UPR Asia Roundup: what value are legal frameworks that prohibit torture?

Friday, June 8, 2012

If the number of torture-related recommendations made by States at the recent Universal Periodic Review (UPR) in Geneva is anything to go by, torture is one of the most pressing human rights concerns in the region. Indonesia, the Philippines and India were the first countries in the Asia Pacific region to undergo second cycle Universal Periodic Review scrutiny before the UN Human Rights Council from 21 May – 1 June 2012 in Geneva.  Scrutiny was heavily weighted towards the legal frameworks for preventing and punishing torture at an international level (ratification of the UN Convention Against Torture (CAT), and the Optional Protocol to the Convention Against Torture (OPCAT)), as well as domestic laws criminalizing torture.

Interestingly, torture was a common theme across all three reviews, despite each country having very different domestic and international legal frameworks in place in relation to torture. India, for example, was questioned on when it would ratify UNCAT, and States expressed concerns over a bill to criminalize torture. The legal framework on torture in India contrasts with the Philippines where, thanks to a recent flurry of law reform, the country now has a new legal framework to prevent and punish torture with a domestic law against torture enacted in 2009, as well as being a state party to both CAT and the OPCAT (as of April 2012). Notwithstanding this legal framework, States drew attention to the lack of prosecution under the domestic law, consistently raised the issue of impunity and accountability of armed forces for torture, and wanted to ensure that the OPCAT was effectively implemented. In the case of Indonesia, although the country has ratified CAT, torture is still not a crime in its domestic criminal code. Calls from States on Indonesia at this UPR to speed up domestic law reform and to ratify the OPCAT were echoes of substantively similar requests four years ago in Indonesia’s first cycle review, a point not missed by the Indonesian NGOs in attendance.

All this may lead to wondering: what use are international and domestic laws that criminalize torture? The short answer is that a law is not worth the paper it is written on if it is not effectively implemented in practice. Torture will only be eradicated through an integrated approach, and whilst legal frameworks to prevent and punish torture are essential, they must be implemented on the ground, and there must be mechanisms to monitor the legal framework and its implementation. A useful analogy is that of a house – the legal framework is the foundation, implementation is the walls and control mechanisms, such as regular monitoring and inspection of places of detention as required by the OPCAT, provide the protective roof. Processes like UPR provide an opportunity to scrutinize the condition of this "house", country-by-country across Asia and in every region in the world.