The United Nations Convention Against Torture and its Optional Protocol: A Commentary / Edition 2

by Manfred Nowak, Moritz Birk, Giuliana Monina

Overview

The prohibition of torture - the right to physical and mental integrity - is guaranteed in the strongest terms under international law. It is protected as an absolute right, non-derogable even in times of war or public emergency under many human rights treaties and is also generally accepted as a part of customary international law and even ius cogens. The main instrument to combat torture within the framework of the United Nations is the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).

This Commentary explores the problematic definition of torture in the Convention, the substantive obligations of States parties, the principle of 'non-refoulement', provisions for international monitoring, and also the concept of preventative visits to all places of detention as contained in the Optional Protocol to the CAT. It also covers issues including the distinction between torture and cruel inhuman or degrading treatment and the principle of non-admissibility of evidence extracted under torture. Full article by article commentary on the Convention also provides historical context and thorough analysis of case-law and practice from international and regional courts and monitoring bodies. Relevant case-law from domestic courts are also discussed.

Despite the broad ratification and the universal recognition of the prohibition of torture and other forms of ill-treatment we witness a 'global crisis' affecting the majority of countries worldwide. In recent years the protection of human rights is experiencing a particularly serious crisis - also affecting the phenomenon of torture - in which official narratives and public belief often trivialise and even endorse such practices in the name of security and the fight against terrorism, ignoring the suffering and damages it causes. On the other hand, the positive experiences in some States illustrate that torture can be eradicated if the provisions of CAT and OPCAT are taken seriously and are being fully implemented.

This is an open access title available under the terms of a CC BY-NC 4.0 International licence. It is offered as a free PDF download from OUP and selected open access locations.

Product Details

ISBN-13:	9780198846178
Publisher:	Oxford University Press
Publication date:	02/19/2020
Series:	Oxford Commentaries on International Law
Edition description:	2nd ed.
Pages:	1360
Product dimensions:	9.80(w) x 6.90(h) x 2.40(d)

About the Author

Manfred Nowak, Scientific Director of the Ludwig Boltzmann Institute of Human Rights, and Professor of International Human Rights at the University of Vienna, Moritz Birk, Head of the Department of Human Dignity and Public Security, Ludwig Boltzmann Institute of Human Rights,Giuliana Monina, Researcher in the Department of Human Dignity and Public Security, Ludwig Boltzmann Institute of Human Rights

Manfred Nowak was appointed as independent expert leading the United Nations Global Study on Children Deprived of Liberty in October 2016. He is Professor for International Human Rights at the University of Vienna, where he is the scientific director of the Vienna Master of Arts in Human Rights and co-director of the Ludwig Boltzmann Institute for Human Rights. He serves as Secretary General of the Global Campus of Human Rights in Venice. Manfred Nowak has carried out various expert functions for the UN, the Council of Europe, the EU, and other inter-governmental organizations. He served for many years in various functions as UN Expert on Enforced Disappearances (1993 to 2006) and as one of eight international judges in the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo (1996 to 2003). He served as UN Special Rapporteur on Torture (2004 to 2010), where he visited numerous institutions throughout the world where children were deprived of liberty in unimaginable conditions.

Moritz Birk is Head of the department 'Human Dignity and Public Security' at the Ludwig Boltzmann Institute of Human Rights. He joined the Institute in 2009 as Assistant to the UN Special Rapporteur on Torture (-2010) and has since implemented numerous research and technical capacity projects on torture and ill-treatment worldwide. e lectures. Before joining the Institute he worked with the UNHCR and human rights organisations in Ghana, Mexico, Senegal and Sweden. He holds an LL.M. in International Human Rights Law, studied law in Germany and France and is certified as organisational consultant.

Giuliana Monina is researcher at the Ludwig Boltzmann Institute of Human Rights - Human Dignity and Public Security Department. She joined in 2016 and has since focused on several research projects on the topics of torture and ill-treatment as well as migration and asylum. She has completed her legal studies at the Universities of Bologna. Before the Ludwig Boltzmann Institute of Human Rights, Giuliana was a practicing lawyer in Italy and has worked with several human rights organizations, including the European Union Agency for Fundamental Rights.

