Finding a Fine Balance: The CAT and the Third World’s Dilemma

Historically, the notion that force could be used to derive the truth has often tempted persons to resort to the chair of torture, turning away from Lady Justice. The United Nations Convention against Torture and other Cruel, Inhuman, or Degrading Treatment (CAT) addresses a practice that has existed for centuries. The Romans, among the first to engage in it, employed torture primarily against slaves due to their status as morally inferior beings incapable of telling the truth. Over time, the use of torture to obtain evidence became widespread, especially given the adoption of the Roman legal system by other governments. What triggered an international outcry against torture were the Nazi atrocities during World War II and later instances of it, such as the French use of torture against members of the Algerian National Liberation Front. In light of such contingencies, the protection of human rights was to be the touchstone of the United Nations Charter and the organization itself. Under Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, no law enforcement official could use torture as a means of obtaining evidence.

For further legislation, on December 9, 1975, the United Nations General Assembly passed the non-binding Declaration on the Protection of all Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. On December 8, 1977, the General Assembly made another declaration urging the Commission on Human Rights to draft a convention against torture at its earliest. On December 16, 1983, it instructed the Commission to submit a draft of the convention including provisions for implementation. Following that, the draft was submitted to the General Assembly for consideration in March 1984.  Finally, it came into force on the 26th June, 1987.

Article 1 of the convention outlines the definition of torture as an act that constitutes severe mental or physical pain inflicted intentionally, and involving the insistence or permission of a public official for the purpose of obtaining evidence, punishing or discriminating. Pain that is incidental to another lawful sanction is excluded. Article 2 clarifies that torture is to be absolutely prohibited, despite orders from a superior, public emergency, state of war or other threat. Furthermore, State Parties must take affirmative action to outlaw torture. Article 3 requires State Parties to refrain from expelling or extraditing individuals who may be subjected to torture in another state if the latter’s previous acts point towards a possibility of that occurring. Article 4 instructs State Parties to criminalize acts of torture under their domestic law.

Article 5 takes Article 2 further by prohibiting torture in a territory that is under the effective control of a State Party. If an offender is identified, the State must take him into custody and take the necessary measures that are prescribed under its law or inform the State of which a person is a national citizen, according to Article 6. Under Article 7, if a State Party does not decide to extradite an offender, it must decide the case according to its criminal laws. Article 8 directs State Parties to make offences covering torture a component of extradition and in the absence of an extradition treaty, allows State Parties to use the Convention in its place.

Other obligations of State Parties include the duty to assist other State Parties in criminal proceedings, and the duty to provide information on the prohibition on torture to all law enforcement officials, medical personnel, and public officials. They must periodically review interrogation practices and conditions of detainees to ensure compliance with the Convention and see to it that any evidence extracted as a result of torture is inadmissible. All investigations on instances of torture are to be speedy and impartial. A victim of torture retains the right to complain of the injury suffered by him and receive compensation if the same is proven. In addition to torture, the provisions extend to other cruel, inhuman or degrading acts.

A portion of the Convention consists of procedural rules for its implementation as per the General Assembly’s instruction to the Commission on Human Rights in 1983. Article 17 necessitates the establishment of a Torture Committee consisting of ten experts of ‘high moral standing’ and expertise in human rights law, for inquiring about instances of torture, seeking the cooperation of State Parties for the gathering of information and carrying out legal proceedings in case torture is established. The Committee is to have its own rules of procedure, must make decisions based on the majority vote of present members, and must submit a report to the Secretary-General of UN on measures that have been taken to implement the Convention. Following that, the document not only highlights the definition of torture, the absolute prohibition on it, the mechanism of dealing with non-nationals, and the steps that ensue in case of a violation, but also lays down an elaborate framework of implementation, with the Committee and Secretary-General at the center.

As of today, the Convention has a total of 81 signatories and 158 parties to it. Pakistan became a signatory on 17 April 2008 and ratified the document on 23 June 2010. On the one hand, proponents of the universality of international law such as the World Conference on Human Rights expressed that signatories of international conventions, including the Convention against Torture have an obligation towards implementation. On the other hand, many states claim that international law treaties reflect a ‘Western’ notion of rights that is not sensitive to the cultural and social particularities of Third World countries. Many scholars have argued that the only way to reconcile conflicting views is to encourage cooperation and consensus rather than pushing for forceful imposition.

Most would agree that by ratifying the Convention against Torture, Pakistan expressed intent to take measures to endorse the document and be legally bound by it. In doing so, Pakistan admitted that International law treaties reflect a standard of civility desired in all the nations across the world. The Human Rights Commission of Pakistan also supported Pakistan’s effort by stating that the Convention against Torture is a key Human Rights treaty and ratifying it is a marvelous step towards further progress. Nonetheless, one cannot expect an overnight transformation of the legal system, causing the eradication of torture from all corners of Pakistani society. It must be acknowledged that, though obligated to respect the provisions of the document, Pakistan cannot guarantee the disappearance of torture the same way it cannot promise the complete end to other crimes.

Compliance has an impact on the image of the state in the international sphere and the level of respect it attracts. Reciprocity is another key factor that urges states to provide the kind of treatment they would want to be subjected to. Economic ties and benefits, especially in the case of Third World countries are another reason for compliance. For example, compliance to the Convention against Torture, alongside twenty-six other UN conventions, has been made a prerequisite by the EU for countries that want to benefit from its GSP+ tariff reduction scheme.

In light of the benefits availed to nations that comply with international law, Pakistan could take certain steps to further the efforts against torture. One step is requiring regional bodies that have a common culture, language, and geography with the populace, to uphold, and support the law. Another step is to prevent ambiguities from rendering the law ineffective by offering clarifications. In the meantime, the international and national community should acknowledge the determination with which a relatively young nation is trying to grapple with age-old practices and offer assistance in the process to catalyze it. The key to alleviating torture lies in finding a fine balance between incorporating international law effectively in the local system while keeping in mind the limitations faced by Pakistan with respect to the socio-cultural context in which it developed.


The writer is currently pursuing her B.A. LLB degree at the Lahore University of Management Sciences and is an intern at the Research Society of International Law, Pakistan.

Author: Amina Khalid

The writer is currently pursuing her B.A. LLB degree at the Lahore University Management Sciences and is an intern at the Research Society of International Law,