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Visiting Mechanisms to Eradicate Torture: A Foucaultian Analysis

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Abstract

In this Article, I examine the Visiting Mechanisms under the Convention against Torture (CAT) and the Optional Protocol thereto (OPCAT), applying an analytic approach resting on Foucault’s Discipline and Punish. I argue that international Visiting Mechanisms essentially constitute disciplinary apparatuses as depicted by Foucault. However, because they fail to recognise this functional similarity, they do not effectively apply the methods of inducing panoptic power. Most notably the concept of ‘hierarchical observation’ is hardly utilised at all. The two introduced legal entities, the Committee against Torture under CAT, and the Subcommittee for the Prevention of Torture under OPCAT, both engage in visits to states with a view to eradicate torture and ill-treatment throughout the world. Critically examining their systemic design and practises reveals that the preventative ante hoc mandate of the Subcommittee is more effective than the post hoc inquiries of the Committee. Nevertheless, because both entities unfortunately fail to fully utilise panoptic power, the article concludes by offering a set of recommendations for both bodies that could arguably enhance their overall effectiveness.

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Notes

  1. House MD: Humpty Dumpty, Season Two, Episode 3 (2006) Universal Studio, chapter 4, frame 9:39.

  2. To answer these questions, see Wheatley (2007).

  3. Optional Protocol to the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (adopted 18 Dec 2002, entered into force 22 June 2006) UN Doc A/RES/57/199, 42 ILM 26 (OPCAT).

  4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 Dec 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT).

  5. International Covenant on Civil and Political Rights (adopted 16 Dec 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

  6. The notable exception to this is the research by Professor Evans on the CPT (the regional anti-torture VM for Europe, see infra note 12 and 88 to 90; Evans and Morgan 1998). For more of Evan’s work, see infra note 88. Also, a number of conferences were convened in light of the drafting, adoption and entry into force of OPCAT; see Haenni 2000; Jefferson et al. 2005; Murray et al. 2007).

  7. See, for example, Oeter 1997, and C Haenni, supra note 6.

  8. See, Evans and Haenni-Dale (2004). Also, MD Evans & R Morgan, supra note 6.

  9. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (adopted 26 Nov 1987, entered into force 1 February 1989) ETS No 126, 27 ILM 1152 (ECPT).

  10. For a wider discussion of Visiting Mechanisms, see, Schmidinger 2010.

  11. For an interesting article discussing the question of standards, see, Posner 2006.

  12. Bodleian Library, Oxford, SSL Reading Room, Manor Road Building, Shelf B 24(…). And these are by no means all books the Library holds about Foucault.

  13. Hammer 2007. Also, see Prozorov 2007 and Golder 2008 . Both pursue a similarly abstract and theoretical line of inquiry.

  14. Orwell 1990. Also see, P Vaz and F Bruno, ‘Types of Self-Surveillance: from abnormality to individuals ‘at risk” 1(3) Surveillance and Society 272; Lyon 2001); and, Norris and Armstrong 1999.

  15. Foucault (1977), pp. 3–5.

  16. Foucault (1977), pp. 6–7.

  17. D&P makes the link to dressage at p. 136. The connection to the technique of ‘Hypnopedia’ described in Huxley (1932), may be less apparent, as he refers to early childhood indoctrination during sleep, but the idea of encrusting the individual’s mind through persistent repetition strikes a familiar chord to Foucault’s work – albeit within the confines of fiction. Nevertheless, the underpinning conception is intriguingly similar.

  18. D&P, p. 106.

  19. Servan (1767), quoted in D&P, pp. 102/3.

  20. D&P, p. 202.

  21. Servan (1767), p. 308.

  22. Foucault’s conception of power is somewhat intentionally nebulous and enigmatic. For a comparatively clear outline of how Foucault described his understanding of the term (at that particular moment in time) see, ‘Truth & Power’ in Faubion (2002), stating inter alia at p. 120: ‘In Discipline and Punish, what I wanted to show was how, from the seventeenth and eighteenth century onward, there was a veritable technological take-off in the productivity of power’ (emphasis in the original).

  23. See Bentham 1791; Bentham and Payne 1791a; and Bentham and Payne 1791b). Both postscripts are contained in one volume.

