Statement of the Special Rapporteur on Torture, Manfred Nowak to the 61st Session of the UN Commission on Human Rights

4 April 2005

Mr Chairperson,

Let me first express my highest esteem and deep admiration for my predecessor, Theo van Boven. Despite strong and sometimes unfair criticism, he carried out this difficult mandate with a unique combination of professionalism, objectivity, courage and commitment to human rights. He proved again that to him “People matter”, which is the title of a book that was dedicated to him more than 20 years ago, after he had resigned as Director of the then UN Division of Human Rights. Hans Thoolen, (ed.), People Matter: Views on International Human Rights Policy, Amsterdam 1982. Most of the issues that I will present to you today actually reflect Theo van Boven’s last report to the Commission.

The main part of the report UN Doc. E/CN.4/2005/62 of 15 December 2004. contains the final version of his “Study on the situation of trade in and production of equipment which is specifically designed to inflict torture or other cruel, inhuman or degrading treatment, its origin, destination and forms”. He concludes that the obligation to prevent torture in the Convention against Torture necessarily includes the enactment of measures to stop the trade in instruments that can easily be used to inflict torture and ill-treatment. The report contains a number of valuable recommendations to States, such as to prohibit the manufacture, transfer and use of certain forms of equipment “specifically designed for” or which “has no or virtually no, practical use other than for the purpose of” torture, to introduce strict controls on the export of other security and law enforcement equipment, and to consider the development of an international regulatory mechanism.

One addendum contains the follow-up to the recommendations made by the Special Rapporteur during earlier visits to a number of countries. UN Doc. E/CN.4/2005/62/Add.2 of 21 February 2005. This report is based on the information received from NGOs and from the Governments of Azerbaijan, Chile, Mexico, the Russian Federation, Spain, Turkey and Uzbekistan in response to a letter of July 2004. Some Governments provided very detailed and useful information that clearly shows a willingness to cooperate with the Special Rapporteur and to implement the respective recommendations. Unfortunately, half of the Governments visited by the SR did not reply within the requested deadline, and the following four States have in fact never provided any follow-up information: Pakistan and Venezuela, which were both visited in 1996, as well as Cameroon and Kenya, both visited in 1999. The visit to a country is not only an important fact-finding tool, it also offers an opportunity to start a long-term cooperation towards realizing the common goal of combating and preventing torture. If a Government extends an invitation to the Special Rapporteur to carry out a visit, one would expect that such a Government is also willing to further cooperate with the SR, even if it does not agree with all findings and recommendations in the respective report.

Addendum 1 to Theo van Boven’s report contains all information regarding the individual communication procedure on a country by country basis, i.e. all Allegation Letters and Urgent Actions sent by my predecessor as well as all the Government replies received. UN Doc. E/CN.4/2005/62/Add.1 of 30 March 2005. The report lists a total of 101 States but one should be careful in drawing too far-reaching conclusions from this list and the respective numbers of Allegation Letters and Urgent Actions per country. First of all, there are a considerable number of countries in which torture is practised but, for whatever reasons, the SR has not received any individual allegations. Secondly, an Urgent Action or Allegation Letter is based on well-founded allegations by the victims, family members and/or NGOs, but the SR has no means to verify or falsify these allegations. He sends them to the Government concerned with the request to take appropriate measures, including a thorough investigation of these allegations. Only the Government has the necessary powers and facilities to carry out investigations and to report back to the SR on the facts found and the respective measures taken. In fact, Governments are required by Article 12 of the Convention against Torture and various resolutions of this Commission to proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under their jurisdiction. The cooperation with the SR aimed at quickly clarifying any individual allegation of torture raised by the SR, therefore, constitutes one of the most basic and essential obligations of Governments. Without such a minimum of cooperation, the SR is not in a position to properly carry out his mandate.

