RAYAT COLLEGE OF LAW, RAILMAJRA

INTERNATIONAL HUMAN RIGHTS

PROJECT REPORT ON

CONVENTION AGAINST TORTURE AND CRUEL , INHUMAN OR

DEGRADING TREATMENT OR PUNISHMENT 1984 AND OPTIONAL
PROTOCOL

Submitted To : Submitted By:

Ms. Parveen Joshi Atin Kumar

(Asst. Prof. of Law) B.Com LLB (Hons.) 9TH

. SEM (16611)
ACKNOWLEDGMENT
I would like to express my special thanks of gratitude to my
International Human Rights professor Ms. Parveen Joshi for
their able guidance and support in completing my project on
CONVENTION AGAINST TORTURE AND CRUEL,
INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT 1984 AND OPTIONAL PROTOCOL. She
had been very kind and patient while suggesting me the
outlines of this project. Last but not least, I would like to
thank my friends who helped me a lot in gathering
information and guiding me from time to time in making this
project.
Thanks again to all who supported and helped me a lot.

Atin Kumar (16611)

Introduction
Torture is widely spread across all countries but the methods adopted by the
states are quite different. Some common forms of physical and psychological
torture are : isolation, Falange , electric shocks , suffocation, pulling out teeth
,burning by cigarettes or red hot iron bars, mutilation, sexual torture, mock
execution, letting detained torture each other, pharmacological torture. Torture
is done to criminals , innocent persons trapped by law enforcement agencies,
spies, prisoners of war, refugee opposition leaders, journalists, ethnic minority
leaders and others, including their family members, both adult and children.
Torture of children is performed for putting pressure on their parents, or force
them to beg. Torture is also used often as a political weapon.

The universal declaration of human rights under article 5 and the international
covenant on civil and political rights under article 7 had provided that no one
shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment, but neither the term torture was defined therein nor it was
elaborated that how the torture and other inhuman or degrading treatment or
punishment shall be prevented. The general assembly on December 9, 1975
adopted a declaration on the protection of all persons from being subjected to
torture and other cruel , inhuman or degrading treatment or punishment . In
order to make more effective the struggle against torture a convention was
adopted by the general assembly on December 10, 1984 which is known as the
convention against torture and other cruel, inhuman or degrading treatment or
punishment. The convention came into force on June 26, 1987 when it was
ratified by 20 states . As on September 17, 2020 the convention has 170 states
parties. At present 173 parties are the members of covenant , India is also a
signatory but not a rectification party1.

Definition of torture

The term torture has been defined under article 1 of the convention as any act
by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed , or intimidating or coercing
him or a third person, or for any reason based on discrimination of any kind ,
when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in official
capacity. It does not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions. Torture is an atrocious violation of human
dignity. It dehumanises both the victim and the perpetrator. It is a crime
against humanity.

The definition of torture under the Convention contains four main

elements:

•The infliction of severe pain or suffering - The Convention specifies that for
an act to amount to torture it must inflict “severe pain or suffering, whether
physical or mental” on a person. The Convention does not have a list of acts that
are severe enough to satisfy the threshold for torture. Instead, the severity needs
to be understood in terms of the suffering and impact on the victim rather than
the conduct of the perpetrator.

1
This article defines torture and CIDT in accordance with article 1 and article 16 of the 1984 UN
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(UNCAT) respectively.
• The requirement of intent - The Convention requires that for an act to
amount to torture it must have been committed with intent. It is an accepted
understanding that torture under the Convention must result from a purposeful
act or omission of an act, for example, depriving a detainee of food or medicine
on purpose.

•The requirement of a specific purpose - The Convention requires that an act

must have been inflicted for a specific purpose, and lists such purposes as
punishment, soliciting information or a confession, intimidation or coercion, “or
any other reason based on discrimination of any kind”. This list is non-
exhaustive and has been interpreted broadly. However, it is important to
recognise that some regional bodies and standards, including the ACHR, do not
require a purpose for an act to be considered as torture.

