An Interview with Sir Malcolm Evans
Former Chair of the UN Subcommittee on the Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT)
By Janna Beijers
Source: Hedi Benyounes via Unsplash
What was your role in (the development of) the SPT?
I have been a member of the SPT for the past 11 years and was elected chair early in 2011, a position I held until I left the SPT at the end of last year. Before this, I had been intimately involved in the idea of the SPT. I first got interested in preventive visiting places of detention when the European Committee for the Prevention of Torture (the CPT) was established back in the late 1980s, which I studied as an academic. I followed the negotiating process of the OPCAT throughout the 1990s and advocated for its adoption. So, the OPCAT has been a big part of my life for almost 30 years throughout which I have seen it from different angles as an academic, advocate, and as member of the SPT.
How has the COVID-19 pandemic affected the monitoring of the SPT and the prevention of torture and other cruel, inhuman or degrading treatment?
At one level it has stopped it in its tracks. The essence of the SPT is that it is an international visiting mechanism and, under the current pandemic circumstances, that has not been possible. We actually had a team commencing a visit to Argentina in March 2020 but they had to leave the country on the first day of their visit, as the borders were about to close. We have tried to reactivate visits since then but that simply has not been possible. On the other hand, the pandemic also has breathed new life into another element of the OPCAT: the national preventive mechanisms (NPMs). The OPCAT requires state parties to establish national mechanisms that operate as the SPT does, with the powers to go into all places of detention and make recommendations. So, what we did was to put our efforts and attention into supporting the work of the national mechanisms in order to allow them to do their work. In a sense it has really helped to web the system together. Many at the time of drafting the OPCAT thought that having this obligation to use national rather than international mechanisms was a bad idea because the international element of it would get lost. In fact, it turned out to be the real strength of the system and I think it is revolutionizing the way in which we understand how international human rights can be better protected.
The SPT invokes a new way of human rights monitoring. What do you think are the biggest achievements of this monitoring system and what are the challenges still ahead?
Our unannounced visits to places of detention literally mean turning up in a car at a prison and ringing the doorbell to say: ‘hello we are from the United Nations and have a mandate to visit this facility, so do let us in now, please’.’ And this, generally, is exactly how it happens. I know it sounds strange, but it was still, until the end of my mandate, both a pleasure and a something of a shock that we were able to do this. After all, as international lawyers, we always hear about the restrictions caused by state sovereignty, and places of detention are about as sovereign-bound as they get. And yet here we are, on the basis of an international human rights mandate, able to go right into the heart of these places. When dealing with “state sovereignty” on the ground it was a lot less problematic than expected. If we waited until we had an answer to all the problems we might run into in theory, we would still be drafting operational manuals and protocols in committee rooms. When we got out of these rooms and exercised the mandate in practice, most of the things sorted themselves out, or the answers became obvious very quickly. I don’t want to suggest that one should be cavalier about this, but I have come to realize that you can spend a little too long thinking about doing things rather than actually doing them. A second challenge is mainly the lack of money and resources. The UN operates on a shoestring in terms of budgetary capacity. At best, during my time as Chair we were able to conduct about ten visits a year, but often it was less, and on average perhaps about 6 a year or 7 a year? With 90 state parties, we should be visiting much more frequently than that, and could have done so if there had been the capacity within the system to support it.
The SPT is allowed unannounced visits of prison facilities in order to monitor the prohibition of torture. Why do you think that states have agreed to such a far-reaching mandate?
In the early years we got very little pushback from exercising the mandate because most of the states that were ratifying in the early stages had been involved in the development process and hence, understood the mandate. Over time, more states ratified under international pressure, but they don’t necessarily understand the mandate in the same way. It has now become a standard request in the Universal Periodic Review that states ratify all UN human rights treaties, including the OPCAT. As a result, some states do not fully think through the commitments that they are undertaking and are ratifying for purposes of showing their commitment. Suddenly, they then get a letter from us asking about their national mechanism and indicating that we will be coming to visit their places of detention, police stations, prisons and so on before too long. That can come as a bit of a shock. Our job is to work with them to make their ratification meaningful.
Various Human Rights experts have expressed grave concerns about the treatment of the Uighurs in Xinjiang’s Re-Education Camps. What do you believe are the appropriate steps that should be undertaken by the international community now considering that China is not a party to the OPCAT?
