The Convention against Torture: State Obligations and International Monitoring

In 1975, the United Nations 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. Two years later, the Assembly asked the Commission on Human Rights to draft a convention, turning the general prohibition into more specific obligations for States Parties.

According to Swedish jurist Hans Danelius's account of the negotiations, the Commission on Human Rights established a working group in 1978, using a Swedish draft as its main basis for discussion. Work continued annually until 1984. Disputes centred on the definition of torture, jurisdiction over offences committed abroad, and powers of international monitoring. These issues concerned states' willingness to investigate their own officials and how suspects should be handled after crossing borders.

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On 10 December 1984, the UN General Assembly adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment through Resolution 39/46. It opened for signature in New York on 4 February 1985. Article 25 requires ratification, while Article 26 provides separately for accession, with the relevant instruments deposited with the UN Secretary-General. Signature alone does not complete ratification.

Under Article 27, the Convention entered into force on the thirtieth day after deposit of the twentieth instrument of ratification or accession, which was 26 June 1987. Countries joining later became bound on the thirtieth day after depositing their own instruments. The year 1984 therefore marks adoption of the text, not a date on which every country simultaneously assumed treaty obligations.

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Article 1 defines torture as the intentional infliction of severe physical or mental pain or suffering for purposes such as obtaining information or a confession, punishment, intimidation, coercion or discrimination. It requires a connection with acts carried out, instigated, consented to or acquiesced in by a public official or another person acting in an official capacity. Article 2 requires effective preventive measures. War, emergencies and orders from superiors cannot justify torture.

These obligations also affect decisions at borders. Article 3 prohibits expelling, returning or extraditing a person to a country where there are substantial grounds for believing that the person would face a danger of torture. Articles 4–7 require torture, attempted torture and complicity to be included in criminal law, and establish jurisdiction and referral mechanisms. In the circumstances specified by the Convention, a state where a suspect is found must, if it does not extradite, submit the case to its competent authorities for consideration of prosecution. Applicable evidentiary standards and fair procedures still have to be observed.

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Prevention extends beyond criminal-law provisions. Articles 10 and 11 require the prohibition of torture to be included in training for relevant personnel, including law-enforcement and medical staff, and require systematic review of interrogation rules and detention arrangements. Articles 12 and 13 require prompt, impartial investigations whenever there are reasonable grounds to believe torture has occurred, guarantee the right to complain, and protect complainants and witnesses from retaliation or intimidation.

Article 14 requires redress, fair and adequate compensation, and the means for rehabilitation as full as possible. Article 15 excludes statements established to have been obtained through torture as evidence, but permits their use in proceedings against a person accused of torture to prove that the statement was made. Article 16 also applies certain prevention, investigation and complaint obligations to other cruel, inhuman or degrading acts that do not amount to torture as defined in Article 1.

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The Convention establishes a Committee against Torture consisting of ten experts serving in their personal capacities. States must submit implementation reports within one year of the Convention's entry into force for them, then supplementary reports every four years, as well as reports requested by the Committee. The Committee considers the reports and makes comments, to which states may respond.

The conditions for other procedures differ. Article 20 allows the Committee to investigate indications of systematic torture on the basis of reliable information. Proceedings are generally confidential, visits require the state's consent, and states may declare under Article 28 that they do not recognize this competence. The interstate and individual communication procedures under Articles 21 and 22 require separate declarations of acceptance by the states concerned. Monitoring thus combines a common reporting obligation with limits imposed by different scopes of authorization.

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In November 1987, States Parties elected the first members in Geneva. The Committee held its first session at the United Nations Office at Geneva in April 1988, elected Joseph Voyame as Chair and discussed working procedures. Its first annual report records adoption of rules for consideration of state reports and communications, and provisional adoption of guidelines for initial reports. Because of their complexity, rules for inquiries under Article 20 were left for the next session.

These steps show that international monitoring still needed personnel, reporting formats and procedural arrangements after the treaty entered into force. The Convention established institutional requirements for accountability, prevention and redress. Whether countries actually implemented training, investigations and compensation still had to be examined through specific reports and cases; it could not be inferred solely from participation in the Convention.

References: [1] [3]