Why we must have an OP to follow CAT

THE Special Rapporteur on Torture, Theo van Boven, submitted his second report to the Commission on Human Rights on 17 December 2002. The report (E/CN.4/2003/68) summarizes aspects of the Special Rapporteur's mandate and methods of work, his activities for 2002, and gives general conclusions and recommendations. The recommendations were based largely on the work of his predecessor, Sir Nigel Rodley, who had elaborated a series of guidelines throughout his six years as Special Rapporteur on torture.

Additions to these recommendations included in Mr. van Boven's most recent report include:

* A call for the abolition of legislation providing for corporal punishment, including excessive chastisement ordered as a punishment for a crime or disciplinary punishment.

* Drawing attention to the need to protect the right to physical and mental integrity of women and children.

* Stating that non-governmental organisations and other monitoring bodies should be granted access to non-penal State-owned institutions caring for the elderly, the mentally disabled and orphans as well as to holding centres for aliens, including asylum-seekers and migrants.

* Advocating the development of specific measures to ensure that the right to physical and mental integrity is fully guaranteed during all transfers while in custody, especially from the place of arrest to the initial detention facility.

* Suggesting that legislation should be enacted which ensures that the victim of an act of torture obtains redress and fair and adequate compensation, including the means for the fullest rehabilitation possible. This legislation should also provide that a victim of torture should benefit from special consideration and care to avoid his or  her retraumatisation in the course of legal and administrative procedures designed to provide justice and reparation.

* Calling attention to the Standard Minimum Rules for the Treatment of Prisoners and other international standards in resorting to methods and equipment of restraints. 

* Calling for the abolition of prolonged solitary confinement.

* Stating that the principle of non-refoulement must be upheld in all circumstances-irrespective of whether the individual concerned has committed crimes and of the severity of those crimes.

* Noting that asylum determination procedures should pay particular attention to avoiding the retraumatisation of applicants.

These suggestions elaborate a global recommendation reiterated on several occasions since the creation of the mandate of the Special Rapporteur on Torture: there must be an end to de facto or de jure impunity for torture. The need for continual discussion of these recommendations highlights the importance of the work of the Special Rapporteur and the reluctance with which states have complied with international human rights obligations pertaining to torture.

The Special Rapporteur's difficulty in coordinating country missions further highlights the need for the early ratification by states of the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment. The Optional Protocol aims to create a global system of inspection of places of detention as a way of preventing torture and ill-treatment.

A Sub-Committee of the Committee Against Torture, composed of ten independent and impartial members working in their individual capacity, will be empowered to carry out missions to any State that ratifies the Optional Protocol. On the basis of its visits,  the Sub-Committee will write a confidential report for the State Party, including practical recommendations. It will initiate a dialogue with the State Party to improve the conditions of persons in custody with the aim of preventing torture.

The second important element of the Protocol is its requirement for state parties to put national preventative mechanisms into place. Article 3 of the Protocol requires ratifying States to "set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment."

The report of the Special Rapporteur also noted that his requests for invitations to visit Algeria, Egypt, India, Indonesia, Israel, the Russian Federation with respect to Chechnya, and Tunisia have not been complied with so far. All of these countries are signatories to the Convention Against Torture and to the International Covenant on Civil and Political Rights. All have been accused of violating the provisions in these Conventions by numerous independent parties.