  24. Although, in the postscripts, Bentham rejected his earlier assertion that prisoners must be isolated, and instead suggests that two to four prisoners may be safely and productively enclosed in any one cell. The beautifully eighteenth-century justification he gives for this alteration is the following: ‘In the letters I assumed solitude as a fundamental principle. I copied and I copied form recollection. I had no books. I have since read a little. I have thought more’ (p. 20). Foucault in D&P, despite referencing the postscripts, intriguingly fails to mention this fundamental conceptual shift in Bentham’s plan for the panoptic prison.

  25. See D&P.

  26. P Vaz & F Bruno, supra note 14, p. 276.

  27. C Norris and G Armstrong, supra note 14, p. 6.

  28. Admittedly, Bentham (supra note 23), in the microcosm of his panoptic prison, did envisage the possibility of the guard conversing with the prisoner via a ‘speaking trumpet’, but this is of mono-directional quality and only exceptional use. As a general rule, surveillance relies solely on visual control without the requirement for communication, because the prisoner is well aware of the expected behaviour.

  29. Foucault, D&P, p. 181.

  30. Ibid., p 141.

  31. Ibid., pp. 195–200.

  32. Ibid., p. 196.

  33. Ibid., p. 196.

  34. Ibid., p. 197.

  35. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 Dec 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT); Also see, Burgers and Danelius 1988; Nowak et al. 2008.

  36. International Covenant on Civil and Political Rights (adopted 16 Dec 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); Universal Declaration of Human Rights (adopted 31 January 1948), General Assembly Resolution 217 A (III) (UDHR). For a interesting account of the continued practice of torture see, Duner 1981.

  37. CAT, Art. 2.

  38. CAT, Art. 4.

  39. CAT, Art.13.

  40. CAT, Art. 15.

  41. CAT, Art. 3.

  42. CAT, Art. 11.

  43. CAT, Art. 10.

  44. Shaw 2003. Also see, Parisi and Ghei 2003.

  45. Similar bodies are created by other human rights treaties, but most of them do not have the same powers as the Committee in respect to acting as an VM. Only the optional protocol to CEDAW—the convention on women’s rights—establishes an inquiry procedure similar to that of the Committee under Art. 20 of CAT. So far only one inquiry into Mexico was executed, in 2004. See UN Doc CEDAW/C/2005/OP.8/MEXICO. Also see, United Nation, CEDAW: Decisions & Views <http://www.un.org/womenwatch/daw/cedaw/protocol/dec-views.htm> (last accessed 11/08/09).

  46. See Ingelse and United Nations Committee against Torture 2001.

  47. UN Doc A/64/44 (Report of the Committee against Torture, 2009) Annex I, II & III, (accurate as of May 15, 2009).

  48. This file mountain provides an excellent playground for researchers though, and can be accessed under United Nations, ‘Official Document System of the United Nations’ (2004) <http://documents.un.org/default.asp> (last accessed 1/09/09). This database guarantees access to all UN documents since 1993, as well as a continuously increasing number of older documents. All UN documents cited in this article, can be found there via the relevant Document registration.

  49. UN Doc A/61/44, §§ 15, 17 (only 194 reports had been submitted while 192 were still overdue).

  50. CAT, Art. 20; UN Doc CAT/C/3/Rev.3 (Rules of Procedure of the Committee against Torture; henceforth RoP), Rules 69-84.

  51. UN Doc A/48/44/Add.1 (Report of the Committee against Torture 1993: Addendum on the Article 20 inquiry against Turkey) § 39.

  52. See UN Doc CAT/C/39/2 (Report on Brazil Produced by the Committee under Article 20 of the Convention and Reply from the Government of Brazil, 2007) §§ 226ff.

  53. This data is compiled from CAT and the Rules of Procedure. However, it is supplemented in parts by information—such as the length of the average visit—taken from the Annual Reports of the Committee to the United Nations General Assembly.

  54. CAT, Art. 20 and rules 72 & 73, RoP. For a comparatively detailed examination of the first two inquiries carried out by the Committee, see Bank 2000.

  55. UN Doc A/56/44 (Report of the Committee against Torture 2001). Since, the Committee stopped publishing the number of meetings devoted to the Article 20 procedure.

