Source: The International Service for Human Rights (ISHR) 2010Heated exchange between States and Special Rapporteur on torture mars his last official duty at UN
After six years as the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak's presentation of his final report to the Third Committee of the General Assembly was a less than fitting end to his mandate.(1) Although no stranger to robust discussions with member States, his interaction with the Ambassador of Jamaica, and subsequently with the representative of Zimbabwe, were particularly acrimonious. Additional criticisms were levelled by Algeria, Egypt and Sudan in response to negative references to them in his report. This caused the latter part of the interactive dialogue to descend into a slanging match, which deflected attention from the valuable observations and recommendations in the Special Rapporteur's reflective report.
After 18 country visits and interviews with well over one thousand detainees, the Special Rapporteur came to the General Assembly ready to comment on the global situation regarding torture and ill-treatment. He concluded that torture was occurring in the 'vast majority' of States. Although he had found torture in all but one of his country visits (Denmark), most were isolated instances, rather than manifestations of a systemic problem.(2) This was nonetheless a 'very sad reality' given the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment and its Optional Protocol provided States the means to prevent torture altogether. The legal safeguards and the political will to implement them were lacking, which led the Special Rapporteur to conclude that 'States do not seem to take their obligations seriously'. States' willingness to treat torture as 'the lesser of two evils' in their fight against terrorism and organised crime, was not only jeopardising the legal prohibition against torture, but making impunity for these crimes a root cause of their persistence.
Overview of the Special Rapporteur's statement and interactive dialogue
A further worrying trend identified by the Special Rapporteur was States' failure to ensure that victims of torture were provided an enforceable right to fair and adequate compensation, including access to rehabilitation. In States such as Algeria, Egypt, Sudan and Zimbabwe, legislative restrictions were being used to prevent civil society organisations from working to support and rehabilitate torture victims. In others, such as Greece and Kosovo, State cutbacks as a result of the global financial crisis were resulting in the closure of rehabilitation centres.
Although the Special Rapporteur acknowledged torture as 'one of the most horrendous human rights violations', he nonetheless drew States' attention to the deplorable state of detention conditions around the world. They were 'much worse' than he had imagined, and those he had met with in the course of his mandate had repeatedly compared their treatment as being 'worse than animals'. As he had last year, the Special Rapporteur called on the General Assembly to address the 'global crisis of detention' by adopting a convention that would define, in a legally binding manner, the extent to which human rights may legitimately be restricted during detention, whilst also ensuring certain minimum standards and conditions of detention were met.The Special Rapporteur also took aim at the Human Rights Council for the manner in which it treated its own special procedures. Reminding States that these voluntary experts were intended to be the 'eyes and ears of the Council', rather than to serve the interests of States, he suggested that States' interference in their work was the equivalent of 'blindfolding and deafening them'. He later rebuked the General Assembly for its failure to adequately resource and support the special procedures, and appealed for the Office of the High Commissioner for Human Rights (OHCHR) to be funded so it could provide all special procedures with the 'excellent assistance' it was renowned for.
Jamaica took issue with the 'sweeping assessments' and 'unsubstantiated' conclusions in the Special Rapporteur's report of his visit to Jamaica in February 2010. The Special Rapporteur responded that the report contained the same information he had made public in Jamaica at the conclusion of his visit. Despite his critical findings,(3) the Special Rapporteur referred to his 'excellent relationship' with the Government and questioned whether the Jamaican Ambassador was representing the Government's views or his own. The Ambassador found this question 'highly offensive'.
In the case of Zimbabwe, the two parties revisited the sensitive issue of the Government's decision to rescind its invitation for an official visit at short notice in November 2009. As he had at the time of the incident, the Special Rapporteur protested that the decision was only conveyed to him when he was in transit to Harare,(4) making his arrival in the capital unavoidable rather than orchestrated. He was annoyed that despite having managed to confirm that the Prime Minister wanted to proceed with their meeting, the Prime Minister's staff were refused access to the airport to collect him.
