AFTERNOON - Human Rights Council Holds Interactive Dialogue with the Special Rapporteur on Torture and Starts Interactive Dialogue with the Special Rapporteur on the Right to Privacy
Council Concludes Interactive Dialogue with the Special Rapporteur on Freedom of Religion or Belief
The Human Rights Council this afternoon held an interactive dialogue with the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and started an interactive dialogue with the Special Rapporteur on the right to privacy. It also concluded its interactive dialogue with the Special Rapporteur on freedom of religion or belief.
Alice Jill Edwards Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said her report examined major gaps in the collective resolve to tackle the terror of torture on communities: the obligations of every State to legislate and investigate crimes of torture, prosecute or extradite the accused, and sentence offenders in line with the gravity of the offence. When a State failed to defend truth and justice, it became an accomplice in torture. Some States wrongly perceived criminal investigations into torture as a direct attack on their legitimacy, but what threatened governmental legitimacy was impunity. The impediments hindering prompt and impartial investigations ranged from the structural and institutional to the legal, cultural and practical, but were usually due to a lack of political will.
In the discussion on torture, speakers said that torture, in all its forms, was a serious violation of human rights, and international tools, such as the International Convention against Torture, must be used in order to eliminate such violations. Torture should be eliminated as a priority for humanity: it was an assault on human dignity. All those culpable of torture and similar crimes must be brought to account, contributing to the efforts to ensure accountability and justice for victims. The prohibition of torture was a peremptory norm of international law and needed to be respected and upheld at all times and under all circumstances. Regrettably, however, the use of torture and other cruel, inhuman or degrading treatment or punishment was still prevalent in many countries in all geographic regions. Effective investigations and prosecutions provided an acknowledgement of the suffering of victims and survivors, allowed for effective remedy and reparation, and had a deterrent and preventive effect.
Speaking in the discussion were European Union, Chile on behalf of a group of countries, Denmark on behalf of a group of countries, Côte d'Ivoire on behalf of African States, Ukraine on behalf of a group of countries, Liechtenstein, Ecuador, France, Switzerland, United States, Colombia, Cyprus, Paraguay, Belgium, Burkina Faso, Luxembourg, China, Costa Rica, Peru, Indonesia, Russian Federation, Cameroon, Morocco, Venezuela, Iraq, Armenia, Egypt, United Kingdom, Argentina, Malaysia, Sudan, Maldives, Kazakhstan, Georgia, the Gambia, Algeria, Chile, Afghanistan, Malawi, Australia, Namibia, Yemen, Botswana, Brazil, Cuba, Timor-Leste, Ireland, Bahrain, Mauritania, Iran, Benin, Pakistan, Czech Republic, and Tunisia.
Also speaking were the Global Alliance for International Human Rights Institutions, Burundi: Commission nationale indépendante des droits de l'homme, and Ukrainian Parliament Commissioner for Human Rights, as well as Helsinki Foundation for Human Rights, International Federation of Action by Christians for the Abolition of Torture, International Lesbian and Gay Association, Conectas Direitos Humanos, Association Internationale pour l'égalité des femmes, Association for the Prevention of Torture, World Organisation against Torture, Dignity – Danish Institute Against Torture, Al – Haq Law in the Service of Man, and Lawyer’s Rights Watch Canada.
The Council then started an interactive dialogue with the Special Rapporteur on the right to privacy.
Ana Brian Nougrères, Special Rapporteur on the right to privacy, said after the World Health Organization had decreed the state of pandemic due to the levels of spread and severity of the coronavirus disease, many countries decided to implement the collection of personal data to detect the virus, track its spread, prevent transmission, and protect health. The data of millions of people was collected and processed for this purpose. The principle of “purpose” indicated that the data could only be used for the purpose for which it was collected, and once this purpose has been fulfilled, it needed to be deleted or anonymised. The principle of “elimination” of the data collected throughout the pandemic implied that, once the specific purpose had been fulfilled, the data must be definitively deleted or anonymised so that the owner of the data was not able to be identified. States were urged to verify compliance with the principles of purpose, elimination and proactive responsibility, regarding the data of millions of people that was collected for the purpose of detecting and combatting COVID-19.