  56. UN Doc A/48/44/Add.1.

  57. UN Doc A/51/44 (Report of the Committee against Torture 1996) §§ 180×222.

  58. UN Doc A/56/44, §§ 144-193; Also see, UN Doc A/61/44, § 33; UN Doc A/55/44 (Report of the Committee against Torture 2000) §§ 219-224. Reports on the follow up process in the context of the Art. 19 [State Reporting] procedure.

  59. UN Doc A/57/44 (Report of the Committee against Torture 2002) §§ 123-195; Also see, UN Doc CAT/C/48/Add.2 (Second Periodic Report of States Parties due in 1999: Sri Lanka) §§ 12-56. Refers to the visit by the Committee.

  60. UN Doc CAT/C/75 (Report on Mexico Produced by the Committee under Article 20 of the Convention and Reply from the Government of Mexico, 2003). For a summary account see, UN Doc A/58/44, §§ 147-153.

  61. UN Doc A/59/44 (Report of the Committee against Torture 2004) §§ 156–240.

  62. UN Doc CAT/C/39/2.

  63. The visit to Mexico was undertaken by Alejandro González Poblete and Ole Vedel Rasmussen; the visit to Brazil by Fernando Mariño Menendez and Claudio Grossman.

  64. CAT, Art. 17 (1).

  65. Silva Henriques Gaspar was initially designated to join the delegation to Mexico, but could not attend in the end; Ole Vedel Rasmmussen was designated to visit Brazil, but had to withdraw from the delegation.

  66. United Nations, Office of the High Commissioner for Human Rights, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Rev.1 edn, Professional training series, United Nations, New York 2004; henceforth, Istanbul Protocol).

  67. CAT, Art. 17 (7).

  68. Mexico initially rejected the proposed date due to its temporal proximity to a general election with the comment that ‘such a visit could be used for political ends by groups with an interest in the electoral contest’. Brazil, by comparison, merely contested that the proposed date ‘did not allow enough time to prepare an adequate programme of work for the experts’, and postponed the visit twice.

  69. Compare UN Doc CAT/C/75, § 20 and UN Doc CAT/C/39/2, §18.

  70. Compiled from UN Doc CAT/C/75 and UN Doc CAT/C/39/2.

  71. Notably, the account of the inquiry against Egypt, which did not include a visit to the country, deviates more substantially in form and style from the inquiries that did incorporate a visit to the relevant country. See UN Doc A/51/44. Also, Bank, ‘Country Oriented Procedures under the Convention against Torture’ (supra note 54) makes a similar observation in his comparison of the summary accounts of the Inquiry against Turkey and Egypt.

  72. Compare, UN Doc CAT/C/75 with UN Doc A/52/44, §§ 167-170. Also compare, UN Doc CAT/C/39/2 with UN Doc A/56/44, § 120.

  73. See UN Doc CAT/C/75, §§ 223-236; and UN Doc CAT/C/39/2, §§ 197-387.

  74. The utilisation of other sources, such as NGO reports, is conceivable, but they usually lack the necessary first hand access to sites of detention to provide the degree of detailed, reliable and objective information that would satisfy the analytic standards of this research.

  75. See for example UN Doc CAT/C/39/2, § 99: ‘This facility was unpleasant, but not overcrowded, although the Committee members suspected that it had been cleaned and some prisoners removed because the delegado had been made aware of the Committee members’ impending visit.’

  76. The words horrified, shocked and appalling were used with a high frequency throughout the report. This may go a long way to explain the divergence of standards between the CPT (see infra notes 88 to 90) on the one hand, and UN bodies on the other. Such divergence has been diagnosed by, Bank 1997.

  77. See Evans and Haenni-Dale (2004) p. 21. Also, see Burgers and Danelius, supra note 35.

  78. UN Doc E/CN.4/1409.

  79. Evans (1997) at 85; Evans and Haenni-Dale, supra note 77.

  80. The Commission was officially requested by the General Assembly to draw up a draft convention against torture in Resolution 32/62 (8 December 1977) UN Doc A/RES/32/62.

  81. UN Doc E/CN.4/1409, Introductory note by the Secretary-General.

  82. UNCHR Resolution 1986/56 (13 March 1986) § 3, in UN Doc E/CN.4/1986/65–E/1986/22; and UNCHR Decision 1989/104 (6 March 1989), in UN Doc E/CN.4/1989/86–E/1989/20.

