legitimate points for any litigator to consider. Yet, I am convinced
that there is added value in choosing the communication procedure under the Convention against Torture.
CAT can play in providing protection from torture, cruel, inhuman, or degrading treatment, or punishment. As Dean Grossman highlighted in his introductory remarks, the Committee
plays an important role in protecting individuals through the
non-refoulement principle. This is fundamental at a time when
states are challenging, in the name of national security, the fundamental principle that one cannot return a person to another
country if there is a real risk of torture or of cruel, inhuman,
or degrading treatment. The Committee’s principled approach
in this regard will remain fundamental. While non-refoulement
cases initially were brought almost exclusively against Western
countries (mainly Europe and Canada) to prevent deportation to
countries of the South, we see more and more case law concerning the transfer of persons from other parts of the world, such as
the former Soviet Union (Russia, Kazakhstan) or the Maghreb
(Morocco). This contributes greatly to an enhanced awareness
about this important universal human rights principle.
Alternatives may have practical benefits, such as the fact that
a good number of states have accepted the jurisdiction of CAT
as the only relevant international remedy. This was, for example,
the case in relation to Tunisia until the revolution. The CAT procedure also tends to be substantially more expedient than other
universal or regional human rights remedies, which is a very
important point for consideration. Another distinct advantage for
a human rights organization is the particular stigma entailed in a
condemnation through the UN Committee against Torture.
In many instances submitting cases to the UN Committee
against Torture can also be advantageous from a strategic litigation perspective. Submissions to the CAT have notable advantages, namely being able to rely on more explicit provisions for the
prevention and protection from torture and cruel, inhuman, or
degrading treatment. Let me give some examples for reflection:
But we have to go one step further and look at the type of
protection measures to be provided by the Committee. I firmly
believe that within the confines of the Convention and its existing rules of procedures, interim measures could be seized more
creatively with a broader scope of (interim) protection orders and
beyond cases of non-refoulement. At the same time I believe that
amending the rules of procedures to be more explicit in covering the protection of witnesses, family members, or lawyers who
may be threatened because of the case could be envisioned too.
But overall, as lawyers we ought to be more creative in seizing
the Committee. Interim measures have been largely confined to
the “negative” order not to deport an individual, but there is no
logical reason why we should not be able to use interim measures
more effectively to order states to take “positive” measures of
protection, such as taking measures to protect from torture in
custody, to protect witnesses, lawyers, or family members. The
Inter-American Human Rights System has been the most progressive in this regard, and we may draw from this inspiration for
protection measures globally.
Should we not invest in developing case law using the quasiuniversal jurisdiction clauses under the UN Convention against
Torture to pursue states for failure to investigate those responsible for torture in their territory even if only transitory; case law
on the definition of torture as a crime, for example, in order to
reflect considerations of the particular vulnerability of children
or women; case law that sets authoritative standards through
interpretation of the general obligation to prevent torture, including the range of safeguards to be provided such as access to
lawyers or independent medical personnel; or the need to build
more detailed case law on the exclusionary clause under Article
15 [of the CAT], including on the exact scope of what judges and
prosecutors have to do when they are confronted with allegations
that evidence has been obtained by torture? These are just some
ideas of issues we could develop further and that could have real
impact in the fight against torture.
My last point on strategy is on the question of whether to
submit a case with a regional or the universal system. There is
no doubt some value to the argument that regional courts may
have distinct advantages. But we are increasingly witnessing a
sea change with our partners and a greater recognition of the
utility of the universal system. In particular, when confronted
with a systemic problem, such as a particular type of detention
that is prone to torture, a parallel submission of different cases
to the UN Committee against Torture is valuable from an advocacy perspective. This has been our experience most recently in
Mexico, when the OMCT submitted together with its member
organization the first ever case against Mexico to the treaty body
system.
The problem of protection remains a real problem. I was in
Libya last week, where the OMCT helps local organizations in
building specialized capacity in documenting cases. There are
enormous threats to the victim, the families, the lawyers or human
rights organizations, and even prosecutors who may inquire into
allegations of torture. No treaty body will ever be able to promise
security in such circumstances and it would be unrealistic to ask
for such protection, nor to suggest such level of protection to
the victim or lawyers. But an ability to order broader protective
measures as part of the interim protection system would be a
considerable advantage in discussing with lawyers and those affected whether or not a case can be submitted internationally.
The Need for Effective Protection Measures
The Need for Effective Reparations and
Implementation
In the quest for making the remedy to the Committee against
Torture the principal tool in the fight against torture, we will
have to look at a few selected challenges. The first is the role
Two of the other issues we are going to discuss are in fact
different sides of the same coin: reparations and the implementation of decisions. We have heard that the Committee has adopted
6