HUMAN RIGHTS 1

WEEK 5

SR. REGINA IGNATIA AFLAH

 CONVENTION AGAISNT
TORTURE AND OTHER CRUEL,
INHUMANE OR DEGRADING
TREATMENT OR PUNISHMENT
(CAT)
 INTRODUCTION
• Torture is recognised as a crime against humanity
contrary to customary international law. The
prohibition on the use of torture is recognised as
a norm jus cogens.
• Article 7 of the ICCPR prohibits torture and cruel,
inhuman or degrading treatment or punishment
and has been the subject of two
• General Comments from the HR Committee (Nos.
7 and 20, from 1982 and 1992 respectively), as
well as having been addressed in the HR
Committee’s ‘jurisprudence.
 INTRODUCTION
• However, notwithstanding this general
condemnation of torture, a UN Convention
specifically addressing the issue was adopted
in 1984.
• We will look at the substantive provisions of
the Convention against Torture (CAT) and also
examines its supervisory mechanism. In
addition, we will look at the Optional Protocol
to the Convention against Torture (OPCAT).
 RIGHTS PROTECTED BY THE
CONVENTION AGAISNT
TORTURE
• As its name suggests, the Convention against
Torture deals with a specified category of rights.
This reflects a different approach from, and is in
marked contrast to, such international human
rights treaties as the ICCPR, which sought to
cover a wide range of rights.
• The Convention against Torture was opened for
signature on 10 December 1984 and came into
force on 26 June 1987.
 DEFINITION OF TORTURE
• Article 1 of the Convention defines torture for
the purposes of the Convention as meaning:
• …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
 DEFINITION OF TORTURE
 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.
 There are three components to the definition.
Torture must be:
 DEFINITION OF TORTURE
 •• intentional infliction of severe pain or
suffering, whether physical or mental;
– for purposes of obtaining from the person
or a third party a confession, punishing
them for an act they or a third party has
committed or is suspected of having
committed, or intimidating or coercing
them or a third person, or for any reason
based on discrimination of any kind; and
 DEFINITION OF TORTURE
 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.
• The definition emphasises a deliberate act. Does
this mean a failure to act could amount to
torture?
• Also note the qualification that an act which arises
‘only from, inherent in or incidental to lawful
sanctions’ does not come within the definition of
torture.
 TORTORE AND CRUEL,
INHUMAN OR DEGRADING
PUNISHMENT
• The Convention defines only the meaning of
the term ‘torture’; it is silent as to what may
constitute cruel, inhuman or degrading
treatment.
• However, Article 16 calls upon states to
‘undertake to prevent… other acts of cruel,
inhuman or degrading treatment or
punishment which do not amount to torture as
defined in Article 1’.
 TORTORE AND CRUEL,
INHUMAN OR DEGRADING
PUNISHMENT
• Contracting states are required to criminalise
acts which come within the Convention’s
definition of torture, but are only called upon to
prevent those acts which fall outside the ambit
of Article 1.
• However, the UN’s 1979 Code of Conduct for
Law Enforcement Officials calls for the phrase to
be interpreted so ‘as to extend the widest
possible protection against abuses whether
physical or mental’.
 TORTORE AND CRUEL,
INHUMAN OR DEGRADING
PUNISHMENT
• A ground breaking decision as to the
distinction between torture and acts of cruel,
inhuman or degrading treatment was handed
down by the European Court of Human Rights
in Ireland v The United Kingdom, Series A,
Volume 25 (1978).
 TORTORE AND CRUEL,
INHUMAN OR DEGRADING
PUNISHMENT
• As already seen, the prohibition of torture is
absolute and constitutes a jus cogens norm in
international law. This is reflected in Articles
2(2) and (3), which deny as a justification for
torture the pleas of exceptional circumstances,
whether a state of war or a threat of war,
internal political instability or any other public
emergency or an order from a superior officer
of a public authority.
 TORTORE AND CRUEL,
INHUMAN OR DEGRADING
PUNISHMENT
• This has been endorsed by the Committee
against Torture by way of General Comment
No. 2 (2008), which provides unequivocally.
• [N]o exceptional circumstances whatsoever
may be invoked by a State Party to justify acts
of torture in any territory under its
jurisdiction… This includes any threat of
terrorist acts or violent crime as well as armed
conflict, international or non-international.
 OBLIGATIONS ON STATES
PARTIES
• The Convention affords protection to persons
from torture and other inhuman or degrading
treatment or punishment, and to this end sets
out a number of obligations incumbent upon a
state party. These are:
•• to take effective legislative, administrative,
judicial or other measures to prevent acts of
torture in any territory under its jurisdiction.
 OBLIGATIONS ON STATES
