Baha Mousa Annual Memorial Lecture 2010 The International Struggle Against Torture

1. 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 NowakProfessor for International Human Rights Protection, University of ViennaDirector, Ludwig Boltzmann Institute for Human Rights, Vienna Former UN Special Rapporteur on Torture (2004-2010)

2. 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 Table of Content

3. 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

4. 2. Prohibition of Torture as an Absolute and Non-Derogable Right in International Law • 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 IusCogens Middle Ages → gradual elimination from criminal law National Socialism → absolute prohibitionChile → special protection mechanisms (criminal law, prevention, victim protection, fact-finding) Bosnia → international criminal tribunals, systematic torture as a crime against humanity;

5. 3. Mandate of the UN Special Rapporteur on Torture • 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

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

7. 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)

8. 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

9. 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

10. 6. Fact-Finding Missions– Overview Denmark & Greenland May 08 Moldova July 08 Georgia Feb. 05 Jordan June 06 (Russia) Oct. 06 Kazakhstan May 09 (Cuba) 2009/10 MongoliaJune 05 GreeceOct. 10 Guantanamo Feb. 06 ChinaNov. 05 Jamaica Feb. 10 NepalSept. 05 Paraguay Oct. 06 Uruguay March 09 IndonesiaNov. 07 Sri LankaOct. 07 (Zimbabwe)Oct. 09 Equatorial GuineaNov. 08 Nigeria March 07 Togo April 07 Sudan Oct. 06 Papua New GuineaMay 10

11. 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

12. 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

13. 6. Fact-Finding Missions– Conclusions (cont‘d) Source: World Prison Brief, Kings College London, 2009

14. 7. Communications • 2005-2010 • 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

15. 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

16. 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

17. Ludwig Boltzmann Institute for Human Rights http://bim.lbg.ac.at Atlas of Torturehttp://www.atlas-of-torture.org