OX FOR D C OM M E N TA R I E S ON

I N T E R N AT ION A L L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Professor Vaughan Lowe, Chichele Professor
of Public International Law in the University of Oxford and Fellow of
All Souls College, Oxford.

The United Nations Convention

Against Torture

A Commentary

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00-Nowak-Prelims.indd ii 7/10/2007 7:50:33 AM
 The United Nations
Convention Against
Torture
A Commentary

M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R

with the contribution of

Kerstin Buchinger
Julia Kozma
Roland Schmidt
Isabelle Tschan
Ludwig Boltzmann Institute of Human Rights Vienna

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 Article 4. Obligation to Criminalize Torture 247
of the obligations established by the Convention, as it provides minimal pro-
tection against torture provided for under criminal law, impedes the investi-
gation of complaints and fosters impunity for the guilty’. Such weaknesses, the
Committee believed, were attested to by the small number of judicial investi-
gations of torture and the even smaller number of government employees who
have been punished.⁶⁶

4. Issues of Interpretation
4.1 Interpretation of Article 4(1)
46 The obligation of States to criminalize torture is based on Article 7 of
the 1975 Declaration, which was reproduced literally in Article 7(1) of the
original Swedish draft.⁶⁷ On the initiative of the UK delegation, the words ‘as
defined in Article 1’ were deleted, since it was clear that the definition of tor-
ture in Article 1 applied throughout the Convention. Although some States,
such as France, maintained that not only torture but also cruel, inhuman or
degrading treatment should be criminalized by severe penalties in domestic
law, the majority of States were of the opinion that a State obligation to crimin-
alize such behaviour should only apply to torture in the narrow sense. Although
the Committee in the context of the State reporting procedure occasionally
criticized States parties for not including cruel, inhuman or degrading treat-
ment in their criminal legislation,⁶⁸ both the formulation of Article 4(1) and
the travaux préparatoires clearly indicate that the obligation to criminalize does
not apply to cruel, inhuman or degrading treatment. Article 16 requires States
parties explicitly to prevent, but not to punish cruel, inhuman or degrading
treatment.
47 The second sentence was only slightly amended by deleting the word
‘incitement’ which seems, however, to be covered by the broader terms ‘com-
plicity or participation’. The Working Group wished to ensure, by adding a
footnote to its draft of Article 4(1), that the term ‘complicity’ also includes
the concept of ‘concealment’ after torture has been committed. Article 4(1) is
closely related to the definition of torture in Article 1(1) which includes instiga-
tion, consent and acquiescence. In other words, the terms ‘complicity or partici-
pation’ must be interpreted to include incitement, instigation, superior orders

⁶⁶ A/56/44, §§ 144–193, § 22.

⁶⁷ On the travaux préparatoires see above, 2.
⁶⁸ See e.g. the concluding observations on the third report of the Ukraine in CAT/C/SR.287,
§ 28. See also Ingelse, 340 et seq.

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 248 United Nations Convention Against Torture
or instructions, consent, acquiescence and concealment.⁶⁹ This broad inter-
pretation was also confirmed by the Committee in the State reporting proced-
ure.⁷⁰ Any involvement of doctors, even only for the purpose of ensuring that
the victim does not die or suffer physical injuries, is of course punishable as a
form of participation.⁷¹ Superior officials are also guilty of complicity (acquies-
cence) in torture if they knew or should have known that torture is practised by
personnel under their command.⁷² Finally, for raising criminal responsibility,
an act of torture does not need to be committed, since the offence of torture
shall also apply to an attempt to commit torture. If law enforcement officers
refuse to follow a respective order by a superior and do not apply torture meth-
ods, the superior officer is nevertheless guilty of an attempt to commit torture
and shall be punished accordingly.⁷³
48 Article 4(1) requires every State party to ‘ensure that all acts of torture
are offences under its criminal law’. According to Burgers and Danelius, this
‘does not mean that there must be a specific, separate offence corresponding
to torture under article 1 of the Convention’.⁷⁴ This interpretation has given
rise to much confusion, and many States parties argued that torture was in
any way included in their traditional offences, such as ill-treatment or inflic-
tion of bodily harm. Although Burgers and Danelius were of the opinion that
each State party was free to decide whether to deal with torture as a separate
offence or to include acts of torture in one or more wider categories of offences,
they insisted that ‘whatever solution is adopted, the criminal law must cover
all cases falling within the definition in article 1 of the Convention’.⁷⁵ Practice
shows, however, that it is difficult, if not impossible, to cover all the different
aspects included in the definition of torture under Article 1 without explicitly
incorporating this definition in the domestic criminal code. Moreover, it is
difficult to establish universal jurisdiction without a clear definition of the
crime of torture in accordance with the Convention.

