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OX FOR D C OM M E N TA R I E S ON

I N T E R N AT ION A L L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Professor Vaughan Lowe, Chichele Professor
of Public International Law in the University of Oxford and Fellow of
All Souls College, Oxford.

The United Nations Convention


Against Torture

A Commentary

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The United Nations
Convention Against
Torture
A Commentary

M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R

with the contribution of


Kerstin Buchinger
Julia Kozma
Roland Schmidt
Isabelle Tschan
Ludwig Boltzmann Institute of Human Rights Vienna

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Article 2. Obligation to Prevent Torture 117
57 This formulation, therefore, seems to be fairly clear. States have an obli-
gation to take measures to prevent torture in their own territory (land and sea),
but also under any other territory under their jurisdiction, such as aboard ships
flying their flag, aircraft registered in accordance with their laws, occupied
territories or other territories where civilian or military authorities of the State
exercise jurisdiction, whether lawful or not.
58 However, the Government of the United States recently took the pos-
ition that Article 2 was geographically limited to US territory in the strict
sense.¹⁴⁵ It is evident that this position is a purely ideological one aimed at
exempting the US detention centres established in the so-called ‘war against
terror’ to hold indefinitely alleged terrorist suspects, such as the detention
facilities at Guantánamo Bay, from international scrutiny. This position
had already been rejected when the US Supreme Court in June 2004 held
in Rasul v. Bush that the United States is actually exercising jurisdiction at
Guantánamo Bay and that the guarantees of the US Constitution are, there-
fore, fully applicable to Guantánamo detainees.¹⁴⁶ In relation to the CCPR
and the CAT, the five independent experts of the UN Commission on Human
Rights investigating jointly the situation of detainees at Guantánamo Bay
clearly arrived at the conclusion that both treaties are fully applicable to the
treatment of Guantánamo detainees.¹⁴⁷ In May 2006, the CAT Committee,
in considering the most recent US report, confirmed this interpretation and
rejected, once more, this untenable position.¹⁴⁸ In July 2006, the Human
Rights Committee joined the other monitoring bodies and concluded that
the United States should acknowledge the applicability of the Covenant with
respect to individuals under its jurisdiction but outside its territory.¹⁴⁹

4.2 Interpretation of Article 2(2)


4.2.1 Absolute Nature of the Prohibition of Torture
59 The prohibition of torture and cruel, inhuman or degrading treatment
is one of the few absolute and non-derogable human rights. Both torture and
cruel, inhuman or degrading treatment are prohibited, without any exception,
in Article 7 CCPR and similar provisions in regional human rights treaties.

¹⁴⁵ See the US report in accordance with Art. 19 CAT of 13 January 2006, CAT/C/48/Add.3/
Rev.1.
¹⁴⁶ See Rasul v. Bush (03–334) 542 U.S. 466 (2004).
¹⁴⁷ See E/CN.4/2006/120, § 11.
¹⁴⁸ CAT/C/USA/CO/2, § 15. See also the concluding observations of the Committee on the
report of the UK, above, 3.1.
¹⁴⁹ See CCPR/C/USA/CO/3/Rev.1, § 10.

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118 United Nations Convention Against Torture
This absolute prohibition is also regarded as customary international law and
even ius cogens.¹⁵⁰ Furthermore, Article 4(2) CCPR provides that even in times
of public emergency threatening the life of the nation, no derogation from the
absolute prohibition of torture and cruel, inhuman or degrading treatment
may be made. Consequently, Article 3 of the 1975 Declaration and Article
2(2) of the original Swedish draft provided that no exceptional circumstances
whatsoever may be invoked as a justification of torture or cruel, inhuman
or degrading treatment. In written comments, the delegation of the United
States in 1979 proposed a new article providing that there is no justification
for an act of torture. The United States argued, however, that cruel, inhuman
or degrading treatment was a relative term and what might constitute cruel,
inhuman or degrading treatment in times of peace ‘might not rise to that level
during emergency situations’.¹⁵¹ In retrospect, one might wonder whether the
US delegation had already foreseen a situation such as its ‘global war against
terror’ which has more than anything else undermined the absolute and
non-derogable prohibition of torture and cruel, inhuman or degrading treat-
ment.¹⁵² Although the Holy See had welcomed the broader text of the Swedish
draft ‘in light of certain schools of thought which seek to give national security
priority over the rights of the person’,¹⁵³ the US position seemed to have been
accepted by the drafters without much opposition. The revised Swedish draft
on which the final text of Article 2(2) CAT is based no longer contained any
reference to cruel, inhuman or degrading treatment which means that there
is no explicit provision in the Convention that prohibits any derogation from
the prohibition of cruel, inhuman or degrading treatment. However, since the
Preamble of the Convention clearly refers to the existing standards under the
CCPR and the 1975 Declaration and affirms the desire of the drafters to make
more effective (and not less effective) the struggle against torture and cruel,

