Philipp Schmidinger - Visiting Mechanisms to Eradicate Torture - A _Foucaultian Analysis

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VISITING MECHANISMS TO ERADICATE TORTURE: A

FOUCAULTIAN ANALYSIS

By

P H I L I P P S C H M I D I N G E R

Oxford Brookes University.

Department of Social Science and Law,

Headington Hill Hall, Oxford, OX3 0BP

e-mail: [email protected]

As published in:

P Schmidinger, ‘Visiting Mechanisms to Eradicate Torture: A Foucaultian Analysis’ (2010)

11(3) Human Rights Review 317.

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 thatinternational 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 practice 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.

K EYWORDS:

Foucault, Visiting Mechanisms, CAT, OPCAT,

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.



2

CONTENTS

VISITING MECHANISMS TO ERADICATE TORTURE: A FOUCAULTIAN ANALYSIS 1

ABSTRACT: 1

K EYWORDS: 1

ACKNOWLEDGEMENTS: 1

INTRODUCTION 3

FOUCAULT, THE POWER OF THE GAZE, AND THE STUDY OF VMS 5

THE CONVENTION AGAINST TORTURE 10

THE INQUIRY PROCEDURE 12

WHO VISITS? 14

WHAT IS VISITED? 14

WHAT IS RECORDED? 15

WHAT ARE THE CONSEQUENCES? 16

THE EFFECTIVENESS OF THE VM 16

THE OPTIONAL PROTOCOL 18

WHO VISITS? 23

WHAT IS VISITED? 23

WHAT IS RECORDED? 25

WHAT ARE THE CONSEQUENCES? 26

THE EFFECTIVENESS OF THE VM 27

CONCLUDING OBSERVATIONS 29

RECOMMENDATIONS 32

THE COMMITTEE 32

THE SPT 33



3

INTRODUCTION

Watching the end-credits of a movie, or a TV series, can be an intriguing exercise from a sociological perspective.

The whole array of names and companies is seldom read, and the display consequently appears somewhat

superfluous. Even if the viewer’s attention is directed toward the credits, the information is displayed far too briefly

to be fully absorbed. Yet, every now and then, a particular bit of information catches the viewer’s eye:

‘The American Humane Association monitored the animal action.

No animal was harmed in the making of this television program’.1

These two lines, seen but barely noticed so often, reveal much about human sociological behaviour and

mechanisms for social control. To start with, who actually has any idea what the “American Human Association”

is? 2

Who did the monitoring? What did they see? Why should we trust the Human Association any more than, for

example, the director of the production? Surely, he monitored as well? Indeed, as he is actually responsible for the

overall production, he ought to be in a much more authoritative position to make such a statement. After all, it

seems strangely implausible that the Human Association actually saw the production to a similar extent. It may

have supervised a number of scenes, but clearly cannot control all aspects of the production. And yet, it is clear that

a statement along the lines of “the director guarantees that no animals were harmed” would not suffice. Why?

Because he has a different function: conflicts of interests are predictable. The Humane Association, on the other

hand, has no other function than to supervise and certify that no animals were hurt. The purity of its mandate makes

the Humane Association much more credible than the, supposedly better informed, director would be. The

underpinning idea is simple: Person or organisation A watches person or organisation B to ensure the compliance

of the latter with a particular norm. Foucault describes this phenomenon as the ‘power of the gaze’,3 which works

on two levels: firstly, A will notice if B fails to honour the norm; secondly, as a corollary of this, B will have a

much higher incentive to follow the norm. This concept of social control exists on all levels of society, from the

family, via schools and factories all the way up to the complex operations of International Law.

At this global end of the scale, one of the latest examples of an application of this concept can be identified

in the Optional Protocol to the Convention against Torture (OPCAT).4 In order to implement the prohibition of

torture – legally enshrined in the Convention against Torture (CAT)5 and in Article Seven of the International

Convention on Civil and Political Rights (ICCPR)6 – OPCAT establishes the Subcommittee for Prevention (SPT),

an independent body of experts, mandated to undertake visits to states in general, and to places of detention in

particular, with a view to prevent torture. Like the Humane Association above, the SPT applies predominately the

‘the power of the gaze’ to achieve this. The term applied to describe mechanisms such as the SPT within this

article, is ‘Visiting Mechanism’ (VM).

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

2 To answer this questions see, Marie Belew Wheatley, American Humane TM (2007)

<http://www.americanhumane.org/site/PageServer?pagename=wh_mission> (last accessed 1/05/09).3 M Foucault, Discipline and Punish: the Birth of the Prison (Penguin Books, London 1977, reprinted 1991).

4 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).5 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).6 International Covenant on Civil and Political Rights (adopted 16 Dec 1966, entered into force 23 March 1976) 999 UNTS 171

(ICCPR).



4

While undefined under international law,7 it is submitted that VMs are common means for the

implementation of legal norms.8 Nevertheless, despite being commonplace in practice, they have only received

limited attention in the literature.9 In principle, for this study, a VM is understood as:

An independent body authorised under International Law to visit states with a view to implement a

particular normative set of laws.

VMs can be found across International Law,10

but particularly in the area of the treaty-founded prohibition of

torture, which is the focus of this article.11

Indeed, CAT, under Article 20, already establishes a VM in order to

implement its normative content. Furthermore, the European Convention for the Prevention of Torture (ECPT)

establishes a VM, the Committee for the Prevention of Torture (CPT), which in form and function is almost

identical to the newly founded SPT, except that it operates within a regional framework only.12

A panoply of

additional VMs exist under the UN-charter-based human rights machinery, but these will not be considered here.13

Instead, the purpose of this article is to examine the VMs under CAT and OPCAT with a view to examine

their relative effectiveness for the implementation of the torture-prohibition-norm. The focus is on systemic design

and the pragmatic implications thereof for effective operation of institutions, rather than on the normative details of

the law. Normatively this paper takes an abstract approach to torture – ie. it does not engage the question of

standards. At what exact point a particular set of actions classifies as ‘humane treatment’ or as ‘ill-treatment’ or

finally as ‘torture’, is of no concern here except for the fact that knowledge of such standards is a necessary

precondition for implementation. Communication of standards is consequently an integral aspect of systemic design

and, in this form, will be examined. Beyond such considerations, the question of normative standards is left for

others to determine.14

Analytically, this article applies a Foucaultian approach to international law, which will be further

outlined in the first main section below. The second main section will introduce CAT and its corresponding VM in

detail. The third main section will introduce OPCAT as well as the VM appertaining thereto, outlining how this

system differs from the one under CAT. Structurally, the second and third section follow an identical format: firstthey introduce the relevant treaty, before they set out to examine the work of the institutions established therein,

focusing on four pillars of investigation:

7 S Oeter, ‘Inspection in International Law: Monitoring compliance and the problem of implementation in international law’

(1997) 28 Neth. Y.B.Int’l L. 101, p.106.8 E Schaufelberger, ‘Identification of Best practices within National and International Visiting Mechanisms’, in Preventing

Torture in Places of Detention through Systems of Regular Visits (AM Jefferson et al. eds., RCT Conference

Proceedings, Copenhagen 2005).9 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). MD Evans and R Morgan, Preventing Torture, A Study of the European Convention for the

Prevention of Torture and Inhumane or Degrading Treatment or Punishment (Clarendon, Oxford 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, C Haenni (ed), Visits under Public International Law: Theory and Practice (Proceedings of

an APT Workshop, Geneva 2000); AM Jefferson and others (eds), Conference Report: Preventing Torture in Places of

Detention through Systems of Regular Visits - Monitoring, Documentation and Research (RCT, Copenhagen 2005); R

Murray and others, Conference Report: The Optional Protocol to the UNCAT - Preventive Mechanisms and Standards

(Bristol University, Bristol 2007).10

See for example, S Oeter, supra note 7, and C Haenni, supra note 9.11 See, MD Evans & C Haenni-Dale, ‘Preventing Torture? The Development of the Optional Protocol for the UN Convention

against torture’ (2004) 4 Human Rights Law Review 19. Also, MD Evans & R Morgan, supra note 9.12 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).13

For a wider discussion of Visiting Mechanisms, see, P Schmidinger, ‘Visiting Mechanisms to Implement Human Rights, or

Guerrilla Tactics in the Progressive Development of International Law’ (PhD Thesis, Oxford Brookes University,

forthcoming 2010). 14

For an interesting article discussing the question of standards, see, RA Posner, 'Torture, Terrorism, and Interrogation' in S

Levinson (ed) Torture: A Collection (Rev. edn, OUP, Oxford 2006) pp. 291-298.



5

•

Who visits?

• What is visited?

• What is recorded?

• What are the consequences?

The Concluding Observations will draw together the key findings of the analysis and forward the thesis that the

preventative ante hoc VM under OPCAT is the more effective design for the implementation of the torture-

prohibition-norm. Finally this article will forward a set of recommendations for both, the Committee Against

Torture and the Subcommittee for the Prevention of Torture, based on the Foucaultian analysis of this article.

FOUCAULT, THE POWER OF THE GAZE, AND THE STUDY OF VMS

Foucault’s work on the Panopticon and the disciplinary society, as outlined in Discipline and Punish (henceforth

D&P), has been an intellectual success story matched by few others. In one shelf alone, the Bodliean Library

displays approximately 4 m2 of solid book backs, all carrying the name Foucault in the title.

15 Yet, in the field of

international law his work is strangely absent. The notable exception to this is Hammer’s recent work, whichfocuses on the notions of legitimacy, power and knowledge in a fairly abstract, almost epistemological sense,

advocating that a Foucaultian approach to international law can provide ‘analytic devices … to better explicate

international law’.16

However, due to his abstract, philosophical perspective, Hammer largely ignores the more

pragmatic aspects of visibility and the ‘power of the gaze’ outlined in D&P. Yet, these are identified, by this author,

as a very fruitful intellectual background for the analysis of ‘systems’ to implement human rights. Indeed, it is

submitted, that Visiting Mechanisms (VMs) under international law, in ultima ratio constitute a type of surveillance

that is conceptually very similar to the ‘mechanisms’ described in D&P. As such, this article breaks new ground by

applying Foucault’s ideas to a critical, technical study of institutional mechanisms of international law.

Foucault is often read in a dystopian fashion, that in its darkest guises displays remarkable similarities to

Orwell’s earlier work, 1984.17 Indeed, the mere mention of surveillance often conjures up a dark and gloomy

picture in the mind of the audience. However, it is submitted that this is not necessarily the case. Foucault does not

describe the creation of an evil totalitarian society, but rather a historical transformation that occurred during the

enlightenment. Concededly, he writes a lot about ‘power’ and how it impinges upon the bodies of individuals; how

it subjects the individual to the gaze; how it corrects and punishes to create ‘docile bodies’. But underneath it all,

‘the man of modern humanism was born’.18

Indeed, D&P is essentially a phenomenological study delineating a

process of historical change, leading from a ‘society of the spectacle’ to a ‘disciplinary society’.

The first is epitomised in the public execution of the regicide Damiens, who, in 1757, was quartered after

having been subjected to horrendous public torture, involving inter alia the flesh being torn from his arms, thighs,

and breasts, with red-hot pincers, after which molten lead and burning sulphur is poured into the wounds.

19

Theremains of his body are finally burned and thrown into the wind. No evidence of his mere existence may remain.