In the discussion, speakers said there were open questions with respect to the large amounts of health data of individuals that had been collected in the course of the COVID-19 pandemic. It was the obligation of all States to ensure that the need to collect and analyse data in response to the COVID-19 pandemic or any potential future health crises was not used as a pretext for mass surveillance and the violation of an individual’s right to privacy. All States should delete and anonymise data once it ceased to be useful for the purposes for which it was collected, and also build and consolidate public confidence in the programmes of public entities that involved the processing of personal data. To achieve this, States needed to promote the responsible and transparent collection and use of personal data and show compliance with the legal obligations established in personal data processing regulations.
Speaking in the discussion were Latvia on behalf of a group of countries, European Union, Germany on behalf of a group of countries, United Nations Development Programme, Liechtenstein, France, United States, and Lithuania.
Speaking in right of reply were Armenia, Indonesia, China, Azerbaijan, and Iran
At the beginning of the meeting, the Council concluded its interactive dialogue with the Special Rapporteur on counter-terrorism. The interactive dialogue started in the previous meeting and a summary can be found here.
Fionnuala Ní Aoláin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in concluding remarks, said she had grown up in a society which had experienced conflict and terrorism and knew the cost of this. She stressed to all governments that the impact of terrorism as well as the conditions conducive to terrorism needed to be addressed by good governance, rule of law, and accountability, which were the best insulators against terrorism. There needed to be a moratorium on remote biometric technologies in public spaces. Unless there was concerted sustained support to States at the national level, it would not be possible to address terrorism with a human rights approach.
In the discussion, some speakers said that human rights belonged at the heart of all counter-terrorism efforts, or these efforts risked exacerbating the very conditions conducive to terrorism or becoming sources of rights violations themselves. As was well-known, terrorism violated basic human rights. At the same time, the root causes of terrorism were often closely related to human rights issues such as extreme poverty and lack of education. Speakers reaffirmed the importance of defending democracy, and remaining mobilised to ensure the improvement of defence mechanisms for the rule of law. Some speakers said all Member States should refrain from further interruptions to civilians’ internet and mobile services in the name of countering terrorism.
Ms. Ní Aoláin’s term as Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism was coming to an end, and the President of the Council expressed, on behalf of the Council, deep appreciation for the valuable contributions she had made to the work of the Council and wished her all the best for future endeavours.
Speaking in the discussion were Réseau Européen pour l'Égalité des Langues, Article 19 - International Centre Against Censorship, Ordem dos Advogados do Brasil Conselho Federal, Advocates for Human Rights, China Foundation for Human Rights Development, Redress Trust, Conectas Direitos Humanos, International Federation of Journalists, International Commission of Jurists, and Human Rights House Foundation.
The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council’s fifty-second regular session can be found here.
The next meeting of the Council will be at 10 a.m. on Wednesday, 15 March, to conclude the interactive dialogue with the Special Rapporteur on the right to privacy. This will be followed by an interactive dialogue with the Independent Expert on foreign debt, and an interactive dialogue with the Special Rapporteur on human rights defenders.
Interactive Dialogue with the Special Rapporteur on Human Rights and Counter-terrorism
The interactive dialogue with the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ní Aoláin, started in the previous meeting and a summary can be found here.
Discussion
Some speakers said that human rights belonged at the heart of all counter-terrorism efforts, or these efforts risked exacerbating the very conditions conducive to terrorism or becoming sources of rights violations themselves. As was well-known, terrorism violated basic human rights. At the same time, the root causes of terrorism were often closely related to human rights issues such as extreme poverty and lack of education. Therefore, comprehensive anti-terrorism governance should be carried out on living standards, social resources, culture and education, and the international community should promote human rights as a whole.
It was imperative to determine the responsibilities of the executors, organisers, and financiers of terrorist acts, in addition to measures of reparation and non-repetition. Speakers reaffirmed the importance of defending democracy, and remaining mobilised to ensure the improvement of defence mechanisms for the rule of law, reaffirming concerns regarding the legislative debate on combatting terrorism, such as the efforts to broaden the definition of terrorism through the inclusion of “political and ideological motivation” as an element that characterised a terrorist act.
