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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part VII Final Provisions, Art.32 Relation to the International Committee of the Red Cross

Stephanie Krisper

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

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 16 May 2022

Subject(s):
Torture — Detention — International co-operation — Treaties, interpretation

(p. 1007) Article 32  Relation to the International Committee of the Red Cross

The provisions of the present Protocol shall not affect the obligations of States Parties to the four Geneva Conventions of 12 August 1949 and the Additional Protocols thereto of 8 June 1977, nor the opportunity available to any State Party to authorize the International Committee of the Red Cross to visit places of detention in situations not covered by international humanitarian law.

1.  Introduction

In times of international armed conflict, the ICRC is authorized by the Geneva Conventions to visit all places of detention where prisoners of war, detained civilians, and other protected persons are or may be.1 Since torture is absolutely prohibited under the Geneva Conventions and constitutes a grave breach of international humanitarian law, the ICRC also monitors the implementation of the prohibition of torture during its visits to places of detention and thereby significantly contributes to its prevention. In times of non-international armed conflict and in peace times, the ICRC is not empowered by the Geneva Conventions to visit places of detention, but States may authorize it on the basis of ad hoc agreements. The ICRC is based on the principles of neutrality, independence, impartiality, cooperation, and strict confidentiality, and, therefore, never publicly reports on its findings and recommendations. The ICRC and its experiences prompted the Swiss banker and expert on humanitarian law Jean-Jacques Gautier to develop a system of (p. 1008) preventive visits to places of detention by a human rights treaty monitoring body of the United Nations.2

Since international human rights law also applies in times of armed conflict, the question of the relationship between the Protocol and the Geneva Conventions arose. The original Costa Rica Draft and Article 17(3) ECPT are based on the principle that a visit by the ICRC should be given preference to visits by a human rights monitoring body which, therefore, shall refrain from visiting places of detention which are visited by the ICRC.3 Article 32 OP is, however, based on the opposite principle, namely that both types of visits are complementary and demand cooperation between the Subcommittee and the ICRC.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)4

Article 1

  1. 2.  A place of detention within the meaning of this Article shall not include any place which representatives or delegates of a Protecting Power or of the International Committee of the Red Cross are entitled to visit and do visit pursuant to the Geneva Conventions of 1949 and their additional protocols of 1977.

Revised Costa Rica Draft (15 January 1991)5

Article 9

  1. 2.  The present Protocol does not affect the provisions of the Geneva Conventions of 12 August 1949 for the protection of victims of war and their Additional Protocols of 8 June 1977 by which the Protecting Powers and the International Committee of the Red Cross visit places of detention, or the right of any State Party to authorize the International Committee to visit places of detention in situations not covered by international humanitarian law.

Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)6

(p. 1009)

Article 9

  1. 4.  The provisions of the present Protocol do not affect the obligations of States Parties to the four Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977, or the possibility of any State Party to authorize the International Committee of the Red Cross to visit places of detention in situations not covered by international humanitarian law.

2.2  Analysis of Working Group Discussions

From the first session of the Working Group, the relationship between the Subcommittee and the ICRC was given due consideration. Throughout the ten years of negotiations, the ICRC was represented by an observer, who explained to the Working Group on several occasions that the Protecting Powers and the ICRC were governed by different objectives than the Subcommittee. Therefore, these mechanisms should not interfere with each other. He was of the opinion that informal means of consultation between the ICRC and the Subcommittee should be allowed to develop in practice a maximum of complementarity. A number of States’ delegations supported this view, arguing that detailed arrangements of cooperation in the Protocol might prove detrimental to flexibility.7

In the fifth session of the Working Group in 1996, this issue was discussed with the then UN Special Rapporteur on Torture, Sir Nigel Rodley, who expressed concern that the work of the ICRC could be seriously compromised if the Subcommittee were not provided with certain essential elements, such as the clear right to visit any State party, also on an ad hoc basis; to have access to any place of detention; to meet privately with persons deprived of their liberty and other rights.8

At the sixth session, the Working Group adopted the text of Article 9(4) OP. Alternative drafts of the Protocol provided by Mexico,9 the European Union,10 and the United States11 in later sessions contained identical provisions on the question of the relationship with the ICRC and were not discussed separately.

3.  Issues of Interpretation

Article 1(2) of the original Costa Rica Draft of 1980 provided that any place of detention which representatives or delegates of a Protecting Power or of the ICRC are entitled to visit and actually do visit pursuant to the Geneva Conventions and their Additional Protocols shall be excluded from the competence of the visiting body to be established under the OP.12 This principle of mutual exclusiveness and preference of the ICRC found its way in slightly different words into Article 17(3) ECPT. The CPT is (p. 1010) thereby prevented from visiting places of detention which the ICRC effectively visits ‘on a regular basis by virtue of the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977 thereto’. This prohibition for the CPT from visiting a State only applies to international armed conflicts, because visits during internal armed conflicts or in peace time are not based on the Geneva Conventions, but on ad hoc agreements with the States concerned.13

10  The CPT has visited places of detention that were also visited by the ICRC based on ad hoc agreements, for example in Albania, Azerbaijan, the Russian Federation (Chechen Republic), and the Ukraine.14 These parallel or even overlapping visits have not led to any discernible problems of competition or mutual interference with each other’s competences, but rather to greater protection for persons deprived of their liberty.15 In practice, the level of cooperation between the ICRC and the CPT seems to have been quite fruitful for both bodies, which maintain frequent informal contacts in order to coordinate their activities, subject of course to the principle of confidentiality that binds both bodies. The same holds true for the cooperation and coordination between the Special Rapporteur on Torture and both the CPT and the ICRC. There is no reason to believe that the situation would be different in times of international armed conflict, which means in retrospect that the provision of Article 17(3) ECPT was overly cautious.

