New Special Rapporteur on torture presents his 'victim-centered' approach
Wednesday, 09 March 2011 23:35


On 7 March 2011, the Human Rights Council (the Council) held a clustered interactive dialogue with the Special Rapporteur on countering terrorism (Mr Martin Scheinin) and the Special Rapporteur on torture (Mr Juan E. Méndez). The dialogue marked the last report from Mr Scheinin and the first from Mr Méndez.


As Mr Scheinin noted in conclusion, the dialogue focused mainly on substantive issues relevant to the mandates, and procedural challenges often faced during considerations of reports of these mandates were rare. Belarus and Jamaica were the only States to refer to the Code of Conduct of special procedures. Belarus warned mandate holders should be careful to base their conclusions and recommendations on reliable information so as not to lose their independent character.


In his report, Mr Scheinin highlighted ten areas of best practice in countering terrorism. He stated that the ‘best practice’ approach assists in resolving the tension between counter-terrorism and human rights through a pragmatic method of dialogue and learning. In this regard, he stressed that no balancing between human rights and security is needed, as 'the proper balance can and must be found within human rights law itself'. He also briefly mentioned his findings from his 2010 country visits to Tunisia and Peru, without commenting further on recent developments in the former.

The identified areas of best practice were welcomed by the majority of the delegates as well as by NGOs. Several States reiterated the mutually-reinforcing relation between counter-terrorism and human rights, arguing that this approach - in addition to being morally and legally indicated - constitutes the most effective way to combat terrorism. However, some States made clear that while the ‘best practice’ approach could serve as crucial guidance, it does not put forward binding obligations (USA, Djibouti). It therefore should be applied on a case by case basis, taking each State’s legal system as well as the reality of each situation into consideration (China, USA, Nigeria (on behalf of the African Group), Algeria).


In his concluding remarks, Mr Scheinin mentioned 'access to countries only upon invitation' and 'the existing triangle among his mandate, the Council, and OHCHR as the main obstacles during his six-year experience as Special Rapporteur. He also added that he hopes the compilation of best practice will be heeded not only within the UN human rights circle, but also within the UN counter-terrorism circle.


Mr Juan E. Méndez, on his part, presented what he called a victim-centered perspective to combat torture. Such an approach would seek compensation, redress, reparations, and rehabilitation for victims and their families. Mr Méndez expressed dissatisfaction concerning the lack of progress within some States’ systems in terms of institutionalising basic principles that could provide reparations to victims, and stressed that victims themselves should be given a central role in the prosecution of torturers. Throughout the dialogue, many States concurred with Mr Méndez’s approach and no objections or limitations to this perspective were offered.


Mr Méndez also focused on article 15 of the convention against torture (CAT), indicating the importance of the exclusion of statements obtained through torture as a means of discouraging the use of torture. He highlighted that States should refrain from using wrongfully obtained information or other possibly tainted statement - such as information acquired through third parties without a guarantee against the use of torture - to reinforce the legal framework of CAT in practice. During the dialogue, Pakistan (on behalf of the OIC) expressed concerns about the application of this exclusionary rule. It claimed that when dealing with cases of daily terrorism, States' primary responsibility is to protect their citizens. Jordan proposed that the Committee Against Torture issue a general comment in this regard, arguing that article 15 should be interpreted only by judicial or quasi-judicial bodies.


Greece and Jamaica responded to the country reports of Mr Méndez’s predecessor, Mr Nowak. Greece indicated that national legislation has been adopted regarding migration and asylum regulations and emphasised the need for burden-sharing within the EU concerning asylum seekers and migrants. Jamaica expressed gratitude for the report but disagreed with the Special Rapporteur’s assertion that instances in which prisoners were beaten constituted torture. It cited the questionable grounds that during the event in question both prisoners and guards were injured. It also recalled the controversy that arose from the presentation of Mr Nowak's interim report to the General Assembly in 2010. Jamaica stated that Mr Nowak disrespected the sovereignty of the State in response to the Ambassador in New York. During the session of the Third Committee of the General Assembly, the Special Rapporteur referred to his 'excellent relationship' with the Government and - given the critical reception of his report at the time - questioned whether the Jamaican Ambassador was representing the Government's views or his own. The Ambassador had found this question 'highly offensive’. Although Mr Nowak was present in the room during the Council's interactive dialogue  with his successor, he did not have an opportunity to respond to the renewed criticism.





Last Updated on Thursday, 10 March 2011 14:51
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