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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.17 Committee against Torture

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, 2022. All Rights Reserved.date: 25 January 2022

Subject(s):
Heads of state and other senior officials — Torture — Treaties, interpretation

(p. 475) Article 17  Committee against Torture

  1. 1.  There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of ten experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.

  2. 2.  The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and who are willing to serve on the Committee against Torture.

  3. 3.  Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

  4. 4.  The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

  5. 5.  The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3 of this article.

  6. 6.  If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

  7. 7.  States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties.

(p. 476)

1.  Introduction

The Committee against Torture (hereinafter CAT Committee or the Committee) is one of the presently ten treaty monitoring bodies of the United Nations (UN), similar to the Human Rights Committee (HRC), the Committee on Economic, Social, and Cultural Rights (CESCR), the Committee on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination against Women (CEDAW), Committee on the Rights of the Child (CRC), the Committee on Migrants Workers (CMW), and the more recently established bodies under the Convention for the Protection of All Persons from Enforced Disappearance (CED), the Convention on the Rights of Persons with Disabilities (CRPD) and the Optional Protocol to the Convention Against Torture (OPCAT).1 Since the Committee is modelled on the HRC established in accordance with Article 28 CCPR, the following considerations will be fairly brief and draw upon the interpretation developed in the CCPR Commentary.2

Strictly speaking, the Committee is not a body of the UN but a relatively autonomous quasi-judicial treaty based organ created by the States parties of the Convention. This is underlined by the fact that all ten expert members of the Committee must be nationals of, and are nominated and elected by, States parties. In addition, Article 17(7) requires States parties to bear the financial responsibility for the expenses of Committee members. In practice, this has led to serious financial problems which were solved by integrating the Committee more into the UN.

The Committee has more monitoring functions than some of the other treaty bodies. In addition to the mandatory State reporting procedure under Article 19 and the optional inter-State and individual complaints procedures under Articles 21 and 22, (p. 477) the Committee is also entrusted by virtue of Article 20 to carry out confidential ex officio inquiries in the case of well-founded indications that torture is being systematically practised in a State party. The inquiry procedure is mandatory but States parties may ‘opt out’ in accordance with Article 28. With the entry into force of the Optional Protocol to the CAT in 2006, the Committee also assumed a further, albeit limited, function of supervising the work of the newly created Sub-Committee on Prevention of Torture (SPT).3

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

IAPL Draft (15 January 1978)4

Article XIII

  1. 1.  The Contracting Parties undertake to submit to the Human Rights Committee established under the Covenant periodic reports on the legislative, judicial, administrative and other measures they have adopted to implement this Convention.

  2. 2.  The first report shall be submitted within one year of the entry into force of the Convention and thereafter a report shall be submitted every two years.

  3. 3.  The Chairman of the Human Rights Committee shall, after consulting the other members of the Committee, appoint a Special Committee on the Prevention of Torture, consisting of five members of the Human Rights Committee who are also nationals of the Contracting Parties to this Convention to consider reports submitted by contracting Parties in accordance with this Article.

  4. 4.  If, among the members of the Human Rights Committee, there are no nationals of the Contracting Parties to this Convention or if there are fewer than five such nationals, the SG of the UN shall, after consulting all Contracting Parties to this Convention, designate a national of the Contracting Party or nationals which are of the Contracting Parties which are not members of the Human Rights Committee to take part in the work of the Special Committee established in accordance with paragraph 3 of this Article, until such time as sufficient nationals of the Contracting Parties to this Convention are elected to the Human Rights Committee.

  5. 5.  The Special Committee on the Prevention of Torture shall meet not less than once a year for a period of not more than five days, either before the opening or after the closing of the sessions of the Human Rights Committee and shall issue an annual report of its findings.

Original Swedish Draft (18 January 1978)5

Article 16

States undertake to submit to the Secretary-General of the United Nations, when so requested by the Human Rights Committee established in accordance with article 28 of the CCPR (hereinafter referred to in the present Convention as the Human Rights Committee), reports or other information on measures taken to suppress and punish torture and other cruel, inhuman or degrading treatment or punishment. (p. 478) Such reports or information shall be considered by the Human Rights Committee in accordance with its procedures set out in the CCPR and in the Rules of Procedure of the Human Rights Committee.

