U.N. Commission on Human Rights, Report of the Special Rapporteur on torture and cruel, inhuman or degrading treatment or punishment, U.N. Doc. E/CN.4/1994/31 (1994)(Nigel Rodley, Special Rapporteur).



5. The Special Rapporteur has followed the principle of continuity in the discharge of the mandate conferred on him pursuant to Commission on Human Rights resolution 1992/32 and other resolutions of the Commission. Thus, his work is characterized by the following main types of activity:

(a) Seeking and receiving credible and reliable information from Governments, the specialized agencies and intergovernmental and non-governmental organizations;

(b) Making urgent appeals to Governments to clarify the situation of individuals whose circumstances give grounds to fear that treatment falling within the Special Rapporteur's mandate might occur or be occurring;

(c) Transmitting to Governments information of the sort mentioned in (a) above indicating that acts falling within his mandate may have occurred or that legal or administrative measures are needed to prevent the occurrence of such acts; and

(d) Exploring the possibility of visits to States with a view to gaining more direct knowledge of cases and situations falling within his mandate and identifying measures to prevent the recurrence of such cases and to improve the situations.

6. As far as urgent appeals are concerned, the Special Rapporteur has been formally requested by one Government (Turkey, letter of 10 September 1993) and informally requested by another to clarify the criteria he uses in deciding to make an urgent appeal. In both cases he indicated to the respective Governments that, since they were raising an issue of general concern he would address the matter in the present report. This would allow the Commission on Human Rights to take cognizance of the issue and offer any guidance it might deem appropriate. In this connection, the Special Rapporteur draws the attention of the Commission to the relevant passage in the report of his predecessor to the Commission at its forty-eighth session (E/CN.4/1992/17). In paragraph 14, he stated:

"The urgent appeal procedure is basically different from the transmittal of communications about alleged cases of torture. An urgent appeal is made whenever the Special Rapporteur receives information that a person has been arrested and fear is expressed that that person may be subjected to torture. Such fear may be based inter alia on accounts by relatives or other visitors of the detainee's physical condition or on the fact that the detainee is kept incommunicado, a situation which is conducive to torture. An urgent appeal by the Special Rapporteur is of a purely humanitarian nature. The Government concerned is merely requested to assure the Special Rapporteur that the detained person's physical and mental integrity will be guaranteed. Such an appeal, moreover, provides the Government concerned with the opportunity to look into the matter and to uphold its obligations under international law by instructing the detaining authorities to respect the individual's right to physical and mental integrity."

7. It is clear from this explanation that the essence of the procedure is not per se accusatory. It is essentially preventive in nature and purpose. The most satisfactory answer the Special Rapporteur can receive from the Government in question is one containing evidence that the fear expressed has not materialized. Accordingly, the Special Rapporteur does not, indeed must not, wait until he has received evidence that torture has taken or is taking place before making an urgent appeal. That would undermine the effectiveness of this preventive technique. The question can only be whether there are reasonable grounds to believe that a person is held under circumstances indicating that there is an identifiable risk of torture. That assessment has to be made rapidly by the Special Rapporteur and in making it he takes into account a number of factors, any one of which may be sufficient, though generally more than one will be present. These factors include:

(a) The previous reliability of the source of the information;

(b) The internal consistency of the information;

(c) The consistency of the information with information on other cases from the country in question that has come to the Special Rapporteur's attention;

(d) The existence of authoritative reports of torture practices from national sources, such as official commissions of inquiry;

(e) The findings of other international bodies, such as United Nations country rapporteurs and representatives, the Human Rights Committee, the Committee against Torture and regional human rights bodies, in particular, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;

(f) The existence of national legislation, such as that permitting prolonged incommunicado detention, that can have the effect of facilitating torture; and

(g) The threat of extradition or deportation, directly or indirectly, to a State or territory where one or more of the above elements are present.

8. The above is not intended to be an exhaustive list. Nor will the urgent appeals generally identify which factors the Special Rapporteur has borne in mind. This is because the Special Rapporteur considers it necessary that he bring his judegment to bear on the case at hand and that the principle of safeguarding human dignity and the integrity of the person dictates that he err on the side of protection of potential victims under his mandate rather than on the side of avoiding administrative inconvenience for Governments. Further, the more the appeals were to contain formal substantiation for their having been sent, the more they would begin to resemble accusations. Such an effect would be incompatible with the preventive nature and purpose of the urgent appeal procedure.