As the Special Rapporteur had outlined, counter-terrorism and security frequently served as political and legal justifications to use high-risk and highly intrusive technologies – often with the promise of limited application. However, in reality these technologies were broadly used, without adequate human rights or rule of law safeguards. Human rights experts should be able to participate in crafting technology governance in companies and in governments. Anti-terrorism and anti-extremism legislation continued to be used as a pretext to attack those involved in human rights work, and could have a chilling effect on civil society. Furthermore, anti-terrorism laws could grant sweeping powers to law enforcement and security forces to imprison suspects with virtual impunity.
All Member States should refrain from further interruptions to civilians’ internet and mobile services in the name of countering terrorism, as well as immediately release all people deprived of their liberty on political grounds and end the practice of jailing political opponents. States needed to ensure that in the development, use, governance, and transfer of these technologies, actors strictly complied with key rights such as freedom of expression, privacy and data protection, equality, and non-discrimination. In addition, State regulation needed to require access to effective remedies, transparency, accountability, and human rights protection, including through impact assessments.
Concluding Remarks
FIONNUALA NÍ AOLÁIN, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, thanked Maldives for the response to her country visit and looked forward to maintaining a positive dialogue. Ms. Ní Aoláin said she had grown up in a society which had experienced conflict and terrorism and knew the cost of this. She stressed to all governments that the impact of terrorism as well as the conditions conducive to terrorism needed to be addressed by good governance, rule of law and accountability, which were the best insulators against terrorism. There needed to be a moratorium on remote biometric technologies in public spaces. Ms. Ní Aoláin called on all States to grant access to human rights mechanisms if they had not already done so. She was looking forward to the visit that would be undertaken to Cameroon before the end of her mandate. There was a need to regulate private enterprises that were engaged in systematic operations. Unless there was concerted sustained support to States at the national level, it would not be possible to address terrorism with a human rights approach. Ms. Ní Aoláin applauded the recognition of the challenge of the deprivation of citizenship in the context of counter-terrorism. Ms. Ní Aoláin said this would be her last interactive dialogue with the Council and it had been an honour for her to serve as the mandate-holder.
Interactive Dialogue with the Special Rapporteur on Torture
Report
The Council has before it the report by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Alice Jill Edwards, on good practices in national criminalisation, investigation, prosecution and sentencing for offences of torture (A/HRC/52/30).
Presentation of the Report
ALICE JILL EDWARDS, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, addressing the Council for the first time, said she had been inundated with requests for interventions, and was concerned about the ability of the mandate to carry out impactful country visits and to deliver reports in a timely manner at current staffing levels. She appealed to the Council to match the commitment to torture prevention with the resources needed for her mandate to be effective. Her report examined major gaps in the collective resolve to tackle the terror of torture on communities: the obligations of every State to legislate and investigate crimes of torture, prosecute or extradite the accused, and sentence offenders in line with the gravity of the offence.
Ms. Edwards said she had heard a powerful testimony from a survivor of rape in 1999 in Central Bosnia, which outlined that while international forums remained laudable and important endeavours, all channels must be used to end impunity. When a State failed to defend truth and justice, it became an accomplice in torture. Some States wrongly perceived criminal investigations into torture as a direct attack on their legitimacy, but what threatened governmental legitimacy was impunity. The impediments hindering prompt and impartial investigations ranged from the structural and institutional to the legal, cultural and practical, but were usually due to a lack of political will.
