Baha Mousa Annual Memorial Lecture 2010
The International Struggle Against Torture
Organised by Public Interest Lawyers, the Law Society, and the
Solicitors International Human Rights Group (SIHRG)
London, 16 November 2010
Manfred Nowak
Professor for International Human Rights Protection, University of Vienna
Director, Ludwig Boltzmann Institute for Human Rights, Vienna
Former UN Special Rapporteur on Torture (2004-2010)
Table of Content
1. Definition of Torture (Art. 1 CAT)
2. Prohibition of Torture as an Absolute and Non-Derogable Right in International Law
3. Mandate of the UN Special Rapporteur on Torture
4. Issues
5. ‘War on Terror’
6. Fact-finding Missions –
-
Overview
Terms of Reference
Illustrations
Conclusions
Recommendations
7. Communications
8. UN Human Rights Council – Cooperation with States
9. Conclusion
1. Definition of Torture (Art. 1 CAT)
• Causing of severe physical and/or mental pain or suffering
• State responsibility
• Intention; applied to achieve a certain purpose
(confession, information, intimidation, discrimination…)
• Powerlessness, defenselessness of the victim, which is
completely in the torturer’s power (especially during detention)
→ direct attack on the victim’s dignity and personal integrity
→ specific form of violence
2. Prohibition of Torture as an Absolute and Non-Derogable Right in
International Law
• Absolute vs. Relative Rights
e.g. freedom of expression, right to life, prohibition of torture and slavery;
• Non-derogable vs. Other Rights
e.g. personal liberty, right to life (Art. 15 ECHR), prohibition of torture,
prohibition of retroactivity of penal laws;
• Torture vs. Cruel, Inhuman or Degrading Treatment (CIDT)
“relativity” of CIDT (principle of proportionality)
• Reasons for the special Protection of the Prohibition of Torture as Ius Cogens
Middle Ages → gradual elimination from criminal law
National Socialism → absolute prohibition
Chile → special protection mechanisms (criminal law, prevention, victim
protection, fact-finding)
Bosnia → international criminal tribunals, systematic torture as a crime
against humanity;
3. Mandate of the UN Special Rapporteur on Torture
•
UN Special Procedures
–
–
–
–
•
Country-specific and thematic mandates
Serve in their individual capacity
Independent, impartial experts
„Eyes & Ears“ of the UN (Kofi Annan)
Tasks
–
–
–
–
Fact-finding missions
Communications: Urgent Appeals & Letters of Allegations
Reports to UN General Assembly & Human Rights Council
Promotion of OPCAT and other preventive mechanisms
•
Created by UN Commission on Human Rights (Res 1985/33)
•
Appointed by Commission on Human Rights/Human Rights
Council for 3 years with one possible renewal
4. Issues
Drug Policy & Human Rights
Children
Persons with Disabilities
Death Penalty
HIV/AIDS
OPCAT
Conditions of detention
„War on Terror“
Impunity
Rehabilitation &
Reparation
Methodology
Forensic Medicine
Corporal Punishment
Diplomatic Assurances/
Non-Refoulement
Torture Prevention
„Incommunicado“ Detention
Gender-Specific Violence
5. “War on Terror”
• 9/11 as paradigm shift
• Bush Administration
- Undermining the absolute prohibition of torture
- Negative role model for other States
• Rendition flights and diplomatic assurances
• UN Report on Guantanamo Bay (2006)
• UN Joint Study on Secret Places of Detention (2010)
5. “War on Terror” (cont’d)
JOINT UN REPORT ON GUANTANAMO BAY (2006)
• International law applicable
 Human Rights Law is applicable also during times of emergencies and
armed conflict
 ‘War on Terror’ does not constitute an armed conflict in terms of
international humanitarian law
• GTMO: arbitrary detention
 Detainees are arbitrarily detained for a prolonged period of time and
entitled to challenge their deprivation of liberty (ICCPR Art 9)
• Enhanced Interrogation techniques led to torture
 Attempts to “redefine” torture: ‘Torture Memos’
 Confusion re: authorized/unauthorized interrogation techniques
 Excessive violence during forced feeding amounting to torture
=> Urging closure of GTMO
5. “War on Terror” (cont’d)
JOINT UN REPORT ON SECRET DETENTION IN THE CONTEXT OF
COUNTERING TERRORISM (2010)
• Black Sites
 Secret detention is irreconcilably in violation of international human rights
law, including during states of emergency and armed conflicts
 Geneva Conventions, applicable to all armed conflicts, prohibit secret
detention under any circumstances
 secret detention amounts to enforced disappearance.
