In this chapter, Sir Malcolm Evans examines the role and legitimacy of international human rights mechanisms of dispute settlement. This chapter argues that the relationship between international dispute settlement and the work of the United Nations human rights treaty bodies is demonstrated by a series of cases brought by Qatar against the United Arab Emirates before both the International Court of Justice (ICJ) and the UN Committee on the Elimination of Racial Discrimination (CERD). This chapter explores some of the tensions which have been revealed concerning the interplay between the work of the CERD Committee and that of the ICJ and how each responded to them. It notes that the multifaceted and sui generis nature of their work means that they do not operate in a single ‘conceptual space’ and that the nature of the treaty bodies, their role and function, and the environment in which they work need to be borne in mind if their work is to be properly appreciated, understood, and engaged with.

Introduction

No-one ever accuses the United Nations of drafting and adopting international human rights treaties quickly, and the Optional Protocol to the United Nations Convention against Torture (OPCAT) was no exception. When what is proposed is as radical an idea as was the OPCAT, the only surprise is that it was ultimately adopted at all. Seen in that light, the roughly 25 years that it took from inception to completion – from 1977 until 2002 – seems almost expeditious. In some ways, what is so radical about the OPCAT is its very simplicity. At its heart lies the idea that any place where a person might be detained, by or with the approval of the public authorities, should be able to be visited without notice by an independent body to try to ensure that those who are being detained are not subjected to torture or ill-treatment. It is as simple as that. And yet achieving this was far from simple, and making such a system work in practice remains far more complicated than it needs to be.

During my years on the UN Subcommittee on Prevention of Torture (SPT) I learnt that many things can be as simple or as complicated as you wish them to be. Complexity can be a state of mind and a matter of choice. As an academic (or perhaps as an academic lawyer) I am naturally drawn to complexity: our stock-in trade is to discern distinctions and difficulties which may not always exist and to expound upon them in ways that often confuse or confound rather than clarify – the reification of obfuscation, so to speak. As Chair of the SPT, I rapidly found myself drawn in a very different direction, trying to make things which I knew to be rather complicated to achieve seem as simple as possible. The importance of what we were doing demanded this. There is a huge amount that can be done to help prevent torture and ill-treatment, but the truth is that those with operational or political responsibility often do not want to do it.

It is all too easy for the ‘I will not’ to be camouflaged as the ‘I cannot’, and the more difficult and demanding the prevention of torture and ill-treatment appears to be, the easier that becomes.

Introduction

This chapter introduces the work of the National Preventive Mechanisms (NPMs), which is set out in Part IV of the Optional Protocol to the United Nations Convention against Torture (OPCAT). Article 19 sets out their three key roles:

• (a) To regularly examine the treatment of the persons deprived of their liberty in places of detention as defined in article 4, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment;

• (b) To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;

• (c) To submit proposals and observations concerning existing or draft legislation.

In order to fulfil these roles, NPMs are to have essentially the same powers as the UN Subcommittee on Prevention of Torture (SPT): to be able to undertake visits to places where persons are deprived of their liberty at a time of their choosing and to have unfettered access to all detainees and to all relevant materials, to be able to interview in private and confidentially and to make recommendations to those in authority concerning both the places visited and concerning matters relating to detention and preventive safeguards more generally. This requires the NPMs to have appropriate expertise at their disposal, as well as sufficient funding and operational autonomy. Above all else, it requires that they are independent – something which in practice has turned out to be a far more complicated idea than I think was ever imagined.

I have already stressed the importance of NPMs, which form a central part of the OPCAT. Indeed, it is the ‘twin pillar’ approach, based on the interplay between the international and national mechanisms, which makes the OPCAT so unique. This chapter looks at NPMs through the ‘lens’ of the SPT, since that is the ‘lens’ through which I have seen them. Unlike some of my former SPT colleagues, I have not been a member of, or directly worked for, an NPM, so I cannot say what that is like.

Introduction

We all tend to see what we expect to see and understand things in the way that we expect them to be understood. When those expectations are in fact very far from reality, it is quite possible to spend a great deal of time and energy visiting a place of detention while not really seeing or understanding what is in front of you at all. If things look familiar, you assume that they will be what you expect them to be and respond to them accordingly. But as we saw in the previous chapter, this is sometimes not true at all. Things are not at all what we expect them to be, but nevertheless we still project our assumptions and our expectations into our evaluations and into our recommendations.

