THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE AND THE PREVENTION OF TORTURE IN NEW ZEALAND
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1
THE OPTIONAL PROTOCOL TO
THE CONVENTION AGAINST
TORTURE AND THE PREVENTION
OF TORTURE IN NEW ZEALAND
Stuart Beresford 1
Introduction
Torture is a barbaric act: one that has no place in modern society. Many
academics, politicians, and other commentators have condemned the practice
on both legal and moral grounds, including strangely enough JK Rowling –
author of the Harry Potter series of books – who describes the use of torture
as an unspeakable act. 2
In the magical world created by JK Rowling, witches and wizards who are
charged with offences against the laws of the Ministry of Magic are seldom
granted a fair trial – at least not by Muggle (non-wizard) standards. Although
they are brought before a tribunal of their peers and tried in open court, their
entitlements to legal counsel and the presumption of innocence are often
ignored and in some cases deliberately withheld. 3 But while witches and
wizards do receive some limited human rights protections during the judicial
process, once convicted they are denied even their most basic rights.
Convicted witches and wizards are sent to Azkaban, a prison cloaked in
secrecy, located in a far-off place inaccessible to public scrutiny. 4 Azkaban
has a horrible reputation. The prison is guarded by foul beasts known as
1 Policy Manager, Ministry of Justice. The views expressed herein are those of the
author and do not necessarily reflect the views of the Ministry.
2 JK Rowling, Harry Potter and the Goblet of Fire, chapter 14.
3 Ibid, chapter 30.
4 JK Rowling, Harry Potter and the Prisoner of Azkaban, chapter 3.2 Human Rights Research
Dementors, whose presence renders the inmates incapable of happiness and
forces them to relive their worst memories. They become gradually helpless
and very often insane. Many inmates despair, and this in turn causes them to
stop eating and eventually die of starvation. 5 But while the magical world
created by JK Rowling is fictional, her observation of the acts of torture and
other forms of abuse facing those behind bars is unfortunately very real.
For many, torture is a remote concept. Most people have never experienced
the fear of torture and their only exposure to the act comes from the news or
the fictional works of others. But despite being prohibited under international
law for over 50 years, torture is still widespread and is routinely employed by
many states as an interrogation technique and a form of punishment,
particularly in places of detention. 6 This is concerning since persons deprived
of their liberty are most at risk of torture and ill-treatment as they are cut off
from the outside world and dependent on the authorities for their most basic
needs and rights.
Reaffirming that freedom from torture and ill-treatment is a right that must be
protected in all circumstances. Based on the premise that regular visits to
places of detention is one of the most effective means to prevent such abuses
and improve conditions of detention, on 18 December 2002 the UN adopted a
novel international treaty for their prevention: the Optional Protocol to the
Convention against Torture. 7 At the time of writing, 35 states have ratified
the Optional Protocol and a similar number have signalled their intent to
ratify the treaty in the near future. 8
The Optional Protocol is a ground-breaking instrument. It features a twin
pillar approach to torture prevention, based on the establishment of a system
of regular visits to places of detention carried out by independent
5 Goblet of Fire, supra note 1, chapter 27.
6 Stanley has noted that between 1997 and 2000 torture was applied systematically
in 70 countries and employed by three-quarters of the world's governments.
Elizabeth Stanley, Silencing Torture, Human Rights Research 69 (2004) at 69.
7 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted by the UN General Assembly on 18
December 2002, UN Doc. A/RES/57/199, entry into force 22 June 2006.
8 The details of which countries have signed or ratified the Optional Protocol are
available at: www2.ohchr.org/english/bodies/ratification/9_b.htm#ratification.THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 3
international and national bodies. These bodies will work together to
establish effective measures to prevent torture and ill-treatment and to
improve the conditions of detention of all persons deprived of liberty.
This article will explore how this innovative, but potentially onerous
instrument came into being. To understand the final shape and structure of
the treaty the article starts by discussing the background and drafting history
of the Optional Protocol, following which it will examine the treaty's core
provisions. The article will then consider the major challenges facing the
international and national bodies that are set up under the Optional Protocol,
concluding that although these challenges will be plenty they are not
insurmountable. The article will lastly discuss the implications of the
Optional Protocol for New Zealand and why this country, which was a
leading supporter of the treaty, took almost four-and-a-half years to ratify the
instrument after its adoption.
Development of the Optional Protocol
Torture appears to have been practised in many regions of the world in many
periods of history. In Europe, the practice was routinely used during the
Middle Ages as a method to obtain evidence for judicial proceedings,
particularly when confessions came to be regarded as the 'queens of proof'. 9
The Enlightenment brought about a change in attitude towards the practice.
In revision after revision from 1750 on, the provisions for torture in the
criminal codes of Europe were rolled back, until by 1800 they were barely
visible. […] After the end of the eighteenth century torture acquired a
universally pejorative association and came to be considered the institutional
10
antithesis of human rights.
But torture was never eradicated. 11 In the twentieth century the practice made
an unwelcome comeback. The totalitarian regimes that established
9 J Herman Burgers and Hans Danelius, The United Nations Convention against
Torture: A Handbook on the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff, Dordrecht,
1988), at 10.
