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Preface to the Second Revised Edition

Manfred Nowak, Moritz Birk, Giuliana Monina

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 27 May 2024

The first edition to this Commentary was written during the early years of Manfred Nowak’s term as UN Special Rapporteur on Torture, i.e. between 2004 and 2006. Thanks to the financial support of the Governments of Austria, Switzerland, Liechtenstein and Germany, he was able to establish an “anti-torture team” of highly skilled and dedicated researchers at the Ludwig Boltzmann Institute of Human Rights (BIM), which was founded by Manfred Nowak and Hannes Tretter in 1992 and directed by them jointly since then. Elizabeth McArthur was employed at the BIM as the lead researcher for the Commentary with funds provided by the Austrian Science Fund (FWF). The website www.atlas-of-torture.org was established to document and promote the work of the Special Rapporteur and observe the worldwide situation of torture and ill-treatment. In addition, Manfred Nowak had served since 2000 as head of a visiting commission to all places of police detention in Austria, established as part of the Human Rights Advisory Board in the Ministry of Interior. In this task, he was also supported by members of the “anti-torture team” at the BIM. These practical experiences and the theoretical research on the Commentary complemented each other in the most productive and fruitful manner. Besides Elizabeth McArthur also Julia Kozma, Roland Schmidt and Isabelle Tschan, who prepared and carried out many missions and reports of the Special Rapporteur, as well as Kerstin Buchinger participated in the academic research work for the Commentary. In other words, the first edition, although finally authored by Manfred Nowak and Elizabeth McArthur, was a joint product of many researchers and practitioners at BIM.

The mandate of Manfred Nowak as UN Special Rapporteur on Torture came to an end in October 2010. However, the torture-related work of the BIM continued. The “anti-torture team” had grown into the Department of “Human Dignity and Public Security” and is currently led by Moritz Birk, who was already part of the Special Rapporteur’s team. The Special Rapporteur’s work was followed up by a three-year project - financed by the European Union and in partnership with local civil society organisations - to assist a group of selected States (Moldova, Paraguay, Togo and Uruguay) in the implementation of the Special Rapporteur’s recommendations. Manfred Nowak continued to serve as head of a visiting commission monitoring the Austrian police, which was in 2012 transferred to the Austrian Ombuds-Board, which assumed the function of National Preventive Mechanism (NPM) in accordance with OPCAT. The researchers at the BIM provided their services to two visiting commissions and thereby gained also significant experience with the practice of an NPM. The diverse experiences were used in a variety of other projects of applied research and practical assistance to States notably to support the establishment and functioning of NPMs. The different projects to fight torture and ill-treatment worldwide and promote human rights in the criminal justice system by the Department can be accessed on the Institutes’ website: https://bim.lbg.ac.at/en/human-dignity-and-public-security.

When we decided, again upon request of Oxford University Press and with the generous financial support of the Austrian Science Fund (FWF), to prepare a second edition of the Commentary, it was clear that this would have to become a truly joint endeavour (p. vi) of the “Human Dignity and Public Security” Department at the BIM, based upon our joint research and broad practical experience. Manfred Nowak, Moritz Birk and Giuliana Monina serve as joint editors, but the different Articles of the Convention against Torture (CAT) and its Optional Protocol (OPCAT) are written under the individual responsibility of a variety of highly experienced authors, who are either current or former staff of the Ludwig Boltzmann Institute of Human Rights: Moritz Birk, Giuliana Monina, Nora Katona, Margit Ammer, Kerstin Buchinger, Stephanie Krisper, Johanna Lober, Roland Schmidt, Andrea Schüchner, and Gerrit Zach.

The ten-year interval since the first edition has seen several important developments in the field. There has been a considerable change in the ratification status of both the Convention and its Optional Protocol, with 162 States having ratified the CAT and 88 States having ratified the OPCAT.

Since 2008, the CAT Committee has adopted three new General Comments; more than 200 new individual complaints covering all substantial articles; new rules of procedure as well as conducted four new inquiry procedures under Article 20 CAT (in Egypt, Lebanon, Nepal and Brazil). In the framework of the treaty body strengthening process, it has developed various measures aimed at improving the States parties’ compliance with their Convention obligations, above a simplified reporting procedure to guide States parties in their reporting duties; a procedure on follow-up to concluding observations, individual complaints and inquiry procedure to better monitor the implementation of its recommendations; and a mechanism to prevent, monitor and follow-up cases of intimidations and reprisals against civil society organizations, human rights defenders, victims and witnesses that engage and cooperate with the Committee.

In relation to the Optional Protocol, the first edition of this Commentary was published at a time when the SPT was not yet operational, thus, it relied primarily on the practice of the European Committee for the Prevention of Torture (CPT). The second edition contains a detailed analysis of the initial ten years of work of the SPT taking into account the work of National Preventive Mechanisms (NPMs).