Table of Contents

IntroductionConvention Against Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentPreamblePart I: Substantive ArticlesArticle 1. Definition of TortureArticle 2. Obligation to Prevent TortureArticle 3. Principle of Non-RefoulementArticle 4. Obligation to Criminalize TortureArticle 5. Types of Jurisdiction over the Offence of TortureArticle 6. Procedural Safeguards During the Preliminary Investigation PhaseArticle 7. Aut Dedere aut JudicareArticle 8. The Convention as a Basis for ExtraditionArticle 9. Mutual Judicial AssistanceArticle 10. Training of PersonnelArticle 11. Review of detention and interrogation rulesArticle 12. Ex Officio InvestigationsArticle 13. Right of Victims to ComplainArticle 14. Right of torture victims to adequate remedy and reparationArticle 15. Non-Admissibility of Evidence Obtained by TortureArticle 16. Cruel, Inhuman or Degrading Treatment or PunishmentPart II: Procedural ArticlesArticle 17. Committee against TortureArticle 18. Rules of ProcedureArticle 19. State Reporting ProcedureArticle 20. Inquiry ProcedureArticle 21. Inter-State CommunicationsArticle 22. Individual Complaints ProcedureArticle 23. Privileges and ImmunitiesArticle 24. Annual ReportPart III: Final ClausesArticle 25. Signature and RatificationArticle 26. Accession and SuccessionArticle 27. Entry into ForceArticle 28. Opting out of the inquiry ProcedureArticle 29. AmendmentArticle 30. Settlement of DisputesArticle 31. DenunciationArticle 32. Notification by the Secretary-GeneralArticle 33. Authentic TextsOptional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentPreamblePart I: General PrinciplesArticle 1. System of Preventive Visits to Places of DetentionArticle 2. Establishment of a UN Subcommittee on PreventionArticle 3. National Preventive MechanismArticle 4. Obligation to allow Preventive Visits to all Places of DetentionPart II: Subcommittee on PreventionArticle 5. Size and Composition of the Subcommittee on PreventionArticle 6. Nomination of Subcommittee MembersArticle 7. Election of the SubcommitteeArticle 8. Filling of VacanciesArticle 9. Term of OfficeArticle 10. Rules of ProceduresPart III: Mandate of the Subcommittee on PreventionArticle 11. Mandate of the SubcommitteeArticle 12. Obligations of States Parties to Cooperate with the SubcommitteeArticle 13. Obligations of the Subcommittee Concerning Country MissionsArticle 14. Obligation of States Parties to Facilitate Visits by the Subcommittee to Places of DetentionArticle 15. Prohibition of Sanctions against any Source of Information of the SubcommitteeArticle 16. Reports of the SubcommitteePart IV: National Preventive MechanismsArticle 17. Establishment of National Preventive MechanismsArticle 18. Independence, Pluralism and Efficiency of National Preventive MechanismsArticle 19. Mandate and Power of National Preventive MechanismsArticle 20. Obligations of States Parties to Facilitate Visits by the National Preventive MechanismsArticle 21. Prohibition of Sanctions against any Source of Information of the NPMArticle 22. Obligation of States Parties to Examine the Recommendations of National Preventive MechanismsArticle 23. Annual Report of the National Preventive MechanismPart V: DeclarationArticle 24. Temporary Opting-Out DeclarationPart VI: Financial ProvisionsArticle 25. Financing of the SubcommitteeArticle 26. Special FundPart VII: Final ProvisionsArticle 27. Signature, Ratification and AccessionArticle 28. Entry into ForceArticle 29. Validity in Federal StatesArticle 30. Prohibition of ReservationsArticle 31. Relation to Regional Systems of Preventive Visits to Places of DetentionArticle 32. Relation to the International Committee of the Red CrossArticle 33. DenunciationArticle 34. AmendmentsArticle 35. Privileges and ImmunitiesArticle 36. Obligations of Members of the Subcommittee during Country MissionsArticle 37. Authentic TextsAppendices

Editorial Reviews

"A work like this was long overdue...Both volumes consist of careful, up-to-date and comprehensive, article-by-article, consideration of the relevant normative texts and ensuing practice, and thus recommend themselves as indispensable for both academic international lawyers and for practitioners, whether at public service or in private practice."
--Global Law Books

"Libraries or private collections which specialize in the assessment of issues relating to torture could not possibly boast of completeness without this well-written and superbly documented contribution to the literature on torture."
--American Society of International Law

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