•The involvement of a public official - The Convention specifies that an act of

torture is inflicted “at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity”. In its General
Comment No. 2,the Committee recognised that indifference or inaction by the
State for acts of torture and ill-treatment can provide de facto permission for
torture and ill-treatment. The Committee made clear that where State officials
fail to exercise due diligence to prevent, investigate, prosecute and punish acts
of torture or ill-treatment committed by private actors the State bears
responsibility and its officials should be considered as complicit or otherwise
responsible. This principle has been applied in cases of gender-based violence,
such as rape, domestic violence, female genital mutilation and trafficking.

A sanction considered lawful under national law may still constitute torture or
other prohibited ill treatment if it causes physical pain or mental suffering. In
this regard, the prohibition against torture and ill-treatment extends to corporal
punishment, including “excessive chastisement ordered as punishment for a
crime or as an educative or disciplinary measure.2”

The distinction between torture and other forms of cruel, inhuman and
degrading treatment or punishment

Torture is a severe form of cruel, inhuman or degrading treatment or

punishment (referred to collectively as ill-treatment). While Article 16 of the
Convention obliges States Parties to prevent illtreatment, the Convention does
not include a definition of cruel, inhuman and degrading treatment or
punishment and these concepts can be difficult to distinguish. Often, they will
involve the same act.

Remedies for victims of torture:

the right to complain and the right to redress Article 14 establishes an obligation
to provide victims of torture with an effective remedy and an enforceable right
to fair and adequate compensation. Article 14 is closely related to Article 13,
which requires States to ensure that victims of torture have an effective right to
complain to a competent body without fear of reprisals. States are required to
investigate each case promptly and impartially. Article 13 aims to establish the
facts, and therefore constitutes the basic remedy for torture victims. The
Committee has considered In its General Comments No. 2 and No.3, that such
remedies for victims of torture, including the right to redress, should be applied
to both torture and ill-treatment.

The Committee also clarified in its General Comment No. 3 that redress
includes the five forms of reparation:

• Restitution – re-establishing the victim to their situation before the torture was
committed, taking into consideration the specificities of each case and including

2
"Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment". OHCHR.
Retrieved 16 March 2022.
the structural causes of the violation, including any kind of discrimination (for
example, relating to gender, sexual orientation, disability, political or other
opinion, ethnicity, age or religion).

• Compensation – monetary or other non-monetary compensation given to the

victim for any assessable damage resulting from torture or ill-treatment. This
may include medical and rehabilitative expenses; loss of earnings and
opportunities and earning potential due to disabilities caused by the torture or
ill-treatment; legal assistance associated with bringing a claim for redress. The
Committee has made clear that the provision of monetary compensation on its
own is not sufficient for States to comply with their obligations under Article
14.

• Rehabilitation – a full holistic rehabilitation including medical and

psychological care and legal and social services to restore a victim’s
independence, physical, mental, social and vocational ability, and full inclusion
and participation in society.

• Satisfaction – this includes the verification of facts and public disclosure of the
truth; an official declaration or judicial decision restoring the dignity, reputation
and the rights of the victim; effective measures to stop the violations; assisting
in the recovery, identification and reburial of victims’ bodies; public apologies,
including acknowledgement of the facts and acceptance of responsibility;
commemorations and tributes to victims.

• Guarantees of non-repetition – measures taken to combat impunity for

violations of the Convention.
Obligations of the states parties

The convention under article 2 ,para 1 , provided that each party shall take
effective legislative, administrative , judicial or other measures to prevent act of
torture in any territory under its jurisdiction. Torture cannot be justified even in
exceptional circumstances whatsoever, whether there exists a state of war or a
threat of war ,internal political instability or any other public emergency. An
order from a superior officer or a public authority may not be invoked as
justification of torture. Each state party shall ensure that all acts of torture are
offences under its criminal law. The same shall apply to an attempt to commit
torture and to an act by any person which constitute complicity or participation
in torture. Each state party shall make these offences punishable by appropriate
penalties which take into account their grave nature. Each state party shall
take measures as may be necessary to establish its jurisdiction or on board a
ship or aircraft registered in that state. States shall establish their jurisdiction
over the alleged offender when he is a national of that state or when the victim
is a national of that state if that state considers it appropriate . The state party in
the territory under whose jurisdiction a person alleged to have committed an
offence is found shall submit the case to its competent authorities for the
purpose of prosecution. The state shall not expel , return or extradite a person
to another state where there are substantial grounds for believing that he would
be in danger or being subjected to torture.

