Committee Against Torture Research Articles

From Norm Violations to Norm Development: Deviance, International Institutions, and the Torture Prohibition

AbstractHow do violations affect international norms? This article demonstrates that violations develop norms by analyzing how international institutions determine the meaning of deviant behavior and the breached norm. Decisions by courts, ad hoc tribunals, commissions of inquiry, and expert committees influence formal and informal lawmaking and drive the contested and often ambiguous development of international norms. To illustrate the impact of these norm applications and lawmaking efforts, the article compares two institutions with different mandates to oversee the international torture prohibition. In the 1960s and 1970s, the European human rights institutions defined torture for human rights law and found that Greece and the United Kingdom had violated the torture prohibition, but created ambiguity regarding the threshold of torture. In 1984, the UN Convention against Torture (CAT) adopted this definition, which was informed by earlier norm violations. In the 1990s and early 2000s, the UN Committee against Torture (CmAT) applied the torture prohibition to interrogation techniques used by Israel and the United States in counterterrorism operations. CmAT’s decisions that both countries had deviated from the norm led to General Comment No. 2 on CAT, which reaffirmed and specified the absolute and non-derogable nature of the torture prohibition.

Engendering torture: the experience of the Committee against Torture

ABSTRACT This article traces the development of attention to the role of sex and gender regarding the practice of torture and ill-treatment by the Committee against Torture (CAT), a core UN human rights treaty monitoring body. It traces the experiences of the author during her initial years as a member of the CAT regarding issues of gender and gender-based violations of the Convention against Torture (UNCAT). It shows how an integrationist strategy broadened the scope of the CAT members, particularly with regard to bringing attention to previously invisible violations that women suffer. The article also explains how these interpretations were enshrined in the landmark General Comment No. 2 of the CAT, which consolidates and clarifies the obligations of States parties to the UNCAT.

Forensic medical reports in asylum cases: The view of the European Court of Human Rights and the Committee against Torture

National authorities are often reluctant to arrange for a forensic medical examination or to grant important weight to forensic medical reports in asylum cases. They do not (fully) accept that a forensic medical report may change their initial assessment of the credibility of the applicant’s asylum account. They may argue that a physician cannot establish the context (date, location, perpetrator) in which the alleged ill-treatment has taken place or the cause of a specific scar or medical problem of the applicant. Moreover, they may contend that the physician concerned did not have the expertise to write a forensic medical report. This article examines how the European Court of Human Rights (ECtHR) and the Committee against Torture (CAT) have included forensic medical reports in their assessment of asylum cases and how they have dealt with the ‘context’, ‘causality’ and ‘expertise’ argument. It shows that these bodies do not accept that national authorities refrain from arranging a forensic medical examination or attach no or limited weight to a forensic medical report submitted by the applicant, just because the applicant has made inconsistent, incoherent or vague statements. They also do not accept general references to the ‘context’, ‘causality’ and ‘expertise’ argument. However, they have accepted these arguments in some individual cases, often without clear reasoning. The article concludes that the ECtHR and CAT could provide more guidance to national authorities concerning the role of forensic medical reports in asylum cases by explicitly weighing the seriousness of the credibility issues against the forensic medical report and by paying attention to the requirements for forensic medical reports laid down in the Istanbul Protocol.

Evidentiary Value of Forensic Medical Evidence in Asylum Procedures: Where Can the CJEU Bring Light into the Darkness?

Abstract The evidentiary value of forensic medical reports in asylum procedures is highly contested, mainly for two reasons. First, a physician usually cannot establish when, where, why and by whom the applicant has been ill-treated. Moreover, a physician can almost never establish with complete certainty which treatment caused a scar or physical or psychological problem. Nevertheless, both the ECtHR and the Committee against Torture (CAT) have recognised the importance of forensic medical reports as evidence in asylum cases in their judgments and decisions. However, they rarely explicitly address fundamental questions relating to the duty to arrange for a medical examination and the evidentiary value of forensic medical reports. This article examines where the Court of Justice of the European Union may step in to provide more guidance regarding these issues to the Member States of the European Union, by interpreting Article 18 of the recast Procedures Directive.

A Critical Analysis of Pakistan's Compliance with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: An Alternative View

This is the preliminary text of the alternative report which was submitted to the UN Committee against Torture (CAT) relating to the examination of the initial report of Pakistan under Article 19 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment (UNCAT) on behalf of National Commission for Human Rights (“NCHR”). NCHR is newly established Paris Principles mandated independent body created through an Act of Parliament known as the National Commission for Human Rights Act (“NCHR Act”), 2012. Pakistan ratified the Convention in 2010, submitted its initial report in 2016 which was reviewed by the CAT during its 60th session from 17th April to 19th April 2017.

