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State Obligations to Prevent Torture

Madeline Cohen


McKenna Phillips via Unsplash


The right to be free from torture is firmly recognized in international law. Freedom from torture has been enshrined in many foundational United Nations (U.N.) documents since it was founded in 1945.[1] In 1948, The United Nations Declaration of Human Rights (UNDHR) was approved by the U.N. General Assembly. Article 5 of UNDHR states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[2] All 193 member-states of the U.N. have pledged to comply with this obligation.[3]


In the decades that have followed, the U.N. has developed additional treaties and commitments to prevent torture. A key human rights treaty, the International Covenant on Civil and Political Rights, (ICCPR) was adopted by the U.N. General Assembly in 1966 and came into force in 1976.[4] Freedom from torture is one of these fundamental rights. Article 7 expands upon the UNDHR commitment that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”[5] As of June 2024, 173 countries have ratified this agreement.[6] It is a laudable milestone that most countries worldwide have signed the ICCPR. However, I am curious if in signing this, countries have done more than merely sign a ceremonial agreement.


The Convention Against Torture and Other Cruel or Degrading Treatment or Punishment includes a mechanism of enforcement called the Committee Against Torture (CAT), to monitor the implementation of the agreement.[7] The CAT is made up of 10 independent experts.[8] All U.N. member states are required to submit reports regularly to the committee. The CAT evaluates each report and addresses its concerns and recommendations to the state party in the form of “concluding observations.”[9] In 1985, the Commission decided to appoint a Special Rapporteur on the Question of Torture. The Special Rapporteur has authority to monitor all member states of the U.N. The Special Rapporteur engages with governments, asks them for “administrative measures taken to prevent torture, requests them to remedy any consequences and asks them to respond to information alleging the actual occurrence of torture.”[10] Establishing a Special Rapporteur on torture was a crucial step in the international framework for preventing torture, as the Rapporteur plays a vital role in holding governments accountable in their obligations to prevent torture.


The Optional Protocol to the Convention, which became official U.N. policy in June 2006, created the Subcommittee on Prevention of Torture (SPT).[11] The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations.” A common critique that CAT faces is the lack of force behind the recommendations it makes. Human rights advocates have consistently pointed out that without any mechanism to enforce compliance, rates of adherence with treaty commitments are low.[12] International advocates against torture believe firmly in the mission of CAT. [13] However, on the 25th  anniversary, Amnesty International pointed out some of the unfortunate pitfalls it runs into in executing its mission:


Most governments that still use torture and other ill-treatment routinely deny it. They create structures to hide their practices. They conceal evidence of it and develop techniques of abuse that are designed to avoid detection. Torture is usually practiced in secret, or in closed facilities, such as prisons or detention centers – sometimes unofficial ones – by or with the collusion of law enforcement and other government personnel, and often in an environment of impunity. States, particularly where torture is widespread, routinely fail to investigate allegations of torture and bring those responsible to account.[14]

 

Another pillar of international torture law is the United Nations Standard Minimum Rules for the Treatment of Prisoners. First ratified in 1955, a revised copy was adopted in 2015 known as the Nelson Mandela rules. These outline the specific tenets that the U.N. urges countries to utilize to guide international treatment of prisoners. Rule one declares that: “No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification.”[15]  


These standards also enumerate the principles that medical professionals are to follow in prisons: “It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment.”[16] As an international community, how we treat prisoners matters — our humanity demands that inhumane treatment of any person implicates us all. Given the unfortunate role that medical professionals can have in performing torture, the Nelson Mandela rules offer a crucial international framework.  


While these standards are nowhere near perfect, as the above critiques by non-state actors like NGOs indicate, they create important guidelines that state actors should be held to. The international community must continue to update the guidelines and kinds of investigations they conduct to adapt to our ever-changing world. Beyond that, criticisms of the existing framework to prevent torture should be taken seriously. Mechanisms of enforcing these treaties must be created, otherwise, state actors who choose to commit acts of torture will continue to do so in secret and with impunity.


Madeline Cohen is a Staff Editor at CICLR.


[1] G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

[2] Id.

[3] MJ Altman, The Universal Declaration of Human Rights Is Turning 75, Here’s What You Need to Know, U.N. Found. (Dec. 6, 2023), https://unfoundation.org/blog/post/the-universal-declaration-of-human-rights-is-turning-75-heres-what-you-need-to-know/ [https://perma.cc/ZZ9S-AKGA].

[4] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171

4 Id.

5 Id. at 175.

[7] U.N. Library, Reports of the Committee Against Torture, U.N.-iLibrary, https://www.un-ilibrary.org/content/periodicals/24141062 [https://perma.cc/MRE7-JEH9].

[8] Id.

[9] Id.

[10] Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, June 22, 2006, 2375 U.N.T.S. 237.

[11] Id. at art. 2-3.

[12] Valentina Carraro, Promoting Compliance with Human Rights: The Performance of the United Nations’ Universal Periodic Review and Treaty Bodies, 63 Int’l Studies Q. 1079 (2019).

[13] Amnesty Int’l, 25th Anniversary of the Committee against Torture Identifying the Main Achievements and Challenges, Amnesty Int’l (May 7, 2013), https://www.amnesty.org/en/wp-content/uploads/2021/06/ior510042013en.pdf [https://perma.cc/XM9G-92JL].

[14] Id.

[15] U.N. Off. of Drug and Crime, The United Nations Standard Minimum Rules for the Treatment of Prisoners, (Nov. 18, 2002), https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf [https://perma.cc/6LJ9-BPVH].

[16] Id.

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