Implementation procedure

The convention has made procedure for the implementation of the provision
which are as follows
 • Committee against torture

A committee against torture consisting of ten experts of high moral standing

and recognised competence in the field of human rights was established in 1987
when the convention entered in force. The committee is composed of 10
independent experts who are elected by the states parties. Consideration is
given to equitable geographical distribution and to the usefulness of the
participation of some persons having legal experience . The members of the
committee are elected for a term of four years and are eligible for re-election if
renominated.

The committee has been given a number of functions to perform which included
the following:

1. The committee was required to consider reports submitted by the states

parties on the measures they have taken to give effect to their undertaking
under the convention.

Guidelines have been issued for states parties and the discussions with the state
representatives are held with a view to establishing a construction dialogue.

2. The committee may make such general comments on the report as it may
consider appropriate and shall forward them to the states parties
concerned.
3. The committee may invite the state party in whose territory the torture is
being systematically practiced to cooperate in the examination of the
information and to this end to submit observations with regards to the
information concerned.
4. The committee is required to perform functions in relation to inter state
communication system as provided under article 21.
5. The committee shall perform functions in relation to communication from
individual as provided under article 22.
 • Inter state communication system

The convention has made provisions for the inter state communication system
similar to those laid down under article 41 of international covenant on civil
and political rights. Article 21 of the convention states that a state party may at
any time declare that it recognises the competence of the committee to receive
and consider communications to the effect that a state party claims that another
party is not fulfilling its obligations under the convention. The inter state
communication system may be received only if submitted by a state party which
has made a declaration recognising in regard to itself the competence of the
committee. No communication shall be dealt with by the committee if it
concerns a state party which has not made such a declaration.

If a state party considers that another party is not giving effect to the provision
of the convention, it may bring the matter to the attention of that state party in
writing. The receiving state, within three months after the receipt of the
communication, shall afford the state which has sent the communication as
explanations or any other statements in writing clarifying the matter including
the reference to domestic procedure and remedies taken, pending or available in
the matter. If the matter is not adjusted to the satisfaction of both the states
parties concerned within six months after the receipt by the receiving state of
the initial communication, either state have the right to refer the matter to the
committee by notice given to the committee and to other state. The committee
shall deals with a matter referred to it after it has ascertained that all domestic
remedies have been invoked and exhausted unless the remedies are
unreasonably prolonged or is unlikely to bring effective relief to the person
who is the victim of the violation of the convention. The committee may
make available its good offices to the states . Parties concerned with a view to a
friendly solution of the matter. The committee when it considers appropriate,
may set up ad hoc conciliation commission.
The inter state communication system is optional. It shall come into force when
five states parties to the convention have made declaration . The declaration are
required to be deposited with the secretary general of the United nations who
shall transmit copy thereof to the other states parties.

• Individual communication system

Provisions for individual communication system have been made under article
22 of the convention. A state party may at any time declare that if recognises
the competence of the committee to receive and consider communications from
or on behalf of individual subject to its jurisdiction who claim to be victim of a
violation by a state party of the provision of the convention. Thus , the system
shall be applicable to a state which has made a declaration. It is therefore
optional. As on September 17, 2020 , 90 states has made declaration for the
recognition of the competence of the committee to receive the communication.

The communication shall be inadmissible if it is anonymous or which the

committee considers to be an abuse of the right of submission of such
communication or to be incompatible with the provision of the convention. The
committee shall not consider any communication from an individual unless it
has ascertained that (a) the same matter has not been and is not being,
examined under another procedure of international investigations or settlement
(b) the individual has exhausted all available domestic remedies.

The committee shall hold closed meetings for examining the communication.
The committee shall forward its views to the state party and the individual.
Individual communication system came into force when five states parties to the
convention has made declaration.