Sometimes this simply renders those evaluations and recommendations perplexing to those who receive them and leaves you looking a little foolish because you have just not ‘got it’. That can be embarrassing, but it is not the end of the world. What is far more serious is when you have become so blinded by your expectations that you end up working with a fictional, parallel universe. There is then a real danger that what you say might not only be inappropriate, but can even be harmful, and the standards and expectations you demand others comply with may not only be useless or unhelpful but, in some extreme examples, might even put people at greater risk of suffering the very things you are seeking to protect them from.

Twenty years ago, I was involved on behalf of the Association for the Prevention of Torture (APT) in a project with the African Commission on Human and Peoples’ Rights that resulted in the adoption of the Robben Island Guidelines on Torture Prevention in Africa in October 2002 (for the background to, and text of which, see APT, 2003), which some years later provided the springboard for the establishment by the African Commission of the Committee for the Prohibition and Prevention of Torture in Africa. I was a member of the seven-person drafting committee and one of the two ‘core drafters’ of the final document.

Introduction

When a critic says that listening to a musical performance or watching a film or a play was for them a form of ‘torture’, they do not mean to suggest that they have been tortured. While they might be suggesting that they found the experience excruciating, they do not mean to suggest that they really were in pain. They mean that they thought the performance was very poor, and that they did not enjoy it at all. Though some might object to such experiences being described in this way, believing that it trivialises the reality of torture, the use of the word in such a context is effective because it conveys the depth of the critic's response to their experience. The reader is left in no doubt about what the critic thinks: they know that the critic thinks they have been exposed to something terrible, artistically speaking. The reader, like the critic, does not believe that torture has really taken place – but they do know what they mean. But when we are talking about torture – real torture – do we really know what that means?

For many, the abiding image of torture remains that of some medieval castle chamber in which terrible torments are inflicted on the human body by strange and fearful looking instruments or contraptions in a careful, calibrated and calculated fashion to elicit information, a confession or simply to impose the will of the torturer (or, more likely, the will of those responsible for ordering the torture) on the terrified victim in some way. That terror was mental as well as physical – instruments of torture were shown to the victims in advance of their use, and there was no doubting what might be in store for those taken away to be tortured (see generally Langbein, 1977; Peters, 1996). There is, perhaps, some comfort in that image since it seems remote from the realities of the modern world. It encourages us to believe that such things do not really take place today – that torture belongs in the past and, if it does take place today, that at least it is not ‘like that’.

While the places in which torture is inflicted and the tools and techniques of physical and mental torture employed may indeed be different, remove the medieval setting and in many ways very little else really has, in truth, changed (Modvig and Quiroga, 2020).

Introduction

If some of the last few chapters seem unremittingly bleak it is because they are. They seek to sketch the outlines of just some of the realities encountered by the UN Subcommittee on Prevention of Torture (SPT) in its pursuit of the prevention of torture and ill-treatment. Each merits further detail and explanation, and there are many others that could also have been highlighted as well. Taken collectively, they convey an impression of the problems that prevention needs to confront, including the need to challenge some deeply embedded assumptions about the causes of torture and ill-treatment and how we respond to it.

Those who have read this far might have spotted what may appear to be a significant disjuncture in my presentation of prevention. Much of the discussion in the earlier chapters focused on torture and how this related to inhuman and degrading treatment, but little was said about inhuman and degrading treatment itself. Yet the later chapters of this book have largely raised matters concerning the treatment of detainees and the application of the criminal justice process. Does this mean that the two halves of the book do not join up? Is ‘torture prevention’ just another fiction, and although we say we are ‘tackling torture’, in fact we are not? We might be doing something of importance, but is it what we say it is?

When the European Convention on the Prevention of Torture (CPT) was being drafted, it was made clear that the purpose of the Convention was to prevent torture, and it was not about the conditions in which people were detained. Yet that is precisely what much of the work of the CPT and the UN Subcommittee on Prevention of Torture (SPT) and National Preventive Mechanisms (NPMs) is in fact all about. Is this a contradiction? I do not think it is – although that does not mean there is not a lot more that could be done to make the SPT and NPMs better at preventing torture too. This concluding chapter seeks to explain why, and how.

Revisiting ‘what is torture?’

There is an ‘easy’ answer to all this, which is that these preventive bodies were set up to tackle not only torture but also to tackle inhuman and degrading treatment as well, and so they are only doing what they were always intended to do.

