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Statement by Manfred Nowak, Special Rapporteur on Torture to the 13th session of the Human Rights Council, 8 March 2010, Geneva

Mr. President, distinguished delegates,

Since my term as UN Special Rapporteur on Torture will expire towards the end of 2010, this is my last oral report addressed to the Human Rights Council. I will present another interim report to the General Assembly in October, but my final report to the Council will be introduced by my successor next spring. This is the reason why I decided to present today more than a summary of my activities during the last year and my thoughts on a specific topic related to my mandate, as in previous reports. I wish to use my experience of more than five years as Special Rapporteur as the basis for a global study on torture, other forms of ill-treatment and conditions of detention . This global study is based, inter alia, on the findings during 16 official missions and several other visits to many countries in all regions of the world; three joint studies together with other special procedures; and extensive research on a variety of topics related to my mandate. It also reflects the experience during my most recent missions, three of which form part of our interactive dialogue. In Equatorial Guinea , I found a systematic practice of torture, extremely inhuman conditions of detention in police detention and a certain lack of cooperation by the Government. In Uruguay and Jamaica , on the other hand, the cooperation of both Governments was excellent. In both countries I found only isolated cases of torture, but surprisingly poor conditions of detention. While the conditions of detention were much better in Kazakhstan and had improved in recent years , the practice of torture certainly went beyond isolated cases, but was not widespread or systematic. I wish to explicitly thank the Government of Kazakhstan for their cooperation and for having provided me with further information even at a very late stage.

Mr. President,

I wish to express my sincere gratitude to all Governments who invited me to carry out fact-finding missions in their territory and who provided me with the necessary information and cooperation to assess the situation of torture, ill-treatment and conditions of detention in their countries. These are States in Europe (Denmark, Georgia, Moldova and a possible mission to Greece); Asia and the Pacific (China, Indonesia, Jordan Kazakhstan, Mongolia, Nepal, Sri Lanka, and a forthcoming mission to Papua New Guinea); Africa (Equatorial Guinea, Nigeria and Togo ); and Latin America and the Caribbean (Jamaica, Paraguay, Uruguay and a forthcoming mission to Cuba). The extensive references to these countries should not be misinterpreted as “naming and shaming” those countries which I was able to visit thanks to their generous cooperation, but as a mere illustration of a situation that seems to be representative for a great many countries in today's world.

Unfortunately, some of the Governments who had invited me, including China, Jordan, Indonesia and more recently Equatorial Guinea and Kazakhstan, put me under intense surveillance and made various attempts to obstruct my independent fact-finding by preparing places of detention or intimidating witnesses and detainees. These efforts contradict the very purpose of my missions and make independent fact-finding extremely difficult. Other Governments, notably Denmark, and more recently Uruguay and Jamaica, made no attempts to interfere with my fact-finding activities and even encouraged me to be as critical as possible. Quite a number of Governments did not respond to my requests or failed to issue invitations for me to conduct missions to their territories, including in Europe (Belarus); Asia and the Middle East (Afghanistan, Fiji, India, Iran, Iraq, Israel, Saudi Arabia, Turkmenistan, Uzbekistan and Yemen); Africa (Algeria, Cote d'Ivoire, Egypt, Eritrea, Ethiopia, Gambia, Liberia, Libya and Tunisia); and Latin America (Bolivia). Some Governments issued an invitation but did not agree to the terms of reference, including confidential interviews with detainees, and/or postponed or cancelled the mission at the last minute. These include the United States (with respect to our joint study on the situation of detainees at Guantanamo Bay), the Russian Federation (“postponed” indefinitely) and Equatorial Guinea, where I could, however, conduct a mission at a later stage. My worst experience was in respect of Zimbabwe. The Ministry of Foreign Affairs postponed the invitation at a time when my team of four experts had already arrived in South Africa and I was on route to South Africa as well. Although Prime Minister Tsvangirai explicitly confirmed his desire to meet me in Harare as originally scheduled, the security forces of President Mugabe denied me entry to their country, kept me for one night at Harare Airport and sent me back to South Africa. This does not only constitute a flagrant violation of my privileges and immunities as expert on mission, it shows a serious disrespect of special procedures of the Human Rights Council and involves a considerable waste of scarce UN resources. As of today, I have neither received an official apology from the Government of Zimbabwe n or am I aware of any action taken by the Human Rights Council against Zimbabwe in relation to this serious misconduct.

