Monday, 16 December 2019

Our guest speaker and former UN Special Rapporteur on Torture, Manfred Nowak, outlines the history of the battle to eradicate the persisting practice of torture and ill-treatment around the world, and the unique potential of and risks around the implementation of OPCAT in Australia.

Torture, like slavery, constitutes a direct attack on the core of human dignity. While slavery deprives human beings de jure of their humanity, torture aims at taking away the human nature of human beings de facto. Both phenomena are the most prominent examples of one human being exercising absolute control over another human being and celebrating this absolute power. It is the powerlessness of the victim which makes torture such a horrific crime, and violation of the human rights to personal integrity and dignity.

In reaction to the horrors of the Nazi regime, the international community decided to outlaw torture once and forever. The prohibition of torture is one of the few absolute human rights, which even in times of emergency including war and terrorist threats, cannot be limited or derogated from. Since 1945 this absolute prohibition of torture and other forms of ill-treatment has been included in various international and regional human rights treaties and developed into a norm of jus cogens, the highest expression of international law.

Nevertheless, the practice of torture continues to persist in all world regions. After six years of work as UN Special Rapporteur on Torture and 18 official fact-finding missions to states in all world regions, in 2010 I had to come to at the conclusion that torture exists in roughly 90 per cent of all countries, and that it is a widespread or routine practice in more than half of the states. In roughly 10 per cent it may even be considered a systematic practice.

Since torture, as a method of extracting a confession or other information from victims, always takes place behind closed doors, the international community has developed a special mechanism for the prevention of torture: preventive visits to places of detention. First realised in the framework of the Council of Europe, the United Nations adopted in 2002 the Optional Protocol to the Convention against Torture (OPCAT), which entered into force in 2006. The OPCAT solution is even better than its European model, as it entrusts the task of carrying out visits to places of detention not only to an international body, the UN Subcommittee for the Prevention of Torture (SPT), but primarily to independent National Preventive Mechanisms (NPMs) to be established by every OPCAT member state. If NPMs fulfil the following criteria they can become highly effective means to prevent torture and to improve conditions of detention: They must –

  • be fully independent
  • include members from different professional backgrounds (doctors, psychiatrists and other health professionals, psychologists, prison and police experts, lawyers, social workers, experts in the fields of the rights of children, the elderly, minorities and persons with disabilities, etc.)
  • be provided with sufficient budgetary resources to carry out a significant number of regular and ad hoc visits to all places where persons may be deprived of liberty
  • carry out unannounced visits to all places of detention and conduct confidential interviews with all detainees of their choice
  • have the authority to publish their reports and make recommendations to the competent legislative and executive bodies that are taken seriously in practice.

Australia ratified OPCAT on 21 December 2017 and made a declaration under Article 24 to postpone the implementation of its obligation to establish an NPM for three years. The Australian Government announced the Office of the Commonwealth Ombudsman as NPM coordinator and inspector for Commonwealth places of detention (e.g. immigration detention centres). The states and territories are entrusted to establish NPMs for all other places of detention under their respective jurisdictions. While Article 4 OPCAT defines places of detention in the broad sense of places where human beings are or may be deprived of liberty, the Australian Government decided that the initial focus of NPMs should be narrower and would be limited to “primary places of detention”, which are–

  • adult prisons
  • juvenile detention facilities (excluding residential secure facilities)
  • police lock-ups or police station cells
  • closed facilities or units where people may be detained for mental health assessment or treatment
  • closed forensic disability facilities or units where people may be detained for care
  • immigration detention centres
  • military detention facilities.

Western Australia is the first state that has nominated its NPM: the Western Australian Ombudsman (for mental health and other secure facilities) and the Office of the Inspector for Custodial Services (for justice-related facilities, including police lock-ups). Other states and territories have announced that they are in the process of selecting their respective NPMs.

