Convention 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.

Publication of foreigners’ human rights abuses and retaliation between Convention Against Torture (CAT) states

Institutions that monitor violations of human rights, particularly of victims living outside their home countries, will often name the victims’ countries of origin in their reports. This article looks at this understudied practice and argues that it unintentionally creates bilateral retaliation dynamics between the victims’ home country and the country violating the victims’ rights. The article defines retaliation and explains why countries care about violations of their citizens’ rights that take place abroad. Through empirical analysis, the article shows that countries retaliate in response to violations of their citizens’ rights which have been identified and publicized by the UN Committee Against Torture. I use a new dyadic dataset on the abuse of foreigners’ human rights, as identified by Amnesty International and the Committee Against Torture, to test the hypothesis that a country's abuse of foreigners from a peer country is associated with that peer country's abuse of rights of citizens from the observed country. I then examine the Syrian–Lebanese case to trace the process of retaliation. These analyses support the hypothesis that countries retaliate against violations of their citizens’ rights abroad.

The Convention Against Torture and Nonrefoulement in U.S. Courts

In 1999—nine years after Senate ratification and five years after submitting its instrument of ratification—the United States finally implemented domestic regulations to fulfill its nonrefoulement obligations under Article 3 of the Convention Against Torture (CAT). Since then, the U.S. domestic definition of torture may have become one of the most litigated treaty provisions in U.S. courts. Last year alone U.S. immigration judges adjudicated over 25,000 CAT claims, and in the past four years nearly every federal circuit court has grappled with the CAT regulations. Because CAT determinations are often the last step preventing migrants from be removed from the United States, consistent application of the United States’ treaty obligations is quite literally a matter of life or death. And yet differences remain. Two circuit splits have emerged regarding the CAT definition of torture: one examining government involvement and an implied “rogue officer” exception and another considering the “consent or acquiescence” required for non-State actors. Most recently, in June 2020, the Trump administration proposed to significantly alter the CAT regulations and take a side in both circuit splits. This article aims to recontextualize U.S. circuit court interpretation of CAT provisions from a merely domestic immigration process to an international law framework. In particular, the article will examine the U.S. history related to implementing CAT, how federal circuits have created two significant splits in their interpretations of CAT Article 1, why the public international law context is integral to domestic interpretation of the CAT Article 1, and how U.S. application of CAT compares to the treaty’s drafting history and the practice of international bodies and courts. The article shows how the CAT drafting history and interpretation by international bodies consistently frame the public official nexus requirement contained in the CAT definition of torture as part of a State responsibility analysis, particularly a due diligence standard. Understanding this State responsibility context and its application to refoulement cases can help U.S. courts harmonize their divergent interpretations of torture under CAT.

Obscured by 'Willful Blindness': States' Preventive Obligations and the Meaning of Acquiescence Under the Convention Against Torture

As U.S. asylum law becomes more restrictive, relief under the U.N. Convention Against Torture (CAT) has become the last hope for safety for many asylum seekers. But for those who face torture at the hands of non-State actors, CAT relief has proven extraordinarily hard to win. The CAT’s torture definition encompasses privately-inflicted harm only when it occurs with the consent or acquiescence of a public official. Agency decisions initially took this to mean that officials must willfully accept or tacitly approve the private party’s actions. Courts have rejected that approach as overly restrictive. But what they have adopted in its place—a “willful blindness” test under which CAT applicants must show that officials would turn a blind eye to the torture they face—is also problematic. Under this standard, even where government officials take only half-hearted or patently inadequate steps to combat acts of privately-inflicted torture such as domestic violence, honor killings, gang violence, or mob attacks on LGBTQI people, courts frequently conclude that acquiescence has not been shown. As long as officials are doing something, the decisions reason, they are not willfully blind. This Article argues that willful blindness should not be the test for acquiescence. The term “acquiescence” is defined in a Senate ratification understanding to require that a public official have awareness of the torturous activity and breach a legal responsibility to intervene to prevent it. This definition, which has been incorporated into U.S. law, makes clear that when officials are aware of torturous activity—and in most cases there is no doubt that a country’s government is aware of widespread patterns of abuse—what matters is whether they breach their legal responsibility to take preventive action. Drawing on previously overlooked aspects of the history of the CAT’s drafting and U.S. ratification, this Article argues that officials acquiesce to torture if they fail to meet their legal responsibility under international law to take effective preventive measures. The State’s responsibility to exercise “due diligence” to prevent, investigate, prosecute, and punish acts of torture by non-State actors is widely recognized under the CAT and other human rights treaties. The U.N. Committee Against Torture has found that when States fail to exercise due diligence, they enable private parties to commit acts of torture with impunity, and thereby acquiesce. That approach accords with how the U.S., during the treaty negotiations, originally defined “acquiescence” when it proposed adding the term to the CAT’s torture definition. It also fits in comfortably with the text and purpose of the treaty and its U.S. ratification understandings. The Article concludes by considering what a due diligence standard for acquiescence would look like in practice and addresses potential objections to its appropriateness and administrability. It also offers a proposal to amend the CAT regulations to clarify the acquiescence standard.

