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Manfred Nowak, Moritz Birk, Giuliana Monina

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Kyoto University; date: 30 October 2020

Torture — Treaties, entry into force — Treaties, interpretation — Treaties, reservations and declarations

(p. 1) Introduction

1.  The Phenomenon of Torture

Torture constitutes a direct and deliberate attack on the core of the human personality and dignity. As slavery, it aims at depriving human beings of their humanity. Slavery is defined in Article 1 of the Slavery Convention of 1926 as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. While slavery deprives the victim ex lege of his or her status as a human being by allowing the slave owner to exercise unrestricted legal power over the victim, torture describes a situation in which one person exercises unrestricted factual power over another person. Slavery and torture, as the two most extreme forms of dehumanizing human beings by depriving them of human dignity, have more in common than one would expect at the outset. In ancient Greek and Roman times, for example, witness testimony of slaves in civil or criminal proceedings was only admitted if confirmed under torture. This relationship between slavery, torture, and the right to human dignity is best expressed in Article 5 of the African Charter of Human and Peoples’ Rights (ACHPR).1

The powerlessness of the victim, which in our opinion constitutes one of the essential definitional criteria of torture,2 is illustrated by many of the typical methods of torture, including short-shackling, suspension in painful positions such as ‘strapado’ or ‘Palestinian hanging’, stripping victims naked and subjecting them to various forms of beatings, electric shocks, rape, and other sexual assaults, repeated immersion into water while being fixed on a board (‘water boarding’) or into a mixture of blood, urine, vomit, and excrement (‘submarino’), simulated executions or amputations. Such a situation of absolute power and control over the victim usually means that the victim is detained and held behind closed doors. If the victim is held incommunicado in a secret place of detention, without any contact with the outside world, the feeling of being isolated, frightened, powerless, and subject to the unrestricted power of the torturer is indeed most extreme. Torture aims at breaking the will of the victim in order to achieve a certain purpose, such as extracting a confession or other relevant information.

(p. 2) Torture was practised by many peoples and in various cultures during different historical periods.3 Particular brutal and well documented examples were the practices of torture against slaves and Christians during Roman times, against criminal suspects during the Middle Ages, against witches by the Roman Catholic inquisition in Europe, against African slaves in the American hemisphere, and against peoples under colonial domination of European powers in Africa, Asia, and Latin America. Although torture, as slavery, was legally abolished in Europe and the American hemisphere during the eighteenth and nineteenth centuries as a result of the age of Enlightenment, natural law, humanism, and rationalism, it continued to exist or re-appeared in practice. Most notorious were the systematic and extremely cruel practices of torture under the totalitarian regimes of Stalinism and National Socialism before and during World War II.

With the development of international human rights law after World War II, the prohibition of slavery (as well as slave trade and servitude) and torture (as well as cruel, inhuman or degrading treatment or punishment) soon emerged as two human rights which were formulated as absolute and non-derogable rights, even in times of war, terrorism, and similar public emergencies threatening the life of the nation. The absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment can be found, for instance, in Article 5 UDHR 1948, common Article 3 of the four Geneva Conventions on Humanitarian Law 1949, Article 3 (together with 15) ECHR 1950, the UN Standard Minimum Rules for the Treatment of Prisoners 1955 (and the revised ‘Mandela Rules’ of 2015), Article 7 (together with 4) CCPR 1966, Article 5 (together with 27) ACHR 1969 and Article 5 ACHPR.

