Baha Mousa Annual Memorial Lecture 2010 The International Struggle Against Torture Organised by Public Interest Lawyers, the Law Society, and the Solicitors International Human Rights Group (SIHRG) London, 16 November 2010 Manfred Nowak Professor for International Human Rights Protection, University of Vienna Director, Ludwig Boltzmann Institute for Human Rights, Vienna Former UN Special Rapporteur on Torture ( )

Table of Content 1. Definition of Torture (Art. 1 CAT) 2. Prohibition of Torture as an Absolute and Non-Derogable Right in International Law 3. Mandate of the UN Special Rapporteur on Torture 4. Issues 5. ‘War on Terror’ 6. Fact-finding Missions – - Overview - Terms of Reference - Illustrations - Conclusions - Recommendations 7. Communications 8. UN Human Rights Council – Cooperation with States 9. Conclusion

1. Definition of Torture (Art. 1 CAT) Causing of severe physical and/or mental pain or suffering State responsibility Intention; applied to achieve a certain purpose (confession, information, intimidation, discrimination…) Powerlessness, defenselessness of the victim, which is completely in the torturer’s power (especially during detention) → direct attack on the victim’s dignity and personal integrity → specific form of violence

Absolute vs. Relative Rights e.g. freedom of expression, right to life, prohibition of torture and slavery; Non-derogable vs. Other Rights e.g. personal liberty, right to life (Art. 15 ECHR), prohibition of torture, prohibition of retroactivity of penal laws; Torture vs. Cruel, Inhuman or Degrading Treatment (CIDT) “relativity” of CIDT (principle of proportionality) Reasons for the special Protection of the Prohibition of Torture as Ius Cogens Middle Ages → gradual elimination from criminal law National Socialism → absolute prohibition Chile → special protection mechanisms (criminal law, prevention, victim protection, fact-finding) Bosnia → international criminal tribunals, systematic torture as a crime against humanity; 2. Prohibition of Torture as an Absolute and Non-Derogable Right in International Law

UN Special Procedures – Country-specific and thematic mandates – Serve in their individual capacity – Independent, impartial experts –„Eyes & Ears“ of the UN (Kofi Annan) Tasks – Fact-finding missions – Communications: Urgent Appeals & Letters of Allegations – Reports to UN General Assembly & Human Rights Council – Promotion of OPCAT and other preventive mechanisms Created by UN Commission on Human Rights (Res 1985/33) Appointed by Commission on Human Rights/Human Rights Council for 3 years with one possible renewal 3. Mandate of the UN Special Rapporteur on Torture

Rehabilitation & Reparation 4. Issues „War on Terror“ Death Penalty Forensic Medicine OPCAT Corporal Punishment Diplomatic Assurances/ Non-Refoulement Persons with Disabilities Drug Policy & Human Rights Gender-Specific Violence HIV/AIDS Impunity „Incommunicado“ Detention Methodology Conditions of detention Torture Prevention Children

5. “War on Terror” 9/11 as paradigm shift Bush Administration -Undermining the absolute prohibition of torture -Negative role model for other States Rendition flights and diplomatic assurances UN Report on Guantanamo Bay (2006) UN Joint Study on Secret Places of Detention (2010)

5. “War on Terror” (cont’d) JOINT UN REPORT ON GUANTANAMO BAY (2006) International law applicable Human Rights Law is applicable also during times of emergencies and armed conflict ‘War on Terror’ does not constitute an armed conflict in terms of international humanitarian law GTMO: arbitrary detention Detainees are arbitrarily detained for a prolonged period of time and entitled to challenge their deprivation of liberty (ICCPR Art 9) Enhanced Interrogation techniques led to torture Attempts to “redefine” torture: ‘Torture Memos’ Confusion re: authorized/unauthorized interrogation techniques Excessive violence during forced feeding amounting to torture => Urging closure of GTMO

5. “War on Terror” (cont’d) JOINT UN REPORT ON SECRET DETENTION IN THE CONTEXT OF COUNTERING TERRORISM (2010) Black Sites Secret detention is irreconcilably in violation of international human rights law, including during states of emergency and armed conflicts Geneva Conventions, applicable to all armed conflicts, prohibit secret detention under any circumstances secret detention amounts to enforced disappearance. Extraordinary Rendition Flights Responsibility of third countries, incl. European States Corroborates findings of earlier investigations (Council of Europe, European Parliament, investigative journalists) Detention by Proxy disregard of the principle of non-refoulement “outsourcing” of torture

