The 52nd Session of the Human Rights Council
27 February – 4 April 2023
Item 3 – Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
Interactive Dialogue with the Special Rapporteur on Torture
14th March 2023
By Maeva Giambrone / GICJ
Executive summary
On the 14th of March 2023, the 26th meeting of the 52nd Regular Session of the Human Rights Council considered the report of Ms. Alice Jill Edwards, Special Rapporteur on torture (A/HRC/52/30) during an interactive dialogue.
Ms. Jill Edwards opened the interactive dialogue by presenting the findings of her latest report, which focused on the good practices in national criminalisation, investigation, prosecution and sentencing for torture offences. Her report also presented positive state practices that should be encouraged and maintained. For example, at least 105 countries have adopted an explicit criminal offence of torture.
The Special Rapporteur underlined that any obstacle to impartial and prompt investigation, such as a lack of will, is unacceptable. The national duty to investigate is alarmingly insufficient. The Special Rapporteur pointed at a “glaring gap” between the promise and reality of the international prohibition of torture and recalled that every State has a duty to criminalise and investigate crimes of torture in national law, prosecute or extradite suspects, and sentence offenders with penalties that reflect the gravity of the offence.
Various delegations stressed the importance of establishing independent special procedures since the majority of crimes of torture are committed or at least facilitated by public officials. It is, therefore, essential that these victims and witnesses are heard in order to start their healing process. However, concerns were raised about the many reasons why victims are reluctant to report, especially the lack of trust in the judicial system. Delegations also raised the importance of applying the Mendez Principles during interrogations to reduce the risk of torture and ill-treatment.
Many civil society groups welcomed the report of the Special Rapporteur and urged states to criminalise torture in accordance with Article 1 of the Convention while providing for adequate incrimination. In addition, NGOs encouraged states to use non-coercive interrogation techniques as provided for in the Mendez Principles.
The Special Rapporteur concluded the discussion by urging states to end impunity for those who commit acts of torture and respect their duty to investigate. In order to do that, Ms Jill Edwards emphasised that states need to address structural obstacles:
- By applying zero tolerance for the political aspect
- By applying the most important principles of fairness, speed and transparency
- By changing their practice by implementing important tools such as the Istanbul Protocol and the Mendez Principles to obtain information in the most respectful way possible.
- By deconstructing this entrenched culture to make way for a system of rule of law, an independent judiciary and a system that does not prescribe crimes of torture.
Geneva International Centre for Justice (GICJ) congratulates the Special Rapporteur for her very detailed report on good practices to criminalise, investigate and prosecute crimes of torture. We remain extremely concerned about the high number of reports of torture today, even in democratic states. It is necessary to give full effect to the international obligation to prevent and punish all cases of torture. We join the Special Rapporteur to urge national authorities to take ownership of justice processes and operate as primary responders in cases of torture and other inhuman treatment.
Background
The prohibition of torture and other cruel, inhuman or degrading treatment or punishment was first enshrined in 1948, in Article 5 of the Universal Declaration of Human Rights. Since then, many treaties have provided for the same prohibition, the main one being the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984. Yet, it remains a fragile right that is constantly tested, and sometimes torture is tolerated or even excused.
In 1985, the UN Commission on Human Rights, in its resolution 1985/33, decided to appoint an expert for one year, a Special Rapporteur, to examine questions relevant to torture. Since 1985, the mandate has been renewed regularly and extended to 3 years; the most recent was the Human Rights Council resolution 43/20 in March 2020.
The mandate of the Special Rapporteur covers all countries, irrespective of whether a State has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The mandate includes three main activities:
1) Transmit urgent appeals to States concerning individuals reported to be at risk of torture, as well as communications on past alleged cases of torture;
2) Conduct fact-finding visits to countries;
3) Submit annual reports on activities, mandate and working methods to the Human Rights Council and the General Assembly.
Contrary to the complaint mechanisms of the human rights treaty bodies, the Special Rapporteur does not require the exhaustion of domestic legal remedies to act. Where the facts in question fall under more than one mandate established by the Commission, the Special Rapporteur can decide to approach other thematic mechanisms and country rapporteurs with a view to sending joint communications or requesting joint missions.
In August 2022, the Human Rights Council appointed Ms. Alice Jill Edwards as Special Rapporteur on torture. Her priority is to focus on leadership and ownership by the relevant authorities. She wants to focus on putting the rights of victims and survivors at a centre stage but also to integrate a gender perspective and apply feminism techniques and methods. Finally, Ms. Jill Edwards will promote the international legal framework and its adoption and implementation at the national level.
Report of the Special Rapporteur on torture
The report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/HRC/52/30), focuses on the good practices in national criminalisation, investigation, prosecution and sentencing for offences of torture. She highlights major issues standing in the way of impartial, transparent, and effective investigations and presents State’s practice. In 2022, Ms. Jill Edwards transmitted 72 communications on behalf of individuals exposed to torture or other ill-treatment.
