UN’s Torture Convention
Author: A. Keerthikah, School of Law, Mumbai University.
Abstract
Torture has been used as a tool to exploit minority people from time immemorial. During war or communal violence, torture has been prevalent in countries all around the world. Convention Against Torture is one of UN based treaty to eradicate torture from this world and to retain human rights. Torture is defined in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. This piece will attempt to break down such complex definitions and provide an accurate legal insight into the aforementioned issue.
Introduction:
The world had faced atrocities of all sorts in the two world wars. Humans had lost their humanity in the process of achieving superiority among others. After the Wars it was evident that there had to be a set of rules to protect human rights, maintain better quality of living and uphold international peace and security which was agreed by 50 countries around the world who came together to form the United Nations (UN). The charter-based bodies and the treaty-based bodies form the basics of UN. While the treaty bodies are composed of independent experts, the charter-based bodies operate mainly through conferences and meetings at which representatives of governments and NGOs advocate their positions.] The Committee against and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) or the Torture Convention and the Subcommittee on Prevention of torture (SPT) are two of the treaty-based committee of UN which deals with torture.
Torture is defined in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. This definition clearly points out to the torture in the hands of law officers who use their authority to prey on people. The torturing of minority people or people suspected of committing a crime is quite common in countries around the world. The objective of this convention is to prevent the grave violation of human rights which occurs in the form of torture in various parts of the country.
The Committee against Torture (CAT) consists of 10 experts which is by far the smallest group members of all the human rights treaty bodies. The election of the members for a term of four years is done according to Article 17 of CAT. The committee meets three times a year for four-week sessions to discuss matters relating to this Convention. The CAT has 170 parties who have signed the Convention and 83 who have ratified them. After a country ratifies a convention it must submit a report through the Secretary General of the United Nations about the measures taken to give effect to the undertaking under this convention in the first year which will be reviewed by the Committee and later a report in every four years must be given. A shadow report can be given to the committee two weeks in prior with detailed information about the problems faced by them. A country rapporteur is assigned to lead the dialogue with the state under review[3]. There is an hour private meeting to discuss the shadow report wherein thirty minutes is reserved for the committee to ask questions about the report. The rapporteur make report about the state conditions and the committee asks following up questions. In the end the secretariat and the rapporteur make guidelines to be followed and the measures the state has to adopt in a year. The committee till date has implemented four general comments, general comments are interpretation made by the treaty bodies on the provisions of the convention which also clarifies the implementations which must be made by the states according to the provisions of the convention.
The first general comment was adopted by the CAT on 21st November 1997. It further explained the article 3 of the Convention in context with article 22. Article 3 of the Torture convention deals with refoulment or extradition of an individual to a country where the individual is in risk of being tortured. In cases like this the state where the person is currently residing can prevent the extradition of an individual under this Article. The Committee put emphasis on the fact that the case has to be prima facie and the individual has to establish that there is a certain threat or risk of being tortured. The state’s pattern of violation of human rights, any prior incident of torture faced by the individual will also be taken into account while a State makes a decision. Case Law- A Ethiopian women had sought protection under the article 3 of CAT in Canada as she feared a risk of torture in her home. The Canadian court dismissed her case after they found her pleas inconsistent and did not find any evidence that she will be tortured in her country. Even though Ethiopia is known for its violation of human rights, the court declared that this is not sufficient evidence to support her claims. Hence, she was deported back to her home state as there was no evidence pointing to the fact that she is in a risk of being tortured which in return did not violate the article 3 of the Convention.
The second general comment discusses the parts of Article 2 of the Convention which specifies the measures to be taken to abolish torture in the states. It further details that a state should be responsible for preventing any kind of torture in its territory which includes aircraft or ship or any other detention facilities, embassies which comes under the state’s jurisdiction. The state should also implement strict rules which make the perpetrators realise the severity of the crime of torture. Each state should make sure that the minority groups or people who do not fit into the gender roles of society or any other person who is in risk of being ill-treated by the public officers be protected by the State. State should give appropriate compensation to the family of the victims of torture. In the aftereffect of 9/11, the Committee further emphasised on the abolition of torture to get an evidence from the individual and to prohibit all justification of torture or inhuman, cruel or degrading punishment in any circumstances. In the article 2 paragraph 3 the committee further goes on to state that an order of a superior officer can never be used to justify torture of an individual. Hence this general comment goes in detail to clarify each and every part of Article 2 to make sure the state completely bans the practice of torture in any circumstance.