9. With regard to the transmittal of information alleging violations of the prohibition of treatment within the Special Rapporteur's mandate, the Special Rapporteur has continued to send summaries of information giving cause for concern to Governments. As a result of the gap between the resignation of Mr. Peter Kooijmans and the appointment of his successor, it was only possible to begin processing and transmittal of letters containing such information in August 1993. Further letters were sent in October/November 1993. In general, it was only possible to send one letter to any particular Government, regardless of the incidence and quality of the information addressed to the Special Rapporteur. This is an unfortunate situation; first, because it is desirable for Governments to be in possession of relevant information as expeditiously as possible and, second, because when information is transmitted later in the year, little time is left for the receipt of a response susceptible of being reflected in the Special Rapporteur's report for the year in question. This leads to even an initial exchange of correspondence being spread across more than one report. This, in turn, makes it difficult for a reader to obtain a properly balanced perspective concerning the original allegations or to assess the significance of any later governmental response. Moreover, much information that arrives after the transmittal of a letter to a Government must then wait until the following year before being transmitted to that Government. Further, if any response from a Government seems to the Special Rapporteur to warrant elucidation, he is only in a position to seek that elucidation within the context of the next letter of transmittal of information.

10. This rigidity flows from the limited resources the Centre is in a position to make available to service the Special Rapporteur's mandate. Despite these difficulties, the Special Rapporteur has been able to initiate the practice of consulting sources of original allegations in respect of official responses to the allegations, especially in cases where the facts appear to be contradicted.

11. The Special Rapporteur believes that it is in the interest of both victims and Governments that he be in a position (a) to transmit to Governments summaries of all credible and reliable information addressed to him alleging cases and practices of torture; (b) to analyse responses from Governments; (c) to consult sources of allegations on such responses, as appropriate; (d) to pursue the dialogue with Governments when warranted; and (e) to draw any conclusions and make any recommendations to Governments that such a systematic exchange would indicate. To the extent that the present report fails to reflect this ambition, it is, as indicated, the result of limited resources. Nevertheless, the Special Rapporteur believes that, unless the Commission on Human Rights expresses a different view, he should seek as far as possible to work in a manner consistent with the above approach.

12. Finally, in respect of this aspect of his mandate, the Special Rapporteur wishes to draw the Commission's attention to an issue raised by one Government (India, letter dated 9 December 1993) which stated that "the mandate of the Special Rapporteur should also take into account human rights violations perpetrated by terrorism". The Special Rapporteur considers that the problem of terrorism is covered by Commission resolution 1993/48 (see Introduction, para. 4 (e)), which speaks of the "adverse effect on the enjoyment of human rights of persistent acts of violence committed in many countries by armed groups ... that spread terror among the population".

13. The Special Rapporteur notes that resolution 1993/48, like its predecessor resolutions, does not refer to such acts of violence as constituting human rights violations. In the opinion of the Special Rapporteur, this omission is intentional. He believes that the Commission would not wish to dignify the perpetrators of criminal violence by describing them as human rights violators or, even less, addressing them as though they had the sort of authority that falls within the regime of the international legal protection of human rights. Of course, the Special Rapporteur is conscious of the fact that international law applicable in armed conflict, whether the conflict be of an international or non-international character, prohibits torture by any party to the conflict at any time and in any place whatsoever. The Special Rapporteur could envisage that his mandate could extend to any party to such a conflict. He would welcome guidance by the Commission as to whether he should seek to apply his mandate to acts committed by parties to an armed conflict. If so, he would appreciate further guidance on how he should determine whether such a conflict exists and what entities may be appropriately considered as parties to the conflict: should he, for example, be guided by the view of the Government of the member State concerned? Meanwhile, the Special Rapporteur will continue as appropriate to acknowledge the existence of persistent acts of violence committed by armed groups when these are brought to his attention, within the context of acts falling under his mandate.

14. On the basis of the aforementioned, the Special Rapporteur transmitted during the period under review 84 urgent appeals to 31 Governments concerning roughly 400 individuals (at least 12 known to be women), as well as several groups of persons, with regard to whom fears of torture had been expressed. He also sent 42 letters containing about 500 cases (about 30 known to be women) or incidents of alleged torture. If the information received contained a critical analysis of a more general nature regarding the phenomenon of torture, this information was also brought to the attention of the Governments concerned. In addition, 20 countries provided the Special Rapporteur with replies on about 250 cases submitted during the current year, whereas 17 did so with respect to roughly 130 cases submitted in previous years.

15. As to the matter of visits to States and territories where serious allegations of torture arise, no such visits have taken place since the Special Rapporteur was appointed. In its resolution 1993/97, the Commission on Human Rights urged the Government of Indonesia to invite the Special Rapporteur, inter alia, to visit East Timor. On 13 September 1993 the Special Rapporteur addressed a letter to the Government of Indonesia drawing its attention to this resolution. So far he has received no reply.

16. Despite the repeated encouragement to Governments expressed by the Commission, most recently in resolution 1993/40, "to give serious consideration to inviting the Special Rapporteur to visit their countries so as to enable him to fulfil his mandate even more effectively", no Government has taken the initiative to invite the Special Rapporteur. Nevertheless, he has had contacts with a number of Governments that he believes could result in his being invited to undertake visits. The (hopefully positive) results of these contacts will be indicated to the Commission in the next report of the Special Rapporteur.