15 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.16

LM Hammer, A Foucauldian Approach to International Law (Aldershot, Ashgate 2007) p 129. Also see, S Prozorov,

Foucault, Freedom and Sovereignty (Aldershot, Ashgate 2007) and B Golder, ‘Foucault and the Incompletion of Law’

(2008) 21 Leiden Journal of Int’l Law 747. Both pursue a similarly abstract and theoretical line of inquiry.17 G Orwell, Nineteen eighty-four (Penguin Books, Harmondsworth 1990). Also see, P Vaz and F Bruno, 'Types of Self-

Surveillance: from abnormality to individuals 'at risk'' 1(3) Surveillance and Society 272; D Lyon, Surveillance Society:

Monitoring Everyday Life (Issues in Society, Open University Press, Buckingham 2001); and, C Norris and G

Armstrong, The Maximum Surveillance Society: The rise of CCTV (Berg, Oxford 1999).18

M Foucault, Discipline and Punish: the Birth of the Prison (Penguin Books, London 1977, reprinted 1991) p. 141.(Hereinafter D&P).

19 Ibid., pp. 3-5.



6

This is the society of the spectacle, where power acts infrequently, but with excessive brutality, to ‘clamp down’ on

a largely lawless society. Where the centre wants to be seen by all, but rarely endeavours to look at the periphery. A

society of pompous kings celebrating fantastic feasts, and wandering vagabonds proud of their delinquent deeds.

Crimes are rarely investigated, but if they are, punishment is served in the most hideous fashion. The wrath of the

offended sovereign is laid down with boundless cruelty upon the criminal, who is to be eradicated from the face of

the earth.

The second, is epitomised by the timetable of a ‘young prisoner’s house in Paris’, which is characterised

by a high degree of order, structure, routine and hygiene: precise times for rising, work, meals, instructions,

praying, and even recreation.20

Every single minute of the prisoner’s days is meticulously planned and scheduled.

Nothing is left to chance. This is the disciplinary (Foucault also uses the terminology, ‘carceral’) society, in which

numerous mechanisms of discipline, render visible, observe, describe, analyse, stratify, and correct the individual to

create docile bodies. Individuals that are trained to display anticipatory norm-internalisation, through a process that

is strangely reminiscent of Pavlov’s dog experiments, or perhaps Huxley’s ‘Hypnopedia’.21

A process, where

‘power must act while concealing itself beneath the gentle force of nature’.22

‘A stupid despot may constrain his slaves with iron chains; but a true politician binds them even more

strongly by the chain of their own ideas; it is at the stable point of reason that he secures the end of the

chain; this link is all the stronger in that we do not know of what it is made of and believe it to be our

own work; despair and time eat away the bonds of iron and steel, but they are powerless against the

habitual union of ideas, they can only tighten it still more; and on the soft fibres of the brain is founded

the unshakable base of the soundest Empires’.23

Norm-internalisation in the disciplinary society is not so much based on severe punishment, or fear of the

individual, but rather on continuous and repeated practice, as well as hierarchical observation. That is not to say that

punishment is irrelevant, but it becomes less intense and less permanent. It seeks to correct, to guide, and to teach.

It is part of a wider process, in which countless apparatuses of discipline are integrated to form a common whole.

Apparatuses that observe, define, examine and judge; that form a disciplinary society in which a ‘real subjection is

born mechanically out of a fictitious relation’.24

The individual is entangled in a network of mechanisms,

surrounding all aspects of every person’s life, from cradle to deathbed.

All this may sound rather dystopian, but if contrasted to the brutality and arbitrary terror of the ‘society of

the spectacle’, it becomes clear that this is nonetheless progress, and that the enlightenment lays the foundation for

this evolution of society, which occurred within France – and other western states – in an astonishingly short

period. Less than a century separate Damiens’ execution from the timetable of the institute for young prisoners in

Paris. Evolution, indeed, because underneath it all, ‘we must hear the distant roar of battle’.25

Hence, this societal

transformation is by no means concluded. Foucault describes change. In the last analysis, he depicts the birth of the

modern state, exercising a continuous and effective jurisdiction throughout its territory. Instead of ruling througharbitrary and draconian terror, a new apparatus of power ensures that compliance with the law becomes ‘normal’,

and punishment can become gentle and enlightened. Foucault frequently employs the notion that ‘power’ becomes

20 Ibid., pp. 6-7.

21 D&P makes the link to ‘dressage’ at p. 136. The connection to the technique of ’Hypnopeadia’ described in A Huxley, Brave

New World: a Novel (Chatto & Windus, London 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.22 D&P, p. 106.23

Servan (1767), quoted in D&P, pp. 102/3.24 D&P, p. 202.

25 Ibid., p. 308.



7

‘lighter’. In D&P, he examines the phenomena that can be found during the classical age – particularly, though not

exclusively, in the penitentiary realm – with a view to elicit what caused this societal shift. He reveals the ideas and

practices that underpinned this process of enlightened transformation. This stands in sharp contrast to the –

arguably unjustified – dystopian apprehension of Foucault. His words may be dark, but his ideas are light. Hence a

positive, or at least, neutral reading, recognising power’s creative productive force, appears justified.26

Indeed, examining Foucault’s apparatuses of power can reveal inspiring insights for a critical study ofinternational mechanisms that continue this societal transformation beyond the limited confines of the sovereign

state. Mechanisms that attempt to spread the ideas of the enlightenment throughout the world, and into the last

prisons still displaying the dungeon-like qualities of a society of the spectacle. As aforementioned, it is this author’s

submission that VMs constitute entities, that by form and function, display remarkable similarities to the

mechanisms described by Foucault. Yet, because few ever make this link – presumably because of the dystopian

ideas commonly associated with his work – they fail to realise some of the productive suggestions that can be

drawn from D&P. Suggestions that may, very well, enhance the effectiveness of their struggle to implement human

rights on a global scale. Before the VMs examined in this article can be finally introduced, it will be necessary to

briefly unpack some of Foucault’s central themes, that are identified as essential for the overall analysis: The

panoptical principle, surveillance and supervision, punishment and hierarchical observation.

The Panopticon is probably the idea most commonly associated with Foucault, despite the fact that it was

actually the brainchild of Bentham, and is merely one of the

phenomena explored within D&P. In its original version, the

panopticon is a blueprint for the architectural design of prisons,

wherein the cells are strategically aligned in a circle around a

central tower in which the guard is located.27

The guard can see

all prisoners in their cells, but remains concealed himself. This

creates the impression upon the prisoners that they are always

visible. They can be seen, but cannot see. Neither the guard, nor

the other prisoners are visible to the individual inmates. The

prisoner is isolated and subjected to the power of the gaze, which

is maintained even if no guard were to sit in the central tower.28

All that is required is the ‘potential’ that the prisoner may be

seen. This arrangement of a mono-directional visibility is the core

of the panoptic principle. It suggests a type of surveillance that

enables a single guard to control a large number of prisoners.

26 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 JD Faubion

(ed), Power: Essential Works of Foucault 1954 - 1984 (Essential Works of Foucault, Penguine 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).27

See J Bentham, Panopticon; or, the Inspection-house: containing the idea of a new principle of construction applicable to any

sort of establishment, in which persons of any description are to be kept under inspection: and in particular to

penitentiary-houses, prisons (T. Payne, London 1791); J Bentham and T Payne, Panopticon: postscripts (Printed for T.

Payne, at the Mews-Gate, London 1791).28 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 18th

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.



8

It is, however, noteworthy that this principle is by no means limited to the confines of a prison, but equally

can be extended to other institutions, such as schools, factories and hospitals.29

In all of these, a small number of

experts control a much larger number of subjects through the power of the gaze. They supervise pupils, workers

and patients, respectively. The subjects are exposed to a field of visibility with the calculus that this will induce

compliant behaviour. Under the watchful panoptic eye, the pupil will read the mandatory texts; the worker will

carry out the instructions; and both, the patient as well as the prisoner will follow the prescribed daily routine

devised to ensure their ‘betterment’. As long as they are, or think they are, seen by their respective supervisor, the

individuals display normative behaviour – at least so the theory goes. Importantly, this implies that the observed

individual knows, or at the very least can anticipate, the expected norm. Otherwise ‘we would internalise the

power’s eye but we could not identify with its values’.30

Without such knowledge, the individual is either paralysed

to self-conscious dormancy, or has to resist and ignore the power of the gaze altogether. In any case, the individual

cannot display compliant behaviour, if it is ignorant about the expected norm. In this respect, the notions of

surveillance and supervision need to be decoupled now.

Foucault uses both terms fairly indiscriminately, and it is arguably the merit of D&P, to reveal the extent

to which these are interrelated and interact within the carceral continuum of a disciplinary society. Yet, there are

important differences. In surveillance, power acts from a position of concealment, while in supervision it acts in theopen. The prisoner cannot see the guard in the central tower, but the pupil can see the teacher in front of the class.

This entails that supervision is less permanent and more expensive than surveillance, but in return enables

communication. The teacher can point out failure of the student to comply with the expected norm. While the

prisoner in the panopticon displays ‘habitual anticipated conformity’ through self-surveillance,31

the pupil in the

school still learns conformist behaviour. Deviations need to be highlighted and corrected. Supervised repetition of

the correct behaviour by the student will then successively internalise the norm. Essentially this also implies that

under supervision new norms can be introduced, while this is harder under surveillance conditions.32

In the latter

scenario, the subject of the gaze must already be a docile body, while in the supervision scenario the individual is

still transformed into docility. The key methods to achieve this are punishment and hierarchical observation.

Punishment is one of the core themes of Foucault, which, presumably, is one of the main reasons for the

dystopian perception of his work. Yet, as aforementioned, he actually describes a process in which the types of

punishments become progressively less sever. Instead of deterrence, punishment is increasingly employed in order

to correct. This implies lighter forms of punishment, but at a much higher frequency. Ideally every deviation from

the norm needs to entail some kind of consequences. This particularly relevant for systems of supervision, where

the individual still learns compliance with the relevant norm. The ‘punishment’, in this respect, acts first and

foremost as a signifier of erroneous behaviour. It is not meant to harm, but to correct – which diverges drastically

from the form of punishment in the society of spectacle, where it was meant to make the delinquent suffer. This

aspect of punishment is increasingly lost within a disciplinary society. However, punishment is not the only method

to induce normative behaviour. At least equally important is the application of hierarchical observation.

At one point, Foucault describes a military school, in which different uniforms were employed to

encourage compliant behaviour with the expected standards.33

Good students, meaning those abiding by the rules

and fulfilling expectations, were allowed to wear nice colourful uniforms, while bad students, those that failed to

29 See D&P.

30 P Vaz & F Bruno, supra note 17, p. 276.

31 C Norris and G Armstrong, supra note 17, p. 6.

32 Admittedly, Bentham (supra note 27), 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.

33 Foucault, D&P, p. 181.



9

honour the norms and expectations, had to wear sack-linen. Thus, discipline is achieved not merely through

punishment of bad behaviour, but equally by reward of good behaviour. The classical carrot and stick approach.

Visual stratification through insignia is employed to induce compliance in this respect. It is submitted that this is an

aspect that arguably has significant potential for VMs, which, in the mind of this author, fail to utilise this to the

extent that they could. After all, following the act of observation, in Foucault’s carceral society, is that of analysis.

Information is not just gathered, but also structured, classified, and ranked. Lists, tables, graphs and plans are just as

essential for the rise of the disciplinary society, as prisons, schools, factories, and hospitals. Indeed, Foucualt

chooses a time-table as representative of the new age, to contrast it to Damien’s brutal execution.