Nevertheless, torture continued to be systematically practised in many parts of the world. Well-known and documented cases during the 1960s and 1970s include the French practices in Algeria, the Portuguese practices in its former African colonies, the practices under the Greek military junta, and those under Latin American military dictatorships.4 Increasing reports of torture and massive ill-treatment from many parts of the world made Amnesty International (AI) launch a worldwide campaign against torture on Human Rights Day in 1972. Most notorious were the cruel methods of torture practised by the military junta under General Augusto Pinochet Ugarte, who had overthrown the democratically elected Government of Salvador Allende in Chile on 11 September 1973. The widely documented cases of torture and enforced disappearances in Chile turned out to be the starting point for a number of far-reaching measures and reforms in international human rights law. In November 1973, the UN General Assembly expressed serious concerns about these torture practices and put the question of torture and cruel, inhuman or degrading treatment or punishment as a standing item on its agenda.5 In spring 1974, the Human Rights Commission, in a telegram addressed to the Chilean Government, expressed its concerns about torture which, at that time, constituted an (p. 3) unprecedented step that was still widely regarded as an undue interference with the domestic jurisdiction of States under Article 2(7) of the UN Charter. A year later the UN General Assembly adopted the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, hereinafter referred to as ‘the Declaration’.6 This non-binding Declaration, based on a draft prepared during the Fifth UN Congress on Crime Prevention, already contained the use of criminal law for the prevention of torture.7 The adoption of the Declaration was the first step in the process of drafting a binding Convention against Torture and its text served as a model.

2.  Drafting History, Entry into Force, and Status of Ratification of the Convention and Protocol

In December 1977, the General Assembly formally requested the Commission on Human Rights to draft the text of a binding Convention against Torture on the basis of the 1975 Declaration.8 When the Commission in February 1978 entrusted this task to an informal, inter-sessional Working Group,9 the International Association of Penal Law (IAPL) and the Swedish Government had already prepared draft texts with innovative ideas regarding international human rights law.

The IAPL Draft of 15 January 1978 put the focus on the obligation of States to criminalize torture and to bring the perpetrators to justice.10 Similar to the Genocide Convention of 1948 and the Apartheid Convention of 1973, it aimed at declaring torture a crime under international law. With respect to international monitoring, it envisaged a State reporting procedure before the Human Rights Committee, assisted by a Special Committee on the Prevention of Torture, and the possibility to bring disputes before the ICJ. The draft was only concerned with torture but not with cruel, inhuman or degrading treatment or punishment.

The original Swedish Draft of 18 January 1978 closely followed the 1975 Declaration. It also focused on the criminalization of torture but proposed the principle of universal jurisdiction, in combination with the principle ‘aut dedere aut iudicare’, similar to earlier (p. 4) treaties against hostage-taking and other forms of terrorism.11 In addition to obligations aimed at bringing individual perpetrators of torture to justice before domestic criminal courts, the Swedish Draft also contained a number of suggestions for the prevention of torture. With respect to international monitoring, it proposed to entrust the Human Rights Committee with special tasks of examining State reports, deciding on individual and inter-State complaints, as well as conducting ex officio inquiries. The Swedish Draft was chosen by the Working Group as the main basis for its deliberations.12

In 1980, Costa Rica proposed to the Human Rights Commission a draft for an Optional Protocol to the draft Convention against Torture which was based on the experiences of the ICRC and a private Swiss proposal of Jean-Jacques Gautier, a Geneva-based banker. The Costa Rica Draft, which was actively supported by the International Commission of Jurists and the Swiss Committee against Torture, aimed at introducing a system of preventive and unannounced visits to places of detention.13

Between 1978 and 1984, the inter-sessional Working Group of the Human Rights Commission under the chair of the Dutch diplomat Herman Burgers, despite strong ideological differences between the Western, Socialist, and other concepts of human rights, succeeded in finding a compromise on most of the controversial issues, including the principle of universal jurisdiction.14 Instead of entrusting the Human Rights Committee with the additional task of monitoring compliance with the CAT, the Working Group proposed to establish a Committee against Torture consisting of ten independent experts.

When the Human Rights Commission adopted the draft Convention of the Working Group in March 1984 and transmitted it to the General Assembly,15 only two controversial questions remained open: the competence of the Committee against Torture to issue country specific comments and suggestions in relation to State reports under Article 19 and the mandatory character of the inquiry procedure under Article 20 CAT.16 Since most States were eager to adopt the Convention quickly, Western States in the Third Committee of the General Assembly gave in to certain demands of Socialist States.17 The result is the ‘opting-out clause’ in Article 28 CAT and a highly ambiguous provision about ‘general comments’ on specific State reports in Article 19(3) CAT.18

