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Programme officer at the APT:States are obliged to ban torture and to adopt
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The APT assists in the drafting and implementation of international and regional legal instruments to prevent torture, such as Optional Protocol to the UN Convention against Torture (OPCAT); the European Convention for the Prevention of Torture and the Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa; have there been any attempts from your organization to create a similar instrument in the Middle East?
We believe that torture is most likely to occur in places out of the public view, particularly when the safeguards against torture and ill-treatment are weak and when potential perpetrators can act with impunity. Our vision is a world-wide system of independent oversight of all places of deprivation of liberty. In the 1970s, when our organization was created, this idea has initially been dismissed as a dream of some utopians. Nowadays it is a reality in many parts of the world, where independent experts of national, regional and international organizations do regularly visit places of detention. These visits serve to prevent torture and other ill-treatment and help to improve conditions of detention. Detained persons and officials in many countries have come to appreciate the meetings with the independent visitors and do benefit from their advice.
Most prominently, 54 States have now ratified the Optional Protocol to the UN Convention against Torture (OPCAT). The OPCAT sets-up a two-pillar system of regular visits by a UN expert group and independent national visitors. Since the entry into force of the OPCAT in 2006, the APT focuses its main efforts on getting this world-wide system up and running, while continuing to support the regional mechanisms.
In the Middle East, the idea of independent oversight of detention centres is slowly gaining grounds. The first Middle Eastern State to ratify the OPCAT was Lebanon, in December 2008. In other countries National Human Rights Institutions and civil society organizations have gained access to places of detention. I am thinking for example about the prison visit schemes of the National Human Rights Institutions of Jordan and Morocco, or visits by NGOs such as the two visits that the Bahrain Human Rights Society conducted. Our current strategy in this region is to promote the concept of independent oversight and to support those national and regional actors that are committed to contribute to torture prevention. We have not attempted to create a regional system of oversight similar to what exists in Europe, the Americas or Africa yet, but once a critical mass of supporters of such an idea exist in the region, we would definitely support them in their efforts.
It is worth mentioning in this context that the Arab Charter on Human Rights that entered into force in March 2008 does not only prohibit torture but also puts a positive obligation on States parties to take effective preventive measures to prevent such acts from happening.
The APT leads the campaign to ratify and implement the OPCAT which establishes the first global system of detention monitoring. To what extent your organization managed to convince countries in the Middle East to join the Protocol?
I have to acknowledge that at first sight it looks like we were less successful in this part of the world than elsewhere. So far, Lebanon is the only State party to the Protocol in the region. This is a pity, because I am in fact convinced that the OPCAT is exceptionally well fitted to respond to particular Middle Eastern concerns.
First of all, the OPCAT does not set any new standards, but it is an operational instrument designed to empower States to better implement existing standards that protect persons deprived of liberty. Since no additional standards are created there is no risk of conflict with specific cultural and social values of the region. Secondly, the vast bulk of detention monitoring under the OPCAT is conducted by national experts who are guided by international, regional and national standards and values. Thirdly, the OPCAT with its cooperative and solution-oriented approach is an ideal mechanism to accompany and steer justice reform processes as they are underway in many States of the region.
In general, I can say that several governments in the region are open to the idea. Morocco, Tunisia, Egypt, Saudi-Arabia, Iraq, Qatar and Yemen, for example, have all committed themselves to examine the possibility to ratify the OPCAT in the context of the Universal Periodic Review (UPR) of the UN Human Rights Council. These commitments are a great opportunity to approach these States, sit-down with the officials and explain the advantages of joining the Protocol. But the APT does not have the human or financial resources to follow-up in all States. We are less than 20 staff members, working out in a small office in Geneva, and alone we can achieve very little.
How active is the civil society in the Middle East and North Africa campaigning for OPCAT ratification?
Civil society, including National Human Rights Institutions, play a key role in the campaign, all over the world. Our capacity for lobbying from Geneva is limited. Moreover, we often don’t know the local context well enough to know how to proceed and which arguments to use. We always work with local partners, from civil society and government, supporting them in their efforts in obtaining ratification instead of starting our own campaign. In Lebanon, national civil society organizations have played a key role in obtaining the ratification, through targeted campaigns, the building of a coalition and involvement of parliamentarians. We provided the Lebanese NGOs with our publications, some of which they have translated into Arabic, we participated in workshops, but it was a national, Lebanese campaign, not an APT campaign.
In other countries, for example in Morocco or Bahrain, civil society organizations do actively lobby for the ratification of OPCAT and talk to government officials about it. On the other hand, some NGOs in the Middle East and elsewhere are a bit skeptical initially about how OPCAT could work in their countries. And because they used to a more confrontational approach with governments, they find that the OPCAT is a “weak” instrument. It is true, the bodies created under the OPCAT can only make recommendations, they cannot oblige the authorities to implement any of these recommendations. But we have seen all over the world how the dialogue between external experts and detaining authorities does lead to improvements over time.
The APT set up recently a workshop entitled «Safeguards against torture», which was held in Bahrain in June 2010. Are you satisfied with outcome of the workshop, and do you think the workshop has achieved its intended purpose, and what is the next step in your opinion that should be taken by Bahrain after this workshop?
