¹ Delegates of the International Committee of the Red Cross regularly visit places of detention. In 1976, the ICRC published a report in which it stated that “repeated and even systematic resort to torture, whether on orders from or with the tacit approval of the authorities, whether by violence or by psychological or chemical means, is a cancer which seems to be spreading, threatening the body of our civilisation. Of all weapons, torture is probably the most cruel and the most harmful”. (See «International Committee of the Red Cross and torture», IRRC, no. 189, 12 1976, p. 610).CrossRefGoogle Scholar

² See Art. 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 12 1984.Google Scholar

³ Prof. M. P. Kooijmans, appointed “Special Rapporteur for matters relating to torture by the UN Commission on Human Rights”, states in his 1987 report that “torture is still a widespread phenomenon in today's world. From the information he has received the Special Rapporteur has been confirmed in his conviction that no society, whatever its political system or ideological colour, is totally immune to torture.”, Doc. E/CN.4/1987/13, p. 23.

⁴ M. P. Kooijmans ends his 1987 report as follows: “Torture should be viewed objectively and seen by everyone, Governments and individuals alike, for what it is: the criminal obliteration of the human personality, which can never be justified by any ideology or overriding interest, as it destroys the very basis of human society.”, op. cit., p. 27.

⁵ This UN-sponsored Convention came into force on 26 June 1987 after instruments of ratification or accession had been deposited by 20 States. The number of States party to the Convention was 34 as of 1 November 1988.

⁶ This convention was approved by the Committee of Ministers of the Council of Europe on 26 June 1987 and opened for signature on 26 November of the same year. By 1 November 1988, all 21 member States of the Council of Europe had signed the Convention and eight of them (Great Britain, Ireland, Luxemburg, Malta, the Netherlands, Sweden, Switzerland, Turkey) had ratified it. It will enter into force on 1 February 1989.

⁷ See the text in The treatment of prisoners under international law by Nigel Rodley, Paris/Oxford 1987, pp. 307–309.Google Scholar

⁸ The two draft Conventions are published in: Alois Riklin (ed.), Internationale Konventionen gegen die Folter, Schriftenreihe der Schweizerischen Gesellschaft für Aussenpolitik, Bd. 6, Bern, 1979. The Swedish draft convention is available from the United Nations (document E/CN.4/WG.1/WP.1).

⁹ Concerning the UN Convention on torture adopted on 10 December 1984: The statement issued by the Swiss Federal Government (Botschaft des Bundesrates/Bundesblatt 1985 Vol. III)Google Scholar on 30 October 1985 concerning the 1984 UN Convention; “Convention contre la torture: de l'ONU au Conseil de l'Europe” by Christian Dominicé, article published in Völkerrecht im Dienste des Menschen, Festschrift für Hans Haug, Bern, 1986 Google Scholar; “Zur Zeichnung der UN-Folterkonvention durch die Bundesrepublik Deutschland” by Kay Hailbronner and Albrecht Randelzhofer, an article in Europäische Grundrechte-Zeitschrift, 13. Jahrgang 1986 Google Scholar, Heft 22; “Internationale Konventionen gegen die Folter”, a contribution by Hans Haug to Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l'honneur de Jean Pictet, Geneva— The Hague, 1984 Google Scholar; “Die UNO-Konvention gegen die Folter vom 10. Dezember 1984”, by Manfred Nowak, an article in Europäische Grundrechte-Zeitschrift, 12. Jahrgang 1985 Google Scholar, Heft 5; “Recent Developments in Combating Torture”, an article by Manfred Nowak, in the Netherlands Institute of Human Rights Newsletter No 19, Utrecht 1987 Google Scholar; see footnote 8 for the work by Alois Riklin; see footnote 7 for the work by Nigel Rodley; “Probleme und aktueller Stand der Bemühungen um eine UN-Konvention gegen die Folter”, an article by Stefan Trechsel in the Österreichische Zeitschrift für öffentliches Recht und Völkerrecht, 33 (1982).Google Scholar

¹⁰ In December 1975, the UN General Assembly made a declaration on torture which included a definition of the term “torture”. Among other things, it stated that “it (torture) does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners”. This minimum was dropped in the 1984 Convention.

¹¹ On 26 November 1987, representatives of the States party to the Convention meeting in Geneva elected the members of the Committee against Torture. One of them, Professor Joseph Voyame, a Swiss citizen, was elected Committee Chairman.

¹² See “Zehn Jahre Menschenrechtsausschuss — Versuch einer Bilanz”, an article by Christian Tomuschat in Vereinte Nationen, 35. Jahrgang, Bonn/Koblenz, 5/1987, about the comparable activity of the Human Rights Committee created by the 1966 International Covenant on Civil and Political Rights.

¹³ On 1 November 1988, the following 14 of the 34 States party to the Convention made such declarations: Argentina, Austria, Denmark, Ecuador, France, Luxemburg, Norway, Sweden, Switzerland, Spain, Togo, Tunisia, Turkey and Uruguay.

¹⁴ By 1 November 1988, the following States party to the Convention had declared under Art. 28 that they did not recognize the competence of the Committee to carry out investigations: Afghanistan, Bulgaria, Byelorussian S.S.R., German Democratic Republic, Hungary, Czechoslovakia, Ukrainian S.S.R. and the USSR.

