human rights treaties (both global and regional) that protect the individual against acts of torture committed by state authorities have come into being. Following the adoption of these treaties, there were calls to strengthen the protections provided for in the treaties, which led to the creation of law enforcement bodies designed to punish and prevent the crime of torture. The United Nations (UN) Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, a global treaty, was adopted in 1984. In the Americas the Inter-American Convention for the Prevention and Punishment of Torture was adopted in 1987. In Europe the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment entered into force in 1989. These three treaties, each applicable within specific regions and having an emphasis of its own, constitute the fundamental protection of individuals against acts of torture.

The UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention Against Torture) was adopted by the UN General Assembly on December 10, 1984, and entered into force on June 28, 1987. By August 2003, 133 states had ratified the treaty and a further twelve states had signed it. The convention is based on a UN General Assembly declaration that was issued on December 9, 1975.

The Obligations Undertaken

Article 1 defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as [obtaining information or a confession, intimidation or coercion, or discrimination]." The convention takes in torture inflicted by state officials, and by private individuals who act with the consent or acquiescence of state officials.

State parties are invested with obligations that appertain to both the national and the international domains. At the national level states are obliged to take measures to prevent acts of torture. No exceptional circumstances, or commands from persons of superior rank, may be invoked as a justification of torture. All acts of torture must be made criminal offenses under national law and must be censured by penalties that take into account the grave nature of the crime. Individuals who complain of having been victims of torture shall have their cases examined promptly and impartially, and they shall be protected against all reprisals. Victims of torture shall be compensated. Confessions obtained under torture shall not be used as evidence in a court of law. Law enforcement personnel shall be educated and informed with regard to the punishment of torture. Rules, instructions, methods, and practices relating to interrogations shall remain under systematic review.

At the international level the convention entrenches the principle of universal jurisdiction. Thus, a state party shall have jurisdiction over persons suspected of having committed acts of torture, irrespective of their nationalities and of the places where the alleged crimes were committed. Acts of torture are to be classified as extraditable offenses in any extradition treaty existing between contracting states, but "no State Party shall expel, return, 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." If suspected persons are not extradited, they shall be tried in the state in which they were found.

Measures of Implementation

Article 17 establishes a Committee Against Torture (CAT). It is composed of "ten experts of high moral standing and recognized competence in the field of human rights who shall serve in their personal capacity." They are elected by state parties for periods of four years and may be reelected.

State parties must report periodically on the measures they have taken to fulfill the obligations with which they have been endowed. These reports are transmitted to all state parties. They are not public, but an individual report will often be made public by the relevant state party. CAT may make general comments on the reports. CAT may also include such comments and any replies it has received from state parties in its Annual Report, as provided for in Article 24. The convention does not provide for any other measure or action on the part of CAT with regard to state reports.

Options for the filing of complaints (by individuals or states who allege severe human rights violations) were modeled after those that pertain to the UN Covenant for Civil and Political Rights. All proceedings that refer to complaints filed by one state against another state are wholly confidential. If no solution to a dispute involving states is found, CAT prepares a report in which it summarizes the available facts, and the report is then transmitted to the relevant state parties.

Complaints may be filed by individuals who claim to be victims of violation by the state party under whose jurisdiction they reside. The claimant must have exhausted domestic pathways for the redress of grievances and must not have submitted a claim to another international body of investigation or settlement. The CAT meetings at which testimonies and available evidence are examined are closed meetings. The conclusions of CAT are forwarded to the claimant and to the relevant state party. A written summary of the argument is put into the CAT's Annual Report to the General Assembly.

Article 20 of the convention allows for a CAT inquiry into an allegation of torture in the absence of a complaint. If CAT receives reliable information that torture is being practiced systematically in the territory of a state party, it must ask that state to respond to the allegation. This kind of discourse can take place only if there is complete cooperation on the part of the state party in question. It is wholly confidential. The findings of CAT are communicated to the state party, together with the committee's recommendations and/or warnings. A state can opt out of this practice at the time of its ratification of the convention (Article 28).

The Inter-American Convention for the Prevention and Punishment of Torture

The Inter-American Convention for the Prevention and Punishment of Torture is the first treaty to come out of the Organization of American States (OAS) whose purpose is to strengthen the systems for the protection of human rights in the Americas, which were introduced under the 1948 OAS Charter and the American Convention on Human Rights of 1969. The Inter-American Convention entered into force on January 29, 1987, and presently binds sixteen states in the Americas. The obligations incumbent on state parties, as well as the methods of the convention's implementation, are very similar to those set forth in the UN Convention Against Torture.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

The efforts of several states to amend the Convention Against Torture by adding a provision for the rights of experts to make regular visits to places of detention have so far failed. In March 1980 Costa Rica presented to the UN Commission on Human Rights a Draft Optional Protocol to that effect. The text of the protocol was based on a proposal made in 1976 by the Swiss banker and lawyer Jean-Jacques Gautier, founder of the Swiss Committee Against Torture. Because the efforts to amend the Convention Against Torture were unsuccessful, the Parliamentary Assembly of the Council of Europe (CoE), in 1983, submitted Gautier's proposal to the member states of the CoE. On November 26, 1987, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (European Anti-Torture Convention) was opened for signature. It entered into force on February 1, 1989. It is ratified by all forty-five member states of the CoE. Ratification of the European Anti-Torture Convention in fact constitutes a condition for membership in the CoE. The convention is nonjudicial and preventive in nature. The European Committee for the Prevention of Torture (CPT), a committee of independent and impartial experts, makes periodic ad hoc visits to places of detention of virtually any kind and submits its findings to the authorities of the state in question. The convention is based on the principle of cooperation, and its work is carried out in strict confidence. The CPT's reports are published only if the state in question fails to cooperate with the committee or refuses to make the improvements that the committee has recommended. Contracting states agree to grant the CPT unlimited access to places of detention, including the right of its inspectors to move freely inside such places and to interview in private any person whom they believe can provide relevant information.

The European Anti-Torture Convention in conjunction with the European Convention on Human Rights are an effective means to combat the crime of torture. It is hoped that a similar protective system will be adopted by the UN.

SEE ALSO International Law; Torture

BIBLIOGRAPHY

Buergenthal, T., and D. Shelton (1995). Protecting HumanRights in the Americas, Cases and Materials, 4th revised edition. Strasbourg, France: N. P. Engel.

Burgers, J. H., and H. Danelius (1988). The United NationsConvention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Dordrecht, Netherlands: Martinus Nijhoff.

Morgan, R., and M. Evans (2001). Combating Torture inEurope: The Work and Standards of the European Committee for the Prevention of Torture. Strasbourg, France: Council of Europe Publishing.

Nagan, W. P., and L. Atkins (2001). "The International Law of Torture: From Universal Proscription to Effective Application and Enforcement." Harvard Human Rights Journal (Spring) 14:87–122.

Nowak, M. (1985). "Die UNO-Konvention gegen die Folter vom 10 Dezember 1984." Europäische Grundrechte Zeitschrift (EuGRZ) 1985: 109–116.

Hans Christian Krüger
Alessia Sonaglioni