The United Nations Convention Against Torture: A Commentary (review)

In 1984, after a relatively brief seven years of negotiation, the UN General Assembly adopted the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Convention was a response to the worldwide revulsion that had been generated by a nongovernmental organization campaign against the practice of torture, led by Amnesty International.¹ Since the prohibition of torture and other ill-treatment was already to be found in all general human rights treaties and in the 1949 Geneva Conventions on humanitarian law in armed conflict, it was necessary to fill gaps left by those treaties. Among these was the issue of torture outside the framework of international armed conflict, and the inability of existing treaty bodies to investigate apparent systematic practices of torture. The Convention was to import doctrines from international criminal law in order to ensure that there would be “no safe haven for torturers” and to create a Committee Against Torture that would have an investigatory function not dependent on complaints from individuals or other states parties. It would also build on the practice of regional human rights bodies by prohibiting states parties from sending people to countries where they risked being tortured.

Eighteen years later, the General Assembly adopted an Optional Protocol to the Convention (Protocol). This 2002 text aims to establish a national and international system of inspection of all places of detention for the purpose of preventing torture and ill-treatment. Underlying the Protocol is the theory used by the International Committee of the Red Cross, according to which confidential visits and confidential reports are supposed to alert governments to problems and encourage them to rectify them. Indeed, the prospect of the visits is implicitly what is supposed to be preventive.

The book under review is a commentary on both texts. Its authors successfully aim for it to be a “useful guide to academics, students and practitioners” on issues relating to the Convention. It is a thorough and comprehensive work of scholarship that will encourage further scholarship. It is also a very valuable port of call for understanding the key issues that the Convention sought to address or that have subsequently emerged in practice.

It fully describes the preparatory work leading up to the Convention, as well as some two decades of practice of the Committee Against Torture. It is also alert to the practice of other treaty bodies, as is to be expected from the author of the leading commentary on the International Covenant on Civil and Political Rights (ICCPR).² Of course it takes account of the work and mandate of the UN Special Rapporteur on the Question of Torture, of which Nowak is the current holder. The extensive literature on the topic is also accorded appropriate attention.

As with any work of serious scholarship, the book is not merely a factual digest it reflects the views of its authors. The incorporation of the authors’ opinions strengthens the work, but also exposes it to challenges.

For example, the authors’ treatment of the non-refoulement principle is debated. The authors, following the line of Nowak in his capacity of UN Special Rapporteur on the question of torture (a mandate for which the present writer was responsible between 1993 and 2001), argue that diplomatic assurances procured from a country to which a person fearing torture might be returned are not an acceptable basis for the returning country appropriately to effect the return.

There is not the space here to do justice to the arguments. However, it should be noted that his view is not that applied by treaty bodies, including the Committee Against Torture. He points to several cases, notably two from Sweden (the country in respect of which the Committee has found most violations of the Article 3 non-refoulement provision) that have found diplomatic assurances to have failed adequately to eliminate the risk of torture. From this he goes on to argue that such assurances cannot solve the problem for states. In...