15 years on, the OPCAT is still breaking new ground in human rights
It was 15 years ago that an ambitious, ground-breaking international treaty on torture prevention - the Optional Protocol to the UN Convention against Torture (OPCAT) - entered into force, following its ratification by 20 States.
Its most important achievement, built into the architecture of the treaty, is the creation of a system of prevention based on regular monitoring of all places of detention by independent national bodies - national preventive mechanisms (NPMs) - and an international body of experts (the UN Subcommittee on Prevention of Torture or SPT).
The SPT is now the largest UN treaty body, composed of 25 experts. It is also one of the most practical, conducting visits to places of detention and engaging in dialogue with authorities to address the root causes of torture and ill-treatment.
The past 15 years has also taught us that NPMs are the cornerstone of the torture prevention system. They are the ones who have the potential - and do - drive genuine change at the domestic level.
Much has been accomplished at the national and international level over the past 15 years. As we mark this important milestone for OPCAT, it is timely to reflect on what has been achieved so far and how we can continue to build a world without torture.
Takeaway 1: Prevention is a global reality
There are currently 90 States Parties to the OPCAT, with 74 of these having implemented the treaty domestically by establishing NPMs. In other words, around half the world’s countries have joined the torture prevention system. Half the world’s countries have chosen to invest in torture prevention strategies and open their places of detention to external oversight. The shift from secrecy to transparency is now a reality.
During the pandemic, detention monitors in many countries were classified as “necessary workers”. While most NPMs had to adapt their monitoring or temporarily suspend their work (as shown in our recent survey on how NPMs have adapted during COVID-19), they have continued to demonstrate their added value. Transparency of places of detention is now more the norm than the exception. This is a huge achievement of the OPCAT system.
Takeaway 2: Through dialogue and practical solutions, we can achieve change
Constructive dialogue is at the core of the OPCAT, which establishes a ‘triangular relationship’ between the State, the NPM and the UN Subcommittee on Prevention of Torture (SPT). Although challenging at times, and frustrating for many, we know that dialogue underpins long-lasting change. Over the past 15 years, NPMs have contributed to significant changes in law, policies and in detention practices.
NPMs are key drivers for change in all regions of the globe. Examples of their impact are numerous. Following the publication of a report on the use of solitary confinement in Norwegian prisons – based on five years of NPM monitoring in 19 prisons – a public parliamentary hearing was held in 2021 to discuss the findings and recommendations of the report. This followed years of international criticism of Norway’s practices regarding solitary confinement. In Costa Rica, the NPM contributed to legislative change, presenting a Bill to add a new article to the Penal Code and bring the country's definition of torture in line with international standards. In Paraguay, the NPM used its 2019 annual report to open a dialogue with the authorities on reducing the country’s prison population.
Takeaway 3: Torture prevention works, even in challenging environments, if there is innovation and resilience
Described as being on the “frontline of torture prevention” by former SPT Chairperson Sir Malcolm Evans, NPMs have constantly demonstrated that, through dialogue and practical recommendations, change can take place. They have also developed new ways of working during the pandemic in order to ensure ongoing oversight of places of detention. These facilities became an epicentre of COVID-19 outbreaks in countries. The role of NPMs has been crucial in upholding the health and safety of people held in places of detention and the staff who work there. In fact, the SPT reported that “[r]elations between NPMs and national authorities has in some countries improved considerably as they have worked together to solve problems of access.” We have captured the courage, innovation and resilience of NPMs in our video series, Voices from the Field.
Takeaway 4: Prevention cannot be taken for granted
Despite a growing number of NPMs being established around the globe, these advances cannot be taken for granted. In recent years, some NPMs have come under attack, through questioning their raison d’être, through a decrease to their budget or through attempts to revise their founding legislation. We have seen such situations in Brazil, Armenia and other countries of the world. We are committed to the principles of independence, autonomy and transparency promoted by the OPCAT and will continue to support NPMs when they face threats and reprisals.
Takeaway 5: Prevention requires an inclusive approach
Deprivation of liberty has a differentiated impact on those who experience it. This has been especially true during the pandemic. Women, children, the elderly, LGBTI people and indigenous people, among other groups, require specific support and responses that respect their dignity. Torture prevention requires an inclusive approach and NPMs are playing a leading role to highlight effective ways to work with and uphold the rights of different groups of people deprived of liberty. In December 2020, 16 Latin American NPMs published a joint contribution to the Inter-American Court of Human Rights on practical measures to promote the safety and dignity of LGBTI persons deprived of liberty. Earlier this year, to mark International Women’s Day, 42 NPMs joined together, for the first time, to call for improved protection of women in detention and greater use of alternatives to detention. And last week, more than 30 NPMs from the OSCE region met to exchange insights on monitoring the situation of elderly people in detention, in particular in social care homes (or nursing homes).
Takeaway 6: Together, we are stronger
While the pandemic forced many of us into lockdowns, it also prompted us to work together and exchange more regularly. In the past year, NPMs from all regions have collaborated with one another on substantive and practical issues. At the APT, we are proud to have facilitated some of these exchanges and offer a platform to strengthen these peer-to-peer relationships. We know that prevention is achieved through collaboration. It is a shared responsibility where many stakeholders have a role to play, from judges and prosecutors through to health and detaining authorities. At the national level, NPMs have demonstrated their capacity to promote dialogue and build bridges among a diverse group of actors to find common ground.
Takeaway 7: Promoting new ways to prevent torture
Over the past 15 years, the global system for torture prevention has taken root in all regions of the world. It has built legitimacy and credibility, based on the results of their work to monitor all places of detention. We know that the first hours of detention are when people face the greatest risk of torture and ill-treatment. This is also the most challenging time to exercise oversight. Nonetheless, many NPMs have started monitoring the extent to which detention safeguards are implemented in practice in police custody. They have started to build a body of evidence of current practices and identify steps to reduce the gap between law and practice. With the recent publication of the International Principles on Effective Interviewing, NPMs have an additional tool to support police in their work and prevent torture and coercion during investigations. They will be able to build on the legitimacy and credibility they have developed to promote implementation of the Principles. And then, in another 15 years, we will look back and see how much has been achieved through their courage, consistency and collaborative dialogue.