Zimbabwe is only an extreme example for the growing disrespect of special procedure mandate holders by certain Governments . Since the late 1960s and 1970s a fairly fruitful cooperation between four main types of actors had developed within the Charter-based system of human rights protection by the United Nations: States, NGOs, independent experts and the UN secretariat (the Office of the High Commissioner for Human Rights). The creation of the Committee on Economic, Social and Cultural Rights by ECOSOC illustrates that Governments at that time realized that objective fact-finding and assessment of the legal and factual situation of human rights is no proper task for Governments and political UN bodies. The former Commission on Human Rights therefore, entrusted independent experts with country-specific or thematic mandates, and a constructive cooperation and division of labour between the four actors evolved. Independent experts, with the assistance of Governments, NGOs and the UN secretariat, conducted fact-finding missions, drew up reports with specific recommendations, and the Commission took action aimed at implementing many of these recommendations. Although the Human Rights Council continues to avail itself of the expert services of special procedures, which are provided by unremunerated experts, it seems to be more concerned about supervising and censoring its own experts and about accusing them of having violated a newly adopted “Code of Conduct” rather than with welcoming their voluntary work and implementing their recommendations.

Let me just provide you with two examples to illustrate how political and irrational this conflict between the Council and its independent experts has become. As part of my mandate, which also explicitly covers all issues related to cruel, inhuman and degrading punishment I addressed the question of corporal and capital punishment as the two most obvious examples that come to anybody's mind when thinking about what could constitute cruel, inhuman or degrading punishment. One may, of course, disagree to what extent corporal and capital punishment per se amounts to cruel, inhuman and degrading punishment, but to accuse me of having gone beyond my mandate and, therefore, violating the Code of Conduct simple goes beyond any reasonable discourse. The other example relates to the recent debate about our joint report on secret detention in the context of countering terrorism . Again, a considerable number of Governments argued that this global study was outside our mandate. How can one seriously maintain that the widespread phenomenon of secret detention in the context of countering terrorism is outside the mandate of the Special Rapporteur on the promotion and protection of human rights while countering terrorism? Are Governments really not aware that under international human rights law, any practice of secret detention amounts to arbitrary detention, constitutes the crime of enforced disappearance and facilitates the crime of torture? Although we informed in a fully transparent manner all Governments and engaged them from the very beginning in this study and received many responses to our questionnaire and the preliminary findings submitted to them, many Governments in the Council attempted to censor us by preventing any official presentation of our report and any interactive dialogue in the Council. This led to the unfortunate decision of the Council to postpone the consideration of this important and timely report to the June session. Again, I have full understanding that certain Governments are not happy about our research and our findings and might disagree with our assessment, but to accuse us of violating the Code of Conduct is simply going too far. After all, special procedures are an inherent and important element of the Council and, if you wish, its independent “eyes and ears”. If the Council continues to treat its own independent experts in such an antagonistic manner, it will lose its credibility, and both experts and NGOs might consider withdrawing their support and cooperation. Without the active involvement of NGOs and independent experts, the interest of civil society and public opinion in the debates of Governments within the Council, including its “Universal Periodic Review”, may be discredited. This should be considered in reflections about the Council's review. If the Council wishes to maintain its preeminent position as the main political body of the United Nations dedicated to the noble aim of promoting and protecting human rights at the global level, we need to overcome the current attitude of confrontation and mistrust (among member States, between States and independent experts, and between States and NGOs) and strive towards an attitude of mutual trust and respect and a common political will to serve the interests of human rights rather than purely political interests of Governments. Rather than thinking about a “Code of Conduct” for NGOs, we would need a “Code of Conduct” for member States of the Council. The billions of human beings who suffer from poverty, violence and other gross human rights violations in all regions of the world deserve a different commitment to human rights than the one prevailing presently in the Human Rights Council.

Mr. President,

My mandate covers one of the most important human rights: the absolute prohibition of torture, ill-treatment and minimum conditions of dignity and humanity for persons deprived of their liberty. As you can see from my global study, the reality in the majority of countries of the world is alarming and deserves the full attention of the Council. Although torture as the most brutal form of ill-treatment constitutes a serious crime and direct attack on the core of human dignity, it unfortunately is a global phenomenon. Only very few countries, such as Denmark, seem to have managed to eradicate torture in practice. In the vast majority of States, torture occurs either in isolated cases, as exemplified during my recent missions to Uruguay and Jamaica, or in a more regular manner, as found recently in Kazakhstan, or even in a widespread and systematic manner, such as in Equatorial Guinea. Most victims of torture are ordinary people suspected of having committed criminal offences, often belonging to disadvantaged, discriminated and vulnerable groups, above all those suffering from poverty .

