The 49th Regular Session of the Human Rights Council
28th February to 1st April 2022
Item 3: Interactive Dialogue with Special Rapporteur on Torture
11th March 2022
By Jamel Nampijja / GICJ
During the 23nd meeting of the 49th Human Rights council regular session on the 11th of March 2022, Mr Nils Melzer, the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment, presented the conclusions of his current report carried out during the reporting period.
The report evaluated the reception and implementation of the mandated thematic reports by states as a driver of change in national law, policies, and practices towards the eradication of torture and ill treatment, including recommendations aimed at supporting these processes. The findings complemented the preceding report submitted to the HRC by the Special Rapporteur, and evaluated the effectiveness of states’ interactions with the mandate’s 3 pillars of work: individual communication, country visits and thematic reporting.
Having served as the Council’s Special Rapporteur for 5 and a half years at the time of the report, Mr Melzer emphasised that his outlook was bleak, so long as state practices fail to evolve beyond the currently predominant attitude of indifference and self-righteousness. Torture and ill-treatment will remain widespread and impunity rampant, traumatising millions of victims without any prospect of hope or the promises set out in the Universal Declaration of Human Rights.
The mandate of the Special Rapporteur was adopted in 1985 by the Commission on Human Rights under resolution 1985/33 and the Human Rights Council has consistently renewed it since its inception. The mandate covers any act of torture and other cruel, inhumane or degrading treatment or punishment under relevant international or customary law or treaty.
The Council mandated the Special Rapporteur to study the trends, developments and challenges in relation to combating and preventing torture and other cruel, inhumane or degrading treatment or punishment, and to make recommendations and observations concerning appropriate measures to prevent and eradicate such practices; as well as identifying methods of best practice to prevent, and eradicate torture and other cruel, inhumane or degrading treatment or punishments.
The Special Rapporteur was additionally required to report yearly to the Human Rights Council and General Assembly on all of the mandate’s actions, observations, conclusions and recommendations on relevant overall trends and developments with a view to maximise the benefits of the reporting process.
The conclusions and recommendations of the Special Rapporteur regarding the issues raised in the thematic reports under the mandate must be proactively considered by states under their legal obligations to prevent, criminalise, investigate, prosecute, punish and redress acts of torture and ill-treatment and to rehabilitate victims of such abuse.
Report of the Special Rapporteur
Mr Melzer stated that governments rarely, if ever, adopt effective measures to incorporate the conclusions and recommendations made in thematic reports into their national laws, regulations, policies, and practices.
He suggested that states seem to underestimate the practical relevance of these reports for their own national context, confirming that only one and respectively six out of 193 consultant states consider any of the following topics to be relevant to their national context. Extra custodial use of force in particular, police brutality, migration related torture and ill-treatment are most commonly disregrded, as well as the prohibition of torture and ill-treatment, corruption related to torture and ill-treatment, domestic violence, psychological torture, the effectiveness of states’ cooperation with the mandate and the topic of accountability for torture and ill-treatment.
Given the frequent and worldwide occurrence of serious violations falling within the thematic purview of these reports, states fail to acknowledge the relevance for their own national context suggesting a generalised and distorted self-perception that is consistent with patterns of denial as described in the Special Rapporteur’s 2020 report to the General Assembly. Mr Melzer went on to acknowledge that the observations were fully consistent with the statistical analysis provided in his proceeding report, demonstrating that 90% of individual communications and 85% of visit requests transmitted by his mandate received either no response or a non-satisfactory response by the standards established by the Council.
States remain largely indifferent concerning the topics addressed, the conclusions reached, and the recommendations made in thematic reports as well as with regard to individual communications, and with country visit requests transmitted by the mandate. States only express ceremonial support and appreciation during interactive dialogues in Geneva and New York.
Despite the universal acceptance of the absolute and non-arguable prohibition of torture and ill-treatment, and in spite of the extensive normative and institutional framework established, no government confronted with alleged violations or with legislative regulatory or judicial shortcomings has shown a satisfactory level of cooperation with the mandate or has otherwise taken the measures of prevention, investigation, prosecution, and redress required by International Human Rights Law.
Governments are quick to demand respect for human rights from adversaries and other states, rarely demonstrating the genuine political will to effectively address alleged violations or shortcomings arising in their own jurisdictions. In practice, states tend to deny credible allegations to justify or trivialise abusive practices to avoid accountability for undisputable violations, to reject or procrastinate necessary normative and institutional reforms, and to leave victims without any form of redress and rehabilitation.
States almost habitually adopt progressively defensive, evasive, obstructive, and even aggressive policies and stances or terminate dialogue altogether when the Special Rapporteur’s mandate insists on country visits or states adopting recommendations.