⁶⁹ See also Burgers/Danelius, 130; Rodley and Pollard, (2006) 2 EHRLR 115–141.
⁷⁰ See above, 3.1. cf. also Ingelse, 340 with further references.
⁷¹ See e.g. CAT/C/SR.77, § 28; CAT/C/SR.105, § 5.
⁷² On the concept of acquiescence see also the case of Hajrizi Dzemajl et al. v. Yugoslavia,
No. 161/2000, § 9.2 and 10. See below, Art.16, 2.2.
⁷³ See e.g. the well-known case of the deputy director of the Frankfurt police, who ordered the
application of torture for the purpose of extracting information from a kidnapper on the where-
abouts of a kidnapped child: see Judgment against Wolfgang Daschner of 20 December 2004 of the
27th penal chamber, Landgericht (court) Frankfurt am Main, NJW 2005, 692.
⁷⁴ Burgers/Danelius, 129.
⁷⁵ Ibid.

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 Article 4. Obligation to Criminalize Torture 249
49 This experience is also reflected in the practice of the Committee in
the State reporting procedure.⁷⁶ After initial hesitation, the Committee
increasingly urged States to include an explicit definition of torture in their
national criminal legislation. In the concluding observations on the report of
the Russian Federation, the Committee for the first time made clear that the
inclusion of torture as an offence in accordance with the definition in Article 1
was legally required by Article 4.⁷⁷ Although the Committee does not go as
far as requiring that Article 1 must be reproduced verbatim in domestic crim-
inal law, such full incorporation is nevertheless advisable in order to avoid
difficult problems of interpretation and implementation. Needless to say, this
conclusion does not apply to the ‘lawful sanctions’ clause in the last sentence
of Article 1(1).

4.2 Interpretation of Article 4(2)

50 The text of Article 4(2) is based on a UK proposal which replaced a simi-
lar wording in the original Swedish draft.⁷⁸ The words ‘punishable by severe
penalties’, which were taken from Article 2 of the Hague Convention for the
Suppression of Unlawful Seizure of Aircraft of 1970⁷⁹ and Article 3 of the
Montreal Convention for the Suppression of Unlawful Acts against the Safety
of Civil Aviation of 1971⁸⁰ were replaced by ‘appropriate penalties which take
into account their grave nature’. This formulation is taken verbatim from
Article 2(2) of the New York Convention on the Prevention and Punishment
of Crimes Against Internationally Protected Persons of 1973⁸¹ and Article 2 of
the International Convention Against the Taking of Hostages of 1979.⁸²
51 In our opinion, there is no significant difference between ‘severe pen-
alties’ and ‘appropriate penalties which take into account their grave nature’.
The provision of Article 4(2) makes clear that torture is one of the most severe
human rights violations that requires a punishment severe enough to have a
deterrent effect. This means that torture should not be a misdemeanour, but a
crime similar to the ‘most serious offences under the domestic legal system’.⁸³
From a human rights perspective, an appropriate penalty is, therefore, neither

⁷⁶ See above, 3.1 Ingelse, 337 et seq.

⁷⁷ See CAT/C/SR.268, § 2 and above, 3.1.
⁷⁸ See above, 2.
⁷⁹ 860 UNTS 105; 10 ILM 133 (1971).
⁸⁰ 974 UNTS 177; 10 ILM 1151 (1971).
⁸¹ 1035 UNTS 167, 13 ILM 41 (1974).
⁸² 1316 UNTS 205; 18 ILM 1456 (1979).
⁸³ Cf. Burgers/Danelius, 129.

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 250 United Nations Convention Against Torture
a fine nor short-term imprisonment, but also not life imprisonment, corporal
or capital punishment. In the reporting procedure, the Committee did not
arrive at a clear determination what would constitute an appropriate punish-
ment. After a careful examination of the Committee’s concluding observa-
tions and the opinions of individual members, Chris Ingelse concluded that a
‘custodial sentence of between six and twenty years’ would best correspond to
the Committee’s interpretation of the requirements of Article 4(2).⁸⁴ If civil
servants have been found guilty of the crime of torture, the granting of par-
dons or amnesties also amounts to a violation of Article 4(2).⁸⁵