¹⁵⁰ See, e.g., Nowak, CCPR-Commentary, 157 et seq. with further references.
¹⁵¹ E/CN.4/1314 (1979), 11, § 53.
¹⁵² See e.g. Strauss, (2004) 48 NY L Sch L Rev 201–274, 203; see also Dershowitz, (2004)
48 NY L Sch L Rev 275–294. Memorandum from Jay S. Bybee, Assistant Attorney-General
for the Office of Legal Council at the US Department of Justice, to Alberto R. Gonzales,
Counsel to the President, (1 August 2002) (Bybee Memorandum). For a critical analysis, see
e.g. Rouillard, (2005) 21(1) Am U Int’l L Rev 9–41; see also Goldman, (2004) 12(1) Hum
Rts Brief 1. See also Nowak, (2006) 28 HRQ 809 with references. Long before 11 September
2001, there were discussions among specialists about whether a restriction on the ban on torture
should be authorized for preventive purposes. See e.g., in Germany, Winfried Brugger, a pro-
fessor at Heidelberg University, who raised the issue as early as 1996. In 2000, following a case of
abduction, this professor once more called for the ban on torture to be made more flexible in ‘excep-
tional’ circumstances. Brugger, (2000) 48 AJCL 661–678.
¹⁵³ E/CN.4/1314, Add. 3 at 3, § 6.

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Article 2. Obligation to Prevent Torture 119
inhuman or degrading treatment, one should not give too much weight to this
retrogressive provision. In addition, Article 16(2) CAT contains an explicit
savings clause in relation to other treaty provisions prohibiting cruel, inhuman
or degrading treatment.¹⁵⁴
60 The prohibition of torture is both an absolute and a non-derogable
right. Both concepts are sometimes confused. Not all absolute rights are at
the same time non-derogable, and not all non-derogable rights are at the same
time absolute. A human right is considered as absolute if, under normal cir-
cumstances, no limitations are permitted, i.e. the Government is not author-
ized by a specific limitation clause to balance the individual claim against
certain State interests. A human right is considered non-derogable if States,
under exceptional circumstances, are not permitted to derogate from their
respective treaty obligations in relation to this right. For example, the right to
life in Article 6 is, according to Article 4(2) CCPR, non-derogable. But it is
not an absolute right because Article 6 CCPR explicitly authorizes the death
penalty and other forms of non-arbitrary deprivation of life in the context
of the legitimate use of force by law enforcement personnel.¹⁵⁵ On the other
hand, the right to hold opinions is guaranteed by Article 19(1) CCPR ‘without
interference’, i.e. as an absolute right. The limitation clause of Article 19(3)
only applies to freedom of expression as stipulated in Article 19(2), but not to
the right to hold opinions.¹⁵⁶ But Article 19(1) is not listed as a non-derogable
right in Article 4(2) CCPR and may, therefore, be subject to derogations in
exceptional circumstances.
61 The absolute prohibition of torture, therefore, means that, under normal
circumstances, torture must not be balanced against any other interest, includ-
ing national security or the protection of human rights of others. All attempts
to justify the practice of torture in the ‘war against global terrorism’ in order to
extract information from a suspected terrorist for the purpose of, for example,
saving the life of innocent civilians who are in danger of being subjected to an
imminent terrorist attack (the so-called ‘ticking bomb’ scenario), clearly violate
the absolute prohibition of torture as laid down in Article 7 CCPR and Article
2(2) CAT.¹⁵⁷ Accordingly, during the consideration of the US report in May

¹⁵⁴ See below, Art. 16, 3.7.


¹⁵⁵ See e.g. Nowak, CCPR-Commentary, 127 et seq.
¹⁵⁶ See ibid, 441 et seq.
¹⁵⁷ For a recent example of the ‘ticking-bomb’ scenario, see the judgment against Wolfgang
Daschner of 20 December 2004 of the 27th penal chamber, Landgericht (court) Frankfurt am
Main, NJW 2005, 692. See also Roth and Worden; The International Human Rights Committee
of the Law Society of England and Wales, ‘Is torture ever justified?’, The Graham Turnbull Essay
Competition 2005/2006, London, June 2006 at <http://www.lawsociety.org.uk/documents/