The APT has been involved in two different workshops in Bahrain this year. In May 2010 we participated in a workshop organized by the Bahrain Human Rights Society on detention monitoring for human rights activists from the Gulf and Yemen. In June 2010 we facilitated a workshop for judges and prosecutors about fundamental safeguards against torture. This was the follow-up to a workshop we conducted in May 2009 on the criminalisation and prevention of torture, for which we had been invited by the Ministry of Foreign Affairs.
As you know, States are not only obliged under international law to prohibit torture, international law also lays down a whole series of safeguards that States need to proactively take to reduce the risk of torture. Such safeguards are for example the right of a person forced to remain with the police to have access to a lawyer, to meet with an independent doctor and to inform his family. All of these have to take place from the outset of his deprivation of liberty and regularly thereafter. Video-recording of interrogation sessions is another very effective safeguard. Other protection measures relate to the interaction with the judiciary. As you know, evidence, including confessions, obtain by torture is inadmissible under international law in any legal proceedings. Moreover, judges should never rely on confessions alone for convictions but they should be obliged to always base their decisions on additional corroborative evidence. Related to this, the system of promotions in law enforcement and other investigative bodies should not depend on a speedy identification and conviction of a maximum of offenders, but on careful and comprehensive search for the truth. We observe that the risk for torture increases dramatically when police and other investigative bodies are under pressure to obtain confessions. Under international law judges have an ex-officio obligation to order a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture or other ill-treatment has been committed on a person brought in front of them. They have to do so not only when a person alleges to have been tortured, but as soon as they observe any signs or behaviour that leads them to wonder if this could have happened.
In our latest workshop we had fruitful discussions with the participants about if and how these and other safeguards are enshrined in Bahraini law and implemented in everyday practice. Unfortunately, the number of participants was quite limited this year as compared to last year’s workshop, which made the discussion less representative and surely lowered the impact of the seminar. It is too early for me to say if the objectives of the workshop have nevertheless been met. The most important result of such workshops are not what happens during the workshop itself, but changes that happen in everyday practice after the workshop.
Your Organization specializes in the prevention of torture rather than focuses its attention on reporting individual cases, this approach enable the APT to cooperate with the authorities in a particular country, such as: police departments, the judicial authorities, national institutions and NGOs. Is this approach successful in facilitating cooperation with the concerned authorities in the Middle East?
Accurate and detailed documentation of human rights violations and denunciation of such practices is of primordial importance in the struggle against torture. Courageous human rights defenders all over the world do take risks on a daily basis to bring violations, including torture, to light. But this always happens after violations have already taken place. Our mandate focuses on improving the system in such a way to reduce the risk of torture and other ill-treatment, so that such horrible, devastating acts do not happen in the first place. We therefore have another approach, we try to bring all actors together who are committed to lessen the risk of torture, be they from government, civil society or the judiciary. And in general it works very well. I think it lies in the nature of mankind that human beings like to get together and join forces to work for a better future.
But I don’t want to sound naïve: we are confronted with challenges, in the Middle East and elsewhere, of course. We need to be careful not to be misused for window dressing exercises or for masking political objectives. Let me give you one example of how detention monitoring can be misused. As you know, States parties to the UN Convention against Torture are not allowed to expel, return or extradite a person to another State where he would be in danger of being subjected to torture. But some States try to circumvent this obligation by signing bilateral agreements in which the receiving state assures the sending state that a certain individual will not be tortured. Isn’t that absurd – they are already obliged not to torture under no circumstances and by signing such agreements they acknowledge that in general they torture but in this case they will not! Moreover, these agreements do not protect against torture and human rights NGOs are therefore rightly campaigning against them. To diffuse critics, some governments include a oversight obligation for one individual detainee into these agreements. But of course this is an abuse of oversight and no protection against torture for the individual under concern. If we feel our ideas get misused, like in this case, we say that clearly and publicly.
One of essential conditions contained in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is that States Parties shall ensure the prohibition of torture and the punishment of perpetrators under domestic criminal law. Do you think the contents of domestic criminal law in the Middle East states enough to prevent torture and punish the perpetrators?
Yes, indeed, the individual criminal responsibility for perpetrators of torture under domestic law is a key obligation under the UN Convention and an important bulwark against impunity. The Committee against Torture therefore requires from States to include a definition of torture in conformity with the Convention. This definition includes the following key elements:
(a) any act by which sever pain or suffering, whether physical or mental, is inflicted on a person;
(b) the pain or suffering must be intentionally inflicted on the person; for a purpose;
(c) the pain or suffering must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
It is not sufficient to have acts of torture covered by other offences, such as assault. If there is no specific definition, the judge has to juggle with different definitions and torturers risk to escape a punishment that corresponds to the real gravity of the act. Moreover, the authorities are confronted with practical problems because important elements of the Convention such as those related to universal jurisdiction will not be implemented. Similarly, states will not be able to track down the impact of torture prevention measures.
States like Jordan and Morocco have recently amended their penal codes to include definitions of torture close to the one of the convention, but most others still have to do so. Many have committed themselves in the front of the UN Committee against Torture or the UPR to undertake such legal amendments, like for example Egypt recently. This opens windows of opportunity for all of us and we definitely want to join forces with others to make use of these windows!