The report begins with the duty to investigate crimes of torture in national law and practice. This “duty to investigate” starts with legislation. However, investigating crimes of torture cannot be compared with common crimes investigations. Indeed, most of the time, torture is committed or enabled by public officials or promoted by the government through consent or acquiescence. Hence, it places victims in a very delicate position because they are raising allegations against the ones that are supposed to protect them. The Special Rapporteur notes that very few incidents of torture or other ill-treatment are officially reported and that too many investigations and prosecutions collapse or are withdrawn before any satisfactory conclusion. The purpose of this report is to address the alarming lack of investigations into torture and other ill-treatment.
The Special Rapporteur continues with the duties to criminalise, investigate, and prosecute all acts of torture, which are attached to the peremptory and absolute prohibition of torture. That is why article 4 of the UNCAT states that States must establish all acts of torture as offences under domestic law. Further, prosecuting acts of torture as grave breaches under universal jurisdiction is considered obligatory.
The report further considers the obstacles, impediments, and challenges to effective torture investigations. Indeed, a number of factors can explain the failures of States to investigate and to hold perpetrators accountable in cases of torture. For example, willful obstruction, delay, denial, scapegoating, and deficient procedures are the main obstacles. However, the major challenge is the regulatory gaps. Some domestic laws still permit torture or inhuman treatment in various forms. In addition, most States have not yet adopted the Istanbul Protocol, although it contains the standard for the documentation and investigation of torture. Also, delays at all stages of proceedings are widely reported.
Ms. Jill Edwards then addresses the issue of the criminalisation of torture because her research shows a movement of a majority of States towards adopting an autonomous crime of torture. Currently, at least 108 States recognise torture as an explicit crime, and almost all countries prohibit torture in their constitutions. Under the UNCAT, it is a primary obligation to establish an indictable offence of torture in domestic criminal or penal codes. Unfortunately, some States investigate and prosecute torture under ordinary offences, which can lead to total impunity and to ignore the cruelty inflicted by torture. Mostly, it leads to not delivering adequate penalties. . However, the Special Rapporteur noted some positive trends; for example, a number of States include rape and sexual abuse in the category of acts amounting to torture, and some criminalise torture also when it’s inflicted by people outside their official capacity or in a wholly private capacity.
Regarding victim’s participation, protection and empowerment, the report stresses that victims often lack confidence in the criminal legal system, which can make them hesitant about filing a complaint. They usually fear being pressured or dissuaded to file one, or they can also fear that they or their families won’t be protected from threats, reprisals, or intimidation. Besides, the lack of trained professionals in trauma informed interviewing reduces the chances of a successful investigation and prosecution. That is why the UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power establishes standards to access mechanisms of justice and prompt redress. Along the same line, the EU adopted in 2012 a comprehensive and legally binding victims’ rights directive, also establishing standards on the rights, support, and protection of victims. After that, several countries published similar charters for victims.
The necessity of safe, accessible, and confidential complaint procedures is highlighted given the recurrence of power asymmetry between the accuser and the accused in torture cases. For that, a large number of countries have established complaints channels to national human rights institutions or other comparable bodies.
Once these complaints are filed, effective, prompt, and impartial investigations are needed. But it is not possible if the same authorities against whom allegations are made are investigating their peers, subordinates, or superiors. Indeed, there is a real conflict of interest if investigators are not independent of the authorities. That is why it is the Special Rapporteur’s position that in case of complaints of torture, they need to be immediately reported to a judicial or other independent. Any delay will have to be explained and documented.
Finally, the report considers the issue of sentencing perpetrators. In fact, penalties need to be proportionate with the gravity of the offence of torture which is, according to the CAT Committee, a custodial sentence of between six and twenty years' imprisonment and that one year is insufficient. Thus, fine or conditional sentences are not compatible with the UNCAT.
The Special Rapporteur concludes with recommendations to tackle all the obstacles standing in the way of impartial and effective investigations, prosecution and sentencing of the offence of torture. She recommended, for example, to establish independent investigation authorities, to review the complaints procedures and to amend laws that allow amnesties or immunities. It is also suggested to adopt guidelines and standards for investigators, lawyers, prosecutors, medical experts, and judges.
Interactive dialogue on the Special Rapporteur Report
Geneva, 14 March 2023. At the 52nd Regular Session of the Human Rights Council, the Special Rapporteur on torture held an interactive dialogue regarding the duty to investigate crimes of torture.
The Special Rapporteur opened the meeting by informing the council that she would go to Chile in October and that South Africa, Uzbekistan and Kenya had also agreed to a visit. She also said that her next report to the General Assembly would focus on weapons and equipment used by law enforcement and their relationship to torture and ill-treatment.
