On 24 August 2007, the Centre made a Submission to the UN Committee against Torture in response to Draft General Comment No 2.
The Draft General Comment is of significant importance to the normative development of international human rights law.
Although the prohibition against torture is a non-derogable human right and a peremptory norm of customary international law, it continues to be flagrantly violated. For example, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment reports that during the period from 16 December 2005 to 15 December 2006, he sent 79 letters of allegations of torture to 35 governments and 157 urgent appeals to 60 governments on behalf of persons who might be at risk of torture or other forms of ill-treatment. These statistics highlight the urgent need for state parties to receive practical instruction in respect of the Convention and in particular, article 2, which underpins the Convention’s absolute prohibition against torture.
The Draft General Comment is comprehensive and provides useful guidance on various aspects of article 2 of the UN Convention against Torture. In the Centre’s view, however, it could be strengthened by reference to relevant jurisprudence of the European Court of Human Rights (in particular, article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) and the General Comments of the United Nations Human Rights Committee, with particular reference to articles 7 and 10 of the International Covenant on Civil and Political Rights. A consideration of comparative jurisprudence provides a useful framework for the interpretation and application of the Draft General Comment.
This submission considers the Draft General Comment with a particular emphasis on the following issues:
- the definition of ‘torture’;
- the particular circumstances in which the prohibition against torture may be relevant, including arrest, prison conditions, immigration detention and detention for mental health purposes, non-refoulement and the ‘war on terror’;
- protection of vulnerable groups;
- the nature and scope of the negative, positive and procedural obligations arising out of the norm; and
- the burden and standard of proof relevant to alleged violations of the norm.
The submission was prepared with very substantial assistance and input from Lucy Adams, David Boots, Cameron Goodwin, Mele-Ane Havea, Sachi Haga, Udara Jayasinghe, Afrooz Kaviani Johnson, Tom Lin, Elsie Loh, Warrick Louey, Jehan Mata, Daniel Matta, Michael McIver, Jarod Sacks, Ann-Maree Ventura, Rebecca Wilcock and Martine Wilson of Clayton Utz.