¹⁵ Under the Geneva Conventions of 1949 (in particular, Art. 126 of the Third and Art. 143 of the Fourth Convention), representatives of the Protecting Power and delegates of the ICRC are authorized to go to any place where prisoners of war and protected civilians (particularly civilian internees) are being held, in particular “places of intern ment, imprisonment and labour”. The Conventions give them access to all premises occupied by prisoners of war and internees and the right to interview those protected persons without witness. The duration and frequency of their visits may not be restricted. The visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure. In the event of a non-international armed conflict, the ICRC may offer its services to the parties to the conflict (Art. 3 common to the four Conventions).

Since 1919, and especially since the Second World War, ICRC delegates have visited some 500,000 “political detainees” in about 80 States, people who are not protected by the Geneva Conventions. See Le Comité international de la Croix-Rouge et la protection des détenus politiques by Jacques Moreillon, Lausanne 1973 Google Scholar; “The International Committee of the Red Cross and the Protection of Political Detainees”, by Jacques Moreillon, IRRC, no. 164, 11 1974 CrossRefGoogle Scholar; “International solidarity and protection of political detainees”, by Jacques Moreillon, IRRC, no. 222, 05–06 1981 Google Scholar; “ICRC protection and assistance activities in situations not covered by international humanitarian law”, IRRC, no. 262, 01–02 1988, pp. 9–37.CrossRefGoogle Scholar

¹⁶ Jean Pictet, then Vice-President of the ICRC, was a member of the group. The text of the draft convention was published in German in “Wirksam gegen die Folter”, a publication of the Menschenrechtskommission des Schweizerischen Evangelischen Kir chenbundes, Basel/Fribourg 1977.

¹⁷ See Torture: How to Make the International Convention Effective, a draft optional protocol published by the Swiss Committee Against Torture and the International Commission of Jurists, Geneva 1979, and Internationale Konventionen gegen die Folter, published by Alois Riklin (See note 8).

¹⁸ See the Report on the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment, drawn up by Mr. N. Berrier on behalf of the Council of Europe's Legal Affairs Committee and adopted on 30 June 1983 (Doc. 5099).

¹⁹ For the text of the Convention and its background, see the European Convention for the prevention of torture and inhuman or degrading treatment or punishment—Text of the Convention and explanatory report, published by the Council of Europe, Doc. H (87) 4, 7 July 1987; statement issued by the Swiss Federal Government (Botschaft des Bundesrates/Bundesblatt 1988, Vol. II) on 11 May 1988 concerning the 1987 European Convention; “Auf dem Weg zu einer internationalen Konvention gegen die Folter”, lecture given by Hans Haug to a conference of Swiss penitentiary officials, published in Der Strafvollzug in der Schweiz, Heft l, 1981; “Recent Developments in Combating Torture”, article by Manfred Nowak in the Netherlands Institute of Human Rights Newsletter no. 19, September 1987; “La Convention européenne de 1987 pour la prévention de la torture et des peines ou traitements inhumains ou dégradants”, a contribution by Jean-Daniel Vigny to the Annuaire suisse de droit international, XLIII, 1987.

²⁰ Deprivation of liberty is used here as it is defined in Art. 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The visits may be made in all “places” where people are being held by a public authority whether in temporary, preventive or administrative detention, to serve a prison sentence under civilian or military law, in internment for medical reasons or for the purpose of educational supervision.

²¹ The Swiss Committee Against Torture and the International Commission of Jurists suggested that the visits themselves should—as is the practice with the ICRC—be carried out for the most part by delegates. The rule that the visits will generally be carried out by at least two members of the Committee brings with it the danger that at least the periodic visits will be carried out only infrequently.

²² For this examination it will be useful to consult the rules for European prisons (contained in a recommendation adopted by the Council of Europe's Committee of Ministers on 12 February 1987) or the Standard Minimum Rules for the Treatment of Prisoners, approved by the United Nations Economic and Social Council resolution 633 C (XXIV) of 31 July 1957 and amended by resolution 2076 (LXII) of 13 May 1977, which may be found on p. 327–341 in Nigel Rodley's work (footnote 7).

²³ For a comparison with the ICRC's experience in carrying out prison visits, see “Torture: the need for a Dialogue with its Victims and its Perpetrators”, an article by Laurent Nicole in the Journal of Peace Research, Norwegian University Press, 09 1987.Google Scholar

²⁴ J.-D. Vigny (footnote 19) writes that Article 9 amounts to a negotiated reservation in the text of the Convention itself.

²⁵ By February 1988, this Convention had been ratified by the Dominican Republic, Guatemala, Mexico and Suriname and thus came into force. See the text on pp. 322–326 of Nigel Rodley's work (footnote 7).

²⁶ The following reports have been published on the Montevideo talks: “Tortura: Su Prevención en las Américas, Visitas de Control a las Personas Privadas de Libertad”, Montevideo, 07 1987 Google Scholar; “The prevention of torture in the Americas, visits to persons deprived of their liberty”, Geneva, 01 1988.Google Scholar

²⁷ The European system of visits is financed by the Council of Europe's budget.

²⁸ M. P. Kooijmans writes in his 1987 report: “A measure which may have an important preventive effect is the introduction of a system of periodic visits by a committee of experts to places of detention or imprisonment. The element of periodicity is designed to ensure that a system of visits is seen as a means of co-operating with Governments rather than as an instrument for denouncing them. The fact that the idea of periodic visits would eventually form part of regional systems for protection of human rights (of which there are currently three, established in the context of the Organization of African Unity, the Organization of American States and the Council of Europe) would not necessarily stand in the way of the conclusion of a world-wide convention to which States which were subject to such a system of visits under a regional instrument could become party. However, the implementation of the world-wide system would be suspended for States subject to a regional system.”, op. cit., pp. 25 and 26.