On the legal side, victims of torture and cruel, inhuman, or
degrading treatment have a firmly established right to a remedy
and reparation under international human rights law, including
under the UN Convention against Torture.19 The new General
Comment of the Committee against Torture on Article 14 of the
Convention20 provides a compelling authoritative reaffirmation
of this principle.
of the European Union. Identifying countries that have accepted
CAT jurisdiction is a challenge and possibly the single most
important obstacle to this remedy’s effectiveness today. I believe
much more could be done to push not only for the ratification
of the Convention against Torture and its Optional Protocol but
equally for the universal acceptance of jurisdiction under Article
22. The Universal Periodic Review (UPR) and other mechanisms
in particular could and should play a much more forceful role
in this regard. States could systematically raise accession to the
procedure under Article 22 of the Convention within the UPR
process to help generate momentum and political will.
From a practioner’s perspective, seeking justice in domestic
courts can be an uphill battle. There are multiple reasons for this,
some being legal, and others having to do with institutional cultures, the false protection of a corps spirit, and very often with
secrecy. Again others have to do with courts not being independent, or judges and prosecutors lacking human rights knowledge
and/or consciousness. Even in established democracies traditionally committed to the rule of law and vested with all requisite
institutions to investigate and prosecute torture, accountability
can remain illusive. The failure to provide any legal accountability for a policy of torture and for complicity into torture within
the extraordinary rendition program is a particularly troubling
example of this reality.
Second, as we know, in many countries, lawyers and human
rights activists do not sufficiently know about the procedure even
when their countries have accepted jurisdiction. Too often there
is a false perception of a divide between national law and international law. Not the least, authoritarian states want us to believe
that international human rights standards and mechanisms have
nothing to do with domestic law. In the many transition processes
over the last thirty years in Eastern Europe, Africa, and Latin
America nothing has been further from the truth. International
human rights standards have become a central element in domestic law across the world. The same needs to be the case with
the Convention against Torture and the remedy that it provides.
Hence, one of the ways forward has to be an investment in building knowledge, capacity, and interest to seek recourse to the
complaint procedure.
All this speaks to a needed sea change. I believe that the
CAT can be part of this needed change in perception. In fact,
the challenges around the world testify to the need for robust
and strong universal anti-torture remedies in addition to a system
of domestic remedies. In our experience working with and for
victims of torture, the remedy to the UN treaty bodies or regional
courts are more often than not the only credible recourse to seek
justice and reparation. Hence, there should be vital interest in the
complaint procedure to the CAT as one of the principal universal
tools against torture. Our common objective today is to explore
how to reinforce this tool in the global fight against torture and
how to use it more strategically.
Third, and closely related, is the need to protect lawyers and
activists that document and litigate cases of torture, whether domestically or internationally, and who may often face a variety of
direct and indirect threats. I know that some of our experts have
personally lived through such threats and even direct attacks. The
OMCT is today one of the leading organizations on the protection
of human rights defenders. For us, it is important that protection
is available at all stages of domestic and international litigation.
We have seen internationally important improvements in dealing
with reprisals against human rights defenders participating in
UN mechanisms. The same attention now needs to be given to
threats against torture activists documenting cases domestically.
Mobilizing on the CAT Complaint Procedure
The communication procedure has proved in the 25 years
of the Committee’s existence — which we will be celebrating
later this year — its value and very practical relevance. This is
particularly so in relation to its case work on non-refoulement,
e.g. the prohibition of sending a person to another jurisdiction if
there is a real risk of torture or other forms of cruel, inhuman or
degrading treatment, or punishment. Indeed the large majority
of cases adjudicated by the CAT as of today have concerned the
risk of deportation or transfer. In contrast other cases have been
far more limited and it is fair to say that the CAT remedy is an
under-utilized weapon in relation to many of the vital guarantees
against torture contained in the UN Convention against Torture.
Building Strategic Litigation on the CAT
Beyond mobilization, capacity building, and protection, we
need to initiate a discussion about the strategic use of the communication procedure with the UN Committee against Torture,
and I hope that this meeting can serve as a starting point. This
touches on considerations of the choice of the forum. Some of
the practicing lawyers here today will no doubt prefer to go to a
regional court, such as the European Court of Human Rights, the
Inter-American Court of Human Rights, or maybe in the future
also the African Court on Human and Peoples’ Rights, not the
least because of its legal status and the implementation of the
decisions. Others may argue that pursuing cases with the UN
Human Rights Committee instead of the UN Committee against
Torture is advantageous because it allows raising related violations, such as arbitrary detentions and unfair trials. All these are
Our common objective should be to change this. A few
thoughts on what we would need to change:
First, we need to mobilize and advocate for the accession to
the complaint procedure under Article 22 of the UN Convention
against Torture. As we speak, the OMCT is conducting a training
seminar for lawyers in the Asia and Pacific region with the support
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