PANEL IV CHALLENGES TO PROVING CASES OF TORTURE BEFORE THE COMMITTEE AGAINST TORTURE Opening Remarks of Gabriela Echeverria, Moderator* G ood afternoon. This is the last panel of the conference. I would like to, first of all, thank the World Organisation Against Torture and the American University Washington College of Law for inviting me. The topic of the conference is extremely interesting and I am really pleased to be moderating this panel. I will try to connect the last session on the enforcement and implementation of decisions by the Committee against Torture (CAT, Committee) with this final session on the challenges to proving cases of torture before the Committee. the ECtHR. Their main concern was that the UN bodies could not enact binding decisions in the same way as the ECtHR. After a long conversation on this issue, on the legal arguments concerning enforceability of this type of decision, and after analyzing the options that were available in the region, it was decided that it was worth pushing this project forward. The idea behind it was that even if these decisions could not bring “real” remedies to the victims, the cases could show the systematic failures of the states that allow these violations to happen. Therefore, these decisions—even when not implemented by the States covered by the project—could be used in other forums, for example to lobby legislatures in order to change key legislation. In short, it was agreed that even if states do not generally consider these “views” as legally binding and enforceable, at least the opinions of UN bodies could be used in domestic lobbying efforts to bring about legal and practical changes to combat torture. I think this session shares, among other issues, the complexity of the topic discussed in the last panel. As it became clear during the presentations and floor discussions, the enforcement and implementation of CAT decisions is an extremely difficult task. I thought it was very interesting how at the end of the session, there was complete silence when Gerald [Staberock] asked for comments on what strategies could be used to improve the lack of enforcement of decisions by treaty bodies generally and specifically by CAT. The lack of comments made evident that there are not many strategies to improve the enforcement and implementation of CAT decisions. It is extremely difficult. As Carla [Ferstman] mentioned, there have been cases where having an existing decision by a UN body, some lawyers have tried to go back and implement the decisions domestically. Generally, domestic judiciaries reject this strategy, making the argument that UN treaty monitoring bodies do not have the power to enact legally binding “views,” at least in the same sense as the European Court of Human Rights (ECtHR) or the Inter-American Court of Human Rights (IACtHR). Having said that, it is important to note how the current panel deals with another complex issue, which is proving cases of torture and proving them before the UN Committee against Torture. I think it is important to now discuss these challenges. Have in mind that it is not only important to prove the torture or ill-treatment—which we all know is very challenging—but also to make sure these cases shed light on why these violations happened in the first place. It is important to show what the deficiencies are in the legal and administrative systems, in the prisons, and in other detention centers that allow these violations to happen and to make sure that there is evidence in this regard when individual petitions are submitted. In particular, regarding the Committee against Torture, it is important to bear in mind two things. First, the Committee follows the definition contained in the Article 1 of the UN Convention against Torture,1 which is very specific and is hard to prove. There is a severe element and a purposive element (which is not the case for example in the Inter-American Convention to Prevent and Punish Torture).2 But also it is important to remember that the UN Convention does differentiate between Article 1 (torture) and Article 16 (cruel, inhuman or degrading treatment) and doesn’t apply all the safeguards applicable to Article 1 to Article 16 (regional human rights conventions do not differentiate between “procedural” obligations arising from torture or from other forms of ill-treatment). So in this sense, when bringing a case before the Committee against Torture, victims’ lawyers may have more of a challenge in proving that there is the element of severity — that the I remember many years ago I was in a meeting organized by Open Society Justice Initiative—where I first met Karinna Moskalenko—where we were talking about implementing a project in Central Asia to bring cases of torture before UN treaty bodies. The reactions of the lawyers who were invited to this strategic meeting were not very optimistic (despite Karinna’s very inspiring presentation about her experience bringing cases before the ECtHR in Russia). They all thought it was not the same to bring “international” petitions before UN monitoring bodies as to bring cases before * Gabriela Echeverria is a human rights specialist who is currently a Visiting Scholar at the Columbia Law School Human Rights Institute. 33