It was pleasing that at least 105 States worldwide had adopted an autonomous crime of torture under national law, which was encouraging. However, in some countries, forms of torture were still lawfully on the statute books, including legislation allowing indefinite solitary confinement or corporal punishment, or which approved the perpetration of torture to extract information or a confession. These laws needed to be repealed immediately, and Ms. Edwards offered her expertise to any State undergoing legislative reform. Whenever there were grounds to believe that torture had been committed, authorities needed to act with the utmost urgency to investigate those potential crimes. States were urged to open investigations promptly and without delay, which meant within hours of an allegation being made, and at latest 24-48 hours; any delays needed to be explained in writing and be open to judicial oversight. Similarly, complaints mechanisms needed to be safe, accessible, impartial and confidential for people deprived of their liberty. It was vital to ensure safe ways to register complaints to impartial bodies.
An element of the healing process was to ensure that survivors were ‘given voice’, fully empowered and treated respectfully, and the report provided a catalogue of effective ways in which victims had been empowered to participate. Ms. Edwards had found little global consistency in the range of penalties being applied and felt it was time to revisit national penalties vis-a-vis crimes of torture to bring practice in line with international benchmarks. The Special Rapporteur said she would be undertaking numerous country visits, including to Chile in October. The subsequent report to the Council in March 2024 would study the relationship between community oriented and representative law enforcement.
Discussion
In the ensuing interactive discussion, some speakers said torture had the aim and consequence of profoundly damaging a person’s physical and mental health, their identity and their socio-economic relationships with family and community. It was fundamental that the voices of victims of torture were heard so that their healing process could begin. Torture, in all its forms, was a serious violation of human rights, and international tools such as the Convention against Torture must be used in order to eliminate such violations. Torture should be eliminated, as a priority for humanity: it was an assault on human dignity. All those culpable of torture and similar crimes must be brought to account, contributing to the efforts to ensure accountability and justice for victims.
Over the past year, many fundamental tools had either been developed or updated, such as the Méndez Principles on Effective Interviewing for Investigations and Information Gathering or the updated Istanbul Protocol on Effective Investigation and Documentation. These tools – together with the many others already existing – merited to be widely known and used so as to give full effect to the principle of the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment. It was important to continue the positive trend mentioned in the report about torture connected to gender orientation and sexual identity. It was important to include the gender dimension when investigating allegations of acts of torture.
The prohibition of torture was a peremptory norm of international law and needed to be respected and upheld at all times and under all circumstances. Regrettably, however, the use of torture and other cruel, inhuman or degrading treatment or punishment was still prevalent in many countries in all geographic regions. Torture was first and foremost a crime committed or enabled by public officials abusing a situation of power, making it even more important to create safe, accessible and confidential complaints procedures and to credibly investigate all cases of torture. Effective investigations and prosecutions provided an acknowledgement of the suffering of victims and survivors, allowed for effective remedy and reparation, and had a deterrent and preventive effect.
To effectively address and prevent torture, the legal framework must set out standards for prompt and impartial investigations, in which context the importance of victim participation and protection could not be neglected. Today, the prohibition of torture was recognised and accepted as applying to all States, at all times, in all places. It was incumbent on all countries to ensure accountability for acts of torture, and for those with diaspora populations to uphold their obligations related to non-refoulement in that context. States outlined their national efforts to prevent torture.
Among questions raised by speakers were: what were the most important measures to ensure public confidence in national institutions, allowing torture survivors to have their voices heard and being able to heal their wounds; what measures could the Human Rights Council along with other relevant United Nations bodies take to ensure that the international tools were known and used through training and education; how could structural obstacles be overcome in States to ensure the investigation and prosecution of cases of torture; how could the mandate facilitate more focus and resources to be channelled towards the provision of technical assistance for States with a view to improving their capacities in addressing complaints and investigations into torture and other ill-treatment; and what obstacles prevented worldwide implementation of the Special Rapporteur’s recommendations, and what could be done to overcome them?
Intermediary Remarks
ALICE JILL EDWARDS, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said the principles in the report were not her own, they were State-driven principles, over which there was limited dispute. She welcomed the information provided on new legislative reforms that criminalised torture. Torture needed to also be prohibited in domestic legislation, including in prisons and police stations. All statements on victim-centred approaches were welcomed. She drew the attention of delegations to incidents of rape in domestic and other contexts, and the parallels that could be drawn when dealing with sexual torture. How to accommodate the concerns of victims and survivors in court proceedings had also gone into the report, in particular in the context of survivors of sexual violence, such as anonymity and the ability to testify from another room.