Ms. Jill Edwards noted that at least 105 states have national laws to combat torture, but there is still room for improvement as some national laws still allow for solitary confinement, corporal punishment, or torture. Therefore, there is a need for global harmonisation of sentences to bring them in line with international standards.
In her latest report, the Special Rapporteur highlights that usually States perceive criminal investigations as an attack against their legitimacy when on the contrary, impunity is the threat. Furthermore, she insists that failure to investigate only institutionalises violent cultures, that torture prevents reconciliation and undermines trust in the authorities. All this can lead to trouble and ultimately to the demise of the government.
The European Union delegate expressed her desire for a global ban on torture and ill-treatment. She then appreciated the emphasis placed on victims and witnesses, as torture affects the physical and mental health of individuals as well as socio-economic relations with their families. It is, therefore, essential that these victims and witnesses are heard in order to start their healing process. However, the representative pointed out that there are many reasons why victims are reluctant to file complaints, including a lack of confidence in the judicial system.
A group of Latin American states, represented by the Chilean delegate, reaffirmed the importance of State measures considering that gender, sexual orientation or gender identity are causes of discrimination that can be grounds for torture. The representative asked the Special Rapporteur about good practices that include gender perspectives in the investigation of torture cases.
The African State group, represented by the delegate of Cote d'Ivoire, recalled that torture in all its forms, whether physical or psychological, constitutes a serious violation of human rights. This is why States must take ownership of the Convention against Torture, by ratifying it and implementing it in their domestic law, and strengthen it, in particular by raising the awareness of law enforcement officials.
The Liechtenstein delegate began by recalling that the prohibition of torture is a peremptory norm of international law that must be respected and upheld at all times and in all circumstances. Unfortunately, the use of torture remains prevalent in many countries and in all geographical areas of the world. The delegate then pointed out that torture is a crime committed or at least facilitated by public officials abusing their power. This is why it is extremely important to create special procedures and investigate all acts of torture. Indeed, recognising the suffering of victims and survivors will not only create effective redress mechanisms but also develop a deterrent effect.
A number of civil society organisations were subsequently permitted to speak on the report’s findings. NGOs welcomed the report of the Special Rapporteur and the focus on victims and survivors. An emphasis was placed on the need to criminalise torture in national law in order to prohibit torture. However, these organisations have noted that not all States criminalise this practice or that the criminalisation is insufficient due to a lack of imprescriptibility, disproportionate punishment, the absence of reference to the involvement of public officials, the possibility to invoke the orders of a superior as a defence.
Further, NGOs reinforced the need for states to criminalise torture in order to ensure that perpetrators do not enjoy impunity because it is this impunity and the lack of independence of the authorities that discourage victims from filing complaints. Finally, a number of groups called on states to use non-coercive interrogation techniques as provided for in the Mendez Principles.
Concluding Remarks
The Special Rapporteur reiterated her appreciation to those States that have provided information on legislative reforms undertaken to criminalise torture. While some States have indicated that they have defined torture, in particular in relation to war crimes and crimes against humanity, she wishes to draw attention to the need to adapt ordinary criminal codes.
Ms. Jill Edwards emphasised the need for States to implement tools such as the Istanbul and Minnesota Protocols and the Mendez Principles. This is what will change mindsets and cultures. Yet, the duty to investigate is part of a system that requires the rule of law, a free parliamentary system, an independent judiciary and prosecution service.
The Special Rapporteur concluded her remarks by calling on states to recognise what they have done or allowed to be done, because as long as States refuse to admit it or consider themselves untouchable, it will not be possible to make progress in the quest for a world without torture.
Position of Geneva International Centre for Justice
Geneva International Centre for Justice (GICJ) commends the efforts of many states to improve their legislation on torture. Indeed, it is necessary to give full effect to the international obligation to prevent and punish all cases of torture. Yet, we remain extremely concerned about the high number of reports of torture today, even in democratic states, and by the persistence of laws that allow the perpetration of acts that constitute torture or ill-treatment.
We join the Special Rapporteur to urge States to ratify the Optional Protocol to the Convention, the Istanbul and Minnesota Protocols and the Mendez Principles as these treaties enhance efforts to prevent torture.
It is imperative that states recognise their often involvement in cases of torture in order to combat impunity, as this prevents victims from seeking redress and undermines the public's trust in the authorities. In order to achieve this, States must take responsibility and not interfere in cases of torture, including by establishing independent, transparent, impartial and prompt mechanisms and investigations. Similarly, it is necessary that survivors are heard.
Torture, Human Rights, Geneva, geneva4justice, Justice, GICJ, GenevaInternationalCentreForJustice
