COMMITTEE AGAINST TORTURE CONSIDERS DRAFT GENERAL COMMENT ON MEASURES TO PREVENT ACTS OF TORTURE
The Committee against Torture today completed a second reading of a draft General Comment on Article 2 of the Convention, which requires States parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. On the basis of the text adopted today, a revised draft would be sent to States parties, non-governmental organizations, and others for comments. It was hoped that the Committee would have a final text for adoption before it at its next session in November.
Article 2 of the Convention has three provisions. It sets out that States Parties "shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction"; that "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"; and that "an order from a superior officer or a public authority may not be invoked as a justification of torture".
Committee Expert Fernando Mariño Menendez, presenting the revised draft General Comment for a second reading by the Committee, noted that the heart of the document was contained in its first four sections: an introduction; a chapter on the absolute nature of the prohibition against torture; a chapter on the content of the obligation concerning the prevention of torture; and a chapter on the scope of State obligations and responsibility. Committee Expert Felice Gaer then read out the revised draft, as Experts undertook a paragraph-by-paragraph analysis, raising issues and asking for clarifications or changes, before adopting an agreed text.
The introduction to the General Comment observed, among other things, that although the definitional threshold between cruel, inhuman, degrading treatment or punishment was often not clear, conditions that gave rise to cruel, inhuman, degrading treatment or punishment frequently facilitated torture. In a chapter on the "absolute prohibition" against torture, the adopted draft emphasized that the Committee had been deeply concerned at efforts by States to justify torture and ill-treatment as a means to protect public safety, regardless of any threat of terrorist acts or violent crimes. In addition, it specified that the Committee considered that an amnesty which included torture would violate the principle of non-derogability.
In a chapter on the content of the obligation to prevent torture, the adopted text specified that States parties had to define and make the offence of torture punishable as a human rights violation in their criminal law. Further, in this section the comment sought to expand on the basic guarantees of human rights that applied to all detainees, including, among others, maintaining an official register of detainees, the right of detainees to be informed of their rights, and the right of detainees to promptly receive independent legal and medical assistance.
In a chapter on the scope of State obligations and responsibility, among other provisions, it was noted that the State also bore responsibility in torture where it was inflicted by or at the instigation of non-State officials or private actors in circumstances where persons exercising official capacity knew or should have known that the conduct was being or was likely to be committed or failed to take reasonable and necessary measures to prevent it. It was also emphasized that the discriminatory use of mental or physical violence or abuse was an important and independent factor in determining whether an act constituted torture. In that context, the protection of certain minority or marginalized individuals especially at risk of torture was part of the obligation to prevent torture or cruel or degrading treatment or punishment. Furthermore, it was noted that persons could be subject to violations of the Convention on the basis of their actual or perceived non-conformity with socially determined gender roles, and States parties were requested to identify those situations and the measures taken to punish and prevent them in their reports.
With respect to superior orders, a final chapter clarified that, not only was there a prohibition against a subordinate invoking superior orders to justify acts of torture, it also meant that those exercising superior authority – including high ranking public officials – could not avoid State responsibility or escape criminal responsibility for torture or ill-treatment committed by subordinates where they had known or should have known that such impermissible conduct was likely to occur.
At the end of the meeting, it was decided to appoint Guibril Camara and Luis Gallegos Chiriboga to represent the Committee at the next Inter-Committee Meeting, to be held from 18 to 20 June 2007.
When the Committee next reconvenes in public, on Friday, 18 May, in the late afternoon, it is scheduled to adopt its annual report, to discuss its programme of work for future sessions and to present its concluding observations on the reports of Denmark, Luxembourg, Italy, the Netherlands, Ukraine, Japan and Poland, which it considered during the present session.
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