‘A meticulous observation of detail, and at the same time a political awareness of these small things, for

the control and use of men, emerge throughout the classical age bearing with them a whole corpus of

methods and knowledge, descriptions, plans and data. And from such trifles, no doubt, the man of

modern humanism was born’.34

At this point, the reader may ask, what any of this has to do with international law? Where is the

connection between these microcosmic settings of individuals, and the macrocosmic setting of international law,

supposedly governing the interaction of states, not individuals? Surely states cannot go to school, or prison?However, the panoptic principle is not limited to the confines of a single building, but can be structurally expanded

to incorporate an entire city, or even a whole society. The art of such expansion lies in the design of multiple circles

of visibility within a hierarchy. Hence, the guard in the central tower is himself subject to frequent supervision by a

higher authority, which in turn will be subject to control by the next higher level within the system. Foucault,

depicts this very graphically in his analysis of a quarantine plan of a Seventeenth Century town, devised to counter

the arrival of the plague.35

All activity is frozen, the town becomes partitioned, segmented and “panopticised”. Movement is

restricted to a few, who supervise a defined segment, and report to the central administration. Everyone else is

prohibited from movement outside their houses, on pain of death. ‘This surveillance is based on a system of

permanent registration: reports from the syndic to the intendants, from the intendants to the magistrates or major’.36

Only the syndic is allowed to visit the individual houses, in which the inhabitants of the town are permanently

confined. ‘Everything that may be observed during the course of the visit - deaths, illnesses, complaints,

irregularities – is noted down and transmitted to the intendants and magistrates’.37

At this central point, all

information flows together, and only from this central point can new instructions, new norms, be issued. Faced with

the horror of the plague, the panoptic principle was imposed upon a complete town, essentially transforming it,

albeit temporarily, into a giant prison.

‘This enclosed, segmented space, observed at every point, in which the individuals are inserted in a

fixed place, in which the slightest movements are supervised, in which all events are recorded, in which

an uninterrupted work of writing links the centre and periphery, in which power is exercised withoutdivision, according to a continuous hierarchical figure, in which each individual is constantly located,

examined and distributed among the living beings, the sick and the dead – all this constitutes a compact

model of the disciplinary mechanism. The plague is met with order; … Against the plague, which is a

mixture, discipline brings into play its power, which is one of analysis’.38

34 Ibid., p 141.

35 Ibid., pp. 195-200.36

Ibid., p. 196.37 Ibid., p. 196.

38 Ibid., p. 197.



10

Against chaos, the panoptic principle offers order. Order, which, in this example, is admittedly bought at the

expense of an absolute dissolution of liberty, but which is nonetheless devised to ensure the maximum advantage

for the whole town. Power is still productive, rather than dystopian. More essentially, the order imposed rests

essentially on clarity and knowledge. The centre needs to know what happens in the periphery, in order to devise

the necessary responses, following careful analysis of the available information. After all, the magistrates need to

decide at which point the danger of the plague has passed: An indefinite close-down of the town is not a

conceivable option. Hence a continuous flow of information from the periphery towards the centre is necessary.

The visits by the syndic are essential in this respect, because they gather the necessary data for analysis by the

centre.

At this point, the relevance of the panoptic principle to the study of VMs becomes more discernable. Like

the syndics in this town, they are the links between the periphery and the centre. Instead of delivering the power of

the gaze through the architectural design of a prison, they deliver the same through the activity of visiting.

Nevertheless, the same principles, rules and structures apply. As such, Foucault’s analysis of the rise of the

disciplinary society can provide inspiration and guidance for the analysis of the mechanisms that are introduced in

the following sections.

THE CONVENTION AGAINST TORTURE

The Convention against Torture (CAT) is the core of the global legal system to outlaw torture and other cruel or

inhumane treatment.39

Although torture had already been prohibited under Article seven of the International

Convention on Civil and Political Rights, as well as in Article five of the, legally less permeating, Universal

Declaration on Human Rights, it was not until 1984, that the world was endowed with a specific and elaborate

treaty to ostracise a practice that prevailed – and still prevails – in many places.40

While the previous documents

had proscribed torture as part of the wider conceptual unity of human rights, CAT focuses explicitly on the practice

of torture, and prescribes measures to eradicate this phenomenon in its entirety. Hence, while the previous

instruments had merely pronounced the ‘norm’ that ‘no one shall be subjected to torture’, CAT deliberately dissects

this idea, and devises a ‘system’ to realise this de jure prohibition within the de facto reality on the ground.

For this purpose, CAT first sets out the rules of the game. Following a relatively clear definition of torture

in Article one, Articles Two to Sixteen, provide specific instructions for states to ensure that torture is not

committed within their jurisdiction, or that, if it occurs nevertheless, such instances are investigated promptly,

impartially and effectively. This section prescribes the actions and measures states are expected to take in order to

prevent torture form being perpetrated.41

CAT decrees inter alia that effective legislation has to be passed to

criminalise acts of torture;42

that any allegations have to be investigated;43

that statements extracted under torture

are legally inadmissible as evidence in front of courts;44

that no person shall be extradited to a country where he or

39 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, JH Burgers and H Danelius, The United Nations Convention

against Torture: a Handbook on the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or

Punishment (International studies in human rights, Nijhoff Dordrecht, London 1988); M Nowak, E McArthur and K

Buchinger, The United Nations Convention against Torture: A Commentary (Oxford commentaries on international law,

Oxford University Press, Oxford 2008).40

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, B Duner (ed), An end to Torture: Strategies

for its Eradication (Zed Books London 1981).41 CAT, Art. 2.42

CAT, Art. 4.43 CAT, Art.13.

44 CAT, Art. 15.



11

she may be subjected to torture;45

that all relevant rules and procedures – such as interrogation manuals – have to be

reviewed regularly;46

and that all staff have to be educated and trained with respect to the torture prohibition

norm.47

From a Foucaultian perspective, section one arguably equates to the timetable of the young prisoners’

institute in Paris. It provides clear guidance about what ‘conform behaviour’ actually means. It stipulates a routine

of ‘how’ to be good, leaving relatively little room for misinterpretations or other lacunae. States, party to CAT, are

issued with a very clear set of rules about what they should do.

Following these rules of the game, in Section II, the convention approaches the thorny issue of

implementation. Because the usual mechanism for the implementation of international law – reciprocity between

states – does not really take effect for human rights conventions, a new means for implementation had to be

devised.48

For that matter, Section II establishes a monitoring body, the Committee against torture, to oversee the

actions taken by states to attain the aspirations of CAT.49

If the first section equates to the timetable for the

prisoners, the second creates a panopticon by bureaucratic means. First states were told what to do, now they are

subjected to visibility, although admittedly in a somewhat distanced sense.

The Committee against Torture (henceforth the Committee) consists of ten experts who meet twice a year

for two weeks, and is ultimately charged with the responsibility to monitor whether the states, party to CAT, take

the necessary steps to effect the provisions of the convention.50 To achieve this, the Committee can rely on four

different procedures. The principle, and also the only non-derogative mechanism is the state-reporting procedure

under Article 19. A secondary procedure, and the main focus of this article, is the ‘inquiry’ procedure under Article

20, which states can opt out of through a special declaration. Two further procedures, the ‘inter-state-complaint

procedure’ and the ‘individual complaint procedure’ are provided for in Articles 21 and 22, but are subject to

explicit endorsement through a separate declaration.

Status of ratification for the different monitoring procedures under CAT51

Art. 19

State Reporting

Art. 20

Inquiry Procedure

Art. 21

Inter-state Complaint

Art. 22

Individual Complaint

No derogation possibleStates need to ‘opt out’

through Art. 28

States need to ‘opt in’

through a declaration

States need to ‘opt in’

through a declaration

Applicable to 146 states Applicable to 137 states Applicable to 60 states Applicable to 64 states

These four procedures are the tools the Committee has at its disposal to monitor the implementation of the

rules of the game. It is noteworthy, that these procedures also ultimately constitute the fullest extent of the legal

powers of the Committee. It has no other means to compel states to eradicate torture. The Committee is essentially

a ‘paper shuffle institution’,52

and these procedures, for the most part, constitute different pathways the paper takes

45 CAT, Art. 3.46

CAT, Art. 11.47

CAT, Art. 10.48

MN Shaw, International Law (5th edn, Cambridge University Press, Cambridge 2003) pp. 7 and 1013. Also see, F Parisi and

N Ghei, 'The Role of Reciprocity in International Law' (2003) 36(1) Cornell International Law Journal 93.49 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).50

See C Ingelse and United Nations Committee against Torture, The UN Committee Against Torture: An Assessment (Kluwer

Law International, London 2001).51 UN Doc A/64/44 (Report of the Committee against Torture, 2009 ) Annex I, II & III, (Accurate as of May 15, 2009).

52 PJ Flood, The Effectiveness of UN Human Rights Institutions (Praeger, London 1998) p. 35.



12

before eventually disappearing into a file-mountain at the United Nations.53

When examining their effectiveness

this should never be forgotten. If states do not even forward their reports under the Article 19 procedure, the

Committee can do little more than to express its ‘regret’.54

Yet, the fact that the various reports, findings,

summaries, declarations and recommendations ultimately disappear into an ever-growing file-mountain does not

necessarily mean that they have no effect whatsoever. The question is how much impact they can develop before

being terminally filed? Who is involved in compiling them? Whose eyes do they have to pass? What information is

included and how credible is it? This is the power the Committee has in order to combat torture, or more precisely

in order to encourage states to do so.

THE INQUIRY PROCEDURE

While most monitoring procedures under CAT are exclusively of a ‘paper-shuffle’ nature, the unique feature of the

inquiry procedure is that it establishes a visiting mechanism (VM). Under Article 20 of the convention and in

congruence with the relevant rules and procedures, the Committee can initiate a ‘country visit’, if it receives

‘reliable information which appears to it to contain well-founded indications that torture is systematically practised

in the territory of a State Party’.55

Yet, because the precise meaning of ‘systematically practiced’ is nowhere legally

enshrined, the Committee essentially set out it’s own definition in relation to the first inquiry initiated. Accordingly,

‘the Committee considers torture is practised systematically when it is apparent that the torture cases

reported have not occurred fortuitously in a particular place or at a particular time, but are seen to be

habitual, widespread and deliberate in at least a considerable part of the territory of the country in

question. Torture may in fact be of a systematic character without resulting from the direct intention of

a Government. It may be the consequence of factors which the Government has difficulty in controlling,

and its existence may indicate a discrepancy between policy as determined by the central Government

and its implementation by the local administration. Inadequate legislation which in practice allows room

for the use of torture may also add to the systematic nature of this practice’.56

Although this definition has been challenged as legally inadmissible, because the Committee would arguably lackthe necessary competence,

57 it has nonetheless been maintained as the foundation for all the inquiries executed so

far. Hence, if the Committee receives information that falls within this definition, it is entitled to instigate an

inquiry, in the course of which a ‘country visit’ may be executed. The actual VM is therefore just part of a wider

procedure that applies the following sequential steps.

53 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.54

UN Doc A/61/44, §§ 15, 17 (only 194 reports had been submitted while 192 were still overdue).55

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

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

§ 39.57

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.



13

Sequential order of the article 20 procedure 58

•

Committee receives information indicating torture is systematically practised in a Party State.

• Committee evaluates credibility of information (if not credible, procedure ends).

• Committee invites state to participate and submit observations in regards to this information.

• After re-evaluating the initial information in correlation with additional information submitted by the state

and any other relevant information available, the Committee may officially initiate an inquiry.

• One or two Members of the Committee are assigned to undertake this inquiry.

• As part of this inquiry, the Committee may request the state to consent to a visit to its territory; (average

visit circa 2 to 3 weeks).

• The Inquiry-Members visit and gather information.

• The Inquiry-Members report to the Committee.

• This Report is submitted to the State Party.

•

State Party submits comments and observations as well as responses that have been undertaken to the

Committee.

•

Committee in cooperation with State Party decides if the final report as well as the response by the state is published.

• If State Party objects to this, the Committee may, nonetheless, publish a summary account of the inquiry in

its annual Report to the General Assembly.

