COMMITTEE AGAINST TORTURE CONSIDERS DRAFT GENERAL COMMENT ON MEASURES TO PREVENT ACTS OF TORTURE

The Committee against Torture today discussed a draft General Comment on Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which requires States parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

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 Felice Gaer, presenting communications about the draft General Comment received from various parties, said that the draft had been widely welcomed by a large number of States, national human rights institutions and non-governmental organisations. It had resulted in various editorial comments but also some deeper questionings. Some had questioned the Committee’s authority to prepare this General Comment. Ms. Gear underscored that the authority to do so came from the Convention. Others had questioned whether the words “cruel treatment” should appear in this General Comment as Article 2 only dealt with torture. Ms. Gear noted that the means to prevent torture and cruel treatment were the same and thus could be linked in the General Comment. The question whether discrimination could be addressed by this Committee had also been raised in the communications as well as the territorial scope of the Convention.

Committee Expert Fernando Mariño Menendez, making additional comments, said that there was a consensus emerging, but some central issues still needed to be clarified. Nevertheless, the broader lines had already been drawn. He also noted that some major European countries had not sent any comment. One important remark in the comments was on the subject of the responsibility of superiors tolerating or ordering the carrying out of acts of torture. It was noted that the Committee had no penal power to deal with such issues.

In the ensuing discussion, Committee Experts said that the General Comment should be seen as a guide for those seeking to prevent acts of torture and not as international law. The importance of procedural safeguards against torture was underscored. It was noted that it was impossible to take into account all the received comments, as many expressed contradictory views. The fact that in some countries, Supreme Courts had accepted torture because these countries had been in a state of war against terrorism was also noted. Non-governmental organizations commented that this General Comment came at a very important moment in the world.


The introduction to the draft General Comment observes, among other things, that the definitional threshold between cruel, inhuman, degrading treatment or punishment is often not clear in practice and that experience demonstrates that the conditions that give rise to cruel, inhuman, degrading treatment or punishment frequently facilitate torture. In a chapter on the "absolute prohibition" against torture, the draft emphasizes that the Committee has been deeply concerned at any 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 is also a matter of urgency that State parties shall closely monitor those acting with or on its behalf and identify and report any incidents of torture as a consequence of anti-terrorism measures.

In a chapter on the content of the obligation to prevent torture, the draft General Comment specifies that States parties have to define and make the offence of torture punishable as a human rights violation in their legal system. In a chapter on the scope of State obligations and responsibilities, the draft notes that the scope of territory must also include situations where a State party exercises, directly or indirectly, control over persons in detention. Also, the Convention requires that State parties adopt 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 of acts of torture.

When the Committee next reconvenes in public at 3 p.m. on Thursday, 8 November, it will take up the second periodic report of Latvia (CAT/C/38/Add.4).


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