UN Human Rights Treaties

UNITED   NATIONS
ECONOMIC
AND
SOCIAL COUNCIL
 
Distr.
LIMITED
E/CN.4/L.147012 March 1979
Original: ENGLISH
 
COMMISSION ON HUMAN RIGHTS
Thirty-fifth session Agenda item 10 (a)
REPORT OF THE WORKING GROUP ON A DRAF CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR. PUNISHMENT
Chairman-Rapporteur:    Mrs. Nina Sibal (India)
CE.79-11530
 
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A.   ORGANIZATION OF THE SESSION Introduction
1.    On the" recommendation of the Commission on Human Rights contained in its resolution 18 (XXXIV), paragraph 2,  the Economic and Social  Council, by its resolution 1978/24, authorized the holding of  a meeting of a working group open to all members of the Commission for one week immediately before the thirty-fifth session of the Commission.    One of the tasks of this working group was to prepare concrete drafting proposals for the Commission on the basis of  the relevant  
documents of the thirty-fourth session of the Commission and any comments received
from Governments.
2.    The presessional working group was also concerned with matters  relating to
"Alternative approaches and ways and  means within the United Nations system for
improving the effective  enjoyment of human rights and fundamental freedoms'.
3.    "At its 1479th meeting the Commission on Human Rights by decision 1 (XXXV)
decided that an informal open-ended working group should be established for the
consideration of item 1C (a) on its agenda concerning the drafting of a convention
against torture and other cruel,  inhuman or degrading treatment or punishment.
Election of officers
4.    At the first meeting of the pre-sessional working group, on 5 February 1979, lirs.  Nina Sibal (India) and Mr. Aliounc Sene (Senegal) were elected by acclamation as co-Chairmen-Rapporteurs,    Hrs.  Sibal continued as Chairman-Rapporteur of the working group established by the Commission on Human Rights at its thirty-fifth session to continue the work of the presessional working group..
5.    The pre-sessional working group held three meeting at which it discussed proposals concerning a draft convention against torture and other cruel, inhuman or degrading treatment or punishment.  Meetings were hold in the afternoons on
5,    6 and 7 February 1979.    The sessional working group helo four meetings.    These
were on the afternoons of 23 and 27 February and 7 and 12 March 1979.
6.    The draft report of the pre-sessional working group was issued in document CHR/XXXV/ Items 10 and 11/WP and Add.l (Rev.l in Trench only) of 8 February 1979. The draft report of the sessional working group was issued in document E/CN.4/WG.1/WP.3  At its meeting on 12 March 1979 the sessional working group  adopted those reports and authorised the Chairman to amalgamate the three into a        
single report for presentation to the Commission.    The present report is the result of that amalgamation.
Participation
7.    The. working group was open to all members of thc.Commission on an Human Rights
the composition of which for 1979 was as follows:    Australia, Austria, Benin,
Brazil, Bulgaria, Burundi, Canada, Colombia, Cuba, Cyprus, Egypt, France,
Gormany, federal Republic of, India, Iran, Iraq, Ivory Coast, Norocco, Nigeria,
Pakistan, Panaaa, Peru, Poland, Portugal, Senegal, Sweden, Syrian Arab Republic,
Uganda, Union of Soviet Socialist a publics, United States of America Uruguay  and
Yugoslavis.
 