Moreover, any meetings and proceedings under the inquiry procedure are confidential and this VM is consequently

neither easily evaluated nor particularly well known.59

As of 2001, the Committee had devoted 93 closed meetings

to its activities under this procedure, and it can be established that, seven inquiries have been executed during the

last two decades.60

• Turkey (1990-1992)61

• Egypt (1991-1994)62

•

Peru (1995-1999)63

• Sri Lanka (1999-2002)64

•

Mexico (1998-2003)65

• Serbia and Montenegro (2000-2004)66

• Brazil (2002-2007)67

58 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.59 CAT, Art. 20 and rules 72 & 73, RoP. For a comparatively detailed examination of the first two inquiries carried out by the

Committee see, R Bank, 'Country Oriented Procedures under the Convention against Torture' in P Alston and J

Crawford (eds) The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, Cambridge 2000).60

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.61

UN Doc A/48/44/Add.1.62 UN Doc A/51/44 (Report of the Committee against Torture 1996) §§ 180-222.63

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.64

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.65

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, §§ 147-153.66 UN Doc A/59/44 (Report of the Committee against Torture 2004) §§ 156-240.

67 UN Doc CAT/C/39/2.



14

With the exception of the inquiry against Egypt, where the state authorities ignored – though not declined –

repeated requests for a visit, all inquiries did incorporate a visit to the territory of the corresponding state. However,

only the visits to Mexico and Brazil resulted in a published report, while in all other cases, merely a brief summary

of the proceedings were issued within the annual report of the Committee. While the following examination is

therefore heavily based on the two published reports, any extrapolated observations and conclusions have been

verified against the summary accounts pertaining to the other visits, and were further analysed in relation to the

reports and recommendations compiled under the public ‘state reporting procedure’.

WHO VISITS?

Visits were usually undertaken by two members of the Committee and lasted for two to three weeks.68

Each visiting

delegation was further supplemented with staff from the United Nations Office of the High Commissioner for

Human Rights (OHCHR), adding professional experience to the personal capacity of the Committee members.

While this personal capacity requirement for members of the Committee may ensure a certain level of

independence and neutrality, it is nevertheless bought at a price.69

They are inevitably engaged in other business

and can only dedicate a certain amount of time and energy to these visits. The fact that for both visits, to Mexico

and to Brazil, one of the initially designated members of the Committee had to be replaced at short notice, due to

personal reasons, is a stark reminder of this.70

The staff of the OHCHR, by comparison, can contribute a certain

degree of continuity and professionalism to the visits. The UN also provided the necessary interpreters to facilitate

communication. A medical expert to forensically examine prisoners for physical signs of torture also accompanied

the delegation to Brazil. A practice that is in line with the Istanbul Protocol – an instrument of soft law providing

guidance for the investigation of torture.71

The states, party to the convention, absorb all expenses of the

Committee, including the costs of these missions.72

WHAT IS VISITED?

Because all visits are subject to the consent of the relevant state, the rules of engagement had to be renegotiated for

each case. Notably, this requirement of prior negotiation entailed that both visits were initially postponed before afinal agreement had been reached.

73 Generally speaking, the conditions on which the Committee insisted were

broadly similar and could be summarised as the following.74

• Free movement throughout the territory.

• Access to all sites of interest, in particular to any places of detention.

• Access to any documents of interest.

• Private interviews with any relevant person (including prisoners, officials, and civilians such as NGO

representatives, witnesses, and relatives of detainees).

• Assurances that none of these would suffer harassment as a consequence of such interviews.

68 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.69

CAT, Art. 17 (1).70

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.71 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).72

CAT, Art. 17 (7).73

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.

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



15

In the end, these requirements were largely adhered to, and the delegations seem to have received a relatively high

level of cooperation from the respective authorities, once they were in the country. During their visit the delegations

engaged in a range of activities abridged in the table below.

Activities undertaken during the visits to Mexico and Brazil 75

Both visits also included an unspecified number of meetings with NGO representatives and members of civil

society. The fact that the delegation to Mexico operated with only one team of inquiry, while the delegation to

Brazil split itself to operate with two teams, may explain the higher number of activities for the latter visit, and

indicates that the Committee is working to enhance its efficiency.

WHAT IS RECORDED?

Stylistically, the reports for both visits are largely similar in structure and volume. They start by outlining the

procedure prior to the visit, describe the negotiations and the conditions for the visit, and then present their findings

according to the relevant sources: testimonies of victims, official sources and sources of civil society. Finally, they

outline their concluding observations and recommendations, which in format and style are also largely identical

with the recommendations that were published in the summary accounts for the four other visits.76

The reports, nevertheless, vary in some essential aspects, largely because of very different problems within

the respective country. While torture in Mexico is found to be largely the result of the need of inadequately trained

officials to obtain confession from detainees, in Brazil, torture is identified more as a result of overcrowded prisons

and aggression by overstrained guards. However, beyond such content differences, the reports also diverge on a

more subtle, presentational level. The report relating to Mexico is almost exclusively based on information

presented by ‘other sources’, such as state officials or NGO representatives. In contrast, the one for Brazil focuses

more on the situation as observed by the visitors. This is not to say that this report does not also rely substantially

on information submitted by other sources, but, in the last analysis, it presents a far more intuitive and descriptive

analysis of the situation on the ground, based both on information heard as well as on information seen. Arguably,

the first report is still closer to the usual ‘paper shuffle reports’ the Committee regularly deals with in relation to the

state reporting procedure, while the latter report displays more features of a designed VM, utilising the power of the

gaze.

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

76 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 59) makes a similar observation in his

comparison of the summary accounts of the Inquiry against Turkey and Egypt.

Visit to Mexico Visit to Brazil

Duration 21 days 16 days

Meetings with officials 30 50

Places of detention visited 9 28

Interviews with prisoners 91 Unspecified number

Forensic examinations - 19



16

In this respect, it is also worth comparing both reports to the ones compiled under the state reporting

procedure.77

Here it can be observed that the recommendations after a visit are far more detailed and sophisticated

than the ones that are based solely on written information submitted to the Committee in Geneva. For instance, the

very specific proposals for the restructuring of the internal police oversight through the system of the ‘ouivadorias’ ,

or the call for clearly defined temporal limitations to the interpretation of ‘ in flagrante’, are recommendations that

can only be found in the reports following visits. The recommendations issued for the same countries subsequent to

the Article 19 procedure, did not even touch upon such degree of specificity. Recommendations of this type require

a detailed understanding of the particular problems on the ground that simply cannot be acquired from reading

reports a thousand miles away in Geneva. Furthermore, because the visiting delegations encounter more members

of the respective ‘society’ (both private and public), they are confronted with more perspectives, potentially

enabling a better understanding of priorities. Hence, while many elements of a country’s penitentiary system may

be in need of improvement, the inquiry procedure has a better chance to identify those elements that, if modified,

are most likely to result in a significant improvement of the overall situation.

WHAT ARE THE CONSEQUENCES?

The consequences of visits by the Committee are fairly hard to gauge. The issued reports paint pictures of a

particular moment in time, and suggest ways to improve the situation. Whether or not these suggestion are actually

implemented on the ground remains largely at the discretion of the relevant states. If they chose to ignore them, the

Committee can do little else than to express its regret. The official responses published in relation to the two

examined visits were comparatively encouraging though, indicating that the authorities are indeed planning to

realise the proposed measures.78

However, whether this remains in the realm of platitudes or is actually translated

into concrete actions cannot be established with any degree of certainty here.

What can be determined, though, is that the potential for these recommendations to be implemented is

higher than for the recommendations resulting from the state reporting procedure. They are far more specific and

embrace local circumstances in a way that allows for immediate implementation. Because, they are not ‘one size

fits all’ solutions, but specifically tailored for the particular problems within the respective country, they can be

realised immediately. Straightforward internalisation is at least possible. Furthermore, because the corresponding

recommendations can also be introduced during the visit, in the formal and informal meetings with various

individuals, they may have a better chance of being accepted. In such a setting ideas can be insinuated and

consequently may meet less resistance than official recommendations issued within written communication. Such

effects are hard to measure, but they may nevertheless be of importance. In this sense, the inquiry procedure has a

higher probability to effect change, simply because it involves more individuals.

THE EFFECTIVENESS OF THE VM

To truly evaluate the effectiveness of this VM it would be necessary to establish whether the visit actually changed

anything on the ground. However, due to the ‘once in a lifetime’ character of these visits, this is not plausible. This

would require regular visits, monitoring the development within the country over time.79

The lack of such follow up

undermines the effectiveness of this VM substantially. Indeed, it is not very clear what purpose this mechanism is

supposed to serve in the first place. As it can only be triggered post hoc – after the Committee has already received

information indicating that systematic torture endures within a country – the VM can neither operate in a

77 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, § 120.78 See UN Doc CAT/C/75, §§ 223-236; and UN Doc CAT/C/39/2, §§ 197-387.

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

standards of this research.



17

preventative fashion, nor really as a general fact-finding mission to reveal unknown facts. At best, it can act as a

mechanism to verify an initial suspicion. Yet, if this suspicion is confirmed the Committee has very little further

recourse. It can neither instigate legal proceedings, nor punish the state in any other way. As a matter of law,

without the consent of the state, the Committee may not even publish its findings. Hence, as a disciplinary

mechanism for norm internalisation, the effectiveness of this VM is rather limited. This applies at the macroscopic

level of the state as much as on the microscopic level of the visited individuals.

Indeed, potential individual torturers are exceedingly unlikely to be deterred by this mechanism because

even detected transgressions will not to result in any serious consequences. In the worst case a couple of

inconvenient words in a seldom read report, which, if ignored by the relevant authorities, will eventually disappear

into an ever growing UN file mountain. The visited individuals will probably not even feel that they are subjected

to the power of the gaze. This is not really an inspection, but rather a ‘special occasion’ for which ‘special

preparations’ may be taken to detract from any deviating behaviour. Indeed, the delegation to Brazil frequently

indicated its suspicions, that guards had taken measures to present their prisons in a better light.80

That even then,

the observed conditions were judged to be appalling reveals the extent of the discrepancy between the standards of

the Committee and the standards on the ground.81

What is considered to constitute torture in a third world prison

may alter substantially from what the Committee in Geneva considers the same to be.

In this respect, this VM may actually be more of an instrument of training than of enforcement; of

supervision rather than surveillance. If schools instead of prisons are taken to be the analogy in Foucault’s carceral

society, this VM may actually deliver. The visit enables a much more realistic communication between the

Committee on the one hand, and the state-authorities on the other, based on the facts observed during the visit. The

Committee can point out deviations that the local authorities may not even have regarded as such. It can also

communicate clear, appropriate and applicable instructions towards the attainment of conform behaviour. As such,

the most significant effect of this VM is that it enables the Committee to gain a much better understanding of the

conditions on the ground. Yet, to truly internalise the torture prohibition norm within the visited state, repeated

supervised practice of conform behaviour would be necessary. And on this account, the panoptic system as

established under CAT clearly fails the Foucaultian examination of effectiveness.

However, this somewhat devastating assessment needs to be considered within a historical perspective.

After all, the inclusion of the VM under Article 20 of CAT, was one of the most controversial aspects during the

drafting process of the convention and, by corollary, the functional effectiveness of this mechanism was not

necessarily considered in such pragmatic detail.82

The aforementioned lack of a clear purpose of this VM may be

the most glaring result of this controversy, and the mere fact that the inquiry procedure was eventually included –

albeit in a somewhat ineffective form – can therefore be regarded as a success nevertheless. Indeed, if compared

solely to the state reporting procedure, the inquiry does enable the Committee to issue recommendations that

display at least more potential to become effective. Taking a historical perspective also reveals that when CAT was

eventually adopted in 1984, the proposals for an additional protocol to establish a functionally more coherent VMwere already on the table. Hence, the Article 20 procedure was in ultima ratio merely a forerunner for a future

80 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.’81

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, R Bank, 'Preventative measures against torture: an analysis of standards

set by the CPT, CAT, HRC and Special Rapporteur' in C Haenni (ed) 20 Ans Consacres a la Realisation d'une Idee

(APT, Geneve 1997).82

See MD Evans and C Haenni-Dale, 'Preventing Torture? The Development of the Optional Protocol for the UN Convention

against torture' (2004) 4 Human Rights Law Review 19, p. 21. Also see Burgers and Danelius, supra note 39.



