Third Committee Experts Tackle Questions around Torture, Judicial Independence, Pointing to Eroded Prison Conditions, ‘Outright’ Denial of International Law
The Third Committee (Social, Humanitarian and Cultural) tackled broad questions of torture, counter‑terrorism and judicial independence today, as delegates engaged with United Nations experts in addressing eroded prison conditions, underfunding of the treaty body system, and at times, outright denial of international humanitarian law, frequently triggered by COVID‑19.
Among the six special mandate holders to present their findings during virtual interactive dialogues, Malcolm Evans, Chair of the Subcommittee on Prevention of Torture, reported that he has been unable to conduct country visits since 2019.
“Let me be clear as to the reason for this,” he emphasized. “It is because of the failure of the United Nations to provide the funds necessary to permit us to carry out our Convention [against Torture] mandate.” He blamed Parties and signatory States for the predicament, pointing out that “you are asked to pay in cash; victims of these States’ human rights abuses are made to pay with pain.” He objected to the imposition of draconian measures restricting access to detainees, as well as “manipulated early release schemes” to free those convicted of serious human rights violations, in the name of responding to COVID‑19.
In the ensuing dialogue, several delegates said preventing torture and ill‑treatment has become much more challenging in the COVID‑19 context and recommended that monitoring mechanisms be created. An observer for the European Union asked whether the Subcommittee had considered alternative methods for carrying out its mandate, while Denmark’s representative asked about barriers to the establishment of the national preventive mechanism.
Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said his office is overwhelmed with requests for urgent interventions, only a fraction of which can be considered due to a “persistent lack of resources and capacity”. Complacency around torture is likely due to generic neurobiological and psychosocial factors that have shaped decision‑making throughout history, he said, rather than generalized malicious intent. And yet, the pandemic has likely led to sharp declines in detention conditions. “We have also received numerous reports of lethal force, but also torture and other forms of ill‑treatment being used to enforce lockdown measures,” he said.
In the ensuing dialogue, delegates broadly welcomed the Special Rapporteur’s efforts to shed light on the use of psychological torture, which is often trivialized, called on States to respect the peremptory norm of prohibiting torture, and drew attention to various human rights situations in China, Belarus, Venezuela and the United States.
Later in the day, Diego García‑Sayán, Special Rapporteur on the independence of judges and lawyers, outlined several ways in which judicial independence can be attacked, noting that political powers can openly intervene to control the judicial system, or more subtly interfere by making budgetary decisions. His report analyzes instances in which disciplinary proceedings are initiated against judges and magistrates, becoming “a real weapon to punish and repress independent judicial conduct” under some circumstances.
The Committee will reconvene at 10 a.m. on Friday, 16 October, to continue its virtual interactive dialogues.
Interactive Dialogues – Torture
The Third Committee continued its focus on human rights, with interactive dialogues featuring presentations by: Jens Modvig, Chair of the Committee against Torture; Malcolm Evans, Chair of the Subcommittee on Prevention of Torture; and Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.
Dialogue 1
Mr. MODVIG said the Committee has faced serious obstacles to its online work: time differences between the locations of members; needs for a secure and well‑functioning online platform, connectivity for all Committee members and other entities, and proper interpretation in all working languages at all times. “These issues have not been fully resolved despite the efforts of the Secretariat and bearing in mind the liquidity crisis affecting the United Nations,” he emphasized. Given the limitations created by the pandemic, the Committee is prolonging its Bureau until the next in‑person session to enable proper consultations and elections. It allowed its three new members – Huawen Liu (China), Erdogan Iscan (Turkey) and Ilvija Puce (Latvia) – to make their solemn declarations in writing and then post them on the Committee webpage, enabling them to fully participate in the Committee’s work. To protect people cooperating with the Committee from reprisals, it has issued detailed guidelines, endorsed the Guidelines against Intimidation or Reprisals (“San Jose Guidelines”), appointed a rapporteur for reprisals, and created a public webpage on related Committee activities. To address the challenges common to most treaty bodies - notably a backlog of individual complaints, non‑reporting and late reporting by many States, the harmonization of work methods and the implications of COVID‑19 – the Committee has participated in the Treaty Bodies Chairpersons Meetings, the 2020 treaty body review process, and the newly created Treaty Bodies Working Group on COVID‑19. He welcomed that many components of the Chairperson’s position paper were included in the co‑facilitator’s report to the General Assembly President, such as a fixed calendar, reviews in the regions, additional meeting time and necessary financial and human resources.
