Barbara Bernath: Reflections on 25 years advancing torture prevention (Part 1)

This episode of Perspectives is the first of two with outgoing APT Secretary General Barbara Bernath

Barbara joined the APT in 1997 and worked in a variety of roles before being appointed Secretary General in 2018. Over more than 25 years, she has witnessed transformational changes take place in global, regional and national efforts to prevent torture and ill-treatment.

But while some of the major developments over this period, like the adoption of the Optional Protocol to the Convention against Torture, might be taken for granted for now, the circumstances at the time were vastly different. 

 Ahead of Barbara’s departure, we sat down to discuss the people and organisations who joined forces to create, develop and strengthen a new global system to open places of detention to independent oversight.

Transcript

Ben Buckland

Hello and welcome to Perspectives, the APT’s podcast which explores contemporary issues related to torture prevention and dignity in detention.

I’m Ben Buckland, the APT’s Senior Adviser for Oversight, and we are delighted to share with you the first of two episodes with our outgoing Secretary General, Barbara Bernath.

Barbara joined the APT in 1997 and worked in a variety of roles before being appointed Secretary General in 2018.

Over more than 25 years, she has witnessed transformational changes take place in global, regional and national efforts to prevent torture and ill-treatment.

But while some of the major developments over this period, like the adoption of the Optional Protocol to the Convention against Torture, might be taken for granted for now, the circumstances at the time were vastly different.  

Ahead of Barbara’s departure, we sat down to discuss the people and organisations who joined forces to create, develop and strengthen a new global system to open places of detention to independent oversight.

Barbara Bernath

So I started in 1997 and there was a kind of positive momentum regarding torture prevention at the time. The UN Convention against Torture just entered into force ten years ago on 26 June 1987, exactly on the same day as the adoption of the European Convention for the Prevention of Torture. So there was some positive momentum regarding implementation of both the UN CAT and the European Convention for Torture Prevention. So, yes, clearly in Europe there was some champions, with the work of the CPT that can visit at any time, any place of detention, for any of the state parties at the time, which I don't remember how many there were, but at the time of adoption, in ‘87, it was 15 States in the Council of Europe, and in ‘97, after the end of the Berlin Wall, the communism, etcetera, it was growing every year. So there was positive momentum.

In Africa as well, there was the Special Rapporteur on Prisons and Conditions of Detention that was just created. And there were discussions, although the situation regarding torture was difficult, but there was some willingness, and that's when also the APT proposed to the African Commission on Human and People's Rights to organise a workshop on torture prevention that led to the adoption, the drafting and the adoption, of the Robben Island Guidelines on Prohibition and Prevention of Torture in Africa.

And then turning to Latin America, there was an Inter-American Convention on Torture adopted also in ‘87. The APT organised some discussions, also in ‘87, about the adoption of a regional convention on the prevention of torture, similar to the European one. But this didn't come through. So the Latin American countries decided to rely on the universal adoption of an Optional Protocol.

And then in Asia, it was a bit, maybe lacking behind. But that being said, the regional groups were not homogeneous groups. So maybe we can see that when we look at the OPCAT, the votes for the adoption of the OPCAT, in each group, regional groups, there were countries that were more advanced. But there were strong allies in Europe, Latin America, some African states, and then, of course, the international NGOs. The International Commission of Jurists, that was a strong supporter for the work of the APT from the beginning, but also Amnesty International at the time.

Ben Buckland

I'm interested as well in both the institutional level, but are there are some particular kind of champions, including individuals who were particularly key at those moments.

Barbara Bernath

Yeah, when we published a book about ‘Letting in the Light’ for the 30th anniversary of the APT back in 2007, we highlighted some of the champions. But maybe let me just mention one with Juan Méndez, who was in different positions, but a strong supporter of torture prevention in general, especially when he was Commissioner and then President of the Inter-American Commission on Human Rights. This was exactly in this period, 2000-2002. He was very much pushing for the States of the Organisation of American States to support the Optional Protocol and then he became the Special Rapporteur on torture. And now he's still present and supporting our work, of course, with Méndez Principles on Effective Interviewing, but also in his capacity as Expert of the Independent Mechanisms on advancing racial justice in law enforcement. There are a lot of other diplomats who were very key in the drafting of the Optional Protocol, some experts in international organisations as well. In the end it’s always persons who are advancing ideas and treaties, standards and mechanisms.

