UN Chronicle | RightsWatch: Satisfaction, Regret and Hope

In 1984-1985, as the Head of Amnesty International’s legal office, I had been responsible for that non-governmental organization’s (NGO) campaign to create a procedure to deal with torture, based on the precedents of the Commission’s Working Group on Enforced or Involuntary Disappearance and its Special Rapporteur on summary and arbitrary executions. I delivered the organisation’s call at its 1985 session for the creation of the function; at the time, the notion that I might be responsible for it one day was inconceivable - it simply did not cross my mind. So when Peter Kooijmans, the first holder of the mandate (now a judge on the International Court of Justice), resigned to become Foreign Minister of the Netherlands in 1992, it was amazing to find myself - by then a full-time law teacher - being put forward for, and eventually appointed to, the post. Of course, my predecessor, who as Head of the Dutch delegation to the Commission in 1985 had led the political effort to secure adoption of the mandate, had already put it on a secure footing.

The satisfaction for me lay in the opportunity to consolidate and develop it. This involved clarifying some conceptual questions and making some methodological adjustments. For example, on the conceptual side, I maintained my predecessor’s stance of intervening in cases of the sentences of corporal punishment being handed down. This was challenged by one State early in my tenure as being outside the mandate, and I developed at some length in the following report to the Commission the doctrinal justification for considering it within the mandate. The Commission explicitly upheld that view and has consistently maintained the position. Similarly, again following the line taken by my predecessor, I offered the view that when rape was committed by law enforcement officials on those in their custody for the same purposes as required for other forms of torture, e.g. to obtain a confession or information, then it was a form of torture.

Here the satisfaction lies in the positive citing of these views by international human rights courts, other international human rights treaty bodies and international criminal tribunals. Instances of methodological developments that has been gratifying to introduce include incorporation into the annual report to the Commission on Human Rights of country-specific observations on the allegations, coming mainly from NGOs, submitted to Governments. In this I followed the practice pioneered the previous year by the Special Rapporteur on summary and arbitrary executions, Bacre Waly Ndiaye, who is now Head of the Human Rights Liaison Office at UN Headquarters. Indeed, the two of us conducted in 1994 the first joint mission, to Colombia, consisting solely of “thematic” special procedures.

Perhaps the most rewarding and challenging part of the work has been the experience of conducting in situ fact-finding visits which, apart from my mission-free first and last years, averaged about two a year. Partly because I was able to rely on standard terms of reference for such visits, adopted by the annual meeting of the Commission’s special procedures, I had the tools - access to any place of detention without notice, unsupervised meetings with anyone, including detainees and prisoners, and access to the relevant authorities - to get a reasonable sense of the reality of the nature and scope of the problem in the countries I visited.

I hope it is not too unworthy to confess to a particular satisfaction when I detected on occasion some fear in the eyes of officials vested with all the power of the State - a power evidently wielded ruthlessly - as they realized we had discovered or were about to discover persons who had been brutally and criminally treated, or at least the implements which had been used to inflict such treatment.

I certainly make no apology for the pleasure I felt when we were able to secure medical attention for some we found in the most parlous conditions, even apparently at death’s door. However, the main purpose for country visits is not to explore the gruesome reality for its own sake; indeed, sometimes what we found was less egregious than the inevitably out-of-date written record foreshadowed. Rather, the aim was to identify what institutional and legal gaps conspired to permit the existence and continuation of the phenomenon. For only with this information was it possible to formulate the kinds of recommendation that could be proposed to a Government that, having issued the required invitation for the visit, should be presumed to be concerned to eradicate the problem.

Evidently, it is always a matter for satisfaction when the government in question takes the recommendations seriously, but even when the reaction is less positive or even negative or is non-existent, the mission reports are usually helpful to others, including national and international NGOs and even some sectors of officialdom, as they pursue their ongoing work to remedy the situation after the United Nations has been and gone. Increasingly, the advisory services and technical assistance programmes of the Office of the High Commissioner for Human Rights is integrating into its projects follow-up to the recommendations of special procedures mission reports, a practice I am glad to note is applicable to some of my own reports’ recommendations.

Inevitably, the principal regret I feel is the persistence of the problem of torture 17 years after the adoption of the mandate. It is a reflection of the absence of the sustained political will required to eliminate it. In the end, Governments faced with a choice between law and public order choose the latter. This is especially the case when they make budgetary decisions giving priority to popular demands, rather than the unpopular cause of those deprived of their liberty, many of the latter being suspected or convicted common criminals or terrorists perceived as not deserving the dignity and respect inherent in all human beings. Nevertheless, the work of the UN human rights system, including the Commission’s special procedures, is to provide a counterweight to that political pressure by undermining the excuses advanced for inaction - the limited nature or non-existence of the problem, the adequacy of existing law and institutions, etc.

In however limited measure, the work of the system affects the international reputation of States and their governments. The limited budgetary resources attributed to our mandates makes serious, professional work difficult. Mandate-holders are unpaid part-timers heavily dependent on the hard-working, committed professionals of the Secretariat. It was only in the last two years or so that I had one of them working the whole time on the mandate - a mandate responsible for the whole world, in most parts of which the problem exists and about which huge amounts of information arrive at the UN Secretariat requiring processing. I might mention here the preposterous rule according to which only one staff member may accompany a special rapporteur on mission. Thankfully, the rule, which is positively subversive of professionally responsible work, has not always been applied in the case of my more recent missions. What is clear is that without further resources, effective follow-up activities will remain a chimera, and it will be difficult to address more general issues deserving of study - e.g. the relevance of torture to particular categories of victims - as priority has to be given to the routine procedures of transmitting urgent appeals, communicating substantiated allegations and undertakings and reporting on missions, as well as reporting annually to the Commission and the General Assembly.

My final regret is the number of governments from whom I have sought but failed to elicit invitations for visits on the basis of the standard terms of reference. If I remain hopeful, it is because the mandate exists, is in good hands (mandate-holder and Secretariat) and, regardless of the constraints, can undertake the activities and has the effects that I described as sources of satisfaction. After most of my professional lifetime spent in human rights work, I know that progress is slow and piecemeal. There are still positive and imaginative initiatives that will enhance the work, such as movement to encourage States to issue open invitations to visit their countries. This initiative, like most positive human rights developments, is the result of creative, sustained work by NGOs. The mandate exists because of, and responds to, their felt need for the United Nations to begin to hold its own members accountable for compliance with the standards it has set. Such need will not disappear. Meanwhile, from time to time the occasional piece of evidence will confirm that the mandates will bring succour and even rescue to some individual victims of torture. I venture to think that this alone is grounds for hope.

This article is due to appear in Issue 1, 2002 of the UN Chronicle, which will be available in March.

Sir Nigel Rodley is a Professor of Law at the University of Essex, United Kingdom, and a member of the UN Human Rights Committee. In 1993, he was designated Special Rapporteur on torture at the UN Commission on Human Rights until November 2001.