  83. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (adopted 26 Nov 1987, entered into force 1 Feb 1989) ETS No 126, 27 ILM 1152 (ECPT). For am in depth assessment of this regional system of a preventative VM, see Evans and Morgan (1992); Evans and Morgan (1997); Morgan and Evans 1999; Schaufelberger (2005).

  84. See Council of Europe, ‘About the CPT’ <http://www.cpt.coe.int/en/about.htm> Last update: 04/08/09, (last accessed 15/08/09). 220 out of 272 visits resulted in a published report. 107 of the visits were short notice ad hoc visits.

  85. Ibid. All published reports are available under, Council of Europe, ‘CPT Visits’ <http://www.cpt.coe.int/en/visits.htm> Last update: 04/08/09, (last accessed 15/08/09).

  86. Regarding substance rather than process—i.e. the question whether the ECPT did actually reduce the instances of torture throughout Europe—at least Morgan and Evan’s assessment is that this is only achieved partially. See Morgan and Evans, Schaufelberger (2005).

  87. UNCHR decision 1989/104 (6 March 1989), in UN Doc E/CN.4/1989/86 – E/1989/20.

  88. The revised proposal was disseminated in UN Doc E/CN.4/1991/66. The substance of the proposal remained, however, the same, and the revision primarily added some specific details as well as an elaborate explanatory note regarding interpretation.

  89. UNCHR Decision 1991/107 (5 March 1991), in UN Doc E/CN.4/1991/91–E/1991/22.

  90. UNCHR Resolution 1992/43 (5 March 1992), in UN Doc E/CN.4/1992/84–E/1992/22 (the missing bits can be found in the procedural review of the relevant session at p 258).

  91. See UN Docs: E/CN.4/1993/28 (first meeting, 19 to 30 Oct 1992); E/CN.4/1994/25 (second meeting, 25 Oct to 5 Nov 1993); E/CN.4/1995/38 (third meeting, 17 to 28 Oct 1994); E/CN.4/1996/28 (fourth meeting, 30 Oct to 10 Nov 1995); E/CN.4/1997/33 (fifth meeting, 14 to 25 Oct 1996); E/CN.4/1998/42 (sixth meeting, 13 to 24 Oct 1997); E/CN.4/1999/59 (seventh meeting, 28 Sep to 9 Oct 1998); E/CN.4/2000/58 (eighth meeting, 4 to 15 Oct 1999); E/CN.4/2001/67 (ninth meeting, 12 to 23 Feb 2001); E/CN.4/2002/78 (tenth meeting, 14 to 25 Jan 2002).

  92. Although, Evans and Haenni-Dale, supra note 77, make a convincing argument that, depending on the combination of such cosmetic details, significant alterations to the substantial content of the protocol were conceivable. Nevertheless, the overall gist of the proposal remained unaltered until 2001.

  93. This proposal was tabled on 13 February 2001. See UN Doc E/CN.4/2001/67 (9th meeting, 12 to 23 Feb 2001), Annex I for the proposal, and §§ 19 ff. for the discussions of this draft. While the Mexican proposal did not completely abandon the idea of the international supervisory body, its competences, and particularly its access rights were substantially curtailed (Arts. 15 to 18).

  94. Ibid., Annex II. The counter proposal was issued by Sweden on behalf of the European Union, on 22 February 2001 (the second to last session of the 9th meeting), but did not receive substantial discussion within this meeting. Essentially, the counter-proposal is relatively close to the original Costa Rican proposal, but adds an additional clause, superficially including an obligation for states to establish national preventative mechanisms.

  95. See, UN Doc E/CN.4/2001/67 (9th meeting, 12 to 23 Feb 2001); UN Doc E/CN.4/2002/78 (10th meeting, 14 to 25 Jan 2002).