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120 United Nations Convention Against Torture
2006, the Committee urged the US Government to ensure that any interro-
gation rules, instructions or methods ‘do not derogate from the principle of
absolute prohibition of torture’.¹⁵⁸ Similarly, Israel has been repeatedly criti-
cized for undermining the absolute prohibition of torture by having author-
ized ‘moderate physical pressure’ against suspected terrorists.¹⁵⁹
4.2.2 Non-Derogable Nature of the Prohibition of Torture
62 Article 2(2) CAT was primarily meant to stress the non-derogable
nature of the prohibition of torture, i.e. the rule that even under exceptional
circumstances, such as war, terrorism or natural disasters, States parties are
not permitted to derogate from their obligation to respect and ensure the
absolute prohibition of torture. Apart from the successful attempt of the
United States to delete cruel, inhuman or degrading treatment from this non-
derogation clause, there was little discussion during the drafting of this provi-
sion. Although the French delegation wished to delete the reference to internal
political instability because of its unclear meaning in international law,¹⁶⁰ this
phrase remained in the final text. But the different examples are not exhaust-
ive and only serve the purpose of illustrating what is meant by exceptional
circumstances.¹⁶¹ Article 2(2) follows in this respect the examples of regional
human rights treaties, such as Article 15(1) ECHR (‘war or other public emer-
gency threatening the life of the nation’) and Article 27 ACHR (‘war, public
danger, or other emergency that threatens the independence or security of a
State Party’), whereas Article 4(1) CCPR only speaks of a ‘public emergency
which threatens the life of the nation’ without giving any examples. Since
Article 2(2) CAT, in contrast to Article 4(1) CCPR, does not authorize but
prohibit any derogation, the scope of application of the terms ‘exceptional cir-
cumstances’ or ‘any other public emergency’ is not relevant and, therefore only
of a declaratory nature. Article 2(2) describes with many words what could
have been expressed in a more simple way: Torture can never be justified, even
in the most exceptional circumstances.¹⁶²

downloads/gtec0506.pdf>; Nowak, in Jørgensen and Slavensky, 238; Poscher, in Lenzen;


APT, (2007); Bufacchi and Arrigo, (2006) 23 JAP 355; Dershowitz, (2002); Shue, (2006) 37
CWRJIL 231.
¹⁵⁸ See CAT/C/USA/CO/2, § 24.
¹⁵⁹ See e.g. A/49/44, §§ 167 et seq.; CAT/C/SR.295; CAT/C/SR.339. See also Ingelse, 265
et seq. For the practice of the Committee in the State reporting procedure see above, 3.1.
¹⁶⁰ See E/CN.4/1314 (1979), 11, § 54.
¹⁶¹ See also Boulesbaa, 79.
¹⁶² Of all the drafts, Art. VI IAPL expressed this meaning in the strongest terms: ‘Torture can in
no circumstances be justified or excused by a state or threat of war or armed conflict, a state of siege,

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Article 2. Obligation to Prevent Torture 121
63 Although Article 2(2) does not use the term ‘derogation’, its purpose is
clearly to prohibit any derogation which might justify torture. In its consideration
of the Georgian State report, the Committee confirmed this interpretation:¹⁶³
‘Derogation from this principle is incompatible with Article 2(2) and cannot
limit criminal responsibility’. The reference to criminal responsibility shows
that the Committee applies the non-derogation clause also in relation to the
obligation of States parties under Article 4 CAT to make torture an offence
under domestic criminal law without any exception for times of war or other
public emergencies. In this respect, the legal opinion of the Bush administra-
tion, as illustrated in the infamous ‘Bybee Memorandum’ of 1 August 2002,
which implies that outside the territory of the United States acts of torture in
the context of the ‘war on terror’ might be justified as an act of ‘self-defence’,¹⁶⁴
clearly contradicts the obligation of the United States under Article 2(2) CAT.
64 In the inquiry procedure under Article 20 CAT, the Committee reminded
the Government of Egypt of its obligations under Article 2(2) notwithstanding
its legitimate efforts to combat terrorism. In this connection, the Government
was urged to ‘make particular efforts to prevent its security forces from acting as
a State within a State, for they seem to escape control by superior authorities’.¹⁶⁵

4.3 Interpretation of Article 2(3)


4.3.1 Prohibition of Defence of Obedience to Superior Orders in
Domestic Criminal Proceedings
65 While Article 2(2) is primarily directed at governments not to derogate
from their obligations to respect and to ensure the absolute prohibition of
torture even in exceptional circumstances (no justification of torture by the
government, in particular the legislative and executive branch), Article 2(3) is
primarily directed at criminal courts not to accept any defence by the accused
based on a superior order (no justification of torture by the judicial branch in
individual cases). This aspect was most clearly expressed in Article V of the
IAPL draft: ‘The fact that a person was acting in obedience to superior orders

emergency or other exceptional circumstances, or by any necessity or any urgency of obtaining


information, or by any other reason’.
¹⁶³ CAT/C/GEO/CO/3, § 10.
¹⁶⁴ See US Department of Justice, Office of Legal Counsel, Memorandum for Alberto R.
Gonzales, Counsel to the President, dated 1 August 2002 (the ‘Bybee Memorandum’) 2 et seq.
Cf. Nowak, (2006) 28(4) HRQ 809. See also, e.g., Rouillard, (2005) 21(1) Am U Int’l L Rev 9–41
with further references. See also Goldman, (2004) 12(1) Hum Rts Brief 1–14.
¹⁶⁵ A/51/44, §§ 211 and 212.

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