Was accession an unwise move? Convention against Torture:

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By BANDU DE SILVA

 

(Former Ambassador)

 

bandudes@gmail.com

 

Distinguished Columnist Chandraprema has, in his article in The Island Features Column of 15th December 2017, highlighted the folly of the Sri Lankan government acceding to the Optional Protocol of the U. N. Convention against Torture. With this action which took place at the end of November and early December 2017, one may then ask if the government has virtually signed the country’s death warrant.

 

Laudable as the objectives of the Optional Protocol are in preventing torture in a member state to the Protocol, the columnist observes that the government has, through its hasty action [taken after the lapse of 18 years], given foreign powers the opportunity to intervene directly in Sri Lanka’s internal affairs. This was a sacred right that the country was protecting all these years no matter what Geneva Resolutions were passed against her, over the manner of conduct of war against terrorism. Even despite the last Geneva Resolution of 2015, in co-sponsoring which Sri Lanka joined others, President Sirisena was quite outspoken in saying that he would not permit foreign judges to investigate allegations against our armed forces. It would seem now that his hands are getting tied over this issue with the government’s accession to the Optional Protocol.

 

Chandraprema’s article deals with many technicalities as the handling of the subject verily demands so much, so that it might look too complicated for the average reader to follow. Therefore, I thought of presenting the issues on a lower format using a perspective somewhat historical in treatment, with the hope that trends could be easily followed by the average reader.

 

UN Convention against Torture

 

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) came into being by the adoption of a Resolution by General Assembly in December 1984 and came into force on 26 June 1987. Under this convention, state parties were generally expected to co-operate with the Committee appointed in terms of clauses of the Convention to carry out investigations of alleged torture etc., when all local investigation procedures had been exhausted.

 

Sri Lanka ratified the Convention in January 1994 and incorporated the Convention into Sri Lankan law by enacting the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994’, more commonly referred to as the ‘Convention against Torture Act’ (CAT ACT).

 

The seven to nine years it took for the U.N. to develop and approve UNCAT and the additional 10 years it took for the U.S. government to ratify the treaty, demonstrated the difficulties of achieving such a treaty, the multitude of opinions and different countries and groups that are involved and the importance of patience and persistence in the development of multilateral human rights treaties. Also significant in the light of recent political developments in the U.S., there was consistent, persistent and bipartisan support in the U.S., during the period, 1975 through 1994, for policies to combat, outlaw and punish torture perpetrators.

 

Sri Lanka’s delay in acceding to the Convention was therefore, understandable. As Chandraprema observed, provisions envisaged by the UNCAT were already in operation in the Sri Lankan legal system and the provisions made in the Sri Lankan CAT Act were more realistic than the provisions of the Convention, in that it made torture a non-bailable criminal offence punishable with prison sentence of between seven to ten years. More importantly, its provision was not restricted to officers of state but applied also to citizens of Sri Lanka and non-citizens who are within its jurisdiction. The Act also provides for extradition of a foreigner suspected of committing torture outside the jurisdiction of Sri Lanka to his own country or another country asking for his extradition.

 

Why an Optional Protocol?

 

The Optional Protocol was meant to strengthen the hands of the UN in carrying out state obligations under the Convention. It envisaged the appointment of a Sub-committe which had, among other things, wider powers to intervene in affairs of member states.

 

Regular Visits

 

The declared objective of the Optional Protocol is to establish a system of regular visits to be undertaken by an independent International Sub-committee to be established and national bodies. Member states which have acceded to the Optional Protocol are obliged to give the Sub-committee access to places of detention and provide unrestricted access to all information concerning the number of persons deprived of their liberty and places of detention, and unrestricted access to all information referring to the treatment of those persons, as well as their conditions of detention; as well as the opportunity to have their private interviews without witnesses, as well as with any other persons who the Sub-committe belies may provide information…. Objections to a place of detention may be made 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 visit.

 

A number of other restrictions imposed on the state member has been outlined by Chandraprema in the latter part of his long article. As such, I do not propose to repeat them all here. Suffice it to say that he observes that by acceding to the Optional Protocol we have agreed to give a body functioning under the Office of the UN High Commissioner unrestricted access to all places of detention in the country, and to provide them with all such information regardless of the situation prevailing in the country, and to set up local mechanisms which can maintain direct links with the International Sub-committee and feed information to foreign parties without any restrictions.

 

Funding

 

Chandraprema’s interpretation can be quite alarming if one weighs them directly in terms of sovereign rights of a country. Additionally, if one looks at the Special Fund to be created, is to be funded, that is not only through voluntary contributions of governments, but also by inter-governmental and non-governmental organisations, one can see the opportunity provided for physical intrusion by outsiders holding stakes in the provision of funds into activities of a country, in this case, of Sri Lanka.

 

Questions?

 

A primary question to be asked is how the provision in the Optional Protocol will stand against the declared position of the President about the appointment of foreign judges to investigate allegations against armed forces? The attempt to use the Office of Missing Persons as an entry point for unrestricted power to enter into agreement with foreign powers failed because of public protest in Sri Lanka. Will the situation now change with Sri Lanka acceding to the ‘octopus –like’ Optional Protocol? If the position is different from what the learned columnist has interpreted, can anyone representing the government explain what it thinks about the obligations under the Optional Protocol, particularly if the sovereign rights of the country are to be protected? Can there also be a debate in Parliament by great minds debating affairs over there?

 

An Alternative to Human

 

Rights Paradigm

 

While discussing the subject of the Optional Protocol, one may also need to pay attention to the alternate dialogue referred to as the South –South Dialogue on Human Rights ,which took place recently in Beijing with the participation of over 300 delegates from over 30 countries. Article 8 of the Beijing Declaration, which while stressing the international community’s concern for human rights matters, also states that international law and the universally recognized basic norms governing international relations, of which the key is to respect national sovereignty, territorial integrity and non-interference in the internal affairs of states, should be recognized. It also requests all countries to adhere to the principle of sovereign equality, and all countries, big or small, have the right to determine their political systems, control and freely use their own resources, and independently pursue their own economic, social and cultural development. The politicization, selectivity and double standards on the issue of human rights and the abuse of military, economic or other means to interfere in other countries’ affairs run counter to the purpose and spirit of human rights. The relevant actions of the international community to protect human rights must be in strict compliance with the relevant provisions of the Charter of the United Nations, and should respect the views of the concerned states and regional organizations.

 

This article of the Declaration seems to be a straight challenge to the provisions of the UN Optional Protocol against Torture etc. How does Sri Lanka view the Beijing Declaration? Let us hear from government circles!

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