(p. 5) With these compromises, the Convention against Torture was unanimously adopted by the UN General Assembly on 10 December 1984.19 When the Convention was opened for signature on 5 February 1985, a total of twenty States, including twelve member States of the Council of Europe, had already signed it. The Convention entered into force on 26 June 1987, exactly thirty days after the date of deposit of the twentieth instrument of ratification.20 Since the required number of five optional declarations in accordance with Articles 21(2) and 22(8) CAT had already been achieved at an earlier stage, the individual and inter-State complaints procedures entered into force on 26 June 1987 as well.21 On 26 November 1987, the States parties to the Convention elected the first ten members of the Committee against Torture,22 which held its first session in Geneva from 18 to 22 April 1988.23

As of 31 December 2017, the Convention against Torture has been ratified or acceded to by a total of 162 States from all regions of the world.24 Of these 162 States parties, sixty-three have made the optional declaration under Article 21(1) recognizing the inter-State complaints procedure, and sixty-nine States parties have made the optional declaration under Article 22(1) recognizing the individual complaints procedure.25 Since the adoption of the Convention, twenty-six States parties have availed themselves of the ‘opting out’ possibility under Article 28 in relation to the inquiry procedure under Article 20, some of which withdrew this reservation later. Presently, only fourteen of the 162 States have opted out, which means that a total of 148 States parties have in fact accepted this additional monitoring procedure.26 Finally, thirty-three States parties have over time availed themselves of the ‘opting out’ possibility under Article 30(2) in relation to the dispute settlement procedure and the competence of the ICJ under Article 30(1), but again some have withdrawn their reservation, and presently there are twenty-four States parties that have opted out.27

The Costa Rica draft Optional Protocol aimed at establishing a system of preventive visits to places of detention was not taken up during the drafting of the CAT. During the Cold War, the competence of an international monitoring body to carry out preventive and unannounced missions and visits to the territory of States parties was politically simply unacceptable and regarded as undue interference with State sovereignty. But the Council of Europe took up this idea of Jean-Jacques Gautier, actively supported by the Swiss Committee against Torture (which later became the Association for the Prevention of Torture (APT)) and the International Commission of Jurists, and adopted the European Convention for the Prevention of Torture (ECPT) in 1987.28 After the entry into force of this innovative Convention on 1 February 1989, the European Committee for the Prevention of Torture (CPT) was established, consisting of one independent expert per State party (presently forty-seven), with the task of organizing missions to the territory of States parties, conducting unannounced visits to places of detention and carrying out private interviews with detainees. In practice, the missions and visits of the CPT and its (p. 6) reports to States parties with far-reaching recommendations have had a significant impact on improving conditions of detention and the treatment of detainees in most of the member States of the Council of Europe.29

After the end of the Cold War, the UN Commission on Human Rights took up the idea of Jean-Jacques Gautier and entrusted another inter-sessional Working Group with the task of drafting an Optional Protocol to the CAT. The Working Group based its deliberations on a revised draft submitted by Costa Rica and was chaired by Elizabeth Odio Benito, former Minister of Justice of Costa Rica.30 The highly controversial and political discussions between European and most Latin American States on the one hand, and a broad variety of other States on the other, concerning primarily issues of State sovereignty, blocked any significant progress during the 1990s. Only after Mexico had reacted on the European States’ suggestion of a very strong SPT with a far-reaching mandate and introduced the idea of establishing domestic visiting commissions (so-called national preventive mechanisms)31 in addition to the international monitoring body (the UN Subcommittee on Prevention of Torture [SPT]),32 could a broad majority be formed to adopt the OP by majority vote.

The OP was adopted on 18 December 2002 in the General Assembly by a vote of 127 States in favour, four against and forty-two abstentions.33 On 22 June 2006, ie thirty days after the date of deposit of the twentieth instrument of ratification, the OP entered into force.34 On 18 December 2006, the States parties to the OP elected the first ten independent experts of the SPT,35 which held its first session in Geneva from 19 to 23 February 2007.36 As of 31 December 2017, a total of 84 States parties to CAT had ratified or acceded to the OP.37

