The United Nations Convention Against Torture and Its Optional Protocol

A Commentary
2. Auflage 2020
ISBN: 978-0-19-884617-8
Verlag: Oxford University Press

Buch, Englisch, 1360 Seiten, Format (B × H): 180 mm x 254 mm, Gewicht: 1895 g

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.

Autoren/Hrsg.

Nowak, Manfred

Birk, Moritz

Monina, Giuliana

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Öffentliches Recht, Völkerrecht, Internationale Organisationen
• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationale Menschen- und Minderheitenrechte, Kinderrechte
• Sozialwissenschaften Politikwissenschaft Internationale Beziehungen Vereinte Nationen, UN Organisationen
• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Strafrecht, Internationales Verfahrensrecht

Inhaltsverzeichnis

- Introduction

- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

- Preamble

- Part I: Substantive Articles

- Article 1. Definition of Torture

- Article 2. Obligation to Prevent Torture

- Article 3. Principle of Non-Refoulement

- Article 4. Obligation to Criminalize Torture

- Article 5. Types of Jurisdiction over the Offence of Torture

- Article 6. Procedural Safeguards During the Preliminary Investigation Phase

- Article 7. Aut Dedere aut Judicare

- Article 8. The Convention as a Basis for Extradition

- Article 9. Mutual Judicial Assistance

- Article 10. Training of Personnel

- Article 11. Review of detention and interrogation rules

- Article 12. Ex Officio Investigations

- Article 13. Right of Victims to Complain

- Article 14. Right of torture victims to adequate remedy and reparation

- Article 15. Non-Admissibility of Evidence Obtained by Torture

- Article 16. Cruel, Inhuman or Degrading Treatment or Punishment

- Part II: Procedural Articles

- Article 17. Committee against Torture

- Article 18. Rules of Procedure

- Article 19. State Reporting Procedure

- Article 20. Inquiry Procedure

- Article 21. Inter-State Communications

- Article 22. Individual Complaints Procedure

- Article 23. Privileges and Immunities

- Article 24. Annual Report

- Part III: Final Clauses

- Article 25. Signature and Ratification

- Article 26. Accession and Succession

- Article 27. Entry into Force

- Article 28. Opting out of the inquiry Procedure

- Article 29. Amendment

- Article 30. Settlement of Disputes

- Article 31. Denunciation

- Article 32. Notification by the Secretary-General

- Article 33. Authentic Texts

- Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

- Preamble

- Part I: General Principles

- Article 1. System of Preventive Visits to Places of Detention

- Article 2. Establishment of a UN Subcommittee on Prevention

- Article 3. National Preventive Mechanism

- Article 4. Obligation to allow Preventive Visits to all Places of Detention

- Part II: Subcommittee on Prevention

- Article 5. Size and Composition of the Subcommittee on Prevention

- Article 6. Nomination of Subcommittee Members

- Article 7. Election of the Subcommittee

- Article 8. Filling of Vacancies

- Article 9. Term of Office

- Article 10. Rules of Procedures

- Part III: Mandate of the Subcommittee on Prevention

- Article 11. Mandate of the Subcommittee

- Article 12. Obligations of States Parties to Cooperate with the Subcommittee

- Article 13. Obligations of the Subcommittee Concerning Country Missions

- Article 14. Obligation of States Parties to Facilitate Visits by the Subcommittee to Places of Detention

- Article 15. Prohibition of Sanctions against any Source of Information of the Subcommittee

- Article 16. Reports of the Subcommittee

- Part IV: National Preventive Mechanisms

- Article 17. Establishment of National Preventive Mechanisms

- Article 18. Independence, Pluralism and Efficiency of National Preventive Mechanisms

- Article 19. Mandate and Power of National Preventive Mechanisms

- Article 20. Obligations of States Parties to Facilitate Visits by the National Preventive Mechanisms

- Article 21. Prohibition of Sanctions against any Source of Information of the NPM

- Article 22. Obligation of States Parties to Examine the Recommendations of National Preventive Mechanisms

- Article 23. Annual Report of the National Preventive Mechanism

- Part V: Declaration

- Article 24. Temporary Opting-Out Declaration

- Part VI: Financial Provisions

- Article 25. Financing of the Subcommittee

- Article 26. Special Fund

- Part VII: Final Provisions

- Article 27. Signature, Ratification and Accession

- Article 28. Entry into Force

- Article 29. Validity in Federal States

- Article 30. Prohibition of Reservations

- Article 31. Relation to Regional Systems of Preventive Visits to Places of Detention

- Article 32. Relation to the International Committee of the Red Cross

- Article 33. Denunciation

- Article 34. Amendments

- Article 35. Privileges and Immunities

- Article 36. Obligations of Members of the Subcommittee during Country Missions

- Article 37. Authentic Texts

- Appendices

Über Autor(innen)

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.