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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.4 Obligation to Criminalize Torture

Nóra Katona

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, 2021. All Rights Reserved.date: 06 December 2021

Torture — Treaties, interpretation

(p. 176) Article 4  Obligation to Criminalize Torture

  1. 1.  Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

  2. 2.  Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

1.  Introduction

The object and purpose of the Convention is to make the struggle against torture and cruel, inhuman or degrading treatment more effective by establishing State obligations to prevent torture and other forms of ill-treatment, and to assist victims, as well as to punish the perpetrators of torture. Article 4 is the central norm in relation to the objective of fighting impunity as one of the root causes of the widespread practice of torture worldwide. It requires States parties to make torture, but not other forms of ill-treatment, an offence under their domestic criminal laws with appropriate penalties taking into account the grave nature of the crime of torture. The term ‘torture’ must be interpreted in accordance with the definition in Article 1, which means that not only the act of torture but also the attempt, instigation, incitement, superior order and instruction, consent and acquiescence, concealment, and other forms of complicity and participation, must be criminalized. Although not a strict legal requirement, it is advisable that States parties fully incorporate the definition of Article 1, without the sentence on ‘lawful sanctions’, into their domestic criminal code.

(p. 177) The fact-finding missions of the UN Special Rapporteur on Torture, Manfred Nowak, have shown that perpetrators ‘if held accountable at all, were predominantly punished with disciplinary sanctions and light or suspended prison sentences. The forms of discipline do not normally go beyond demotion, delayed promotion or pay freeze’.1 According to the practice of the CAT Committee in the State reporting procedure, only a prison sentence of at least a few years can be considered as an appropriate penalty which takes the grave nature of torture into account. Victims of torture can also invoke Article 4 in the individual complaints procedure under Article 22. In a landmark decision against Spain, the CAT Committee ruled that pardoning civil guards, who had been found guilty of torture by an independent court, violated the victim’s rights under Article 4(2).2

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Declaration (9 December 1975)3

Article 7

Each State Party shall ensure that all acts of torture as defined in article 1 are offenses under its criminal law. The same shall apply in regard to acts which constitute participation in, complicity in, incitement to or an attempt to commit torture.

IAPL Draft (15 January 1978)4

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, and in particular to ensure that:

  1. (a)  any act of torture is punishable under its laws as a grave crime;

  2. (b)  persons believed to be responsible for acts of torture are prosecuted and when found guilty, punished and disciplined in accordance with their laws;

Article VIII

No prosecution or punishment of torture shall be barred by the application of a period of limitation of lesser duration than that applicable to the most serious offense in the laws of the contracting Parties.

Original Swedish Draft (18 January 1978)5

Article 7

  1. (1)  Each State Party shall ensure that all acts of torture as defined in article 1 are offenses under its criminal law. The same shall apply in regard to acts which constitute participation in, complicity in, incitement to or an attempt to commit torture.

  2. (p. 178) (2)  Each State Party undertakes to make the offenses referred to in paragraph 1 of this article punishable by severe penalties.

Revised Swedish Draft (19 February 1979)6

Article 4

  1. (1)  Each State Party shall ensure that all acts of torture are offenses under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

  2. (2)  Each State Party shall make these offenses punishable by appropriate penalties which take into account their grave nature.

2.2  Analysis of Working Group Discussions

Commenting on Article 7 of the original draft version of the Swedish text, Spain observed that, in regard ‘acts of participation’, reference should be made not only to accomplices but also to accessories after the fact. Additionally, the word ‘incitación’ (incitement) could be replaced by the term used in Article 3 of the Spanish Criminal Code, namely ‘proposición o provocación’ (proposal or provocation). In paragraph 2 of the same article, the expression ‘penas severas’ should be replaced by the more technical term ‘penas graves’.