3.  Content and Significance of the Convention and Protocol

The Convention against Torture was adopted in 1984 as a specialized human rights treaty in response to the widespread and systematic practice of torture in Latin America and other regions of the world. Since the prohibition of torture and cruel, inhuman or degrading treatment or punishment has been recognized in Article 7 CCPR and other international and regional human rights treaties as an absolute and non-derogable human right and is also considered as jus cogens, the drafters of the Convention abstained from reiterating this principle. Rather, the Convention is based on the explicit desire of its drafters ‘to make more effective the struggle against torture and other cruel, inhuman or (p. 7) degrading treatment or punishment throughout the world’.38 This goal was achieved by three different types of measures: repression against individual perpetrators of torture by means of domestic criminal law and the principle of universal jurisdiction; recognition of the right of victims of torture to a remedy and adequate reparation; and comprehensive obligations of States parties to prevent torture and cruel, inhuman or degrading treatment or punishment. Although the term ‘cruel, inhuman or degrading treatment or punishment’ has not been defined and the different categories of ill-treatment not delineated,39 Article 1 CAT is the first provision in international law which provides for a legal definition of torture which, nevertheless, is subject to controversial discussions in legal theory and practice.40 Since most of the Convention’s provisions, above all those related to the criminal responsibility of the perpetrators, only apply to torture and not to cruel, inhuman or degrading treatment or punishment, the legal distinction between torture and other forms of ill-treatment is significant.

Most preventive obligations of States parties equally apply to torture and cruel, inhuman or degrading treatment or punishment.41 In addition to the general obligation of States parties under Articles 2 and 16 to take effective legislative, administrative, judicial, or other measures to prevent torture and cruel, inhuman or degrading treatment or punishment in any territory under their jurisdiction, States also have specific obligations to include the prohibition of torture and cruel, inhuman or degrading treatment or punishment in the training curricula of law enforcement and prison personnel (Article 10), to keep interrogation rules and methods under systematic review (Article 11), and to carry out prompt and impartial ex officio investigations, wherever there is reasonable ground to believe that an act of torture or cruel, inhuman or degrading treatment or punishment has been committed (Article 12). Since victims of torture are often too afraid or unable to lodge a complaint against their tormenters, this obligation of police chiefs, prison directors, public prosecutors, police and prison doctors, and others to start ex officio a thorough investigation before an independent body whenever they suspect that an act of torture or cruel, inhuman or degrading treatment or punishment might have occurred, is of utmost importance for the prevention of torture. In addition, no confession or information extracted by torture shall be admitted as evidence in any judicial or administrative proceedings (Article 15). If the relevant authorities were to take the inadmissibility of torture tainted evidence seriously, a major incentive for extracting information and confessions through torture would disappear. Finally, States parties to the OP have an additional preventive obligation to establish one or several independent national preventive mechanisms with the power to carry out unannounced visits to all places of detention, to conduct private interviews with all detainees, and to make recommendations to the relevant authorities with the aim of preventing torture and improving conditions of detention (Articles 17–23 OP).

Another important provision for the prevention of torture is the principle of non-refoulement in Article 3 CAT. States are not only under an obligation to refrain from practising torture and cruel, inhuman or degrading treatment or punishment by their own officials on their own territory, but they are also required to refrain from expelling, returning, or extraditing a person to another State where there are substantial grounds (p. 8) for believing that he or she would be in danger of being subjected to torture. Since many victims of torture flee their country and seek refuge in other countries, the principle of non-refoulement constitutes an important means of protecting vulnerable groups. If States were to respect this important principle properly, many cases of torture could be prevented. It is interesting to note that the vast majority of individual complaints under Article 22 CAT so far decided by the Committee against Torture relate to the principle of non-refoulement.42

In addition to these measures aimed at preventing torture, a second category of State obligations relates to the right of victims of torture to a remedy and adequate reparation for the harm suffered. Article 13 provides that every victim of torture and cruel, inhuman or degrading treatment or punishment has the right to complain to a competent domestic authority which shall promptly and impartially examine every allegation and ensure that victims and witnesses are adequately protected against intimidation and reprisals. If domestic remedies are not effective, Article 22 provides for the possibility for victims to submit an individual complaint against the State party concerned to the Committee against Torture. As mentioned above, this individual complaints procedure is, however, optional and only sixty-eight out of the 162 States parties to CAT have made the respective declaration in accordance with Article 22(1).43 Victims of torture also have the right to adequate reparation for the harm suffered, which consists primarily of fair and adequate monetary compensation as well as medical, psychological, and other types of rehabilitation (Article 14).