18

protocol to supervise the implementation of the rules of the game through a system of regular preventative visits to

states.

THE OPTIONAL PROTOCOL

The first official proposal for an optional protocol to CAT was submitted to the UN Commission on Human Rights(henceforth Commission) by Costa Rica on 6 March 1980, four years before the actual convention against torture

was even adopted.83

This proposal suggested an international supervisory body that would have the authority to

visit any places of detention within the jurisdiction of the states party to this protocol, without the requirement of

further consent by the relevant state authorities. This draft was based on even earlier proposals that had been

compiled by a commission of private experts convened by Jaques Gautier, a Swiss banker and philanthropist, who

had advocated the utilisation of visits to places of detention as means to prevent torture since 1973.84

Thus, the idea

that underpins the Optional Protocol chronologically precedes the drafting and adoption of CAT.85

Nevertheless,

when Costa Rica submitted its initial proposal, it did so merely as ‘a basis for consideration … once the Convention

has been adopted’.86

Hence, it was already clear at the time that the international community was not yet ready for

such a proposal.

That this apprehension was indeed justified was revealed when, after CAT had been adopted in 1984, the

Commission appeared to have lost all further interest in the matter. In 1986 and 1989, the draft protocol emerged on

the agenda of the Commission again, but in both cases it was decided to postpone any further consideration.87

In the

meantime, the idea had been taken on by the Council of Europe, which, in 1987, adopted the European Convention

for the Prevention of Torture (ECPT) establishing the Committee for the Prevention of Torture (CPT), which is

charged with the inspection of prisons throughout Europe.88

Indeed, functionally the ECPT is almost identical to the

Costa Rican proposal, except for the geographical limitation. In the course of its existence, the CPT has carried out

272 visits to the 47 member states of the Council of Europe.89

Notably, the vast majority of these visits resulted in a

subsequent publication of the report of the CPT’s findings, as well as the official replies of the corresponding

national authorities.90

Hence, on the regional plane the idea of preventative visits by a supranational body of experts

has, at least procedurally, been a resounding success story.91

83 UN Doc E/CN.4/1409.

84 MD Evans, 'The Origins and Drafting of the ECPT: A Salutary Lesson?' in C Haenni (ed) 20 Ans Consacres a la Realisation

d'une Idee (APT, Geneve 1997) at 85; Evans and Haenni-Dale, supra note 82.85

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/32/62.86

UN Doc E/CN.4/1409, Introductory note by the Secretary-General.87 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/1989/20.88 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, supra note 9; MD Evans and R Morgan, 'The European

Convention for the Prevention of Torture: Operational Practice' (1992) 41 International and Comparative Law Quarterly

590; MD Evans and R Morgan, 'The European Convention for the Prevention of Torture: 1992-1997' (1997) 46

International and Comparative Law Quarterly 663; R Morgan and MD Evans, Protecting Prisoners: the Standards of

the European Committee for the Prevention of Torture in Context (Oxford University Press, Oxford 1999).89 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.90

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).

91 Regarding substance rather than process – ie. the question whether the ECPT did actually reduce the instances of torturethroughout Europe – at least Morgan and Evan’s assessment is, that this is only achieved partially. See Morgan and

Evans, supra note 9.



19

Yet, despite this regional success, progress on the international plane was exceedingly protracted and

incremental. After the referral in 1989,92

Costa Rica decided to revise its initial proposal for the next scheduled

review in 1991,93

when the Commission decided that states would require yet another year to study these

proposals.94

In 1992, the Commission eventually, established an ‘open-ended intersessional working group’ to

elaborate a draft optional protocol to CAT, based on the revised Costa Rican proposal.95

Over the course of the next

ten years, this working group would meet annually for the duration of two weeks, and, with the patience that only a

UN body can display, discuss the pros and cons of specific words within the proposal.96

Indeed, until 2001, any

deliberated changes to the actual text were arguably of cosmetic nature only.97

Then, at the ninth session, Mexico

suddenly came up with a fundamentally different proposal, which, more or less, dumped the international VM in

favour of the obligation on states to establish independent national mechanisms to regularly visit places of

detention.98

This precipitated a counter proposal by Sweden,99

as well as informal intersessional consultations by

the Chairperson of the working group, Ms. Elizabeth Odio Benito, over the succeeding year.100

Given this sudden

state of hullabaloo, it is perhaps surprising that at the end of the tenth session, on 24 January 2002, the working

group did at long last agree on a draft proposal for submission to Commission. This comprised a synthesis of the

essential core conceptions of both the Costa Rican and the Mexican proposals, and had been drafted by the Chair,

following consultation with the interested parties.

Although briefly threatened by a ‘no action motion’ by Cuba,101

the Commission duly adopted this draft

Optional Protocol to the Convention Against Torture (henceforth OPCAT) on 22 April 2002. This was followed by

consecutive adoption in the Economic and Social Council,102

and by the General Assembly on 18 December of the

same year.103

OPCAT was formerly opened for signature on 4 February 2003, and received its first signatures by

Costa Rica and Senegal on the same day. On 1 October 2003, Albania’s accession to OPCAT was the first legally

binding commitment, followed by the UK’s ratification on 10 December.104

Less than three years later, with the

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

93

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

interpretation.94

UNCHR Decision 1991/107 (5 March 1991), in UN Doc E/CN.4/1991/91 – E/1991/22.95 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).96 See UN Docs: E/CN.4/1993/28 (1st meeting, 19 to 30 Oct 1992); E/CN.4/1994/25 (2nd meeting, 25 Oct to 5 Nov 1993);

E/CN.4/1995/38 (3rd

meeting, 17 to 28 Oct 1994); E/CN.4/1996/28 (4th

meeting, 30 Oct to 10 Nov 1995);

E/CN.4/1997/33 (5th


meeting, 13 to 24 Oct 1997); E/CN.4/1999/59

(7th

meeting, 28 Sep to 9 Oct 1998); E/CN.4/2000/58 (8th


meeting, 12

to 23 Feb 2001); E/CN.4/2002/78 (10th

meeting, 14 to 25 Jan 2002).97

Although, Evans and Haenni-Dale, supra note 82, 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 2001.98

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).99 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.100

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).101 See, UN Doc E/CN.4/2002/SR.50.102

ECOSOC Resolution 2002/27 (24 July 2002), in UN Doc E/2002/INF/2/Add.2.103

GA Resolution 57/199 (18 December 2002) UN Doc A/RES/57/199.104 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=100613791507562631991.000

470e0c33154b10a87fhttp://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.



20

Bolivian ratification,105

the required 20 legally binding commitments for entry into force had been reached. In

accordance with Article 28, the protocol became legally effective thirty days later, on 22 June 2006. As of August

2009, OPCAT has 63 signatories and 49 parties.106

Structurally, the two proposals of Costa Rica and Mexico are clearly discernable in the text of OPCAT. It

establishes both, a supranational body – the Subcommittee for Prevention (henceforth SPT) – and the obligation for

states to create their own National Preventative Mechanisms (henceforth NPMs).107

As such, the synthesis of theChairperson combined the strong elements of both proposals without the corresponding concessions regarding the

other side of the argument. The SPT has wide ranging competences as well as almost unrestricted access-rights for

its visits,108

and the NPMs are designed to visit all places of detention with a comparatively high frequency.109

Both

are also endowed with a clearly defined purpose, namely the ‘prevention’ of torture.110

Concededly, there are some

provisions that allow states to postpone visits by the SPT to certain places in cases of riots or other dire

emergencies, but such limitations must be of temporary character only.111

Sooner or later, states are obliged to open

all their prisons – and other similar facilities112

– to the scrutiny by the NPMs and the SPT.

Furthermore, these entities, in a deliberately loose understanding, are to be brought into relation with each

other, with the SPT having – at least on paper – a special fund at its disposal to support the implementation of its

recommendations.113 Hence, at least from a highly abstract perspective, the system established by OPCAT suggests

that the NPMs do not only report to their national authorities – from which they are legally supposed to be

independent114

– but are also closely intertwined with the SPT. The degree to which these two levels can cooperate

harmoniously for the common cause may very well determine how effective the overall system established by

OPCAT can be in the long run.

If the SPT, as supranational supervisory body, succeeds to utilize the NPMs as its own national arm within

the territories of the states, the system could operate very effectively as this would counter the limitations of the

SPT in regard to the number of visits it can realistically execute. Many little mechanisms can visit more often than

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).105 Bolivia ratified OPCAT on 23 May 2006.106

See United Nations Treaty Collection, '9.b. Optional Protocol: Ratifications and Reservations' supra note 104.107

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).108

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.109 OPCAT, Art. 19 & 20.110

OPCAT, Art. 1.111

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).112

The exact specification of what is counted as a place of detention is spelled out in OPCAT Art. 4.113 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 form 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 arms length relationship with the Fund in order to distinguish its role as anindependent preventative mechanism from the funding of implementation of its recommendations’.

114 OPCAT, Art. 18.



21

one overarching body charged with monitoring currently 49 states, while operating within a limited budget.115

The

NPMs, in this scenario, would act as extended eyes of the SPT, enhancing the panoptic quality of the overal l

system.

If, on the other hand, the NPMs turn out to be pro forma institutions, closely aligned with their respective

national governments, the system will be less effective, because their panoptic value would practically disappear,

and their alleged observations could be utilized by states to contradict the findings of the SPT. However, becausethe phrasing of what exactly constitutes an NPM is deliberately vague, only time can tell towards which side of this

equation reality will tilt. For the time being, and because of the high degree of national specificity of NPMs, the

analytic focus of this article will be on the operations of the SPT.116

In principle, the SPT is a body very similar to the Committee, consisting of 10 independent experts

meeting at Geneva for one week, three times a year. Because at least one of the meetings of the SPT has to coincide

with a meeting of the Committee, perhaps unfortunately, no individual expert can simultaneously serve on both

bodies.117

The SPT is guided by the principles of confidentiality and cooperation, and its meetings consequently

occur behind closed doors.118

Its annual reports, focusing on the procedural rather than substantive issues, are

nevertheless available in the public domain.119

However, while the bulk of the Committee’s work occurs during its meetings in Geneva, this differs for

the SPT. It’s prime responsibility is to visit states, and especially places of detention within them, during the period

between its meetings. Therefore, the SPT operates throughout the year, and the meetings in Geneva primarily serve

as a platform to coordinate the work of its members and to adopt the post visit reports. In this respect, the

operations of the SPT are far more akin to the work of the CPT than to that of the Committee. While the latter

functions predominately as a ‘paper shuffle institution’, reviewing reports submitted by other actors and only

infrequently visiting a country, the SPT, like the CPT, focuses exclusively on the implementation of the torture

prohibition norm through the activity of visits. The fact that three of the first ten members of the SPT have

previously served on the CPT further reveals the extent to which the former influences the latter.120

From a Foucaultian perspective, OPCAT is solely dedicated to create panoptic supervisory bodies (both

SPT and NPMs fall into this category) to scrutinise prisons throughout the world. Notably, the torture prohibition

115 In regards to the budgetary question see, UN Doc CAT/C/40/2 (1 st 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).116

For an interesting article regarding structure and types of NPMs see, R Murray, 'National preventive mechanisms under the

Optional Protocol to the Torture Convention: one size does not fit all' (2008) 26 (4) Netherlands Quarterly of Human

Rights 485.117

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.118

OPCAT, Art. 2(3) and Art. 16.119 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).120 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 2 additional candidates.



