The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted in 1984 and entered into force on 26 June 1987. It now has 176 States parties. This page sets out what it prohibits, and what four states have actually accepted under it.
What the Convention prohibits
The Convention draws a line between two things. Designations on this site say which of the two they rest on, because a state should not be able to answer a finding of ill-treatment by denying torture.
Article 1(1), torture. “For the purposes of this Convention, the term ‘torture’ means 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.”
Article 16(1), other cruel, inhuman or degrading treatment. “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
Article 3, the prohibition on sending a person into danger, is set out in full on the Refoulement page.
The one fact that changes what a person can do
Article 22 lets an individual take a complaint to the Committee against Torture. It only works against a state that has accepted it. Article 21, which several states accepted instead, allows complaints only between governments and is of no use to a person.
| State | Individual complaint to the Committee | Basis |
|---|---|---|
| United States | Not available | Article 21 only, on ratification 21 October 1994, with a reciprocity understanding. |
| United Kingdom | Not available | Article 21 only, on ratification 8 December 1988, conditioned on the complaining state having made its own article 21 declaration at least twelve months earlier. |
| Australia | Available | Articles 21 and 22 both, 28 January 1993. |
| Germany | Available | Articles 21 and 22 both, 19 October 2001, eleven years after ratification. |
United States
Signed 18 April 1988. Ratified 21 October 1994. In force for the United States 20 November 1994.
What it carved out
Two reservations, five understandings and a declaration. Three bear directly on the work documented on this site.
Article 16 accepted “only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”
On article 1, an act must be “specifically intended to inflict severe physical or mental pain or suffering.”
On article 3, the phrase “substantial grounds for believing that he would be in danger of being subjected to torture” understood to mean “if it is more likely than not that he would be tortured.”
The United States also declared that articles 1 through 16 are not self-executing.
Optional Protocol
Not signed and not ratified. There is no National Preventive Mechanism.
Torture offence
18 U.S.C. 2340A, reaching torture committed outside the United States, with the definition at 18 U.S.C. 2340(1).
Provisions on return
Foreign Affairs Reform and Restructuring Act of 1998, section 2242, Public Law 105-277, 112 Stat. 2681-822, set out as a note to 8 U.S.C. 1231:
“It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”
Implementing regulations: 8 C.F.R. 208.16 and 1208.16, withholding of removal under the Convention; 208.17 and 1208.17, deferral of removal; 208.18 and 1208.18, implementation of the Convention.
United Kingdom
Signed 15 March 1985. Ratified 8 December 1988. In force for the United Kingdom 7 January 1989.
What it carved out
Nothing. The United Kingdom filed no reservation and no interpretative declaration at ratification. Its instrument carried a territorial specification, the article 21 declaration, and a statement reacting to another state’s declaration.
Optional Protocol
Ratified 10 December 2003. National Preventive Mechanism designated 31 March 2009, now comprising 21 inspection bodies.
Torture offence
Criminal Justice Act 1988, section 134(1): “A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.”
Provisions on return
Article 3 of the European Convention on Human Rights has effect in domestic law through the Human Rights Act 1998, Schedule 1. Section 6(1) provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right.” Soering and Chahal, the two judgments that applied article 3 to transfers, were both decided against the United Kingdom.
Australia
Signed 10 December 1985. Ratified 8 August 1989. In force for Australia 7 September 1989.
What it carved out
Nothing. Australia filed no reservation and no interpretative declaration, at signature or at ratification.
Optional Protocol
Ratified 21 December 2017, with an article 24 declaration postponing the National Preventive Mechanism obligations. The deadline was extended to 20 January 2023 and was not met.
The United Nations Subcommittee on Prevention of Torture suspended its visit to Australia on 23 October 2022 and terminated it on 20 February 2023. The Chair stated there was “no alternative but to terminate the visit as the issue of unrestricted access to all places of deprivation of liberty in two states has not yet been resolved.”
Torture offence
Criminal Code Act 1995, Division 274, section 274.2, carrying 20 years imprisonment. It replaced the Crimes (Torture) Act 1988, repealed in 2010.
Provisions on return
Complementary protection at Migration Act 1958, section 36(2)(aa), where there is “a real risk that the non-citizen will suffer significant harm”, defined at section 36(2A) to include torture and cruel, inhuman or degrading treatment or punishment.
Section 197C(1) provides that, for the purposes of the removal duty in section 198, “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.” The Committee against Torture recommended that Australia consider repealing section 197C(1) and (2). CAT/C/AUS/CO/6, 5 December 2022, paragraphs 25(b) and 26(c).
Germany
Signed 13 October 1986. Ratified 1 October 1990. In force for Germany 31 October 1990.
What it carved out
An interpretative declaration on article 3: “This provision prohibits the transfer of a person directly to a State where this person is exposed to a concrete danger of being subjected to torture.”
Optional Protocol
In force for Germany 3 January 2009. The federal National Agency for the Prevention of Torture was established by ministerial decree of 20 November 2008. The commission covering the Laender rests on an interstate treaty and began visiting in 2010.
Torture offence
There is no standalone torture offence in the ordinary Criminal Code. Torture is criminalised in the Code of Crimes against International Law of 2002, as a crime against humanity at section 7(1) no. 5 and as a war crime at section 8(1) no. 3. The Committee against Torture recorded its concern about the absence of a general offence in CAT/C/DEU/CO/6, 11 July 2019, paragraph 9. Basic Law article 104(1) provides that persons in custody “may not be subjected to mental or physical mistreatment.”
Provisions on return
Residence Act section 60(2) bars deportation to a state where the person faces serious harm as defined in Asylum Act section 4(1), which includes “torture or inhuman or degrading treatment or punishment”. Section 60(5) bars deportation where the European Convention on Human Rights prohibits it.
The European Union
The Union is not a party to the Convention and cannot become one. Article 25(1) opens the Convention for signature “by all States” and article 26 for accession “by all States”. It carries no clause admitting a regional organisation. Every member state is a party in its own right.
- Charter of Fundamental Rights, article 4: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
- Charter article 19(2), on removal, expulsion and extradition, quoted in full on the Refoulement page.
- Directive 2011/95/EU, article 15(b): serious harm includes “torture or inhuman or degrading treatment or punishment of an applicant in the country of origin.”
- Regulation (EU) 2019/125, governing trade with third countries in goods usable for capital punishment or for torture and other ill-treatment.
Sources
- United Nations Treaty Collection, Multilateral Treaties Deposited with the Secretary-General, chapter IV.9, status of the Convention against Torture.
- United Nations Treaty Series volumes 1465, 1520, 1543, 1579, 1830 and 2163.
- Committee against Torture, CAT/C/AUS/CO/6 and CAT/C/DEU/CO/6.
- Office of the High Commissioner for Human Rights, statements of 23 October 2022 and 20 February 2023 on the Subcommittee visit to Australia.
- uscode.house.gov, ecfr.gov, legislation.gov.uk, legislation.gov.au, gesetze-im-internet.de, eur-lex.europa.eu.
The full text of this and every other provision the Coalition relies on is on The laws that protect people from torture.