To reflect these changes and developments this edition has been substantially revised. As the earlier version, it attempts to be an in-depth analysis of all substantive, organizational and procedural provisions of the Convention against Torture and its Optional Protocol and wants to ensure that the Commentary continues to serve as a comprehensive guide for researchers and practitioners alike. For that purpose, it was attempted to make the manuscript more user friendly by modifying the original structure merging the practice of the Committee with the analysis of the issues of interpretation, thereby trying to avoid repetitions and providing a more concise analysis. The structural changes and the significant developments in the jurisprudence and practice of the two treaty bodies required considerable revision, re-organisation and expansion of many Articles. Other Articles, however, required only minor updates and build more strongly on the text of the first edition authored by Manfred Nowak and Elisabeth McArthur (ie Articles 8, 9, 10, 17, 18, 23-27, 29, and 31-33 CAT). Moreover, the second edition leaves untouched the thorough analysis of the travaux préparatoires of the Convention and its Optional Protocol in the Commission on Human Rights and its inter-sessional Working Group already drafted by the authors of the first edition.

We wish to express our sincere gratitude to many individuals who provided us with information and advice during our research work, above all Patrice Gilbert from the Office (p. vii) of the United Nations High Commissioner for Human Rights in Geneva, Jens Modvig, Chair of the UN Committee against Torture and Malcom Evans, Chair of the SPT, as well as all the members of the Committee against Torture who participated in a side meeting during the 62nd session in Geneva in November 2017 to discuss key issue of interpretation with the editors. We also extend our gratitude to Carin Benninger-Budel (OMCT), Barbara Bernath and Veronica Filippeschi (APT), Elina Steinerte (Bristol University) and Lutz Oette (SOAS University of London) for providing valuable comments on the drafts.

We are also deeply indebted to numerous research fellows and interns who conducted research on specific questions of interpretation and contributed in a most professional manner to the preparation of the Commentary. In this context, special thanks go to Elena Dietenberger and Miranda Merkviladze. We are also grateful to Laura Alberti, Samory Badona Monteiro, Aram Bajalan, Shimels S. Belete, Elisa Klein-Diaz, Nabila Ehrhardt, Katharina Heymann, Saskia Kaltenbrunner, Julia Kostal, Nicole Metz, Felix Steigmann. Finally, we wish to express our gratitude to Oxford University Press and, especially Natasha Flemming and Merel Alstein, who have always encouraged and patiently cooperated with us throughout the whole period, the Ludwig Boltzmann Institute of Human Rights in Vienna, home to fruitful exchanges and discussions that have ultimately flew into the pages of this Commentary and the FWF Austrian Science Fund whose generous support only made this publication possible.

The practice of the CAT Committee and the SPT was taken into account until 31 March 2017. Other key developments, such as the General Comment No. 4 adopted by the CAT Committee at the 62nd session from November/December 2017, have been taken into account by the authors up until the end of December 2017.

The first edition of this Commentary was written in the middle of the so-called “war on terror”, which had seriously undermined the universal consensus on the absolute prohibition of torture and other forms of ill-treatment. The “war on terror” seems to be over, but the practice of torture, cruel, inhuman or degrading treatment or punishment has certainly not improved since then. When he finished his activities as UN Special Rapporteur on Torture, which had included 18 official fact-finding missions to countries in all world regions, three joint investigations with other special procedures of the UN Human Rights Council and comprehensive research, Manfred Nowak concluded that torture is occurring in more than 90% of all States, is practiced routinely in more than 50% of all States and systematically in roughly 10%. In addition, he identified a global prison crisis and inhuman conditions of detention in the majority of States in all world regions.1 The reports of his two successors in this mandate, Juan Mendez and Nils Melzer, show that the situation is unfortunately not improving. On the contrary, the erosion of the universal consensus on the absolute prohibition of torture has reached such an alarming level that persons have recently been elected as Presidents of powerful States in both the Global North and the Global South, who openly advocate torture. This illustrates that we would need a radical change in world politics if we wish to achieve the ultimate goal of eradicating the practice of torture, preventing the risk of torture and improving conditions of detention. We hope that this second edition of our Commentary (p. viii) on CAT and OPCAT may remind States of their legally binding obligations and provide useful insights on the measures that need to be taken to provide future generation with the right to live in freedom from fear, torture and similar forms of State violence.

Manfred Nowak, Moritz Birk and Giuliana Monina

Vienna, June 2018

Footnotes:

See the final study of the Special Rapporteur on Torture and his report to the UN Human Rights Council in UN Doc. A/HRC/13/39 and Add. 5 of 9 February 2010. See also Manfred Nowak, Torture – An Expert’s Confrontation with an Everyday Evil, University of Pennsylvania Press, Philadelphia 2018.