The major structural reason for the widespread practice of torture is the malfunctioning of the administration of criminal justice and corruption. Since confessions are still regarded in many countries as the “crown of evidence”, and because politicians wish to be seen as “tough on crime”, considerable pressure is exerted by them, the media, judges and prosecutors on law enforcement bodies to “solve criminal cases” by means of extracting confessions that are later used in courts to convict suspects. Another important reason for the widespread use of torture, particularly during the last decade, is the extraction of intelligence information in the context of the global fight against terrorism and the deliberate undermining of the absolute prohibition of torture, ill-treatment and the principle of non-refoulement, as our two joint studies on the situation of detainees at the US military detention facility of Guantanamo Bay and on global practices in relation to secret detention in the context of countering terrorism illustrate.

Mr. President,

Since torture usually takes place behind closed doors, I have spent much time during my country missions in prisons, police lock-ups, psychiatric institutions and other places of detention. One of the most distressing and to some extent surprising experiences as Special Rapporteur on Torture was to realize the inhuman and degrading conditions the majority of the roughly 10,000,000 prisoners and detainees in the world have to spend their lives in. The way societies treat persons deprived of liberty is, in my opinion, one of the best indicators for the human rights culture in any country. In most countries I visited, conditions in police lock-ups were simply appalling. Just to give you two examples from my recent missions, in Equatorial Guinea and Jamaica, where human beings are kept like animals, sometimes for prolonged periods of months or even years, in overcrowded, dark and filthy cells for 24 hours a day, often deprived of the most basic rights to food, water, health, privacy and any minimum standards of hygiene. Although conditions in remand centres and correctional centres for convicted prisoners are usually much better, I found many overcrowded prisons in which human beings might have to spend most of their lives in conditions which can only be qualified as inhuman and degrading, such as in Uruguay, where I recommended that the worst sectors of certain prisons be immediately closed down. I am very grateful to the President of Uruguay for immediately having issued an order to alleviate overcrowding in prisons, including the sectors I had mentioned in my recommendation. By far the best conditions of detention I found were in Denmark and Greenland where the Government applies the “principle of normalization”, that is, a policy aimed at making life in prison resemble as much as possible life outside prison. In other words, prisoners are restricted in their freedom of movement and privacy as little as possible and provided with a variety of educational, recreational and work activities aimed at rehabilitation and preparing them for a normal and non-criminal life after prison. Needless to say, such a policy leads to a much lower rate of recidivism than the purely punitive policy of locking convicted criminals away, which I found in too many countries.

Among detainees, certain groups are subject to double discrimination and vulnerability, including aliens and members of minorities, women, children, the elderly, the sick, persons with disabilities, drug addicts, lesbians, gays, and trans-gender persons. In my opinion, persons deprived of liberty are among the most vulnerable and forgotten human beings in our societies. Most people, including many politicians, have never seen the inside of prisons and police lock-ups. Prison walls serve the double purpose of locking prisoners in and society out. If we wish to properly address the human rights of persons deprived of liberty, we should, as my distinguished predecessor Sir Nigel Rodley suggested many years ago, replace the paradigm of opacity by a paradigm of transparency, that is to say, open up prisons to scrutiny and monitoring by the public and independent bodies. The creation of effective, well-resourced and fully independent national preventive mechanisms, as required by the Optional Protocol to the Convention against Torture (OPCAT), provides the best opportunity to achieve this aim. In addition, I am convinced of the urgent need for the United Nations to consider drafting a special Convention on the Rights of Detainees, similar to other specialized human rights treaties for vulnerable groups, such as children and persons with disabilities.

Mr. President,

In addition to assessing the phenomenon of torture and conditions of detention, I also focused in my general and country-specific reports on other forms of cruel, inhuman and degrading treatment or punishment (CIDT) , both emanating from State and non-State actors. In relation to State actors, I am particularly concerned by the excessive use of force by law enforcement bodies during arrests, in reaction to demonstrations and political gatherings, combating riots and similar police activities. I also repeatedly addressed corporal and capital punishment, above all particularly cruel methods of punishment and execution, such as stoning women to death for adultery, as constituting cruel, inhuman and degrading punishment, in violation of binding international human rights law.