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8.      The following States were represented at the working group as observer: Belgium, Denmark, Finland, Germany, Democratic Republic of, Greece,  Ireland,  Italy, Jordan, Netherlands, Norway, Switzerland, Turkey, United Kingdom of Great Britain . and Northern Ireland and Yemen.
9.      The United Nations High Commissioner for Refugees was represented at the working group.
10.    Amnesty International and the International Commission of Jurists were
represented at the working group.
Working documents
11.    As the Commission requested in its  resolution 18 (XXXIV) the working group had before it the report of  the Secretary-General requested in paragraph 1 of the same resolution, summarizing the observations received from Governments (E/CN.4/13I4 and Add.l and 2), as well as relevant documents from its thirty-fourth session.
12.    The point of departure for the working group's discussions was the ;'Draft International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" which had been submitted by Sweden to the thirty-fourth session ef the Commission on Human Rights (E/CN, 4/1285).
13.    At its meeting on 2J February 1979 the group accepted as the basis for its work a working paper submitted by the delegation of Sweden (E/CN.4/WG.1/WP.1) which contained a revised draft and accompanying comments based on the views submitted by certain Governments and summarized in document E/CN.4/1514 and on informal consultations.    The numbering of articles in the present report is that of the revised Swedish draft.    The numbers of the corresponding provisions of the original Swedish draft (E/CN.4/1285) are indicated in parentheses.
14.    At its meeting on 5 February 1979 the Working Group discussed the possibility of consultations whereby interested- participants cculd continue their discussions on the draft convention outside the Working Group.
Article 1 (Article 1 of the original draft)
15    Article 1 of the draft convention (E/CN.4/1285) was as follows:
"1.    For the purpose of the present Convention, torture means any act by which severe pain or suffering, whether physical or mental is intentionally inflicted by or at the instigation of a public, official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons.    It does net include pain or suffering arising only from inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Ilinimum Rules for the Treatment of Prisoners. .
2.     Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment."
 
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page 4
16.    . During the course of the pre-seasional working group's discussions,  three revised
versions of article 1 were considered:    the Chairman's summary of the Group's
discussions  (CHR/XXXV/Items 10 and ll/wp.l); a proposal of the delegation of Sweden
(CHR/XXXV/Iterns 10 and ll/WP,2); and  that of the International  Commission of Jurists
(CHR/XXXV/ltems 10. and ll/WP.3 and WP..4).    Various other proposals and suggestions
were made orally.    The version proposed by the.delegation of Sweden was as follows
 "1.    For the purpose of the present Convention,   torture means any act by which
severe pain or suffering, whether physical or mental,  is intentionally   '
inflicted  on a person by or at the instigation or with the consent or the
acquiescence of a public official or other person acting in an official
capacity for such purposes as obtaining from him or a  third person
information or a confession, punishing him for an act he has committed or
is suspected of having committed,   intimidating or coercing him or other
persons,  or for any reason based  on discrimination of any kind.    It does
not include pain or suffering arising only from,  inherent in or incidental-    
 to  lawful  sanctions.        
"2.    This Article is without prejudice  to any international instrument or national legislation which does or may establish  wider prohibitions."
The version proposed by the International  Commission of  Jurists and orally amended
was as follows:    
"1.    The present Convention applies only to torture inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity,
"2.    For the purposes of this Convention,  torture means any act by which a person intentionally inflicts severe pain or suffering, whether physical or mental,  on another person for such purposes as obtaining from the person tortured or a. third person information or a confession; punishing
the person tortured for an act he has committed or is suspected of having committed; or intimidating or coercing the person tortured, or a third person; or for any reason based on discrimination of any kind.   It does not include pain or suffering arising only from,  inherent in or incidental to
lawful sanctions.    
"3.    This Article is without prejudice to any international instrument or national legislation which does or may establish prohibitions of wide application or definition,"
17.    Some delegates pointed put that the draft convention was the first attempt at the international level to, define torture.    They considered  that the application of the Convention, and the definition of torture in Article 1 should not be restricted  to "public officials". It was proposed  that the Convention should be made applicable to all individuals under the jurisdiction of a contracting State.    It was said that such an approach was preferable because of the possible incidence of acts of torture committed by those other than public officials.    By contrast,  the view was expressed that such acts should be covered by existing or future national law, and that
international action was primarily designed to cover situations where national action
was otherwise least likely.
 