4.3 Can a Violation of Article 4 be Invoked by an Individual

Complaint of Torture Victims?
52 The Convention contains various State obligations aimed at prevent-
ing torture and punishing the perpetrators of torture. From the text of these
provisions, it is not always clear whether they also provide subjective rights
which can be invoked by victims of torture in the individual complaints pro-
cedure. This question is particularly difficult to answer in relation to the obli-
gation of States to punish perpetrators, because human rights law, in principle,
does not recognize a subjective right of victims to have perpetrators of human
rights violations punished by criminal law. In the landmark decision of Hugo
Rodriguez v. Uruguay, which concerned a victim of torture under the former
military regime, who submitted a complaint against the later civilian regime
for having enacted in 1986 a comprehensive amnesty law, the Human Rights
Committee noted with deep concern that the adoption of this law effectively
excluded the possibility of investigations into past human rights abuses and
thereby prevented the State party from discharging its responsibility to pro-
vide effective remedies to the victims of those abuses and, consequently, found
a violation of Article 7, in conjunction with Article 2(3) CCPR.⁸⁶ Similarly,
the CAT Committee, in the well known Argentine ‘Punto Final’ cases, held in
an obiter dictum that Argentina is ‘morally bound to provide a remedy to vic-
tims of torture and to their dependants’, and that the enactment of the ‘Punto
Final’ and Due Obedience Acts only shortly before the entry into force of CAT
was ‘incompatible with the spirit and purpose of the Convention’.⁸⁷

⁸⁴ Ingelse, 342.
⁸⁵ See Guridi v. Spain, No. 212/2002, § 6.7. See above, 3.2.
⁸⁶ See No. 322/1988, §§ 12.3 and 12.4; Nowak, CCPR-Commentary, 66 and 180.
⁸⁷ Nos. 1, 2 & 3/1988, § 9. For the facts see above, Art. 2 , para. 43.

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 Article 4. Obligation to Criminalize Torture 251
53 In a number of individual complaints against Tunisia, in which the appli-
cants had claimed violations of various articles of the Convention, including
Article 4, on the grounds that Tunisia had failed to criminalize torture and to
take any action to investigate their allegations of torture and to bring the per-
petrators to justice, the CAT Committee found violations of Articles 12 and
13 CAT. But it avoided ruling on the alleged violation of Article 4 and other
provisions invoked by simply stating that ‘there are insufficient elements to
make a finding on the alleged violation of other provisions of the Convention
raised by the complainant at the time of adoption of this decision’.⁸⁸
54 But in the case of Guridi v. Spain, the Committee found for the first
time a violation of Article 4(2).⁸⁹ It ruled that pardoning civil guards, who had
been found guilty of torture by an independent court, violated the victim’s
rights under Article 4(2), stating that, ‘in the circumstances of the present
case, the imposition of lighter penalties and the granting of pardons to the civil
guards are incompatible with the duty to impose appropriate punishment’.⁹⁰
55 Although the decision lacks a proper reasoning, we agree with the broad
interpretation of the victim requirement by the Committee. In view of con-
temporary human rights theory,⁹¹ including the need to fight impunity and the
recognition, by the UN Commission on Human Rights, of a right of victims
of gross human rights violations to a remedy and reparation,⁹² the argument
of the Spanish Government that the interests of the victims were unaffected
by the decisions of Government authorities in relation to perpetrators of gross
violations of human rights, including torture, is no longer acceptable.
56 The object and purpose of the CAT is to make the struggle against
torture and cruel, inhuman or degrading treatment more effective by estab-
lishing additional State obligations to prevent torture and cruel, inhuman or
degrading treatment, to assist victims of torture and to punish acts of torture.
In addition to the reporting procedure, CAT explicitly envisages complaints
and inquiry procedures. States parties who made the respective optional dec-
laration under Article 22(1) CAT thereby recognize the competence of the

⁸⁸ Thabti v. Tunisia, No. 187/2001, § 10.9; Abdelli v. Tunisia, No. 188/2001, § 10.9; Ltaief v.
Tunisia, No. 189/2001, § 10.9. For a detailed description of the facts see above, 3.2.
⁸⁹ No. 212/2002, § 6.7.
⁹⁰ Ibid, § 6.7.
⁹¹ See e.g. Nowak, Introduction, 63 et seq.
⁹² See the so-called van Boven/Bassiouni Guidelines (‘United Nations Basic Principles and
Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law’), adopted in GA
Res. 60/147 of 16 December 2005. See also Nowak, in Coomans et al.; Nowak, in Ulrich et al.; de
Feyter et al.

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