STATEMENT BY THE SPECIAL RAPPORTEUR OF THE COMMISSION ON HUMAN RIGHTS ON TORTURE

Wednesday, 26 October 2005

Chairperson,

Distinguished Representatives and Observers,

This is the first time I am presenting my report to the General Assembly as UN Special Rapporteur on Torture since I assumed the mandate on 1 December 2004. On this occasion let me first express my highest esteem and deep admiration for my predecessor, Theo van Boven, who has carried out the mandate with unquestionable professionalism, objectivity and commitment.

I. The interim-report (doc. A/60/316)

The main part of my report concerns two issues which I am particularly preoccupied with, corporal punishment and the principle of non-refoulement.

A. Corporal Punishment

Since assuming the mandate I have intervened in response to allegations in a number of countries involving corporal punishment, such as amputation, stoning, flogging and beating. Such continuing practices are often grounded in justifications of domestic law, including religious law, and are argued to fall outside the prohibition against torture because, according to these laws, these are lawfully-sanctioned punishments.

United Nations human rights treaty bodies, particularly the Human Rights Committee, the Committee against Torture, and the Committee on the Rights of the Child have called for the abolition of corporal punishment. Indeed, the Human Rights Committee has stated in a General Comment that the prohibition of torture must extend to corporal punishment; and it has developed this opinion through recent cases it has decided, See Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 40 (A/55/40), vol. II, annex IX, sect. L, communication No. 759/1997, Osbourne v. Jamaica; Fifty-seventh Session, Supplement No. 40 (A/57/40), vol. II, annex IX, sect. FF, communication No. 928/2000, Boodlal Sooklal v. Trinidad and Tobago; Ibid., vol. II, annex IX, sect. Q, communication No. 792/1998, Higginson v. Jamaica; and Fifty-ninth Session, Supplement No. 40 (A/59/40), vol. II, annex IX, sect. B, communication No. 793/1998, Pryce v. Jamaica. as well as in its consideration of country reports. The Committees against Torture and the Rights of the Child have explicitly concluded that punishments, such as amputations, flogging and stoning, among others, are incompatible with the Convention against Torture, and the Convention on the Rights of the Child, respectively.

Regional human rights mechanisms, particularly the European Court of Human Rights and the Inter-American Court have held in leading cases that corporal punishment is incompatible with the prohibition against torture. Tyrer v. The United Kingdom, European Court of Human Rights, Series A: Judgments and
Decisions, vol. 26, judgment of 25 April 1978; and Caesar v. Trinidad and Tobago, Inter-American Court of Human Rights, Series C, No. 123, judgment of 11 March 2005, respectively. International humanitarian law, including the Geneva Conventions and the additional protocols, and other international standards, such as the Standard Minimum Rules for the Treatment of Prisoners are equally unambiguous.

The term “lawful sanctions” in article 1 of the Convention must be interpreted as referring both to domestic and international law. Since international human rights law, in particular article 7 of the Covenant on Civil and Political Rights prohibits corporal punishment, the so-called “lawful-sanctions” clause in article 1 of the Convention against Torture can no longer be invoked by any Government to justify corporal punishment. On the basis of a review of recent jurisprudence of international and regional human rights mechanisms, it follows that any form of corporal punishment is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. I therefore call upon States to abolish all forms of corporal punishment without delay.

B. Non-refoulement and diplomatic assurances

Chairperson,

As were my predecessors, I too am preoccupied with the erosion of the absolute prohibition of torture in the context of counter-terrorism measures, particularly the rise in practices that undermine the principle of non-refoulement. Several Governments, in the fight against terrorism, have transferred or proposed to return alleged terrorist suspects to countries where they may be at risk of torture or ill-treatment, employing diplomatic assurances, or formal guarantees or memoranda between Governments that these persons’ rights will be safeguarded.

These agreements typically contain provisions, such as assurances for the respect for the deported person’s due process safeguards upon arrival to the returned country, refraining from torture and ill-treatment, adequate conditions of detention, and regular monitoring visits. For example, in response to the terrorist attacks in London on 7 July 2005, the Government of the United Kingdom has sought to conclude such agreements in relation to Islamic terrorist suspects with their countries of origin. On 10 August a memorandum was signed with Jordan, followed by one recently on 18 October with Libya. In response to concerns I raised with the UK Government, I was invited to London on 24 October to discuss these issues with the Home Secretary.

