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Chairperson's statement to the 72nd GA session: 13 October 2017

​Statement by Sir Malcolm Evans, Chairperson, Subcommittee on Prevention of Torture and other cruel, inhuman or degrading treatment or punishment

72nd session of the General Assembly, Third Committee - Item # 69 (a) -13 October 2017 - New York

Distinguished delegates, colleagues and friends,

I am pleased to be able to present to you the 10th Annual Report of the Subcommittee on Prevention of Torture (SPT) and update you on its subsequent activities. I am also pleased to be doing so in the company of Mr Modvig, the Chair of the Committee against Torture and Mr Meltzer, the Special Rapportuer on Torture. This underscores the complimentary of our roles, which is increasingly reflected in our working together in as far as our respective mandates permit and circumstances allow. The SPT welcomes this, and is grateful to the Committee and Special Rapportuer for the way in which they support the preventive system established by the OPCAT in their work. Our work is, of course, fully informed by what they do. We greatly appreciate also the essential support provided by the Voluntary Fund for Victims of Torture to those who have suffered. In addition, we are increasingly reaching out to others working within the framework of the UN, and regional, systems of human rights protection on whose work we can draw. It is important that there is as much focus and efficiency as possible within and across systems in order to maximise their potential and effectiveness. The desire to do so is there: what is lacking is the practical means of doing it. This, I am afraid to say, will be a recurring theme during this presentation.

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 are or may be deprived of their liberty; (b) to advise and assist States parties in the establishment of their National Preventive Mechanisms (NPMs) and to engage 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 been ratified by 84 countries from all regions of the world, Madagascar being the only state yet done so during the course of 2017 although we are confident that there will be further ratifications before the end of this year.

Nevertheless, I am disappointed at what seems to be the slowing pace of ratification. As a Committee, we fully support the universal ratification of the UNCAT, and the Convention against Torture Initiative lead by Chile, Denmark, Ghana, Indonesia and Morocco.  However, we believe that the ratification of OPCAT currently receives less attention than it should. We note that during the Universal Periodic Review Process it is common for States to call for the ratification of OPCAT. We believe that the time has now come for the ratification of OPCAT to be accorded an equal priority by the General Assembly. It is incomprehensible to me that currently it does not. The Convention against Torture already contains a clear obligation to take measures to prevent torture. OPCAT gives life to this obligation in the most tangible of fashions. If a State is truly committed to the prohibition of torture – a jus cogens norm of international law – then it is very difficult to understand why it ought to be reluctant to become a party to a mechanism that is entirely focussed on working co-operatively and collaboratively with states – and in confidence at the international level – in order to prevent torture from happening. The oldest adage in the book is ‘prevention is better than cure’. It seems to me that many states are not really as interested as they should be in taking the cure. And that is a problem.

As you will have seen from our Annual Report, one of the highlights of 2016 for the OPCAT Committee was the celebration of the first 10 years of the OPCAT system. During those years the OPCAT Committee has visiting hundreds of places of detention and spoken with thousands of detainees. The National Preventive Mechanisms operating within the OPCAT system have visited thousands of places of detention and spoken with tens of thousands of detainees – perhaps more. What have we learnt?

Torture is not amusing and it is not a game. It can destroy victims, but it can also destroy the perpetrators too. The good news is that systems which rely on torture are – ultimately – doomed to fail. The bad news is that terrible harm is done in the meanwhile, not just to the victims, not just to the perpetrators, but to the entire society in which this is allowed to happen. The wounds are deep and lingering. What we have learnt over the years is that the first and essential step to effectively address torture and ill-treatment is for there be a genuine commitment to do so; a commitment clearly set out and clearly meant. As a Committee, it is not for us to pass direct comment on those States which seem to be complacent at the torture or ill-treatment which may be taking place within their countries if they are not a part of the OPCAT system.

Perhaps this is why some choose not to be a part of that system, for all we know. Addressing the situations in such States is for others, and my colleagues here today are well appointed to that task as and when their mandates permits. Our primary focus is on those who have demonstrated their commitment to prevention by being a part of the OPCAT system and to assist them in doing so.

