How To Complain About Human Rights Treaty Violations
The Four Principal UN Human Rights Treaties Containing Complaint Mechanisms - Overview
b) The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
The overall objectives of the Convention are to prevent acts of torture and similar acts, and to ensure that effective remedies are available to victims when such acts occur.
The Committee Against Torture is the treaty body associated with the Convention.
ii) Adoption and Entry into Force
The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was adopted by the General Assembly on 10 December 1984 and came into force on 26 June 1987. For any state that ratified CAT after 27 May 1987, the Convention came into force thirty days after the date of deposit of its instrument of ratification (article 27(2)).
iii) Obligations Undertaken by States Parties
States parties undertake a variety of obligations concerning the prevention of torture and cruel, inhuman or degrading treatment or punishment, the investigation of allegations of torture and cruel, inhuman or degrading treatment or punishment, the criminal prosecution and/or extradition of torturers, and the compensation of torture victims.
iv) Summary of Substantive Rights
Definition of torture
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 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."
The application of the Convention is therefore limited to acts by, or with the consent of, public officials, or persons acting in an official capacity.
Prevention of torture
States parties undertake to take effective, legislative, administrative or other measures to prevent acts of torture within their jurisdictions (article 2(1)).
Absolute character of prohibition
The obligation under the Convention to prevent torture is absolute. In particular:
- no exceptional circumstances whatsoever, including public emergency, can be invoked to justify torture (article 2(1));
- an order from a superior officer or public authority cannot be invoked as a justification for torture.
States parties are prohibited from expelling a person to another state (for example, by extradition) if there are substantial grounds for believing there is a danger of that person being subjected to torture (article 3).
Criminalization of acts of torture
States parties undertake to criminalize and punish acts of torture within their jurisdiction (article 4);
Jurisdiction to prosecute
States parties undertake to establish wide jurisdiction over the prosecution of acts of torture. This includes jurisdiction over alleged torturers who the state party does not extradite under article 8 (see below) (article 5);
States parties undertake the following obligations with respect to alleged torturers in their territory:
- Examine the information available (article 6(1));
- If satisfied the circumstances warrant it, take into custody or take other legal measures to enable criminal or extradition proceedings to be instituted (article 6(1);
- Make a preliminary inquiry into the facts (article 6(2));
- Assist the alleged torturer in communicating with his or her state of nationality or residence (article 6(3));
- Notify other states parties (article 6(4)).
Duty to prosecute
Unless the state extradites an individual to another jurisdiction, states parties undertake to prosecute any alleged torturer found within their jurisdiction, in the same manner and subject to the same guarantees of fair treatment, as any other alleged offender (articles 7).
Extradition of alleged torturers
States parties undertake to consider the extradition of alleged torturers to states parties, regardless of the existence of an extradition treaty with other state parties or the inclusion of torture in other treaties (article 8).
States parties undertake to afford one another the greatest measure of assistance in connection with the prosecution of alleged torturers (article 9).
Education of public officials
States parties undertake to educate and inform various categories of public officials and others in contact with those arrested or detained, about the prohibition against torture (article 10).
Review of interrogation rules
States parties undertake to keep under systematic review interrogation rules, methods and arrangements for the custody and treatment of detained persons (article 11).
States parties undertake to ensure the prompt and impartial investigation of possible acts of torture in territory within their jurisdiction (article 12).
Investigation of complaints
States parties undertake to provide individuals a right to complain of alleged torture, to have the complaint promptly and impartially examined, and to be protected, along with any witnesses, against ill-treatment or intimidation (article 13).
States parties undertake to provide redress to victims of torture or their relatives, including compensation and rehabilitation (article 14).