22

norm is merely reiterated in the preamble, and the substantive sections are exclusively devoted to create institutions

to supervise the implementation of this norm. The rules of the game in relation to the torture prohibition are

supposedly already known to the states, as they have to be a party to CAT before they can sign up to OPCAT.121

Hence the whole purpose of this instrument of international law is to subject states in general, and prisons in

particular, to the power of the gaze. To transform the dark and obscure dungeons of the society of the spectacle into

well lit panopticons. To reveal what was previously hidden, albeit, due to the confidentiality rules, only to the

supervisory bodies.122

Publication of any reports following the visits by the SPT is still subject to the approval of

the visited state, which, so far, has been given in two out of six cases.123

The visits of the SPT (Feb 2007 to May 2009)124

Compared to the experience of the CPT, two published reports for six visits seems low, but states may simply

require time for review, and the remaining reports might follow in due course. Be that as it may, the following

examination of the SPT visits consequently rests substantially on the two published reports, but has been

supplemented with available information regarding the remaining visits and, especially for the evaluation of the

consequences, the experience of the CPT.125

121

Interestingly enough though, they do not technically have to be a party to the ICCPR (the oldest human rights treaty to, interalia, 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).122 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).123

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.1.124 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).125

The specific reports examined in this respect, were a series of reports relating to the CPT’s visits to Lativia 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 visist,

25 Sep to 4 Oct 2002); [CPT/Inf (2008) 15] ( Ad hoc visit focused on follow up of recommendations, 5 to 12 May 2004).

CountryDates & Duration of

visit

Number of SPT

members visiting

Number of detention

facilities visited

Number of

officials met

Mauritius8 to 18 Oct 07

(10 days)6 21 At least 4

Maldives10 to 17 Dec 07

(7 days) 6 21 33 + 2 UNDP

Sweden10 to 14 Mar 08

(4 days)3 8 44

Benin17 to 26 May 08

(9 days)5 14 Unknown

Mexico27 Aug to 12 Sep 08


Paraguay10 to 16 Mar 09




23

WHO VISITS?

The first visits displayed a certain fluctuation regarding the composition of the delegations sent, varying between 3

to 6 SPT members,126

but eventually the SPT settled on 4 members per visit as the ‘assumed requirement’.127

The

text of OPCAT, stipulates that each visit has to be executed by ‘at least two members’.128

Prior to their visits, the

members of the SPT also received specific training, supplied by the International Committee of the Red Cross,

which has extensive experience in the field of VMs.

129

The delegations were further supplemented with externalexperts, and members of the Secretariat, constituted by the Office of the High Commissioner for Human Rights

(OHCHR). While these, theoretically, should supply continuous professional expertise to the visits, this seems not

to be the case, because, so far, all visits were accompanied by different staff of the OHCHR, ‘with no experience of,

or training for, SPT visits’.130

Similarly, the envisaged roster of external experts is not yet in place, and owing to

budgetary restraints, on occasion, only one expert could accompany the delegation.131

This is regrettable, because

such external experts are valuable components of the delegations, providing ‘a diversity of perspectives and

professional expertise to complement’ the – mostly legal – expertise of the SPT members.132

Importantly, they can

deliver forensic examinations of prisoners, and thereby increase the credibility of the overall findings through

scientific evidence.133

Combined with the legal experience of the SPT members, this enables an authentic and

highly persuasive evaluation of the situation on the ground.

WHAT IS VISITED?

In contrast to the inquiry procedure of the Committee, visits by the SPT are not subject to negotiation with the

relevant states. By virtue of ratification, states permanently consent to receive the SPT whenever the latter can

afford to visit. Consequently, it makes sense to briefly examine the potential geographic outreach of the SPT.134

This reveals that the majority of countries (26 out of 49) that have legally committed themselves to OPCAT so far,

are from Europe and therefore already subject to regular visits by the CPT. If these countries are taken out of the

equation, the SPT can visit twelve countries in Latin America,135

five in Africa,136

three in the Far East,137

two in

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).

For the UK, the following reports were examined: [CPT/Inf (2002) 6] (Fourth periodic visit, 4 to 16 Feb 2001); [CPT/Inf

(2003) 18] ( Ad hoc visit focused on the anti-terrorism operations, 17 to 21 Feb 2002); [CPT/Inf (2005) 1] (Fifth periodic

visit focused on the Isle of Man, 12 to 23 May 2003); [CPT/Inf (2005) 10] ( Ad hoc visit focused on the anti-terrorism

operations, 14 to 19 Mar 2004); [CPT/Inf (2006) 26] ( Ad hoc visit focused on the anti-terrorism operations &

deportations of immigrants, 11 to 15 Jul 2005); [CPT/Inf (2006) 28] ( Ad hoc visit focused on the anti-terrorism

operations & deportations of immigrants, 20 to 25 Nov 2005); [CPT/Inf (2008) 27] ( Ad hoc visit focused on ICTY

prisoners [section not published] & anti-terrorism operations, 2 to 6 Dec 2007). The corresponding government

responses: [CPT/Inf (2002) 7] (Feb 2001 periodic visit); [CPT/Inf (2003) 19] (Feb 2002 ad hoc visit); [CPT/Inf (2005)

2] (May 2003 periodic visit); [CPT/Inf (2005) 11] (Mar 2004 ad hoc visit); [CPT/Inf (2006) 27] (Jul 2005 ad hoc visit);

[CPT/Inf (2006) 29] (Nov 2005 ad hoc visit); [CPT/Inf (2008) 28] (Dec 2007 ad hoc visit).126

See table above.127

UN Doc CAT/C/42/2, § 71.128 OPCAT, Art. 13(3).129

UN Doc CAT/C/40/2, § 62.130

UN Doc CAT/C/42/2, § 66.131 Ibid., § 30.132

Ibid., § 30.133

That the reports issued subsequent to visits, make only very limited reference to these experts and their work, unfortunately,

somewhat undermines this argument.134

See, P Schmidinger, 'OPCAT: Evolution over Time and Space' (2009) Googlemaps

<http://maps.google.co.uk/maps/ms?msa=0&msid=100613791507562631991.000470e0c33154b10a87f&cd=20&geoco

de=FTXWUwMd09yUAA&hl=en&ie=UTF8&ll=11.178402,26.367188&spn=135.886526,291.796875&z=2&mid=125

1802080> (last accessed 01/09/09).135

Argentina, Bolivia, Brazil, Chile, Costa Rica, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru, and Uruguay.136 Benin, Liberia, Mali, Mauritius, and Senegal.

137 Cambodia, Maldives, and New Zealand.



24

Central Asia,138

and one in the Middle East.139

Taking signature as indication of future ratification, Africa is the

area most likely to increase this number in the future.140

Out of this pool, the first three visited countries – Mauritius, the Maldives and Sweden – were, in

accordance with Article 13 (1), drawn by the lot.141

Subsequently, the SPT decided to apply a ‘reasoned process’,

considering inter alia, size and ‘complexity’ of the state visited (presumably referring to aspects, such as federal vs

centralist constitution), ‘specific or urgent issues’, and ‘regional preventative monitoring in operation’.142

As such,the region with the most ratifications so far, is rather unlikely to be visited much at all. This ‘reasoned process’

should also alleviate the fear of some authors, that a random selection of countries would be ‘short of ideal’ because

the SPT may not be able to visit human rights hotspots and its work could therefore be ‘inappropriately focused’.143

Yet, from a Foucaultian perspective, it is submitted that – after cancelling factors like regional duplication out of

the equation – a preventative mechanism that aims at long-term norm internalisation through repetition, is best

served by a random selection. After all, to focus on hotspots implies that these are already known. A random nature

of visits, by comparison, will ensure that even those states that consider themselves above public suspicion will be

subjected to the power of the gaze. The risk of being visited is distributed equally amongst all states, thereby

ensuring the maximum panoptic potential. All may be seen at any time.

Leaving the global perspective, and focusing on the specifics of an individual visit, the activities of the

SPT are largely similar to those of the Committee. Importantly, the conditions that the latter had to negotiate for are

now permanently enshrined in positive law. Hence, states are obliged to guarantee freedom of movement, access to

all relevant facilities and information, and private interviews with anyone of interest to the SPT.144

Furthermore, the

definition of places of detention is deliberately broad,145

and the SPT has regularly visited locations such as ‘police

stations’, ‘detoxification centres’ and ‘psychiatric hospitals’. In addition to such facilities, the SPT also routinely

met with relevant individuals, such as state officials, NGO representatives, witnesses, and general members of civil

society. So far, states have procedurally complied with these rules and the SPT noted a generally high level of

cooperation during visits.

Perhaps the most outstanding operational difference to the visits by the Committee, are the specialrelationships the SPT is building with the NPMs. Indeed, the first visits were as much focused on the development

of the NPMs as they were on inspecting actual places of detention, provided states had already established or

designated their NPMs. 146

For instance, in Benin, that had not yet occurred at the time of the SPT visit.147

Wherever an NPM existed, the SPT engaged in detailed discussion with the designated individual(s) to ensure that

the mechanisms could work effectively. The SPT listened to the NPMs’ concerns and advocated on their behalf

towards the relevant state authorities. Indeed, this concern about the specification, competences and quality of the

NPMs is also clearly discernable in the reports of the visits.

138 Kazakhstan and Kyrgyzstan.

139 Lebanon.

140 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.141 That these countries were indeed drawn by the lot was further asseverated in UN Doc CAT/C/40/2, §§ 14, 19 & 31.142

See UN Doc CAT/C/40/2 at § 14 and UN Doc CAT/C/42/2, §14.143

Evans and Haenni-Dale, supra note 82, p. 45.144 OPCAT, Art. 14.145

OPCAT, Art. 4.146 UN Doc CAT/C/40/2, § 18.

147 UN Doc CAT/C/42/2, § 38.



25

WHAT IS RECORDED?

Compared to the reports by the Committee, those by the SPT are not distinctly encouraging. While generally

providing good depictions of the material conditions found in the respective country, the recommendation sections

are expansive and confusing. This is profoundly perplexing particularly in relation to the report pertaining to

Sweden, which in the main body, inter alia, states:

‘The SPT welcomes the fact that the delegation did not receive any allegations of ill-treatment by the

police at the time of apprehension or during interrogations. There were no allegations of ill-treatment by

staff during the time in custody either. The detainees generally referred to a correct and professional

approach and attitude on the part of police officers, investigators and wardens, the only exception being

a few complaints of use of harsh language by staff in some police stations’.148

Nevertheless, the SPT then continues to issue a set of recommendations that is as voluminous as the ones

that were forwarded by the Committee to states in which torture was systematically practiced.149

Neither the fact

that many of these supposed recommendations are de facto requests for information rather than suggestions for

improvement, nor that they are often combined with a ‘the SPT welcomes’ clause, can distract from this strangely

alienating presentation, which mostly achieves its volume by unnecessary repetition. The recommendation that

prisoners should be informed of their rights in writing, for instance, is effectively forwarded in no less than six

consecutive paragraphs, one of which actually welcomes existing efforts by the Swedish authorities to implement

this. While repetition is an important aspect of disciplinary norm internalisation, it ought to occur over time, not on

one page. The reason for this perturbing style is, presumably, that all recommendations are copied and pasted from

the main text of the reports, and then reassembled without context at the end.

In the report concerning the Maldives, this reporting style resulted in some remarkably unintelligible

recommendations, such as:

‘The SPT recommends that medical doctors, after appropriate training, should be involved in these

responsibilities’.150

No reference to what ‘these responsibilities’ refer to is offered in the recommendation section.

