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STATEMENT BY THE SPECIAL RAPPORTEUR OF THE COMMISSION ON HUMAN RIGHTS ON TORTURE
27 October 2004
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59TH SESSION OF THE GENERAL ASSEMBLY
Wednesday, 27 October 2004
I. The interim-report (doc. A/59/324)
A. The absolute prohibition of torture
Chairperson,
Distinguished Representatives and Observers,
I began my presentation to the 58th Session of the General Assembly expressing my deep concern of the erosion of the consensus principle that torture and cruel, inhuman or degrading treatment or punishment is absolutely forbidden as an imperative norm of international law. This year, I regret to inform you that I have continued to receive reports and information about circumventing the absolute nature of the prohibition of torture and other forms of ill-treatment in the name of countering terrorism.
· Legal arguments of necessity and self-defence, invoking domestic law, have been put forward.
No executive, legislative, administrative or judicial measure authorizing recourse to torture and cruel, inhuman or degrading treatment or punishment can be considered as lawful under international law. Condoning torture is per se a violation of the prohibition of torture. Moreover, domestic law cannot be invoked as a justification for failure to comply with international treaty obligations and customary international law.
· Attempts have been made to narrow the scope of the definition of torture contained in the Convention against Torture. It has also been argued that some harsh methods should not be considered as torture, but merely as cruel, inhuman or degrading treatment or punishment and therefore not absolutely prohibited and so permissible in exceptional circumstances.
I stress that the definition contained in the Convention cannot be altered by events or in accordance with the will or interest of States. And the prohibition applies equally to torture and to cruel, inhuman or degrading treatment or punishment. The right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person is without exception.
· Acts of torture and ill-treatment have been inflicted on suspected terrorists by private contractors.
The Human Rights Committee has stated that a failure to ensure rights under the Covenant on Civil and Political Rights would give rise to human rights violations as a result of States Parties’ permitting or failing to take appropriate measures or efforts to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.
· Numerous suspects, including children, have been detained indefinitely, denied the opportunity to have their legal status determined, and prevented from having access to lawyers.
The maintenance of secret places of detention should be abolished and it should be a punishable offence for any official to hold a person in a secret and/or unofficial place of detention. Prolonged incommunicado detention could facilitate the perpetration of torture and could in itself constitute a form of torture. There is no uncertainty as to the international obligations, standards and protections that apply to detainees.
· Some national authorities have deemed evidence that may have been obtained under torture admissible in judicial proceedings.
According to the Convention against Torture, any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture.
While fully aware of the threats posed by terrorism and recognizing the duty of States to protect their citizens against such threats, I underline that the absolute nature of the prohibition of torture and other forms of ill-treatment means that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.
B. Non-refoulement
Chairperson,
Continuing with my preoccupation of the erosion of the absolute prohibition of torture, in my report, I draw attention to the rise in practices that undermine the principle of non-refoulement. It is inadmissible that the authorities of one country hand over persons to their counterparts in other countries without the intervention of a judicial authority and without any possibility for the persons concerned to contact their families or lawyers. Highly questionable is the reliance on diplomatic assurances, sought by the sending country from the receiving country, that transferred suspects will not be subjected to torture. In a number of instances, returned persons have indeed been subjected to torture, in spite of assurances given. Security Council resolution 1456 (2003) stresses that States 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. I put forward in my report some basic, minimum requirements to ensure respect for the principle of non-refoulement.
C. The impact of torture on victims
Chairperson,
In order to better appraise and address the needs of victims of torture, in my report I examine several aspects of the impact of torture on its victims, in particular from a medico-psycho-social perspective. Poor detention conditions and the lack of medical treatment, as well as the psychological and physical after-effects of torture; the impact on women, children, victims’ families and communities, are among the issues discussed. I conclude with the recommendation that a multidisciplinary and comprehensive approach that includes medical assistance, financial support, social re-adaptation, and legal redress, is crucial to adequately address the needs of victims. In this regard the UN Voluntary Fund for Victims of Torture needs and deserves strong support.
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 is the sending of communications to Governments, which include allegations of individual cases of torture or general references to the phenomenon of torture, and urgent appeals on behalf of individuals for whom concern was expressed that they might be at risk of torture. I have included detailed statistics of the communications in my report. However, I would just point out here that the steadily increasing figures over previous years demonstrate a broadening awareness of the complaints mechanisms of the Commission on Human Rights’ Special Procedures.
