Tale af Udenrigsministeriets direktør, Friis Arne Petersen, på international konference om forebyggelse af tortur arrangeret af Rehabiliterings- og Forskningscentret for Torturofre på Københavns Universitet den 25.-27. maj.
A main objective of the Danish Governments human rights policy is to ensure effective and independent monitoring of compliance with international human rights standards.
Of course, there may still be a need to develop new human rights instruments and norms. The deliberations on international instruments on the rights of disabled persons and on enforced disappearances are two good examples.
Yet, like the UN High Commissioner for Human Rights, my Government strongly believes that we should first and foremost direct our focus at ensuring effective implementation of existing human rights obligations.
Many of the monitoring instruments at our disposal today are common to all or most categories of human rights. This goes in particular for the systems of government reporting and subsequent examination of the reports – and national policies – by independent experts.
It also applies to the system of special mechanisms, such as the Special Rapporteur on Torture, established by the UN Commission on Human Rights. In addition inter state applications – though not much in use – and indeed individual applications to independent international bodies are applicable to many categories of human rights.
The different categories of monitoring instruments are intended to interface constructively with each other. And we must ensure that they do. But that is not enough. We need to take the specific feature of each human right into account when we develop monitoring instruments.
To give you an example: Monitoring the right to freedom from torture is quite different from monitoring freedom of speech or the right to education. As regards torture, the medical, psychological and social aspects are conspicuous, but there are other specific aspects of torture – beyond the sheer cruelty of this particular form of human rights violation.
One such aspect is the fact that despite its universal condemnation, torture continues to be practised. Paradoxical perhaps, but true. And it means that torture is almost always practised in deep secrecy and flatly denied, thus making it especially difficult to investigate acts of torture.
The traditional monitoring systems, which are primarily of a reactive nature, are all very useful to combat torture. Establishing facts and responsibilities are important in the rehabilitation process and to prevent impunity.
But these instruments do not suffice. A more proactive approach is called for. Fortunately this is precisely what the Optional Protocol to the International Convention Against Torture – the “OP/CAT” – provides.
The Protocol was adopted more than 2 years ago. We find it disappointing that to date only 9 states have adhered to it. We do not underestimate the problems that states are faced with when considering to join this innovative instrument.
But it is high time that the Protocol is ratified by the 20 states needed for it to enter into force. The Protocol must be put into practice as soon as possible. The Government of Denmark and its EU partners are endeavouring to achieve just that.
The Protocol is innovative, but the concept behind it is not new. The idea to establish international inspection of places of detention for the purpose of preventing torture was fostered before work began on the Convention against Torture.
On the global level this suggestion was perceived as too bold at the time. The United Nations instead concentrated on developing the Convention Against Torture based on more traditional concepts.
Nevertheless, human rights advocates and NGOs kept the idea alive. And it was subsequently picked up by the Council of Europe, which adopted the European Convention for the Prevention of Torture in 1987.
From a global perspective the Council of Europe could be considered to have acted as a testing ground for the viability of the concept of international inspections. And the Council of Europe and its Member States delivered proof that the concept works. Subsequently and in the light of this, the idea was taken up again in the United Nations.
During the – somewhat protracted – negotiations on the Optional Protocol, many states seemed deeply concerned with the aspect of independent international inspection. This apprehension may be understandable. But 15 years experience with the European Committee for the Prevention of torture, have demonstrated that the concept works very well.
This new international monitoring instrument will obviously need to co-operate closely with other monitoring instruments in the human rights field. The Protocol addresses this issue in articles 31 and 32. It is not that duplication is necessarily bad, when it comes to human rights monitoring.
But receiving visits from monitoring bodies is a heavy task, and I am not sure that our judicial authorities would be particularly happy to be overrun by them under normal circumstances. And of course a special relationship needs to be worked out between the sub-committee and the Committee Against Torture.
At the very end of the negotiations of the Protocol an additional element of monitoring was added: The international inspection regime was combined with a requirement to establish or maintain national preventive mechanisms. Initially this element was also met with a certain amount of scepticism – primarily from some of us who championed the idea of independent international inspection of places of detention.
We would not like to see the international monitoring replaced by a set of national mechanisms. At the end of the day, a beautiful compromise was conceived: The chairperson put both concepts into the draft protocol, and everybody was happy. At least those of us, who wanted a protocol – and a protocol with teeth.
For all practical purposes, the national preventive mechanisms may very well turn out to be the most important element of the Protocol, since they can cover much more ground than the international sub committee. But it is also a complicated element of the Protocol, which will usually require comprehensive and perhaps even controversial implementation measures at the national level.
The Protocol has anticipated this problem by providing for a grace period of one year after ratification before the requirement to establish the national preventive mechanism enters into force [art.17]. Furthermore there is an opting out possibility of up to three years [art. 24].
In Denmark, we already have a procedure for independent inspection of places of detention, which is undertaken by the Parliamentary Ombudsman. The establishment of this procedure was inspired by a recommendation from the European Committee for the Prevention of Torture. My Government decided to ask if the Ombudsman would continue to undertake this task as the national preventive mechanism under the Protocol.
It is, however, very difficult to make a precise estimation as to whether the office of the Ombudsman is sufficiently equipped to meet all requirements under the Protocol, before the Protocol has even entered into force.
My Government has declared that it will be prepared to look into these issues in the light of the practical experience gained during the implementation of the Protocol. In this respect, it will also be an advantage to be able to cooperate with the Sub Committee to be established once the Protocol has entered into force.
I have described the Protocol as innovative. This goes for the introduction of a global international inspection procedure. It goes for the requirement of national preventive mechanisms. And it goes for the interaction between the two monitoring regimes provided for in the Protocol.
The proactive nature of the Protocol is another innovation. This is one of its main advantages over existing instruments.
The implementation system under the Convention, which we find extremely useful, is primarily based on reporting and individual applications concerning violations already committed. The Protocol adopts a much more direct approach to preventing violations. The system of visits is intended to pre-empt violations even before they occur.
Another advantage is that the Protocol will not – at least not necessarily – lead to “naming and shaming”.
Considering that torture is universally condemned and that there is absolutely no “good” or even “acceptable” form of torture, it may be more efficient for authorities to put things straight quietly without any indication of public condemnation – without loosing face.
Obviously there is a balance to be struck: Establishing facts and accountability is an important element in the rehabilitation process and to avoid impunity. But any prospect of “naming and shaming” may make it more difficult for those responsible to get to grips with torture.
Kilde: www.um.dk
