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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.2 Obligation to Prevent Torture

Gerrit Zach

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: 26 May 2022

Subject(s):
Torture — Treaties, interpretation

(p. 72) Article 2  Obligation to Prevent Torture

  1. 1.  Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

  2. 2.  No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

  3. 3.  An order from a superior officer or a public authority may not be invoked as a justification of torture.

1.  Introduction

The Convention does not contain any provision providing for a human right to personal integrity and dignity or not to be subjected to torture, cruel, inhuman or degrading treatment or punishment, similar to Article 7 CCPR or respective provisions in regional human rights treaties. By making reference to Article 7 CCPR in the Preamble, the Convention rather presupposes the existence of this human right and, in ‘desiring to make more effective (p. 73) the struggle against torture’ and cruel, inhuman or degrading treatment, creates a number of specific additional State obligations aimed at preventing and punishing torture and cruel, inhuman or degrading treatment. During the drafting process, the drafters decided to make a distinction between torture on the one hand, and cruel, inhuman or degrading treatment on the other. Article 16 requires States parties to prevent cruel, inhuman or degrading treatment and refers to a number of specific obligations in other articles of the Convention which shall equally apply to cruel, inhuman or degrading treatment. Article 2(1) constitutes the corresponding umbrella clause in respect of torture as defined in Article 1.

According to Article 2, States parties shall take effective legislative, administrative, judicial, and other measures to prevent torture in any territory under their jurisdiction, ie also on board ships and aircraft, in occupied, and other territories under their jurisdiction. In addition to the preventive obligations explicitly enlisted in the Convention, such as the prohibition of refoulement (Article 3), the obligations relating to the criminal prosecution of perpetrators of torture (Articles 4 to 9), the obligation to provide education and training to law enforcement and other personnel (Article 10), to systematically review interrogation methods and conditions of detention (Article 11), to investigate ex officio possible acts of torture (Article 12), and any torture allegations (Article 13), and the prohibition of invoking evidence extracted by torture in any proceedings (Article 15), the umbrella clause in Article 2(1) requires States parties also to take other effective measures aimed at preventing torture. Such measures relate primarily to guarantees in the context of the right to personal liberty and the right to a fair trial.

The comprehensive State obligations deriving from Article 2(1) are subject to international monitoring by the CAT Committee in all relevant procedures. In addition to the State reporting and inquiry procedure, individual applicants can also invoke violations of this provision in the individual complaints procedure under Article 22 CAT. If applicants claim that they have been subjected to torture in the past, the Committee concludes that the respective State party has failed to take effective measures to prevent torture and, therefore, finds a violation of Article 2(1) in conjunction with Article 1. If the treatment amounts to cruel, inhuman or degrading treatment, the Committee finds a violation of Article 16. But the Committee can also find violations of Article 2(1) in conjunction with other State obligations, such as the obligation in Article 4 to punish perpetrators of torture with appropriate penalties.

Article 2(2) confirms that the prohibition of torture is one of the few absolute and non-derogable human rights. No State may invoke any exceptional circumstances, such as war or terrorism, as a justification of torture. This provision, therefore, provides a clear answer to all attempts aimed at undermining the absolute prohibition of torture for the sake of national security in combating global terrorism, such as the ‘ticking bomb scenario’ or special interrogation methods in the framework of counterterrorism strategies.

Finally, Article 2(3) prohibits in criminal proceedings against torturers any defence of obedience to superior orders by any civil or military authority. Domestic laws providing for such a defence therefore violate Article 2(3). But this provision does not exclude criminal courts from applying mitigating circumstances if a perpetrator of torture was forced by a superior order to apply torture.1

(p. 74) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Declaration (9 December 1975)2

Article 3

No state may permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment. Exceptional circumstances such as state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

Article 4

Each state party shall, in accordance with the provisions of this declaration, take effective measures to prevent torture and other cruel, inhuman or degrading treatment or punishment from being practised within its jurisdiction.

IAPL Draft (15 January 1978)3

Article IV

The Contracting Parties undertake to adopt legislative, judicial, administrative and other measures necessary to give effect to this convention to prevent and suppress torture …

Article V

The fact that a person was acting in obedience to superior orders shall not be a defence to a charge of torture.

Article VI

Torture can in no circumstances be justified or excused by a state or threat of war or armed conflict, a state of siege, emergency or other exceptional circumstances, or by any necessity or any urgency of obtaining information, or by any other reason.