17. In this connection, the Special Rapporteur is aware of the need expressed in the Commission and at the World Conference on Human Rights (see following paragraph) for cooperation among the United Nations human rights procedures and for the avoidance of unnecessary duplication. Accordingly, he will not as a rule seek to visit a country in respect of which the United Nations has established a country specific mechanism such as a special rapporteur on the country, unless a joint visit seems to both to be indicated. As regards countries where the mandates of other thematic mechanisms may also be affected, he will seek consultation with them, with a view to exploring with the Government in question, either jointly or in parallel, the possibility of a joint visit. In any event, he will seek to avoid broadly contemporaneous visits. Similarly, where the Committee against Torture is considering or has recently considered the situation in a country under article 20 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, especially if that consideration involves a visit or a possible visit to the country in question, the Special Rapporteur will not also seek a visit.

18. In general, the Special Rapporteur has welcomed the accent placed by the Commission on cooperation among the various mechanisms called upon to address the problem of torture and analogous grave human rights violations. He has noted, in particular, resolution 1993/40, in paragraph 16 of which the Commission considered it desirable that the Special Rapporteur should continue to have a further exchange of views with the various mechanisms and bodies entrusted with the task of combating torture, in particular with a view to enhancing further their effectiveness and mutual cooperation; and resolution 1993/47, in paragraph 9 of which the Commission encouraged the thematic special rapporteurs and working groups to continue to cooperate closely with relevant treaty bodies and country rapporteurs.

19. Moreover, the Vienna Declaration and Programme of Action of the World Conference on Human Rights states in Part II:

"1. The World Conference on Human Rights recommends increased coordination in support of human rights and fundamental freedoms within the United Nations system. To this end, the World Conference on Human Rights urges all United Nations organs, bodies and the specialized agencies whose activities deal with human rights to cooperate in order to strengthen, rationalize and streamline their activities, taking into account the need to avoid unnecessary duplication. The World Conference on Human Rights also recommends to the Secretary-General that high-level officials of relevant United Nations bodies and specialized agencies at their annual meeting, besides coordinating their activities, also assess the impact of their strategies and policies on the enjoyment of all human rights."

"88. The World Conference on Human Rights recommends that the State parties to international human rights instruments, the General Assembly and the Economic and Social Council should consider studying the existing human rights treaty bodies and the various thematic mechanisms and procedures with a view to promoting greater efficiency and effectiveness through better coordination of the various bodies, mechanisms and procedures, taking into account the need to avoid unnecessary duplication and overlapping of their mandates and tasks."

20. In this context the Special Rapporteur found extremely valuable the formal and informal contacts with other procedures that were afforded by the Fourth Preparatory Committee meeting and the World Conference itself. These and other informal and formal meetings, such as the one held in December 1993 with the Working Group on Arbitrary Detention, have permitted him to stay abreast of developments in the methods of work of the other procedures, especially the thematic ones, with a view not only to avoiding duplication of the sort addressed in the previous paragraphs, but also to harmonizing their working methods and reporting procedures. The Special Rapporteur considers as potentially productive the Commission's request to the Secretary-General, in its resolution 1993/47, that he consider the possibility of convening a meeting of all the thematic special rapporteurs and the Chairmen of the working groups of the Commission in order to enable an exchange of views and closer cooperation. Following the acknowledgment by the World Conference that such "procedures and mechanisms should be enabled to harmonize and rationalize their work through periodic meetings", the Special Rapporteur looks forward to the holding of such meetings.

21. Also, pursuant to Commission resolution 1993/40, paragraph 16 (see para. 18 above), the Special Rapporteur held a formal meeting with the Board of Trustees of the Voluntary Fund for Victims of Torture. He assured the Board that he would continue his predecessor's support for its work, encourage contributions to its resources and disseminate, as appropriate, information on its work to those that could benefit from the assistance it offers.

22. The Special Rapporteur was also mindful of Commission resolution 1993/41, entitled "Human rights in the administration of justice", in which it invited the Commission on Crime Prevention and Criminal Justice to explore ways and means of cooperating with the human rights programme in the field of the administration of justice, with special emphasis on the effective implementation of norms and standards.

23. He therefore accepted an invitation to attend the second session of that Commission, where he stressed the importance of norms and standards adopted in the criminal justice field for his own work. Of particular relevance were the Standard Minimum Rules for the Treatment of Prisoners (1955), the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975) and the Code of Conduct for Law Enforcement Officials (1979). The decision of the Commission on Crime Prevention and Criminal Justice to treat the Standard Minimum Rules as one of the instruments the implementation of which would be subject to immediate review was gratifying to the Special Rapporteur. The Special Rapporteur believes that he should be enabled to attend subsequent sessions of that Commission.

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