France suggested that, in paragraph 1, the word ‘délits’ (offence) should be replaced by the word ‘infractions’ (infraction) and the word ‘incitation’ (incitement) should be replaced by ‘provocation’ (provocation). France also suggested that paragraph 2 could be made into a separate article and, as far as the concept of ‘cruel, inhuman or degrading treatment or punishment’ is maintained in the Convention, such treatment or punishment should also be considered as an offence punishable by severe penalties.7

In written comments, the UK Government suggested that the words ‘as defined in Article 1’ be deleted, reasoning that it was unnecessary to refer to the definition already given in Article 1 which applies throughout the draft. The UK delegation also suggested that paragraph 2 be deleted and replaced with ‘Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature’. The United Kingdom pointed to a precedent for this formula in Article 2(2) of the 1973 New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents.8 These points were taken into account in the revised Swedish draft which contains the wording as it appears in the final text of the Convention.

10  As regards the concepts of ‘complicity or participation in torture’ in Article 4(1) of the revised Swedish draft, doubts were expressed whether, in the legislation of all (p. 179) countries, these terms would cover those persons who were accessories to the crime of torture after it had occurred or who had in some way concealed acts of torture. One representative proposed the addition of the word ‘encumbrimiento’ (concealment) in Spanish. Some speakers felt that in the legal systems of their countries the term ‘complicity’ already covered the concept of ‘concealment’.

11  The Working Group agreed to include, in brackets, an explanatory footnote for Article 4(1) on this matter,9 and adopted by consensus the following version of Article 4:

  1. (1)  Each State Party shall ensure that all acts of torture are offenses under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

  2. (2)  Each State Party shall make these offenses punishable by appropriate penalties which take into account their grave nature.

Subsequently, one delegate reserved his position on Article 4 because of his concern that the word ‘complicity’ was not broad enough to cover the notion of ‘accessory after the fact’ under his country’s domestic law.10

12  Bulgaria expressed its support for the provisions in Article 4.11

13  At the fifty-sixth meeting, the USSR unsuccessfully introduced amendments12 to the draft resolution regarding Article 4(1) which suggested that the words ‘irrespective of the reason, purposes and motives for which they were committed’ be added after ‘all acts of torture’.13

3.  Issues of Interpretation

3.1  Applicability of Article 4 to Cruel, Inhuman and Degrading Treatment

14  During the drafting of the Convention, some States parties maintained that severe penalties in domestic law should not only criminalize torture but also other forms of ill-treatment.14 However, the majority of States parties were of the opinion that a State obligation to criminalize such behaviour should only apply to torture in the narrow sense.15

15  In contrast, in its General Comment No 2, the CAT Committee states that ‘Articles 3 to 15 are likewise obligatory as applied to both torture and ill-treatment’.16 In line with this, the CAT Committee extended in some concluding observations the scope of Article 4, concluding that provisions that make the imposition of other forms (p. 180) of ill-treatment punishable must also be included in national criminal laws.17 Following this interpretation of Article 4 would result in a significantly broader obligation of the States parties.

16  Although the CAT Committee in the context of the State reporting procedure occasionally criticized States parties for not including other forms of ill-treatment in their criminal laws, this has been recorded only on a limited number of occasions.18 In fact, both the formulation of Article 4(1) and the travaux préparatoires indicate that the obligation to criminalize does not apply to other forms of ill-treatment.19 One argument being the difficulty to find a definition of cruel, inhuman and degrading treatment or punishment, also because the Convention does not provide for a definition.20

17  Further, the State obligations under Article 16 require States parties to ‘prevent’ other forms of ill-treatment not amounting to torture. In that regard, Articles 4 to 9—being mainly of repressive nature—stand separate from the key preventive Articles 10 to 13. Notwithstanding the fact that the use of criminal law, of course, also has a preventive effect,21 the main objective of Article 4 remains primarily to criminalize acts of torture and prosecute perpetrators. Accordingly, States parties are not obliged to make the offence of cruel, inhuman and degrading treatment a crime in domestic law. Thus, no further State obligations evoke from Article 4 than to criminalize torture. This does not exclude that general customary international law or other (regional) treaties might require States parties to criminalize other forms of ill-treatment as well.22

(p. 181) 3.2  Criminalized Acts under Article 4

3.2.1  Meaning of ‘all acts of torture’

18  The obligation of States parties to criminalize torture is based on Article 7 of the 1975 Declaration, which was reproduced literally in Article 7(1) of the original Swedish draft.23 On the initiative of the UK delegation, the words ‘as defined in Article 1’ were deleted from Article 4 (1), since it was clear that the definition of torture in Article 1 applied throughout the Convention. In other words, at least—all acts of torture as defined in Article 1 has to be criminalized under the Convention.24