In the interactive dialogue, delegates highlighted the Committee’s important efforts to eradicate torture around the world, with the observer for the European Union expressing support for the simplified reporting procedure and asking the Chair for an assessment of its implementation.
Welcoming the observations issued by the Committee, Mexico’s representative asked the Chair about best practices identified by the Committee to protect human rights as COVID‑related curfews and social distancing measures are being implemented, especially in detention centres.
Meanwhile, the representative of the Russian Federation commented on the effectiveness of human rights treaty bodies and the ongoing review process. Referring to the Committee’s extra session, as well as the money and time allocated for the specific purpose of addressing its work backlog, he expressed disappointment that delays persist. He expressed surprise that, even with an extra third session, the number of reports considered by the Committee remains the same as when it held only two sessions per year – a situation that can only be explained by the Committee spending its time on functions not agreed upon by Member States.
Mr. MODVIG replied that the Committee has been unable to reduce its backlog as such efforts require an allocation of funds by the Secretariat. Regarding the simplified reporting procedure, he considers it as a great success, he said, referring to the 105 State Parties that have accepted it.
Also speaking in the dialogue was the representative of Chile.
Dialogue 2
Mr. EVANS, presenting the thirteenth annual report of the Subcommittee on Prevention of Torture (document CAT/C/69/3) said his update since last October is “relatively simple”, as no visits have taken place. “Let me be clear as to the reason for this,” he emphasized. “It is because of the failure of the United Nations to provide the funds necessary to permit us to carry out our Convention mandate, thus effecting a clear breach of article 25 of the [Optional Protocol to the Convention against Torture]” as well as frustrating the purpose of the body. Parties and signatory States are collectively responsible for this situation. To States that “dare to complain about the costs of the United Nations human rights system,” he said, “You are asked to pay in cash; victims of these States’ human rights abuses are made to pay with pain.” While COVID‑19‑related travel restrictions pose problems, they do not entirely account for the Subcommittee’s inability to visit places of detention over the past year, he said, adding that the funding crisis led to the cancellation of their visits in the last quarter of 2019 itself. While the Subcommittee is “arguably unrivalled” among the treaty bodies in adopting electronic means for carrying out its activities, the work of better understanding the realities facing those in detention and offering practical advice on preventing mistreatment is “just impossible” to do from afar. On States’ response to the COVID‑19 pandemic, he noted that most States have imposed “draconian measures” restricting access to detainees. Moreover, while some States reduced their detained populations, some States did nothing, and others even “manipulated early release schemes” to release those convicted of serious human rights violations. He expressed regret that the 2020 review of the treaty body system has not thus far engaged with the Subcommittee’s needs and he expressed hope that it will not be “left behind” in the strengthening process.
In the ensuing dialogue, delegates raised several questions, with the representative of Denmark asking about barriers to the establishment of the national preventive mechanism.
Switzerland’s representative, welcoming the increasing number of States Parties to the Optional Protocol to the Convention against Torture, nonetheless expressed concern that COVID-19 has rendered country visits impossible - or possible only in a limited manner. He asked about how the Subcommittee assists States in ensuring the protection of detainees.
An observer for the European Union said the prevention of torture and ill‑treatment is extremely challenging in the COVID‑19 context and called for monitoring. He asked whether the Subcommittee has considered alternative ways to fulfil its mandate, given the cancellation of its visits during the pandemic.
The representative of Brazil underscored the need to protect the health and safety of people deprived of their liberty, pointing to Brazil’s national system against torture. Specific mechanisms must be in place to combat torture, he said, expressing disappointment that some States do not have such mechanisms.
Mr. EVANS responded to these questions, noting that barriers to the establishment of the national preventive mechanism are rather challenging and he urged engaging with States at early stages. The Subcommittee does not dictate what States should put in place, but rather offers advice, he said, stressing that some States seem unwilling to engage with the Subcommittee. Another issue is that some States overthink what is necessary. “It is actually not as difficult to put something in place as some seem to think,” he asserted. Where the attitude is positive, much can be done. As to whether the Subcommittee has considered alternative ways to conduct its work, he advocated drawing upon local office support. The main problem is that the Subcommittee is unable to visit detainees directly, and thus, speak with them in confidence.