In my opinion, Australia could become a model for establishing effective NPMs within a federal state structure. The Commonwealth Ombudsman has recently published an excellent and comprehensive baseline study which outlines the variety of places of detention and the extent to which these places are already subject to inspections. This baseline study is intended to serve as basis for states and territories to nominate their respective NPMs.

I see, however, also certain risks in how the process of implementing NPMs in Australia is shaping up:

  • The concept of “primary places of detention” excludes a number of places where human beings in fact are or may be deprived of liberty, such as old peoples’ homes and a variety of “institutions” where children are or may be deprived of liberty for various reasons, including educational supervision, drug or alcohol rehabilitation, for their own care as orphans, children living in the streets, indigenous children, etc. I just published a comprehensive UN Global Study on Children Deprived of Liberty, where we arrived at the conclusion that the highest number of children are in fact deprived of liberty in these types of ‘institutions’, where the risks of corporal punishment, sexual exploitation, and mental and physical violence are particularly high. Since OPCAT provides that NPMs shall carry out preventive visits to all places of detention, as defined in Article 4, the Australian restriction to “primary places of detention”, although from a pragmatic point of view is understandable, might be considered as violating OPCAT.
  • OPCAT leaves it up to individual States Parties to decide whether they prefer to establish one institution as NPM for the entire country or more institutions. In a federal structure as in Australia, it might be good practice to delegate the task of carrying out preventive visits primarily to institutions that are based in the respective individual states and territories. It is also useful to entrust an independent body at the level of the Federal Government, such as the Commonwealth Ombudsman, with a coordinating role. On the other hand, if the individual states and territories, as is the case in Western Australia, entrust more than one body with the task of carrying out such visits, the coordinating role of the Commonwealth Ombudsman might become highly challenging and difficult. We must not forget that each body has a different organisational culture and might apply different standards when carrying out visits to places of detention, interviewing detainees and assessing the risk of torture and conditions of detention.
  • States may establish new institutions, by taking into account the Paris Principles for National Human Rights Institutions (NHRIs), or designate existing bodies to carry out the task of an NPM. If states establish new institutions in accordance with the Paris Principles, they usually assess the needs and then provide the necessary budgetary resources before adopting a specific legislative act. If they designate, however, only already existing institutions, as seems to be the case in Australia, there is a certain risk that these institutions will be expected to carry out the additional NPM tasks without the necessary additional financial resources. The experience in other countries shows, however, that the tasks of preparing and conducting preventive visits; of objectively assessing the conditions in different places of detention; of drafting and adopting fairly comprehensive reports on every visit as well as annual reports; of submitting recommendations to the relevant administrative and political authorities; of monitoring the implementation of such recommendations; and of finally coordinating all these activities, is a highly time-consuming responsibility which requires significant financial resources.

In conclusion, I wish to congratulate the Australian Government for having started a comprehensive process of gradually setting up an NPM that has the potential of becoming a model for other federal states to follow. The respective authorities at the federal and state level may, however, wish to bear in mind that OPCAT requires that all places, where human beings are or might be deprived of liberty (thus not only “primary places of detention”), shall be visited; that not too many different bodies will be involved; and that the necessary budgetary resources will be provided. After all, these financial resources shall serve the important goal of effectively preventing torture and other forms of ill-treatment, as well as of improving conditions in all places of detention.

Manfred Nowak is Professor for International Human Rights at the University of Vienna, Scientific Director of the Vienna Master of Arts in Human Rights, and Secretary General of the Global Campus of Human Rights. In 2016 he was appointed Independent Expert leading the UN Global Study on Children Deprived of Liberty. Besides teaching at various prestigious universities, he has published more than 600 books and articles in this field and held various expert functions, such as UN Expert on Enforced Disappearances (1993–2006), international judge in the Human Rights Chamber for Bosnia and Herzegovina (1996–2003), and UN Special Rapporteur on Torture (2004–2010).


UWA Public Policy Institute