National Human Rights Institutions (NHRIs) and Implementation of UPR Recommendations Relating to Torture Prevention
13-14 December 2011
University of Palermo Law School, Buenos Aires, Argentina

 Co-convenors: Par Engstrom, University of London and Thomas Pegram, Trinity College Dublin

Kindly supported by the British Foreign and Commonwealth Office, the University of Palermo and the Human Rights Consortium, School of Advanced Study, University of London

Programme (in Spanish)

Rationale

This two day panel workshop is conceived as a forum for practitioners from within and outside Defensoría institutions – or National Human Rights Institutions (NHRIs) – to engage in a constructive sharing of perspectives and insights related to the role of these novel institutions in the implementation of UPR recommendations as they pertain to the prevention of torture.  It will also incorporate a focus on other UN agencies and mechanisms including the treaty body system, the Committee against Torture, the Human Rights Committee and individual Rapporteurs, in particular the Special Rapporteur on Torture.  The principal objective of the project is to increase knowledge of the obligations arising under the Convention Against Torture (CAT), its Optional Protocol (OPCAT) and the role of NHRIs in monitoring State compliance and Universal Periodic Review (UPR) procedures.

This workshop will explore in depth: How significant is formal design for understanding the role of Defensorías in the area of torture prevention?  What contribution can Defensorías make in the transmission of UPR recommendations and the changing of government behaviour on the ground?  What are the key strengths and challenges Defensorías face as a rights actor with regards to the prevention and responses to crimes of torture?  It will also reflect on the quality of relations between Defensorías and other accountability agencies within the state and civil society in eradicating this crime.  Finally, the workshop is intended to spotlight best practice and lessons learnt among Defensorías offices with a view to facilitating effective working methods and operating procedures in preparation for the commencement of the UPR’s second cycle in 2012.  The meeting is envisaged to conclude with the formulation of a joint declaration by participating NHRIs.

This prestigious event will include a host of high-calibre stakeholders with an interest in Defensorías, international human rights standards and torture prevention and will be of considerable interest to policy and scholarly communities following this fast-moving arena.  The workshop comprises six panels of Defensorías, experts, including policy-makers, legal practitioners and academics, who will be invited to contribute short briefs for circulation prior to the meeting.  It is intended to provide a constructive appraisal of the potential role of NHRIs in this terrain at a time of growing domestic and international interest.  The workshop offers an invaluable opportunity to:

• Deepen understanding of the eventful experience of Latin American Defensorías over recent years
• Feed into current policy discussions around CAT, OPCAT and human rights compliance by Latin American governments
• Discuss the future role of Defensorías in the area of torture prevention with international experts in the field
• Evaluate the appropriateness and implications of designation of Defensorías as National Preventive Mechanisms under OPCAT
• Assist in the development of a network of Defensoría practitioners, government officials, local civil society organizations and external stakeholders brought together by a shared professional and/or scholarly interest
• Facilitate collaboration and communication of NHRIs and stakeholders within the policy, legal and academic world through the creation of a multimedia dissemination tool

Background

The UN Secretary General has emphasized the crucial role of NHRIs ‘in the effective implementation of international human rights standards at the national level’ (A/64/320, 24/08/09).  A recent OHCHR survey highlights the significance of NHRI engagement with the UPR – particularly in Latin America – but also underlines the need for more effective use by NHRIs of the UPR process.

NHRIs as torture prevention mechanisms are uniquely placed to ensure better understanding of local context, monitor follow-up and facilitate implementation of CAT obligations.  In Latin America NHRIs (Costa Rica, Mexico and Uruguay) have been designated as National Preventive Mechanisms (NPMs) under the OPCAT.  A majority of States have ratified the OPCAT but are yet to fulfil their obligation to designate an NPM (Argentina, Bolivia, Chile, Ecuador, Guatemala, Nicaragua, Paraguay, and Peru). Other States have not ratified the OPCAT but have NHRIs actively working on torture prevention (Colombia, El Salvador and Venezuela).  Most States have also accepted UPR recommendations referring to torture prevention (Venezuela will undergo the UPR in October 2011).  Torture prevention in Latin America is a priority area of concern for the representatives of the UN anti-torture mechanisms and the Inter-American Commission on Human Rights (IACHR press release, 17/03/11).

Panel Outline

The roundtable workshop is intended to be highly interactive and participatory. A thematic panel format will provide the point of departure for discussion with Defensorías practitioners, as well as external experts, invited to share their insights.  In order to foster coherence among papers within and across each session, we have elaborated the following set of guiding themes and questions.  It should be emphasized that no single contributor is expected to address all or even a majority of the questions. Rather the following is intended to illustrate the general scope of issues that motivate each discussion.  Panels will be focused on five thematic questions:

I.                Prevention and Response to Torture: International Standards and their Operationalization

• This panel will address the question: what obligations do States have to prevent torture?  It will develop the absolute prohibition of torture that arises from an array of international treaties, customary law and jurisprudence.  It will further outline what obligations fall on States (and NHRIs) to take positive measures to prevent its occurrence.

