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Statement by Sir Malcolm Evans, Chairperson of the Subcommittee on prevention of torture and other cruel, inhuman or degrading treatment or punishment at the 71st session of the General Assembly

New York, 18 October 2016

Madam Chairperson,
Distinguished delegates, colleagues and friends,

It is with great pleasure that I present to you the 9th Annual Report of the Subcommittee on Prevention of Torture (SPT) and update you on its subsequent activities. As you will know, the OPCAT mandates the OPCAT Committee: (a) to engage in a constructive dialogue with States parties on reducing the risk of torture or ill-treatment, based on visits which it conducts to places where persons may be deprived of their liberty; (b) to advise and assist States parties in the establishment of their National Preventive Mechanisms (NPMs) and engaging with NPMs in the furtherance of their work; and (c) to co-operate with other international, regional and national bodies and agencies engaged in activities related to torture prevention.

The OPCAT has now been ratified by 83 countries from all regions of the world, with Cabo Verde, the Central African Republic and Ghana having joined the system so far in the course of 2016. This means that over half those States which are a party to the UNCAT are also party to the OPCAT and we look forward to more doing so soon. We support universal ratification of the UNCAT and I should like to take this opportunity to reiterate our continuing support for the Convention against Torture Initiative lead by Chile, Denmark, Ghana, Indonesia and Morocco – and supported by very many others. We believe that the complementarity of the Convention and Protocol needs to be highlighted, and the importance of torture prevention more fully appreciated, in order to ensure that the maximum benefit can be had from the mechanisms which the international community has put in place to address torture and ill-treatment in places of detention.

This complementarity is, of course, reflected on this platform, and I am delighted to be sharing this morning with Mr Jens Modvig, Chair of the Committee against Torture, and Mr Juan Mendez, the UN Special Rapporteur.  As Mr Mendez will soon be stepping down as Special Rapporteur, I should like to take this opportunity not only to thank him for all the work he has done, but to thank him in particular for the way in which he has worked in ever closer collaboration with the SPT in support of the OPCAT system. Both mandates involve visiting places of detention in countries – the SPT as of right, the SRT by invitation. We can do much to support each other. The same is true of our relationship with the Committee against Torture which under the chairmanship of Mr Modvig is becoming ever closer.

It is, then, very important – symbolically and practically – that we present our work to you together. However, there is an equally important component of the UN’s work in combatting torture which is not here today: the Voluntary Fund for Victims of Torture. I believe it would further enhance the focus on torture, torture prevention and support and rehabilitation for torture victims, and present a more complete picture of UN activity focussed on the evil of torture, if the Voluntary Fund were able to present its work to the General Assembly alongside us as we present ours, and it is to our work that I will now turn.

In 2014 the SPT undertook 7 field visits to countries. In 2015 it undertook 8 visits, to Azerbaijan, Guatemala, Italy, Nauru, Netherlands, the Philippines, Turkey and Brazil. In 2016, this current year, we have increased the pace of our activities even further, seeking to make maximum use of the visiting capacity of our membership. To that end, we have already undertaken visits to Benin, Cyprus, Chile, Romania, Ukraine (in two parts), Tunisia, Mozambique and Kazakhstan, with visits to Mexico and Mauritania also planned before the year end. That will be ten visits – in what is our tenth year of operational activity, a point to which I will return.

I have to say that I am convinced that the SPT is not able to increase its workload further, given the current level of resourcing available to it. We will aspire to maintain the current level of activity going forward, but will not seek to increase our formal visiting programme any further unless – until – there is a significant increase in support capacity. The secretariat is working at the outer edges of its ability to support this work, and existing staff cannot be expected to do more. This means that, as ratifications continue, we will continue to fall further away from achieving our benchmark aspiration of visiting each state party on a periodicity akin to the average reporting cycle to the human rights treaty bodies or of Universal Periodic Review. This, in our view, represents a serious failure in international support for and commitment to torture prevention and I would call on all States to reflect on this. The outlawry of torture is a ius cogens norm of customary international law, and the prevention of torture is said to be a global priority. The OPCAT provides the most powerful mandate for torture prevention that has yet been devised by the global community, and yet that community continues to fail to provide it with the means to do the job for which is was established. The international community should honour its commitment to torture victims and ensure that torture prevention through the means of preventive visiting is properly supported. It can be cheap; it can be swift and it can be effective. Perhaps that is the problem.