‘The SPT recommends that the number of calls be increased bearing in mind the age of the children

placed in that Centre’.151

Without finding the relevant section in the main text, it remains impossible to decipher which ‘children’ in which

‘Centre’ this recommendation actually alludes to, nor is it entirely obvious that, ‘the number of calls’, refers to

phone calls to their parents.

148 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).149 28 recommendations were issued to Sweden. By comparison, the Committee report to Mexico contained 11

recommendations, and the one to Brazil forwarded 29.150

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.

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

a month.



26

If the volume of recommendations in the report relating to Sweden was perplexing, in the one pertaining to

the Maldives it is simply overwhelming. Almost 100 supposed recommendations are forwarded, ranging from

suggestions to review certain legislation (or all legislation), to specific adjustments of particular institutions –

without necessarily clarifying which particular institutions. Highly generic proposals are mixed with very specific

recommendations, loosely distributed in between mere observations of facts and requests for further information.

This apparent attempt to address everything at once, strikes this author as somewhat counter-productive. A more

targeted approach, identifying the most pressing issues and working with the authorities – in the spirit of

cooperation – on specific policies, one at a time, may in the long run yield more effective results. In the current

format, the recommendations are more likely to induce resignation than activity by the addressed state officials.

Indeed, the reply by Sweden – so far, the Maldives did not forward any response to their report – corroborates this

diagnosis.

WHAT ARE THE CONSEQUENCES?

On the plus side, the much reiterated recommendation that prisoners should be informed in writing about their

rights has been implemented by Sweden – in no less than 40 different languages.152

However, seeing that the

authorities were already working on this at the time of the SPT visit, it seems overly optimistic to count this as a

direct consequence. On the other hand, the recommendations to adjust the NPMs were rejected with the following

statement:

‘It is still the view of the Government that the roles and tasks of these two institutions fit well with the

role of the NPMs as laid down in the Optional Protocol’.153

At other points, the reply rejects findings as based on inappropriate sources,154

or dismisses observations with

reference to relative international comparison.155

Requests for clarifications or information are answered, albeit, in

an intriguingly diplomatic fashion hiding the actual information in between the lines.156

Overall, while there can be

no doubt that the Swedish authorities perused the SPT report, the reply reads as quite defensive and annoyed, rather

than displaying the hallmarks of a fruitful and cooperative dialogue. Hence, in ultima ratio, it seems unlikely thatthe SPT report precipitated action by the Swedish authorities that would change anything in relation to prisoners

and their treatment. Instead, they entered into a reluctant process of exchanging communications. Considering that

Sweden is an unlikely candidate to stand out for animosity towards human rights, this discernible reluctance should

probably tell the SPT something about its own approach, rather than about the attitude of the visited country.

Taking a more long-term perspective, by examining series of CPT reports and replies, reveals that ‘visits

by international mechanisms and existing national ones have not been able to prevent ill-treatment’.157

In relation to

Latvia, for instance, the CPT stated that the implementation efforts by the government were a ‘near-total failure’

152 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.153

UN Doc CAT/OP/SWE/Add.1, § 3.154

Ibid., §§ 14 & 26.155 Ibid., § 23.156

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.157

HD Petersen, 'Medical work within the OPCAT with a specific focus on routine medical examinations by doctors working in

detention centres', in R Murray and others (eds), Conference Report: The Optional Protocol to the UNCAT - Preventive Mechanisms and Standards (Bristol University, Bristol 2007). Petersen is a former member of the CPT and currently

serves on the SPT.



27

and that information provided was ‘repeatedly incorrect’.158

That the Latvian government, nevertheless,

subsequently requested the CPT to publish these reports is somewhat surprising and arguably indicates that states

don’t fear further consequences. Failure to comply on substance will result in an inconvenient report that hardly

anyone will read. Similarly, the UK – subjected to annual visits by the CPT since 2001 – appears to have very little

difficulty in refuting any observations or recommendations regarding its anti-terrorism policies. In 2007, it literally

refused to only accept any of the recommendations by the CPT, and instead forwarded – concededly creative –

justifications why the current practices will be maintained.159

Indeed, the communications between CPT and the

UK, figuratively quite reminiscent of a ping-pong match, do not indicate that a CPT report would actually have any

consequences other than an FCO official being commissioned to write a reply.160

And, judging by the style and

content of these replies, few of them seem particularly happy about this. That they would endeavour to engage

other state officials to take the necessary steps to change things in relation to prisons and detention centres, seems

implausible. Hence, unless the visiting delegations are actually far more diplomatically and psychologically skilled

during their visits than when writing their reports, it has to be concluded that the consequences of visits by SPT and

CPT remain mostly words.

THE EFFECTIVENESS OF THE VM

This conclusion regarding the consequences is disappointing, because, from a Foucaultian perspective, OPCAT

devises a system that has enormous potential. A multilayered network of supervision that should ensure that both,

low-level prison officials and high-level state officials, are subjected to the power of the gaze. On the one hand, the

NPMs should visit prisons often enough to secure compliance at the level of prison guards and police officers. The

SPT, on the other hand, should ensure that this is equally valid for high-level state officials, while simultaneously

monitoring the effective functioning of the NPMs. Individual prisons as well as the wider penitentiary policies of

the states are subjected to sustained scrutiny. All are aware that they are visible.

However, there are practically no consequences for deviation. Hence, while the system is effective at

detecting violations of international standards, this entails no effective punishment: neither for any individual

torturer, nor for the state as a whole. Ultimately the worst consequence the SPT can initiate is to request the

Committee to publish a state’s failure to comply.161

Hence, in ultima ratio, both VMs mechanically trigger the same

punitive sanction for non-compliance: an inconvenient report in the UN file mountain. In this respect, both systems

are practically identical.

Yet, in contrast to the visits by the Committee, the repetition of visits by the SPT should enable this body

to evaluate ‘change’ over time. While the financial restraints under which the SPT has to operate concededly limit

this potential, it is still significantly greater in the system under OPCAT than in the system under CAT. While the

Committee could merely paint a picture, the SPT can successively produce a movie – many consecutive pictures.

This should reveal whether the situation in any given country improves or deteriorates. The SPT can gather

information over time, building up a pool of experience, progressively enabling itself to evaluate not only which

national policies work better than others, but also which SPT recommendations work better than others. In a

Foucaultian sense, it could experiment with sets of actions, issuing different types of recommendations and

evaluating the resulting effects within the different countries. Through a meticulous observation of detail, combined

158 [CPT/Inf (2008) 15], § 7 & 19.159

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.160

FCO stands for Foreign and Commonwealth Office. For earlier example of the absurdity of the dialogue between CPT andFCO, see the ‘tea towel saga’, outlined in MD Evans and R Morgan, supra note 9.

161 OPCAT, Art. 16 (4).



28

with a political awareness of these small things, the SPT could be able to assemble a whole corpus of methods and

knowledge, descriptions, and data, for the effective control of men.162

In this sense, the SPT should be in a position

to examine its own effectiveness, just as much as the implementation of the torture prohibition norm by states. This

is the unique advantage of the SPT over the Committee.

The preventative ante hoc character of its mandate further supports the diagnoses that the system under

OPCAT is structurally superior to the one under CAT. The SPT does not have to wait until torture is systematically practiced within a state, but can visit at any time and without implying wrong behaviour on part of the state. This

should be conducive of a fruitful dialogue between the SPT and the states, based on the facts gathered during the

SPT’s visits. The first chairperson of the SPT, Casale, once said that the

‘preventative perspective is forward looking; it does not dwell on past mistakes, except for the purpose

of identifying where improvement needs to occur. … Producing a clear picture should not be

undertaken or received as an exercise in blaming; nor is it intended to assist the prosecution in pursuing

individual cases’.

This truly encapsulates the advantage of the ante hoc mandate of OPCAT over the post hoc mandate of CAT. It

espouses the spirit of cooperation that is supposed to govern the visiting activity of the SPT. Working with states to

improve the situation within the penitentiary institutions throughout the world.

However, it is submitted that, judging by the reports compiled by the SPT, this idea might not always be

applied in practice. There is a difference between producing a clear picture, and criticism for criticism’s sake. The

former is a necessary exercise in raising the collective self-awareness of the visited state, the latter indicates lacking

awareness on behalf of the visitor. Granted, in relation to prisoners and ill-treatment, probably no country will ever

be perfect. But in order to improve existing situations, the SPT will need to persuade state officials to act upon its

recommendations. Clear, precise and helpful instructions are essential in this respect. Long and confusing

recommendations are unlikely to qualify as such. Inducing compliance through visibility, prerequisites that the

object of the gaze is aware of the expected norm. Which means that there must be an expected norm in the first place, not just a constant struggle. According to the panoptic logic, in order to display compliant behaviour, the

prisoner must know what compliant behaviour means.

Analogising the SPT to a school rather than a prison, nevertheless, reveals the same caveat. It must be

possible to pass the examination of the SPT – otherwise there is no reason to even try. Why would the authorities of

the Maldives act on the recommendations of the SPT, if they know that even Sweden fails the expected standards?

How are they supposed to comply with a list that, in its volume, would overwhelm even the bureaucracies of the

most developed states? Would it not be wiser to focus on a handful of issues that can, realistically, be implemented

by the state, and then during the next visit, to examine whether this has been achieved? To persuade state officials,

in the course of the SPT’s visits, to agree on concrete steps to be taken in the near future? At the time of the next

visit, the SPT could then evaluate whether these steps have been taken or not. If not, this would be pointed out, as

under the current practice. But – idealistically naïve as the mere consideration might be – if they have, the SPT

could congratulate the state on having achieved what was actually achievable, could it not? Thereafter, the SPT and

state authorities could converse to establish the next set of plausible instructions to be internalised in the following

round. It is submitted that such an approach, applying a mixture of the Foucaultian logic of the disciplinary society

with pragmatic diplomacy, could arguably enhance the effectiveness of the SPT, and thereby improve the situation

of prisoners throughout the world.

162 Paraphrasing Foucault, see section I, supra note 34.



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CONCLUDING OBSERVATIONS

So how effective are the VMs under CAT and OPCAT to implement the torture prohibition norm? Given the

complexity of any global system, this question may be intrinsically prone to generate speculative rather than

absolute answers, but this inherent risk should not deter the endeavour. The answers in this article are based on a

Foucaultian reading of the work of these VMs. They supplied the panoptic data for this analysis. Beyond the reportsof the Committee, the SPT, the CPT, and the corresponding state replies, no other sources were utilised here.

163 No

attempts have been made to scientifically verify whether these visits did actually change anything on the ground.

No visits were undertaken by this author, no prisoners have been interviewed, no NGOs consulted. Yet, it is

submitted that, given the complexity of the matter, this does not deprive this analysis of its validity because

‘complex social, political and legal processes can only be understood adequately through a qualitative analysis’.164

Thus, sometimes, thinking can deliver more effective results than measuring.

Thinking about the Humane Association of the Introduction resulted in the answer of the ‘purity of

mandate’ and its ‘independent function’. In essence, the same logic applies to both the VMs under CAT and

OPCAT. As such they share a whole range of distinct factors. Indeed, at a basic, operational level during visits,

there is hardly any difference between them. They send similar delegations to visit the same places and speak with

identical people. There are some divergences, but none that would strike as significant for the evaluation of their

effectiveness. Both, the Committee and the SPT, also operate with the OHCHR as their secretariat, and are

consequently integrated into the wider UN system. As such they are part of a larger machinery of global

governance that, like these VMs, is mostly deprived of effective enforcement. Punishment for norm deviations is

the exception rather than the rule. What Flood describes as a ‘vast but largely optional paper shuffle’ is essentially

an attempt to govern globally without power. To analyse these VMs through a Foucaultian prism – supposedly

heavily tinted by disciplinary measures of punishment – may consequently appear strange. But, as outlined in this

article, Foucault offers more than punishment.