10 Edward Peters, Torture (New York/Oxford, 1985) at 4.
11 MD Evans, Signing the Optional Protocol to the Torture Convention, NZLJ
(2004) 383, at 383.4 Human Rights Research
themselves in the period between the two world wars deliberately employed
torture as one of the foundations of their power to gruesome effect. As
Burgers and Danelius note, 'Extraction of confessions was only a secondary
function of their torture practices, the primary function being to spread terror
among the population'. 12
Unfortunately, the situation has not improved. In fact, some would say it has
got worse. In its 2007 annual report, Amnesty International noted that of the
153 states and territories surveyed, at least 102 had resorted to torture or
other ill-treatment. 13
This is despite the fact that the prohibition of torture is one of the
cornerstones of modern human rights principles. The Universal Declaration
of Human Rights (UDHR) proclaims that: 'No-one shall be subject to torture
or to cruel, inhuman or unusual treatment or punishment'. 14 Although the
Declaration is not a legally binding instrument, this provision has been
specifically incorporated into a number of regional and global human rights
instruments including: the European Convention on Human Rights and
Fundamental Freedoms; 15 the International Covenant on Civil and Political
Rights; 16 the American Convention on Human Rights; 17 and the African
Charter on Human and People's Rights. 18 The international campaign against
12 Burgers and Danelius, supra note 8, at 10.
13 Amnesty International Report 2007 – The State of the World's Human Rights,
Amnesty International, 23 May 2007, available at
www.amnesty.org/en/library/asset/POL10/001/2007/en/dom-
POL100012007en.pdf.
14 1948 Universal Declaration of Human Rights, Article 5.
15 1953 European Convention on Human Rights and Fundamental Freedoms, Article
3.
16 1966 International Covenant on Civil and Political Rights, Articles 7 and 10.
17 1978 American Convention on Human Rights, Article 5(2).
18 1981 African Charter on Human and People's Rights, Article 5.THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 5 torture culminated in the adoption of the Declaration against Torture in 1975 19 and the Convention against Torture in 1984. 20 Most countries in the world have ratified the Convention against Torture. 21 However, it is generally accepted that the prohibition on torture also forms part of customary international law, and so is binding on all states irrespective of whether they have ratified the treaty. 22 Consequently, the prohibition can be said to be absolute, 23 non-derogable 24 and jus cogens (i.e. a peremptory norm of international law). 25 19 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNGA Resolution 3452 (XXX). 20 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by Resolution 39/46 of the UN General Assembly on 10 December 1984, entry into force 26 June 1987. 21 As of 1 May 2008, 145 countries had ratified the Convention against Torture, figures available at www2.ohchr.org/english/bodies/ratification/9.htm. 22 The existence of a rule of customary international law is established through evidence of the actual practices of states (either doing something or refraining from doing something) and evidence that the practice is pursuant to a shared opinion that the action or abstention is required by international law (opinio juris). There is ample evidence to support that many court judgements and scholarly analyses that have found the prohibition to be part of customary international law. See, for example, the evidence cited in JM Henckaerts and L Doswald-Beck, Customary International Humanitarian Law Volume I: Rules, International Committee of the Red Cross and Cambridge University Press, Cambridge 2005, at pages 315-317; Declaration against Torture; and UN Human Rights Committee, General Comment 24, General Comment on Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations Under Article 41 of the Covenant, UN Doc CCPR/C/21/Rev.1/Add.6(1994), para 8; Examples of international cases confirming the customary prohibition include: International Criminal Tribunal for the former Yugoslavia, Prosecutor v Furundzija (10 December 1998), Case No IT-95-17/I-T, para 148; European Court of Human Rights, Al-Adsani v UK [2001] ECHR 35763/97, at para 61; and Inter-American Court of Human Rights, Caesar v Trinidad and Tobago (11 March 2005), para 70. 23 That is, no act of torture can be justified on any basis in any circumstance. See Human Rights Committee, General Comment 20 UN Doc. HRI\GEN\1\Rev.1 at 30 (1994), para 3; and Convention against Torture, Articles 2(2) and 3.
6 Human Rights Research
The Convention against Torture obliges states to take effective measures to
prevent torture and other cruel, inhuman or degrading treatment or
punishment. 26 In order to better prevent and punish torture, the Convention
also requires states to criminalise and prosecute acts of torture, and prohibit
the use of information obtained by torture.
The Committee against Torture, which was created under the Convention,
periodically assesses each State Party's progress. It relies primarily on written
reports submitted to the Committee by government authorities and non-
governmental organisations (NGOs). This is followed by a face-to-face
discussion between the Committee and the state authorities, and separate
discussions with national NGOs. Some State Parties have authorised the
Committee to consider complaints from individuals, to which the Committee
responds through written decisions. 27
The Committee may visit the territory of a State Party but such visits are only
made with the state's specific consent and can only be invoked in response to
"well-founded indications that torture is being systematically practised." 28
State party visits are thus extremely rare. In the 20 years since the
Convention entered into force, the Committee has officially instigated
inquiries under Article 20 of the Convention, which can involve in-state
24 That is, states are not permitted to temporarily limit the application of the
prohibition under their domestic law for any public emergency. See International
Covenant on Civil and Political Rights, Article 4(2); American Convention on
Human Rights, Article 27(2); and European Convention for the Protection of
Human Rights and Fundamental Freedoms, Article 15(2). See also Human Rights
Committee, General Comment 20, para 3.
25 That is, any reservation, treaty provision, declaration of interpretation, or any
other customary rule that is inconsistent with the prohibition is invalid to the
extent of the inconsistency. See Erika de Wet The Prohibition of Torture as an
International Norm of Jus Cogens and its Implications for National and
Customary Law 15 EJIL 97 (2004).