In a statement delivered by Ms Marleen Steenbrugghe on behalf of the European Union, she restated the EU’s strong commitment to the fight against torture and appreciated the special rapporteur’s recent efforts that shed light on states’ cooperation with the mandate. She acknowledged the positive impacts of previous reports that led to the development of European Union regulations in banning the trade of certain goods that might be used for acts of torture. Such action is important and encouraging despite the limited responses by states overall. She concluded her statement with a question regarding what areas of concern and which elements of torture prevention should be a focus for the coming years.
Ms Trine Lyst Hansen delivered a statement by Denmark on behalf of the Nordic and Baltic countries, expressing solidarity with Ukraine and its people. The representative condemned Russia’s illegal military aggression against Ukraine in the strongest possible terms, particularly since Russia has proven its willingness to disregard their obligations under international law. The speaker expressed concern over the disturbing findings in the latest report which evaluated the reception and realisation of the mandate by states. It was emphasised that the findings indicated the lack of political will to effectively address alleged violations and shortcomings in ending torture with states generally engaging only superficially with the mandate. She requested Mr Melzer share his thoughts and recommendations regarding any other adjustments to the mandate to improve overall cooperation and the mandate’s effectiveness.
The representative of Angola, Ms Marilia Angelica dos Santos Manuel welcomed the report and commended the Special Rapporteur’s commitment throughout his mandate. The representative expressed that Angola ratified the convention against torture and ill-treatment in 2019 and more recently joined the mandate. The speaker expressed concern over the lack of progress in preventing the effects of the torture and the insufficient commitment of states in banning torture. The speaker suggested that the report is more relevant than ever before in the modern era, and that the Council should reflect on how it should continue to better promote the prohibition of torture and ill-treatment. She emphasised that the Special Rapporteur’s report was an excellent tool to remind states of their commitments and that Angola is prepared to support all efforts to actively fight torture and ill-treatment at national, regional, and international levels.
The representative of Venezuela, Mr Emilio Segundo Barroeta Guillen expressed appreciation for the Special Rapporteur’s report. He welcomed the fact that Mr Melzer participated in conferences and meetings where he addressed concerns related to the Julian Assange case, the persecution of journalists and the use of psychological torture to silence them. The representative reaffirmed Venezuela’s appeal for the full release of Julian Assange who has been subjected to political persecution by the United States and called for full protection of Mr Assange’s life and physical integrity. He reaffirmed Venezuela’s commitment to the special rapporteur to continue addressing the worrying situation of the physical and psychological integrity of Ambassador Alex Saab who was abducted in June 2020 in Cabo Verde, 400 miles off the northwestern coast of Africa in the Atlantic where he was on an official mission to bring food and medical supplies to Venezuela.
The Ambassador was illegally extradited by a group of American soldiers to the state of Florida in October 2021, despite the explicit ruling of the Economic Community of West African states (ECOWAS) ordering his immediate release. He has been a victim of torture and ill-treatment since he was detained, subjected to inhuman and degrading conditions such as lack of medical care despite his health condition as a person suffering from cancer and other related illnesses that require urgent medical attention.
The representative of China, Mr Mao Yizong highlighted the country’s criminal laws which have clearly prohibited torture and function as a complete system against torture. He firmly restated China’s stance against torture, acknowledging that the country faithfully fulfills its convention obligations and engages in constructive dialogue with the committee against torture. He called on the Special Rapporteur to act impartially and objectively refraining from misinformation based on bias and anti China sentiments. He expressed concern for the police brutality and torture in the United States which has led to numerous deaths, with at least 1124 people were killed because of police brutality in 2021. The representative also stated that the United States police has killed hundreds more people of ethnic minority in the years since the George Floyd incident. China called on the Special Rapporteur to pay more attention to human rights violations in the US where torture, violence and ill-treatment are frequent in places of detention including the Guantanamo Bay prison known for its notorious systematic acts of torture and abuse.
The representative of the State of Palestine, Ms Dima Asfour pointed out Israel’s systematic violations of human rights and humanitarian law. The representative stated that since its inception, Israel’s colonial power has been systematically torturing Palestinians using various techniques like physical and mental torture that are often practiced by Israeli officers during interrogations while victims are in detention. She stated that there have been reports and accounts of sexual violence towards Palestinian women by Israeli prison personnel. Additionally, Israeli occupying powers have permitted torture to be used in cases of so-called necessity which have given Israeli occupying forces the greenlight to use torture extensively against Palestinian prisoners with complete impunity. The representative called upon the international community to urge Israel to ensure accountability for torture and other cruel inhuman or degrading punishment that is universally prohibited under international law. The use of torture against the people of Palestine by Israel has been widely documented by the United Nations bodies and international organisations, yet not a single criminal investigation has been opened.
