Juan E. Méndez is the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (the SR). He is also Professor of Human Rights Law in Residence at the American University-Washington College of Law and regularly teaches human rights courses at Oxford University.
The HRLC’s Ruth Barson had the privilege of studying with Mr Mendez as part of her Master’s program, and took the opportunity to interview him to get an insight into his work and his commitment to seeing torture eradicated globally.
Mr Mendez has dedicated his career to the defence of human rights. This has involved, serving as President of the International Center for Transitional Justice (ICTJ); acting as Kofi Annan’s Special Advisor on the Prevention of Genocide; serving as general counsel to Human Rights Watch; advising the Prosecutor of the International Criminal Court on crime prevention strategies; and serving as a member and President of the Inter-American Commission on Human Rights of the Organization of American States.
Mr Mendez was born in Argentina, and as a result of his involvement in representing political prisoners, the Argentinean military dictatorship arrested him and subjected him to torture and administrative detention for more than a year. During this time, Amnesty International adopted him as a ‘Prisoner of Conscience’. He was expelled from Argentina in 1977 and moved to the United States. Mr Mendez used his first address to the Human Rights Council as the SR to commit to adopting a ‘victim-centred perspective’, stating that ‘[t]he ordeal of victims of torture endures even when the torture itself has ended’.
What does your role as Special Rapporteur involve?
The SR monitors compliance with the prohibition on torture and inhuman and degrading treatment or punishment in all 194 member States of the UN. The Convention Against Torture (the Convention) provides our mandate, however because the standards in the Convention are now largely customary international law, they apply to all countries, regardless of whether or not they have ratified the Convention.
My job as the SR is to highlight practices around the world that may go undetected, and may run afoul of the absolute prohibition against torture. We also assist countries by offering suggestions on how to uphold the standards.
Like all Special Rapporteurs, I engage countries through three methodologies:
We receive complaints through the public, including complaints by individuals and organizations
We conduct country visits and investigate countries compliance with the Convention, and
We write thematic reports and present these to the Human Rights Council annually.
The first report I did was on solitary confinement – a widespread practice which is becoming more widespread. Often countries don’t associate solitary confinement with torture, but my mandate includes inhuman and degrading treatment, and solitary confinement can, in many circumstances, fall within this category, so it’s an important focus and we need strong policy. The second report I did was in relation to the death penalty and how this practice runs afoul of the prohibition. I am currently working on a report in relation to forensic medicine, and how standards can be developed and applied to detect and investigate incidents of torture.
What is the most challenging part of your work as Special Rapporteur?
Country visits can be challenging, as there is an ongoing issue with getting an invite. Some countries have standing invitations, however often countries that I would most like to visit won’t invite me. Mind you, this can also be the case with countries that have standing invitations – they can still make a visit virtually impossible.
For me to visit a country, they must give me access to a cross section of detention centres, including high security, low security and immigration detention, all of which must be of my own choosing and not just the ones that the Government wants to show me. I must also be able to talk to anyone I want without repercussions.
By way of example, I was invited to Iraq, but then they never responded with available dates. Russia has also invited me, but on the condition that I seek permission from prison authorities to see each prisoner – I cannot accept those terms. Similarly, I was invited to Guantanamo Bay on the condition that they show me what they want, and that I don’t speak to any prisoners. Again, I couldn’t accept that. Some countries just don’t engage at all: we have been asking to go to India for 22 years, and simply never receive an answer to our request. Still, we repeat the request for an invitation each year. It is, however, important to remember that it’s possible for us to do things at a distance in relation to these countries – but this is of course different from me being able to say that I have been there recently, and can therefore speak authoritatively about what I have seen firsthand.
When I do get to visit a country, we have a very good methodological approach – in a short period of time, with a concentrated effort, we do get a very good picture of what’s going on and are able to report on this accurately and in detail.
What are some of the ways that you engage with different governments?
My SR mandate receives one of the most communications each year. Once a communication is assessed, we then request that the Government in question respond. There is approximately a 50% response rate in relation to communications.
