Satisfaction, regret … and hope - Rights Watch - leaving the post of Special Rapporteur on the question of torture

UN Chronicle, March-May, 2002 by Sir Nigel Rodley

I look back on my nearly nine years as the United Nations Commission on Human Rights Special Rapporteur on the question of torture with mixed feelings. Fortunately, one I had when I tendered my resignation to the Chair of the Commission, namely, a sense of guilt induced by not completing my current (final) term of the mandate, has passed. The mandate was not due to expire until 2004, but I felt I could not continue to sustain responsibility for the work on it, as well as membership of the Human Rights Committee, and my continuing duties as a Law Professor. However, the appointment of Theo Van Boven, the distinguished former Director of the then Division of Human Rights, permitted guilt to be replaced by relief, as I could be confident that the mandate was in the hands of someone who would bring authority and commitment to its fulfilment. The remaining emotions are contradictory ones of satisfaction, regret and hope.

In 1984/1985, as the Head of Amnesty International's legal office, I had been responsible for that non-governmental organizations (NGO) campaign to create a procedure to deal with torture, based on the precedents of the Commission's Working Group on Enforced or Involuntary Disappearance, and its Special Rapporteur on summary and arbitrary executions. I delivered the organization's call at its 1985 session for the creation of the function. At the time, the notion that I might be responsible for it one day was inconceivable--it simply did not cross my mind. So when Peter Kooijmans, the first holder of the mandate (now a judge on the International Court of justice), resigned to become Foreign Minister of the Netherlands in 1992, it was amazing to find myself--by then a full-time law teacher--being put forward for, and eventually appointed to, the post. Of course, my predecessor, who as Head of the Dutch delegation to the Commission in 1985 had led the political effort to secure adoption of the mandate, had alrea dy put it on a secure footing.

The satisfaction for me lay in the opportunity to consolidate and develop it. This involved clarifying some conceptual questions and making some methodological adjustments. For example, on the conceptual side, I maintained my predecessor's stance of intervening in cases of sentences of corporal punishment being handed down. This was challenged by one State early in my tenure as being outside the mandate, and I developed at some length in the following report to the Commission the doctrinal justification for considering it within the mandate. The Commission explicitly upheld that view and has consistently maintained the position. Similarly, again following the line taken by my predecessor, I offered the view that when rape was committed by law enforcement officials on persons in their custody for the same purposes as required for other forms of torture, e.g. to obtain a confession or information, then it was a form of torture.

Here, the satisfaction lies in the positive citing of these views by international human rights courts, other international human rights treaty bodies and international criminal tribunals. Instances of methodological developments, it has been gratifying to introduce, include incorporation into the annual report to the Commission on Human Rights of country-specific observations on the allegations, coming mainly from NGOs, submitted to Governments. In this, I followed the practice pioneered the previous year by the Special Rapporteur on summary and arbitrary executions, Bacre Waly Ndiaye, who is now Head of the Human Rights Liaison Office at UN Headquarters. Indeed, the two of us in 1994 conducted the first joint mission to Colombia, consisting solely of "thematic" special procedures.

Perhaps the most rewarding and challenging part of the work has been the experience of conducting in situ fact-finding visits which, apart from my mission-free first and last years, averaged about two a year. Partly because I was able to rely on standard terms of reference for such visits, adopted by the annual meeting of the Commission's special procedures, I had the tools--access to any place of detention without notice; unsupervised meetings with anyone, including detainees and prisoners; and access to the relevant authorities--to get a reasonable sense of the reality of the nature and scope of the problem in the countries I visited.

I hope it is not too unworthy to confess to a particular satisfaction when I detected on occasion some fear in the eyes of officials vested with all the power of the State--a power evidently wielded ruthlessly--as they realized we had discovered or were about to discover persons who had been brutally and criminally treated, or at least the implements which had been used to inflict such treatment.

I certainly make no apology for the pleasure I felt when we were able to secure medical attention for some who we found in the most parlous conditions, even apparently at death's door. However, the main purpose for country visits is not to explore the gruesome reality for its own sake; indeed, sometimes what we found was less egregious than the (inevitably out-of-date) written record foreshadowed. Rather, the aim was to identify what institutional and legal gaps conspired to permit the existence and continuation of the phenomenon. For only with this information was it possible to formulate the kinds of recommendation that could be proposed to a Government that, having issued the required invitation for the visit, should be presumed to be concerned to eradicate the problem.