  96. See, UN Doc E/CN.4/2002/SR.50.

  97. ECOSOC Resolution 2002/27 (24 July 2002), in UN Doc E/2002/INF/2/Add.2.

  98. GA Resolution 57/199 (18 December 2002) UN Doc A/RES/57/199.

  99. See P Schmidinger, OPCAT: Evolution over Time and Space. <http://maps.google.co.uk/maps/ms?hl=en&gl=uk&ie=UTF8&oe=UTF8&msa=0&msid=100613791507562631991.000470e0c33154b10a87fhttp://maps.google.co.uk/maps?hl=en&ie=UTF8&ll=53.800651,-4.064941&spn=12.583143,34.453125&z=5> (last accessed 1/09/09). Also, United Nations Treaty Collection, ‘9.b. Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Ratifications and Reservations’ (2009) United Nations, Office of Legal Affairs <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9-b&chapter=4&lang=en> (last accessed 11/08/09).

  100. Bolivia ratified OPCAT on 23 May 2006.

  101. See United Nations Treaty Collection, ‘9.b. Optional Protocol: Ratifications and Reservations’ supra note 99.

  102. The relevant provisions for the SPT are spelled out in Art. 2 and section II and III; those for the NPMs are stipulated in Art. 3 and section IV of OPCAT. The remaining sections deal predominately with procedural questions, such as the process of adoption, ratification, amendments, and denouncement (section VII), the nature of permissible reservations (section V), and perhaps most importantly, financial provisions, or lack thereof (section VI).

  103. Regarding visits to the territory of a state as such, the authorities cannot reject a request by the SPT (OPCAT, Art. 12). Hence once a state ratified the protocol (or acceded to it), the SPT may visit at any time, but has to notify the authorities of the impending arrival of its members (Art. 13). In relation to specific places of detention, on the other hand, the authorities have some residual powers to postpone visits temporarily.

  104. OPCAT, Art. 19 & 20.

  105. OPCAT, Art. 1.

  106. OPCAT, Art. 14 (2), stipulates that states may object to visits by the SPT ‘only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit’ (emphasis added). In relation to the NPMs, no such limitations are included (Arts. 19 & 20).

  107. The exact specification of what is counted as a place of detention is spelled out in OPCAT Art. 4.

  108. For the stipulated relation between SPT and NPMs, see OPCAT, Arts. 11 (b), 12 (c), 16 (1), 20 (f). The special fund is established in Art. 26, ‘to help finance the implementation of the recommendations made by the Subcommittee on Prevention after a visit to a State Party, as well as education programmes of the national preventative mechanisms’ (emphasis added). Unfortunately, the SPT appears to shy away from utilising this fund as a lever for persuasion. See, UN Doc CAT/C/42/2 (2nd Annual Report of the SPT, Feb 2008 to Mar 2009) § 46: ‘The SPT has always been firmly of the opinion that the SPT needs to maintain an arm’s length relationship with the Fund in order to distinguish its role as an independent preventative mechanism from the funding of implementation of its recommendations’.

  109. OPCAT, Art. 18.

  110. In regards to the budgetary question see, UN Doc CAT/C/40/2 (1st Annual Report of the SPT, Feb 2007 to Mar 2008) §§ 46–56; UN Doc CAT/C/42/2 (2nd Annual Report of the SPT, Feb 2008 to Mar 2009) §§ 62–76. Especially the latter is quite adamant that the current resources allocated are insufficient for the work of the SPT, because ‘on this basis the SPT would be able to carry out a regular visit to each of the existing 46 State parties once every 12 years’ (§ 70). ‘The SPT has continued to struggle to carry out its work with an inadequate budget based on faulty assumptions about the nature and content of the SPT mandate. The SPT consequently considers that it is not yet in a position to fulfil its mandate’ (§ 75). ‘As the SPT sees it, there is a stark choice to be made. Either lip service is paid to the idea of a system of visits by preventative bodies or a major injection of funds is required. Prevention of torture and other cruel, inhuman or degrading treatment or punishment is not cost neutral’ (§ 76).

  111. For an interesting article regarding structure and types of NPMs see, Murray (2008).

  112. OPCAT, Art. 10 (3). Also see, UN Doc A/58/44 (Report of the Committee against Torture 2001) § 14(b). There exists, however, a CAT/SPT contact group, consisting of two members of each body, and meeting during the joint session in Geneva.

  113. OPCAT, Art. 2(3) and Art. 16.

  114. See UN Doc CAT/C/40/2 (1st annual report of the SPT, February 2007 to March 2008) and UN Doc CAT/C/42/2 (2nd annual report by the SPT, February 2008 to March 2009).