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13. It was generally agreed that the definition of acts committed by public officials should be expanded to cover acts committed by, or at the instigation of, or with the consent or acquiescence of a public official or any other person acting in an official capacity.        
19.    There was considerable discussion as to Whether the article should  specify the purposes for which acts of  torture might be perpetrated.    Some delegates suggested that it would be unduly restrictive to specify aNy purposes at all; others indicated; that the list of purposes WAS not an exhaustive one.    Several proposals were made for extending this list, and general agreement was reached  to include as torture such acts as inflict severe pain and  suffering for any reason based on discrimination of' any kind.
20.    It was also agreed that coercion should be included amongst the purposes listed in order to broaden their scope.    
21.    The view was expressed by some representatives that the reference in the original Swedish draft  (E/CN.4/1235) to the Standard Minimum Rules for the Treatment of Prisoners should have been retained in the revised draft.    Alternatively the limitation clause relating to "pain or suffering arising only from, inherent in or incidental to lawful sanctions" should have been deleted as too broadly worded.    A number of other delegates proposed the deletion of the reference to the Standard Minimum Rules.    It was stated that the Rules are limited in scope in that they dealt only with punishment relating to matters of prison discipline, and that they lacked legally enforceable status in international law.    One delegation also pointed out that the Standard Minimum Rules did not cover treatment during the period preceding actual trial and sentencing after which the detained person was designated a "prisoner".    Several delegates stated that it was desirable to refer to "existing international standards" or to use some other formulation in order to ensure that certain existing or future "lawful sanctions" did not frustrate the spirit of the. Convention,    However,  it was widely agreed that, in the absence of specific existing international standards,  it was not advisable to refer to universally acceptable principles.    
22.    Many delegates considered that paragraph 2 of article 1 of the original draft risked unduly restricting the definition of torture and should be deleted.    Several delegates were of another opinion but stated that in any case such deletion should not prejudge the broader issue of whether subsequent articles of the Convention should apply only to torture or also to other forms of cruel, inhuman or degrading treatment or punishment.
23.    The proposed revision of article 1 contained in CHR/XXXV/Items 10 and 11/WP..4 was designed to satisfy those delegates who sought a broad definition of torture, which covered both public and private individuals, as well as to clearly restrict the coverage of the Convention to gots of torture falling-within the scope of paragraph 1 of the revision.    It was suggested by some delegates that the order of paragraphs 1 and 2 of the revision should logically be reversed, but this was said to be unacceptable to other delegates.
 
E/CN.4/L.1470 page 6
24. At the first meeting of the sessional working group article 1 of a revised draft by Sweden (E/CN.4/Wg.1/WP.1) was submitted. It was as follows;
1. For the purposes of this Convention, torture Beans 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 an official capacity. It does not include pain or  suffering arising only from, inherent in or incidental to lawful sanctions.
[2. Torture is an aggravated and deliberate form of cruel, inhuman or degrading
treatment or punishment.]    
"3. This Article is without prejudice to any international instrument, or national legislation which does or may contain provisions of wider application relating to the subject matter of this Convention.
25. It was stated that the revised draft of article 1 sought to achieve a compromise between the two alternative versions considered previously.
26. (toe delegation expressed some doubts concerning the term "mental torture" which it considered not precise enough for use in criminal law.
27. As regards the words "or for any reason based on discrimination of any kind" in the revised draft, it was requested that the following statement be included in the group's report:
"The united Kingdom shares the concern to eliminate all forms of torture, including any motivated by discrimination. The United Kingdom is doubtful of the need to isolate this particular motivation and in practical terms the United Kingdom thinks that there will in any case be difficulties in doing so with the necessary degree of precision for a criminal offence."
28. It was agreed that consideration of paragraph 2 of article 1 of the revised Swedish draft, which characterized torture as "an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment' should be postponed.
29. Article l, paragraphs 1 and 3 of the revised Swedish draft was adopted by consensu*.
 
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Article 2 (Article 2 of original draft)
30.    Article 2 of the draft convention (E/CN.4/1285) was as follows:
1.    Each State Party undertakes to ensure that torture or other cruel, inhuman
or degrading treatment or punishment does not take place within its
jurisdiction. Under no circumstances shall, any State Party permit or
tolerate torture or other cruel, inhuman or degrading treatment or
punishment.
2. No exceptional circumstances whatsoever, whether a state of war or a  threat of war, internal political instability or any other public
emergency, may be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.
3.    An order from a superior officer or a public authority may not be invoiced
as a justification of torture or other cruel, inhuman or degrading
treatment or punishment.
31.    One delegate stated that while a State could undertake to adopt measures to
prevent torture, it could not undertake to ensure that torture would never occur.
Other delegates also questioned whether article 2 (l) was not too broad, or WAS
juridically sound. It was also proposed that the obligations of States in
article 2 (l) and article 3 could be consolidated.
    .
32.    It was stated that the phrase "within its jurisdiction" might be interpreted
too widely so as to cover citizens of one State who are resident within the
territory of another State. It was proposed to change the phrase to refer to any
territory under its jurisdiction". It was emphasized that such wording would cover
torture inflicted aboard ships or aircraft registered in the State concerned as well
as occupied territories.
33* Thereafter, a new text of article 2 (l) was proposed by the delegation of Sweden and adopted by the Working Group (see paragraph 37  below).
34.    Several delegates considered that references to other forms of cruel, inhuman or degrading treatment or punishment should be deleted from article 2 because of the difficulty of defining In this context what was meant by that phrase. Other delegates reiterated the view reflected in the second sentence of paragraph 23 above.
35.    One delegate proposed the addition to paragraph 3 of a provision indicating that superior orders may be considered in mitigation of punishment if justice so requires. It was agreed to include the addition in brackets for consideration by the Commission on Human Rights.
36.    Article 2, as adopted by the Working Group. is therefore as follows:
1.  Each State Party shall take effective legislative, administrative,
judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
 
