Summary Overview

The right to be free from torture or cruel, degrading punishment is something that has been enshrined in many different charters of freedom over the decades. The specter of torture could arise within nations. With the context of internal security or law enforcement, governments or police forces have employed torture or other coercive punishments to extract confessions or as a means of obtaining information to further an investigation. In an international setting, torture or cruel punishments have been used against enemy soldiers or in counterintelligence operations. While existing national bills of rights, United Nations conventions, and agreements like the Geneva Convention might have taken steps to eliminate torture and cruel punishments, in the mid-1970s the United Nations set out to not only provide clearer guidelines for what actions constitute torture or cruel, degrading punishments as well as creating an international framework for monitoring and actively preventing such actions. While the road to an agreement would be long (see “Defining Moment,” below), the convention would allow for the investigations of many cases of torture and make strides toward eliminating the practice.

Defining Moment

In 1975, the United Nations General Assembly adopted the initial Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This was the beginning of a long path that would eventually lead to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. In 1978, work began on a means for enforcing the principles in that declaration. The Commission on Human Rights would labor over the agreement for years. Several questions and debates arose during the drawing of the convention which ensured that this would be a lengthy process. Crucially, one of the most vexing debates was over the definition of “torture,” with concerns that the definition in the 1975 Declaration was too simplistic and a great deal of effort going into ensuring that the convention had a definition of torture that was nuanced enough to be effective. Another issue that led to long debates was the complex question of jurisdiction. Torture can occur in a perpetrator’s own country, in their victim’s country, or in a third country—who has the proper jurisdiction? Along with the definition of torture, the jurisdiction question was one of the most complex. After meeting with the approval of the Economic and Social Council, the General Assembly approved the convention on December 10, 1984. It was agreed to by enough nations to go into effect on June 26, 1987.

Authors’ Biography

The United Nations Human Rights Commission was created by the United Nations Economic and Social council in 1946. The UN Economic and Security Council is one of six separate areas of responsibility within the Organization. Others include the General Assembly, the Security Council, the International Court of Justice, and the Secretariat. Along with the Commission on the Status of Women, the Human Rights Commission was one of the first two such commissions created. The Human Rights Commission drafted a number of significant documents in United Nations History. In addition to the International Covenant on Civil and Political Rights and the Universal Declaration on Human Rights, The commission also created the International Covenant on Economic, Social, and Cultural Rights. It has responsibility to address a wide range of human rights concerns as well as the ability to establish standards to which UN member nations must adhere.

Historical Document

United Nations Convention against Torture

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984; entry into force 26 June 1987, in accordance with article 27 (1)

The States Parties to this Convention,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that those rights derive from the inherent dignity of the human person,

Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,

Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975,

Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,

Have agreed as follows:

PART I

Article 1

Article 2

Article 3

Article 4

Article 5

Article 6

Article 7

Article 8

Article 9

Article 10

Article 11

Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 13

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

Article 14

Article 15

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Article 16

PART II

Article 17

Article 18

Article 19

Article 20

If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.

Taking into account any observations which may have been submitted by the State Party concerned, as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.

If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory.

After examining the findings of its member or members submitted in accordance with paragraph 2 of this article, the Commission shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.

All the proceedings of the Committee referred to in paragraphs I to 4 of this article shall be confidential, and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24.

Article 21

A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure; (a) If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter; (b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State; (c) The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention; (d) The Committee shall hold closed meetings when examining communications under this article; (e) Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission; (f) In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information; (g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing; (h) The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report:

If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;

If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. In every matter, the report shall be communicated to the States Parties concerned.

The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 22

A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

The Committee shall consider inadmissible any communication under this article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.

Subject to the provisions of paragraph 2, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph I and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.

The Committee shall not consider any communications from an individual under this article unless it has ascertained that: (a) The same matter has not been, and is not being, examined under another procedure of international investigation or settlement; (b) The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.

The Committee shall hold closed meetings when examining communications under this article.

The Committee shall forward its views to the State Party concerned and to the individual.

The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary General, unless the State Party has made a new declaration.

Article 23

The members of the Committee and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph I (e), shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

Article 24

The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.

PART III

Article 25

This Convention is open for signature by all States.

This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 26

This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary General of the United Nations.

Article 27

This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.

Article 28

Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.

Any State Party having made a reservation in accordance with paragraph I of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations.