We have excellent relations and levels of co-operation with many – most – of our States parties. But we are increasingly concerned at the small number of States whose level of commitment to their preventive obligations is questionable. By this, I mean those states which have failed to establish a functional, independent and nation-wide National Preventive Mechanism against Torture, even several years after the expiry of their obligation to do so. Last year we decided to highlight our concern at this in Argentina, Benin, Bosnia-Herzegovina, Burkina Faso, Burundi, Cambodia, Chile, Democratic Republic of Congo, Gabon, Liberia, Nauru, Nigeria, Panama and the Philippines by their inclusion on a list of those substantially in default. We review this list at each of our sessions, and will next be doing so in November. We were pleased to be able to remove Lebanon from this list earlier this year following the passing of legislation establishing its NPM. We wish that list to become shorter, and are ready to help these states in establishing an OPCAT compliant NPM as soon as possible.  Nevertheless, it needs to be said that a number of these states have been visited by the SPT –  in some cases quite some years ago – and have not only failed to establish the NPM but they have also failed to respond to our reports or engage in any meaningful form of dialogue with as at all. The time to highlight this handful of countries which are failing to take their preventive obligations seriously is fast approaching. Of course, establishing an NPM is not an end in itself: it is there to prevent. We know that not all NPMs function as well as they might, and we will continue to work with them to help address this. But States must pay their part by establishing NPMs which have the capacity – and credibility – to succeed in exercising preventive mandate effectively. Not all are. Indeed, it almost seems as if some have been designed to fail. This too is something we will be seeking to address more vigorously in future. 

This needs to be weighed against the tremendous achievements of the OPCAT system. By the end of this year, over 60 formal visits have now been conducted by the OPCAT Committee, most of which have given rise to detailed and helpful discussion and action. National Preventive Mechanisms have been established in the overwhelming majority of States Parties in a reasonably timely fashion and are routinely visiting places of detention and making preventive recommendations. I would hazard that on almost every day of the year, multiple visits are taking place within the framework of OPCAT in all regions of the world. It is a remarkable achievement for the UN and needs to be better known. It is a real success story for human rights protection through prevention.

Some critics of the OPCAT system have claimed that since our reports and recommendations are confidential, they would just be ignored. This is just not true. As I have indicated, it is true that a small number of States do not seem to be taking their preventive obligations under OPCAT very seriously. But as I have also indicated, most are – and in our experience most states do indeed find our visits and our reports and recommendations helpful, as do many of those working within detention systems - who tend instantly to recognise the truth of what we are saying, and welcome our saying it. We know this has been a real driver for change in many instances. Moreover, we are greatly encouraged by the number of states which have chosen to make their reports available publically. Over half of the 60 Reports have been formally transmitted to States and NPMs as a result of our visits have now been made public at their request, something we greatly welcome. This is the spirit of prevention in action.

Unfortunately, not all states show the same co-operative spirit in relation to our visiting activities. We are also concerned that some states seem to have forgotten that the OPCAT permits the OPCAT Committee to visit any state party at any time that it wishes. Despite highlightling this point to the General Assembly this time last year, I am afraid that this problem continues. Our Secretariat is having to spend far more time than it ought reminding some states that is it our decision when we undertake visits, not theirs. States are legally obliged to permit us to visit whenever we wish, whether they consider it convenient or not. Convenience has nothing to do with it. Tackling torture and ill-treatment is not to be restricted to when it is ‘convenient’ to do so. Indeed, it is exactly when it is inconvenient that it is most needed and those states which do seek to frustrate our plans merely succeed in raising suspicions as to why they are seeking to do so.  I should like to take this opportunity to make it absolutely and completely clear that this is an aspect of our mandate on which we cannot and will not yield; to do so would compromise the integrity and effectiveness of the entire system.

I said earlier that torture is not amusing and it is not a game. Yet I regret to say that a small number of States do indeed seem to think that our mandate is something of a joke, and to be played games with. It is not. We take our work very seriously; we take our commitment to working collaboratively with States very seriously and we take our commitment to working confidentially with States very seriously. We take the problem of reprisals against those with whom we meet, or who provided us with, or seek to provide us with, information very seriously indeed. All we ask is that States do likewise. Most do. But we need to reflect further on how best to attend to those who do not. This is a matter which we will be looking forward to discussing with States Parties at our forthcoming session in November.

One reason why we find ourselves concerned at the time wasted in such exchanges is that we do not have time to waste. In 2014 we undertook 7 field visits to countries. In 2015 we undertook 8 visits and in 2016 increased that number to ten. In 2017, this current year, we are again planning to conduct ten visits, and have already been to Bolivia, Hungary, the former Yugoslav Republic of Macedonia, Mongolia, Niger and Panama. Visits to Rwanda and Spain are due to commence next week, with further visits planned to Burkina Faso and Morocco. We have already announced plans to visit Burundi, Portugal and Uruguay in the following periods, and more announcements will follow.