26 Convention against Torture, Articles 2(1) and 16.
27 See Convention against Torture, Article 22.
28 See Convention against Torture, Articles 20(1) & (3).THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 7 visits, on eight occasions and only in respect of five of the 145 State Parties. 29 State visits may also be made by the UN Special Rapporteur on Torture, who was established by UNCHR Resolution 1985/33 to examine questions relevant to torture. 30 These visits allow the Special Rapporteur to gain more direct knowledge of cases and situations falling within his mandate, and enhance the dialogue between the Special Rapporteur and the authorities most directly concerned. 31 While visits may be made to all States irrespective of whether a State has ratified the Convention against Torture, they are by invitation only. 32 The Special Rapporteur has approached States on which he has received information indicating the existence of a significant incidence of torture requesting permission to visit that State. But many of these requests have not been agreed to.33 The inability to conduct visits unannounced limits the effectiveness of the Special Rapporteur's monitoring role. Although the prohibition on torture and ill-treatment is readily accepted – although not always practised – the international community have struggled to develop an effective mechanism for determining whether such abuses have occurred. This is despite the fact that the independent monitoring of places of detention has been recognised as the best means to eliminate these practices. As the Special Rapporteur on Torture notes: 29 See M Nowak & E McArthur, The United Nations Convention Against Torture: A Commentary, Oxford, Oxford University Press (2008) at 679. Other inquires may have been undertaken, but if so they have remained confidential. Association for the Prevention of Torture, Establishment and Designation of National Preventive Mechanisms (APT/Lausanne 2006) at n5. 30 13 March 1985, E/CN.4/RES/985/33. 31 See Methods of Work of the Special Rapporteur on Torture, clause 12 available at www2.ohchr.org/english/issues/torture/rapporteur/docs/methodswork.doc 32 Fifty countries including New Zealand have issued a standing invitation to the Special Rapporteur. 33 In 2007, for instance, the Special Rapporteur renewed requests for invitations from a number of States, including Afghanistan, Belarus, Egypt, Fiji, India, Iran, Israel, Papua New Guinea, the Syrian Arab Republic and Zimbabwe. Some of these requests were first made in 1997. Report of the Special Rapporteur on Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment, UN Doc A/62/221 (13 August 2007) at para. 11.
8 Human Rights Research
[T]orture and ill-treatment usually take place in isolated places of detention,
where those who practice torture feel confident that they are outside the reach
of effective monitoring and accountability. Since torture is absolutely
prohibited under all legal systems and moral codes of conduct world-wide, it
can only function as part of a system where the colleagues and superiors of
torturers order, tolerate, or at least condone such practices, and where the
torture chambers are effectively shielded from the outside. The victims of
torture are either killed or intimidated to the extent that they do not dare talk
about their experiences. If victims nevertheless complain about torture, they
face enormous difficulties in proving what happened to them in isolation and,
as suspected criminals, outlaws, or terrorists, their credibility is routinely
undermined by the authorities. Accordingly, the only way of breaking this
vicious cycle is to expose places of detention to public scrutiny and to make
the entire system in which police, security and intelligence officials operate
more transparent and accountable to external monitoring. 34
The Optional Protocol is the latest attempt by the international community to
develop an effective mechanism to prevent torture and ill-treatment. The
treaty was adopted on 18 December 2002 by 127 votes to four with 42
abstentions.
Despite the Pacific being known for its peace and tranquillity, support for the
Optional Protocol in the region has been mixed. Two of the four countries
who voted against the adoption were from the Pacific, namely the Marshall
Islands and Palau. The other two states were the United States and Nigeria.
Australia – which had initially opposed the treaty when it was considered by
the UN Economic and Social Council – abstained from the vote in the
General Assembly. The Australian government subsequently announced that
it would not sign the treaty. 35 However, a change in government in 2007
34 Report of the UN Special Rapporteur on Torture, UN Doc. A/61/259 (14 August
2006), para 67.
35 The Australian Parliament's Joint Standing Committee on Treaties considered that
there was no need for Australia to ratify the Optional Protocol. Australia was
already a party to, and complies with, the substantive human rights instrument –
the Convention against Torture – and as it was a leader in human rights, there was
no need for the system of inspections and preventative mechanisms, which the
Optional Protocol puts in place. It also believed that UN treaty bodies should be
focussed on 'serious human rights violations' and questioned the need for further
UN commitment and resources being put into further monitoring by a UN body.THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 9
brought about a shift in attitude towards the Optional Protocol. In May 2008,
the current Australian government announced that it was considering
acceding to the treaty, although at the time of writing no formal steps have
been taken in this regard. Of the countries that have ratified the treaty to date,
New Zealand remains the only country from the Pacific region to have done
so. More concerning is the failure of the Pacific states (other than Timor-
Leste) to sign the Optional Protocol, thereby signalling their support for the
treaty and their intention to abide by its obligations some time in the future.
So how did the Optional Protocol originate? The story of the treaty begins in
a proposal tabled in 1981 by Costa Rica during the drafting of the
Convention against Torture. 36 The essence of this proposal (which was
clearly influenced by the practice of the International Committee of the Red
Cross) 37 was that an International Visiting Mechanism should be created
which would have the authority to visit unannounced 'any place … subject to
the jurisdiction of a State Party where persons are held who have been
deprived of their liberty for any reason'. 38 No-one seriously believed that
such a mechanism would eliminate torture and ill-treatment by having people
turn up at a prison, expose the use of such abuses and through international
pressure stop those acts. In fact, Costa Rica submitted the draft to the Human
Rights Commission on the express understanding that it would not be
considered within the United Nations until after the Convention against
Torture had itself been adopted. 39 Rather, the purpose was to assist in the
Joint Standing Committee on Treaties, Report 58: Optional Protocol to the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, March 2004, Canberra.
36 Draft Optional Protocol to the Draft International Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, submitted by
Costa Rica, E/CN.4/1409, 10 April 1980 (reproduced in Burgers and Danelius
(Eds), supra note 8, Appendix 8, at 213).
37 MD Evans and C Haenni-Dale, Preventing Torture? The Development of the
Optional Protocol to the UN Convention Against Torture 4 Human Rights Law
Review (2004), at 23.
38 Article 1(1), Costa Rica Draft Protocol.
39 Opposition to the proposed mechanism stemmed mainly from its wide-ranging
right of access to any place of detention coupled with the possibility of its
findings being made public. See Evans and Haenni-Dale, supra note 33, at 23 and
24.10 Human Rights Research
development of systems and cultures in which torture and ill-treatment would
have no place. 40
But it soon became clear that it was not only premature to undertake this
ambitious project, but the very attempt to do so might derail the work that
had gone into the drafting of the Convention against Torture. So things at the
UN were put on hold.