  115. For the 2006 round of nominations for the SPT see, UN Docs: CAT/OP/SP/1, CAT/OP/SP/1/Add.1 & CAT/OP/SP/1/Add.2, containing the CVs of the 15 nominees. The ten elected members, in order of the votes received, were: S. Casale, L.T. Boursault, M. Sarre Iguiniz, M.L. Coriolando, Z. Hajek, D. Petersen, M. Rodriguez Resica, Z. Lasocik, W. Tayler Souto, M.D. Gojanovic. See, UN Doc CAT/OP/SP/SR.1. Of these candidates, Casale, Boursault, and Hajek had previously served on the CPT. Notably, the five members that initially served for only 2 years, were all re-elected in the 2008 round, despite the nomination of two additional candidates.

  116. Interestingly enough though, they do not technically have to be a party to the ICCPR (the oldest human rights treaty to, inter alia, ostracise torture). Some, albeit very few, countries are only party to CAT, but not the ICCPR: Antigua & Barbuda, Qatar and the Holy See (not UN member either).

  117. OPCAT, Art. 16 (2). The exact phrasing is that the SPT ‘shall publish its report, together with any comments of the State Party concerned, whenever requested to do so by that state party’ (emphasis added).

  118. The two published reports are for the visit to the Maldives, UN Doc CAT/OP/MDV/1, and to Sweden, UN Doc CAT/OP/SWE/1. For the latter visit, the official response by the authorities has also been disseminated. See, UN Doc CAT/OP/SWE/1/Add.1.

  119. Data from UN Docs: CAT/C/40/2, CAT/C/42/2, CAT/OP/MDV/1, CAT/OP/SWE/1. Also, a number of UN Press releases, available under OHCHR, ‘Optional Protocol to the Convention against Torture: Subcommittee on Prevention of Torture’ (2007) Office of the United Nations High Commissioner for Human Rights <http://www2.ohchr.org/english/bodies/cat/opcat/index.htm> (last accessed 15/08/09).

  120. The specific reports examined in this respect, were a series of reports relating to the CPT’s visits to Latvia and the UK. All available under, Council of Europe, ‘CPT Visits’ <http://www.cpt.coe.int/en/visits.htm> Last update: 04/08/09, (last accessed 15/08/09).

    For Lativa: [CPT/Inf (2001) 27] (First periodic visit, 24 Jan to 3 Feb 1999); [CPT/Inf (2005) 8] (Second periodic visit, 25 Sep to 4 Oct 2002); [CPT/Inf (2008) 15] (Ad hoc visit focused on follow up of recommendations, 5 to 12 May 2004). The corresponding government responses are: [CPT/Inf (2001) 28] (Feb 1999 periodic visit); [CPT/Inf (2005) 9] (Sep 2002 periodic visit); [CPT/Inf (2008) 16] (May 2004 ad hoc visit).

  121. See table above.

  122. UN Doc CAT/C/42/2, § 71.

  123. OPCAT, Art. 13(3).

  124. UN Doc CAT/C/40/2, § 62.

  125. UN Doc CAT/C/42/2, § 66.

  126. See table above.

  127. Ibid., § 30.

  128. That the reports issued subsequent to visits, make only very limited reference to these experts and their work, unfortunately, somewhat undermines this argument.

  129. See Schmidinger (2009)

  130. Argentina, Bolivia, Brazil, Chile, Costa Rica, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru and Uruguay.

  131. Benin, Liberia, Mali, Mauritius and Senegal.

  132. Cambodia, Maldives and New Zealand.

  133. Kazakhstan and Kyrgyzstan.

  134. Lebanon.

  135. A further nine African countries have signed OPCAT here. Outside of Africa, only Australia, Ecuador and East Timor—as well as a number of European countries—have signed, but not yet ratified the protocol.