Ms. Edwards welcomed that there was strong support for the main and fundamental recommendation of the report that States should install and fund main investigation bodies and develop best practices. There had been experiences in making sure that such bodies had a statutory basis and imposed an obligation on public bodies to report, as well as being made up of highly-competent persons who did not have a conflict of interest. With regard to prison and video surveillance, the information that was taken from these videos needed to be carefully stored off-site so that records could not be deleted, resulting in continuing impunity.
Discussion
Continuing the discussion, some speakers expressed strong support for the Special Rapporteur’s call for measures to enable victim participation, protection and empowerment. Complaints handling measures should include a range of protections for witnesses in vulnerable situations to effectively minimise intimidation, avoid additional trauma, and ensure confidentiality and personal safety.
National human rights institutions played an integral role in national accountability measures; guided by the Paris Principles, these institutions were an independent voice in responding to complaints and providing best practice advice to assist States in meeting international obligations. Torture must be considered as a special category of crime due to its specific characteristics. When compared with other crimes, torture was under-reported and under-investigated due to the fact that it was often committed by government officials with the support of the government. As whistle blowers of torture were often subject to retaliation or threats, there was a need to establish means for protecting them.
No States, even under exceptional circumstances, could justify torture and other cruel, inhuman and degrading treatment, and should act accordingly. States should investigate and prosecute acts of torture in accordance with national and international obligations, with a view to combatting impunity. States were obliged to investigate all acts of torture, and provide remedies to the victims. One of the major challenges was to ensure the investigation of acts of torture outside of the sovereign sphere of States. Human rights mechanisms became critical in this respect to investigate and report on all allegations, speak out for the victims, and ensure redress and reparation, as well as further investigation.
Some speakers said administrative measures could include disciplinary sanctions such as reprimand, fine, reduction in rank, or dismissal imposed on a perpetrator of torture. Some said that the severe consequences of decades of imposing unilateral coercive measures constituted a prime example of psychological torture, eventually leading to mass torture, urging the Special Rapporteur to investigate unilateral coercive measures in future reports. Mainstreaming human rights education into the training of law enforcement agents as well as fostering the use of body-worn cameras by police officers had proved to be deterrent and preventive against torture.
Member States that had not yet done so should increase protection against torture through the establishment of independent and well-resourced national human rights institutions, and should ensure that torture was criminalised as a serious criminal offence in national legislation.
Among the questions raised was how could States better address the barriers to reporting allegations of torture while ensuring the privacy and safety of these complainants; how could States best empower and equip national investigative bodies to investigate allegations of torture; and were there any established practices with regard to the protection of whistle blowers that States might be able to follow and could the Special Rapporteur share some examples of best practices in this context.
Concluding Remarks
ALICE JILL EDWARDS, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said tools were available to tackle torture, the most important being political will. One was political, two was practical and the third was cultural. The Convention against Torture could guide the work. Independence, impartiality, and promptness were highlighted as being vital. The Istanbul Protocol was a practical tool which could be put into use, and capacity building and training and best practice sharing between States were also key. In terms of culture, the idea of investigations in the context of torture was part of an integrated system of the State. It was not possible to move forward in the quest for a torture free world if those in office in a State did not face consequences for their actions. Impunity could not be ended if victims, witnesses and whistle blowers were left unprotected and if the sentences did not match the seriousness of the crime. In the follow-up to the report, Ms. Edwards hoped to see stepped up efforts by States.
Interactive Dialogue with the Special Rapporteur on the Right to Privacy
Report
The Council has before it the report by the Special Rapporteur on the right to privacy, Ana Brian Nougrères, on the implementation of the principles of purpose limitation, deletion of data, and demonstrated or proactive accountability in the processing of personal data collected by public entities in the context of the COVID-19 pandemic (A/HRC/52/37).