The OPCAT system is based on the principle of unannounced visits to places of detention. It is intended not to be ‘investigative’ or ‘punitive’ but is premised on the belief that by seeing how systems of detention work in practice, recommendations for improvements can be made where problems exist, and better preventive safeguards put in place. Since our last report, the trend for some states parties to question the scope of our mandate has, unfortunately, continued. I have to say, all this does is add unnecessary organisational and administrative complexities, wasting both time and resources. Let me be quite clear: the SPT has not and will not accept any suggestion that its planned visits be cancelled or postponed because the State to be visited is reluctant for the visit to take place. States are legally obliged to facilitate the visit of the SPT at the time of the SPT’s choosing. This is perfectly clear from the text of the treaty and we will not undermine the intention of its drafters by failing to do our duty under its clear and unambiguous terms. Likewise with access to places of detention within a country. Our mandate extends to any place where we believe a person may be detained on the basis of public authority. This is not limited to formal places of detention. It extends to any place where, in our opinion, it is possible that people are being held, in the sense of their not being free to leave. It is a wide definition: it includes, for example, those places where third parties might be de facto detaining persons when those places are operated under the authority or regulatory oversight of the state. We know this can be challenging. But the point of prevention is to challenge.

Equally, it is the point of preventive visiting to see things as they are – that is, as they normally are. We are sometimes faced with situations in which the authorities seem to have spent a lot of time preparing for our visit. If this means improving facilities and the treatment of detainees on a permanent basis, then we will not complain about that. When it means moving detainees so we cannot interview them, removing records so we cannot see them, seeking to change the appearance of facilities so that we might not think they are used for detention purposes, putting up notices to try to mislead us, etc, - then this is seeking to frustrate the purpose of the OPCAT and undermine the work of the SPT. Happily, our members are sufficiently experienced not to be deceived by such behaviour. It does not make a good impression. We appreciate cooperation, but this is not cooperating. We urge states parties to respect the principles of the OPCAT, and let us see what there is to be seen. We will also respect the principles of the OPCAT, and speak fairly and confidentially about the situation as we see it, not in the spirit of condemnation but in a spirit of cooperation, in order to best serve the interests of detained persons and detention systems.
 
  That said, there is much good news concerning the day to day functioning of the OPCAT system at the national level. As you will know, the OPCAT requires states parties to establish effective National Preventive Mechanisms. The number of National Preventive Mechanisms continues to rise, as does the quantity and quality of their work. National Mechanisms are the ‘front line’ of torture prevention and the SPT believes that we must do all we can to fulfil our convention mandate to assist them in their work. The less good news is that the capacity of the SPT to fulfil its mandate to work alongside the NPMs and to advise and assist states parties on their establishment remains completed inadequate, as there is only a minimal level of support for such work within the OHCHR due to current of resourcing levels. I can only repeat what I said last year: that we will continue to do our best to address this failure to provide systematic and focussed support for this work inevitably means that there are missed opportunities for giving timely advice and technical assistance to States Parties and National Mechanisms who are frequently approaching us for assistance that we are willing to give, wanting to give, but unable to provide. There remains much to be done. Many NPMs are themselves understaffed or under-resourced, or have legal mandates which fall short of all that OPCAT requires. Indeed, some are not truly independent, which is sine qua non for them to be OPCAT compliant and to function effectively. We need to address these issues.