The third category of State obligations relates to the use of domestic criminal law against perpetrators of torture and constitutes a special raison d’être for the entire Convention. First of all, States are under an obligation to ensure that all acts of torture are offences under their criminal law punishable by appropriate penalties which take into account their grave nature (Article 4). This obligation of States parties to criminalize torture is modelled on earlier counterterrorism treaties and was at the time of drafting of the Convention new and almost revolutionary in the context of a typical human rights treaty. However, thirty years after the entry into force of the Convention, we realize that only a minority of States parties in fact fully complied with this important legal obligation.

In addition to including torture as a crime in their domestic criminal codes, States parties have an obligation to establish their jurisdiction on the basis of the territoriality, flag, active and passive nationality as well as the universal jurisdiction principles (Article 5). In other words, no safe havens for perpetrators of torture shall continue to exist in our contemporary global world. Wherever a perpetrator of torture is travelling or residing, the authorities of the respective State have an obligation to arrest him or her, to make a preliminary inquiry into the facts, and to decide in accordance with the principle ‘aut dedere aut iudicare’ whether to extradite the person to his or her country of origin, residence, or commission of the act of torture, or to prosecute the person before their own domestic criminal courts (Articles 5 to 9). Unfortunately, very few countries have so far complied with these obligations, but a few encouraging cases show that the awareness is growing that safe havens for perpetrators of torture, whether police officers, prison guards, military commanders, or Heads of State or Government of States responsible for systematic practices of torture, are no longer permissible.44

(p. 9) The international monitoring of States’ compliance with their obligations under the Convention follows that of other UN human rights treaties: the establishment of an independent treaty monitoring body, the Committee against Torture consisting of ten independent experts from different fields of expertise, with a mandate to examine mandatory State reports (Article 19) and optional inter-State (Article 21) and individual complaints (Article 22). The only innovative provision was the introduction of an ex officio inquiry procedure by the Committee in case it ‘receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised’ (Article 20). This procedure is not dependent on any complaints and may lead to a fact finding investigation on the spot. However, during the drafting of the Convention this potentially strong procedure has been considerably watered down. States parties may ‘opt out’ of the procedure by a reservation in accordance with Article 28, the entire procedure is highly confidential, and any fact-finding visits to the territory of the country concerned are dependent on an explicit agreement by the respective Government. Nevertheless, the Committee so far has completed ten inquiries in relation to Turkey, Egypt, Peru, Sri Lanka, Mexico, Serbia and Montenegro, Brazil, Nepal, Lebanon, and, again, Egypt.45 Finally, with respect to States parties to the OP, the Subcommittee on Prevention (SPT) has the mandate to carry out preventive missions and unannounced visits to all places of detention, to conduct private interviews with all detainees, to assist the respective national preventive mechanisms and to make recommendations to the States parties concerned (Articles 11–16 OP).

More than thirty years after the entry into force of the CAT 162 States have ratified the main treaty to fight torture and other forms of ill-treatment. However, despite the broad ratification and the universal recognition of the prohibition of torture and other forms of ill-treatment we witness a ‘global crisis’46 affecting the majority of countries worldwide. At the end of his six-year term as UN Special Rapporteur on Torture, Manfred Nowak concluded that torture exists in roughly 90% of all States, that it constitutes a routine phenomenon of police behaviour in more than half of all States, and that it is systematically practised in some 10% of all States. In addition, he identified a global prison crisis as the conditions of detention in most States of the world amount to inhuman or degrading treatment.47 The lack of implementation of the CAT obligations is due to dysfunctional criminal justice systems, corruption and insufficient capacities of state authorities, as well as a lack of political will to fight this horrible practice. In recent years the protection of human rights is experiencing a particularly serious crisis—also affecting the phenomenon of torture—in which official narratives and public belief often trivialize and even endorse such practices in the name of security and the fight against terrorism, ignoring the suffering and damages it causes. On the other hand, the positive experiences in some States illustrate that torture can be eradicated if the provisions of CAT and OPCAT are taken seriously and are being fully implemented.

