The Convention and the Committee against Torture: A Complementary Protection Regime for Refugees

International Journal of Refugee Law

Volumn 11, Issue 3, 1999, Pages 479-494

  Gorlick, Brian ^a  

^a UNHCR RegOffBaltic/NordicCountries   (Sweden)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; HUMAN RIGHTS; REFUGEE;

EID: 0033507803     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/11.3.479     Document Type: Article

References (46)

1. Art. 1, 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: UNGA resolution 39/46, 10 Dec. 1984.
2. Hathaway, J.C., 'Fear of Persecution and the Law of Human Rights', Bulletin of Human Rights 91/1, United Nations, New York (1992) at 99-100.
3. The Committee against Torture, established under art. 17 CAT84, took up its duties in Jan. 1988. It is composed of 10 expert members who are elected by State parties to the Convention for four-year terms. The Committee meets two times a year in Geneva. Its sessions can last three weeks and its functions are: to examine State party reports, raise issues of concern and make observations and recommendations; review States and individual complaints in respect of States which have made declarations under arts. 21 and 22; and conduct confidential inquiries where reliable information about the systemic practice of torture in a State party is received pursuant to its authority under art. 20. So far, the art. 20 procedure has been used twice by the Committee, once in respect of Turkey in 1993 and once concerning Egypt in 1996. The Committee undertook a field visit to Turkey, but was refused permission to conduct a field investigation by the Egyptian authorities. The Committee concluded that systematic torture was taking place in both countries. The inter-State complaint procedure under art. 21 has never been used, and given the sensitivities of such a procedure it is unlikely it ever will. For a summary account of the results of the proceedings concerning the inquiry on Turkey and the statement of the Geneva Permanent Representative of Turkey in response to the confidential report of the CAT see 14 Human Rights Law Journal Nos. 11-12, 426-32.
4. The 1951 Convention (CSR51): 189 UNTS 137 entered into force on 22 April 1954. There are presently 138 state parties to the 1951 Convention and/or its 1967 Protocol: 606 UNTS 267. The mandate of the Office of the UNHCR derives from its Statute, which is appended to UNGA res. 428 (V), 14 Dec. 1950. In brief, UNHCR is responsible for providing international protection and assistance to refugees and for seeking permanent solutions to the problems of refugees. Up-to-date lists of States party to the international refugee treaties and other international human rights instruments can be found at www.unhcr.ch/refworld.
5. The 1951 Convention (CSR51): 189 UNTS 137 entered into force on 22 April 1954. There are presently 138 state parties to the 1951 Convention and/or its 1967 Protocol: 606 UNTS 267. The mandate of the Office of the UNHCR derives from its Statute, which is appended to UNGA res. 428 (V), 14 Dec. 1950. In brief, UNHCR is responsible for providing international protection and assistance to refugees and for seeking permanent solutions to the problems of refugees. Up-to-date lists of States party to the international refugee treaties and other international human rights instruments can be found at www.unhcr.ch/refworld.
6. Art. 33 CSR51 prohibits the expulsion or return (refoulement) of a refugee: '1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.'
7. Art. 1F CSR51 provides that the provisions of the Convention shall not apply to any person whom there are serious reasons to consider has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; or has committed a serious non-political crime outside the country of refuge prior to admission to that country as a refugee; or has been guilty of acts contrary to the purposes and principles of the United Nations. See Goodwin-Gill, G.S., The Refugee in International Law, 2nd ed., Clarendon Press, Oxford, (1996), ch. 3.
8. The relevance of CAT84 and the work of the CAT in relation to refugee protection have not been lost on UNHCR, which issued an internal memorandum on the Committee in 1998. It summarises UNHCR's interest in this international human rights mechanism as follows: 'As a rule, UNHCR's interaction with the human rights mechanisms generally, and the torture provisions in particular, should be linked to its mandate to protect from refoulement, all bona fide refugees and other individuals "of concern" to the Office. Where the treaty mechanisms and the torture provisions can be used to prevent the refoulement of bona fide refugees or other cases of concern, then UNHCR will have a legitimate interest in those alternative and parallel systems.' (IOM/FOM Nos. 57/98 &.61/98, 28 Aug. 1998, para. 1.9; on file with the author).
9. Arts. 4-9 CAT84. R v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3) [1999] 2 W.L.R. 827; Goodwin-Gill, G.S., 'Crime in International Law: Obligations Erga Omnes and the Duty to Prosecute', in Goodwin-Gill G.S. & Talmon, S., eds., The Reality of International Law: Essays in Honour oflan Brownlie, Clarendon Press, Oxford, 1999, 199-223.
10. Rule 108, para. 9. For the CAT 'Rules of Procedure', see UN doc. CAT/C/3/Rev.1, 29 Aug. 1989.