The Principle of non- Refoulement and its Role in the Protection of Refugees

The protection available to refugees under the principle of non-refoulement is a well-established rule of the customary international law; which means that they can’t be shiftedagainst their well to their country where their life is at risk. A person who avails the protection of the principle of non-refoulement and other protections guaranteed under the international refugee instruments is considered a refugee. This principle is well established both under the Refugee Convention 1951 and Convention against Torture (CAT) 1984. This research revolves around the question that if a country is not a signatory to any refugee related instrument at international level nor has any domestic law related to refugees, sothen what precludes such a nation from expelling a person or group of persons from their territory? The paper explores the various protections available to refugees in general and under the principle of non-refoulement in particular.

LASHING IN QANUN ACEH AND THE CONVENTION AGAINST TORTURE: A CRITICAL APPRAISAL

While considered archaic to some, the Islamic Sharia applies lashing as punishment for a number of penal offences. Aceh is a special province in Indonesia with the privilege to apply some level of Islamic Sharia. Among them is to apply lashing as punishment for crimes such as fornication, gambling, consuming alcoholic beverages, and many others. Some have criticized this punishment as a violation of the prohibition against torture and cruel treatment. Based on a mix of normative and empirical research, his article will explore the relevant sources of international law and examine whether or not such a claim is true. It will be found that the Islamic Sharia version of lashing as applied in Aceh does not violate this prohibition, except in a very narrow-minded view of international law which may be an intellectual legacy of colonialism towards the world.

Einhaltung der Menschenrechte in der Psychiatrie

The article provides an overview of the origins and practical work on national and international control mechanisms, initiated by the United Nations, for the observance of human rights in psychiatry in Germany and worldwide. Historical, legal and psychiatric developments will be presented ranging from Pinel 200 years ago to the Universal Declaration of Human Rights in 1948 and the United Nations Convention against Torture (CAT). The National Agency for the Prevention of Torture and Ill-treatment in Germany will be presented, which has visited about forty psychiatric institutions since its establishment and has reported its observations to the public. This is followed by impressions of visits by the Subcommittee on the Convention against Torture, the SPT, in different states in which the first author participated. As the diction of national and international reports may be tacitly influenced by western ideas, a discourse about dementia in the Islamic cultural area follows. The aim of the article is to provide an incentive to discuss bioethical issues taking into account multiple perspectives. The importance of civil society organizations for the future development of an interdisciplinary and intercultural exchange will be elaborated.

When the targets are members and donors: Analyzing inter-governmental organizations’ human rights shaming

Research on the factors and considerations which drive human rights shaming focuses on non-governmental organizations (NGO). This article analyzes an intergovernmental organization’s (IGO) shaming. The article reviews the factors associated with NGO human rights shaming. The article then considers the potential association between these factors and IGO shaming, and the differences between IGOs and NGOs in this context. The potential associations are tested empirically using newly compiled data on the UN’s convention against torture (CAT) committee’s concluding observations country reports, and various specifications and regression methods. The results indicate that voting with the U.S. in the United Nations’ General Assembly (UNGA) is significantly associated with getting a more positive review from the CAT committee and this result is robust in various specifications. Results also indicate that the UN CAT committee’s shaming is associated with media coverage of human rights issues in the reviewed country and with trade and FDI volumes. The article draws conclusions regarding the linkages between funding, information sources and membership structures on the one hand and shaming approaches on the other.

Laws, talk, and human rights: The impact of treaty ratification, UN criticism, and democratic change on torture

ABSTRACTTreaty ratification and human rights criticism, along with democratic change, are key underpinnings of international human rights in practice. Using a treaty-specific human rights indicator in a dynamic panel data framework, I estimate how states' human rights behavior changes in response to ratification of the Convention against Torture (CAT) and criticism launched through United Nations (UN) procedures from 1985 to 2005, and whether response differs by a government's democratic status. Prior CAT ratifiers generally respond more positively to country-specific UN human rights criticism than do nonratifiers. When criticized, the difference between ratifiers and nonratifiers is greater with higher democratic governance ratings; however, ratification combined with criticism is likely to stabilize or improve human rights levels even in countries scoring poorly on democratic indicators.