(p. 10) 4.  Rules of Interpretation

According to Article 31 VCLT, an international treaty ‘shall be interpreted … in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose’. Thus, of primary significance is the textual, contextual, systematic and teleological interpretation, whereby, in addition to the treaty wording, consideration is also given to the Preamble.48 The object and purpose of the Convention and Protocol can be derived from the desire of the drafters, as laid down in the respective Preambles: on the one side to make the struggle against torture and cruel, inhuman or degrading treatment or punishment ‘more effective’ and, on the other side, to strengthen the protection of persons deprived of their liberty against torture and other forms of ill-treatment by establishing a system of preventive visits to all places of detention. Any interpretation which would lead to the weakening of already existing norms for the prohibition and prevention of torture and cruel, inhuman or degrading treatment or punishment has thus been avoided. Systematic interpretation may be facilitated by a comparative analysis of similar international or regional human rights treaties, such as the CCPR, the Inter-American Convention to Prevent and Punish Torture 1985, or the ECPT. The subsequent practice of States parties, to be considered pursuant to Article 31(3) VCLT, can in part be derived from relevant reservations and declarations of interpretation, as well as from State reports and observations submitted by States parties.

Human rights texts are often characterized by a high degree of abstraction and vagueness. If the textual, contextual, systematic, and teleological interpretation ‘leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable’, Article 32 VCLT permits additional tools to be drawn upon, in particular, the preparatory work of the treaty (‘travaux préparatoires’). The historical background of the CAT and the OP, above all the detailed discussions in the respective inter-sessional Working Groups of the UN Commission on Human Rights, has been outlined in relation to every Article and was used in the present Commentary as a source of interpretation whenever the meaning of a certain provision remained ambiguous.

The most important sources of information used in this Commentary as a tool for interpreting the provisions of the Convention is the practice of the Committee against Torture, be it in the State reporting, individual complaints and inquiry procedures. The same is valid for the practice of the SPT with regard to the Optional Protocol. In particular, decisions and statements of the Committee based on consensus rank highly in the interpretation of the Convention, even though these are not internationally binding. For the purpose of the present Commentary, the entire case law on individual complaints, the ‘General Comments’, country-specific comments, and observations in the State reporting procedure, as well as the reports in the inquiry procedure have been treated as an ‘authoritative interpretation’ of the relevant provisions of the Convention. The case law and practice of other treaty monitoring bodies, such as the UN Human Rights Committee, Special Procedures of the Human Rights Council, above the Special Rapporteur on Torture, as well as regional bodies, such as the European, African, and Inter-American (p. 11) Courts/Commissions of Human Rights or the CPT, have also been taken into account, as was the case with relevant literature.

5.  Reservations, Declarations of Interpretation, and Denunciation of the Convention and Protocol

Article 19(c) VCLT provides that reservations are, in the absence of a treaty provision to the contrary, permissible in so far as they are not ‘incompatible with the object and purpose of the treaty’. While the CAT permits specific ‘opting-out’ reservations under Articles 28(1) and 30(2), no general provision concerning the permission or prohibition of reservations or declarations of interpretation can be found. In our opinion, the fact that Articles 28(1) and 30(2) permit specific reservations cannot be used as an argument that other reservations and declarations of interpretation are generally prohibited.49 However, Article 30 OP contains a general prohibition of reservations to the Protocol.50

In addition to the specific ‘opting-out’ reservations foreseen in Articles 28(1) and 30(2) and the optional declarations in accordance with Articles 21(1) and 22(1) CAT, only a few States have submitted reservations or declarations of interpretation.51 Article 20(5) VCLT states that, in the absence of a treaty provision to the contrary, a reservation qualifies as accepted if a State does not raise an objection within twelve months of notification. In practice, very few objections have been lodged. For example, eight States parties objected to a reservation by Qatar regarding any interpretation of the provisions of the Convention incompatible with the precepts of Islamic law and the Islamic religion.52