Dialogue 3
Mr. MELZER said his mandate is overwhelmed with requests for urgent interventions, only a fraction of which can be considered due to a “persistent lack of resources and capacity”. Presenting his report (document A/75/179), which explores the phenomenon of torture and ill‑treatment from the perspective of neurobiology and social psychology, he said his analysis suggests that persistent complacency around torture and ill‑treatment is due to generic neurobiological and psychosocial factors that have shaped human decision‑making throughout history, not because of generalized malicious intent or a lack of expertise, resources or normative consensus. COVID‑19‑related travel restrictions have not allowed him to carry out country missions or official travel since the presentation of his last report to the Human Rights Council in March, he said. Nonetheless, reports suggest that the pandemic has led to a sharp deterioration in conditions of detention in many parts of the world, with detainees unable to protect themselves due to overcrowded cells, inadequate access to masks, sterilizing agents and medical care. “We have also received numerous reports of lethal force, but also torture and other forms of ill‑treatment being used to enforce lockdown measures,” he said, reiterating that any measures to address the pandemic must comply with international human rights standards, and never exceed what is necessary and proportionate to achieve a lawful purpose.
In the ensuing interactive dialogue, delegates condemned torture in any form and drew attention to various human rights violations, with the representative of Switzerland calling for better understanding of root causes of torture and for greater effectiveness of criminal justice.
In a similar vein, an observer for the European Union appreciated the Special Rapporteur’s effort to shed light on psychological torture, behaviour that is often trivialized. He asked Mr. Melzer to elaborate on what States can do to identify practices that may amount to psychological torture.
The representative of Morocco, on behalf of other countries, said that while the prohibition of the use of torture is ius cogens, not all States are respecting it. “In the global fight against torture, police must be our ally,” he asserted, calling for independent accountability mechanisms, ensuring effective justice system.
Along similar lines, the representative of the United Kingdom said his country works to eradicate the use of torture, and violations to human rights law and human dignity. He called on countries to comply with their international legal obligations and encouraged States that have not done so to ratify, sign and implement the Optional Protocol. He asked the Special Rapporteur what States can do to widen the implementation of that instrument.
Meanwhile, Lebanon’s representative drew attention his country’s steps to combat the use of torture, namely the anti‑torture law adopted in 2017.
The representative of the United States condemned torture in any form: “United States values are universal values,” he said, adding that his country played a leading role in enacting the Convention against Torture. The United States advocates for the victims of torture and assists in the rehabilitation process, he asserted, underlining that “no society can be free and no individual secure when torture is not prohibited”. As for holding violators accountable, he recalled the situation in China, namely the internment camps in Xinjiang with its practices of forced labour and involuntary sterilization; the situation in Belarus where people are being unjustly detained; as well as the situation in Venezuela, where the illegitimate Maduro regime has committed systematic human rights violations, including torture. He further opposed the Special Rapporteur’s report, which references the [Julian] Assange and [Chelsea] Manning cases, asking what steps can be taken to promote accountability.
Mr. MELZER responded to delegates, describing practical aspects of his report. Despite the normative framework, reflected in the universal ratifications of the Convention, there are still widespread uses of torture, he asserted, recalling ill‑treatment at the police stations or the lack of investigation into allegations. The normative framework is not working in practice. It is not “good enough”, given what has been happening on the ground. “We have to take a step back and look at the factors,” he said, noting that when addressing a specific case, the very least that should happen is an investigation. Yet, very often, that is not the case, he said, pointing to blatant rejections by States, followed by an explanation that national laws are sufficient to prevent torture.
He said the lack of actual practical engagement obstructs resolution of these cases. His country visits request States to engage in a prompt and independent investigation, as required by the Convention, he said, stressing that States’ responses are not living up to the set‑up standards. Having excellent mechanisms is not enough, “we have to ensure compliance”, he stressed. Judicial institutions often trust the police more than they trust the victims who report abuse, and thus, often refuse to engage in investigations. “We should be honest with ourselves and not ignore facts out of a routine,” he said, adding that his recommendations are concrete when implemented. He stressed the utter importance of transparency and accountability in judicial authority, expressing concern over the worldwide tendency towards secrecy and confidentiality.
Also speaking in the dialogue were representatives of the Russian Federation, Denmark, Czech Republic and France.
In the afternoon, the Committee held three interactive dialogues, featuring presentations by: Obiora C. Okafor, Independent Expert on human rights and international solidarity; Fionnuala Ní Aoláin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; and Diego García‑Sayán, Special Rapporteur on the independence of judges and lawyers.