The number of individual communication has arisen considerably. While in

1994 the number of communication was 7 and 18 in 1995 , the five figure has
risen to 24 in 1996 and 39 in 1997. The above figures suggest that the
individuals , who are the victim of the violation of the provision of the
convention are exercising their rights against their own states.

Special rapporteur on torture

In addition to the convention the commission on human rights in resolution

1985/33 appointed a special rapporteur to examine questions relevant to torture,
requesting him to seek and receive credible and reliable information on such
questions and to respond to that information without delay. The special
rapporteur is required to report to the commission on the phenomenon of torture
in general. To this end , he establishes contacts with government and ask them
for information on the legislative and administrative measures taken to prevent
torture and to remedy its consequences whenever it occurs.

The special rapporteur task is not confined to the state party to the convention
against torture, it extends to all members state of United nations and to all such
states which have observer status.

Optional Protocol to the Convention Against Torture

The Optional Protocol to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (OPCAT) seeks to prevent
torture and other forms of ill-treatment through the establishment of a system of
regular visits to places of detention carried out by independent international and
national bodies.
International and national bodies work together to conduct regular visits to all
places of detention in all States Parties and make recommendations to the
relevant authorities to establish effective measures to prevent torture and ill-
treatment, and to improve the conditions of detention of all persons deprived of
liberty.
Subcommittee on Prevention of Torture

At the international level, the OPCAT provides for the establishment of an

international preventive body, called the Subcommittee on Prevention of
Torture
The subcommittee has a mandate to visit places where persons are deprived of
their liberty in the States Parties to the Protocol and to make recommendations
concerning the protection of these persons.

SAYDNAYA PRISON

Syria’s Saydnaya Military Prison. Former detainees described being packed into
filthy, overcrowded cells without access to fresh air, sunlight or ventilation, and
being tortured from the moment of their arrest. Meagre scraps of food are
thrown onto cell floors covered with blood from prisoners’ wounds3.

Many of the prisoners said they were raped or forced to rape other prisoners.
Torture and other ill-treatment, including beatings, are used as a regular form of
punishment and degradation, often leading to lifelong damage, disability or
even death. They are also used to extract false confessions, which are then used
as “evidence” to sentence people to death.

Thousands of people have died in Saydnaya Military Prison. Many were hanged
in secret mass executions; others have died of disease or starvation or been
tortured to death. Amnesty’s research helped shine a light on the horrors that
take place behind Saydnaya’s secretive walls.

3
https://forensic-architecture.org/investigation/saydnaya
AUSTRALIA’S TORTURE OF REFUGEES AND ASYLUM SEEKERS

Since 2015, the Australian government has been forcibly transferring refugees
and asylum seekers who arrive in Australia by boat to camps in Papua New
Guinea and Nauru.

In these remote locations, refugees and asylum seekers live in punitive

conditions with no opportunity to seek freedom and protection. Hostility from
the local population sometimes leads to violent physical or sexual assaults, and
refugees are denied access to adequate healthcare. Refugees and asylum seekers
suffer high rates of mental illness and self harm with the ongoing uncertainty
being a major contributing factor. There have been 12 deaths on Manus and
Nauru since the inception of these cruel policies4.

Australia’s “offshore processing system” amounts to torture and other ill-

treatment because of the severe mental and physical harm experienced, and
because it is intentionally designed to harm people in order to deter others from
coming to Australia.

4
https://academic.oup.com/jrs/advance-
article/doi/10.1093/jrs/feac041/6646968#:~:text=Since%20Australia%20re%2Destablished%20offshore,treatm
ent%20or%20punishment%20(CIDT).
Conclusion
The Convention represents the most detailed international codification of
standards and practices regarding the prohibition against torture. It sets out the
most widely accepted definition of torture (Article 1) at the international level,
obliges States to take all necessary legislative, administrative, judicial and other
appropriate measures to prevent acts of torture (Article 2), and specifies a range
of additional steps that States must take to adequately prevent, prohibit and
redress torture and guarantee non-recurrence.
BIBLIOGRAPHY
Book Reference:
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment

Web Reference:
https://en.wikipedia.org/wiki/United_Nations_Convention_Against_Torture

https://blog.ipleaders.in/