Draft Optional Protocol by Costa Rica (6 March 1980)6

Article 4

  1. 1.  The Committee shall be composed of 10 members until such time as there are not less than 25 States Parties to the present Protocol. Thereafter the Committee shall be composed of 18 members.

  2. 2.  The members of the Committee shall be persons of high moral character and in the matters dealt with in the Convention and the present Protocol.

  3. 3.  The members of the Committee shall be elected and shall serve in their personal capacity.

Article 5

  1. 1.  The members of the Committee shall be elected for a term of four years. However, at the first election half of the members shall be elected for two years. Thereafter, elections shall be held every two years for half of the members of the Committee.

  2. 2.  Each State Party may nominate not more than four persons or, where there are not less than 25 States Parties, not more than two persons. These persons shall be nationals of the nominating State.

  3. 3.  A person shall be eligible for renomination.

Swedish Proposal for the Implementation Provisions (22 December 1981)7

Article 17

  1. 1.  There shall be established a Committee against Torture (hereinafter the Committee). It shall consist of nine members and shall carry out the functions hereinafter provided.

  2. 2.  The Committee shall be composed of nationals of the States to the present Convention and, so far as possible, of persons who are also members of the Human Rights Committee established in accordance with Article 28 of the Covenant. The members of the Committee shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of some persons having legal experience.

  3. 3.  The members of the Committee shall be elected and shall serve in their personal capacity.

Draft Implementation Provisions, submitted by the Chairman-Rapporteur of the Working Group as possible Alternative to the new Swedish Proposals (1 February 1982)8

Article 17

  1. 1.  For the performance of the functions described in articles 18 and 19 there shall be established a group consisting of five persons of recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience.

  2. (p. 479) 2.  The Chairman of the Commission on Human Rights shall appoint the members of the group from among representatives to the Commission on Human Rights who are nationals of States Parties to the Convention. If fewer than five States Parties to the Convention are members of the Commission on Human Rights, the Secretary-General of the United Nations shall, after consulting with all States Parties to the Convention, designate one or more nationals of the States Parties which are not members of the Commission to take part in the work of the group until the next session of the Commission on Human Rights.

  3. 3.  The members of the group established in accordance with the proceeding paragraphs shall serve in their personal capacity.

  4. 4.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance and functions of the group established in accordance with paragraphs 1 and 2.

  5. 5.  The groups established in accordance with paragraphs 1 and 2 shall forward an annual report on its performance of the functions described in articles 18 and 19 to the States Parties to the Convention. It shall forward a copy of this report to the Commission on Human Rights.

Four Draft Articles on Implementation, with the Explanatory Note, submitted by the Chairman-Rapporteur (24 December 1982)9

Article 17

  1. 1.  There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of ten experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.

  2. 2.  The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and who are willing to serve on the Committee against Torture

  3. 3.  Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

  4. 4.  The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

  5. (p. 480) 5.  The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3.

  6. 6.  For filling casual vacancies, the State party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee.

  7. 7.  The members of the Committee shall receive emoluments as well as compensation for their expenses while they are in performance of the Committee functions, on such terms and missions as the biennial meetings of States Parties may decide. The States Parties shall be responsible for these emoluments and expenses in the same proportions as their contributions to the general budget of the UN.

2.2  Analysis of Working Group Discussions

10  The Working Group of the Human Rights Commission did not deal with the supervisory mechanism of the Convention in its sessions between 1978 and 1980. However, the written comments of several States, made in 1978, on the implementation provisions of the original Swedish draft Convention,10 shaped the subsequent discussions of the Working Group.11

11  The question of the nature and composition of the enforcement mechanism was discussed, for the first time, during the Working Group session in 1981.12 Several proposals were subject to the deliberations of the Working Group. The original Swedish draft suggested in its Articles 16 to 21 that the implementation monitoring of the Convention should be carried out by the HRC established by Article 28 CCPR.13 The proposal of the IAPL (in its articles XIII and XIV),14 also attributed the monitoring of the implementation of the CAT to the HRC, but, in addition, provided for the appointment of a Special Committee on the Prevention of Torture (Article 13). The latter would consist of five members of the HRC who were also nationals of the States parties to the CAT. Both proposals provided for the monitoring of the implementation of the Convention based primarily on mandatory State reporting as well as inter-State and individual complaints procedures.15