Whether a reservation is compatible with the object and purpose of the Convention is a question which needs to be determined by the Committee against Torture.53 If the Committee finds a certain reservation to be incompatible with the object and purpose of the Convention, this reservation must be considered as invalid and can be severed from the instrument of ratification, so that the reserving State is fully bound by the treaty, including the provisions to which the reservation related.54 In practice, the Committee has on several occasions voiced its concern over broad and imprecise reservations, as well as reservations having a limiting effect on the Convention, and has issued recommendations to these States parties to withdraw them.55

Article 31 CAT and Article 33 OP explicitly provide for the right of States parties to denounce the Convention and the Protocol at any time by written notification addressed to the Secretary General of the United Nations. So far, no State party has made use of this right.56(p. 12)


1  Art 5 ACHPR reads as follows: ‘Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.’

2  See below Art 1, §§ 114–21.

3  See eg Max Bauer and Franz Helbing, Die Tortur Geschichte der Folter im Kriminalverfahren aller Völker und Zeiten (Aalen 1973); George Riley Scott, A History of Torture throughout the Ages (Luxor Press 1959); Alec Mellor, La torture, son histoire, son abolition, sa réapparition au XXème siècle (Maison Mame 1961); Wolfgang Schild, Von peinlicher Frag. Die Folter als rechtliches Beweisverfahren (Rothenburg odT 2002); Edward Peters, Torture (2nd expanded edn, University of Pennsylvania Press 1996). For a short overview see Manfred Nowak, ‘Die UNO-Konvention gegen die Folter vom 10 Dezember 1984’ (1985) 12 EuGRZ 109–116.

4  According to AI’s first world survey published in 1973, torture was practised in more than sixty countries. See AI, Report on Torture (2nd rev edn, Amnesty International 1975).

5  GA Res 3059 (XXVIII) of 2 November 1973; see [1977] Revue Internationale de Droit Pénal 213ff.

6  GA Res 3452 (XXX) of 9 December 1975.

7  cf J Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 13–18; Chris Ingelse, The UN Committee against Torture: An Assessment (Kluwer Law International 2001) 68–72.

8  GA Res 32/62 of 8 December 1977. For the travaux préparatoires of the CAT see, in particular, Burgers and Danelius (n 7); Alois Riklin (ed), Internationale Konventionen gegen die Folter—St Galler Expertengespräch 1978 (Bern 1979); Stefan Trechsel, ‘Probleme und aktueller Stand der Bemühungen um eine UN-Konvention gegen die Folter’ (1982) 33 ÖZÖR 245; Christine Chanet, ‘La Convention des Nations Unies contre la torture et autres peines ou traitements cruels, inhumains ou dégradants’ (1984) 30 AFDI 625; Carlos Villan Duran, ‘La Convención contra la tortura y su contribución a la definición del derecho a la integridad fisica y moral en el derecho internacional’ (1985) 27 REDI 377; Nowak, Die UNO-Konvention (n 3); Manfred Nowak, ‘Recent Developments in Combating Torture’ (1987) 19 SIM Newsletter 24; Maxime E Tardu, ‘The United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’ (1987) 56 NJIL 303; Peter R Baehr, ‘Nederland en de totstandkoming van de VN-conventie tegen martelingen’ (1987) 41 International Spectator 549; Ingelse (n 7); Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Martinus Nijhoff 1999).

9  CHR Res 18 (XXXIV) of 7 March 1978.

10  See E/CN4/NGO/213 of 15 January 1978 and [1977] Revue Internationale de Droit Pénal Vols 3 and 4. See also Thoolen in Riklin (n 8) 41.

11  Arts 8(2), 11, and 14 of the Swedish Draft in E/CN.4/1285 of 18 January 1978. See also Danelius in Riklin (n 8) 35.

12  See Burgers and Danelius (n 7) 38.

13  Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted by Costa Rica (1980) UN Doc E/CN.4/1409; see also Stefan Trechsel, ‘Privater Schweizer Entwurf Für Eine Internationale Konvention Gegen Die Folter’ in Alois Riklin (ed), Internationale Konventionen gegen die Folter: Conventions Internationales Contre la Torture: International Conventions against Torture (P Haupt 1979) 45;