  136. That these countries were indeed drawn by the lot was further asseverated in UN Doc CAT/C/40/2, §§ 14, 19 and 31.

  137. See UN Doc CAT/C/40/2 at § 14 and UN Doc CAT/C/42/2, §14.

  138. Evans and Haenni-Dale, supra note 77, p. 45.

  139. OPCAT, Art. 14.

  140. OPCAT, Art. 4.

  141. UN Doc CAT/C/40/2, § 18.

  142. UN Doc CAT/C/42/2, § 38.

  143. UN Doc CAT/OP/SWE/1, § 67. If compared to the same section in the report relevant to the Maldives, it reads distinctly different: ‘The delegation received numerous credible allegations from detained persons that they had been physically ill-treated while in custody of police officers, both at the time of their apprehension or arrest, and in the police detention facilities to which they were transferred’. See, UN Doc CAT/OP/MDV/1, § 162 (the higher paragraph number being caused by the fact that this reports contains a review of the legislative framework, which in the report about Sweden is missing, because already existing in form of relevant CPT reports).

  144. Twenty-eight recommendations were issued to Sweden. By comparison, the Committee report to Mexico contained 11 recommendations, and the one to Brazil forwarded 29.

  145. UN Doc CAT/OP/MDV/1, § 352. Cross-referencing with § 236 reveals that ‘these responsibilities’ refer to the oversight of the hygiene in prisons by medical personnel.

  146. UN Doc CAT/OP/MDV/1, § 358. Cross-referencing with §§ 245–247 reveals that the SPT recommends that the 10- to 18-year-old boys in the Maafushi Educational Training Centre should be allowed to call their parents more often than once a month.

  147. UN Doc CAT/OP/SWE/1/Add.1, § 4, continuing that the ‘National Police Board is currently working on making the information sheet available in Persian and Kurdish’. For the benefit of the SPT, the English version thereof was kindly attached to the reply.

  148. UN Doc CAT/OP/SWE/Add.1, § 3.

  149. Ibid., §§ 14 & 26.

  150. Ibid., § 23.

  151. The SPT’s request ‘to clarify whether or not brief initial screening on medical issues is conducted routinely by non-medical staff’ (CAT/OP/SWE/1, § 157; emphasis added), for instance, received the reply that, ‘all detainees are screened upon arrival in a remand prison. The screening form includes health questions such as current use of medication, disease etc. This routine is used to help staff to spot serious illness or risk of suicide etc., and to provide the detainee with medical treatment as soon as possible’. (CAT/OP/SWE/1/Add.1, § 19). Hence, the answer to the SPT’s question is yes, but needs to be inferred, and is immediately accompanied with a reasonable justification for this practice.

  152. Petersen 2007. Petersen is a former member of the CPT and currently serves on the SPT.

  153. [CPT/Inf (2008) 15], § 7 & 19.

  154. Compare [CPT/Inf (2008) 27] with [CPT/Inf (2008) 28]. For instance, the SPT found that the policy of providing detainees with choice regarding whether to remain in police custody or to be transferred to a designated prison as ‘fundamentally flawed’ from a preventative perspective. The UK replied, that ‘it is only reasonable and fair’ to allow an ‘individual that has not yet been charged’, to remain in a police station, which may be ‘more accessible or nearer to the detained persons home and family and friends who may wish to visit’, if it so chooses.

  155. FCO stands for Foreign and Commonwealth Office. For earlier example of the absurdity of the dialogue between CPT and FCO, see the ‘tea towel saga’, outlined in MD Evans and R Morgan, Schaufelberger 2005.

  156. OPCAT, Art. 16 (4).

  157. Paraphrasing Foucault, see Section I, supra note 30.

  158. Some academic sources have been used for inspiration regarding these VMs, but none of them were utilised to supply effective data regarding the situation in the visited countries.

  159. As of May 2009.

References

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Acknowledgements

The Arts and Humanities Research Council (AHRC), a governmental initiative awarding support to postgraduate studies throughout the UK, funded the research for this article. Different preliminary aspects of this article were presented at the Regional Doctoral Conferences at Oxford in December 2007, and at Reading in March 2009. I am grateful to Dawn Sedman, Evadne Grant, Penelope Simons and Peter Edge, as well as to two unknown reviewers at the Human Rights Review for valuable and useful comments and suggestions. I would also like to thank Nicholas Saunders for taking the time to peruse a pre-publication draft, which benefited greatly from his attention to detail.

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    Philipp Schmidinger

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Schmidinger, P. Visiting Mechanisms to Eradicate Torture: A Foucaultian Analysis. Hum Rights Rev 11, 317–355 (2010). https://doi.org/10.1007/s12142-009-0147-x

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