The Committee against Torture: One Step Forward, One Step Back

DOI10.1177/092405190001800302
AuthorChris Ingelse
Publication Date01 Sep 2000
SubjectPart A: Articles
Part A: Articles
The Committee Against Torture: One Step Forward,
One Step Back
Chris Ingelse'
Abstract
The Committee against
Torture,
the supervisory body
of
the UN Convention against
Torture,
performs functions with respect to the implementation
of
anti-torture measures
similar to the functions performed by other bodies established under earlier human rights
instruments. The Human Rights Committee,
for
example, had already developed an
elaborate practice in the field. In view
of
the existence
of
earlier established human rights
instruments and procedures, it is questionable whether expansion
of
procedural and sub-
stantive obligations in the Convention against Torture was appropriate. This article
appraises the Convention against
Torture,
the role
of
its Committee, as well as their
contribution to the international prohibition
of
torture and other cruel treatment.
Introduction
The aim
of
the Convention against Torture' is to strengthen the existing prohibition against
torture and other cruel, inhuman or degrading treatment or punishment.' States Parties
undertake to strengthen this prohibition by implementing the provisions
of
the Convention
in their national law and practice. Each State Party agrees among other things to treat torture
as a criminal offence under national law, to investigate cases
of
torture promptly and
impartially, and to prosecute suspects
of
torture, wherever the offence may have been
Committed. States Parties also agreenot to return or extradite a person to another State when
substantial grounds exist for believing that he or she would be in danger
of
being subjected
to torture in that State. Each State Party agrees to ensure that victims
of
torture be able to
obtain redress and compensation. States Parties further agree that any statement made as a
result
of
torture will not be used as evidence in any legal proceeding. Certain
of
these
obligations also apply to other cruel treatment.
This article is based on the author's doctoral dissertation: H.C. Ingelse, De rol van het Comite in de
ontwikkeling van het VN-Verdrag tegen Faltering, Amsterdam, 1999 [dissertation Maastricht Transl.: The Role
of
the Committee in the Development
of
the UN Convention against Torture. With a summary in English. The
book is in translation and will be published by Kluwer Law International].
JConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, NRes/39/46,
Annex, New York, 10 December 1984. Entry intoforce 26 June 1987.
2In this article the term 'cruel treatment' will be used to denote 'cruel, inhuman or degrading treatment or
punishment'.
Netherlands Quarterly
of
Human Rights. Vol 18/3,307-327,2000.
@Netherlands Institute
of
Human Rights (SIM). Printed in the Netherlands. 307
NQHR
3/2000
The Committee against Torture was established in 1988. States Parties vested the
Committee with competence to supervise the implementation
of
Convention obligations
through the review
of
State reports (article 19), the handling
of
complaints submitted by
States Parties (article 21), or individuals (article 22), and through the inquiry
of
a systematic
practice
of
torture in a given State Party (article 20).
The Committee performs functions with respect to torture and other cruel treatment
which are similar to the functions performed by other bodies established under earlier
human rights instruments. The prohibition against torture has been described in various
instruments, including article 3
of
the Universal Declaration
of
Human Rights, and article 7
of
the Covenant on Civil and Political Rights (CCPR). Under these instruments, supervisory
bodies such as the Human Rights Committee (HRC) and UN human rights rapporteurs,
have been active for several decades, and have developed an elaborate practice in the field. 3
In view
of
the existence
of
these earlier established human rights instruments,
procedures, and supervisory bodies, it is questionable whether the expansion
of
procedural
and substantive obligations is an appropriate and effective means
of
strengthening
international protection against torture and other cruel treatment. Do new instruments,
procedures and bodies contribute, substantively and/or procedurally, to the promotion and
protection
of
human rights? 4
The aim
of
this article is to appraise the role
of
the Committee against Torture, as well as
its contribution to the international prohibition
of
torture and other cruel treatment. Because
the Committee has only been active since 1988, an assessment
of
its practice and
contribution to the protection
of
human rights is only possible for this limited period. The
period is long enough, however, to enable a description
of
the role
of
the Committee, and to
permit an interim evaluation
of
its activities.'
3
M.e.
Dassiouni, D. Derby, 'An Appraisal
of
Torture in International Law and Practice. The Need for an
International Convention for the Prevention and Suppression
of
Torture', Revue Internationale de Droit penal
Vol. 48, 1977, pp. 17-103 (47-49); 1. Donnelly, 'The Emerging International Regime Against Torture',
Netherlands International Law Review, 1986, pp. 1-23; D. McGoldrick, The Human Rights Committee. Its Role
in the Development
of
the International Covenant on Civil and Political Rights, Oxford, 1991, pp. 362-394; M.
Raess, Der Schutz vor Falter im Volkerrecht, dissertation ZUrich, ZUrich, 1989; N.S. Rodley, The Treatment
of
Prisoners in International Law, Oxford 1987; F. Sebihuranda, La Prohibition de la Torture et des Peines ou
Traitements Cruels, Inhumains au Degradants en Droit International des Droits de l'Homme. Vol. I en Il
dissertation Antwerpen, Antwerpen, 1990; K. Stavropoulos, Das Verbot der Folter und der unmenschlichen
oder erniedrigenden Behandlung oder Strafe im gegenwlirtigen Volkerrecht: insbesondere nach Art. 3der
Europliischen Menschenrechts-Konvention, dissertation Heidelberg, Heidelberg 1976.
4Byrnes questions: 'Do states, through reporting, erode international accountability or are they enhancing itT A.
Byrnes, 'The Committee Against Torture', in: Ph. Alston (ed.), The United Nations
and
Human Rights. A
Critical Appraisal, Oxford, 1992, pp. 509-546 (533). See also: 1.Boerefijn, 'Towards a Strong System
of
Supervision: The Human Rights Committee's Role in Reforming the Reporting Procedure under Article 40
of
the Covenant on Civil and Political Rights', Human Rights Quarterly Vol. 17, 1995, pp. 766-793 (pp. 770-771
and 791); 1.Boerefijn, The Reporting Procedure under the Covenant on Civil
and
Political Rights. Practice and
Procedures
of
the Human Rights Committee, dissertation Utrecht, Antwerpen, 1999; M.J. Bossuyt, Guide to the
'Travaux Preparatoires '
of
the International Covenant on Civil and Political Rights, Dordrecht, 1987,pp. 617-
619; S. Joseph, 'New Procedures Concerning the Human Rights Committee's Examination of Reports', NQHR,
1995, pp. 5-23; McGoldrick, pp. 103-104 en 498-504; T. Opsahl, 'The Human Rights Committee', in: Alston
(ed.), op.cit. (note 3) , pp. 369-443 (pp. 436-443); See on CEDAW: A. Byrnes, 'The "Other" Treaty Body: The
Work
of
the Committee on the Elimination of Discrimination Against Women', Yale Journal
of
International
Law Vol. 14, 1989, pp. 1-67 (pp. 56-65).
, Previous literature on the Convention against Torture and its Committee: A. Boulesbaa, 'The Nature
of
the
Obligations incurred by States Under Article 2
of
the UN Convention Against Torture', Human Rights
Quarterly Vol. 1, 1990, pp. 52-93; J.H. Burgers and H. Danelius, The United Nations Convention against
Torture, Dordrecht, 1988; J.H. Burgers, 'An Arduous Delivery: The United Nations Convention Against
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