I am, however, afraid that it is unlikely that we will be able to continue our visiting work at the same pace for the remainder of next year. Our secretariat has reduced in size and the promise of a significant expansion in our overall levels of support following the adoption of Resolution 68/268 in 2014 has not been sustained. Currently, there is just not the capacity within the secretariat to properly support our work. The maths is stark. Even were we to continue our visiting programme at the rate of ten visits per year, with over eighty states parties, we would on average be visiting each only every eight years. We have highlighted the inadequacy of this on many previous occasions. We believe we ought to be able to visit each state party with a frequency akin to that of the reporting cycle to other treaty bodies. This would suggest a doubling of our current level of visiting. This is obviously impossible in current circumstances. In addition to undertaking our own visits, we must continue to support the processes of establishing NPMs and of supporting the work of those already in place. There is virtually no secretariat capacity to support these vital activities. Members do what they can, as do other organisations and bodies through the invitations which we receive to numerous events around the word. But this is not the answer. If States are serious about preventing torture, they should provide the support necessary for the effective operation of the system of prevention they have created. Currently, this is not the case.

The OPCAT Committee has requested an additional week of plenary meeting time. Whilst this will not address the lack of capacity to support visits, it will mean that there is more time in which it can meet with States Parties and others in Geneva and conduct preparation for, and follow-up to, its visits as well as furthering its links with NPMs. It is, however, important that we do not become a ‘Geneva-based’ committee: the heart of our work lies in our visiting places or detention, and NPMs, in situ. That must remain at the core of our activities. Nevertheless, more meeting time in Geneva is essential. Our current sessions are simply too short and too congested to be able to conduct routine business properly. Moreover, too much of our work currently has to be done in small groups and is not as transparent or as participative as we would wish.

Additional meeting time will help with this. Nevertheless, it is likely that we will continue to struggle with the lack of appropriate interpretation capacity at our sessions to enable to committee of 25 to be able to function efficiently and effectively. This is classic example of how narrowly construed bureaucratic rules stand in the way of effectively harnessing the power of the UN for the good of those it is there to serve.

I am, however, pleased to be able to record progress on two important fronts. The first concerns how we build on our visits. We are clear that the best way of following up on a visit is for us to have face to face meetings with those responsible for the running of detention systems in order to discuss the implementation of our recommendations. We are pleased that such meetings are increasingly able to be facilitated by a variety of UN bodies working in country, as well as by the Office of the High Commissioner and others. These have already been of great value and we hope to continue to build on this good practice with other partners in the future. We are also pleased that new arrangements for the operation of the OPCAT Special Fund, established under Article 26 of the OPCAT, are now in place and are working very well.

However, it remains a matter of grave concern that so few states contribute to that fund, which is aimed at helping the implementation of our recommendations in states which have chosen to make our visit reports public. The Fund only survives because of a ‘strategic pause’ in its grant programme. Unless further donations are received in the near future, the future of the fund will again be in jeopardy and all the good work done – and investments made – in getting effecting and efficient operating systems in place will be put to waste. I call upon all States (and not just States Parties) to consider making a small donation to this fund in order to assist in the fight against torture. If 50 states gave $20,000 per year, the future of the fund would be bright. Currently, it is bleak. We must not let this fund fail.

I hope no offense is taken at the rather direct manner in which I am raising a number of issues here today. I do so because I am convinced that it is only by being honest that real progress can be made. And as I mentioned earlier, the need for honesty is essential if torture and ill-treatment is truly to be tackled. It has to be the starting point for a real dialogue. We know that facing up to the realities which are to be found in many detention systems around the world can be hard for those involved. The initial impulses of some are to deny or to defend (often by means of attacking those who dare to speak up). We are used to this. Our members are hugely experienced and understand how difficult it can be for those in positions of responsibility to accept the failings which are occurring in the systems for which they are responsible. That is why we try to take as understanding an approach as possible, seeking to understand the reasons for those failings and seeking to work constructively to address them. I recall an occasion at the end of a visit – to a nameless country – when a very senior responsible person was denying to me the existence of any torture, ill-treatment or, indeed, any systemic difficulties of any kind within their detention system, in (let us say) fairly categorical terms. Following a brief pause, I asked if he might be concerned to hear that his son or daughter had been taken into custody, unbeknown to him or his family, two days ago. Before he calmly assured me he would have no qualms at all, I had seen the momentary spasm of panic, and the flicker of fear in his eyes. More importantly, he knew I had seen it. A more productive conversation then ensued.

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