12  In 1980, Costa Rica submitted a draft Optional Protocol16 which provided for the establishment of an Independent International Committee as supervisory body authorized to arrange preventive visits to places of detention of all kinds under the jurisdiction of the States parties having ratified the OP.17

(p. 481) 13  Moreover, the Netherlands had submitted an amendment to the Swedish proposal modifying Article 16 and providing for the establishment of a new Committee that would be composed of members of the HRC, functioning as the supervisory body of the Convention.18 According to an additional Article, the procedures provided for in the CCPR and/or in the Protocol would apply between States parties to the Convention which were also parties to the CCPR and which had accepted the competence of the HRC under Article 41 and/or under the first OP to the CCPR, whereas otherwise the procedures provided for in the Convention would apply.

14  During this session, the Working Group also discussed a telegram by the Legal Counsel of the United Nations, explaining the legal difficulties that would be encountered if the monitoring mechanism of the Convention were the HRC.19 According to the Legal Counsel this proposal would constitute a modification of the terms of the CCPR. Moreover, the general concordance in purpose of Article 7 CCPR and the Convention would not be sufficient to give monitoring competence over the CAT to the HRC, since the latter must function in compliance with its constituent treaty.20

15  Several delegations who shared the opinion of the Legal Counsel concerning the potential difficulties involved stated that the parties to the Convention and the CCPR would not necessarily be the same.21

16  In general, some States (for example Argentina and Brazil) defended the option of self-enforcement, meaning that each State party would oversee its own implementation of the Convention.22 It was therefore suggested that international supervision should be optional. However, the opponents to this suggestion pointed out that self-enforcement would be unrealistic as evidenced by the fact that torture was still widely practised despite national and international legislation prohibiting the practice. In view of other delegations including the Soviet Union, the task of implementation could also be entrusted to the Human Rights Commission or to its Sub-Commission.23

17  Sweden submitted a second proposal which provided for the establishment of a new Committee acting as the only supervisory body of the Convention.24 According to this proposal ‘the members of the Committee shall be nationals of States Parties, serve in their personal capacity and shall as far as possible be chosen among members of the Human Rights Committee. Members shall be elected for a period of four years.’25

18  During the 1982 Working Group it was discussed whether the implementation procedures should have a mandatory or optional character. Some delegations expressed doubts regarding the advisability of establishing international bodies with extensive jurisdiction and stated that the implementation provisions should be made optional.26

(p. 482) 19  The continued deliberations regarding the nature and composition of the implementation organ were based on a new Swedish proposal with a complete set of eighteen alternative implementation provisions, mostly modelled according to the corresponding provisions of the CCPR27 and an alternative proposal of four draft articles and an explanatory note by the Chairman-Rapporteur.28 The latter suggested a supervisory body consisting of five members of the Human Rights Commission (nationals of the States parties) who were appointed by the Chairman of the Human Rights Commission (paragraph 2 of the Rapporteur’s draft article); this formula was borrowed from the International Convention on the Suppression and Punishment of the Crime of Apartheid.29 The Swedish proposal provided for the establishment of a new Committee against Torture consisting of nine nationals of the States parties to be nominated and then elected by States parties.

20  In general, a number of delegations reacted to the Chairman’s proposal by stating that such a supervisory body would introduce strong political factors, which was undesirable since the Convention aims to prohibit torture by public officials.30 Furthermore, questions were raised regarding the criteria for selection.31 Thus, it was proposed that the members of the new supervisory body should be appointed by the Chairman of the HRC from the members of the latter Committee.32

21  Although some representatives of States parties expressed their concern regarding the multiplication of international organs, pointing out that a new body would create sizeable financial implications,33 a number of delegates stated their preference for the Swedish proposal. They pointed to its advantage of providing for independence of Committee members from governmental instructions or pressures since the members of the Committee would serve ‘in their personal capacity’.34 In the opinion of these delegations, the fact that the members of the Committee should ‘so far as possible’ also be members of the Committee would enhance harmonization between the implementation mechanism of the CCPR and the Convention and avoid the legal problems pointed out by the Legal Counsel of the United Nations.35