Mr Chairperson,

I would like to share my observations on the state of cooperation of Governments on responding to communications during my predecessor’s tenure, from 1 December 2001 to 30 November 2004. I will just focus on responses by Governments to urgent appeals sent, because by nature urgent communications—where individuals’ physical and mental integrity are allegedly at risk—demand immediate action on behalf of Governments concerned. In this period, of 991 urgent appeals sent to 105 Governments, responses were received in respect of 403, for an average rate of responding of 41 per cent. To these appeals 33 Governments have never responded, including the following which have received a significant number of urgent appeals: Equatorial Guinea (16 urgent appeals), Turkmenistan (11), Liberia (5), and Honduras, Tajikistan, Uganda and Yemen (4 each). Others have responded fairly selectively to a few appeals: Indonesia (2 responses to 25 urgent appeals), Democratic Republic of the Congo (2/18), Eritrea (1/13), the United States of America (1/11), Nigeria (1/9), and Cameroon and Mauritania (1/6). In general, responses to urgent appeals in this period were characterized by significant delays; often information was provided on criminal allegations against the individuals without addressing the allegations of torture or ill-treatment; they often indicated that investigations into the allegations were underway, but rarely responded with information on outcomes, including compensation paid to victims or their families. This is disturbing and discouraging. Without any substantive reply (confirming or repudiating the torture allegation and indicating the measures taken) the SR is not in a position to assess whether his Urgent Action had any effect. The statistical data provided above casts serious doubt on whether the Urgent Actions procedure, once regarded as one of the most effective and powerful tools of the Commission’s special procedures, has any meaningful impact on the practice of torture world-wide. Several States which never or only rarely responded to the Urgent Actions of my predecessor are in fact members of this Human Rights Commission, which seems to reconfirm the conclusion of Secretary General Kofi Annan in his recent report, In Larger Freedom, that “States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole.” Report of the Secretary General of 21 March 2005, In Larger Feedom: Towards Development, Security and Human Rights For All, UN Doc. A/59/2005, para. 182. See also the Report of the High-level Panel on Threats, Challenges and Change of 2 December 2004, A More Secure World: Our Shared Responsibility, UN Doc. A/59/565, para. 283.

Mr. Chairperson,

Torture is one of the most serious violations of human rights as it constitutes a direct attack on the core of the human personality and its dignity. As a consequence, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment constitutes one of the few human rights which are absolute under international law and, therefore, permit no exception. As such, freedom from torture and other forms of ill-treatment constitutes a peremptory norm of international law (ius cogens) and a non-derogable right which cannot be suspended under any circumstance, including armed conflict, situations of public emergency or in the context of counter-terrorism measures. See the report of the Coalition of International NGOs Against Torture (CINAT) of 23 February 2005, “The Torture Resolution of the U.N. Commission on Human Rights, March/April 2005, should include the following provisions”. The absolute and non-derogable nature of the prohibition of torture and ill-treatment, which emerged after World War II in response to the Nazi Holocaust, unfortunately, did not lead to the universal eradication of torture. But Governments which practised, condoned or tolerated torture and ill-treatment, in fact have been well aware that they were violating a binding universal norm which has been firmly established in both treaty and customary law. For the first time since World War II, this important consensus of the international community seems to have been called into question by some Governments in the context of their counter-terrorism strategies. As my predecessor, See the last report of Theo van Boven to the General Assembly of 1 September 2004, UN Doc. A/59/324, paras. 13-24 with further references. I am deeply concerned about any attempts to circumvent the absolute nature of the prohibition of torture and other forms of ill-treatment in the name of countering terrorism. These attempts include, inter alia, narrow interpretations of the terms torture, cruel, inhuman or degrading treatment or punishment contrary to established case-law of competent international and regional human rights bodies; attempts at evading the application of domestic or international human rights law by detaining and interrogating suspected terrorists abroad, by outsourcing interrogations with torture methods to private contractors or by returning suspected terrorists to countries which are well-known for their systematic torture practices; and attempts to admit confessions made under torture abroad as evidence in domestic judicial proceedings.

From a legal point of view, the answer to these attempts is clear: Not only freedom from torture, but also the prohibition of other forms of cruel, inhuman or degrading treatment or punishment are absolute and non-derogable rights. Similarly, the principle of non-refoulement applies equally to torture and other forms of ill-treatment. Diplomatic assurances are not adequate means to satisfy the principle of non-refoulement in relation to countries where torture is systematically practised. Governments are fully responsible for any practice of torture and ill-treatment committed by their agents (public officials as well as private contractors) at home or abroad. Any statement which is established to have been made as a result of torture, irrespective of the place where torture has been applied, shall not be invoked as evidence in any proceedings. In its resolution on torture, the Commission should, in as strong terms as possible, reconfirm that all attempts at undermining the absolute and non-derogable nature of the prohibition of torture and other forms of ill-treatment are illegal under international law.

