Time to take a stand on the prevention of torture. But mostASEAN governments including Singapore abstain on Optional Protocal on torture vote. Is torture an Asian Value? If the answer is NO - then why did most ASEAN countries Abstain?
INTRODUCTION: THE AIMS AND HISTORY OF THE OPTIONAL PROTOCOL.
1. Prevention of torture - a matter of international concern.
Amnesty International supports a strong Optional Protocol to the Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment (Convention against Torture), which establishes a strong international committee of experts to visit places of detention in order to make recommendations on the prevention of torture.
Amnesty International's campaign against torture this year has shown the world that the practice of torture and cruel, inhuman and degrading treatment continues in many countries. Victims of torture come from all ages, many countries of the world, and all sections of society - although most frequently, they are criminal suspects, or victims of discrimination on the grounds of race, sex, and sexual identity.(1) The variety and severity of the methods of torture and cruel, inhuman and degrading treatment and punishment defy belief. Even children are victims.(2) Frequently torture and cruel, inhuman and degrading treatment and punishment take place in state detention centres such as police stations, prisons and other places where persons deprived of their liberty are held.(3)
Torture and cruel, inhuman and degrading treatment have long been recognized as matters of legitimate international concern. The international community, through intermediary bodies mandated by international human rights law - for example, the Special Rapporteur on torture, the Committee against Torture, and the Human Rights Committee - are entitled to scrutinise the practices of states, and make recommendations to address the practice of torture and cruel, inhuman and degrading treatment. The international prohibition against torture is so strong that, as the case regarding Augusto Pinochet's extradition from the UK to Spain showed, no person is immune from extradition and criminal prosecution if they are suspected to have committed torture, or caused torture to be committed.(4) Indeed, the prohibition of torture is widely considered to constitute a peremptory norm or rule of jus cogens under international law:(5) this means that the law against torture is unequivocal - torture is absolutely prohibited in all circumstances.
The prevention of torture is therefore a question of prevention of crime and a matter of international concern. It is a key obligation in the Convention against Torture.(6) It is also a matter of humanitarian concern and compassion to take all possible steps to avoid torture happening to anyone.
2. What is the Optional Protocol to the Convention against Torture?
''(T)he Special Rapporteur has emphasized the importance of a system of periodic visits by independent experts to places of detention and has called it one of the best preventive measures against torture.''(7)
The Convention against Torture is the international treaty which bans torture and cruel, inhuman or degrading treatment or punishment and sets the standards for methods by which states are to implement that ban at the national and international levels such as by carrying out investigations and bringing perpetrators to justice.
The draft Optional Protocol to the Convention against Torture (the Optional Protocol) is the draft text of an addition to the Convention against Torture which would assist the implementation of an existing obligation in the Convention against Torture - the requirements under Articles 2, 11 and 16 to take steps to prevent torture. The Optional Protocol is the legal agreement that would set up a Sub-Committee for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Sub-Committee). This would comprise of independent experts serving in their individual professional capacities, and not representing their governments in any way. As the quotation above shows, international experts on torture have promoted the practice of such visits as a powerfully effective method of ensuring the prevention of torture.
The Sub-Committee would be mandated to carry out a system of regular visits to places of detention in any country which ratifies the Protocol, with a view to making practical recommendations to prevent torture and ill-treatment. The members of the Sub-Committee would make confidential recommendations to governments based on the visits as to how to improve the situation of detained persons so as to prevent torture. States Parties would be expected to implement these recommendations.
The Sub-Committee would be a body made up of experts in a range of fields, including penal management, criminal justice, medical and psychiatric expertise, and human rights, serving in their individual capacities. They would carry out missions to States Parties, having the power to visit any place in any country which ratified the Protocol where persons are deprived of their liberty. The missions would be of two kinds: periodic (regular, recurring and preventive) and ad hoc. Delegations consisting of at least two members of the Sub-Committee assisted by experts in necessary fields such as psychiatry and criminology, as well as translators, would carry out the missions to a country. They should be able to inspect any part of any place of detention they visit, interview any detainee without witnesses and receive the full cooperation of the relevant authorities. When a delegation completed its mission, it would prepare a report to be transmitted to the government of the country visited containing recommendations about making improvements in the situation of persons deprived of their liberty with a view to preventing torture.
A preventive approach can be particularly effective if it combines two techniques: fact-finding - to identify practices which facilitate human rights violations; and the initiation of dialogue with governments to discuss remedial measures. The principles governing relations between the Sub-Committee and governments would be cooperation and confidentiality. The favoured method for advancing the prevention of torture would be constructive and confidential dialogue between the Sub-Committee and governments. However, in the event that a government fails to cooperate with the Sub-Committee or refuses to implement the recommendations made in the report, a public statement on this matter or publication of the report may be made, as a last resort.
There is no shortage of international standards against torture and ill-treatment and, indeed, the draft Optional Protocol does not attempt to create new substantive rights. Yet governments - including many of the states parties to the Convention against Torture - too often do not fulfil their international obligations in this area. The Sub-Committee envisaged in the Protocol would seek to secure the implementation of these standards. However, it would not act as a quasi-judicial body investigating alleged violations of treaty obligations. Rather, the members of the Sub-Committee would go and see for themselves the conditions in places of detention and particular practices which may be instrumental in the occurrence of torture and ill-treatment - acquiring information governments sometimes lack even if they have the political will to institute reform. The Sub-Committee would enter into a dialogue with governments and make practical, confidential recommendations about ways to prevent torture and ill-treatment.
The Optional Protocol posits a radically different type of international mechanism from those already existing - the Special Rapporteur on torture, the Committee against Torture, the Human Rights Committee - in that it seeks to prevent torture, rather than respond to incidences of torture. Although the three bodies referred to make useful recommendations on the prevention of torture in the course of their activities, they cannot, as of right, go into a country to assess conditions in places of detention and make specific recommendations tailored to prevailing conditions. This is the key contribution that the Optional Protocol could make to the international struggle against torture, and the reason that Amnesty International strongly supports the successful conclusion of the negotiating process. As the former Special Rapporteur on torture, Mr Kooijmans, pointed out, the Optional Protocol "would to a certain extent be the final stone in the edifice which the United Nations has built in their campaign against torture."(8)
Support for an effective Optional Protocol and acknowledgement of the key role it could play has further been expressed during the Vienna World Conference on Human Rights.(9) The principle that places of detention should be visited by experts is stated in the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.(10) The present Special Rapporteur on torture has also expressed his support for the practice of inspection of places of detention.(11)
Non-governmental organizations (NGOs), including Amnesty International, have stressed that a weak Optional Protocol could be worse than none at all. A weak Optional Protocol would provide no effective prevention of torture, but might be used by states as an excuse to refuse to allow other visits to places of detention, such as those carried out by NGOs and the International Committee of the Red Cross, or as an excuse not to allow domestic NGOs to set up systems of visits at the national level. Such an outcome would defeat the goals of the Optional Protocol.