You Can't Go Home Again: Analyzing an Asylum Applicant's Voluntary Return Trip to His Country of Origin

This Article examines how courts have analyzed an asylum applicant’s voluntary return to his country of origin. Part I explains the standards for I-589 relief from removal in the forms of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Part I also analyzes the adjudication of these claims in immigration courts, including an alien’s burden of proof for I-589 relief and the evaluation of an alien’s credibility under the REAL ID Act of 2005. Part II addresses the lack of consistency among administrative immigration courts, the Board of Immigration Appeals (BIA), and the federal circuit courts of appeals when considering the effect of an alien’s voluntary return to his country of origin on his application for I-589 relief. Finally, Part III concludes that, although a voluntary return is properly considered in determining whether an alien has met his burden of proof, such trips should not be used to render an adverse credibility determination.

National Human Rights Institutions: Domestic implementation of international human rights law

ABSTRACTDoes adopting a National Human Rights Institution (NHRI) make states’ international commitments to not torture more constraining? Many researchers have explored international human rights treaties’ abilities to constrain leaders from violating human rights, some focusing exclusively on the United Nations Convention Against Torture (CAT). Thus far, findings are not promising unless certain domestic conditions apply such as sufficient democratic space to air grievances or independent judiciaries. This article continues to explore domestic conditions by focusing on another liberal institution—National Human Rights Institutions (NHRIs). Torture is usually a secretive practice, and NHRIs act as information providers to potential mobilizers and domestic legal systems assuring international legal commitments are not empty promises. Using statistical analysis on 153 countries over the years 1981–2007, I find that when a country has ratified the CAT, the presence of an NHRI substantively decreases the chances the state will be an egregious offender.

Torture allegations as events data

The Ill-Treatment and Torture (ITT) Data Collection Project uses content analysis to measure a number of variables on more than 15,000 public allegations of government ill-treatment and torture made by Amnesty International (AI) from 1995 to 2005. The ITT specific allegation (SA) event data use the torture allegation as the unit of observation, thus permitting users to manipulate them for a wide variety of purposes. In this article, we introduce the ITT SA data. We first describe the key variables in the SA data and report a number of bivariate descriptive statistics to illustrate some of the research questions that might be usefully investigated with the data. We then discuss how we believe the ITT SA data can be used to study not only AI’s naming and shaming behavior, but also states’ (lack of) compliance with the United Nations Convention Against Torture (CAT). We conclude with an empirical analysis using the SA data that investigates the effect of domestic political institutions on formal complaints, investigations, and adjudication of torture allegations. We show that legislative checks are positively associated with complaints, investigations, and trials; elections and freedom of speech are positively associated with investigations and trials; and powerful judiciaries are associated only with investigations.

Interpretation of Article One of the Convention against Torture in Light of the Practice and Jurisprudence of International Bodies

Torture is one of the most brutal and horrendous human right violation, constituting direct attack on the core of human dignity. Though a number of international legal frameworks incorporate the right against torture, it is the convention against torture which provides the most prominent definition of torture. So this paper dedicated to explore the definition of torture in light of the practices and jurisprudence of the international bodies. Accordingly, there are four essential elements of the definition torture, which play a significant role in qualifying an “act” or “conduct” as torture. Apart from this, the paper has critically assessed the state obligation that flows from the definition provision. It has also discussed that the definition of torture is in continual process of evolution. In general, it is made clear that article one plays a pivotal role in understanding the whole notion of the concept of torture, and implicating the state obligation with regard to torture.

The 2012 Judicial Activity of the International Court of Justice

The International Court of Justice rendered four judgments in 2012: on February 3, a ruling on the merits inJurisdictional Immunities of the State(Germany v. Italy; Greece intervening), finding that Italy had violated its obligations under customary international law and requiring Italy to ensure that the decisions of its judicial authorities that infringed Germany’s immunities would cease to have effect; on June 19, a ruling on the compensation owed by the respondent inDiallo(Guinea v. Democratic Republic of the Congo), awarding Guinea $85,000 for non material injury to Diallo and $10,000 for material injury to his personal property;on July 20, a ruling on jurisdiction, admissibility, and the merits inQuestions Relating to the Obligation to Prosecute or Extradite(Belgium v. Senegal), finding jurisdiction and admissibility, and holding that Senegal had breached its obligations under Articles 6 and 7 the UN Convention Against Torture (CAT); and on November 19, a ruling on admissibility and the merits inTerritorial and Maritime Dispute(Nicaragua v. Colombia), finding admissible one of Nicaragua’s final submissions(which Colombia had challenged as a new claim), deciding that Colombia has sovereignty over a number of contested maritime features, and establishing a single maritime boundary delimiting the continental shelf and exclusive economic zones of the two countries.