Mr. Chairperson,

As I stated before, country visits are an important tool for special rapporteurs to carry out their mandates effectively. In addition to fact-finding, they provide an opportunity to start a long-term process of cooperation with Governments and local NGO communities aimed at combating and preventing torture. I am particularly grateful to the Government of Georgia which, in a very efficient and non-bureaucratic manner, facilitated my visit which took place in February of this year. I also wish to express my gratitude to the Governments of China, Nepal and Mongolia for their recent invitations for a country visit, and I sincerely hope that these visits will take place in the course of this year in full compliance with the general terms of reference for country visits. I also hope that the United States Government will permit and facilitate a visit to the Guantanamo Bay naval base and other places of detention under its authority, above all in Iraq and Afghanistan, where persons suspected of terrorism are held. I will also give due consideration to standing invitations by other Governments and specific invitations addressed to my predecessor, such as those issued by Bolivia and Paraguay. At the same time I regret that certain Governments, including Algeria, Egypt, Equatorial Guinea, India, Indonesia, Israel, the Russian Federation (with respect to the Republic of Chechnya), Tunisia and Turkmenistan have not yet responded to earlier requests by my predecessor to visit their countries.

Before concluding this statement, I wish to thank the Government of Georgia again for the spirit of cooperation, in which my visit from 19 to 25 February 2005 took place. Without any restriction, I could visit any place of detention (with or without prior announcement), speak to any detainee in private as well as to other persons, such as journalists, human rights defenders and representatives of NGOs. I was also able to visit two territories which are not under the control of the Government of Georgia, and wish to thank the de facto authorities of Abkhazia and South Ossetia as well as the United Nations Observer Mission in Georgia (UNOMIG) and the OSCE for their assistance. I was impressed by the commitments and efforts of the present Government of Georgia, which came to power during the “Rose Revolution” in late 2003, to tackle corruption, to reform the law enforcement and criminal justice system, to strengthen the rule of law and to combat torture. At the same time, I concluded from my visit that torture and ill-treatment by law enforcement officials still exists in Georgia. In addition, the conditions of detention, primarily of persons detained in pre-trial detention facilities of the Ministry of Justice, are deplorable. In my preliminary recommendations addressed to the Government of Georgia, and the de facto authorities of Abkhazia and South Ossetia, UN Doc. E/CN.4/2005/62/Add.3 of 16 March 2005. I insisted that impunity for acts of torture must end, that any public official involved in torture practices should be brought to justice; that the frequent recourse to pre-trial detention, particularly for non-violent, minor or less serious offences, should become an exception rather than the rule; and that the Government of Georgia continue its efforts to speedily ratify the Optional Protocol to the Convention against Torture and establish a truly independent monitoring mechanism to visit all places of detention in the country. I consider these preliminary recommendations as a first step in a long-term cooperation. I wish to express my appreciation for the detailed information provided by the Government on 22 March 2005. In the near future the UN High Commissioner for Human Rights, with the agreement of the Government of Georgia, will establish a permanent human rights presence within the UN Country Team, which will also facilitate the follow-up to my recommendations.

Mr. Chairperson,

In conclusion I wish to stress the importance of effective domestic mechanisms aimed at the prevention of torture. I consider the adoption of the Optional Protocol to the Convention against Torture in 2002 as a particularly valuable development in this respect. It requires the establishment of one or more truly independent domestic monitoring bodies with the mandate to carry out regular and unannounced visits to all places where persons are deprived of their personal liberty, to speak in private with all detainees, to have access to all relevant documents etc. As chairperson of one of six visiting commissions established by the Austrian Minister of Internal Affairs, I can testify that such a preventive mechanism is far more effective in reducing ill-treatment and improving conditions of detention than the traditional reactive mechanisms. It is up to the respective Governments how they will organise such a monitoring mechanism. Consideration should be given, however, to integrating this preventive visiting mechanism into existing national human rights institutions. If the Government of a country, in which no national human rights institution according to the Paris Principles yet exists, is in the process of ratifying the Optional Protocol to the Convention against Torture, it might use this opportunity to establish such a national institution. In my future activities as Special Rapporteur on Torture, I will attach particular importance to promoting the ratification of the Optional Protocol and the establishment of truly independent domestic visiting mechanisms.

Thank you for your attention.