PRESS CONFERENCE BY UNITED NATIONS REPRESENTATIVE ON TORTURE CONVENTION

The entry into force of the Optional Protocol to the United Nations Convention against Torture in June represented the most important new development in the global fight against torture, Manfred Nowak, the United Nations Special Rapporteur on Torture, told correspondents at a Headquarters press conference this afternoon.

Noting that, according to the Optional Protocol, States had an obligation to create independent national preventive mechanisms, he said the realization by heads of prisons and police lock-ups that domestic commissions could enter detention facilities twenty-four hours a day, seven days a week, provided a major deterrent effect.

Stressing the need for mechanisms that prevented torture from taking place, he said the European Committee for the Prevention of Torture had provided positive experiences in that regard.  Since States parties to the United Nations Convention were already obligated to take all effective legislative and other measures to prevent torture, the United Nations was now offering another system.  In that sense, States already had the obligation to ratify the Optional Protocol, as it was part of the general obligation to prevent torture.

Noting that he had been invited by Paraguay to carry out a fact-finding mission in November, he said part of that visit would be a two-day seminar on the establishment of a national preventive mechanism.  He would also emphasize the need to ratify the Optional Protocol during his visits to Sri Lanka, Togo, Nigeria and Indonesia next year.

Describing his activities since his appointment in December 2004, he said he had carried out fact-finding missions to Georgia, Mongolia, Nepal, China and Jordan.  He had also published a joint report on the situation of detainees in Guantanamo Bay.  In general, he had found a surprising lack of awareness among domestic law enforcement officials and politicians that torture constituted one of the most serious human rights violations.

The United Nations Convention was very clear, he said.  States had an obligation to criminalize torture with adequate sanctions.  It was astonishing that the majority of States parties had not found it necessary to take the legislative measures and convey to their law enforcement officials the message that torture actually constituted a serious crime, which lead to serious consequences, such as long term prison sentences and not merely disciplinary sanctions.  Very few cases of torture were actually brought to justice and the practice of impunity was wide.  Even when they were brought to justice, torture was often treated as a misdemeanour.

In the wake of 11 September 2001, much of his efforts had been devoted to the relationship between torture and counter-terrorism strategies, he said.  After the events of that date, the absolute prohibition of torture had been put into question, not only by academics, but also by Governments in saying there was a need to balance the prohibition of torture with national security concerns, by defining torture in a narrow sense and by allowing harsh interrogation methods that often went beyond what was allowed in international law.  In that regard, he continued to advocate against the use of diplomatic assurances to circumvent the principle of non-refoulement, and the use of secret places of detention.  Governments should not only refrain from torture, but should also not send individuals to countries where torture was known to be practised. 

In his report to the General Assembly, he had dealt with the issue of article XV of the United Nations Convention.  Under that article, the burden of proof shifted to the State to establish that evidence brought against an individual had not been obtained under torture.  When there were credible allegations, Governments had to establish that it was not extracted by torture.

Regarding country visits, he noted that, according to his terms of reference, it was important that he had access to all places of detention.  He also stressed the need for freedom of movement within pre-trial detention centres, as well as the liberty to speak privately with detainees.  Such requirements were not only common sense, but were included in the terms of reference for his position.

He regretted that his visit scheduled for 6 December 2005 to Guantanamo Bay had been cancelled.  A visit to the Russian Federation, including Chechnya, scheduled for 9 to 20 October 2006, had also been cancelled at a late stage of preparations.  Russian Federation officials had told him that, under Russian federal legislation, it would not be possible to speak privately with detainees.  The Russian Federation had known his terms of reference from the very beginning.  He hoped that the Government would look again into the issue and come up with a solution so that he could carry out a fact finding mission in the future.

Asked if the United States and the Russian Federation were in violation of the Convention, he said no State had an obligation to invite him to carry out a fact-finding mission.  The fact that the United States and the Russian Federation had invited him in a way that he could not accept was not a violation of any treaty.  Governments, when inviting a Special Rapportuer, were supposed to know the minimum requirements of a fact-finding mission.  In that sense, he appealed to Governments to ensure that, before inviting him, their domestic legislation fully complied with his terms of reference.   Much time was spent in preparing such missions.  Cancelling missions was a waste, not only of the United Nations resources, but also of the resources of national authorities.