Indeed, one ascribable weakness of both VMs is their apparent lack of awareness for the other methodsdescribed by Foucault: First and foremost hierarchical observation. Reading the various reports and

recommendations, it sometimes seems that they lack the simplicity of the Human Association to become effective.

They are too long and too complex, offering very little ‘reward for good behaviour’. Granted, they are all very

polite, and compliment at various points for good behaviour by the state; but the point is, they all do this! There is

very little stratification and simplification in these reports. The reason the Humane Association is allowed to

supervise a film production is because it issues a certificate for good behaviour in the end. States, concededly, do

not have end-credits, but most of them do have an interest in a ‘white vest’ in relation to Human Rights.

Unfortunately, it is equally true that they may also have utilitarian interests in ignoring them, and because states are

made up of different individuals this may always remain an internal struggle. If the utilitarian side is in government,

it is submitted that VMs remain largely ineffective. If a state – or more precisely the individuals in government –really wants to torture, irrespective of its international reputation, there is little an international VM can do. This

applies to the VM under CAT as much as it applies to the VM under OPCAT. To be effective, VMs require a

certain degree of commitment on behalf of the visited state as a prerequisite. Nevertheless, the attitude and

approach taken by the relevant visitors is arguably capable of increasing – or unfortunately decreasing – this degree

of state commitment.

163 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.

164 OHCHR and International Council on Human Rights Policy, Assessing the effectiveness of national human rights institutions (International Council on Human Rights Policy and the Office of the United Nations High Commissioner for Human

Rights, Geneva 2005) p. 25.



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If ‘good behaviour’, as in compliance not only with the procedural rules (allowing visits to take place and

submitting relevant information), but also with the ‘spirit’ (following the recommendations and investing in the

necessary infrastructure), would result in a short certificate issued by theoretically one of the highest ‘authorities’ in

the international system, the incentive to comply would arguably be higher. That being said, due to the emphasis on

‘triangulated information, fairness and equality’, even a report that at one point states that ‘no cases of torture have

been reported’ still carries a similar length of recommendations as one that concludes that ‘systematic torture is

practiced’. Of course, to an extent, this is necessary; after all , the struggle against torture should be understood as a

continued process, rather than as a ‘one off event’. One wonders though, if applying more of a ‘carrot and stick’

policy could not enhance the overall systemic effectiveness? Or, in the Foucaultian analogy, allowing ‘good states’

to wear nice colourful uniforms, while ‘bad states’ are signified by sack linen. For example, after its visit to

Sweden, was it really impossible for the SPT to certify something along the following line?

“The conditions we found in Sweden were exemplary and we congratulate the authorities for their

continuing efforts to improve the system even further”.

In the eyes of this author, this could be reasonably inferred from a close reading of the overall report. So why not

spell it out? Indeed, this call for more stratification to induce compliance is directed at both VMs in equal measure.Yet, before this can be translated into a set of recommendations, it will be necessary to also examine the differences

between these VMs.

Comparing the VMs under CAT and OPCAT

CAT OPCAT

Adopted 10 Dec 1984 18 Dec 2002

Entry into force 26 June 1987 22 Jun 2006

Number of state parties 165 146(137 for VM under Art. 20)

49

State consent required for a

visit?Yes No

Number of visits 6 in 20 years 6 in 2 years

Average duration of visits 2 – 3 weeks 1 – 2 weeks

Average size of a visit 2 + support staff 4 + support staff

Source of financing State parties to the conventionUnited Nations – subsumed under

the budget of the OHCHR

Trigger for visitReports of systematic torture

within the country receivedRandom choice

Purpose of visit Inquiry Prevention of torture



31

Quintessentially the VMs under CAT and OPCAT differ in purpose, and all other divergences derive from

this core distinction. While the former serves the somewhat unclear purpose of a post hoc inquiry, the latter visits

with a preventative ante hoc mandate. In contrast to the reactive function of the inquiry under CAT, which

prerequisites credible information indicating that torture is already perpetrated systematically, the SPT under

OPCAT visits intermittently and proactively. Hence, while the first mechanism requires a trigger to visit, the

second operates continuously, visiting randomly with a high frequency.

To achieve such continuous operation implies that states, party to OPCAT, have to permanently waive

their sovereignty to object to visits by the SPT. As the experience of the Committee has revealed, the requirement

to negotiate for consent inevitably hinders and delays visits. Even if most inquiries by the Committee eventually

gained access to the relevant countries, this was frequently postponed and required a prolonged process of

negotiation until the state authorities were finally receptive to the Committee’s presence. For a mechanism that

aims at visiting with a high frequency, such a system would be detrimental.

Yet, in order to induce countries to accept continuous international supervision, visits by the SPT must not

imply any state culpability per se. While the mere fact that the Committee visited a country entailed that the

situation was at least worrying, a visit by the SPT arguably implies that the state is at the forefront of the global

struggle to eradicate torture, exactly because it is willing to open its own conduct to continuing scrutiny. As such,

the systemic ante hoc design of OPCAT is fundamentally superior, because it not only subjects states to the power

of the gaze in a far more permanent fashion, but also entices them to embrace this. Becoming party to OPCAT can

be regarded as a hallmark of good behaviour by the relevant state. Symbolically, it signifies being one of currently

fewer than 50 states – although that number is growing quickly – who are serious about ending torture. However,

once ratified, it becomes difficult for states to reverse this commitment: visits can no longer be rejected, and the

state’s internal penitentiary policies and practices will be examined and evaluated.

The fact that the SPT has achieved the same number of visits within two years, as the Committee within

two decades, outlines that this system of permanent state consent to an ante hoc VM works well. So far, the SPT

has not encountered any difficulties in visiting countries (apart from its limited budget), and if the experience of theCPT is considered as indication, this is not going to change either. Hence, the SPT can visit when and where it

chooses, gathering information and experience over time. While the VM under CAT is limited to evaluate a

situation once, the SPT can do so frequently over time, and consequently can evaluate change. It can determine

whether the situation in any given country is improving or deteriorating. However, to translate such knowledge

effectively into changes on the ground might require the SPT to re-evaluate its current modus operandi, because, if

the consequences of visits are considered, both VMs ultimately confront the fact that they cannot initiate any

serious punishment.

Given the post hoc inquiry purpose of the VM under CAT, this lack of punitive consequences ultimately

renders this VM almost completely ineffective. What is the point of verifying an already suspected norm-deviation

if no consequences will follow confirmation? Granted, the visits enabled the Committee to issue better

recommendations and allowed for a more realistic dialogue, but because no follow up verification is possible, this

remains a unique event that is quickly forgotten. The SPT, by comparison, while being similarly condemned to rely

on dialogue to effect change, can evaluate whether its dialogue is actually fruitful. Yet, given its current approach,

it is submitted that the SPT, regrettably, undermines its own potential effectiveness in this respect. Hence, while the

system could certainly be more effective than any other international legal mechanism currently in existence, the

individuals that are charged with operating it, despite their renowned background, personal skills and experience,

unfortunately, do not endow this VM with its full potential. In this regard, Foucault’s observations about the

disciplinary apparatuses can offer valuable insights, and have inspired the following set of recommendations to the

Committee and the SPT.



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R ECOMMENDATIONS

THE COMMITTEE

The Committee should focus on its role of evaluation and exploit its power to make normative

judgements; it should classify the compliance of states into a limited number of categories. Disciplinary power

derives as much out of stratification as it does out of observation. Notably, there are no provisions in theConvention that would prevent the Committee from classifying states in such a manner. The following categories

for classification are suggested as a possible framework for such stratification:

Objector All states should be classified, and those that have not signed and ratified

CAT should be designated as such.

Noncompliant Designates state parties that default on their obligation to report in time. A

certain degree of discretion may be allowed for late submission, but ideally

this category should ensure that states submit on time. Persistent refusal to

implement recommendations could also entail this classification.

Compliant Designates states that follow their procedural obligations and at least prima

facie act on recommendations, but where the in-country-situation remains

worrying. Information and complaints about torture continue to be received

by the Committee in respect to these countries.

Encouraging Designates states fulfilling certain standards, such as effective investigation

of allegations of torture. This category should nonetheless be open enough

to include all states that actively combat torture, irrespective of theirdevelopmental state: Even states that display shortcomings in certain areas

(eg. Hygienic standards of prisons or limited numbers of free defence

councils) can fall within this category as long as they actively seek to

improve their standards.

Outstanding An exceptional designation only ever applicable to a small number of states.

The standards for this classification are ambitious and escalating, animating

a competitive race to the top. Applicable states have to display exceptional

commitment to the process of eradicating torture, placing them ahead of

others.

Deteriorating An exceptional designation applicable in cases where the condition in

relation to detainees are notably deteriorating and the authorities appear

disinclined to counter this process.

It is submitted that applying such a system of classification to normatively evaluate the compliance of

states would significantly enhance the effectiveness of the Committee, by utilising disciplinary power. The

relationship that the Committee develops and maintains to the SPT should ensure that such ‘normalising effect’ is

simultaneously implemented via the ‘panoptic gaze’, thereby increasing the effectiveness of the overall system.



THE SPT

Dialogue is the primary weapon of the SPT to effect change, which can only materialise if state-officials

are animated to take actions. Its efforts should therefore be directed predominately at identifying and convincing

specific individuals of the desirability to follow the SPT’s suggestions. The rules of psychology apply to these

efforts during visits as much as when subsequently writing reports. Slow but discernible progress in small steps is

preferable to all encompassing and hectic approaches that achieve few tangible results. The methods chosen toinstigate change are at the discretion of the SPT, and an impartial stance does not necessarily imply an

indiscriminate application of the same methods to dissimilar situations. In situ observations should be analysed and

translated into plausible instructions to states to improve the situation relating to torture and ill-treatment.

Personal contacts and conversations during visits are the best platform to disseminate such instructions.

Not hearing is harder than not reading. Negotiating agreement on some points, and translating this into concrete

plans of action is recommended as the most v iable approach to induce action by states. The next visit should then

be undertaken with reference to the preceding visit(s) and evaluate progress rather than absolute standards. The

eradication of torture and ill-treatment is not going to happen over night.

Written reports should be helpful to states and be compiled with appreciation of the envisaged reader, who

should be inspired to take action rather than to write a witty reply. A clear separation between observations,

requests and recommendations appears desirable, and recommendations should indicate the relevant addressee. The

method of copy and paste recommendations from the main report should be abandoned. Recommendations should

be concise, precise and self-explanatory.

Demanding a timely written response does not entail the necessity for states to take action to improve the

situation of prisoners. The SPT operates in a political and diplomatic environment – not in a court – and its

priorities should be more prevalent in this respect. OPAT stipulates no requirement for the SPT to prove its

effectiveness by the volume of its recommendations. Potential certification of compliant behaviour – when merited

– could enhance the power of the SPT’s reports. If the situation in a state is relatively promising, recognise this

explicitly, irrespective of the legitimate argument that things can always be better.

The panoptic power of the SPT derives mostly from the repetition of visits, even if these may, for financial

reasons, only be forthcoming in regrettably large intervals. The SPT should consider the longevity of its mandate

and work to ensure that it’s modus operandi is devised in a way that can survive the bi-term limit of its members.

Difficult as that may be, a consistent, persistent and coherent approach is the most promising policy to effect

change within states. Considerable efforts should be devoted to develop the personal relations between current and

former members of the SPT, but also between the members of the SPT and the NPMs. A strong personal network

of individuals applying the power of the gaze upon state officials and state policies, is suggested as the most

powerful instrument to prevent torture and ill-treatment throughout the world.

Philipp Schmidinger - Visiting Mechanisms to Eradicate Torture - A _Foucaultian Analysis

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