The third general comment explains the obligations under Article 14 of the Convention Against Torture. Article 14 states the redress, a remedy or compensation to the victims of torture and if the victim has succumbed to his injuries then the compensation would be passed on to the family of the victim. The victim is someone who has suffered physical or mental trauma or any loss of money due to the violation of any provision of this Convention. Victims includes every person who had suffered harm while try to interfere to protect the other victim or the people related to the victim. The victim should be given compensation irrespective of whether the perpetrator was convicted or acquitted. The victim should be given compensation in monetary terms if there is any monetary loss and if the victim has suffered mental torture or physical torture the state should cover the medical expense and the psychological expense of the victim. The state shall try to restore the victim’s situation before the torture had been committed and it is the duty of the state to make sure that such an incident does not repeat in the future. The State should investigate the matter in a prompt way to make sure that justice has been served to the victim, if this is not done then the State has violated the provisions of this Act. States shall monitor and report their findings about the number of victims and what is being done to provide redressal and improve the conditions in their state.
The fourth general comment provides detailed guidance on torture and about the violations of Article 3 of the Torture Convention. Most of the complaints of the committee relates to Article 3, hence the committee decided to further elaborate on this article of non-refoulment. This comment is a replacement of the general comment 1, it has kept most of the olden rules while adding some new guidelines. This General Comment will guide the states on communications which will assist individuals at risk of refoulement, it will make more effective claims to international bodies to help the Committee get rid of its backlogs. General Comment 4 reminds States that they should not deport individuals if there are substantial grounds that the individual is at risk of torture by non-State actors, which was not stated in General Comment 1 but the CAT has developed in its merit’s decisions[4] This general comment retains the fact that the case must be prima facie that is there must be enough evidence to draw the conclusion that the rights under Article 3 will be violated if the individual is deported. This comment alters the fact that state will have to consider communication of violations of article 3 which occurred even before the State recognized CAT’s provisions. If the individual is unable to proof the risk of torture due to the fact that the individual did not have any documents then the burden of proof falls on the State to investigate the matter. The prior human right violation and the individual’s home State view on gross mistreatment of gender-bias or minority will be taken into account while making a decision.
The Sub-committee on Prevention of Torture (SPT) composed of 25 members from countries who have signed and ratified the Optional Protocol to the Convention Against Torture (OPCAT). The SPT committee have access in every place of the country which has ratified this convention. The committee can search any place in the country where it has suspicion of violation of human rights. The OPCAT is based on the principle of co-operation between the SPT, each State Party and the NPM (National Preventive Mechanisms).[5]
Conclusion
The objective of this Convention is to abolish torture in the World. This has still not been properly implemented in the countries. Countries like India has not yet ratified the convention which has resulted in difficulties extraditing criminals from foreign countries. There have been 1731 custodial deaths in India in 2019 which means that five people die daily in the custody of the police or judiciary. The need for ratification of CAT is crucial, as torture in the custody of public officials has become common in India. Sri lanka, Egypt, Ethiopia, Iran, Iraq, Afghanistan, Turkey and Syria are among those countries were torture of minority groups are still prevalent. There is dire need for Convention Against Torture to retain human rights and bring peace around the World.
[1] UN Charter-based Bodies and Indigenous Peoples, United Nations Human Rights Office of High Commissioner.
[2] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Human Rights Office of High Commissioner.
https://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx
[3] Joshua Cooper, Convention Against Torture, Cultural Survival, 2015.
https://www.culturalsurvival.org/publications/cultural-survival-quarterly/convention-against-torture.
[4] Committee Against Torture Issues New General Comment on Non-Refoulment, International justice resource Center,2018.
[5] Optional Protocol to the Convention Against Torture (OPCAT), Sub-committee on Prevention of Torture, United Nations Human Rights Office of High Commissioner.
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