Presentation of Report
ANA BRIAN NOUGRÈRES, Special Rapporteur on the right to privacy, presented her report on the pandemic and the application of the principles of purpose, elimination, and demonstrated or proactive responsibility. On March 11, 2020, the World Health Organization had decreed the state of pandemic due to the levels of spread and severity of the coronavirus disease. In line with this, many countries decided to implement the collection of personal data to detect the virus, track its spread, prevent transmission and protect health. The data of millions of people was collected and processed for this purpose. This personal data was particularly sensitive as it related to medical health and diagnoses and therefore, enjoyed a specific protection status. As such, the data was governed by the principles of the legal system of privacy and data protection, guaranteeing against the misuse of information and communications technologies.
The principle of “purpose” indicated that the data could only be used for the purpose for which it was collected, and once this purpose had been fulfilled, it needed to be deleted or anonymised. The principle of “elimination” of the data collected throughout the pandemic implied that, once the specific purpose had been fulfilled, the data must be definitively deleted or anonymised so that the owner of the data was not able to be identified. The period of retention of personal data should not exceed that necessary to fulfil the purpose of the processing of such information. The principle of “proactive responsibility” required data controllers and processors to implement appropriate medical measures that allowed them to prove correct compliance with the rules on the processing of personal data. Those measures should be continuously reviewed and evaluated to measure their level of effectiveness in protecting the rights of personal data subjects.
A questionnaire was sent to 186 countries: it had 18 responses, in addition to verified information on the internet from 20 countries, and was used to formulate recommendations. States were urged to verify compliance with the principles of purpose, elimination, and proactive responsibility, regarding the data of millions of people that was collected for the purpose of detecting and combatting COVID-19. The Special Rapporteur also urged States to strengthen the application of the principle of proactive responsibility in all projects or policies involving the processing of personal data. States were also invited to implement transparent processes and tools, as well as measures of surveillance to ensure that data would be treated properly in accordance with existing regulations. States were called on to strengthen a public culture that encouraged the transparent and ethical processing of personal data, and to increase levels of trust in public projects which involved personal data. Ms. Nougrères thanked Lithuania for accepting her request for a country visit, her first visit as Special Rapporteur. The report would be presented to the Council in March 2024.
Discussion
In the discussion, speakers said the development of new information technologies had allowed the improvement of communication, allowing the sharing of information on many topics, aiding with the freedom of expression and opinion, and enhancing civil society. The report noted that there were open questions with respect to the large amounts of health data of individuals that had been collected in the course of the COVID-19 pandemic, and speakers shared the Special Rapporteur’s call for the respect of the underlying principles of the right to privacy in the handling and processing of this data, stressing the importance of adequate legal safeguards with regard to the right to privacy when handling the increasing amount of data being collected.
It was the obligation of all States to ensure that the need to collect and analyse data in response to the COVID-19 pandemic or any potential future health crises was not used as a pretext for mass surveillance and the violation of an individual’s right to privacy. The scale of the COVID-19 pandemic had understandably prompted States to implement an emergency response to curb the spread of the virus. This meant that data was collected from millions of people worldwide. While these measures had the legitimate purpose to protect public health, the situation also showed the importance of respecting the right to privacy and the right to be forgotten. Even during a crisis, people should be able to trust public authorities to guarantee their right to privacy and to ensure that personal data was only collected, processed and archived fairly and securely, transparently, lawfully, under strict conditions, and for legitimate purposes.
All States should delete and anonymise data once it ceased to be useful for the purposes for which it was collected, and also build and consolidate public confidence in the programmes of public entities that involved the processing of personal data. To achieve this, States needed to promote the responsible and transparent collection and use of personal data and show compliance with the legal obligations established in personal data processing regulations.
The right to privacy and its abuses had become important themes in the relationship between tech companies and their users. Measures taken by national governments to digitally track individuals, groups or entire communities should not be discriminatory or inconsistent with their other obligations under international law. They should be strictly temporary and should be terminated once the public emergency threat of COVID-19 had subsided for that jurisdiction. It was also crucial for populations to have a legal right to redress from relevant parties when harm was caused as a result of - either data collected about them, or the way in which this data was collected, processed or used.
HRC23.028E