Prohibition against Torture in International Law: United Nations Treaty Body

Article 5 of the Universal Declaration of Human Rights 1948 reads “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. This Article is widely regarded as expressing customary international law. Within the United Nations framework, torture and other cruel, inhuman or degrading treatment or punishment are explicitly prohibited under a number of international treaties, which are legally binding on those States which have ratified them. Many treaties establish Committees, known collectively as the treaty bodies, which are mandated to monitor States Parties’ compliance with their obligations under the treaties. They do this by issuing General Comments or Recommendations, which provide detailed interpretation of specific aspects of the treaty. The purpose of this paper is to analyze the definition and the elements required for an act to be classified as torture or other cruel, inhuman or degrading treatment or punishment, applied within the United Nations system, by considering the General Comments and jurisprudence of the treaty bodies, in particular the Human Rights Committee (HRC), which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), and the Committee against Torture (CAT), which monitors compliance with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). The paper focuses on States Parties’ obligations under the main treaties, by considering the scope of application of these obligations. DOI: 10.5901/ajis.2013.v2n8p61

Chinese Practice in Public International Law: 2009

Chinese Practice in Public International Law: 2009

Judgment in the First Case Before the African Court on Human and Peoples' Rights: A Missed Opportunity or Mockery of International Law in Africa?

On 15 December 2009 the African Court on Human and Peoples’ Rights (‘the African Human Rights Court, or ‘the court’) sitting in Arusha, Tanzania delivered its first ever judgment. The purpose of this article is to reflect and comment on several issues and principles found in this first ever case to be filed before the court. In the course of discussion, the article will present the conclusion reached by the court and the Separate Opinion of Judge Fatsah Ouguergouz. At first, a discussion is on the arguments raised by the applicant, Mr Michelot Yogogombaye against Senegal in respect of the on-going legal proceedings instituted in Senegal against Hissene Habre, former President of Chad, charging him with crimes against humanity, particularly torture committed in Chad between 1982 and December 1990. Then, a discussion is on Senegal’s preliminary objections to the application touching on the lack of jurisdiction by the court on the basis that Senegal has not made a declaration under article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol) allowing individuals to institute cases against it before the court.Although the judgment of the court did not go into the merits of the case, this article discusses the implications that the judgment would have had on the developments of international law in Africa, had it gone into merits and substance of the case. It examines several key issues that had been raised by the applicant before the court. These include ‘functional immunity’ of former heads of state in relation to serious human rights violations as alluded to by the applicant; the principle of ‘universal jurisdiction’; retroactivity of penal laws; status of a political asylee under the law on refugees; issues of access to the court by individuals under the concept of personal jurisdiction (jurisdiction ratione personae) as reflected in article 5(3) of the Protocol, and whether the court may ‘receive’ applications from individuals against a state which has not made an express declaration under article 34(6) of the Protocol. In this connection, the article follows the interpretation of the words ‘receive’ and shall’ as found in articles 5(3) and 34(6) of the Protocol, and offers its own interpretation of ‘individuals’ as used in the same provisions of the Protocol. Further, it examines the possibility of the court’s judgment to suspend the decision of the Assembly of the African Union (AU) mandating Senegal to try Hissene Habre. The article further examines whether the court had been seized with an opportunity to develop its own jurisprudence on international law in Africa, in line with the provisions of the Protocol. In addition to the questions raised, the article also examines whether the applicant in the case had indeed understood some of the principles he contended that Senegal has violated in prosecuting Hissene Habre or his arguments are simply a mockery of international law and obligations of states in the prosecution and punishment of individuals who commit human rights violations. To understand the context of the judgment of the court, it is necessary that the application and preliminary objections as well as statement of defense filed before the court be discussed as a whole. But, before attempting to discuss the judgment of the court, it is necessary to consider the pre-existing legal proceedings against Mr Hissene Habre and Senegal before different legal and judicial institutions in the world. These proceedings will inform the readers about the context within which the present judgment of the court came into being. For brevity reasons, it suffices to highlight here that Hissene Habre sits at the centre of various legal proceedings before national and international judicial bodies. The prior legal proceedings that had been instituted against Mr Hissene Habre in Senegal and Belgium, as well as against Senegal before the United Nations Committee against Torture (CAT) and the International Court of Justice (ICJ) are the ones that also have an impact on the first case before the African Human Rights Court. What follows below is now a discussion on the judgment in the first case before the African Human Rights Court and its implications in Africa.