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2.  No exceptional circumstances whatsoever,' whether a. state of war or a. threat
of war, internal political instability or any other public emergency, may
be invoked as a justification of torture.    '
3.  An order from a superior officer or a public authority may hot be invoked as a justification of tort-are [However,'this may be considered'in mitigation of punishment if justice so requires].
One delegation indicated that it had some reservations regarding article 2 (3).
Article 5 of the .original draft
37. Article 3 of the. draft con-entien (E/CN. 4/1285) v;as as follows;
Each State Party shall, in accordance with the provisions of the present Convention, take legislative, administrative , judicial and other measures to prevent torture and other cruel, inhuaian or degrading treatment or punishment from being practised within its jurisdiction.
38.  It was agreed to delete article 3 on the. basis that its objective had been achieved by the revised article 2 (l).
Article 3 (Article 4 of original draft)
39. The enguvalent article in the original draft (E/CN.4/1285) was article 4 which was as follows:
"No State Tarty my expel or extradite a person to a State where there are reasonable grounds to believe that he nay be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment."
Article 3 of the revised draft (E/CN.4/WG.l/WP.l) was as follows:
"No State' Party shall expet, return ("refouler") or extradite a person 'where there are substantial grounds for believing that he would be in danger of being subjected to torture."
40 Questions were raised, regarding the compatibility of the proposed article with previous extradition agreemet 17 concluded between States Parties and States not parties to the Convention against Torture. It was felt preferable not to include an exception for such cases in the text of the article lost such a limitation be interpreted as encouraging extradition to countries where the persons concerned woul be subjected to torture. It was proposed, rather, that the following remark-be included in the report of the Commission:
"Some relegations indicated that their States might wish, at the time of
signature or ratification of the "Consention or accession thereto, to declare
that they di not eonsiler themselven bound by Article 3 of the Convention, in
so far as that Article might not be a  mpatible with obligations'towards States
not party to the Convention under extradition treaties concluded before the
date of signature of the Convention.'1    
E/CN.4/L.1470 page 9
41.    It was agreed that the words "to a State" should, be added after the wordi"person" in the revised draft. These words were already present in the French and Russian translations of the draft,
42.    The advisability of including the irord "return"-("refouler") in the revised draft of article 3 gave rise to considerable discussion, in favour of the proposal it was said that there were strong, humanitarian considerations for the inclusion of the word "return" which broadened the protection of the persons concerned. The concept was found also in Article 33 (l) of "the 1951 Convention relating to the status of refugees. On the other hand the view was expressed that the 1951 Convention on    ª Refugees was on a quite different subject and, in addition, was not broadly accepted. The question was also raised whether the inclusion of the concept of ''return" in Article 5 Might not require a State to accept a mass influx of persons when it was not in a position to do so. It was also pointed out that disagreement about the ooncept of return or refoulement had led to failure in the drafting of the Convention on Territorial Asylum. Consequently, it was proposed either that the term be deleted or that specific provision be made in the .Convention for States to attach a reservation to their acceptance of the article.
43.    The revised draft of article 3 provided that expulsion, return or extradition should not occur where there are "substantial grounds for believing" that a person would be in danger of being subjected to torture. The original draft had used the words "reasonable grounds, to believe" and other alternatives suggested were "substantial evidence indicating" and "substantial indications". The view was expressed that some of the formulations proposed - such as the word "grounds" - were too vague. The term "evidence" was also criticized as possibly too technical1 and lending itself to different interpretations in the various legal systems. The view was .expressed that such problems were difficult to avoid and that the effective . application of the provision would,' in any event,, depend upon the good faith" of those concemed.
44. It was said that the purpose of the provision was to afford the greatest possible protection against torture and that the evidentiary requirement should not be too rigorous and' should be kept to a minimum. It was further said that the burden of proof should not fall solely upon the person concerned.
    