11. States which have signed (s) or are parties to the Convention against Torture through ratification, accession or succession at 26 February 1999 are: Afghanistan, Albania, Algeria, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bangladesh, Bahrain, Belarus, Belgium (s), Belize, Benin, Bolivia (s), Bosnia and Herzegovina, Brazil, Bulgaria, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Chad, Chile, China, Colombia, Costa Rica, Cote d'Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Dominican Republic (s), Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Gabon (s), Gambia (s), Georgia, Germany, Greece, Guatemala, Guinea, Guyana, Honduras, Hungary, Iceland, India (s), Indonesia (s), Ireland (s), Israel, Italy, Jordan, Kazakhstan, Kenya, Republic of Korea, Kuwait, Kyrgyzstan, Latvia, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Malawi, Malta, The former Yugoslav Republic of Macedonia, Mauritius, Mexico, Republic of Moldova, Monaco, Morocco, Namibia, Nepal, Netherlands, New Zealand, Nicaragua (s), Niger, Nigeria (s), Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Russian Federation, Saudi Arabia, Senegal, Seychelles, Sierra Leone (s), Slovakia, Slovenia, Somalia, South Africa (s), Spain, Sri Lanka, Sudan (s), Sweden, Switzerland, Tajikistan, Togo, Tunisia, Turkey, Uganda, Ukraine, United Kingdom, United States of America, Uruguay, Uzbekistan, Venezuela, Yemen, Yugoslavia (Serbia and Montenegro).
12. States which have made declarations under art. 22 CAT84 at 22 Jan. 1999 are: Algeria, Argentina, Australia, Austria, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Finland, France, Greece, Hungary, Iceland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal, Russian Federation, Senegal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Togo, Tunisia, Turkey, Uruguay, Venezuela, Yugoslavia.
13. The first art. 22 communication was submitted to the CAT in Nov. 1990, and the Committee had received 142 communications by 1 Sept. 1999. Of that number, 28 communications were deemed inadmissible, 38 were discontinued, 42 communications were still pending, and the Committee had finalised and expressed its views on 34. Around 90% of the article 22 communications concerned allegations of a breach of article 3. Figures provided by Dr. Bent Sorensen, one of two remaining original members of the Committee, at the VIII International Symposium on Torture held at New Delhi, 25 Sept. 1999.
14. See Andrysek, O., 'Gaps in International Protection and the Potential for Redress through Individual Complaints Procedures', 9 IJRL 407-10 (1997).
15. In finding a violation of art. 3 CAT84 in its first decision concerning a rejected asylum seeker, Mutombo v. Switzerland, the Committee relied on the objective test stipulated in art. 3(2), namely, the existence of 'a consistent pattern of gross, flagrant or mass violations of human rights' in Zaire. In particular, the Committee referred to relevant reports of the Special Rapporteurs and Working Groups established by the UN Commission on Human Rights.
16. CAT General Comment 1, 21 Nov. 1997, available on the Office of the UN High Commissioner for Human Rights website: http://www.unhchr.ch
17. Communication No. 13/1993; text in 7 IJRL 322 (1995). In addition to the cases discussed below, see also Communications No. 97/1997 (Orhan Ayas v. Sweden) and No. 91/1997 (A v. Netherlands): 11 IJRL 202, 217 (1999).
18. Communication No. 13/1993; text in 7 IJRL 322 (1995). In addition to the cases discussed below, see also Communications No. 97/1997 (Orhan Ayas v. Sweden) and No. 91/1997 (A v. Netherlands): 11 IJRL 202, 217 (1999).
19. See Communication No. 15/1994.
20. Communication No. 21/1995; text in 8 IJRL 440 (1996).
21. Communication No. 34/1995.
22. In this case the Committee noted that its conclusions concerning a breach of art. 3 should not impact on a decision to grant refugee status by a competent authority. However, apart from the fact that the CAT has no legal authority to take a decision on the grant or refusal of asylum claims, it is logical that a positive finding by the Committee in respect of an art. 3 CAT84 communication would be a relevant consideration in granting asylum, refugee status, or other protection to an individual who is the subject of the communication and wishes to be considered a refugee.
23. Communication No. 43/1996.
24. Communication No. 41/1996, views of 8 May 1996; text in 8 IJRL 651 (1996).
25. Communication No. 39/1996.
26. Communication No. 88/97; text in 11 IJRL 210 (1999).
27. Communication No. 101/1997.
28. Communication No. 120/1998.
29. As noted above, the 1951 Convention makes no distinctions between persecutors in the assessment of claims to refugee status. See also para. 65, UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status: although 'persecution is normally related to action by national authorities, it may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned.' The Handbook suggests the following example: 'A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.'
30. This point is made by Manfred Nowak in 'Committee against Torture and Prohibition of Refoulement', 14 Neth. Q.H.R. 435 (1996). See also Communication Nos. 17 and 18/1994, 22, 23, 24, 26, 30, 31, 32 and 35/1995.
31. Communication No. 32/1995.
32. Communication No. 35/1995.
33. Summary Report of Expert Workshop on Human Rights and Refugees, 'Human Rights Violations, Persecution and Non-state Agents', UNHCR Athens, 18-20 Dec. 1998 (on file with the author).
34. Ibid.
35. Ibid.
36. For a detailed explanation of the practice of reviewing State party reports, see the CAT rules of procedure, above n. 9.
37. See UN doc. CAT/C/SR.180, 26 Apr. 1994, at 5.
38. UN doc. CAT/C/12/Add.4.
39. For a summary of the Committee's 16th session see 8 IJRL 408-12 (1996).
40. UN doc. CAT/C/24/Add.4/Rev.1.
41. UN doc. CAT/C/17/Add.14.
42. UN doc. CAT/C/20/Add.5.
43. UN doc. CAT/C/16/Add.6.
44. UN doc. CAT/C/25/Add.7.
45. UN doc. CAT/C/12/Add.7.
46. UN doc. CAT/C/SR.234 and 235.