International Solidarity
Mr. OKAFOR warned against populism, recalling its role in catalysing the events that culminated in the Second World War. In order to understand why certain forms of populism - especially negative ones - have been on the rise in recent years, it is necessary to factor in the fact that, for some decades now, the world has experienced the massive acceleration of economic and financial globalization. Today’s globalized economic system has created an unequal distribution of wealth and income within States, he said, adding that worsening inequality has, in turn, exacerbated the already existing, often racially motivated, populism. He expressed concern over the rise of reactionary populism which represents a threat to human rights‑based international solidarity: countries governed by populist leaders tend to focus excessively on their national audience and its well‑being, he said, pointing to the current global situation triggered by the COVID‑19 pandemic. “Only common international action and solidarity will enable humanity to pull through the challenges that it currently faces,” he asserted.
When the floor was opened for questions and comments, several representatives addressed the detrimental impact of sanctions on international solidarity. In that context, the representative of the Russian Federation expressed regret over the “brazen” use of sanctions by some States, which use them in bad faith to exert political pressure. He also denounced the “cynical attempts” of some to excise the Russian Federation’s role in defeating Nazism, thereby “rewriting history”.
On similar lines, the representative of Venezuela said it is unfortunate that some countries enforce illegal and immoral unilateral sanctions during a crisis that calls for inclusiveness. He asked how progress can be made towards a declaration on the right to international solidarity. Echoing such concerns, the representative of Cuba said extreme right‑wing populism in the United States has had inimical impact on international solidarity and multilateralism, and asked about the impact of sanctions on human rights.
The representative of China said that some countries are attempting to stigmatize others during the COVID-19 pandemic, thereby shirking their responsibilities and harming the interests of the international community.
Meanwhile, the representative of Azerbaijan, speaking on behalf of the Non‑Aligned Movement, opposed the politicization of human rights, and the harmful imposition of unilateral sanctions and embargoes.
Mr. OKAFOR, responding briefly, noted that reactionary popularism is rooted domestically, and therefore, naturally has severe consequences for international solidarity. This behaviour manifests itself in troubling ways, including in the defunding of and withdrawal from multilateral organizations. Addressing concerns raised by the representative of Cuba, he asserted that international solidarity is essential for human rights and must be defended. To Venezuela’s representative, he said States can champion a draft resolution on international solidarity, which has been tabled – albeit “not formally” - at the Human Rights Council.
Counter-terrorism
Ms. NÍ AOLÁIN said the interface between the protection of human rights and security has “never been more obviously interdependent than today”. She outlined work done under her mandate during the past year, including the presentation of a report to the Human Rights Council in March on a visit to Kazakhstan, which highlighted positive steps made in returning women and children associated with foreign fighters to the country. She expressed concern about the misuse of ill‑defined counter‑terrorism standards in various contexts, leading to the marginalization of established legal norms, including those in the 1949 Geneva Conventions, as well as the right to self‑determination. In fragile conflict and post‑conflict settings, a lack of understanding about the obligations of international humanitarian law by many actors - including United Nations entities - are weakening human rights protections, she stressed. Moreover, a “worrying securitizing trend” sidesteps complex questions of lawfulness under international humanitarian law, by reflexively defining as terrorism non‑violent acts, as well as acts of violence by non‑State armed groups in non‑international armed conflict. She went on to address the negative impact of counter‑terrorism regulation in contexts relating to the prosecution of genocide and war crimes, due to the “outright denial of international humanitarian law applicability by States in favour of counter‑terrorism regulation”. Turning to repatriation, she said, “however unpopular”, it remains the only international law‑compliant means to deliver on the obligations of States to women and children. “I remain unrelentingly appalled by the treatment of children in camps such as Al‑Hol and Roj,” she stressed.
In the ensuing discussion, an observer for the European Union reiterated his support for a multilateral approach to combating terrorism and asked about steps that can be taken to ensure that States’ counter‑terrorism frameworks comply with international law. He also asked how the misuse of counter‑terrorism discourse and the expansive definition of terrorism can be addressed.
The representative of Pakistan said some States are rampantly misusing counter‑terrorism laws to crack down on the fundamental freedoms of people, including their right to self‑determination, through the use of digital lockdowns and indefinite curfews. He asked what steps can be taken within the Special Rapporteur’s mandate in situations where legitimate struggles are conflated with terrorism, and how counter‑terrorism regimes associated with the Security Council can be made more compliant with human rights laws.