As regards fact-finding missions, I reported to the last session of the Commission on Human Rights on my mission to Spain. I was expected to undertake a two-week mission to China at the end of June 2004. However, it was postponed at the request of the Government until later in the year. Together with the Special Rapporteur on the right to health, I requested a visit to the United States Naval Base at Guantanamo Bay. We are still waiting for an answer.
III. In Conclusion
Chairperson,
Earlier this month I wrote a letter to the Chairperson of the Commission on Human Rights, in which I announced that, having completed on 1 December 2004 a term of three years as Special Rapporteur on torture, I was offering my resignation as from that date. As I wrote to the Chairperson of the Commission, the reason for this decision relates to my age (I have reached the age of seventy this year), my family interests, and the heavy demands of the mandate, physically and emotionally. It was not easy to reach this decision because the prevention and prohibition of torture must be considered as one of the core elements of the national and international human rights agenda. I am grateful to have been called upon to serve this cause but I am also mindful that, in spite of the efforts of many to combat torture, practices of this nature remain rampant in many parts of the world.
In conclusion, I wish to take this opportunity to draw attention to five points:
First, it is now some twenty-five years ago that the Commission on Human Rights started to create special thematic mechanisms to deal with issues of important and urgent human rights concerns. The mandate holders as independent experts can be considered as “the eyes and the ears” of the Commission. Their methods of work, their monitoring activities and their victim-oriented approach make them complementary to the role played by the treaty-bodies. They are an essential component of the UN system for the promotion and protection of human rights.
Second, there is an obvious need for coordination between the various special mechanisms of the Commission on Human Rights and for coordination between these mechanisms and the treaty-bodies. The task to coordinate is a responsibility of the respective mechanisms but no less a matter of constant involvement of the Office of the High Commissioner for Human Rights.
Third, as Special Rapporteur and earlier as a member of a treaty-body, I have become keenly aware that a proper follow-up of our actions and recommendations is crucial in any monitoring system. Without such follow-up our work has only limited impact.
Fourth, there is still a glaring discrepancy between the requirements as a result of the workload of the special mechanisms—a workload that is constantly growing—and the limited human and financial resources available to effectively cope with it.
Fifth, as Special Rapporteur on torture in my allegation letters and urgent appeals, I have been acting on behalf of a wide variety of persons. In a number of cases I would never support the aims and objectives such persons are pursuing and my actions should never be interpreted as taking up and defending their causes. The only cause I am defending is that everyone without exception, whatever his or her record, must be protected against torture and other cruel, inhuman or degrading treatment or punishment.
Thank you.
Wednesday, 27 October 2004
I. The interim-report (doc. A/59/324)
A. The absolute prohibition of torture
Chairperson,
Distinguished Representatives and Observers,
I began my presentation to the 58th Session of the General Assembly expressing my deep concern of the erosion of the consensus principle that torture and cruel, inhuman or degrading treatment or punishment is absolutely forbidden as an imperative norm of international law. This year, I regret to inform you that I have continued to receive reports and information about circumventing the absolute nature of the prohibition of torture and other forms of ill-treatment in the name of countering terrorism.
· Legal arguments of necessity and self-defence, invoking domestic law, have been put forward.
No executive, legislative, administrative or judicial measure authorizing recourse to torture and cruel, inhuman or degrading treatment or punishment can be considered as lawful under international law. Condoning torture is per se a violation of the prohibition of torture. Moreover, domestic law cannot be invoked as a justification for failure to comply with international treaty obligations and customary international law.
· Attempts have been made to narrow the scope of the definition of torture contained in the Convention against Torture. It has also been argued that some harsh methods should not be considered as torture, but merely as cruel, inhuman or degrading treatment or punishment and therefore not absolutely prohibited and so permissible in exceptional circumstances.
I stress that the definition contained in the Convention cannot be altered by events or in accordance with the will or interest of States. And the prohibition applies equally to torture and to cruel, inhuman or degrading treatment or punishment. The right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person is without exception.
· Acts of torture and ill-treatment have been inflicted on suspected terrorists by private contractors.
The Human Rights Committee has stated that a failure to ensure rights under the Covenant on Civil and Political Rights would give rise to human rights violations as a result of States Parties’ permitting or failing to take appropriate measures or efforts to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.
· Numerous suspects, including children, have been detained indefinitely, denied the opportunity to have their legal status determined, and prevented from having access to lawyers.
The maintenance of secret places of detention should be abolished and it should be a punishable offence for any official to hold a person in a secret and/or unofficial place of detention. Prolonged incommunicado detention could facilitate the perpetration of torture and could in itself constitute a form of torture. There is no uncertainty as to the international obligations, standards and protections that apply to detainees.