Ben Buckland

I know it’s difficult to single out particular individuals when it’s work of so many different people and so many organisations, of so many networks. Now what about the OPCAT? It’d be really interesting, I think, to hear more about APT’s contribution to the development of the OPCAT and some of the key discussions and some of the negotiations and who were some of the key players at the level of States, and also this discussion that led to the creation of NPMs. 

Barbara Bernath

The OPCAT is really at the heart of the raison d'etre of the APT for more than 47 years. And it was really the idea of Jean-Jacques Gautier, the founder of the APT back in the late ‘70s, to create a system of visits to places of detention to break secrecy, that is allowing torture to happen. And this was very much inspired by the work of the ICRC, the International Committee of the Red Cross, that was able, and that had results in terms of reducing torture through visits, especially in police stations in Greece at the time of the dictatorship of the Colonels. So, yes, that's a way to work upstream and not just downstream. Like he was made aware of the persistence of torture in the 20th century because of the first campaign of Amnesty International against torture back in 1973. But he said, it's not enough to write letters after, let's try to do something different. So he really came with this idea: let's create a treaty to create, creating such a system of visits to places of detention, like a committee with delegates visiting places of detention.

He was a banker, retired from the bank. He had no experience with international negotiations. Switzerland was not a member of the UN, so he was able to partner with the International Commission of Jurists. And speaking about individuals, I think Niall McDermott was really key, the Secretary General of the ICJ. And from the beginning, Niall McDermott said: “Listen, Jean-Jacques, there is not even a Convention against Torture. I think your idea is great, but it's too early. So you should wait for first there are some negotiations to draft and adopt a Convention against Torture. Wait for this convention, and then when it's adopted, you come and propose an Optional Protocol to this convention.” So very early in the beginning there was the idea of having an Optional Protocol. Have the convention first and then have this Optional Protocol.

So this was a long, very long development, maturity, maturation, work for first proposing the text, and again, strong allies with Costa Rica, because the other advice from ICJ was file the idea, file a resolution, a draft treaty, a draft Optional Protocol. Soon, immediately, now, so it's there somewhere within the UN system. So Costa Rica deposited a draft Optional Protocol to the future Convention against Torture in 1980 at the then Commission on Human Rights, the predecessor of the Human Rights Council. So it was there. Then in 1984, the Convention against Torture is adopted, entered into force in 1987.

In parallel, and I think it's important to mention, there was this idea, the Council of Europe, a French parliamentarian, again, it's a question of persons, Noel Berryer, a French parliamentarian, member of the Parliamentary Assembly of the Council of Europe, said, wow, this is a great idea. Actually, we should start with Europe and Jean-Jacques Gautier said, Okay, yeah, that's a very great idea. Let's try.

So the APT, again with the ICJ, drafted a first regional Convention for the Prevention of Torture that was then negotiated by the Committee of Ministers of the Council of Europe for several years and adopted on the 26 June 1987. And the CPT, the Committee for the Prevention of Torture, started its visits in ‘89. It was very professional, very thorough in its methodology and had good results. So in 1990, Costa Rica, or the APT, proposed to file again a new draft Optional Protocol to the Human Rights Commission. Costa Rica filed a new draft, a revised draft, and the negotiations started in 1992.

So in the UN, the negotiations are open-ended working group, as it is called, so any State can participate in the negotiations and they negotiate article by article. And the open-ended working group means that States that are really not even agreeing with the mere idea of opening up places of detention, participate in the negotiations. So everywhere, every year, there were some negotiations, article by article, starting with the definition of places of detention, but more importantly, access to places of detention and access to country. At the European level, the CPT can enter at any time, any country, any place of detention. So this is very different from the UN system, where you usually need an invitation of the State or an authorisation of the State. The idea of the Optional Protocol, based on the experience of the European Committee was, once you ratify, the committee can enter at any time. Of course, in practise, there is some notification, but it's not an invitation and it's not an authorisation.