11  Article 32 OP therefore, follows the opposite philosophy, namely that visits by both bodies are complementary in international and non-international armed conflicts and that both bodies should cooperate and coordinate their activities accordingly. Article 9 of the revised Costa Rica Draft of 1991 had changed from mutual exclusiveness to cooperation.16 This principle was no longer seriously challenged during the discussions in the Working Group,17 and discussion among the delegations focused on how the provision on cooperation should be regulated in detail.

12  The outcome is very flexible with regard to the ways and means of cooperation between the Subcommittee, NPMs, and the ICRC. Article 32 simply guarantees that neither the obligations of States parties under the Geneva Conventions to permit visits of the ICRC during international armed conflicts, nor their right to authorize visits of the ICRC in situations of non-international armed conflict and in peace time shall be affected by becoming parties to the Protocol. In other words, the Subcommittee or an NPM shall not have preference over visits by the ICRC, which can also be authorized to visit places of detention parallel to visits by the respective NPM and the Subcommittee.

Stephanie Krisper

Footnotes:

1  cf above all, Geneva Convention Relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135 (Third Geneva Convention) Art 126 and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 UNTS 287 (Fourth Geneva Convention) Art 143; cf eg Philippe de Sinner and Hernan Reyes, ‘Activitès du CICR en matière de visites aux personnes privées de liberté: une contribution à la lutte contre la torture’ in Antonio Cassese (ed), The International Fight against Torture—La Lutte Internationale Contre La Torture (Nomos Verlagsgesellschaft 1991) 153; Francis Amar and Hans-Peter Gasser, ‘La contribution du Comité international de la Croix-Rouge à la lutte contre la torture: Les visites du CICR aux personnes privées de liberté en situation de troubles et tensions internes: objectifs et méthodes’ (1989) 775 CICR 28; Francis Amar, ‘Problems Raised by Visits to Places of Detention: Objectives and Working Methods of the ICRC in Internal Disturbances and Tensions, Strasbourg Seminar on the Implementation of the European Convention for the Prevention of Torture’ (1989) 10 HRLJ 165; see also Ursula Kriebaum, Folterprävention in Europa: Die Europäische Konvention zur Verhütung von Folter und unmenschlicher oder erniedrigender Behandlung oder Bestrafung (Verlag Österreich 2000) 219ff.

2  See above Introduction CAT.

3  On the relationship between the ICRC and the CPT see eg Kriebaum (n 1) 219ff.

4  Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted by Costa Rica [1980] UN Doc E/CN.4/1409.

5  Letter dated 15 January 1991 from the Permanent Representative of Costa Rica to the United Nations at Geneva addressed to the Under-Secretary-General for Human Rights [1991] UN Doc E/CN.4/1991/66.

6  Report of the Working Group on the Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its fourth session [1995] UN Doc E/CN.4/1996/28, Annex I; see also Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1993] UN Doc E/CN.4/1994/25, Annex. Later drafts contain similar or identical provisions: cf Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its eighth session [1999] UN Doc E/CN.4/2000/58, Annex II, Art 11; Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its ninth session [2001] UN Doc E/CN.4/2001/67, Annex I (the Mexican Draft) Art 19; Annex II (the EU Draft) Art 12; Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its tenth session [2002] UN Doc E/CN.4/2002/78, Annex II E (the US Draft) Art 10; Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its tenth session [2002] UN Doc E/CN.4/2002/78, Annex I (Proposal by the Chairperson-Rapporteur) Art 32.

7  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1992] UN Doc E/CN.4/1993/28, para 99.

8  Report of the working group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its fifth session [1996] UN Doc E/CN.4/1997/33, para 21.

9  E/CN.4/2001/67 (n 6) Annex I.

10  ibid, Annex II.

11  E/CN.4/2002/78 (n 6) Annex II E.

12  See above para 3.

13  cf Kriebaum (n 1) 220, with further references.

14  On the mission to Albania in December 1997 and a certain lack of cooperation between the CPT and ICRC see Kriebaum (n 1) 222. On the nine missions to the Chechen Republic see the following three public statements: CPT, ‘Public Statement Concerning the Chechen Republic of the Russian Federation’, CPT/Inf. (2001) 15 of 10 July 2001, CPT/Inf (2003) 33 of 10 July 2003 and CPT/Inf (2007) 17 of 13 March 2007. On the mission to Azerbaijan in 2002 see CPT, ‘Report to the Azerbaijani Government on the Visit to Azerbaijan carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment’, CPT/Inf (2004) 36 of 7 December 2004. Since the Government of Turkey steadily denied the existence of an armed conflict with the PKK, it refused the ICRC the permission to visit the conflict region and places of detention.

15  cf Edouard Delaplace and Matt Pollard, ‘Visits by Human Rights Mechanisms as a Means of Great Protection for Persons Deprived of Their Liberty’ (2005) 857 IRRC 69, 75.

16  See above para 4.

17  See above 2.2.