Original Swedish Draft (18 January 1978)4

Article 2

  1. 1.  Each State Party undertakes to ensure that torture or other cruel, inhuman or degrading treatment or punishment does not take place within its jurisdiction. Under no circumstances shall any State Party permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment.

  2. 2.  No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

  3. 3.  An order from a superior officer or a public authority may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

Article 3

Each State Party shall, in accordance with the provisions of the present convention, take legislative, administrative, judicial and other measures to prevent torture and (p. 75) other cruel, inhuman or degrading treatment or punishment from being practised within its jurisdiction.

Revised Swedish Draft (19 February 1979)5

Article 2

  1. 1.  Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

  2. 2.  No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture

  3. 3.  An order from a superior officer or a public authority may not be invoked as a justification of torture [however, this may be considered a ground for mitigation of punishment, if justice so requires].

2.2  Analysis of Working Group Discussions

10  In written comments Austria suggested that Article 3 of the original Swedish draft be merged with Article 2(1)6 and later, during the 1979 Working Group discussions, it was agreed that the obligations of States in Articles 2(1) and 3 of the original Swedish draft could be consolidated.7 It was further agreed to delete Article 3 on the basis that its objective had been achieved by the revised Article 2(1) which generally corresponds to Article 4 of the 1975 Declaration.8 Regarding the precise duty of States parties to the Convention, it was pointed out by one delegate that while a State could undertake to adopt measures to prevent torture, it could not undertake to ensure that torture would never occur. Other delegates also questioned whether Article 2(1) was not too broad, or was juridically sound.9

11  There were differing views as to whether reference should be made to torture alone or also to other forms of cruel, inhuman or degrading treatment or punishment. During the 1979 Working Group several delegates suggested the deletion of references to other forms of cruel, inhuman or degrading treatment or punishment because of the difficulty of defining the term.10 In written comments, the United States expressed the view that it considered it appropriate that Article 3 of the Swedish draft also address cruel, inhuman or degrading treatment or punishment since virtually identical obligations were already imposed under the CCPR and because ‘the nature of the obligation was not likely to deter many States from ratifying the Convention’. The United States also sought to incorporate Article 7(2) of the Swedish draft as a second paragraph to this Article which requires that torture be punished by severe penalties.11 At the same time, the United States took the opposite view regarding Article 2(2) of the Swedish draft, preferring to limit its scope to torture alone.

12  During the discussion in the 1979 Working Group there was a French proposal that the words ‘within its jurisdiction’ be replaced by ‘any territory under its jurisdiction’.12 It was stated that the phrase ‘within its jurisdiction’ might be interpreted too widely so as to cover citizens of one State who are resident within the territory of another (p. 76) State. In support of a proposal to use the wording ‘any territory under its jurisdiction’, it was emphasized that such wording would cover torture inflicted aboard ships or aircraft registered in the State concerned as well as occupied territories.13 According to Burgers and Danelius ‘territory under its jurisdiction’ is intended to include not only the actual land and territory of the State and its territorial sea, but also ships flying its flag and aircraft registered in the State concerned as well as platforms and other installations on its continental shelf.14

13  In written comments the United States proposed a new article, very similar to Article 2(2) and (3) which would provide that there is no justification for any act of torture. However, they chose to limit the proposed article to torture as they argued that there was no precise definition of cruel, inhuman or degrading treatment or punishment. The United States argued that cruel, inhuman or degrading treatment or punishment was a relative term and that ‘international standards are more difficult to achieve and what might constitute cruel, inhuman or degrading treatment in times of peace might not rise to that level during emergency conditions’.15 The Holy See welcomed the provision rejecting any justification of torture on grounds of exceptional circumstances ‘in light of certain schools of thought which seek to give national security priority over the rights of the person’.16 It is interesting to note that the drafters of the 1975 Declaration were unable to reach consensus on the same issue. A proposal to delete the second sentence of Article 3 of the Declaration which referred to ‘exceptional circumstances which should not be invoked as a justification for torture’ was not taken up and the language remained in the final text.17 Regarding the term ‘internal political instability’, France felt that this term did not correspond to any clear legal concept and could be deleted.18 The Swiss delegation noted that Article 2(2) of the original Swedish draft and its analogous provision in Article VI of the IAPL draft were consistent with existing international law, which prohibits acts of torture and ill treatment at all times.19 At the same time they proposed a safeguard clause according to which the provision stating that ‘no exceptional circumstances could justify torture or other cruel, inhuman or degrading treatment or punishment’ would be without prejudice to the provisions of the four Geneva Conventions of 12 August 1949 for the protection of victims of armed conflicts as well as the two Additional Protocols thereto of 10 June 1977.20