Introduction

The previous chapter highlighted examples of situations in which the unacceptable had become so embedded in day-to-day routines and practices that it seemed to pass almost without notice. It was ‘just the way things are’. When challenged, sometimes those responsible would acknowledge the need to address the situation and seek to do so. For example, we visited a detention centre for foreign migrants considered to be in that country illegally. While this was doubtless true of some, most appeared to be migrant workers whose employers no longer wanted to pay them and who had handed them over to the authorities while retaining their documentation, thus rendering them ‘illegal’ and liable to detention pending expulsion. Understandably, many were agitated, angry and sometimes aggressive. Who wouldn't be, knowing that you were likely to continue to be held in one of the 12 or so large cagelike structures, each holding 20 to 30 people indeterminately, for weeks, months or longer through no fault of your own?

To help ‘calm down’ those in need of calming (we were told), there were a series of small, clearly visible coffin-like ‘cells’ in which the detainees could be placed. These were not only used for purposes of ‘control’, but also to ‘persuade’ those in the detention centre to give details of their nationality or to give their ‘consent’ to being returned to their country of origin or to being sent elsewhere. These ‘cells’ were just less than a metre square, and a little over 2 metres high. We measured them carefully. People were placed inside for periods ranging between one and 12 hours at a time, and this could happen for several days in succession. It was virtually impossible to sit down in them (I know, I tried). Apart from a small grill in the metal door at face level, there was no ventilation or light of any kind. We spoke to one man who said that having been placed in one of these containers for eight hours a day for two days in a row, and faced with being put back inside again he told the guards whatever he thought they wanted to hear. According to the definition of torture examined earlier in this book these cells amounted to tools of torture: they were being used purposively to acquire information, to intimidate and coerce in an inhuman way.

Introduction

The mandate and the powers of the UN Subcommittee on Prevention of Torture (SPT) are found in Part III of the Optional Protocol to the United Nations Convention against Torture (OPCAT). The centrepiece of this is Article 11, which sets out the three key tasks that the SPT is to undertake and relate in turn to (a) visits, (b) to National Preventive Mechanisms (NPMs) and (c) to other international and regional bodies working towards the protection of persons against torture and ill-treatment. These are, in effect, the tools that the international community has placed at its disposal to prevent torture and ill-treatment, and the SPT is to be judged by the way in which it uses them. As will be seen, the SPT can do a very great deal. Yet it is not a free agent, and in practice it can only do what it is permitted to do by those who exercise operational control over it. In a very real sense, it is free to do what others permit. But when the SPT can act, its powers are formidable. This chapter and the next trace that tension, setting out what the OPCAT permits the SPT to do and what it has been able to do in practice. The focus of this chapter is the SPT's visiting mandate. It sets out and reflects on how the mandate operates in practice. A more personal view of the realities of undertaking visits with the SPT is reserved for later.

This entire book has been leading up to this moment: the earlier chapters considering what is torture, the need for prevention, the idea of visiting as a means of prevention and the history of the OPCAT all coalesce in Article 11(a), which laconically provides that the SPT shall ‘(a) Visit the places referred to in article 4 and make recommendations to States Parties concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment.’

For something so central to its raison d’être, it is somewhat surprising that the OPCAT has so little else to say about visits. This is not a criticism though, and the flexibility that the OPCAT permits has been extremely valuable as it has allowed the SPT to experiment with different approaches as it seeks to find out how best to go about its business.

This book is about the prohibition and the prevention of torture. In 1948, Article 5 of the Universal Declaration of Human Rights proclaimed that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. This is repeated word for word in Article 7 of the International Covenant on Civil and Political Rights, which entered into force in 1976 and legally binds 173 of the countries of the world. The prohibition on torture is repeated or reflected in identical or similar terms in each of the three great legally binding regional human rights conventions covering Europe, the Americas and Africa. Torture is also prohibited by the 2012 ASEAN Human Rights Declaration and the 2020 Cairo Declaration of the Organization of Islamic Cooperation on Human Rights.

In some way or another, virtually every country has acknowledged that torture is to be forbidden. Indeed, it is now accepted that all states, irrespective of whether they have formally agreed to the prohibition or not, are bound by international law to refrain from torture. In 2012 the International Court of Justice in The Hague affirmed that ‘the prohibition of torture is part of customary international law, and it has become a peremptory norm (jus cogens)’. This means that it is a rule from which no derogation is permitted and that it takes priority over any other conflicting legal obligation.