Inadmissibility of statements obtained under torture
States parties are prohibited from using statements obtained under torture as confessions or as evidence of other offences in subsequent criminal proceedings. However, if it is established that a statement was given under torture, this fact may be used as evidence against the torturer. (article 15)
Cruel, inhuman or degrading treatment or punishment
In addition to the prevention and punishment of torture, states parties undertake duties to prevent and investigate acts of cruel, inhuman or degrading treatment or punishment not amounting to torture as defined in article 1, committed within their jurisdiction and instigated by, committed by or acquiesced in, by a public officials (article 16).
v) Limitations on Rights
The Convention emphasizes the absolute nature of the prohibition on torture, and the prohibition on return to a country where there is a personal risk of torture if returned. The Convention stipulates that neither exceptional circumstances such as public emergency, nor an order from a superior officer or public authority may be invoked in justification of an act of torture (article 2, paragraphs (2) and (3)).
Notwithstanding the absolute character of the prohibition against torture, some of the language of CAT incorporates possible limitations.
Definition of torture and of cruel, inhuman or degrading treatment or punishment
The definition of torture, article 1, paragraph 1, does not include "pain or suffering arising only from, inherent in or incidental to" lawful sanctions. The Torture Committee has not yet given guidance as to the meaning of this limitation.
What is considered "cruel", "inhuman" or "degrading" treatment or punishment will depend on a relative assessment of all the background circumstances. This would include consideration of the nature of the offending behaviour justifying the punishment.
Other language used to impose obligations on states parties
The obligation undertaken under article 2(1), to take "effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction", may not cover an isolated act of torture where a state party has undertaken extensive measures, in good faith, to prevent torture occurring within its jurisdiction. Other examples of language used in the Convention which define the extent of the obligations include the obligation in article 13 to take "steps" to ensure that complainants and witnesses are protected, and the obligation in article 14 to provide an enforceable right to "fair and adequate" compensation.
The Convention explicitly prohibits derogations in times of public emergency (article 2(2)).
The Convention expressly entitles states parties to make the following kinds of reservations:
- A reservation declaring that the state party does not recognize the competence of the Committee to conduct inquiries into systematic practices of torture (under article 20), (article 28(1));
- A reservation that the state party does not consider itself bound by a procedure for resolution of inter-state disputes as to the interpretation or application of the Convention (article 30).
The Convention is silent on the possibility of states entering other types of reservations.
viii) The Monitoring Body/Treaty Body: The Committee Against Torture (CAT)
Implementation of the Convention by states parties is monitored by the Committee against Torture (CAT). The Committee is composed of 10 independent experts, are nominated and elected by states parties to the Covenant, but intended to serve in their personal capacity.
CAT is engaged in the following tasks:
- Examination of state reports States parties are required to submit reports on the measures they have adopted to give effect to the provisions of the Convention.
- Consideration of individual cases (complaints) Individuals may claim a violation of the Convention by states parties that have specifically accepted the optional complaints procedure (article 22).
- Inquiries into allegations of systematic practice of torture The Committee may make inquiries concerning allegations of the systematic practice of torture in relation to states parties that have not exempted themselves from such inquiries by opting out of the inquiry provision (articles 20 and 28)
- General Comments The Committee has occasionally made General Recommendations based on its experience concerning the interpretation of the Convention.
- Consideration of state-to-state complaints A state party which considers that another state party is not fulfilling its obligations under the Convention may bring the matter to the attention of the Committee (article 21). However, no such inter-state complaint has ever been made.
The Committee meets twice each year in Geneva, in April/May and November, for sessions of two to three weeks.
Staff and facilities for the performance of the Committee's functions are provided by the Office of the United Nations High Commissioner for Human Rights.
The Committee submits an annual report of its activities to the General Assembly of the United Nations (article 24). The report contains the Committee's concluding observations made about states parties, in the context of reports, the results of its inquiries into allegations of the systematic practice of torture, decisions reached on individual cases, and any General Comments.
ix) Number of Ratifying States
Over two-thirds of UN member states are now parties to the Convention and one-quarter of UN member states (one-third of states parties) have accepted the individual complaints procedure associated with the Convention (article 22). This figure changes frequently and can be updated online.