As I continue to say, terrorism must be condemned without equivocation for the heinous, evil and senseless violence perpetrated against innocents. States have an obligation, which includes cooperation with other States, to combat terrorism, and to ensure the security of their communities. However, in so doing, as Security Council resolution 1456 (2003) stresses, Governments must ensure that any measure taken to combat terrorism complies with their obligations under international law and should adopt such measures in accordance with international law, in particular international human rights, refugee and humanitarian law.

In the recent landmark case of Agiza vs. Sweden, the Committee against Torture found that the Government of Sweden violated its obligations under the Convention against Torture; that the diplomatic assurances did not protect Mr. Agiza, an Egyptian national returned to Egypt, against the manifest risk of torture. In my report, I review other recent decisions of international human rights mechanisms, namely the Human Rights Committee, the Committee against Torture, and the European Court of Human Rights, and conclude that diplomatic assurances are unreliable and ineffective to protect against torture and ill-treatment. Diplomatic assurances are sought usually from States where the practice of torture is systematic; post-return monitoring has proven to be no guarantee of protection; these agreements are not legally binding, carry no legal effect, and no accountability if breached; and the subject of the assurances has no means of legal recourse if the assurances are violated. Moreover, rather than requesting Governments concerned to allow for a genuine system for monitoring all places of detention and to stop the practice of torture, diplomatic assurances basically attempt to provide for a special bilateral protection and monitoring regime for a few privileged detainees and ignore the systematic torture of other detainees. This undermines the multilateral protection system under the CCPR and CAT to which most of the concerned States are parties.

I therefore call upon Governments to refrain from requesting diplomatic assurances related to the prohibition of torture; to observe the principle of non-refoulement scrupulously and not expel any person to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.

II. Ongoing activities

Chairperson,

In my report information is given on the various activities I carry out in the discharge of my mandate. Among these are country visits, and I wish to provide the Assembly with highlights of my findings to date. But before I do, I have a few observations on the methodology of country visits in general.

I am sure you would appreciate, the aim of carrying out visits is not to discuss measures to combat torture in idealistic abstraction with Government officials and tour detention facilities, but to see first hand what the true practice and situation of torture and ill-treatment is—to identify gaps as well as acknowledge positive measures—to recommend ways to improve the situation, and to initiate a process of constructive cooperation with the Government. I can only visit a country upon the invitation of the Government, which by itself is a statement of a country's willingness to open itself up to independent and objective scrutiny—not always an easy thing to do—and a testament to its cooperation with the international community in the area of human rights. Those States that have answered my requests and have extended invitations should therefore be commended.

However, an invitation by itself is not sufficient, and my acceptance is contingent on a number of basic preconditions related to freedom of enquiry. These include the possibility to conduct unannounced visits to any place of detention, to speak with detainees in private, as well as any other relevant persons and organizations, in addition to receiving assurances from the authorities that the persons I meet will not be subject to any form of reprisals. Were I to announce to the authorities in advance which facilities I wished to see, and to whom I wished to interview, there might be a risk that existing facts could be concealed or changed, and persons might be coached, threatened, or even moved. You would agree that these are fundamental, necessary, and common sense considerations to ensure any assessment of the situation of torture and ill-treatment to be honest, credible and objective. I would consider any suggestion that these conditions might be subject to qualification or negotiation as attempts to compromise my findings. Moreover, I would consider that a subsequent breach of these conditions to seriously call into question the intentions behind inviting me.

Georgia

As my first visit as the Special Rapporteur, I visited Georgia in February; a preliminary note on which was submitted to this year’s Commission on Human Rights. The final report should be available shortly. I consider my visit to Georgia to be a model example, and once again I take this opportunity to express appreciation for the full cooperation and assistance extended by the Government. I concluded that torture persists in Georgia, perpetuated by a culture of impunity. I also visited the territories of Abkhazia and South Ossetia where I found the conditions of detention particularly of concern. Following my visit, I was informed of a number of developments in line with my preliminary recommendations, including amendments to the Criminal Code to bring the definition of torture in line with the Convention against Torture, amendments to the Criminal Procedure Code, and notably the ratification of the Optional Protocol to the Convention against Torture, concerning the establishment of an independent national mechanism to visit detention facilities. These and other positive developments are clear evidence of Georgia’s commitment to eradicate torture and ill-treatment, and I look forward to continued cooperation with the Government together with the international community in the implementation of my recommendations.