Last year I flagged another area in which we know that our work was in need of enhancement, this concerning dialogue with states following our visits. I said then that following each visit we needed to put in place a ‘tailored road map’ of how the relevant state authorities, the SPT and, where applicable, the NPM can be in regular contact concerning progress regarding the consideration and implementation of recommendations. I said that there needed to be fluid, discursive and ‘engaged’ discussion. I said that sterile exchanges of formal documentation did not achieve timely outcomes for those at risk of ill-treatment, or those currently being ill-treated.  Yet it is proving difficult to make this happen in practice. But happen it must. As I mentioned previously, this year marks the tenth anniversary of the SPT and the OPCAT system. It has taken ten years to really establish our visiting programme, to see NPMs established and understood and to embed the OPCAT and its preventive approach in the field of torture prevention. The key challenge for the next period of our development must be the betterment of our engagement with states concerning the work of the NPMs and the implementation of their and our preventive recommendations. This should be the benchmark by which the system – which includes the states parties – should be judged in another ten years’ time. We know how to do it – once again, what is lacking to the capacity to do what everyone agrees needs to be done.

We understand that for some states, implementing recommendations can be a real challenge. It is for this purpose that Article 26 of the OPCAT established a Special Fund, to assist states with this task. The OPCAT Special Fund has supported many worthwhile implementation projects in various parts of the world. However, it is now woefully short of resource, and also of administrative capacity to assist it deliver that resource. This fund will almost certainly fail this year unless voluntary contributions are made to it in the very near future. It would be the first voluntary fund to fail in this way, despite its being the only such fund in the human rights sphere which is established under an international conventional, something which should surely have enhanced its ability to attract regular funding. What does that say about the commitment of states to the prevention of torture? It suggests to me that the commitment is rhetoric, not reality. I urge that serious thought be swiftly given to supporting the fund. Small amounts can go a very long way in addressing the most serious violations – it is heart-breaking to see the extent of the human suffering which could be alleviated for the want of the cost of a couple of trays of canapes served at a diplomatic reception. I cannot help but observe that there often seems to be more money available to discuss problems than there is to address them. 

As a committee, one of our responses to this problem has been to take on a greater role in the workings of the Fund until such time as other procedures can be put in place. This is also how we responded to the lack of capacity to support work related to NPMs and, to the extent possible, to the organisation of post visit dialogue. The result of all this is that our members are overburdened with inter-sessional activities and our sessions are now hopelessly congested. Meeting for just three one week sessions per year – which amounts to just 90 working hours in plenary with interpretation facilities –it is impossible to consider properly the reports and follow-up concurrently arising from over 50 visits, the engagement with over 65 NPMs, the work of the Special Fund, engaging with other international processes, our own jurisprudence and internal organisational and practical operational issues. As a result, we try to work in Chambers during sessions when possible but as there is no interpretation available for this, I am acutely conscious that this can be discriminatory against some members who are excluded from effective participation. This is very wrong. But what options do we have? It is absolutely essential that we are either provided with additional meeting time or that we are able to have interpretation facilities available to us when we work in chambers – and preferably both. It is disrespectful to members to have to work in a way which threatens their ability to properly participate – but it is also disrespectful to torture victims to work in a way which means that we cannot really undertake our preventive work properly.

Incidents of torture around the world are not declining. In our work, we see clear evidence of increasing pressures on detention and security services and we know that such pressures contribute to the likelihood of resort to ill-treatment. The increasing concerns about protecting national security and national boundaries is generating new sources of risk: not only from the agencies of the state, but also from those who act in the lawless vacuums which conflict creates, and who seek to profit from migration flows and who are able to exercise a merciless control over those who fall into their hands. Torture is torture, no matter who is responsible for it, and prevention must reach out to all those at risk, no matter who the possible perpetrators may be.

A final issue I wish to touch upon concerning our work of prevention is our perception that the risk of reprisals or sanctions against those who seek to raise concerns about torture and ill-treatment is on the rise. We seek to mitigate this risk in our own work to the extent possible, but it is in our view essential that if torture is to be prevented, people must be able to speak out about it and protected when doing so.

As I have mentioned already, 2016 marks the tenth year of the OPCAT system. We now know a great deal more about how best to prevent torture and ill-treatment. What is now needed is to ensure that the SPT and NPMs have a greater capacity, and that States have greater willingness, to do so. The OPCAT has created an impressive web of preventive mechanisms at international and national level. As this system enters into its next phase of operation, what is needed is the willingness to support that system and to work with that system properly– and in partnership with other colleagues within the UN and within regional systems too – in order to take serious and effective action to prevent torture.

Let me thank you for your kind attention and I look forward to responding to your questions.