19  Further, certain omissions may also be classified as torture. Although there is no explicit reference in the travaux préparatoires and the Convention refers to the term ‘acts’, it would contradict the Convention’s overall aim to exclude all omissions amid the presence of all other elements that constitute torture. It would not be consistent to exclude omissions, which can also amount to severe pain or suffering of the victim. Thus, arguably at least some omissions must fall within the scope of Article 1 and must be criminalized according to Article 4.25 Respectively, the CAT Committee states in its General Comment No 3 that the Convention does not only require criminalizing an act but also an omission ‘as long as it is deliberately meant for inflicting the victim with severe mental or physical suffering’.26

3.2.2  Meaning of ‘attempt, complicity and participation’

20  According to the text of the Convention, for establishing criminal responsibility under Article 4, an act of torture does not need to be committed, because an attempt to commit torture should also be criminalized.27 For example, if law enforcement officers refuse to follow a respective order by a superior and do not apply torture methods, the superior officer is nevertheless guilty of an attempt to commit torture and should be punished accordingly.28

21  The second sentence of Article 4(1) was only slightly amended from the Original Swedish draft by deleting the word ‘incitement’ which still seems to be covered by the broader terms ‘complicity or participation’. Further, the Working Group wished to ensure, by adding a footnote to its draft of Article 4(1), that the term ‘complicity’ also includes the concept of ‘concealment’ after torture has been committed.29 Although the Convention does not expressly link the wording of Article 1 with the terms ‘complicity’ or ‘participation’ in Article 4, Article 4(1) is closely related to the definition of torture (p. 182) in Article 1(1), which includes instigation, consent and acquiescence. In other words, as the term ‘all acts of torture’ must be read in accordance with the definition in Article 1 throughout the Convention, the terms ‘complicity or participation’ in Article 4 must be interpreted to include incitement, instigation, superior orders or instructions, (tacit) consent,30 acquiescence and concealment.31 The CAT Committee in the State reporting procedure also confirmed this broad interpretation.32

22  Thus, the Convention obliges States parties not only to criminalize the direct perpetrator of torture—committed or attempted—but also those who are directly or indirectly involved. Accordingly, for example, individuals involved in the chain of commands by inciting, instigating, instructing, acquiescing, participating or being complicit in a way corresponding with Article 1 either before, during, or after the act of torture are equally criminally liable under Article 4. Thus, officials who order or instruct others to carry out torture must be made criminally responsible by national law.33 Superior officials are also guilty of complicity (acquiescence) in torture if they knew or should have known that torture is practised by personnel under their command and failed to act to prevent or stop it.34 Any involvement of doctors, even if only to ensure that the victim does not die or suffer physical injuries, is punishable as a form of participation.35

23  Additionally, States parties are obliged to criminalize acts relating to cover-up or concealment, at the very least, positive acts taken with the intention of concealing an act of torture or leaving it unpunished.36 According to the CAT Committee, even those who knowingly fail to report acts of torture can be held criminally culpable.37 Therefore, certain intentional omissions aimed at concealing torture may also be covered by ‘complicity or participation’.38

3.3  Criminalization of Torture under National Law

3.3.1  Inclusion of a Separate Offence

24  Article 4(1) requires every State party to ‘ensure that all acts of torture are offenses under its criminal law’. According to Burgers and Danelius, Article 4 does not require ‘that there must be a separate offense corresponding to torture under [A]rticle 1 of the Convention’.39 Burgers and Danelius were of the opinion that each State party was free to decide whether to deal with torture as a separate offence or to include acts of torture in one or more wider categories of offences. However, they insisted that ‘whatever solution is adopted, the criminal law must cover all cases falling within the definition in [A]rticle 1 of the Convention’.40 This interpretation has given rise to much confusion, and many States parties argued that torture was in any way included in their traditional offences, such as ill-treatment or infliction of bodily harm41 but also amongst others, such (p. 183) as assault,42 rape,43 arbitrary acts,44 or the abuse of power and excess of authority or official power.45