Divergent Incentives for Dictators

Although they are arguably the worst violators of human rights, dictators sometimes commit to international human rights treaties like the United Nations Convention Against Torture (CAT) to appease their domestic opposition. Importantly, however, executives facing effective judiciaries must anticipate ex post costs that can arise when international treaties are likely to be enforced domestically. This suggests that one domestic institution—a political opposition party—may provide a dictator with incentives to commit to international human rights treaties and violate human rights, while another—an effective domestic judiciary—may constrain the dictator’s ability to violate human rights and incentivize him to avoid international commitment. How do dictators make choices about commitment to human rights law and respect for human rights when they face conflicting domestic incentives? Furthermore, how do these divergent incentives affect compliance when dictators do commit to international treaties? In this article, I argue that the domestic incentives dictators face to support the CAT and engage in torture are moderated in countries with effective domestic judiciaries.

What reparation does a torture survivor obtain from international litigation? Critical reflections on practice at the Strasbourg Court

Although the Strasbourg Court is primarily a mechanism for the protection of individual human rights, many of the leading cases on violation of article 3 have a collective or a structural dimension. This is of great importance for the Convention Against Torture (CAT) definition of torture, which is that torture must have a purpose. Thus, the author's experience of many Kurdish and Chechen complaints against Turkey and Russia respectively is that they relate to the consequences of self-determination struggles and repressive state responses. Or, as in many of the Russian cases concerning article 3, they relate to the structural problems of the Russian penitentiary system, in which the officers, mostly ex-military, see the prisoners as the enemy. A successful claimant at Strasbourg in most cases obtains a declaration that a violation has been committed by the government, and a sum of money in ‘just satisfaction’. Compared with the practice of the Inter-American Court, this is minimalist. The enforcement procedure through the Committee of Ministers, for general measures, is opaque and slow. The question remains: why do it?

Why Do Authoritarian Regimes Sign the Convention Against Torture? Signaling, Domestic Politics and Non-Compliance

Traditional international relations theory holds that states will join only those international institutions with which they generally intend to comply. Here we show when this claim might not hold. We construct a model of an authoritarian government’s decision to sign the UN Convention Against Torture (CAT). Authoritarian governments use the signing of this treaty – followed by the willful violation of its provisions – as a costly signal to domestic opposition groups of their willingness to employ repressive tactics to remain in power. In equilibrium, authoritarian governments that torture heavily are more likely to sign the treaty than those that torture less. We further predict that signatory regimes survive longer in office than non-signatories, and enjoy less domestic opposition – and we provide empirical support for these predictions.

Human Rights as Reputation Builder: Compliance with the Convention Against Torture

A strong record of human rights protections is an important factor for a state to maintain a positive international reputation. In this article, we suggest that states will use compliance with human rights treaties as a mechanism by which to improve their reputations to help achieve their foreign policy goals. We hypothesize that international human rights compliance is a means to improve a state’s reputation in three specific situations: when the state is facing regional pressures as the result of a desire to join a regional organization; when the state is facing regional pressures not to run afoul of a court within a regional organization; or when a state seeks foreign assistance from an entity with human rights requirements for the receipt of such assistance. We examine our theory by analyzing human rights reports regarding state compliance with specific treaty obligations outlined in the Convention Against Torture (CAT). While the evidence for our hypotheses is mixed, we do find some support for our assertion that state compliance is linked to reputational concerns. In particular, states comply with the CAT when they are part of a regional organization that has a human rights court, and when they are receiving conditional aid from the European Union.

Evidence Obtained Through Torture Before the Khmer Rouge Tribunal: Unlawful Pragmatism?

Article 15 of the Convention against Torture (CAT) provides that, subject to a narrow exception, evidence obtained through torture is inadmissible as evidence in judicial proceedings. In July 2009, judges of the Khmer Rouge Tribunal determined that evidence established to have been obtained through torture would in fact be admissible before that Tribunal. This article argues that this decision represents an incorrect application of the CAT exclusionary rule, and deviates considerably from established practice.

Visiting Mechanisms to Eradicate Torture: A Foucaultian Analysis

In this Article, I examine the Visiting Mechanisms under the Convention against Torture (CAT) and the Optional Protocol thereto (OPCAT), applying an analytic approach resting on Foucault’s Discipline and Punish. I argue that international Visiting Mechanisms essentially constitute disciplinary apparatuses as depicted by Foucault. However, because they fail to recognise this functional similarity, they do not effectively apply the methods of inducing panoptic power. Most notably the concept of ‘hierarchical observation’ is hardly utilised at all. The two introduced legal entities, the Committee against Torture under CAT, and the Subcommittee for the Prevention of Torture under OPCAT, both engage in visits to states with a view to eradicate torture and ill-treatment throughout the world. Critically examining their systemic design and practises reveals that the preventative ante hoc mandate of the Subcommittee is more effective than the post hoc inquiries of the Committee. Nevertheless, because both entities unfortunately fail to fully utilise panoptic power, the article concludes by offering a set of recommendations for both bodies that could arguably enhance their overall effectiveness.