45. It was proposed that the word "where" should be replaced by "as long as" or "when" so as to allow for extradition or expulsion in eases where new developments after a lapse of time had removed the danger of the person concerned being subjected to torture. On the other hand, it was felt that the word "where" was adequate to cover such situations.
.46. At the meeting of the working group on 7 March 1979 the representative of the USSR proposed the following text for article 3 (E/CN.4/WG.l/WP;2)j
"l, So State Party shall expel or extradite a person to another Stats where
substantial evidence indicates that he may be in danger  of being subjected to
torture.               
 2.  The evidence referred to in the preceding paragraph of this article includes above all situations characterized by flagrant and massive violations of husan rights brought about when apartheid, racial discrimination or genocide, the suppression of national liberation movements, aggression or the oooupation . 01.* foreign territory are made State policy. -
 
E/CN.4/L.U70 page 10
3. The provisions of this article shall not be invoiced as grounds for refusing to institute proceedings against persons who have committed crimes against peace or mankind, or war crimes as defined in the relevant . international instruments".
47.    It was said toy the author that in paragraph 2 an attempt had been made to
develop and illustrate the concept of "substantial evidence" by citing certain
types of situations which arose as a result of State policy and which, in his view,,
were most conducive to torture practices. The situations referred to were based ,
broadly on those mentioned in General Assembly resolution 32/130, although the lists
were not identical. It wa3 not possible to make an exhaustive list of relevant situations. Hie term "colonialism" was not included because it was encompassed in the broader reference to "the suppression of national liberation movements".
48,    The view was expressed, on the other hand, that the listing of specific types
of situations might be misinterpreted to imply that there were other situations in '
which torture could be tolerated. It was also said that the main purpose of the
article was to ensure a separate evaluation of the case of each individual, and that
it was thus not helpful to refer to general situations.
49* ft was said by the sponsor that par^raph 3 of the USSR proposal, which took into account comments made by other, delegations, aimed at ensuring that the article could not be invoked as a pretext for refusing to institute proceedings against persons who have consultted the crimes specified.  The paragraph would secure punishment for such criminals, but did not oblige States to extradite them to countries where they could be in danger of being subjected to torture.
50.    One delegation proposed that Article 3 be deleted.  It was agreed that
discussion of article 3 should be suspended to allow further consideration and
consultation.
Article 10 (Article 5 of the original draft)
51.    Article 10 0' the revised draft (E/CN.A/VG.a/WP.1)  was as follows:
"1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may he involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.
2,  Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persona,"
52.    ft was proposed that, in paragraph 2, the words "give effect to" should be used
in place of "include" in order to make the requirement more substantial.  However,
the view was expressed that the existing wording was more effective.
53. Article 10 of the revised draft was adopted by consensus without tendment.
Article 11 (Article 6 of original draft)
54. Article 11 of tha revised draft (E/ON.4/WG.l/WP.1) WAS an follows:
"Each State Party shall keep under systematic review interrogation methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any oases of torture."
 
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55. The issue was raised as to whether the phrase "territory under its jurisdiction" included occupied territories.  It was agrsed that the phrase had the same meaning as had earlier been agreed upon in connexion, with article 2 (l) of the revised
draft.      
56. An opinion was expressed that there were certain discrepancies between articles 10 and 11 which would require in the future some additional work of a drafting nature with regard to these texts.
57. It was agreed that article, 11 should he amended to harmonize it with
article 10 by referring to "interrogation rules, instructions, methods and practices".
58. Article 11. was then adopted as follows:
"Each State Party shall keep under systematic review, interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture."
59. Following the adoption of the rest of the report of the working group it was suggested that the group should make a recommendation to the Commission that the drafting of the convention against torture and other cruel, inhuman or. degrading treatment or punishment should be continued by an inter-sessional working group established for the purpose before the thirty-sixth session of the Commission. However, no agreement was reached on the matter.