In times of war, torture is prohibited by the Geneva Conventions, and it is a war crime and a crime against humanity falling within the jurisdiction of the International Criminal Court (Cryer, 2020, pp 297– 311). All states which are bound by the 1984 UN Convention against Torture are required to make torture a crime under their domestic law. For the avoidance of doubt, Article 2(2) of the UN Convention also confirms that ‘[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture’.

It is not necessary to list the very many other treaties, declarations, court judgments and much else besides which confirm that torture is absolutely prohibited as a matter of international law in all countries, always. Indeed, there are few practices – if any – which are so comprehensively outlawed, and with there being no space whatsoever for justifications, exceptions or excuses.

Introduction

Hoteliers must have hated us. We were among the worst sorts of guests, and at our very worst at breakfast. Just about every member of the delegation would be feeding themselves up for the day on enormous quantities of just about whatever there was to feed on: and then – worst of all – would leave with as much secreted in their bags and pockets as possible. Some limited themselves to fruit, especially bananas (there is a reason for this). Others would be busy making up sandwiches out of rolls, meats and cheeses for themselves, and others. I doubt the hotel kitchens could have done a better job. Indeed, in some instances I know they could not. We once asked if the kitchens might provide us with some take-away sandwiches. They did. But when the packets were opened (amazingly, during the course of a helicopter flight being taken to reach a particularly remote part of a country) they were full of cockroaches. Some hardy souls removed them and pressed on with what remained. Others did not. The desperation to eat was real enough. There would be no other opportunity for the rest of an extremely long and hard day.

At least there were cockroach sandwiches. Another visit, another hotel – the only one that was available for us to stay at. No chance of helping ourselves from the breakfast buffet as there wasn't one. Indeed, I cannot now recall whether there was any breakfast available at all. I suspect not. After all, there was only hot water for an hour or so a day, and electricity intermittently. There was a ‘restaurant’ attached to it, but it was rarely open. One evening, returning from a visit around 7 pm (no breakfast, no lunch), the restaurant was closed. The only other was twenty minutes’ drive away. A flat tyre later, we arrived around 9 pm, and the kitchen was closed. Ultimately, we had to prevail on the manager to ask the cook to come back, and we ate whatever there was.

Another ‘no breakfast’ morning – but we had a meeting with the local authorities at the airport so we could eat there instead. No café, or shop. But we were meeting the local officials in the VIP lounge, so – jelly babies only. The long flight of five hours: biscuits with a drink.

Introduction

I really do not want this book to be a litany of horrors. They are all too easy to produce and can have the opposite effect to that which was intended. When authors present such accounts as ‘horror stories’ they are inevitably received as such by readers – as stories. Yet the horror is not the story, but the reality that the story recounts. That is not and cannot be ours, and we cannot ‘make it our own’. We might receive and acknowledge the story and accept the knowledge that it conveys. Many – most – of us will then finish our reading and do something else. And how many of us are really prompted into action because we have read about terrible things? Some people are, but, in truth, not all that many. We may recoil from what we have read but, for the most part, we move on. What else are we meant to do? What else can we do? We have no particular responsibility for what is recounted or, perhaps more importantly, any authority or very much power to do anything about it even if we wished to. I do not want to put readers in this position, which can be tantamount to some form of veiled accusation, or an invitation to assume some responsibility or accept some guilt. That is not fair.

But some people do have that responsibility and have the authority and the power to make things different.

This chapter and the chapter that follows are largely about such instances – situations in which something is very clearly wrong and yet nothing is being done about it by those who have the power to do so. This inevitably requires recalling some very harrowing stories – but the reader must remember that these are not stories to those whose stories they are: these are their experiences, parts of their lives, their past, their present and directly or indirectly, of their futures. They are not ‘just’ stories. To the extent that I observed these things, the experience of having observed them is now mine, just as the experience of reading about them becomes the experience of the reader. But the experience which is recounted is not that of the author or the reader, for which both author and reader can only be thankful.

Introduction

One of the easiest things in the world is to say that ‘something should be done’ about the sorts of situations that the UN Subcommittee on Prevention of Torture (SPT) encounters. However, it is often surprisingly difficult to know what to do and who should do it. International human rights lawyers and international human rights treaty bodies tend not to think too much about this because, generally speaking, they do not have to. They are addressing the state, and frequently it is sufficient for them to determine whether the state has been responsible for a breach of its international obligations and to require that this be remedied, usually by providing financial compensation, changes in primary legislation, the amendment of administrative rules, guidance or practices. Often there is not much scope for nuance regarding to whom those recommendations need to be made: they are made to the state, and it is expected that the state will implement them. Precisely whose job it is to do that is not really the concern of the international body. As a result, many international bodies can legitimately skate over the question of who it is that should be taking action to bring about the changes that are necessary by addressing their recommendations to ‘the state’, and to its ‘relevant authorities’.