PARTIES
• to refrain from expulsion, extradition or return of
persons to another state where there are
substantial grounds to believe that the said
persons would be in danger of being subjected to
torture
• •• to make all acts of torture, attempts to commit
torture or complicity or participation in torture
offences under national criminal law and ensure
appropriate penalties which would take into
account the grave nature of such offences.
 OBLIGATIONS ON STATES
PARTIES
• to establish jurisdiction over torture offences
when:
• offences are committed in any territory of the
state’s jurisdiction
• the alleged offender is a national of the state
• the alleged victim is a national of the state
• the alleged offender is in the territory of the state
and the
• state does not extradite them as stipulated in
Article 8 of the Convention.
 OBLIGATIONS ON STATES
PARTIES
• to carry out an effective, prompt and impartial
investigation into allegations of torture; to give
anyone who alleges that they have been subjected
to torture a right to complain to and have their
case promptly and impartially examined by
competent authorities; and to prosecute those
alleged to have committed torture
• for all states parties to afford each other the
greatest assistance in connection with criminal
proceedings brought in respect of torture
offences.
MECHANISM OF PROTECTION
ESTABLISHED BY THE
CONVENTION AGAINST
TORTURE
MECHANISM OF PROTECTION
• The Committee against Torture (the Committee)
is the treaty body of the Convention against
Torture, established in accordance with Article
17. It consists of 10 experts of high moral
standing and recognized competence in the field
of human rights.
• They all serve in their individual capacity, and
are elected by the states parties for a term of
four years. The Committee normally holds two
sessions per year and one pre-sessional working
group.
 MECHANISM OF PROTECTION
Part II of the Convention sets out the mandate and
functions of the Committee. This mandate can be
divided into six sections:
– consideration of state reports
– inquiry procedure
– inter-state communications
– individual communications under Article 22 of
the Convention
– general comments
– work with the Subcommittee on Prevention of
Torture (SPT) established under the OPCAT
OPTIONAL PROTOCOL TO CAT
• The Optional Protocol to the Convention against
Torture was adopted in April 2002 and came into
force on 22 June 2006.
• In marked contrast to the Convention against
Torture, which is more focused on the
consequences of torture and how these should
be addressed, the OPCAT is a proactive
instrument which aims to prevent acts of torture
and inhuman or degrading treatment or
punishment through a two-tier system of torture
prevention.
 OPTIONAL PROTOCOL TO CAT -
PREVENTION
• As indicated above, the main route for achieving this
aim is by way of a system of regular, preventive visits
to places of deprivation of liberty. These visits are to
be carried out by national preventive mechanisms
within the country and by the international
Subcommittee on Prevention of Torture (SPT).
• Thus the OPCAT sets up a two-tier system of
prevention. Consequently, in contrast to the
Convention, the main obligation of a state party to the
OPCAT is to set up, designate or maintain one or
several visiting bodies, the national preventive
mechanism (NPM).
 OPTIONAL PROTOCOL TO CAT -
PREVENTION
• According to Article 17 of the OPCAT, each state party
is to ‘maintain, designate or establish’ an NPM, which
may be composed of one or several bodies. A state
party must fulfil this obligation within one year of
ratifying the OPCAT
• In designating its NPM, a state party must:
– guarantee the NPM’s functional independence and
the independence of its personnel
– ensure that the NPM has the necessary expertise in
terms of the required capabilities and professional
knowledge
 OPTIONAL PROTOCOL TO CAT -
PREVENTION
• The NPM must have the following powers:
– to regularly examine the treatment of the persons
deprived of their liberty in places of deprivation of
liberty
– to make recommendations to the relevant
authorities with the aim of improving the treatment
and conditions of the persons deprived of liberty
and preventing torture and other forms of ill-
treatment
– to submit proposals and observations on existing
legislation and draft new legislation.
 OPTIONAL PROTOCOL TO CAT -
PREVENTION
• The NPM must have the following powers:
– to regularly examine the treatment of the persons
deprived of their liberty in places of deprivation of
liberty
– to make recommendations to the relevant
authorities with the aim of improving the treatment
and conditions of the persons deprived of liberty
and preventing torture and other forms of ill-
treatment
– to submit proposals and observations on existing
legislation and draft new legislation.
NEXT WEEK

CEDAW
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