14  It is clear that an order by a superior official of a State organ may be no justification for torture. The Nuremberg Principles had already established that respondeat superior was no justification for the perpetration of serious international crimes including torture.21 (p. 77) This was the first time that this principle of respondeat superior had been included in a human rights treaty and therefore also the first time that this principle was rejected as a justification for torture in a human rights treaty. During the drafting there was discussion as to the possibility of whether the order of a superior, although not being a justification, could still be an extenuating fact justifying a milder penalty in line with Article 8 of the Nuremberg Charter.22 In written comments the United States noted that although orders from a superior officer cannot justify torture, it is a factor that should be considered in mitigation of punishment and proposed the following new Article 4:

1. No exceptional circumstances whatsoever, whether a state or threat of war, internal political instability or any other public emergency may be invoked as a justification for torture.

2. An order from a superior officer or a public authority may not be invoked as a justification for torture.23

15  During the 1979 Working Group discussions one (unidentified) delegate proposed the addition to paragraph 3 of a provision indicating that superior orders may be considered in mitigation of punishment if justice so requires. At the same time one (unidentified) delegate expressed his reservation about this paragraph. It was agreed to include the addition in brackets for consideration by the Commission on Human Rights.24 Following discussion in the 1980 Working Group it was decided that the wording in square brackets should be deleted in Article 2(3).25 There is nothing in the records that indicates what was actually said. Burgers and Danelius are also silent on this point. It is interesting to note that the ILC, in its formulation of the Nuremberg Principles, had deleted the sentence that dealt with the mitigation of punishment in Principle IV, regarding the reference to ‘mitigation of punishment’ as unnecessary.26 Principle IV was adopted as ‘[t]he fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible for him’.27 In its report to the General Assembly the ILC explained that the question of leniency in punishment should be determined by a competent court during the sentencing process, stating that the text was based on the principle contained in Article 8 of the Charter of the Nuremberg Tribunal.

3.  Issues of Interpretation

3.1  The Obligation to Take Effective Measures to Prevent Torture

3.1.1  Scope of Application

16  The Convention, strictly speaking, does not prohibit torture or cruel, inhuman or degrading treatment. A provision stating that no one shall be subjected to torture and cruel, inhuman or degrading treatment, as contained in Article 7 CCPR and similar (p. 78) provisions in regional human rights treaties, is missing in the CAT and had already been missing in the various proposals discussed during the drafting history.28 It is likely that such an individual right was taken for granted by the drafters and needs to be assumed to be implicit in the Convention.29 After all, in the Preamble the Convention explicitly refers to Article 7 CCPR and expresses the desire to make more effective the struggle against torture and cruel, inhuman or degrading treatment throughout the world.

17  The formulation of Article 2 (1) must be interpreted as including the obligation of States parties to respect and protect the human right not to be subjected to torture. But the main emphasis of this formulation, as in Article 16, is put on the positive obligation of States parties to fulfil.30 Article 2(1) CAT is drafted in similar words as Article 2(2) CCPR. The obligation to fulfil, derived from the latter provision, means to enact laws, to provide an effective remedy and procedural guarantees, to establish relevant legal institutions and other legislative, administrative, political, or judicial measures.31 Article 2(1) CAT puts the focus of the obligation to fulfil on effective measures to prevent acts of torture. This reflects the general object and purpose of the Convention, which is to strengthen the existing prohibition of torture by specific measures of criminal law aimed at deterring torture and other measures of a preventive nature.

18  The Committee has stipulated that the obligation to prevent torture and other ill-treatment under Articles 2 and 16 are ‘indivisible, interdependent and interrelated’32 and that the obligation to prevent cruel, inhuman or degrading treatment in practice very much overlaps and is largely congruent with the obligation to prevent torture.33 This is also reflected in the practice of the Committee, as it usually references Articles 2 and 16 together in its recommendations to States as part of the Concluding Observations.

19  The Committee has clarified in its General Comment on Article 2 that States parties are obliged to undertake ‘effective measures to prevent public authorities and other persons acting in an official capacity from directly committing, instigating, inciting, encouraging, acquiescing in or otherwise participating or being complicit in acts of torture’ as laid down in the Convention’.34 The Committee has emphasized that States bear responsibility not only for the acts and omissions of their officials, but also for others, such as agents, private contractors, and others acting in official capacity or on behalf of the State, in conjunction with the State under its direction or control, or otherwise under colour of law.35 States parties not fulfilling these obligations violate the Convention.

