GUIDE ON ANTI-TORTURE LEGISLATION 3. The Convention requires States parties to explicitly affirm the absolute prohibition of torture; the defence of superior orders is to be excluded Under the Convention, torture is never justified: no state of war or emergency, internal political instability or any other threats to the State can be invoked as a justification for torture.30 Defences of military or superior orders may also never be raised in a criminal prosecution as a justification for torture per article 2(3) of the Convention. This norm is fully supported in international law. The prohibition of justifications for torture is also explicit in regional human rights treaties, 31 the UN Human Rights Committee has held that the same principle holds true for the prohibition of torture in the International Covenant on Civil and Political Rights,32 and international criminal law severely limits the individual defence of superior orders. 33 Prohibiting defences for torture is an important normative element for protecting persons at risk: disallowing defences in anti-torture legislation can be a strong deterrent. 34 States are advised to review their criminal code to confirm it contains no general defences that will conflict with this prohibition. 35 36 37 Australia provides in section 274.4 of the criminal code that “It is not a defence in a proceeding for an offence under this Division that: (a) the conduct constituting the offence was done out of necessity arising from the existence of a state of war, a threat of war, internal political instability, a public emergency or any other exceptional circumstance; or (b) in engaging in the conduct constituting the offence the accused acted under orders of a superior officer or public authority (…). 36 Canada’s criminal code similarly states that “it is no defence to a charge under this section that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject-matter of the charge or that the act or omission is alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability or any other public emergency.”37 Articles 2§2 and 2§3 UNCAT; See also CAT General Comment N°2, op. cit. 1, §§ 5 and 26; See also UN Committee against Torture, Concluding observations of the Committee against Torture on the United States of America (25 July 2006), UN Doc. CAT/C/USA/CO/2, §14. 30 Inter-American Convention to Prevent and Punish Torture (entered into force 28 February 1987), OAS Treaty Series, N°67 (1985), articles 4 and 5; European Convention on Human Rights (entered into force on 3 May 1953), article 3 (allows no exception); League of Arab States, Arab Charter on Human Rights (adopted 15 September 1994) Article 4. 31 CCPR, General Comment N°20, Article 7 in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies (29 July 1994), UN Doc. HRI/GEN/1/Rev.1. 32 33 Rome Statute of the International Criminal Court (entered into force on 1 July 2002), A/CONF.183/9 of 17 July 1998 and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002, article 33. J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (M. Nijhoff, 1988), p. 124. 34 Association for the Prevention of Torture, Report: Experiences, Advice and Good Practices – Key Isses in Drafting Anti-Torture Legislation, Expert Meeting 2–3 November 2012 (2013), p. 45. 35 36 Australia Criminal Code Act 1995, as amended by the Crimes Legislation Amendment (Torture Prohibition and death Penalty Abolition) Act 2010, section 274.4, available at https://www.comlaw.gov.au/Details/ C2010A00037 (last accessed February 2016). 37 Canada criminal code, op. cit. 18, article 269.1(3). 17