• Extraordinary Rendition Flights
 Responsibility of third countries, incl. European States
 Corroborates findings of earlier investigations (Council of Europe,
European Parliament, investigative journalists)
• Detention by Proxy
 disregard of the principle of non-refoulement
 “outsourcing” of torture
6. Fact-Finding Missions– Overview
Denmark &
Greenland
May 08
Moldova
July 08
Greece
Oct. 10
(Russia)
Georgia
Jordan
Oct. 06
Feb. 05
June 06
Kazakhstan
May 09
(Cuba)
Mongolia
2009/10
June 05
Guantanamo
China
Feb. 06
Nov. 05
Jamaica
Nepal
Feb. 10
Sept. 05
Paraguay
Papua New Guinea
Oct. 06
May 10
Uruguay
Indonesia
March 09
Nov. 07
Sri Lanka
Oct. 07
Sudan
Togo
Nigeria
Equatorial Guinea
(Zimbabwe)
Oct. 06
April 07
March 07
Nov. 08
Oct. 09
6. Fact-Finding Missions – Terms of Reference
• Invitation of the State
• Terms of Reference
– Freedom of movement
– Freedom of inquiry
• Contacts with all branches of government;
• Contacts with representatives of NGOs, other private
institutions and the media;
• Access to all places of detention (unannounced visits)
• Confidential and unsupervised interviews with victims,
witnesses and detainees;
• Full access to all documentary material
• Photo and video documentation of torture and prison conditions
– Assurance by the government against reprisals
– Appropriate security arrangements
6. Fact-Finding Missions– Conclusions
• Torture
- Torture is practiced in 17 of the 18 countries
- Impunity for the perpetrators
- Inadequate compensation for victims of torture
• Global Prison Crisis
- Overcrowding
- Inhuman conditions of detention
6. Fact-Finding Missions– Conclusions (cont‘d)
Prison population rate per 100.000
(total)
1. USA 748 (2,297,400 )
2. Russia 588 (833,600)
Occupancy level
[1. Haiti 335.7%]
2. Benin 307.1%
Pre-trial detainees/ remand
prisoners
1. Liberia 97.3 %
2. Mail 88.7 %
3. Virgin Islands 561 (612)
3. Bangladesh 275 %
3. Benin 79.6 %
4. St. Kitts and Nevis 551 (275)
4. Burundi 268.1 %
4. Bolivia 78.7 %
86. UK (England and Wales) 154 (85,159)
100. UK 106.8 %
135. Austria 103 (8,671)
110. Austria 102.9 %
120. Austria 23.7%
162. UK 14.9 %
210. Nigeria 29 (46,000)
184. Kyrgyzstan 49,8 %
184. Egypt 9.9%
213. Faroe Islands 25 (12)
188. Monaco 42.0 %
188. Taiwan 8.1%
216. Timor-Leste 20 (223)
191. San Marino 16.7 %
194. Laos 1.0%
Source: World Prison Brief, Kings College London, 2009
7. Communications
2005-2010
Urgent Appeals:
Letters of Allegations:
755
340
Brookings Study
49 %
No response
24 %
Violation rejected without substantiation
14 %
Responsive but incomplete
9%
Immaterial response
3%
Steps taken to address allegation
1%
In translation
• Attitude of governments towards UN Special Procedures
• Lack of awareness for allegations of torture
8. UN Human Rights Council– Cooperation with States
• Dominance of regional blocks and national interests
over objective human rights monitoring
• Frequent invitations to fact-finding missions for political
reasons, less because of a genuine interest in improving the situation
(“window dressing”)
• OHCHR uses code of conduct to interfere with independence of
experts: self-censorship
• Many States in the Human Rights Council do not consider
experts as a genuine component of the Council but rather as a
disturbing factor
9. Recommendations
• Reform of the Human Rights Council: Reducing influence of political
blocks, revaluating independent experts, reacting to widespread and
systematic human rights violations
• Bringing the perpetrators of torture to justice
• Providing the victims of torture with an effective remedy and adequate
reparation for the harm suffered
• Ratification of OPCAT and establishment of national preventive
mechanisms (NPM)
• Urgent need for a UN Convention on the Rights of Detainees
• Establishment of a World Court of Human Rights
Ludwig Boltzmann Institute for Human Rights
http://bim.lbg.ac.at
Atlas of Torture
http://www.atlas-of-torture.org