Instead attention turned to the Council of Europe where it was suggested that
such an instrument might be developed at the regional level. This led to the
adoption of the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment in 1987. 41 The Committee
for the Prevention of Torture (CPT), which was set up by this treaty, is
allowed to visit unannounced all 'places of detention' of the member states of
the Council of Europe. The CPT has carried out some 240 visits and
produced over 200 reports (the majority of which have been made public). 42
This has generally been regarded as a highly successful system. 43
It was not until 1991 that the idea of establishing a global preventive
mechanism on torture and ill-treatment was resurrected and formal
discussions on the development of an international treaty commenced at the
UN. 44 In the decade since the idea was first mooted, the international
landscape had changed. The work of the existing international institutions
40 Evans, supra note 10, at 383.
41 ETS No 126 (in force 1 February 1989).
42 For an analysis of the work of the European CPT see generally MD Evans and R
Morgan, Preventing Torture: A Study of the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(Oxford: Clarendon Press, 1998).
43 Evans and Haenni-Dale, supra note 33, at 24.
44 See proposal by Costa Rica, E/CN.4/1991/66. The Human Rights Commission
had previously decided to defer further consideration of the proposal to establish a
global mechanism to prevent torture on two occasions, first in March 1986 and
then subsequently in March 1989. See UNCHR Resolution 1986/56 on Torture,
Inhuman or Degrading Treatment or Punishment, 13 March 1986
E/CN.4/RES/1986/56; and UNCHR Resolution 1989/104 on Postponement of
Consideration of a Draft Optional Protocol to the Draft International Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 6 March 1989, E/CN.4/RES/1989/104.THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 11
combating torture – the Committee against Torture, the CPT and the Special
Rapporteur on Torture – showed that visits to places of detention were one of
the most effective means to prevent torture and ill-treatment and improve
conditions of detention. 45
Proponents of an international monitoring regime argued that visits not only
had a deterrent effect but they enabled experts to properly understand the
local contexts, identify inadequate systems – many of which can be improved
through regular monitoring – and build ongoing and sustainable working
relations with the relevant authorities. 46 The Special Rapporteur on Torture
has observed that:
The aim of carrying out country visits is to see first-hand what the true
practice and situation of torture and ill-treatment is: to identify gaps as well
as acknowledge positive measures, to recommend ways to improve the
situation, and to initiate a process of sustained constructive cooperation with
the Government together with the international community and civil society in
order to eradicate torture and ill-treatment. 47
This illustrates, above all else, the need for complementary bodies operating
at the national level under the framework of domestic law and it was this
realisation that provided the catalyst to success. In January 2002, when
negotiations were on a knife-edge, 48 it was suggested that instead of focusing
45 Evans and Haenni-Dale, supra note 33, at 24.
46 Evans, supra note 10, at 383.
47 Civil and Political Rights Including the Questions of Torture and Detention.
Torture and Other Cruel Inhuman or Degrading Treatment, Report of the Special
Rapporteur on the Question of Torture, Manfred Nowak, E/CN.4/2006/6, 23
December 2005, at para 21.
48 During the ninth session of the Working Group on a Draft Optional Protocol to
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment a proposal was presented by Mexico, on behalf of the
Group of Latin American and Caribbean states, that proposed that the focus of the
Optional Protocol should be upon national as opposed to international preventive
mechanisms. This was met with hostility from some NGOs and state
representatives and induced Sweden on behalf of the European Union to submit a
number of alternative proposals for inclusion – which meant that there were
effectively three versions of the Optional Protocol on the table: Draft articles from
the consideration previously provided to the Costa Rica proposal of 1991 the12 Human Rights Research
exclusively on establishing an international visiting mechanism, the Optional
Protocol should also provide for national preventive mechanisms which
would have the same functions: of visiting places of detention, making
recommendations and engaging in dialogue with the government. 49
There was wide-spread support for this 'twin pillar' approach. 50 The Optional
Protocol obliges states to set up, designate or maintain one or several national
preventive mechanisms, which conform to certain minimum standards of
independence and have the right of access to places of detention and power to
make appropriate recommendations to the state. 51 The Optional Protocol also
creates a Subcommittee of the UN Committee against Torture, comprised
initially of 10 independent experts from a variety of fields related to the
treatment of detained persons (although this figure will increase to 25 after
the fiftieth ratification). 52 The Optional Protocol thus combines periodic
scrutiny by international experts, with more frequent visits to a greater
number of places of detention by national preventive mechanisms.
On 18 December 2006, the first members of the Subcommittee were
elected. 53 The members were chosen from a list of professionals with
experience in various fields relevant to the treatment of persons deprived of
their liberty. Although the Protocol provides that the members of the
Subcommittee will normally be appointed for a term of four years, to ensure
continuity in its work, the terms of the half of those elected (the names of
Mexican proposal and the EU proposal. See Evans and Haenni-Dale, supra note
33, at 27.
49 See 10th Annual Report of the Working Group on a Draft Optional Protocol to
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 20 February 2002, E/CN.4/2002/78, Annex I.
