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.
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.
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.
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.
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 2 looks at the various ‘thresholds’ that have been used to try to differentiate between torture and inhuman and degrading treatment, illustrating that while this might at times be necessary, it is difficult, invidious and in some ways an inherently flawed exercise. This reliance on ‘thresholds’ does not contribute much to ensuring that no-one should be subjected to torture or inhuman or degrading treatment. These fine-grained, ever-shifting and ultimately inconclusive debates shift attention away from the need to prevent violations from occurring and run the risk of downplaying the significance of ill-treatment which does not cross the higher thresholds of seriousness, despite them all being absolutely prohibited. For all these reasons, it is important to seek to prevent prohibited ill-treatment from occurring, rather than overly focusing on how precisely to categorise ill-treatment that already has.
There is a very close connection between ‘accepting the unacceptable’ and ‘excusing the inexcusable’. This chapter highlights how, even when something is known to be wrong – or accepted to be unacceptable – it may just not be considered sufficiently serious to merit notice, attention or comment. As a result, when challenged, often bizarre excuses are offered to justify what those offering them know to be inexcusable. The plausibility of the excuse is less important than the fact of making it, and having been made, it then becomes difficult to accept the need for change at all. A classic and stark example is the extent to which some continue to try to excuse the continued use of torture and ill-treatment itself, despite its prohibition. Critically engaging with such excuses can entrench them, yet the very structure of international human rights protection prompts excuse-making, thus rendering the prevention more complex.
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.
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.