Mongolia

I undertook a visit to Mongolia in June. I too express my appreciation to the Government for the invitation, but regret that I was denied any information relating to the practice of capital punishment including access to prisoners on death row, in clear violation of my terms of reference. I found that torture persists in police stations and pre-trial detention facilities. Indeed, in one case that I intervened in, an individual died as a result of being severely beaten in police custody shortly before my arrival to the country. I found that impunity goes unimpeded because of the absence of a definition of torture in line with the Convention, the lack of effective mechanisms to receive and investigate allegations, and a basic lack of awareness of the standards relating to the prohibition against torture on the part of prosecutors, lawyers and the judiciary. Among my most serious concerns is the situation of prisoners sentenced to the special isolation regime, where they serve 30-year sentences in virtual total isolation, and which amounts to cruel, inhuman treatment, if not torture. The total secrecy surrounding the death penalty was also of concern. There is no official data available in relation to the death penalty, and families of condemned persons are not notified of the date and place of execution and do not receive the bodies for burial, a practice which amounts to inhuman treatment of the family members. Moreover, the conditions on death row—prisoners held in total isolation, continuously handcuffed and shackled, and denied adequate food—constitute an additional punishment, causing severe suffering and which can only be qualified as torture.

Nepal

My visit to Nepal took place in September. I am pleased to report that the Government fully cooperated and complied with the terms of reference for the visit. I found torture to be systematic and practiced by the police forces and the Royal Nepalese Army. In fact I received repeated and disturbingly frank admissions by senior police and military officials that torture was acceptable in some instances, and was indeed systematically practiced. I also received shocking evidence of torture and mutilation carried out by the Maoists for purposes of extortion, punishment for non-cooperation, and intimidation. The link between involuntary disappearances and torture is starkly illustrated by preventive detention laws with illusory safeguards that bestow the police and the military with sweeping powers to detain suspects, sometimes for months on end; and many of these detainees are tortured to confess to involvement in Maoist activities. Quite apart from the gap between Constitutional and legal provisions to safeguard the rights of detainees and what actually happens in practice, I was deeply concerned that impunity for acts of torture is institutionalised in a system where perpetrators are merely subject to demotions, suspensions, fines, or delayed promotions, and victims may be eligible for token awards of compensation.

Upcoming visits

In relation to upcoming visits, I am pleased to inform you that my visit to the People’s Republic of China will take place from 21 November to 2 December of this year. I express my appreciation to the Government for having accepted the terms of reference, and for the commitment and cooperation it has shown in the preparation of the mission, which in addition to Beijing, will include visits to Tibet, Xinjiang, and Shandong provinces. My final conclusions and recommendations for these visits will be presented to the upcoming session of the Commission on Human Rights.

As I have indicated in my report, requests for invitations from a number of States have been issued and are outstanding. In June 2005, on the first anniversary of the request by the four independent experts of the Human Rights Commission (i.e. myself, the Chairperson of the Working Group on arbitrary detention, and the Special Rapporteurs on the independence of judges and lawyers, and the right to health) for an invitation from the United States to visit Guantanamo Bay, the commencement of an investigation, based on all credible sources, regarding the situation of the detainees in Guantanamo Bay was announced. I am confident that an official invitation by the US Government will soon be forthcoming.

Given the previous invitations extended from Paraguay and Bolivia, in addition to the positive indications received from the Russian Federation and Côte D’Ivoire, I hope to realize these visits in 2006.

Chairperson,

I wish to express my sincere gratitude to all the Governments that have extended me invitations. I see the conclusions of these visits and the follow-up to the recommendations as marking the beginning of a process of sustained cooperation with the Governments concerned, the international community, and civil society to work together to eradicate torture and ill-treatment in their respective countries.

I wish to also take this opportunity to express my appreciation for the support during my visits of the OSCE Mission in Georgia, the UN Country Teams, particularly the Office of the High Commissioner’s field presences in Abkhazia, Georgia, Mongolia, and Nepal.

I close by saying that the best way for States to cooperate to combat torture is by preventing it from even taking place. I call upon all States to ratify without delay the Optional Protocol to the Convention against Torture, for the establishment of independent national mechanisms to regularly visit all places of detention. At the same time I wish to commend the 13 States that have ratified the Optional Protocol. I offer my assistance to these Governments in establishing truly independent national preventive mechanisms, and hope to visit some of them, including in Mexico, in the near future.

Thank you.