50 See Evans, supra note 10, at 383.
51 Optional Protocol, Articles 17 to 23.
52 Optional Protocol, Article 5.
53 The elected members were Silvia Casale (UK), Mario Luis Coriolano
(Argentina), Marija Definis Gojanovic (Croatia), Zdenek Hajek, (Czech
Republic), Zbigniew Lasocik (Poland), Hans Draminsky Petersen (Denmark),
Victor Manuel Rodriguez Rescia (Costa Rica), Miguel Sarre Iguiniz (Mexico),
Wilder Tayler Souto (Uruguay) and Leopoldo Torres Boursault (Spain). See
www2.ohchr.org/english/bodies/cat/opcat/index.htm#membership.THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 13 which were drawn by lot) are to expire at the end of two years. The members of the Subcommittee are, however, eligible for re-election once if re- nominated. 54 Subcommittee on Prevention While it was generally understood that the Optional Protocol sought to establish a probing mechanism, the main point of contention was the extent to which national authorities could exercise control over the activities of the Subcommittee. Evans and Haenni-Dale note that the Optional Protocol strikes a balance between 'the freedom of the international mechanism and the concerns of the State by trading 'sovereignty' against 'confidentiality''. 55 This means that the Subcommittee will have a near unrestricted right of access to places of, and persons in, detention in all State Parties to the Optional Protocol. These visits will enable the Subcommittee to make its own first-hand evaluation of the situation and engage in dialogue with the state based on those findings. Following the visits the Subcommittee will write a report containing recommendations to relevant authorities. 56 However, the report will remain confidential unless the state concerned agrees that it can be made public or fails to cooperate with the Subcommittee. 57 It is intended that the Subcommittee will also play an important advisory role for State Parties and domestic mechanisms, as well as provide training and technical assistance to the latter with a view to improving their capabilities. 58 This tripartite relationship should foster a framework of sustained and constructive cooperation and dialogue to assist states implement any necessary changes to prevent torture and ill-treatment in the long term. Members of both the international and national mechanisms will be mandated to conduct visits to places of detention on a regular, periodic basis. The 54 Optional Protocol, Article 9. 55 Evans and Haenni-Dale, supra, note 33, at 31. 56 Optional Protocol, Article 16(1). 57 Optional Protocol, Article 16(2) and (4). 58 Optional Protocol, Articles 11(b), 12(c) and 20(f); see also Establishment and Designation of National Preventive Mechanisms, supra note 28, at 75.
14 Human Rights Research
Subcommittee will establish a calendar of visits to all State Parties and may
propose a follow-up visit if it considers it appropriate. The national
preventive mechanisms will naturally be able to conduct visits on a more
permanent basis due to their permanent presence in the country.
This raises a few issues. First, the Subcommittee's programme of visits is
initially decided by lot. 59 This means its work could be poorly targeted and it
might take a long time for some State Parties in which there are pressing
human rights concerns to be visited. In the first round of visits, the
Subcommittee travelled to Mauritius, Sweden, the Maldives and Benin. 60
Given that there are a number of countries who have ratified the Optional
Protocol with far worse records – such as Liberia – it would have been better
if the Subcommittee's initial work was targeted elsewhere.
The Subcommittee appears to have picked up on this concern. It has revisited
the requirement that the initial choice of visits be made by the drawing of
lots, reading down the obligation to refer only to the first round of visits and
not the initial visit to each and every state. Instead, states will now be visited
by 'a reasoned process', taking into consideration such factors as development
of national preventive mechanisms, geographic distribution, size and
complexity of the state, regional preventive monitoring, and urgent issues
reported. 61
The Subcommittee, however, has noted that the success of its initial
programme of visits – which was targeted at developing the Subcommittee's
working methods and benchmarks, as well as establishing relationships with
states – was hampered by the lack of a Secretariat necessary to support a full
programme of visits. 62 This raises a more alarming issue: namely whether the
budget and resources of the Subcommittee are sufficient for it to carry out its
mandate.
When the Subcommittee began its work in 2007, no funding had been
approved for it to carry out its mandate. While the Subcommittee received
59 Optional Protocol, Article 13(1).
60 See Committee against Torture, First Annual Report of the Subcommittee on
Prevention of Torture, CAT/C/40/2 (25 April 2008), paras 18 to 23.
61 Ibid, para 14.
62 Ibid, para 16.THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 15 some limited resources from the High Commissioner for Human Rights, the lack of a regular budget frustrated its ability to carry out its functions and, more specifically, strategically plan its work – something that was vital in the early stages of its existence. Funding has been provided to the Subcommittee for the 2008/09 biennium. Nonetheless, the budget is very modest: US$ 925,600. 63 While the Subcommittee will be better off than before, the funding provided falls short of that required to allow the Subcommittee to operate effectively. For instance, the budget allows for four regular visits per year, lasting 10 days each, and two short follow-up visits of three days each. 64 On this basis, the Subcommittee would only be able to visit the existing 34 State Parties once every eight years: 65 a situation that is not appropriate given that state practice will only be altered through regular and frequent visits. Further, the budget only allows for visits to involve two members of the Subcommittee, assisted by two Secretariat and two external experts. While this number is suitable for some visits, the experience of the CPT has shown that most visits, particularly those to countries with a large custodial population, will require more resources. 66 More concerning is that there is no specific provision within the budget for the Subcommittee to work with national preventive mechanisms outside the context of a visit, despite the fact that this is clearly envisaged by the Optional Protocol. 67 Article 20 provides that: 'State Parties […] undertake to grant [national preventive mechanisms] the right to have contacts with the [Subcommittee] and send it information and to meet with it'. During its first year of operations, the Subcommittee was continually asked to take part in and to provide assistance for activities relating to the development of the national preventive mechanisms. Most of this work was undertaken without 63 This equates to approximately US$460,000 per year. Ibid, at para 50. 64 Ibid, at para 50. 65 Although the Subcommittee has announced that it would prefer to undertake eight state visits per 12 month period. This would mean that each State Party would only be visited once every four to five years on average. Ibid, at para 15. 66 Ibid, para 51. 67 Ibid, para 53.
16 Human Rights Research
UN funding. 68 The budgetary constraints prompted the Subcommittee to
publicly announce in May 2008 that its current budget did not adequately
cover the expenditure necessary for it to fully implement the Optional
Protocol or perform its functions effectively. 69
A further concern is that the Optional Protocol merely provides that the
Subcommittee may propose a short follow-up visit to a regular visit. This
suggests that a follow-up visit may only take place with the express consent
of the state concerned. 70 In light of this, it is unlikely that the Subcommittee
will undertake many visits outside its regular programme and since it is
unlikely to visit more than a handful of countries each year, it is clear that
some State Parties will not be visited for a number of years following their
ratification of the Optional Protocol.
