The added value of OPCAT ten years on

On 22 June it will be ten years since OPCAT – the Optional Protocol to the UN Convention against Torture – entered into force. In this expert blog for PRI, Professor Rachel Murray, Director of the Human Rights Implementation Centre at the University of Bristol (UK) asks what impact the treaty has had a decade on.

When the Optional Protocol to the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) was adopted in 2002 it was perceived to introduce a novel element into the system of treaty monitoring. It was not the creation of its Subcommittee on Prevention of Torture (SPT) with its capacity to undertake visits to places of detention which was seen to be particularly interesting, but the requirement that States designate or establish a national preventive mechanism (NPM) at the domestic level. These independent bodies were to have the mandate to examine the treatment of individuals in detention through regular visits to places of detention or where individuals are or may be deprived of their liberty. Ten years on and OPCAT has obtained a respectable number of ratifications (81) and of these 57 have notified the SPT of designation of their NPMs. The record of ratifications is stronger in some regions than others, with Africa and Asia still lagging behind. Bodies which have been chosen to be NPMs are noted for their variety: NHRIs, ombuds persons, single entities and those composed of a number of bodies, as well as newly created bodies in a handful of States.

What impact has this treaty had a decade on? At the international level, certainly, you could argue that it has introduced a different way of monitoring treaty obligations, through the permanent presence of a body at the national level, and is certainly a model that has been adopted by other treaties (eg. Article 33 of the Convention on the Rights of Persons with Disabilities (CRPD)) and treaty bodies. But beyond OPCAT and the CRPD this method of monitoring through national bodies is still the exception rather than the norm. As to whether these national bodies have prevented torture and ill treatment is, inevitably, an extremely difficult question and one which may be very difficult to prove. Certainly, one of the reasons these NPMs have been seen as important is because they are premised on the belief, well-grounded, that visits by independent bodies to places of detention will prevent torture and ill-treatment. The challenge is of course, firstly, in proving prevention and, secondly, in proving that torture was not just prevented, but that there was a causal link between that prevention and the visits and role of the NPM.

Even if one cannot categorically prove that NPMs specifically have prevented torture, then at the national level, it is still worth asking some questions. Firstly, what contribution has ratification of OPCAT made, if any, particularly for those States that already had institutions which carried out visits to places of detention, and which were then designated as an NPM under OPCAT? Was this ‘business as usual’? For many with years of experience prior to OPCAT designation, particularly where the government had not matched its OPCAT mandate with additional funding, on the surface this appears to be the case. However, a more detailed examination indicates that where OPCAT has added value is, for example, through bringing what may be seen as diverse bodies together to discuss and identify issues of common concern. For example, the twenty bodies that compose the UK NPM regularly highlight issues of common concern such as isolation and solitary confinement (1), and the Scottish members have established joint working relations (2). Secondly, the process of ratifying OPCAT and designating the NPM has helped to identify gaps in coverage of independent monitoring (eg. court cells in the UK, police cells in Ireland).

As to the range of different types of bodies that can form an NPM, and there are many, it is clear that the decision to designate or establish, say, an ombudsperson instead of an NHRI, or to create a new body, instead of a group of existing bodies, is grounded in the contemporary political, social and legal context of the particular jurisdiction. It is neither possible, nor helpful, to say that one particular model is best suited to the NPM role: the choice of NPM should be determined following, as reiterated by the SPT, an open, transparent and inclusive process which permits a sense of ownership among the broad range of domestic stakeholders. Different bodies pose different challenges: if one can generalise at all, ombudspersons often have extensive experience in dealing with complaints and may have therefore needed to find a way to balance this more adjudicatory mandate with the preventive approach required under OPCAT; existing bodies may have needed to consider how their visits and methodologies can be enhanced by or adapted to the OPCAT criteria; and NHRIs without a visiting mandate may have needed to consider how best to work with those who do.

If this domestic form of monitoring is to be recognised for the important features it brings to the monitoring and implementation of international human rights standards, then there needs to be recognition at the level of the UN of the value of this slightly different approach. The SPT, which not only undertakes its own visits, but also advises and supports these national bodies, has had to consider diverse ways of working beyond the usual UN treaty body model: an increase in the number and type of visits to States; the format of the SPT sessions; and the potential for members to engage with governments and NPMs outside of the ‘normal’ treaty body sessions, all of which may have budgetary implications.

As NPMs, even those newly established, gain greater experience, so there is a shift away from facilitating their creation and designation, and towards assisting in and evaluating their effectiveness. Developing more strategic approaches to following up on recommendations of NPMs and monitoring their implementation by the relevant authorities are issues that the more experienced NPMs are already starting to consider.

OPCAT has highlighted the places where there was no independent monitoring and what is also now emerging from among the established NPMs is consideration of the breadth of Article 4 in practice. Article 4 requires States to allow visits to ‘any place under its jurisdiction and control where persons are or may be deprived of their liberty’, with deprivation of liberty being defined as ‘any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority’. This requires NPMs to take, as the SPT note, ‘as expansive an interpretation as possible should be taken in order to maximise the preventive impact of the work of the NPM’. NPMs are therefore having to consider how they monitor, for example, de facto detention or private settings when balanced against resource constraints, among other factors. The consequences of monitoring private settings, however, may be different and raise other issues (such as competition among different providers) that would not be foreseen by the public sector.

While prisons and police stations may traditionally have been thought of as being within OPCAT’s remit (and even here in some jurisdictions these places of detention are not always covered by independent monitoring), what has been of interest is the consideration of its applicability to, for example, social care contexts including nursing homes, as well as immigration facilities, airports and psychiatric institutions among others. Consideration of these variety of different contexts in some jurisdictions has highlighted the disparity of approaches between independent monitors and the inconsistencies in methodologies and standards that may apply. For many of these issues this is ‘work in progress’ and solutions, if there are any, will hopefully emerge as OPCAT moves into its second decade.

OPCAT has injected a much needed focus on domestic practical tools for monitoring implementation of treaty provisions. As it gains in sophistication and experience other treaties stand to learn much from the work of both the NPMs and the SPT.

References

1. UK NPM, Monitoring places of detention, Sixth Annual Report of the United Kingdom’s National Preventive Mechanism, 1 April 2014 – 31 March 2015, http://www.nationalpreventivemechanism.org.uk/wp-content/uploads/2015/12/NPM-Annual-Report-2014-15-web.pdf, pp.21-51.
2. Ibid, p61.

About the author

Rachel Murray is Professor of International Human Rights Law at the University of Bristol and Director of its Human Rights Implementation Centre. The HRIC undertakes regular work on OPCAT and torture prevention, among other areas. Rachel’s specialist areas are OPCAT, the implementation of human rights decisions and judgments and the African human rights system. She has written widely in this area (e.g. Implementation of the Findings of the African Commission on Human and Peoples’ Rights, with Debbie Long, Cambridge University Press, 2015; The Optional Protocol to the UN Convention Against Torture, OUP, with Steinerte, Evans and Hallo de Wolf), and articles in leading legal human rights journals. She also advises national, regional and international organisations as well as governments and individuals on these areas. She holds a number of grants, including a major grant from the ESRC on implementation. She is on the board of the Institute for Human Rights and Development in Africa, and is a Fellow of the Human Rights Centre at the University of Essex and a member of Doughty Street Chambers. She is also a magistrate.