25  However, the inclusion of a separate offence eases the adherence with States parties’ further obligations under the Convention, for example, to give effect to the specific jurisdiction under Articles 5 and 7.46 Otherwise, States parties are inevitably confronted with the problem of the legal classification of a crime over which they need to establish jurisdiction,47 and on the grounds of which they can institute prosecutions of persons who have perpetrated torture elsewhere.48 Moreover, although acts that could be characterized as torture are punishable under various articles of the national Criminal Code, the absence of a single definition of the crime of torture as a separate criminal offence may cause a legal vacuum, possibly leaving some acts amounting to torture uncovered and subsequently unpunished.49

26  Over time, the CAT Committee made clear in its concluding observations that Article 4 required the inclusion of torture as an offence in accordance with the definition in Article 1.50 Furthermore, the CAT Committee has also recommended that the crime of torture should constitute a separate offence in the domestic legislation and not just an aggravating circumstance for the determination of a sentence.51 It reiterated that by a separate definition and a separate offence of torture in accordance with the Convention and distinguishing it clearly from other crimes, ‘States parties would directly advance the Convention’s overarching aim of preventing and punishing torture’.52 Following General Comment 2, ‘[n]aming and defining this crime will promote the Convention’s aim, inter alia, by alerting everyone, including perpetrators, victims, and the public, to the special gravity of the crime of torture’.53

27  Further, for Article 4 to have its full effect, the CAT Committee considers that specific measures must still be taken at the national level, even if a State allows for the direct effect of provisions of international law (‘monist systems’).54 As the Convention in the context of Article 4 is not considered as self-executing,55 the direct applicability of the (p. 184) Convention in a State party alone is not sufficient to ensure the obligations under Article 4. Accordingly, the offence of torture as defined in the Convention must be linked to a national provision, which imposes an appropriate punishment.

28  Besides, the CAT Committee noted in its conclusions that if the State party’s domestic law itself does not explicitly reflect this prohibition, nor does it impose criminal sanctions the requirements under Article 4 are not met even if other (treaty) obligations expressly prohibit torture and other forms of ill-treatment. The CAT Committee considered that express incorporation in the State party’s domestic law of the crime of torture is necessary to ‘signify the cardinal importance of this prohibition’ and ensure compliance with the obligations under the Convention.56 The CAT Committee has also emphasized that a very general prohibition of torture—be it in the Constitution or any other particular national law, without specifically naming and criminalizing the offence of torture—is not corresponding to Article 4.57 In addition, the sole inclusion of relevant articles of other international treaties into national legislation may not comply with the requirements of Article 4(1) if it does not adequately criminalize torture in general criminal law according to Article 1.58

29  States parties should further ensure the criminalization of torture, in respect to cover their entire territory. In this regard, the CAT Committee expressed concerns relating to the lack of congruity between the offence of torture in domestic law and the requirements under Article 4.59

3.3.2  Inclusion of a Definition of Torture

30  States parties must ensure that all forms of torture as defined under Article 1 are punishable offences under national law.60 Given this connection between Articles 1 and 4, it is difficult to separate the discussions on the inclusion of the offence of torture in national criminal law from the debate of including a definition of torture in national legislation. For this reason, many of the CAT Committee’s concluding observations and comments relevant to Article 1 apply similarly to the obligations under Article 4. Article 4 does not explicitly require that the definition of torture in Article 1 is reproduced verbatim in national criminal law. Rather, States parties must make all forms of torture punishable in national legislation.61 Therefore, the definition must cover at a minimum—but can be broader as well—all acts of torture covered in Article 1.62