Another deficiency in the Optional Protocol is that the Subcommittee must
notify State Parties of a forthcoming visit. 71 While the purpose of this is to
enable the state to facilitate the visit, it means that the Subcommittee will not
be able to conduct 'unannounced' visits to countries. A further, but critical,
question is whether the Subcommittee can visit particular places of detention
without informing the authorities beforehand. While the Optional Protocol
refers to 'unrestricted access' to places of detention, 72 the treaty does not
clarify whether this is 'unannounced'. This has led one commentator to fear
that:
A recalcitrant State could argue that although it was obliged to grant
'unrestricted access' to the Subcommittee, it was entitled to know of the places
to be visited in advance in order that it might make such arrangements. 73
Another issue is that the Optional Protocol allows states to postpone planned
visits to particular places of detention on urgent and compelling grounds of
68 Ibid, para 55.
69 Ibid, para 56.
70 Evans, supra note 10, at 384.
71 Optional Protocol, Article 13(2).
72 Optional Protocol, Article 14(3).
73 Evans, supra note 10, at 384.THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 17 emergency. 74 Such postponements are to be expected given that situations are going to arise in which it is simply not sensible or feasible for the members of the Subcommittee to have immediate access to places of detention. For example, there might be a riot within a prison, or a natural disaster in an area of the country that made it impossible to travel. However, this does not mean that states may postpone the visit indefinitely. Moreover, the reasons for the postponement must be specific to the place of detention and be of a nature that makes it impractical to conduct a visit. The mere fact that there is a state of emergency within a country will not be enough. 75 The author notes that the term 'deprivation in liberty' is defined very broadly to embrace 'any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will by order of any judicial, administrative or other authority'. 76 Consequently not only are police stations and prisons (including military detention facilities) covered by the Optional Protocol, but also other places where people are detained by public orders such as immigration centres, youth justice residences and psychiatric hospitals. Further, visits made to places in which it is suspected that persons might be detained, as well as places where persons are being held, or are suspected of being held, not by the state but with the consent of the state. 77 This represents a very broad approach to the concept of detention, particularly as it will cover old age homes and the like. The Optional Protocol provides, however, that places of detention must be 'under the jurisdiction and control' of the state. 78 While this necessitates there being some link between that place and the authorities of the State Party, in 74 Optional Protocol, Article 14(2). 75 Association for the Prevention of Torture, Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A Manual for Prevention (APT/Geneva 2005), at 94. 76 Optional Protocol, Article 4(2). 77 Optional Protocol, Article 4(1). 78 Ibid.
18 Human Rights Research
light of the principles of territorial jurisdiction a place of detention could
include for example a ship or aircraft, if registered to the state concerned. 79
The broad definition of this term ensures the widest possible protection for
persons deprived of their liberty. It was considered inappropriate to set out an
exhaustive list of places of detention in order to avoid the Optional Protocol
from being too narrow and restrictive in its classification of places of
detention. 80
At the end of its visit, the Subcommittee will issue a report and a series of
recommendations based on its observations. 81 There is no requirement for
prior consultation with the state over the contents of the report. 82 The purpose
of the report, however, is to assist the state find practical and realistic
measures to prevent torture. Reports are therefore likely to be framed as such.
The state is required to examine the recommendations and enter into dialogue
with the Optional Protocol on possible implementation measures. 83 This
means that instead of publicly examining the state's compliance with its
obligations and possibly condemning certain actions or inactions, the
Optional Protocol promotes more constructive and less adversarial ways of
ensuring compliance with international obligations. In that respect, the
Optional Protocol will seek long-term sustainable means of collaborating
with state authorities to ensure the elimination of torture on a long-term basis.
National Preventive Mechanisms
Regarding the other pillar, the strength of the Optional Protocol lies in the
fact that State Parties are required to utilise the national preventive
mechanisms in combating torture and ill-treatment as a matter of
international legal obligation. These bodies will carry out work similar to the
Subcommittee with comparable guarantees at the local level.
The Optional Protocol contains sufficient flexibility for each State Party to
structure its national preventive mechanisms according to its own
79 Manual for Prevention, supra note 72, at 77.
80 Ibid, at 77.
81 Optional Protocol, Article 16.
82 Evans, supra note 10, at 384.
83 Optional Protocol, Article 16(4).THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 19 circumstances: for instance, taking into account geographic or thematic considerations. The treaty does not require states to establish any new human rights body or mechanism. A state can make use of existing institutions so long as their powers, composition 84 and independence 85 fully comply with the requirements of the Optional Protocol. This includes the ability to conduct regular visits to places of detention at any time (in this regard the powers of the national preventive mechanisms differ from those of the Subcommittee), 86 and make recommendations on the conditions and forms of treatment – as well as make proposals and observations on existing and draft legislation. This last power will enable the national preventive mechanisms to play an active role in shaping domestic legislation to strengthen the protection of persons deprived of their liberty. Again, the state is required to enter into a constructive dialogue with the national preventive mechanisms on possible implementation of their recommendations, 87 and this requirement should ensure the success of the Optional Protocol. 84 To ensure that they are effective, national preventive mechanisms need to be comprised of appropriately qualified persons with a proven commitment to human rights. Principle 1, B, Composition and Guarantees of Independence and Pluralism, Principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles), UN Doc A/RES/48/134, 20 December 1993. The APT has recommended that as the preventive mechanisms will be conducting visits to a variety of places of detention 'a pluralistic, multidisciplinary delegation … is the most appropriate including lawyers, doctors, including forensic specialists in issues such as human rights, humanitarian law, penitentiary systems, and the police'. Manual for Prevention, supra note 72, at 139. 85 Although the independence of the national preventive mechanisms is essential to ensure the effectiveness of these bodies to prevent torture, the Optional Protocol does not elaborate on how functional independence can be achieved beyond referring to the Paris Principles in Article 18(4). The APT has recommended that State Parties should consider the following aspects: independent basis; independent personnel; independent appointment procedure; financial independence; and transparency. Ibid, at 136 to 139. 86 The APT notes that the frequency of visits will be determined by the national preventive mechanisms themselves. However, regularity of visits is important as it will allow the preventive mechanisms to monitor improvements or deterioration in conditions of detention and to protect people deprived of their liberty in general and from reprisals in particular. Ibid, at 133. 87 Optional Protocol, Article 22.