Article 29

Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary General shall thereupon communicate the proposed amendment to the States Parties with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favours such a conference, the Secretary General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.

An amendment adopted in accordance with paragraph I of this article shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.

When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted.

Article 30

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by paragraph I of this article. The other States Parties shall not be bound by paragraph I of this article with respect to any State Party having made such a reservation.

Any State Party having made a reservation in accordance with paragraph 2 of this article may at any time withdraw this reservation by notification to the Secretary-General of the United Nations.

Article 31

A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of- the notification by the Secretary-General .

Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.

Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.

Article 32

The Secretary-General of the United Nations shall inform all States Members of the United Nations and all States which have signed this Convention or acceded to it of the following: (a) Signatures, ratifications and accessions under articles 25 and 26; (b) The date of entry into force of this Convention under article 27 and the date of the entry into force of any amendments under article 29; (c) Denunciations under article 31.

Glossary

acquiescence: the position of allowing something to happen without explicitly ordering it

extradite: to return someone to a nation where they are accused of a crime to stand trial

quorum: the minimum number of members of a group required for that group to act

Document Analysis

The preamble lays out the foundations for this new agreement, including the United Nations Charter, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The preamble closes by expressing a desire to end “torture and other cruel, inhuman, or degrading treatment or punishment.”

Part I contains Articles 1 through 16. This first part of the convention details the steps that participating nations are required to take to ensure that torture and cruel punishment are prohibited. Before getting into those details, Article 1 sets out a definition of torture, which emphasizes that it is a technique used by public officials or those acting under their authority to extract information or a confession. Pain or suffering that occurs as part of lawful punishments are not, the Article explains, torture. Article 2 requires parties to the convention to take concrete actions to prevent torture in their nations. The article also makes very clear that there are no justifications for torture. Article 3 forbids extraditing people to places where they would be likely be subjected to torture. Articles 4 through 10 address the need to treat torture as a crime and to prosecute it anywhere in its territory or jurisdiction. These articles include guidelines for international cooperation and extradition of those accused of torture and also mandates training for both civilian and military law enforcement personnel so that they are fully aware of how prisoners or suspects are to be treated. Article 11 calls for nations to have up to date guidelines for interrogation and treatment of prisoners while Articles 12, 13, and 14 address the need for victims of torture to have legal recourse and redress for their suffering.

Part II, containing Articles 17 through 24, details the establishment of the Committee Against Torture. Article 17 outlines the make-up of the committee, which consists of ten human rights experts elected by the nations that are part of the convention. Any participating nation may nominate candidates and will serve for a four-year term. Article 18 provides for the committee to created its own rules and Article 19 requires member nations to submit reports to the committee detailing the steps they have taken to implement the requirements set out in Part I. Article 20 details the procedure for the committee to investigate cases of torture in a participating nation when they receive “reliable information” that torture may be occurring. Article 21 explains the investigation process when one member nation lays an accusation concerning torture against another member nation as well as the procedure for establishing “conciliation committees” to resolve disputes. Article 22 lays out a similar process for an individual alleging that they are a victim of torture. In both of these instances, a state must declare its recognition of “the competence of the Committee” to hear and investigate the charges. Article 23 verifies that the committee and those working on Conciliation Committees have the same status as other United Nations experts. Article 24 requires the committee to submit an annual report to nations that are party to the convention and to the UN General Assembly.

Part III is comprised of Articles 25 through 32. This section is concerned with the ratification process for the convention—the process for proposing amendments, who may be party to it, when it goes into effect, and similar details.

Essential Themes

As of late 2022, eighty-three nations are signatories to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment with efforts ongoing to increase the number of nations participating. Implementation of the convention has not been without some difficulties. Legal experts have noted that the phrase “inherent in or incidental to lawful sanctions” in Article 1 is overly broad and problematic. If torture does not include suffering “inherent” in a lawful sanction, or punishment, what is to stop a nation from asserting that the effects of torture are, in fact, legal under their judicial system? Differences between legal systems and the punishments they provide have led to disputes between nations who are party to the convention but the interpretation that has gained the most support is that no punishment that is not provided for or authorized under international law is valid. This cancer is one example of the ways in which international conventions such as this may seem straightforward on the surface but, in practice, may be quite difficult to interpret or enforce.

Bibliography and Additional Reading