2
United Nations Convention Against Torture and its Optional Protocol
Torture was practised by many peoples and in various cultures during different historical periods.3 Particular brutal and well documented examples were the practices
of torture against slaves and Christians during Roman times, against criminal suspects during the Middle Ages, against witches by the Roman Catholic inquisition in
Europe, against African slaves in the American hemisphere, and against peoples under
colonial domination of European powers in Africa, Asia, and Latin America. Although
torture, as slavery, was legally abolished in Europe and the American hemisphere during
the eighteenth and nineteenth centuries as a result of the age of Enlightenment,
natural law, humanism, and rationalism, it continued to exist or re-appeared in practice. Most notorious were the systematic and extremely cruel practices of torture
under the totalitarian regimes of Stalinism and National Socialism before and during
World War II.
With the development of international human rights law after World War II, the prohibition of slavery (as well as slave trade and servitude) and torture (as well as cruel,
inhuman or degrading treatment or punishment) soon emerged as two human rights
which were formulated as absolute and non-derogable rights, even in times of war, terrorism, and similar public emergencies threatening the life of the nation. The absolute
prohibition of torture and cruel, inhuman or degrading treatment or punishment can
be found, for instance, in Article 5 UDHR 1948, common Article 3 of the four Geneva
Conventions on Humanitarian Law 1949, Article 3 (together with 15) ECHR 1950,
the UN Standard Minimum Rules for the Treatment of Prisoners 1955 (and the revised
‘Mandela Rules’ of 2015), Article 7 (together with 4) CCPR 1966, Article 5 (together
with 27) ACHR 1969 and Article 5 ACHPR.
Nevertheless, torture continued to be systematically practised in many parts of the
world. Well-known and documented cases during the 1960s and 1970s include the
French practices in Algeria, the Portuguese practices in its former African colonies, the
practices under the Greek military junta, and those under Latin American military dictatorships.4 Increasing reports of torture and massive ill-treatment from many parts of the
world made Amnesty International (AI) launch a worldwide campaign against torture
on Human Rights Day in 1972. Most notorious were the cruel methods of torture practised by the military junta under General Augusto Pinochet Ugarte, who had overthrown
the democratically elected Government of Salvador Allende in Chile on 11 September
1973. The widely documented cases of torture and enforced disappearances in Chile
turned out to be the starting point for a number of far-reaching measures and reforms in
international human rights law. In November 1973, the UN General Assembly expressed
serious concerns about these torture practices and put the question of torture and cruel,
inhuman or degrading treatment or punishment as a standing item on its agenda.5 In
spring 1974, the Human Rights Commission, in a telegram addressed to the Chilean
Government, expressed its concerns about torture which, at that time, constituted an
3
See eg Max Bauer and Franz Helbing, Die Tortur Geschichte der Folter im Kriminalverfahren aller Völker
und Zeiten (Aalen 1973); George Riley Scott, A History of Torture throughout the Ages (Luxor Press 1959); Alec
Mellor, La torture, son histoire, son abolition, sa réapparition au XXème siècle (Maison Mame 1961); Wolfgang
Schild, Von peinlicher Frag. Die Folter als rechtliches Beweisverfahren (Rothenburg odT 2002); Edward Peters,
Torture (2nd expanded edn, University of Pennsylvania Press 1996). For a short overview see Manfred Nowak,
‘Die UNO-Konvention gegen die Folter vom 10 Dezember 1984’ (1985) 12 EuGRZ 109–116.
4
According to AI’s first world survey published in 1973, torture was practised in more than sixty countries.
See AI, Report on Torture (2nd rev edn, Amnesty International 1975).
5
GA Res 3059 (XXVIII) of 2 November 1973; see [1977] Revue Internationale de Droit Pénal 213ff.
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