20 Human Rights Research
The Optional Protocol will also enable the national and international bodies
to have substantial exchanges on methods and strategies to prevent torture
and ill-treatment. These bodies will be able to meet and exchange
information, if necessary on a confidential basis. As part of this, the national
mechanisms can forward their reports and any other relevant information to
the Subcommittee. 88 In order to strengthen their capacity, they may also seek
training and technical assistance from the Subcommittee.
The approach of aligning national efforts to prevent torture and ill-treatment
with an international mechanism should assist the implementation of
international standards at the local level. It will also provide a means to
increase public awareness, as well as a national debate on the treatment of
persons deprived of their liberty and the conditions of detention. 89
Although not formally required by the Optional Protocol, it is expected that
national preventive mechanisms will also operative cooperatively with other
national bodies working with persons deprived of their liberty as well as civil
society groups. Such a collaborative relationship will enhance their
complementary efforts to prevent prisoners and other detainees from being
abused. It will also provide an independent and valuable source of
information for the preventive mechanisms. 90
Crimes of Torture Amendment Act
New Zealand has had a strong and unfaltering commitment to the protection
and promotion of human rights, and has been a strong supporter of
international efforts to curb the use of torture and ill-treatment. 91 New
Zealand signed the Convention against Torture on 14 January 1986, and
ratified the treaty on 10 December 1989 after legislation had been put in
88 Optional Protocol, Article 20.
89 Manual for Prevention, supra note 72, at 142.
90 Ibid, 142 to 143.
91 Report of the Foreign Affairs, Defence and Trade Committee, International
Treaty Examination of the Optional Protocol to the Convention against Torture
and other Cruel, Inhuman or Degrading Treatment or Punishment, 9 December
2005. Available at www.parliament.nz/NR/rdonlyres/ACAB0A10-C880-4C6E-
AE3A-181DD3CC7C78/15240/DBSCH_SCR_3287_3249.pdf.THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 21 place criminalising torture and imposing severe penalties on those who engaged in the practice. New Zealand also played a major role supporting the development of the Optional Protocol and was in the first group of countries to sign the treaty. In accordance with New Zealand's policy that a treaty should not be ratified until any legislation required to implement it has passed, the Ministry of Justice investigated what legislative changes would be required to give effect to the obligations in the Optional Protocol. 92 Legislation was clearly needed. For instance, laws governing the management of prisons in New Zealand were very proscriptive about the bodies that can monitor the treatment of prisoners. Without implementing legislation, the Subcommittee would not be able to enter and inspect places of detention in New Zealand. On 15 March 2006, the Government expressing its commitment to the Optional Protocol introduced the Crimes of Torture Amendment Bill into Parliament. The Bill proceeded relatively smoothly through Parliament, although Members of Parliament held lengthy debates – particularly when the Bill was being considered by the Foreign Affairs, Defence and Trade Select Committee – on the independence of and competency of the various institutions that were being proposed as national preventive mechanisms. The Bill was adopted unanimously on 21 November 2006 and entered into law the following month. 93 This enabled the government, after a number of administrative and financial considerations had been addressed, to ratify the Optional Protocol on 14 March 2007. The Crime of Torture Amendment Act (to give it its official title) enables the Subcommittee to exercise in New Zealand the functions and powers provided for in the Optional Protocol. The Subcommittee is permitted to enter and inspect any place where persons are deprived of their liberty, examine such 92 See Joris de Bres, The Role of National Human Rights Institutions as a National Preventive Mechanism and the Issue of Independence: New Zealand's Experience So Far. Presentation to the National Human Rights Institutions/Treaty Body Workshop, Geneva 26-28 November 2007, available at www.nhri.net/2008/NZ- OPCAT.pdf. 93 The progress of the Bill through the House of Representatives is detailed at www.parliament.nz/en-NZ/PB/Legislation/Bills/e/1/0/00DBHOH_BILL7201_1- Crimes-of-Torture-Amendment-Bill.htm.
22 Human Rights Research
information as is necessary for the proper performance of its functions, and
conduct private interviews with detained persons. 94
Given that there were a range of specific institutions in New Zealand that
have a broad responsibility to consider the welfare and examine the treatment
of detained persons, the government decided against creating a new body to
take on the role of the national preventive mechanism. Instead, the Bill
authorises the Minister of Justice to designate various institutions as national
preventive mechanisms to monitor the prevention of torture and ill-treatment
in the particular places of detention that they are associated with. 95
During its consideration of the Bill, the select committee noted that concerns
had been raised about the fact that the Minister had been given the power to
designate and, in limited circumstances revoke, the national preventive
mechanisms, as opposed to having them designated by name in the Bill. The
majority of the Committee were nonetheless comfortable with this approach
and did not consider that it would significantly impact on the functional
independence of the national preventive mechanisms. In particular, they
observed that this would 'allow flexibility in changing circumstances, as the
Minister will be able to designate new institutions as and when necessary'. 96
On 21 June 2007, the Minister placed a notice in the Gazette designating a
number of institutions as national preventive mechanisms. 97 The designated
national preventive mechanisms are:
• The Office of the Ombudsmen – in relation to prisons, immigration
detention facilities, health and disability places of detention, and
youth justice residences
• The Police Complaints Authority – in relation to people held in
police cells and otherwise in the custody of the police
94 Crimes of Torture Act, sections 18 to 20.
95 Crimes of Torture Act, section 26.
96 Report of the Foreign Affairs, Defence and Trade Committee, Crimes of Torture
Amendment Bill, 19 September 2006 available at
www.parliament.nz/NR/rdonlyres/FED20093-8E52-48F5-B570-
E4CF030C91CC/48364/DBSCH_SCR_3545_4045.pdf.