Togo April 07 Togo April 07 China Nov. 05 Mongolia June 05 Georgia Feb. 05 Nepal Sept. 05 Indonesia Nov. 07 Sri Lanka Oct. 07 Equatorial Guinea Nov. 08 Denmark & Greenland May 08 Denmark & Greenland May 08 Jordan June 06 Jordan June 06 Nigeria March 07 Nigeria March 07 Paraguay Oct. 06 Paraguay Oct. 06 Uruguay March 09 Uruguay March 09 Guantanamo Feb. 06 Guantanamo Feb. 06 Kazakhstan May 09 Kazakhstan May 09 Moldova July 08 Moldova July 08 (Cuba) 2009/10 (Cuba) 2009/10 Jamaica Feb. 10 Jamaica Feb. 10 (Zimbabwe) Oct. 09 (Russia) Oct. 06 (Russia) Oct. 06 Sudan Oct. 06 Sudan Oct. 06 Papua New Guinea May 10 Greece Oct Fact-Finding Missions– Overview

6. Fact-Finding Missions – Terms of Reference Invitation of the State Terms of Reference – Freedom of movement – Freedom of inquiry Contacts with all branches of government; Contacts with representatives of NGOs, other private institutions and the media; Access to all places of detention (unannounced visits) Confidential and unsupervised interviews with victims, witnesses and detainees; Full access to all documentary material Photo and video documentation of torture and prison conditions – Assurance by the government against reprisals – Appropriate security arrangements

6. Fact-Finding Missions– Conclusions Torture - Torture is practiced in 17 of the 18 countries - Impunity for the perpetrators - Inadequate compensation for victims of torture Global Prison Crisis - Overcrowding - Inhuman conditions of detention

Prison population rate per (total) Occupancy levelPre-trial detainees/ remand prisoners 1. USA 748 (2,297,400 )[1. Haiti 335.7%] 1. Liberia 97.3 % 2. Russia 588 (833,600)2. Benin 307.1%2. Mail 88.7 % 3. Virgin Islands 561 (612)3. Bangladesh 275 %3. Benin 79.6 % 4. St. Kitts and Nevis 551 (275)4. Burundi %4. Bolivia 78.7 % 86. UK (England and Wales) 154 (85,159)100. UK % 135. Austria 103 (8,671)110. Austria %120. Austria 23.7% 162. UK 14.9 % 210. Nigeria 29 (46,000) 184. Kyrgyzstan 49,8 % 184. Egypt 9.9% 213. Faroe Islands 25 (12)188. Monaco 42.0 %188. Taiwan 8.1% 216. Timor-Leste 20 (223)191. San Marino 16.7 %194. Laos 1.0% Source: World Prison Brief, Kings College London, Fact-Finding Missions– Conclusions (cont‘d)

Urgent Appeals: 755 Letters of Allegations: 340 Brookings Study 49 % No response 24 % Violation rejected without substantiation 14 % Responsive but incomplete 9 % Immaterial response 3 % Steps taken to address allegation 1 % In translation Attitude of governments towards UN Special Procedures Lack of awareness for allegations of torture 7. Communications

8. UN Human Rights Council– Cooperation with States Dominance of regional blocks and national interests over objective human rights monitoring Frequent invitations to fact-finding missions for political reasons, less because of a genuine interest in improving the situation (“window dressing”) OHCHR uses code of conduct to interfere with independence of experts: self-censorship Many States in the Human Rights Council do not consider experts as a genuine component of the Council but rather as a disturbing factor

9. Recommendations Reform of the Human Rights Council: Reducing influence of political blocks, revaluating independent experts, reacting to widespread and systematic human rights violations Bringing the perpetrators of torture to justice Providing the victims of torture with an effective remedy and adequate reparation for the harm suffered Ratification of OPCAT and establishment of national preventive mechanisms (NPM) Urgent need for a UN Convention on the Rights of Detainees Establishment of a World Court of Human Rights

Ludwig Boltzmann Institute for Human Rights Atlas of Torture