20  The question of whether the violation of the right not to be subjected to torture or cruel, inhuman or degrading treatment is at the same time a violation of the CAT and whether a victim of an act of torture or cruel, inhuman or degrading treatment can (p. 79) submit an individual complaint to the CAT Committee under Articles 2 or 16, respectively by now is clearly settled:36 not only Pieter Kooijmans, the first UNSRT, answered this question in the affirmative by referring to the implicit obligation of States under Article 2(1),37 but extensive case law of the Committee in which it has found a violation of Article 2(1) confirm this.

21  Generally, Article 2(1) is seen as an umbrella clause encompassing all the obligations to prevent torture as included but not limited to the in various provisions of the Convention, and Article 16 as constituting an obligation for States parties to prevent cruel, inhuman and degrading treatment. The typical obligations to prevent torture can be found in Articles 10 (education and training of law enforcement and other personnel), 11 (systematic review of interrogation methods), 12 (ex officio investigation of torture cases), 13 (investigation of allegations by torture victims), and 15 (non-admissibility of evidence extracted by torture in any proceedings). But also the prohibition of refoulement in Article 3 and the obligation of States to make torture a criminal offence with appropriate penalties in Article 4 and related provisions about universal and other forms of criminal jurisdiction in Articles 5 to 9 have a strong preventive character. Even Article 14, which provides for the right of torture victims to redress, can be interpreted as a measure with a deterrent effect aimed at preventing torture in the future.38 If the individual torturers were held accountable to pay full compensation for all long-term rehabilitation costs of their torture victims, this would probably have a stronger deterrent effect than many criminal sanctions.39

22  The understanding of Article 2 as an umbrella clause is partly, but not consistently reflected in the Committee’s individual complaints procedure: when finding violations of other Articles of the Convention, the Committee in most cases (except with regard to Article 3) seems to find a violation of Article 2 (1).40 At the same time, the Committee has found numerous violations of the Convention, especially with regard to Article 3, without finding a violation of Article 2(1).41 When consistently interpreting Article 2(1) as umbrella clause of the Convention, in principle, every time there is an act of torture, the Committee would actually also have to find a violation of Article 2(1).

23  Another question has been whether every single act of torture means that the State concerned has failed to take effective measures to prevent torture and, therefore, violated its respective obligation in Article 2(1). The practice of the Committee differs in this (p. 80) regard: In a case of torture it usually finds both, a violation of Article 1, as well as Article 2(1).42 However, it has also found violations of Article 2(1) read in conjunction with Article 1, but not of Article 1,43 as well as a few cases where it found a violation of Article 1 and not of Article 2.44 In Ali Ben Salem v Tunisia and Saadia Ali v Tunisia, where the Committee only found a violation of Article 1, but rejected finding a violation of Article 2, it did not dispute that a case of torture occurred but concluded—without any more detailed argumentation or analysis—that ‘the documents communicated to it furnish no proof that the State party has failed to discharge its obligations under these provisions of the Convention’.45 This conclusion is insofar surprising, as that every single act of torture means that the State has failed to take effective measures to prevent torture and, therefore, violated its respective obligation in Article 2(1). As already concluded above,46 it would be expected that in a case of torture, the Committee finds a violation of Article 2 (1) in conjunction with Article 1.47

24  While Article 2(1) stipulates that each State party has to take effective measures to prevent torture, there is no explicit reference in Article 2(1) to the time frame to be applied in implementing these measures. The question therefore arises as to whether such measures can be implemented gradually through progressive implementation or whether States parties are required to meet their obligations immediately.48 In general, the Committee has not accepted the principle of progressive implementation. It has rejected the argument that compliance with Article 2 was dependent on ‘… limited budgetary resources or limited professional awareness among staff’.49 The Committee, however, has not always interpreted this provision as to require strict immediate implementation. In its concluding observations to Kazakhstan, it recommended that the State party proceed ‘promptly’ to amend its domestic penal law to include the crime of torture, consistent with the Convention, and to take ‘urgent and effective steps’ to ensure the investigation, prosecution, and punishment regarding torture allegations.50 In contrast, in the case of Romania, the Committee stated that ‘the existing Government could not be seriously blamed, because it was quite clear that prison conditions could not be changed overnight and that considerable financial investment was needed. Nevertheless, the Romanian (p. 81) authorities should do everything they could to demonstrate their intention to improve the situation.’51 The Committee therefore has allowed some degree of flexibility concerning the time frame of implementation. There may be circumstances in which a State is allowed, temporarily, some latitude in its compliance, while at the same time the State has an obligation to continually improve its national laws as well as the practical application of these laws in line with the Convention and the Committee’s concluding observations and views adopted on individual communications.52 An act of torture, however, can never be justified. The Committee has made clear that ‘torture should be prohibited whatever the stage of development of a country and whatever the nature of the offence being investigated’.53