97 Funding increases were also allocated to the designated instituted where
appropriate. de Bres, supra note 89.THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 23
• The Office of the Children's Commissioner – in relation to children
and young persons in youth justice residences
• Visiting Officers appointed under Defence Force Orders (namely,
the Inspector of Service Penal Establishments of the Office of the
Judge Advocate General) – in relation to Defence Force Service
Custody and Service Corrective Establishments.
These organisations comply with Article 18 of the Optional Protocol, which
sets out criteria to ensure national preventive mechanisms are independent.
As de Bres observed:
The Children's Commissioner and Police Complaints Authority are bodies
known as 'Independent Crown Entities', meaning that while they receive state
funding, they have a basis in statute ensuring that they are independent of the
government and not subject to influence or easy dismissal by government
Ministers. A Bill currently before Parliament aims to further enhance the
independence of the Police Complaints Authority, including by increasing its
membership, capacity and powers. The Ombudsmen, as 'Officers of
Parliament', are responsible to Parliament but are independent of the
government of the day. The final [national preventive mechanism], the
Inspector of Service Penal Establishments, is part of the Office of the Judge
Advocate General, who is appointed by the Governor-General, is statutorily
independent, and is neither answerable to the Chief of the Defence Force, nor
subject to political direction. 98
The appointment of these organisations as national preventive mechanisms
takes advantage of their knowledge and experience in relation to the places of
detention for which they have responsibility. There is also a level of public
familiarity and trust with these organisations, as well as established
relationships with and understanding of the authorities and places of
detention that they are charged with monitoring.
Under the Act, the national preventive mechanisms are to examine the
conditions of detention and treatment of those who are deprived of their
liberty, and make recommendations for improving conditions and treatment
and for the prevention of torture. 99 They are to report annually on their
98 Ibid.
99 Crimes of Torture Act, section 27.24 Human Rights Research
activities, and these reports are to be submitted by the relevant Minister to
Parliament, with the exception of the Office of the Ombudsmen who, as
Officers of Parliament, may submit the report directly to the House of
Representatives. 100
The Act goes to some length to ensure that the national preventive
mechanisms have the necessary powers to carry out their functions. Of
particular note, the Act provides that national preventive mechanisms will be
able to exercise the powers they have under their governing legislation while
carrying out their functions under the Act. 101 To address concerns that
national preventive mechanisms could only make periodic visits to places of
detention and not ad hoc visits, the Act specifies that visits may be made 'at
regular intervals and at any other times the national preventive mechanism
may decide'. 102 Further, the Act accords national preventive mechanisms the
same protections, privileges and immunities as allowed in relation to the
exercise of their powers under any other piece of legislation. 103
The Association for the Prevention of Torture – an NGO that actively
promoted the Optional Protocol – recommended that when a state designates
several national preventive mechanisms a coordinating national body should
also be designated to harmonise the work of each preventive mechanism. 104
This was considered appropriate for New Zealand, given the range of places
of detention in this country and the likelihood that several institutions may
contribute to the role of monitoring these places for the prevention of torture.
The Act authorises the Minister of Justice to designate a central national
preventive mechanism to coordinate the activities of the national mechanisms
and maintain effective liaison with the Subcommittee. 105 In carrying out its
functions, it is to consult and liaise with the national preventive mechanisms,
review their reports, and coordinate the submission of those reports to the
100 Crimes of Torture Act, section 27(c).
101 Crimes of Torture Act, section 34.
102 Crimes of Torture Act, section 27(a).
103 Crimes of Torture Act, section 35.
104 Manual for Prevention, supra note 72, at 133.
105 Crimes of Torture Act, section 31.THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE 25 Subcommittee. 106 Flowing from these tasks, the central national preventive mechanism is also responsible for advising the national preventive mechanisms of any systemic issues arising from those reports. 107 It is also able to make any recommendations to the government it considers appropriate on any matter relating to the prevention of torture in New Zealand. 108 At the same time as the national preventive mechanisms were designated, the Minister of Justice appointed the Human Rights Commission to this centralised overview role given its current function to advocate for human rights in New Zealand. The appointment of existing, multiple mechanisms has created a number of challenges. One of these is the need to maintain a distinction between the organisation's existing complaints/investigation role and the 'non-judicial' preventive monitoring role envisaged by the Optional Protocol. The national preventive mechanisms have approached this issue in various ways. For instance, the Office of the Ombudsmen decided to maintain a clear separation between its complaints work and that under the Optional Protocol – with separate staff for each. 109 A further challenge is the need to maintain a level of cohesion and consistency between the national preventive mechanisms, while recognising the distinct context each is dealing with, and respecting their independence. To facilitate this, the Human Rights Commission has convened regular meetings to develop common understanding of their role under the Optional Protocol, and how this is to be undertaken by each of the respective national preventive mechanisms. The Commission has also developed a monitoring template and indicators to establish common baselines across all places of detention. 110 The greatest challenge to the organisations that have been designated as national preventive mechanisms is that most are only small organisations, and the role of a national preventive mechanism represents a significant 106 Crimes of Torture Act, section 32(2)(a), (b) and (c). 107 Crimes of Torture Act, section 32(2)(b). 108 Crimes of Torture Act, section 32(2)(d). 109 de Bres, supra note 89. 110 Ibid.
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