Article 2. Obligation to Prevent Torture
93
non-derogation clause, there was little discussion during the drafting of this provision.
Although the French delegation wished to delete the reference to internal political instability because of its unclear meaning in international law,159 this phrase remained in
the final text. But the different examples are not exhaustive and only serve the purpose of
illustrating what is meant by exceptional circumstances.160
61 Although Article 2(2) does not use the term ‘derogation’, its purpose is clearly to
prohibit any derogation which might justify torture. Article 2(2) follows in this respect
the examples of regional human rights treaties, such as Article 15(1) ECHR (‘war or other
public emergency threatening the life of the nation’) and Article 27 ACHR (‘war, public
danger, or other emergency that threatens the independence or security of a State Party’),
whereas Article 4(1) CCPR only speaks of a ‘public emergency which threatens the life
of the nation’ without giving any examples. Since Article 2(2) CAT, in contrast to Article
4(1) CCPR, does not authorize but prohibit any derogation, the scope of application of
the terms ‘exceptional circumstances’ or ‘any other public emergency’ is not relevant and,
therefore, only of a declaratory nature.
62 The Committee has confirmed repeatedly that no exceptional circumstances whatsoever may be invoked by States parties to justify acts of torture, including political instability, terrorist acts, violent crime, or armed conflict.161 Referencing its statement made
in relation to the September 11, 2001 attacks, the Committee also specified in its General
Comment No. 2 that Article 2 obligations, as well as Articles 15 and 16 are provisions
that ‘must be observed in all circumstances’.162 In this respect, the legal opinion of the
Bush administration, as illustrated in the infamous ‘Bybee Memorandum’ of 1 August
2002, which implies that outside the territory of the United States acts of torture in the
context of the ‘war on terror’ might be justified as an act of ‘self-defence’,163 clearly contradicts the obligation of the United States under Article 2(2) CAT.
63 The Committee has repeatedly recommended to States parties to introduce in its
legislation that no exceptional circumstances may be invoked as a justification for torture.164 The Committee has also absolutely rejected ‘any efforts by States to justify torture
and ill-treatment as a means to protect public safety or avert emergencies . . .’ and ‘any
religious or traditional justification that would violate this absolute prohibition’.165 It has
also emphasized that amnesties or all other obstacles to prompt and effective prosecution
as well as punishment of perpetrators violate the principle of non-derogability.166
64 In the inquiry procedure under Article 20 CAT, the Committee reminded the
Government of Egypt of its obligations under Article 2(2) notwithstanding its legitimate efforts to combat terrorism. In this connection, the Government was urged to
160
See E/CN.4/1314 (n 6) para 54.
See also Boulesbaa (n 26) 79.
CAT/C/GC/2 (n 1) para 5; CAT/C/MDG/CO1 (n 82) para 8.
162
CAT/C/GC/2 (n 1) para 6. See statement of 22 November 2001 in connection with the events of 11
September, A/57/44, paras 17–18.
163
See US Department of Justice, Office of Legal Counsel, Memorandum for Alberto R Gonzales, Counsel
to the President, dated 1 August 2002 (the ‘Bybee Memorandum’) 2ff cf Manfred Nowak, ‘What Practices
Constitute Torture? US and UN Standards’ (2006) 28 Human Rights Quarterly 809. See also eg Louis-
Philippe F Rouillard, ‘Misinterpreting the Prohibition of Torture under International Law: The Office of the
Legal Counsel Memorandum’ (2005) 21(1) Am U Int’l L Rev 9. See also Robert K Goldman, ‘Trivializing
Torture: The Office of Legal Counsel’s 2002 Opinion Letter and International Law Against Torture’ (2004)
12(1) Human Rights Brief 3.
164
CAT/C/MUS/CO/3 (n 73) para 9; CAT/C/RWA/CO/1 (n 69) para 9.
165
CAT/C/GC/2 (n 1) para 2; CAT/C/MDG/CO1 (n 82) para 11.
166
CAT/C/GC/2 (n 1) para 5. Also see CAT/C/SEN/CO/3 (n 93) para 9.
159
161
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