82
United Nations Convention Against Torture and its Optional Protocol
‘legislative, administrative, judicial or other measures’ are to be taken to prevent torture
means that there can be other measures than legislative, administrative, or judicial, as the
word ‘or’ indicates.
28 Though the Committee has considered in a general sense which measures
must be taken by States parties to prevent torture, it has equally emphasized that
no exhaustive list exists and obligations to take preventive measures go beyond the
items enumerated specifically in the Convention or in its interpretation.57 Further, as
methods of prevention are continuously evolving, the Committee has explained that
Article 2 provides it with the authority to expand the scope of the measures required
to prevent torture by building on other articles.58 In its Concluding Observations
the Committee has developed a wealth of measures to be comprised the formulation
‘legislative, administrative, judicial or other measures’, some of them with concrete
reference to other articles of the Convention, some of them developed from the broad
understanding of the formulation of Article 2 as an umbrella clause for State obligations to prevent torture.59
3.1.2.1 Criminalization of Torture and Other Legislative Measures
29 The Committee has affirmed that taking effective measures against torture requires
the States parties to ensure the implementation of Convention provisions by providing
for the direct effect of these provisions. This may be by means of the transposition of the
Convention provisions into national provisions or by recognizing the direct effect of the
Convention provisions.60 Recognizing the Convention text only is not sufficient, but rather it must be transposed into clear national provisions and instructions, also in order
to allow the Convention to be directly invoked in Court.61 The Committee has expressed
much approval for those States parties that have adopted a special law to implement
Convention provisions directly.62
30 In particular, States must criminalize torture under its criminal law, in accordance, at
a minimum, with the elements of torture as defined in Articles 1 and 4 of the Convention.63
The Committee has also on many other occasions affirmed the importance of other legislative measures, eg to adopt a definition for terrorist acts and ensure treatment in compliance with the Convention and to ensure that counterterrorism and national security
legislation are in compliance with the Convention,64 to prohibit corporal punishments65
57
CAT/C/GC/2 (n 1) paras 13 and 25. See eg UN Subcommittee on Prevention of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, ‘The approach of the Subcommittee on Prevention
of Torture to the concept of prevention of torture and other cruel, inhuman or degrading treatment or punishment under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment’.
58
59
CAT/C/GC/2 (n 1) para 14.
See above § 18 on Art 2 as umbrella clause.
60
CAT/C/SR.1, para 23; CAT/C/SR.34, para 21; CAT/C/SR.35, para 13; CAT/C/SR.63, paras 33 and 57;
CAT/C/SR.122 (n 56), paras 7, 17 and 29; CAT/C/SR.123, para 25, CAT, ‘Concluding Observations: Mauritania’
(2013) UN Doc CAT/C/MRT/CO/1, para 9; CAT, ‘Concluding Observations: Netherlands’ (2013) UN Doc
CAT/C/NLD/CO/5-6, para 9; CAT, ‘Concluding Observations: New Zealand’ (2015) UN Doc CAT/C/
NZL/CO/6, para 8; CAT, ‘Concluding Observations: Norway’ (2012) UN Doc CAT/C/NOR/CO/6-7, para
6. See also below Art 4.
61
CAT/C/NOR/CO/6-7 (n 60) para 6.
62
CAT/C/SR.16, para 41; CAT/C/SR.46, para 97; CAT/C/SR.111 (n 51) para 28.
63
CAT/C/GC/2 (n 1) para 8. See also below Art 4.
64
CAT, ‘Concluding Observations: Australia’ (2014) UN Doc CAT/C/AUS/CO/4-5, para 14. CAT/C/
MRT/CO/1 (n 60) para 10.
65
CAT, ‘Concluding Observations: Belgium’ (2014) UN Doc CAT/C/BEL/CO/3, para 27.
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