Sometimes Government responses are not responsive enough – they deny everything or it’s a proforma answer. This can be very frustrating because we have to reach our own conclusions on what we know: it would be far more preferable to have an exchange of views with the Government.
I have also made a point to reintroduce a practice that my predecessor started: that is, I will reach conclusions on all communications and publish them. The conclusions are like a declaratory judgment of sorts, and go to whether the respective Governments violated the prohibition.
How do you think women’s rights can be incorporated more into your mandate?
We do receive some communications on gender related issues, such as gender based violence, however the issue is that the torture definition says that it has to be perpetrated by a state agent for the Convention to apply. In saying this, I am committed to a gender-sensitive definition of torture: if the country knows or ought to have known that violence was occurring, and fails to comply with their due diligence obligations to prevent, investigate, prosecute and punish, then there is state responsibility. In other words, if the country is negligent in letting a private actor perpetuate torture or cruel, inhuman and degrading treatment – for our purposes that person is a state agent.
Further, when I do country visits I always make sure to go to at least one women’s prison, so that I get a good picture of how the state is accommodating the needs of women. In male prisons I look at visitation rights, as this impacts family and spouses.
What are the key areas that need addressing in order for torture to be eradicated globally?
There are more sophisticated types of cruelty now, for example solitary confinement. These don’t necessarily present a definitional challenge as far as international law is concerned, but rather they present a public perception challenge. Often the public does not identify solitary confinement with mistreatment, because it is applied to people who society thinks should be put away anyway. So empathy is difficult to achieve.
However, we have been making some progress on the issue of solitary confinement: when people see an isolation cell from the inside and have the conditions explained to them, it’s not hard to persuade people that this is a breach of human rights.
The other challenge is cultivating an understanding of different forms of cruelty that are not immediately or traditionally associated with torture. For example, I did a report on torture in health care settings. This was very controversial as we looked at the involuntary treatment of patients with mental health diagnoses and concluded that it can amount, in certain circumstances, to torture or cruel, inhuman and degrading treatment. In particular, we said that isolation of mental health patients should only be used as an exceptional measure, and that it should be temporary and surrounded by safeguards. Lack of social contact is a cruel and extreme measure. We also looked at drug addiction treatment facilities and whether alternative medications should be used to reduce the likelihood of these facilities being cruel.
I have also looked at the issue of abortion. In countries where abortion is legally available, women shouldn’t be subject to humiliating and degrading treatment for accessing a health service. I have found that in some countries where abortion is legal, there can still be a moral and social habit of making the women who might seek an abortion pass through humiliating practices, such as forcing them to return with the consent of their parents; or subjecting them to rigorous questioning; or exposing them to unfair treatment upon entry to the clinic. Women shouldn’t be subject to humiliation due to people’s ideological differences.
Another general challenge is encouraging governments who are a party to the Convention, to also sign and ratify the Optional Protocol to the Convention (OPCAT). OPCAT builds on the Convention and requires states to facilitate and allow national and international independent inspection of detention facilities, to reduce the risk of mistreatment of people in detention. The Australian Government, for example, has signed but not ratified OPCAT, whereas similar countries, such as the UK and New Zealand have. The ratification of OPCAT enables the creation of important oversight mechanisms, and therefore ensures that torture and mistreatment are prevented and not tolerated.
What do you hope to achieve by the end of your mandate?
During my time as SR we have unfortunately lost the preexisting global consensus that torture is unequivocally immoral and illegal. Post 9/11 the discourse has conditioned many to now accept torture in certain circumstances. As long as populations accept torture, either in theory or in practice, we will never be able to eradicate it completely.
There are too many countries where torture happens daily. We must fight against this notion that says that torture is bad, but we have to live with it, as long as it happens to people we can’t see. There are no countries that legalise torture, but in order to eradicate and abolish it in practice, we need more than domestic and international law – we need support and change in public opinion. We need to strengthen the mechanisms that we have and change public attitudes so that the absolute prohibition on torture is fully understood, not just legally, but morally and socially as well.