22  In 1982 the Working Group did not come to any consensus and continued its discussions regarding the nature and composition of the implementation organ during its session in 1983. The majority of delegations clearly preferred the implementation organ to be elected by States parties, as had been proposed by Sweden.36 However, since the Swedish proposal regarding the implementation provisions was drafted in considerable detail in twelve articles modelled according to the CCPR, the Chairman-Rapporteur submitted a draft with four simpler provisions on implementation taking into consideration the corresponding provisions in CERD and CEDAW.37 On the basis of this draft, the delegations discussed the size of the Committee. Some speakers stated that nine was too small as decisions may sometimes be taken by only three members since the quorum (p. 483) was set at five.38 Moreover, it would be difficult to reflect an equal geographical distribution with nine experts.39

23  The delegations were still unable to agree on whether the implementation system should have an optional or mandatory character. Some States continued to object to a mandatory character of the implementation provisions. In particular the Soviet Union, arguing that the inclusion of a mandatory implementation system in the Convention was not necessary for those States that were already bound by the implementation provisions of the CCPR, suggested an optional protocol containing the implementation procedures and said that this would facilitate worldwide support of the Convention.40 Other delegations were in favour of provisions with a mandatory character, stating that to make implementation optional was tantamount to allowing a qualified commitment to the fight against torture; moreover, it could lead to varying degrees of obligations on States parties. The delegation of the Ukrainian Soviet Socialist Republic suggested as a compromise, to retain the implementation provisions in the Convention but to introduce a clause which required that a State party recognize the competence of the Committee.41 No final decision was taken regarding the abovementioned issues.

24  During this Working Group session Article 17(6) and (7) of the Chairman’s proposal was also a topic of discussion. Some delegations criticized the modus of filling vacancies provided for in paragraph 6 which had been taken verbatim from the corresponding mechanisms of the anti-discrimination Conventions of 1965 and 1979.42 Ideally, vacancies should be filled using the same system as used for designating the original members, namely through election by States parties (eg articles 33 and 34 CCPR). Therefore, the Chairman-Rapporteur submitted another proposal for paragraph 643 which suggested that the appointment of a new member should be ‘subject to the approval of the majority of States Parties’.44

25  Regarding the proposal for paragraph 7, according to which States parties shall be responsible for the expenses ‘in the same proportion as their contributions to the general budget of the United Nations’, some delegations stated that States parties to the Convention may not necessarily be members of the United Nations. They therefore expressed their preference for the analogous provision of CERD, providing for the coverage of the expenses of the members for their Committee duties by States parties, such as submitted in proposal by the Chairman-Rapporteur.

26  During its fifth session in 1984, the Working Group finally adopted Article 17 CAT. The Soviet Union had informed the Group that it would no longer insist on the optional character of the provision concerning the creation of an implementation organ, and the Ukrainian Soviet Socialist Republic also took a similar stand and withdrew its respective draft Article 17.45 Furthermore, the Working Group had decided that the Committee should consist of ten instead of nine experts elected for four years. In this (p. 484) regard, the part of the second sentence of paragraph 5 stating that after the first election four members should be chosen by the Chairman to serve only for two years, was accordingly amended to ‘five’ members.46 Concerning all other paragraphs the Working Group agreed on the last submitted version.

3.  Issues of Interpretation

3.1  Nature and Functions of the Committee

27  The aims of the Convention are threefold: to establish specific obligations for States parties to prevent torture and to assist victims of torture; to require the use of criminal law and jurisdiction to fight impunity of torturers; and to provide for stronger measures of international monitoring of States’ compliance with the absolute prohibition of torture.