Despite these altercations, most of the States that took part in the dialogue were grateful to the Special Rapporteur for the significant contribution he had made to the prevention of torture and ill-treatment. The remarks by the US representative stood out from those made by most other States that were the subject of critical findings from the Special Rapporteur. The US was 'sorry to see [the Special Rapporteur] go' and gave him the ultimate compliment that his 'dedication and integrity' had persuaded some States to cooperate to address torture and ill-treatment.
Human Rights Council and UN human rights system in a 'state of crisis'
At a side-event co-hosted by the Danish Mission and the Association for the Prevention of Torture, the Special Rapporteur delivered a scathing assessment of the UN's principal human rights body. On 25 October, the first day of the Council's work on its five-year review of its work and functioning, the Special Rapporteur said the degree of politicisation of the work at the Council was comparable to that of its predecessor (the Human Rights Commission) at the height of the Cold War. Rather than tackling the gravest human rights violations as its mandate required, he criticised members of the Council for spending more time 'trying to censor independent experts' who were complying with their mandates by exposing these violations. Not only was this a misuse of the interactive dialogues, it had become a standard tactic States used to avoid discussing the recommendations.The Special Rapporteur went on to declare the UN human rights system to be in a 'state of crisis'. The proliferation of thematic special procedures, without a commensurate growth in resources, had stretched the ability of OHCHR to provide the necessary level of professional support to mandate-holders. Left with no other option, they were increasingly seeking support from external sources, and being criticised by States for doing so. The treaty body system was also starved of resources, and this was having a detrimental effect on its ability to carry out its responsibilities. In terms of the treaty body work on torture, this shortage was demonstrated by the official request from the Committee Against Torture (CAT) for additional meeting time to address its backlog in State party reports and communications, as well as a general request for additional resources from the Sub-Committee on the Prevention of Torture.(5)
In a welcome innovation in New York, the side-event also provided a platform for the incoming Special Rapporteur on torture, Mr Juan Mendez, to outline his approach to the mandate. Mr Mendez took up his three-year mandate on 1 November 2010. He intends to: take a victim-centred approach; work to restore the absolute prohibition against torture; coordinate with CAT, the Sub-Committee and relevant regional and sub-regional systems; condemn and name States systematically using torture; seek reforms and reduce the incidence of torture using dialogue and cooperation; insist on accountability for all incidences of torture; promote international criminal justice mechanisms; insist on the exclusion of evidence obtained using torture; work on the limits to pre-trial detention; insist on the principle of non-refoulement in relation to deportation and extradition cases; ensure careful scrutiny of diplomatic assurances; maintain a high number of country visits and use country reports to further dialogue with States; prioritise follow-up visits; address the treatment and conditions of detainees.
(1) The dialogue was carried over two days. The UN press releases covering 25 October and 26 October provide further detail of the dialogue.
(2) He found systemic torture in Nepal (during the armed conflict between the Government and the Maoists) and Equatorial Guinea, where it was part of Government policy.
(3) The Special Rapporteur reported a high level of police brutality and 'isolated' cases of torture in Jamaica He was most concerned by the use of extrajudicial killings by police officers, as well as the poor conditions of detention.
(4) The press release issued by the Special Rapporteur immediately after this incident (29 October 2009) is available at http://bit.ly/9ByrfG
(5) The CAT requested the General Assembly approve resources to allow it to hold an additional four weeks of meetings over the course of 2011 and 2012. The request was taken up by Denmark in resolution A/C.3/65/L.25, available at http://bit.ly/9nBbse The Sub-Committee's membership will increase from 15 to 25 on 1 January 2011, making it the largest treaty body. In its report to the General Assembly, the Sub-Committee said it 'earnestly hopes that the General Assembly will be able to provide it with sufficient resources for the next biennium to enable it to discharge its mandate' (A/65/44, Annex VII, para.43).