China, International Organizations, and Global Security (review)

Reviewed by: China, International Organizations, and Global Security Lisa Fischler (bio) Ann Kent . China, International Organizations, and Global Security. Stanford, CA: Stanford University Press, 2007. xvi, 360 pp. Hardcover $65.00, ISBN 978-0-8047-5551-1. How China interacts with international organizations is significant, in terms of both compliance and cooperation, because "while state compliance with international norms, principles, and rules is an essential building block of harmonious interstate relations, a state's cooperation with them, in the sense of implementing and promoting their objective and purpose in a variety of ways, remains the most reliable predictor of long-term global security" (p. 248). In effect, China, International Organizations, and Global Security demonstrates not only variations in the depth and breadth of the People's Republic of China's (PRC's) commitment to the international system but also the necessity of engaging, as opposed to containing, this emerging regional and global player during the foreseeable future. A comprehensive introduction and thorough conclusion enhance the historical overview and the four case studies, each involving a different international regime, addressed in the remaining five chapters. The historical chapter shows China's steep learning curve, in terms of its active participation in the global community, especially over the last two centuries. The case studies clearly highlight the variation in the PRC's compliance and cooperation across diverse international organizations: the Conference on Disarmament (CD), the World Bank (IBRD/WB), the International Monetary Fund (IMF), the United Nations Environment Programme (UNEP), and the International Labour Organization (ILO), and the UN Committee against Torture (CAT). This volume's skillful use of processed-based theories to better understand why authoritarian states, such as the PRC, engage the international system more than superficially makes a valuable contribution to furthering research on international relations and international organizations, on China studies and Chinese politics, and on comparative regimes. The worth of China as an empirically valuable and theoretically useful case study stems from the current debate over the effectiveness of international organizations, the rise of the PRC as an impressive global actor, and concerns over the international impact of perceived rogue states on the part of developed countries. As the introductory section indicates, evidence of China's capacity to learn and effectively engage internationally over the last three decades lends empirical credibility to the vital role of international regimes in global security and to engagement, rather than containment, of authoritarian governments as a preferred policy. The variation of China's compliance and cooperation across international organizations highlights the more comprehensive explanatory power of process-based theories in comparison to compliance theories alone. For [End Page 250] the future, however, China's "further international integration and socialization are critical to the maintenance of international standards of human security and sustainable development" (p. 251). China has progressed dramatically in terms of engaging internationally, but without its continuing cooperation the global economy and environment will be in dire straits. Over the course of the nineteenth and twentieth centuries, China's attitude toward, perception by, and relationship with the international system fluctuated tremendously, but was shaped consistently by both global and domestic forces. "History," according to the author, "provide[s] a benchmark of the power of international institutions to help socialize and transform states" (p. 34). Ann Kent divides the extended, gradual, and excruciating process by which China reached its current degree of engagement with the global community into four broad epochs: imperial and Republican times, 1949–1971, 1971–1978, and 1978 to the present. The unequal treaties of the mid-1800s shocked Qing emperors into moving from an exceptional, culturally superior view of the Middle Kingdom to a defensive, instrumentalist employment of international law against Western imperialism. Republican era leaders' initial participation in and support of international regimes, such as the League of Nations, crumbled beneath the weight of China's betrayal by other global powers at the 1919 Paris Peace Accords and during Japan's 1931 invasion of Manchuria. Active overtures to the UN by the PRC in the early communist years to engage internationally fell victim to U.S. policies, China-Taiwan issues, Korean War politics, and Cold War tensions. Isolation describes China's relationship with the international system...

International Efforts to Combat Torture and Inhuman Treatment: Have the New Mechanisms Improved Protection?

During the last decade, the United Nations and the Council of Europe have increased their efforts to combat torture and other forms of inhuman treatment through the introduction of special mechanisms. In 1985, the UN Commission on Human Rights appointed a Special Rapporteur on Torture to take account of and investigate reports of torture. With an eye to efficiency, the conditions of appointment leave the Special Rapporteur unhindered by set procedures. In 1987, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) entered into force and was simultaneously backed up by the establishment of the Committee against Torture (CAT), a task force set up to oversee implementation of the Convention. In 1989, member states of the Council of Europe, acting through the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT), established the Committee for the Prevention of Torture (CPT) and assigned it the task of visiting states parties and inspecting places of detention.