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This book is about the prohibition and the prevention of torture. Its purposes are twofold. The first is to give a frank account of what the UN Subcommittee on Prevention of Torture (SPT) has been able to achieve over the first 15 years of its existence. This also involves being honest about what the SPT has not been able to achieve too, and – more importantly – the reasons for this. The second purpose, and perhaps the more significant, is to expose some of the myths which permit torture to continue to flourish, despite the plethora of international prohibitions that surround it. To that end, the first part of the book considers what, legally speaking, torture is. The background to the Optional Protocol to the UN Convention against Torture (OPCAT) is presented and the practical working of the SPT and how it seeks to prevent torture and ill-treatment is explored. The second part of the book draws on the author’s personal experience and aims to explore the challenges of working preventively, by considering examples of the SPT’s work. This is used to highlight some of the less predictable barriers to effective torture prevention. The book concludes with reflections on what could be done to make torture prevention more effective.
In this chapter the sceptic conceptual framework will be applied to equilibrium models of comparative statics in micro-economics. The purpose is to show that equilibrium models are deterministic, with preferences functioning in the manner of a structural fact, as defined in the sceptic conceptual framework. This points to a link between equilibrium models and the sceptic conceptual framework, where ex post facts correspond to casual data and ex ante facts correspond to parametric and institutional data of the bahavioural functions of micro-economics. The ex ante order of fact has the connotation of something enduring, rather than just stochastic elements of the ex post order of fact. But while preferences may be ex ante to choices, economics use the preference field in an ex post manner, though dressed up as an ex ante fact.
How big a problem is torture? Are the right things being done to prevent it? What does the UN do, and why does is appear at times to be so impotent in the face of torture?
In this vitally important work, Malcolm D. Evans tells the story of torture prevention under international law, setting out what is really taking place in places of detention around the world. Challenging assumptions about torture’s root causes, he calls for what is needed to enable us to be in a better position to bring about change.
The author draws on over ten years’ experience as the Chair of the United Nations Sub-Committee for Prevention of Torture to give a frank account of the remarkable capacities of this system, what it has achieved in practice, what it has not been able to achieve – and most importantly, why.
Chapter 12 takes stock of what all these reflections might mean for improving existing systems of torture prevention, whether they are adequate and whether more fundamental or systemic change is necessary. Much can be done through existing systems and structures, and they probably have within them all that is necessary to bring about meaningful change. The real question is how to release that potential. Some of the answers lie in rather mundane but nevertheless important changes in working practices, but others are of a more profound nature and require rethinking some of the fundamental assumptions about the operation of detention systems, states and the human rights system itself. Doing so also allows us to understand better why it is that torture remains so prevalent and why the ways in which are trying to address this seem to be deficient.
A central element of the Optional Protocol to the United Nations Convention against Torture system is that every state party must establish an independent ‘National Preventive Mechanism’ (NPM) which must have access to all places of detention in a manner similar to the UN Subcommittee on Prevention of Torture (SPT). The SPT is to work with states as they set up the NPM, offering them its advice and expertise. It is then to support the work of the NPMs. This has proven to be one of the SPT’s most important and challenging tasks. This chapter considers the guidelines the SPT has developed for both states and NPMs and how it has gone about exercising its mandate in relation to NPMs over time.
This chapter traces the development of common sense notions of needs, tastes and preferences into the concept of an ordinal preference field, and tries to show that it is extremely unlikely that an ordinal preference field can be both consistent over time and comprehensive and that the concept is likely to be based on a confusion between different logical forms of empirical fact. While preferences are portrayed as ex ante facts in the rational choice model, the actual empirical content are not preferences but are the actual choices made by individuals. What we know about choices are records of past events. Preference fields are inferred from choices, but we can then not use the inferred preferences to explain choice, for that would be explaining what has already been assumed. Preferences, though portrayed as structural facts, are nonetheless nothing other than ex post facts are dressed up as ex ante facts.
Undertaking visits to places of detention sits at the heart of the Optional Protocol to the United Nations Convention against Torture. This chapter considers how the UN Subcommittee on Prevention of Torture (SPT) has interpreted and applied its visiting mandate in practice, highlighting the practical problems it can face when seeking to do so. Since the visiting capacity of the SPT is inevitably limited, difficult issues which need to be addressed concern the size and shape of its visiting programme, the choice of countries to be visited and, in particular, the constraints that affect this, many of which are surprising in nature. The chapter also sets out how visits are prepared and announced, and discusses their ‘aftermath’, including the writing of reports and the confidential dialogue that results from them.
This chapter seeks to take the reader into the world of a UN Subcommittee on Prevention of Torture (SPT) visit, providing a first-hand account of the experience of undertaking preventive visits to places of detention within the Optional Protocol to the United Nations Convention against Torture system: what they feel like and what they can (and do) achieve. It draws attention to some of the practical problems which need to be overcome to exercise an international visiting mandate effectively in what might be a hostile environment and how these might be overcome in practice. Above all, it highlights the remarkable extent to which the SPT has been able to gain access to places of detention because of the way in which it has structured its work.
Torture is one of the most widely prohibited forms of human rights abuse, yet precisely what torture is can be the subject of much debate and remains highly contested. Drawing largely on the foundational jurisprudence concerning Article 3 of the European Convention on Human Rights, this chapter sets out the contours of the definition of torture in international law and its relationship to ‘inhuman and degrading treatment or punishment’. It argues that elements of the approach to that distinction which are often found in that jurisprudence are fundamentally flawed and offers an alternative approach to understanding what amounts to torture, legally speaking – and therefore what it is that the Optional Protocol to the United Nations Convention against Torture and the UN Subcommittee on Prevention of Torture are intended to prevent.
Chapter 4 looks at the mandate of the UN Subcommittee on Prevention of Torture (SPT) as set out in the Optional Protocol to the United Nations Convention against Torture. Using practical examples and drawing on personal experience, it begins the process of exploring how through its work and practice that mandate has been developed, including the forms of its visits. Key to this is the concept of ‘deprivation of liberty’ and the infinite range of possible forms that this might take, and as a result, the near impossibility of delimiting the potential boundaries of the SPT’s visiting mandate, including places which exercise de facto detention under the regulatory authority of the state. The SPT’s membership and composition is also explored in order to consider whether it is appropriate for the tasks it is required to undertake.