31  However, practice shows that it is difficult, if not impossible, to cover all the different aspects included in the definition of torture under Article 1 without explicitly (p. 185) incorporating a proper definition in national criminal code.63 The CAT Committee highlighted that the lack of a definition of torture in national criminal code could lead to confusion and adversely affect the compliance by the States parties with their obligations to prevent and prohibit torture under the Convention.64 Also because ‘serious discrepancies between the [C]onvention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity’.65 While the inclusion of the definition in Article 1 would enhance the clarity and predictability in the criminal law,66 a partial inclusion or incompleteness of the definition of torture and its criminalization may thus result in impunity for acts of torture. Moreover, a lack of codification or a not proper definition of the crime of torture in national criminal law benefits too lenient penalties.67 Hence, according to the CAT Committee, criminal laws do not comply with Article 1 if they overlook or partially restrict the definition of torture. Thus far, the CAT Committee has criticized States parties, on the one hand, for a non-adequate inclusion of the purpose or reason element of the crime.68 On the other, for a non-adequate inclusion of the scope of application—either due to the limited scope of69 or delineation between70 (p. 186) potential perpetrators or the exclusion of some conducts,71 modalities of involvement in the crime,72 and/or the stage of accomplishing the crime of torture73 (attempt).74 After initial hesitation, the CAT Committee has increasingly urged States parties to include an explicit definition of torture in their national criminal legislation that is in ‘strict conformity’ with the Convention.75

32  In light of the above, full incorporation of a definition of torture is advisable in order to avoid difficult problems of interpretation and implementation. This conclusion does not apply to the ‘lawful sanctions’ clause in the last sentence of Article 1(1).

3.4  Meaning of ‘Punishable by appropriate penalties’

33  During the drafting of the Convention, the words ‘punishable by severe penalties’76 were replaced by ‘appropriate penalties which take into account their grave nature’.77 This formulation is taken verbatim from Article 2(2) of the New York Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons of 197378 and Article 2 of the International Convention Against the Taking of Hostages of (p. 187) 1979.79 In fact, there is no significant difference between ‘severe penalties’ and ‘appropriate penalties which take into account [the] grave nature’ of the offences punishable under Article 4.

34  Apart from literal interpretation of Article 4(2), neither the provisions of the Convention nor the jurisprudence of the CAT Committee defines a specific penalty and type or extent of sentence appropriate to and commensurate with the grave nature of the crime of torture. In the reporting procedure, the CAT Committee also did not arrive at a clear determination of what would constitute an appropriate punishment.80 The provision of Article 4(2) makes clear that torture is one of the most severe human rights violations that requires a punishment severe enough to have a deterrent effect.81 This means that torture should not be a misdemeanour,82 but a crime similar to the ‘most serious offenses under the domestic legal system’.83 This is confirmed by the practice of the CAT Committee that held that torture should also receive the heaviest punishment.84

35  In this regard, after a careful examination of the CAT Committee’s concluding observations and the opinions of individual members, Ingelse concluded that a ‘custodial sentence of between six and twenty years’ would best correspond to the CAT Committee’s interpretation of the requirements of Article 4(2).85 Since then, there have been numerous concluding observations in line with this conclusion without further defining the ‘appropriate penalties’ that take into account the grave nature of the act. Thus, contradicting the State obligations under Article 4(2) are fines,86 conditional sentences or probation87 as well as penalties that do not take not into account the grave nature of the crime of torture.88 In turn, from a human rights perspective life imprisonment, corporal or capital punishment also do not constitute an appropriate penalty.

36  Moreover, a very broad margin of discretion on the penalty for the crime of torture is not in accordance with Article 4(2), even if the maximum penalty corresponds to the standards set forth by the practice of the CAT Committee. The CAT Committee has (p. 188) stated that a penalty in the Criminal Code of the State Party of one to ten years’ imprisonment for the basic crime of torture allowing the judge to impose a minimum sentence of one year is insufficient.89 In other words, the sentence for the crime of torture must also correspond at the minimum penalty provided by law to the requirements in Article 4(2).90

37  Further, it has to be stated that the consequences of torture should not be decisive for the sentence. The intention to torture itself is the injustice that must be convicted. Additional aggravating circumstances as for example the permanent disability or death of a victim should not influence the severity of the sentence, because the intention of torturing also holds the possibility of lasting physical and mental effects and cannot be excluded based on the very nature of the act of torture. Subsequently, the appropriate sentence has to target the injustice element of torture itself adequately.91

3.5  Exclusion of any Immunity, Justification, and Excuse