UNSpecial N° 690 • Decembre 2009
TORTURE
A DISGRACE TO ALL HUMANITY
Although torture is a crime against humanity and civilization, prohibited by countless international and regional norms, and subject of universal jurisdiction, it continues to occur in many countries in the world.
Manfred Nowak, the Human Rights Council’s Special Rapporteur on Torture, has recently published a thorough Commentary on the United Nations Convention against Torture (http://www.hrweb.org/legal/cat.html, adopted by the General Assembly on 10 December 1984, in force 26 June 1987). This is one of the seven core UN human rights conventions and is administered by the Committee Against Torture, which was established in 1987 and is composed of ten independent experts. As of November 2009 there are 146 States parties to the Convention, which unfortunately means that it is not universally applicable, since forty-six States members of the UN have not yet adhered to it. The Committee meets twice a year in Geneva and is serviced by the Office of the UN High Commissioner for Human Rights. The principal functions of the Committee consist in the consideration of periodic State party reports and the examination of individual complaints. It is the latter activity that has proven most innovative in creating jurisprudence consistent with the case-law produced by the UN Human Rights Committee, by the UN Committee on the Elimination of Racial Discrimination and by the UN Committee on the Elimination of Discrimination Against Women. Precedent goes beyond the mere reaffirmation of norms and constitutes in a very real sense living law, since Committee decisions identify concrete violations of the norms with respect to real persons, make specific findings and propose solutions thereon. Moreover, precedent has a preventive component, because by applying the law in concrete cases, all governments and law enforcement officials know where the limits are, what is allowed, what is not, and what are the consequences of violations.
Perhaps the most considerable breakthrough in the jurisprudence of the Committee Against Torture concerns the application of article 3 of the Covenant which provides: “No State shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. On its face this merely repeats the principle of non-refoulement, which we already know from the Geneva Convention on the Status of Refugees. But the Refugee Convention did not envisage the establishment of a “Committee on Refugee Status” competent to monitor compliance with the Refugee Convention. Thus, in the absence of such a special committee, CAT has assumed some responsibilities in this connection. Admittedly, CAT cannot apply or interpret the Refugee Convention, but it can and does interpret the Convention Against Torture broadly enough so as to prohibit the deportation of many asylum seekers and persons in refugee-like situations. Article 3 of the Convention has thus become the backbone of the Committee and has allowed it to extend protection to a signifi cant number potential victims of torture. 80% of the individual cases submitted to the Committee concern alleged violations of this article. Nowak devotes 102 pages to the discussion of this provision (pp. 127-228)
In many ways Nowak’s book illustrates how international law and in particular the Convention against Torture are relevant to all of us. It has played a hugely important role in the struggle against impunity, e.g. in connection with the detention of former Chilean President Augusto Pinochet whose claim of “immunity” on the “act of State” doctrine were rejected by the House of Lords.
Urgent action is frequently required but seldom possible. Notwithstanding the issuance of “interim measures of protection” by the Committee, States parties do not always abide by them. Similarly, even when the Committee has concluded consideration of a case and issued a final decision on the merits, the State party does not always agree with the Committee’s findings. This is why the Committee has established a follow-up procedure to persuade States parties to implement the Committee’s recommendations. Until States adopt enabling legislation that would give Committee decisions status in the domestic legal order of States, enforcement will continue to be fairly ad hoc.
Nowak’s Commentary throws light on the drafting history of the Convention (travaux préparatoires), rules of interpretation, reservations, declarations to and denunciations of the Convention and to its Optional Protocol of 18 December 2002 (in force 22 June 2006, fifty States parties, http://www2.ohchohchr.org/english/law/cat-one.htm). This Optional Protocol allows for preventive visits to places of detention and is administered by a special Sub-Committee (http://www2.ohchr.org/english/bodies/cat/opcat/index.htm).
Professor Manfred Nowak teaches international law at the University of Vienna. He is also the author of a Commentary on the International Covenant on Civil and Political Rights (N.P.Engel, 2nd revised edition 2005) and a member of the group of eminent experts engaged in the drafting of a Statute for a World Court on Human Rights, sponsored by Switzerland’s Agenda for Human Rights. Elizabeth McArthur worked for the Office of Democratic Institutions and Human Rights of the OSCE in Warsaw and is associated with the Ludwig Boltzmann Institute for Human Rights in Vienna.
In spite of its enormous length (1649 pages), the commentary is user-friendly, making the norms and practice of the Committee Against Torture accessible to many lay people, not only to lawyers and specialists. The Bibliography, case-index and other appendices are professionally made. The book is a welcome addition to scholarship in the field of human rights.
Manfred Nowak and Elizabeth McArthur, the United Nations Convention Against Torture, A Commentary, Oxford Commentaries on International Law, New York, 2008.