· Some national authorities have deemed evidence that may have been obtained under torture admissible in judicial proceedings.
According to the Convention against Torture, any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture.
While fully aware of the threats posed by terrorism and recognizing the duty of States to protect their citizens against such threats, I underline that the absolute nature of the prohibition of torture and other forms of ill-treatment means that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.
B. Non-refoulement
Chairperson,
Continuing with my preoccupation of the erosion of the absolute prohibition of torture, in my report, I draw attention to the rise in practices that undermine the principle of non-refoulement. It is inadmissible that the authorities of one country hand over persons to their counterparts in other countries without the intervention of a judicial authority and without any possibility for the persons concerned to contact their families or lawyers. Highly questionable is the reliance on diplomatic assurances, sought by the sending country from the receiving country, that transferred suspects will not be subjected to torture. In a number of instances, returned persons have indeed been subjected to torture, in spite of assurances given. Security Council resolution 1456 (2003) stresses that States 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. I put forward in my report some basic, minimum requirements to ensure respect for the principle of non-refoulement.
C. The impact of torture on victims
Chairperson,
In order to better appraise and address the needs of victims of torture, in my report I examine several aspects of the impact of torture on its victims, in particular from a medico-psycho-social perspective. Poor detention conditions and the lack of medical treatment, as well as the psychological and physical after-effects of torture; the impact on women, children, victims’ families and communities, are among the issues discussed. I conclude with the recommendation that a multidisciplinary and comprehensive approach that includes medical assistance, financial support, social re-adaptation, and legal redress, is crucial to adequately address the needs of victims. In this regard the UN Voluntary Fund for Victims of Torture needs and deserves strong support.
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 is the sending of communications to Governments, which include allegations of individual cases of torture or general references to the phenomenon of torture, and urgent appeals on behalf of individuals for whom concern was expressed that they might be at risk of torture. I have included detailed statistics of the communications in my report. However, I would just point out here that the steadily increasing figures over previous years demonstrate a broadening awareness of the complaints mechanisms of the Commission on Human Rights’ Special Procedures.
As regards fact-finding missions, I reported to the last session of the Commission on Human Rights on my mission to Spain. I was expected to undertake a two-week mission to China at the end of June 2004. However, it was postponed at the request of the Government until later in the year. Together with the Special Rapporteur on the right to health, I requested a visit to the United States Naval Base at Guantanamo Bay. We are still waiting for an answer.
III. In Conclusion
Chairperson,
Earlier this month I wrote a letter to the Chairperson of the Commission on Human Rights, in which I announced that, having completed on 1 December 2004 a term of three years as Special Rapporteur on torture, I was offering my resignation as from that date. As I wrote to the Chairperson of the Commission, the reason for this decision relates to my age (I have reached the age of seventy this year), my family interests, and the heavy demands of the mandate, physically and emotionally. It was not easy to reach this decision because the prevention and prohibition of torture must be considered as one of the core elements of the national and international human rights agenda. I am grateful to have been called upon to serve this cause but I am also mindful that, in spite of the efforts of many to combat torture, practices of this nature remain rampant in many parts of the world.
In conclusion, I wish to take this opportunity to draw attention to five points:
First, it is now some twenty-five years ago that the Commission on Human Rights started to create special thematic mechanisms to deal with issues of important and urgent human rights concerns. The mandate holders as independent experts can be considered as “the eyes and the ears” of the Commission. Their methods of work, their monitoring activities and their victim-oriented approach make them complementary to the role played by the treaty-bodies. They are an essential component of the UN system for the promotion and protection of human rights.
Second, there is an obvious need for coordination between the various special mechanisms of the Commission on Human Rights and for coordination between these mechanisms and the treaty-bodies. The task to coordinate is a responsibility of the respective mechanisms but no less a matter of constant involvement of the Office of the High Commissioner for Human Rights.
Third, as Special Rapporteur and earlier as a member of a treaty-body, I have become keenly aware that a proper follow-up of our actions and recommendations is crucial in any monitoring system. Without such follow-up our work has only limited impact.
Fourth, there is still a glaring discrepancy between the requirements as a result of the workload of the special mechanisms—a workload that is constantly growing—and the limited human and financial resources available to effectively cope with it.
Fifth, as Special Rapporteur on torture in my allegation letters and urgent appeals, I have been acting on behalf of a wide variety of persons. In a number of cases I would never support the aims and objectives such persons are pursuing and my actions should never be interpreted as taking up and defending their causes. The only cause I am defending is that everyone without exception, whatever his or her record, must be protected against torture and other cruel, inhuman or degrading treatment or punishment.
Thank you.