From an OPCAT point of view, there is not a great deal we as a committee can do other than encourage states to ratify. Perhaps rather unusually for a UN body, we engage quite closely with some states that are not state parties. We can meet to help them understand, in particular, the obligations around the national mechanisms. Understandably, most states don’t want to ratify before they understand what that means. Some work with us for quite a long time to make sure that when they ratify they already have a good national mechanism or idea in place. Our Visit Reports are confidential unless a state makes them public. Our aim is not to name and shame a country because then states would only keep their reports confidential and that is not in anybody’s interest.
China is not a party to the OPCAT. What we have learned is that if a state is not willing or able to accept the advice from an experienced international body through a healthy respectful dialogue, then perhaps, the time is not right for it to ratify. I, when Chair, always took the view that an indicator of whether a state was ready to ratify the OPCAT was whether it was really ready to work collaboratively. Every state has problems in its system. It is the willingness to engage with bodies such as ours to address them that is the key question. And if a State is not willing to do that, well, one can perhaps speculate on the reasons why that is so. There has been at least one country where it was perfectly clear that the country did not find itself in a position to ratify the OPCAT. But they have talked to us about establishing the equivalent of an OPCAT compliant NPM to get some experience with that approach. That is a very ‘soft’ way to build confidence about the OPCAT obligation, and can be helpful as a first step along the road to ratification. There is no space in the OPCAT system for states which aren’t serious about preventing torture – and if a state is serious about preventing torture it would be within the system, in my view. I would rather have the committee spend its time in countries where we can help to make a difference rather than fighting battles with countries that are not interested. We have other colleagues within the UN system who can continue to raise systemic issues that have to do with torture and ill treatment in such countries.
What personal lessons have you drawn from your experience in the SPT?
You come to realize that the things that are actually driving the problems you see, can be so different from what you expected. When you are hearing directly from the detainees, you can see the things that are really causing the problems, rather than what we think are causing the problems and what we think is bothering them. To me, one of the most important pieces of work that we did was back in 2014, when highlighting the connection between corruption and torture. That hadn’t really been done before. We always assume that it is the authorities that are the only problem, when in so many places around the world that is not true. Many prison systems are heavily influenced – if not actually run – by other detainees and the authorities sometimes only seem to exercise what might be called ‘perimeter security’. Connecting with the reality is the key thing here, and this is where international bodies gain so much by working with national mechanisms. In my view, too much human rights work is mediated through higher levels of diplomacy and foreign affairs. If you talk to domestic level middle managers, it becomes clear that they have a completely different perspective and are often completely ‘on your side’. So, there are different constituencies that you can harness to drive the change. The challenge from an international law perspective is how to ‘get inside’ that domestic reality, rather than just focus, as we so often do, on if there is a breach of international obligations. We know that there are breaches, but saying so doesn’t mean those breaches are going to stop. I have always been quite firm with SPT members that they should only make recommendations that they think could actually be done. Recommendations such as ‘ensure that systems operate in a way which is in full compliance with international human rights standards’ are not clear or helpful practically speaking. What is the point of recommendations that are vague or that simply cannot be done?
How do you envision the future of the SPT?
To me, the future lies in having even stronger links between the national and international mechanisms. From a UN perspective that means having the capacity to engage much more and much more frequently with those within countries about human rights issues. But I am not naïve; it is going to take money and a change of mindset, not only within states but in the UN, and the human rights field too. Many in the human rights field community do not like what we do because it is not being seen as critical and condemnatory. The human rights community tends to want to criticize states, as a means of holding them accountable. Don’t get me wrong, this is hugely important but it doesn’t always get the results you want. It is very easy to go into a room and tell everybody how terrible everything is and then go out of it again. It is not so easy to go into a room with people where you all know that things are terrible and have a serious conversation about what we are going to do about it. We need to take some of the politics out of human rights and put the rightsholders back in the center of what this is all about.
Sir Malcolm Evans is a professor of public international law at Bristol University who has an inspiring number of achievements and publications to his name. He has worked extensively on human rights issues for numerous international bodies, among which is the SPT. As of December 2020, his mandate as the Chairperson of the SPT ended, after 11 years of being a member. In 2015 he was awarded the KCMG for services to the prevention of torture and promotion of religious liberty.