• NHRIs are mandated by the Paris Principles to encourage ratification of international human rights instruments and their effective implementation.  Drawing further on the Paris Principles, what is the legal basis for NHRI involvement in the prevention of torture?

• What does torture prevention and response mean?  Drawing on the work of the Association for the Prevention of Torture (APT), the panel will explore modalities of both prevention and response with emphasis on their timing, strategic implications, and methodologies.

• As the Optional Protocol to the CAT (OPCAT) continues to make an impact within domestic jurisdictions: what are the implications for Defensorías in Latin America in promoting, monitoring and implementing this new international instrument?  What are the key formal design and resource issues that arise in considering NHRI-designation as national preventive mechanisms under OPCAT?

II.              NHRI Engagement with the UPR and other International Mechanisms (‘Opportunities and Challenges’)

• Interaction with the UPR is important for the prevention of torture.  To what extent can NHRI advocacy within the UPR process assist in channelling international pressure to effect change in the behaviour of rights violating states?  What further insights can be drawn from a focus on interaction with other UN agencies and mechanisms including the treaty body system, the Committee against Torture, the Human Rights Committee and individual Rapporteurs, in particular the Special Rapporteur on Torture?

• If the UPR (and international mechanisms more generally) are limited in their ability to enforce international torture prevention standards, how might a focus on NHRIs further facilitate human rights enforcement strategy?

• The ability of NHRIs to report to the UPR has been hailed as a deepening of engagement.  To what extent is this characterization accurate?  To advance policy analysis in this area, what are the opportunities, trade-offs and alternative strategies that NHRIs might employ to navigate the UPR process?

• How has the incorporation of NHRIs into the UPR process impacted upon the everyday content and resulting function of Defensorías in Latin America?  Can such rights advocacy secure results within domestic jurisdictions?  How might Defensorías best approach implementation of UPR recommendations, the recommendations of relevant international committees and Special Rapporteurs?

III.            Prevention – Access to Information and Monitoring State Compliance

• In terms of promotion, what types of legal reforms should Defensorías promote in relation to the prevention of torture?  In particular, have Defensorías been successful in codifying torture as a crime within the domestic penal code?  How can NHRIs effectively lobby governments to ensure transparency of places of detention?

• What are the challenges of monitoring places of detention, especially in remote areas? What are the key power and capacity issues that arise in devising a proactive program of monitoring places of detention?  How can Defensorías best balance the competing demands of complaint-handling and visitation?

• In terms of access to information, what innovative methods can be deployed to record and encourage official disclosure of places of detention?  How do Defensorías verify what they have received from victims of torture and, more generally, all reported incidences of torture and does such record collection follow a standardised methodology?

• What is the relationship of the OPCAT and non-OPCAT functions of Defensorías?  For instance, what special provisions have Defensorías made to address group-based concerns (such as the protection of children, women, persons with HIV/AIDs etc.) which may have important implications for the prevention of torture? How might we distinguish between the different but related functions of Defensorías?

• What training activities have Defensorías undertaken with State officials?  What has been their direct and indirect (i.e. organizational and/or cultural) impact? How receptive have officials been to codes of practice based on obligations arising under international law?  For instance, is there a code of conduct for interrogation by police officials and are they sufficiently accountable?

IV.            Response – Modes of Intervention and Effective Remedies for Torture Victims Including Specific Criminal Accountability Measures

• What are the key challenges confronted by Defensorías in investigating claims of torture?  What has been the experience of Defensorías in both acting upon victim’s testimony of torture and proactively initiating investigations where they believe torture or ill-treatment may be occurring?

• What are the evidentiary priorities for Defensorías in investigating claims of torture?  Do Latin American offices have specialised technical staff trained in undertaking effective investigations of torture (for instance forensic and psychiatric expertise)?  What does such training entail and to what extent is it generally applicable to Defensorías officials operating in other countries?

• In contexts of political and institutional instability, what are some of the key structural, political and cultural risk factors faced by Defensoría personnel undertaking such investigations?  How do these differ from more highly structured and stable settings?

• What are the prospects for successful prosecution of torture across countries?  How can Defensorías best mobilise their resources to achieve justice for victims?  What are the possible trade-offs (for instance, in terms of finite resource allocation or organizational endangerment) associated with seeking punitive measures against alleged torturers?

V.              NHRIs and Relations with Other Local and International Stakeholders in the Prevention of Torture

• How can NHRIs that are not designated as a national preventive mechanism cooperate with the Optional Protocol’s bodies?

• To what extent can interaction between enforcement agencies (the courts, prosecutors and other auxiliary bodies) contribute to the effective investigation and prosecution of torturers through formal channels?

• Are the legal, judicial and rights strategies pursued by NHRIs and other legal and accountability agencies, including civil society, within and outside the state mutually reinforcing or prone to tension?

• What are the main domestic legal and contextual factors that influence the ways in which human rights norms are interpreted, adopted and adapted, or indeed resisted, by these actors?

VI.            Roundtable on NHRIs and Implementation of UPR Recommendations Relating to Torture Prevention

• General reflections on meeting proceedings and discussion of Meeting Declaration and Action Points