The representative of the Russian Federation, Mr Yaroslav Eremin called the Special Rapporteur’s report excessive and a negative assessment of states for their lack or failure to react to reports, recommendations, and requests for individual case information. He stated that studying the reports and investigations of individual cases and reacting to questionnaires requires time and resources and governments find it difficult fulfilling their obligations. On the other hand, the representative stated that his expression didn’t mean that the studies were being ignored by countries, the reports are one way of providing technical assistance and are a good source of assistance to states in combating torture. The representative affirmed that Russia agreed that effective prevention and investigation into torture is an absolute, unshakeable legal obligation of all states regardless of their treaty obligations. Regarding intercommunications, Russia has always tried to provide detailed and extensive information in each of the communications.
The representative of the United States of America, Ms Lucy Seyfarth began her speech by quoting the late secretary general Kofi Anan “special procedures are the crown jewel to the human rights system.”- 2006
She affirmed the United States’ commitment to eliminating torture and the need for effective real time mechanisms to address instances of torture and ensure accountability to eliminate such practices. The United States denounced torture and cruel inhumane or degrading treatment and punishment wherever it occurs, and stated that they continue to promote justice and healing as the largest donor to the United Nations voluntary fund for victims of torture. She posed a question regarding how the international community can better utilise the analysis for the Special Rapporteur to promote accountability for victims of torture?
Several delegations, international organisations, and NGOs presented statements during the interactive dialogue. The speakers welcomed the Special Rapporteur’s efforts to shed light on the extent of States’ cooperation with the mandate, which is an essential part of the protection of human rights. Several delegates reaffirmed their commitment to end all forms of torture and ill-treatment. The representatives voiced concerns regarding the violation of human rights in certain countries like the United States for its systematic racism and police brutality towards people of colour, especially black people. In addition to that, the Council was requested to demand that China halt torture and ill treatment of human rights lawyers and defenders.
In his closing remarks, Mr Melzer reacted to questions posed earlier in the interactive dialogue most of which focused on the observed pattern of denial or neglect and how cooperation can be improved between mandate holders and states. Regarding torture and ill-treatment, Mr Melzer stressed that states ought to acknowledge that the effective prevention, investigation, persecution and regress of torture and ill treatment within their jurisdiction is not a matter of good policy or bad policy. Rather it's an absolute derogable legal obligation. He stressed the need for states to acknowledge that thematic reports drafted by the Special Rapporteur each year should be used as a valuable resource that supports the process of implementation of the obligations in practice whilst establishing the procedures and providing the resources required to effectively process and utilise thematic reports, their conclusions and recommendations.
He stated that Special Rapporteurs shouldn’t be viewed as accusers or enemies to the states because they critique and reveal allegations, instead, Special Rapporteurs are simply carrying out tasks according to their mandates. Mr Melzer urged the states to take Special Rapporteurs seriously and take their allegations as friendly advice. He stressed that he was aware of the rigorous process which requires a lot of resources to deal with thematic reports coming from dozens of mandates several times a year with questionnaires and consultations. Mr Melzer persuaded states to acknowledge the value of thematic reports not only by his mandate but all other special procedure mandate holders because of the wealth of expertise available in these reports so that states can use them in implementing their international human rights law obligations.
He urged states to establish the procedures and provide the resources required to effectively process and utilise thematic reports and their conclusions and recommendations in their respective national systems regarding state cooperation with the special rapporteur’s mandates. He recommended that mandate holders engage in similar processes of evaluation in terms of the utilisation of their thematic reports by states but also the responses of states to country visit requests and intercommunications.
Furthermore, he encouraged the Office of the High Commissioner to lead a broader multi-stakeholder process aiming to identify generic standards to evaluate and improve the utilisation of thematic reports and the interactions of mandates with the mandate holder more generally.
It is important to note that Mr Nils Melzer submitted his resignation as Special Rapporteur on torture effective 30th March 2022 and he has been appointed as the next Director of International Law, Policy, and Humanitarian Diplomacy for the International Committee of the Red Cross. In his final remark, Mr Melzer encouraged the Council to give preference to a female candidate ideally from a non-western region for the position of Special Rapporteur.
Position of Geneva International Centre for Justice
While Geneva International Centre for Justice (GICJ) welcomes the special rapporteur’s report, we remain concerned about states’ inadequate commitment to banning torture and the failure to respond to the consultations conducted in the preparation for the Special Rapporteur’s report. It is unfortunate that States have failed to provide information and follow-up on the recommendations contained in the reports. GICJ calls on all states to fully cooperate with the mandate holders and take advantage of the reports and recommendations.
Furthermore, Geneva International Center for Justice supports the work of the United Nations and the Committee against Torture in implementing the 1984 Convention which should be signed and ratified by as many states as possible. We call on all countries that have not yet ratified the United Nations Convention Against Torture (CAT) to do so in order to prevent and eradicate the use of torture and other cruel, inhuman, and degrading treatment or punishment.
During the Interactive Dialogue on the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Meezaan Center for Human Rights and Geneva International Centre for Justice (GICJ) delivered an oral statement emphasising the need for a crucial visit to Iraq, a visit that has been requested since 2007 but has received no positive response from the Iraqi authorities.
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