28  The original Swedish draft contained a proposal which would entrust the HRC with the monitoring of State compliance. The IAPL even suggested that the eighteen-member HRC appoint a five-member Special Committee on the Prevention of Torture. After the Legal Counsel of the UN explained the legal difficulties of burdening an already existing treaty body with additional duties stemming from another treaty, the Working Group finally agreed on the creation of an independent treaty body for the CAT. However, reaching this conclusion had not been easy. Argentina and Brazil had even proposed that each State oversee its own implementation of the Convention, while the Soviet Union wished to make international monitoring purely optional, and the Dutch Chairman-Rapporteur suggested entrusting the monitoring to a group of five members of the Human Rights Commission, similar to the Apartheid Convention. Despite a certain reluctance against a further proliferation of UN treaty monitoring bodies, the Working Group finally agreed on the creation of a fourth independent treaty body, after the CERD Committee (established in 1970), HRC (established in 1976), and the CEDAW Committee (established in 1981). Yet the States continued insisting that the CAT Committee be smaller than the other treaty bodies. The Swedish proposal of nine members was later extended to ten. Since the prohibition of torture was already contained in the CCPR, the Swedish proposal for implementation provisions also maintained a certain link between the HRC and the CAT Committee. This is reflected in Article 17(2) CAT according to which States parties shall bear in mind the usefulness of nominating persons who are also members of the HRC.

29  The main monitoring functions of the Committee are laid down in Articles 19 to 22: consideration of State reports including adoption of concluding observations and general comments; conducting of ex officio inquiry procedures including fact-finding missions to the countries concerned; examination of inter-State communications including the establishment of an ad hoc conciliation commission; and examination of individual communications. After the entry into force of the OPCAT in June 2006, the SPT was established with the functions of carrying out preventive visits to places of detention and of cooperating with the national preventive mechanisms to be established in every State party to the OPCAT. Article 10(3) OPCAT and Rule 62 CAT provide that the Committee shall meet with the SPT at least once a year, during the regular sessions they both hold simultaneously. According to Article 16(3) OP and Rule 63 CAT, the SPT shall present a public annual report on its activities to the (p. 485) Committee. If a State party refuses to cooperate with the SPT, the Committee, in accordance with Article 16(4) OP, may decide to make a public statement on the findings, recommendations and observations of the SPT in relation to a specific visit.

3.2  Composition of the Committee—Article 17(1)

30  The respective provisions of Article 17 are based on Articles 28 to 32 CCPR.47 In contrast to the HRC and the majority of other UN treaty monitoring bodies, the CAT Committee only consists of ten members.48

31  Although the members are nominated by States parties and elected by the meetings of States parties, they serve, pursuant to Article 17(1), as individual ‘experts of high moral standing and recognized competence in the field of human rights’ who ‘shall serve in their personal capacity’, ie they do not represent their country nor their region. This independence from States parties is further underlined by Article 23, which entitles them to the ‘facilities, privileges and immunities of experts on mission for the United Nations’. Before assuming their duties, according to Rule 14, Committee members shall make a solemn declaration that they will perform their duties ‘honourably, faithfully, impartially and conscientiously’. Rule 15 further emphasizes the importance of impartiality and independence. In the performance of their duties, Committee members shall maintain the ‘highest standards of impartiality and integrity’. Members are ‘accountable only to the Committee and their own conscience’. Hence, they shall ‘neither seek nor accept instructions from anyone’.49 Rule 15 also explicitly recalls the Addis Ababa Guidelines on the independence and impartiality of members of the human rights treaty bodies, which since 2014 are integral part of the RoP of the CAT constituting an Annex.50 This high degree of independence and impartiality justifies regarding the Committee as a quasi-judicial organ. Yet, in reality ambassadors and other civil servants have regularly been elected to the Committee.51 In this regard, more clarity is brought by the Addis Ababa Guidelines.52 Explicitly regulating the relationship of treaty members with States, the Guidelines specify that independence and impartiality ‘is compromised by the political nature of their affiliation with the executive branch of the State’ and that treaty bodies’ members should therefore ‘avoid functions or activities which are, or are seen by a reasonable observer to be, incompatible with the obligations and responsibilities of independent experts’ (Guideline D). The Guidelines further spell out that individual holding or assuming decision-making positions in any organization or entity which may give rise to a real or (p. 486) perceived conflict of interest shall ‘whenever so required, not undertake any functions or activities that may appear not to be readily reconcilable with the perception of independence and impartiality’ (Guideline E). The relevance of the independence of members of human rights treaty bodies was further reaffirmed in the GA resolution 68/268, where it was stressed how important it is that all stakeholders, including the Secretariat, respect the independence of the members and avoid any interference with their mandate.53

32  Pursuant to Article 17 there are other relevant factors to be taken into account when electing Committee members. Further to being independent, under Article 17(1) members of the Committee shall also be experts of ‘h