TORTURE: ASIAN AND GLOBAL PERSPECTIVES | JUNE 2012
VOLUME 01 NUMBER 02
by DR SERGEY GOLUBOK 1
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment2 provides for periodic reporting of the States Parties “on the measures they have taken to give effect to their undertakings under [the] Convention”3.
The States Parties’ periodic reports are considered by the Committee against Torture (hereinafter, “the Committee”), a treaty body which consists of ten independent members who have “high moral standing and recognized competence in the field of human rights”4.
Consideration of the States Parties’ periodic reports is facilitated by the list of issues prepared by the Committee and notified to the State Party concerned in advance. That list includes questions on which the Committee would like to receive additional clarifications from the State Party’s delegation. It is a new practice of the Committee to produce the list of issues prior to the State Party’s reporting5 in order to receive (ideally) the reports which are better focused on the matters under the Convention of real importance for this or that country.
The State Party’s report and the list of issues are made public by the Committee, and everyone interested may make his/ her/its views on the matter known. The civil society organisations and other actors (such as national human rights institutions, bar associations, and even single individuals) can use this opportunity to rebut the information provided by the State Party, explain its inconclusiveness, or provide the Committee with new data. Many organisations go so far as to write their “shadow reports”. In many senses, those proceedings have characteristics of being adversarial – the State Party’s “official” report is countered by “shadow” ones.
The report is then discussed (normally for two days) at the session of the Committee, in public6 . To maintain the quasi-adversarial character of the proceedings, the civil society representatives are allowed to speak to the Committee members at the same session, but separately and in private (to protect them from possible reprisals on the part of the Government).
Following the introductory speech, normally by the head of the respective State Party’s delegation, the Committee members (two of whom are appointed as country co-rapporteurs) pose their questions. The idea is to have an “interactive dialogue”7 between the governmental delegation and the Committee experts. If need arises, there can be more than one round of questioning.
In November 2011, at its 47th session held in Geneva, the Committee reviewed the periodic report submitted by Sri Lanka8.
At least twelve shadow reports have been submitted to the Committee by the international and national human rights groups9.
The questioning by the Committee and the responses made on behalf of Sri Lanka are summarized in the report published by the Asian Human Rights Commission10.
It is important to emphasize unconstructive stance taken by Mr Peiris, former Attorney General of Sri Lanka, who led that country’s delegation at the 47th session of the Committee. His lengthy and repetitive interventions have been rightly characterized by the Asian Human Rights Commission as “a long tedious lecture on the law in Sri Lanka instead of answering questions [from the Committee members] which were about factual situations and actual violations”11. Unfortunately, there is no possibility for the Committee to stop this circumvention of due process given that for the reasons of diplomatic courtesy the representative of the sovereign State cannot normally be interrupted.
There is also a room for criticism towards the Committee itself. Their questioning could have been more focused. In fact, avalanche of questions posed by them to the Sri Lanka delegation permitted the latter to avoid responding to some of them at all. Many of the Committee members repeated themselves or their colleagues. Seasoned legal practitioner of Mr Peiris’ experience skillfully used every chance to take advantage of all those possibilities to turn the Committee proceedings “into a theatre of evasion”12.
It is important to note that, although the periodic review under the Convention supposes the analysis of the country situation in general, the Committee members did not hesitate to ask the questions about the individual cases. This approach, given that the State delegation is forced to give answers in open session, allows the members of the public, for example, the relatives of disappeared to confront the Government officials and to follow-up with them as to the fate of their loved ones13.
“First of all, it is a direct opportunity to challenge the State in an independent setting, to confront its data and conclusions”
The individual cases discussed at the Committee table were also mentioned in the concluding observations on Sri Lanka14. However, the lack of focus in the Committee questioning has predictably affected that document as well. Among the really important recommendations aimed at the restructuring of the law-enforcement institutions, such as establishment of an independent body to investigate the cases of alleged police violence15, the Committee preferred to repeat itself making recommendations that it usually makes in such reviews such as on issue of non-refoulement16 although it is hardly of any relevance for Sri Lanka.
In spite of all its weaknesses, periodic review before the treaty body specializing in the issues of torture and other serious forms of ill-treatment provide rare opportunity for the involved civil society groups to make themselves heard at the international stage.
First of all, it is a direct opportunity to challenge the State in an independent setting, to confront its data and conclusions. If well prepared, such challenge can lead to the significant role in shaping the Committee’s concluding observations on the country’s performance which, in turn, will serve as a main reference point on the issue during several subsequent years. It is in everyone’s interest to put the international record straight and not to allow it to be manipulated by the governmental functionaries alone.
Further, the Committee’s concluding observations may become a source document for international litigation in the future. In case of Sri Lanka this litigation can be done before the Human Rights Committee (for example, alleging violations of article 7 of the International Covenant on Civil and Political Parties) although non-cooperation of the Government of Sri Lanka with that treaty body leads to the problems of its own and is a separate issue to be tackled.
Finally, focused and well-founded concluding observations can strengthen the whole Convention architecture, as they are an important tool for the Committee to review the States Parties’ compliance with their international legal commitments. And, if necessary in the circumstances, it is imperative for the Committee to get rid of diplomatic nuances and call snake a snake without lip service and any further ado. After all, if the countries’ review by the Committee is akin to a university exam, some students must fail; otherwise higher education is not worthy of its name.
1 LL.M. in International Human Rights Law (University of Essex, United Kingdom); Attorney- at-Law, St. Petersburg Bar Association (Russian Federation); Representative of the Asian Legal Resource Centre at the 47th session of the Committee against Torture (Geneva, November 2011).
2 Adopted by the UN General Assembly Resolution
39/46 of 10 December 1984 (hereinafter, “the
3 Article 19 § 1 of the Convention.
4 Article 17 § 1 of the Convention.
5 Rules of procedure of the Committee, adopted at its first and second sessions, amended at its thirteenth, fifteenth, twenty-eighth, and forty-fifth sessions (hereinafter, “the Rules”), rule 66.
6 Rules, rule 68.
7 Rules, rule 70.
8 UN Doc. CAT/C/LKA/3-4. For the Committee’s list of issues in respect of that report see UN Doc. CAT/C/LKA/Q/3-4 and UN Doc. CAT/C/ LKA/Q/3-4/Add.1.
9 Available at the Committee’s website: http://
10 See: Human Rights Report – 2011. The State of Human Rights in Ten Asian Nations (Hong Kong: Asian Human Rights Commission, 2012), at pages
11 Ibid., at page 438 (citing from their statement
AHRC-STM-170-2011 of 9 November 2011).
13 See, for example, the letter of Sandaya Eknaligoda dated 14 May 2012 reproduced in: http://www. humanrights.asia/news/ahrc-news/AHRC-STM-
14 UN Doc. CAT/C/LKA/CO/3-4, § 13.
15 Ibid., § 18 (a).
16 Ibid., § 27.