25  Boulesbaa rejects the idea of progressive implementation but at the same time asserts that the obligation of States to prevent torture is not absolute: ‘The obligation is rather to take steps to achieve reasonable results in the prevention of torture’.54 This contradiction is based on a simple misunderstanding of the obligations of States to respect and ensure human rights. Of course, the obligation of States to refrain from practicing torture (obligation to respect), which is also implicit in Article 2(1) as we have seen above, is absolute and, therefore, not subject to progressive implementation. Every individual case of torture, as defined in Article 1, constitutes a violation of this absolute and non-derogable right. But positive obligations of States, be they obligations of conduct or result, aimed at fulfilling a certain human right by means of legislative, administrative, judicial, political, and other measures are always relative and, therefore, subject to the principle of progressive implementation. Taking into account the indivisibility and interdependence of all human rights, this principle can no longer be applied exclusively to economic, social, and cultural rights, but must be applied to civil and political rights as well.55 Just to give an example: if there exists a reasonable training programme on how to prevent torture for prison and police officials, States parties are still under an obligation under Article 10 CAT to improve this training programme further in accordance with ‘good practices’ by means of ‘progressive implementation’ and to report on these ‘new measures taken’ to the Committee in accordance with Article 19(1). But the total absence of any anti-torture training would clearly violate the State obligation under Article 10 as well as its general obligation to take effective administrative measures to prevent acts of torture under Article 2(1).

26  While the Committee has recognized that States parties may choose the measures through which they implement their obligations, it has equally emphasized that a States party must take measures that are effective and consistent with the object and purpose of the Convention.56 In the reporting procedure, the Committee interprets this provision in the broadest sense and requests States parties to take a variety of measures aimed at preventing torture.

3.1.2  Legislative, Administrative, Judicial, or Other Measures

27  Article 2 stipulates that each State Party shall take ‘effective legislative, administrative, judicial or other measures to prevent acts of torture’. The formulation that (p. 82) legislative, administrative, judicial or other measures’ are to be taken to prevent torture means that there can be other measures than legislative, administrative, or judicial, as the word ‘or’ indicates.

28  Though the Committee has considered in a general sense which measures must be taken by States parties to prevent torture, it has equally emphasized that no exhaustive list exists and obligations to take preventive measures go beyond the items enumerated specifically in the Convention or in its interpretation.57 Further, as methods of prevention are continuously evolving, the Committee has explained that Article 2 provides it with the authority to expand the scope of the measures required to prevent torture by building on other articles.58 In its Concluding Observations the Committee has developed a wealth of measures to be comprised the formulation ‘legislative, administrative, judicial or other measures’, some of them with concrete reference to other articles of the Convention, some of them developed from the broad understanding of the formulation of Article 2 as an umbrella clause for State obligations to prevent torture.59

3.1.2.1  Criminalization of Torture and Other Legislative Measures

29  The Committee has affirmed that taking effective measures against torture requires the States parties to ensure the implementation of Convention provisions by providing for the direct effect of these provisions. This may be by means of the transposition of the Convention provisions into national provisions or by recognizing the direct effect of the Convention provisions.60 Recognizing the Convention text only is not sufficient, but rather it must be transposed into clear national provisions and instructions, also in order to allow the Convention to be directly invoked in Court.61 The Committee has expressed much approval for those States parties that have adopted a special law to implement Convention provisions directly.62

30  In particular, States must criminalize torture under its criminal law, in accordance, at a minimum, with the elements of torture as defined in Articles 1 and 4 of the Convention.63 The Committee has also on many other occasions affirmed the importance of other legislative measures, eg to adopt a definition for terrorist acts and ensure treatment in compliance with the Convention and to ensure that counterterrorism and national security legislation are in compliance with the Convention,64 to prohibit corporal punishments65 (p. 83) and criminal sanctions such as flogging and stoning by law,66 and to prohibit hazing in the armed forces.67

31  A the same time, legislative measures by themselves are not deemed sufficient. For examp