The Multilateral Treaty Against Torture

On December 10, 1984, the U.N. General Assembly unanimously adopted by resolution the text of a multilateral treaty against torture. Technically it is called the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under its Article 27(1), the treaty would go into force or effect 30 days after the 20th instrument of ratification or accession had been deposited with the U.N. Secretary-General. In fact, it went into force on June 26, 1987.[1]

CAT’s Article 1(1) defines “torture” 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.”[2]

Under CAT, each State Party is obligated to (a) take steps to prevent acts of torture within its jurisdiction; (b) not to expel, return (“refouler“) or extradite a person to another state where there are substantial grounds to believe he would be in danger of being tortured; (c) to make acts of torture (and attempts and participation in torture) criminal offenses under its domestic laws; (d) to establish jurisdiction over offenses of torture that are committed on its own territory or on a ship or aircraft registered in that State, or by a national of that State, or when the victim is a national of that State, or when committed outside the State by a foreigner who is present in the State; (e) to investigate and prosecute individuals for alleged torture; (f) to train law enforcement and military personnel and others about the ban on torture; (g) to review and revise interrogation practices to prevent torture; (h) to provide legal remedies for victims of torture;  and (i) to exclude statements invoked by torture from evidence in any proceedings (except for cases for alleged torture).[3]

CAT in Article 2 bans two potential defenses to charges of torture. First, “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.” (Emphasis added.) Second, an “order from a superior officer or a pubic authority may not be invoked as a justification of torture.” (Emphasis added.)

Under CAT’s Article 16(1), each State Party is obligated ” to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

CAT in Articles 17 through 24 establishes a Committee Against Torture (CAT) of 10 independent experts who are elected by the parties to the treaty to monitor its implementation. All States parties are obliged to submit periodical reports to the Committee on how the treaty is being implemented in their countries. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations.”[4]

The Committee may, under certain circumstances, consider individual complaints or communications claiming that their rights under the Convention have been violated, undertake inquiries and consider complaints by states. The Committee also publishes its interpretations of the treaty as “general comments” on thematic issues.[5]

Today 148 of the 193 members of the U.N. (76.7%) are parties to the CAT; a non-U.N. member (the Holy See) is also a party to CAT. One of those parties is the U.S. upon its ratification of CAT on October 21, 1994, which will be the subject of a future post.[6] Here is the geographical breakdown of the states that are and are not parties to this treaty:

	Yes	No	Total
Africa	44	3	47
Asia	26	25	51
Europe	44	2	46
Latin America/Caribbean	22	11	33
Middle East	11	4	15
North America	2	0	2
TOTAL[7]	149	45	194

The development of the text of CAT began in December 1975 with the U.N. General Assembly’s adoption of two resolutions: one was the Declaration for the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the other asked the U.N. Commission on Human Rights to study the question of torture and how to enforce the Declaration on the subject. Two years later (December 1977) the General Assembly specifically requested the Commission to prepare a draft treaty on the subject.[8]

In February 1978 the Commission started its work on drafting the treaty. The Commission finished its work in March 1984 when it submitted its draft of the treaty to the U.N. Economic and Social Council for ultimate submission to the U.N. General Assembly.  The key issues addressed by the Commission in this process were revising the Declaration’s definition of “torture” and  deciding how a state could exercise jurisdiction over torture outside its territory committed by non-nationals and how to have international supervision of compliance with the treaty.[9]

Two months later (May 1984) that Council turned over the draft to the General Assembly through the latter’s Social, Humanitarian and Cultural Affairs Committee (commonly referred to as the Third Committee), which with some amendments approved the draft for the General Assembly in early December 1984. As noted above, the General Assembly on December 10, 1984, unanimously approved the Convention.[10]

The seven to nine years it took the U.N. to develop and approve this treaty might seem like an unnecessarily long time. However, to obtain international input and consensus through several U.N. bodies on an important subject like creating legal obligations regarding torture is a complicated process. For example, diplomats involved in the actual drafting and negotiating the language of a draft treaty are interacting with other countries’ representatives in multiple languages on multitudes of issues. In addition, each country’s diplomats need to report developments to their superiors in the capitols of the world and to obtain new instructions. Thus, it should not be surprising to take seven to nine years to accomplish these tasks.