Since I have the privilege to present this report to you on International Women's Day, I wish to finally address the relationship between women and torture . Rape in custody always constitutes torture since discrimination is one of the explicit purposes of torture listed in the legal definition of torture in Article 1 CAT. But in addition to various gender-specific violations of human rights by police, prison officials and other State actors, women in all countries suffer extreme forms of violence by private actors, including domestic violence, trafficking, and various traditional practices, such as female genital mutilation and honour crimes. As I explained in my 2008 report to the Human Rights Council, I consider these forms of violence as falling under the definition of torture and cruel, inhuman or degrading treatment by acquiescence, if Governments fail to take the necessary legislative and practical measures required by the principle of due diligence. I welcome certain legislative measures outlawing female genital mutilation in countries like Togo and Nigeria, but much more needs to be done in terms of awareness-raising, training of judges, prosecutors and law enforcement officials to prevent female genital mutilation and similar practices, which are deeply rooted in culture and religion, and to bring the perpetrators to justice. Since Moldova is one of the major countries of origin of trafficked women and girls in Europe, I undertook a mission together with the Special Rapporteur on Violence against Women, and we presented our recommendations for required urgent action jointly to the Government. Although violence against women and children by private actors has been recognized by the United Nations as a major human rights violation, very little is done in practice to effectively combat this form of cruel, inhuman and degrading treatment. For the victims concerned, it makes little difference whether they are ill-treated and sexually abused by police officers or by their husbands, parents or members of criminal organizations without any effective protection by public officials.

Mr. President, distinguished delegates,

I am fully aware that the global report on torture, ill-treatment and conditions of detention which I presented to you today reflects an alarming situation in the vast majority of UN member States. Torture and cruel, inhuman or degrading treatment are among the most serious violations of human rights affecting the personal integrity and dignity of human beings. Time has come to address these human rights violations in a much more effective manner than has been done in the past. With the necessary political will and the assistance of the international community, every Government would be able to eradicate torture and to improve conditions of detention at least to a minimum standard of human decency. I therefore call upon all Governments and on the Human Rights Council to take the following measures:

(a) All States should ratify the United Nations Convention against Torture and fully implement its provisions. In particular, they must criminalize torture, with appropriate sanctions taking into account the gravity of the crime of torture; investigate all allegations and suspicions of torture by independent and effective “police-police” bodies; bring perpetrators of torture to justice; provide victims of torture with an effective remedy and adequate reparation for the harm suffered; and take all measures necessary to prevent torture, including prompt access of all detainees to lawyers, judges, doctors and their families;

(b) All States should ratify the Optional Protocol to the Convention against Torture and establish effective national preventive mechanisms to carry out preventive visits to all places of detention. Those mechanisms should be fully independent bodies with a pluralistic composition and equipped with the financial and human resources necessary to conduct regular and ad hoc visits to all places of detention;

(c) All States and the international community are requested to provide the resources necessary to develop national systems for the administration of justice that provide all human beings with equal access to justice and the right to a fair trial at all stages of criminal proceedings. Pre-trial detention of criminal suspects shall be the exception, not the rule, and shall last for as little time as possible. Pre-trial detainees shall be separated from convicted prisoners, children from adults, women from men. The main aim of correctional institutions shall be the rehabilitation of offenders and their reintegration into society. Punitive policies of criminal justice shall be brought in line with this important aim;

(d) The international community should establish a “Global Fund for National Human Rights Protection Systems” which will assist States in their efforts to improve and reform national criminal justice systems, including the judiciary, prosecutors, police and prisons. That fund shall be financed by States, non-governmental organizations and the corporate sector and shall contribute to the legal empowerment of the poor;

(e) The United Nations should consider drafting a special Convention on the Rights of Detainees to codify all human rights of persons deprived of liberty in a binding treaty with effective monitoring mechanisms;

(f) In the fight against terrorism and other forms of organized crime, States should keep in mind the absolute and non-derogable nature of the prohibition of torture. In particular, detention in secret places of detention, the expulsion or “rendition” of terrorist suspects to countries known for their practice of torture, the use of diplomatic assurances from these Governments not to torture as a means of circumventing the principle of non-refoulement, “enhanced interrogation techniques” aimed at inflicting severe physical or mental pain or suffering on detainees for the purpose of extracting intelligence information and similar practices in the global fight against terrorism are absolutely prohibited under international law and shall immediately be terminated;

(g) Finally, on a more general note, I strongly wish to encourage the United Nations to start the process of drafting a Statute for a World Court of Human Rights which would greatly enhance the right of victims of human rights violations, in particular the most vulnerable groups such as the poor and detainees, to an effective judicial remedy and adequate reparation for the harm suffered.

I thank you for your attention, and look forward to a fruitful interactive dialogue.