The representative of the Syrian Arab Republic called for an end to the United States occupation of north‑eastern Syria, which is responsible for the humanitarian situation in Al‑Hol camp. Some European countries in the Security Council refuse to repatriate their foreign terrorists, he said, before asking the Special Rapporteur to elaborate on paragraph 36 of her report.
The representative of Mexico said the General Assembly must outline all counter‑terrorism measures that can be taken while adhering to international human rights law. He asked about strategies that can be used to mitigate counter‑terrorism’s impact on humanitarian action, and about agents working in the zone of terrorist activity.
Meanwhile, the representative of the Russian Federation objected to human rights mechanisms focusing on the rights of terrorists in detriment to addressing the repercussions of their actions. Terrorists cannot be viewed as subjects of international law “under any circumstances”.
The representative of the United States asked how to update counter‑terrorism strategies against the backdrop of constantly changing inputs.
Ms. NÍ AOLÁIN, responding at length, noted the importance of providing adequate funding to human rights bodies, which are “chronically” underfunded. “This is critical if we are to have robust human rights; not just an invocation of two talismanic words, without substance and practice,” she said. She called for a civil society unit within the Office of Counter‑Terrorism, as civil society, including human rights defenders, are on the “receiving end” of counter‑terrorism strategies. To the question by Pakistan’s delegate on the United Nations’ counter‑terrorism architecture, she said: “We cannot lecture States if the architecture does not engage human rights systematically and methodically.”. She acknowledged that studies are needed on the issue of self‑determination, as well as the concerning framing of “soft laws” put forth by global counter‑terrorism fora, adding that such measures must be held to the same standards as those for United Nations entities. In response to the Russian Federation’s delegate, she emphasized that solidarity is insufficient to address the rights of terrorism victims. “We need robust protections, and prosecution in areas that matter,” she said. Finally, to the representative of the United States, she said in order to frame responsive policies, including to right‑wing extremism, it is crucial to listen and engage with the grievances of affected communities, to learn about what propels them to perpetrate violence.
Also speaking in the interactive debate were representatives of Switzerland, Ireland, United Kingdom, Qatar, Netherlands, Indonesia and Ethiopia.
Independence of Judges and Lawyers
Mr. GARCÍA-SAYÁN, presenting his report, said judicial independence can be attacked in a number of ways. Political powers can openly intervene to control the judicial system, and influence can be exercised to divert justice. But judicial independence can also be affected more subtly, through means such as the management of the budget. He noted that in several countries, some categories of judges, especially those who deal with cases of corruption, organized crime or serious human rights violations, are subject to systematic criminalization, threats and discriminatory treatment with respect to their professional opportunities. His report analyzes instances in which disciplinary proceedings are initiated against judges and magistrates, becoming “a real weapon to punish and repress independent judicial conduct” under some circumstances.
In the ensuing dialogue, the representative of the United Kingdom asked about best practices in international cooperation to defend judicial independence. Several representatives, including those of Iran and the Russian Federation, underlined the importance of cooperation between States and complying with common rules framed by the United Nations in order to address the cross‑border issue of corruption. The representative of the United States asked about the role that Bar Associations can play in protecting judges from the threat of disguised punitive measures. Meanwhile, the representative of Turkey objected to the report’s reference to mass dismissal of judges in her country, adding that many of those judges have had the opportunity to ask for their cases to be re‑examined, and have subsequently been reinstated.
Mr. SAYÁN, responding briefly, underscored the importance of immunity and immobility in order to enable judges and magistrates to undertake their duties. Welcoming that several delegates expressed support for the “rule of law as a concept, including the separation of powers”, he noted that it is nonetheless a “work in progress” in many countries. He went on to share a recent good example of measures taken by Uzbekistan’s executive branch to make the judiciary more autonomous, in line with recommendations proposed by the Special Rapporteur, following a visit to the country. To the representative of Turkey, he clarified that his concerns about events in Turkey include the case of a lawyer deprived of freedom who died following a hunger strike. “We welcome more information from Turkey, which was not provided for this report,” he said, adding that he would like to visit that country, if the Government would welcome him.
Also participating in the discussion were the delegates of Chile, Peru, Liechtenstein and Mexico.