The SPT often addressed the ‘relevant authorities’ in its recommendations too, and often it was perfectly appropriate to do so since, once again, it could sensibly be left to the state to determine how the recommendation in question might best be implemented. On other occasions, however, I would wince at the sight of the expression, since it was really being used to avoid the difficult truth that we just did not know who was going to be able to do anything about the problem which we had identified and wanted to see solved, let alone how. It was the equivalent of throwing one's hands in the air and saying “someone should do something” – and then leaving it to others – to the ‘relevant authorities’ – to sort it all out. Yet more often than not, the entire problem was that the ‘relevant authorities’ were not sorting it out, being either blind to the problem, ignoring the problem or too busy offering excuses to seek solutions.

Introduction

For all my talk of simplicity, the Optional Protocol to the United Nations Convention against Torture (OPCAT) is a rather complex text. It is unlike all other UN human rights treaties, and it is not surprising therefore that some in the human rights world have found it difficult to work out quite what it means in practice. Indeed, as someone who has worked as closely as it is possible to work with the OPCAT system for very many years, I must admit to not really understanding what some of it means in practice myself. But there are good reasons for this.

As we saw in the previous chapter, the compromise text proposed by the Chair of the Working Group early in 2001 was adopted by the General Assembly at the end of 2022 basically unchanged. In many ways, that text was, however, still a ‘work in progress’. While it offered a way forward on most of the major, structural elements – the international and national visiting mechanisms and the relationship between international and national visiting, for example – there were many other issues which would have benefitted from further thought or clarification. The drafters were aware of this, but at the time it seemed more important to settle the major issues of principle than continue to debate the finer points of detail, and doubtless this was entirely correct. However, it does mean that there are some matters which could have been made clearer, and others which are something of a problem. More positively, the open-textured nature of some of the key provisions has allowed room for some real creativity which has greatly enhanced the effectiveness of the OPCAT system.

This chapter is not intended to be a legal ‘commentary’ on the text – this has been done by others (Nowak et al, 2019). Rather, it focuses on some of the key elements of the OPCAT framework and how they have come to be understood in practice. The text of the OPCAT is divided into seven separate parts. Part I sets out the general principles of the system (Articles 1– 4), while Parts II (Articles 5– 10) and III (Articles 11– 16) concern the establishment and mandate of the UN Subcommittee on Prevention of Torture (SPT). Part IV (Articles 17– 23) concerns the work and mandate of the National Preventive Mechanisms (NPMs), while the remainder address various crosscutting matters.

Introduction

In the seminal case of Selmouni v France, the European Court of Human Rights established that Mr Selmouni had been

This was done to induce him to confess to a crime. Is this torture? The purpose was clear enough. But was what was done to him sufficiently ‘severe’ even to be ‘inhuman’, let alone being sufficiently ‘more severe’ to be capable of being torture? Indeed, might it ‘only’ have been ‘degrading’? Or was it none of the above? Some things are just not serious enough. Not every incidence of pain or suffering, not every use of unlawful violence or every degrading act can be absolutely prohibited in this way. How does one tell which is which?

Following the Selmouni case, it was as if the floodgates finally were opened and a torrent of findings of torture by the European Court have followed. A common theme in virtually all these cases is the need to demonstrate that the treatment which has been inflicted on the victim is sufficiently grave to carry with it the ‘special stigma’ that torture signifies. While in some of the cases already considered it may seem self-evident that torture has taken place – and there are many others – this may not be true in all cases, and some fine-grade distinctions still must be made to decide whether a particular example of inhuman treatment is ‘sufficiently inhuman’ to be called an act of ‘torture’. Perhaps this is inevitable in a court of law, where so much turns on the precise nature of the finding that is made and the arguments presented are focused on this very question.

Nevertheless, there can be something almost voyeuristic about the obsession with the severity of suffering that characterises, or underpins, much of the discussion about the distinction between inhuman treatment and torture, and the very descriptions found in some of the cases seem to be intended to highlight – or downplay – the severity of what has occurred.