Responding to another question, he said he was fairly disappointed with the United States Military Commissions Act.  It was his strong opinion that if there was enough evidence that persons had been involved in 11 September attacks or had committed other criminal acts, ordinary courts in the United States were efficient enough to deal with them, applying all the legalities of a fair trial.  Even now, he was not convinced that military commissions would live up to international standards of independent, impartial tribunals.

The determination had been reached that Guantanamo was violating international law and should be closed, he added.  That was why he was appealing to those who criticized the United States to share the burden and take some of the individuals.  Other States needed to do more to assist the United States after President Bush had made clear that he was willing to close Guantanamo if security issues could be resolved.

Asked to define his role, he said there was a clear division of labour in the United Nations, as in other international organizations, between the political bodies, which had the right to take decisions, and independent experts who were nothing but fact-finding mechanisms.  He could not enforce anything.  His duty was to investigate, as objectively as possible, and report to the respective political bodies.  It was up to those bodies to take action in accordance with his recommendations.  He was not a court and, as such, did not have the right to issue binding judgements.

Responding to a question on Uzbekistan, he said he had not been in that country.  However, the previous Special Rapporteur had concluded that torture was practised in Uzbekistan.  Even if a country were violating human rights, it did not mean that all United Nations agencies should leave the country.  The United Nations Development Programme (UNDP) was providing important development cooperation in Uzbekistan.

Regarding Iraq, he said there had been some misunderstanding by the media regarding his previous statements.  When he had briefed the press in Geneva, most of the questions addressed to him had concerned Iraq.  At the time he had wondered why.  He had only later found out that the United Nations Assistance Mission for Iraq (UNAMI) had published a report that had noted that many of the people killed had shown marks of torture.  He had been asked to comment on that.  During his visit to Jordan in June, he had had two days in Amman to speak with alleged torture victims from Iraq, as well as with non-governmental organizations and intergovernmental organizations.  One of the conclusions had been that the Iraqi Government should invite him to carry out a mission.  He had not been in Iraq.

While many of the alleged victims had said the situation was worse than under Saddam Hussein, it was difficult to compare, he continued.  Saddam Hussein’s methods of torture had been particularly cruel.  The situation had been, however, one of targeted torture.  The situation today was different.  Today the different militia were responsible for very serious forms of torture.  There were also allegations about the present Government.  The situation under the multinational forces had improved, however.  Many had said that they preferred to be kept in international detention facilities.

Asked about a definition of torture, he said article I of the United Nations Convention did provide a definition, namely the infliction of serious physical or mental pain or suffering for a certain purpose, such as information.  Torture, in that narrow sense, was only taking place if the victim was in a powerless position, such as detention.  Degrading treatment, however, might be below the level of serious pain or suffering.  It was also a matter of individual suffering.  Individuals had different levels of suffering.  Stripping a person naked might be degrading because of his or her religion.  Torture could be assessed only on a case-by-case basis.  The word “torture”, moreover, should not be used in an inflationary manner.

As a pioneer in human rights, the United States had a high reputation, he said, in response to another question.  Many Governments were asking why they were being criticized when they were not doing anything that the United States was not doing.  His response had been that every country was required to comply with its international obligations, the rule of law and human rights standards.

Asked if physicians and psychologists accompanied him on a fact-finding mission, he said doctors were always present to conduct medical examinations, as medical exams were one of the most important means of gathering evidence.  Many victims had never had a medical examination.  Some torture methods left traces that could be seen after two months.  A forensic expert could tell the difference between a self inflicted injury and torture.

The International Committee of the Red Cross (ICRC) had exposed the situation in Guantanamo, yet it had not been allowed into Cuba, a correspondent noted.  Given that his mandate was universal, had he thought of visiting Cuban prisons and meeting with former Cuban prisoners?

Responding, he said he had met with Cuba’s Minister of Justice in Vienna and had requested him to look into the possibility of a fact-finding mission.  He had not yet received an answer.

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For information media • not an official record