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Council of Europe Group of Specialists on Human Rights and the Fight against Terrorism 29-31 March 2006 Statement by the High Commissioner
29 March 2006
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I am grateful for the opportunity to contribute, through my representative, to the meeting of the Group of Specialists as you address some of the challenging human rights issues raised in the context of the fight against terrorism.
It is clear that a discussion of these practices would be unnecessary if the absolute ban on torture and other cruel, inhuman or degrading treatment or punishment were fully respected.
Yet the absolute prohibition on torture is increasingly challenged in the context of counter-terrorism. The reality is that many States continue to engage in torture and other ill-treatment, increasingly in the name of the fight against terrorism, and often in a systematic and widespread manner. Others have returned persons suspected of engaging in terrorist activities to countries where they face a real risk of torture, thereby violating the obligation of non-refoulement. Some States have also engaged in the dubious practice of seeking diplomatic assurances that torture and other cruel, inhuman or degrading treatment or punishment will not be inflicted on an individual suspect who is transferred to a receiving State. At the same time, the wide range of legal and practical safeguards available to prevent torture – such as regular and independent monitoring of detention centres - is often disregarded. Together, these practices have a corrosive effect on the rule of law and human rights, including the global ban on torture.
All States have an obligation to make every effort to prevent torture and other cruel, inhuman or degrading treatment or punishment from taking place and to protect individuals from exposure to such illegal practices. International law requires that the prohibition on torture be ensured through active measures, including by investigating alleged breaches of the UN Convention against Torture. This means that a State must also investigate allegations where there is credible information that individuals are being transported by or through a State to a place where they face a real risk of torture.
You have already engaged in a rich discussion on the possibility of establishing criteria to guide the practice of seeking diplomatic assurances, and many have already identified the flaws in this approach. I strongly share the view that diplomatic assurances do not work as they do not provide adequate protection against torture and ill-treatment, nor do they, by any means, nullify the obligation of non-refoulement.
To begin, it is understood that diplomatic assurances would be sought only after an assessment has been made that there is a risk of torture in the receiving State. If there is no risk of torture in a particular case, they are unnecessary and redundant. It should be clear that diplomatic assurances cannot replace a State’s obligation of non-refoulement in these circumstances, either in fact or in law.
Second, while some have suggested the establishment of post-return monitoring mechanisms as a means for removing the risk of torture and ill-treatment, we know through the experience of international monitoring bodies and experts that this is unlikely to be an effective means for prevention.
Third, the use of diplomatic assurances basically creates a two-class system whereby special bilateral protection and monitoring would be provided to some while the plight of many other detainees is ignored.
In most cases, assurances are concluded between States which are party to binding international and regional treaties which prohibit torture and cruel, inhuman or degrading treatment or punishment and refoulement to such practices. Ad-hoc agreements concluded outside the international human rights legal framework threaten to weaken this system and erode the human rights principles in which it is firmly grounded. Efforts should instead focus on the full implementation of international human rights obligations through existing structures.
Efforts to draft minimum standards for the use of diplomatic assurances would not result in increased protection for those subject to torture and cruel, inhuman or degrading treatment or punishment. Rather than developing criteria to regulate such practices, national and international efforts to eradicate torture must focus first and foremost on prevention, including through the establishment of systems of regular visits, by independent international and national bodies, of places where people are deprived of their liberty.
The Optional Protocol to the Convention against Torture sets out clear criteria in this regard. Where a State has not accepted independent monitoring of places of detention within its jurisdiction, in my view, it cannot give a credible assurance that it will protect an individual against the risk of torture.
In the face of the difficult challenges posed by terrorism, human security objectives are best achieved through an adherence to the rule of law and respect for human rights.
All States should be encouraged to ratify the UN Convention against Torture and its Optional Protocol as an important practical measure of good faith and meaningful commitment to preventing torture and ill-treatment, and protecting the human rights of those within their jurisdiction.
It is clear that a discussion of these practices would be unnecessary if the absolute ban on torture and other cruel, inhuman or degrading treatment or punishment were fully respected.
Yet the absolute prohibition on torture is increasingly challenged in the context of counter-terrorism. The reality is that many States continue to engage in torture and other ill-treatment, increasingly in the name of the fight against terrorism, and often in a systematic and widespread manner. Others have returned persons suspected of engaging in terrorist activities to countries where they face a real risk of torture, thereby violating the obligation of non-refoulement. Some States have also engaged in the dubious practice of seeking diplomatic assurances that torture and other cruel, inhuman or degrading treatment or punishment will not be inflicted on an individual suspect who is transferred to a receiving State. At the same time, the wide range of legal and practical safeguards available to prevent torture – such as regular and independent monitoring of detention centres - is often disregarded. Together, these practices have a corrosive effect on the rule of law and human rights, including the global ban on torture.
All States have an obligation to make every effort to prevent torture and other cruel, inhuman or degrading treatment or punishment from taking place and to protect individuals from exposure to such illegal practices. International law requires that the prohibition on torture be ensured through active measures, including by investigating alleged breaches of the UN Convention against Torture. This means that a State must also investigate allegations where there is credible information that individuals are being transported by or through a State to a place where they face a real risk of torture.
You have already engaged in a rich discussion on the possibility of establishing criteria to guide the practice of seeking diplomatic assurances, and many have already identified the flaws in this approach. I strongly share the view that diplomatic assurances do not work as they do not provide adequate protection against torture and ill-treatment, nor do they, by any means, nullify the obligation of non-refoulement.
To begin, it is understood that diplomatic assurances would be sought only after an assessment has been made that there is a risk of torture in the receiving State. If there is no risk of torture in a particular case, they are unnecessary and redundant. It should be clear that diplomatic assurances cannot replace a State’s obligation of non-refoulement in these circumstances, either in fact or in law.
Second, while some have suggested the establishment of post-return monitoring mechanisms as a means for removing the risk of torture and ill-treatment, we know through the experience of international monitoring bodies and experts that this is unlikely to be an effective means for prevention.
Third, the use of diplomatic assurances basically creates a two-class system whereby special bilateral protection and monitoring would be provided to some while the plight of many other detainees is ignored.
In most cases, assurances are concluded between States which are party to binding international and regional treaties which prohibit torture and cruel, inhuman or degrading treatment or punishment and refoulement to such practices. Ad-hoc agreements concluded outside the international human rights legal framework threaten to weaken this system and erode the human rights principles in which it is firmly grounded. Efforts should instead focus on the full implementation of international human rights obligations through existing structures.
Efforts to draft minimum standards for the use of diplomatic assurances would not result in increased protection for those subject to torture and cruel, inhuman or degrading treatment or punishment. Rather than developing criteria to regulate such practices, national and international efforts to eradicate torture must focus first and foremost on prevention, including through the establishment of systems of regular visits, by independent international and national bodies, of places where people are deprived of their liberty.
The Optional Protocol to the Convention against Torture sets out clear criteria in this regard. Where a State has not accepted independent monitoring of places of detention within its jurisdiction, in my view, it cannot give a credible assurance that it will protect an individual against the risk of torture.
In the face of the difficult challenges posed by terrorism, human security objectives are best achieved through an adherence to the rule of law and respect for human rights.
All States should be encouraged to ratify the UN Convention against Torture and its Optional Protocol as an important practical measure of good faith and meaningful commitment to preventing torture and ill-treatment, and protecting the human rights of those within their jurisdiction.