So the negotiations over the years were really becoming polarised between a group of States that wanted a strong international committee, the Europeans, the Latin Americans, and States that didn't want any committee at all or any protocol at all. And so every year there were some discussions, led by the APT with the Friends of the OPCAT, to see, okay, how to move forward. And then in 2001, the Secretary General at the time, Claudine Henny, was invited for a meeting, a strategic meeting with the GRULAC, the group of Latin American States, to discuss how to move forward. And she came back during lunchtime at the APT. We had in the old shack a big table where we all had lunch, and she said, wow. Argentina raised this issue this morning in the discussions with an international committee at the UN. The visits would take place maybe every ten years or so. This is really insufficient to prevent torture. In Europe, the CPT conducts periodic visits every four years and then other visits in between. Then said yeah, and maybe we should find another way. And at the APT, at the time we were conducting two researchers with consultants, one on visits by national bodies to police stations in some European countries, and the other one about the role of Ombudsman and human rights commissions in monitoring. So what we really need is kind of national body that could conduct visits. I said oh yeah, let's propose that. So in the afternoon she went back to the GRULAC, to the second part of the meeting and said maybe to fill that gap we could propose this, to have in addition, national bodies. And Latin American states were really enthusiastic and Mexico said okay, I will put that idea forward to the next open ended working group meeting session.

So the months after they proposed that, an idea not very well thought through about how it could work. And then there were some opposition from some States, including friendly States, but also from some international NGOs who were really concerned about the independence of these bodies, they said maybe if it's a national body then they won't be independent, they won't be able to conduct really visits and it would undermine the whole idea of independent monitoring. But I think this session in 2001 concluding by saying maybe the Chair should come with a new draft integrating this idea.

So Costa Rica together with the Secretary General, the former Secretary General, she had left, we had changed at the time, drafted a new, completely new text, including this idea of the national preventive mechanisms. And in 2002 there were another discussion of the working group and this was more or less found as a kind of compromise, of having both a dual system of an international subcommittee and national preventive mechanisms. So the Chair decided, okay, now we have been negotiating for exactly ten years, 1992-2002, to it's time to move on. The polarisation will not improve, especially because in between there was 9/11. So let's go for a vote. And she went for a vote at the Human Rights Commission. And some States were really saying no, but this is not the way we work at the UN. We should adopt it by consensus. But there was a majority, not a big one.

And then the work started to advocate and lobby for the adoption through all the steps at the UN level. So the ECOSOC in July and then the Third Committee at the General Assembly, and then the General Assembly. And here a strong coalition led by the APT, but with all the other international NGOs, Human Rights Watch, Amnesty, Fiacat, IRCT, Redress, really a strong group, International Service for Human Rights, strong group of at least 12 NGOs lobbied strongly the States. And in the end it was adopted on the 18 December 2002 by the General Assembly with only 42 abstentions and four States against, which is United States, Palau and Marshall Islands voting like United States and Nigeria. So it was adopted and it took 25 years of hard negotiations, discussions for the idea of Jean-Jacques Gautier to become a reality. But I think this strong vision of what is the objective, from the beginning is to have an Optional Protocol. Keep this vision, be agile enough to come with a completely radical change. And it was the first time that national bodies were part of an international treaty and this was then taken up later with the Convention on the Rights of Persons with Disabilities. They also included these national monitoring bodies. So it was an intense journey, but a very positive one for the adoption in 2002.

Ben Buckland

What a story. So moving on from the establishment of the OPCAT itself, can you talk a little bit about APT's role after that in establishing and supporting and strengthening NPMs in different regions and APT’s role. 

Barbara Bernath

So the OPCAT was adopted by the General Assembly of the UN on 18 December 2002. Great success for the APT and the coalition of NGOs and the friendly States. And then we had this question and we had a kind of dinner with some board members, president and others. Okay, we have achieved the vision of Jean-Jacques Gautier. We have an international treaty. This is our raison d'être. Maybe we should close the door? And at the conclusion of that dinner said, no, that's just the beginning. Now we should focus on implementation, ratification, implementation, and then support of these completely new bodies of national preventive mechanisms.

So the first action was of course awareness raising, advocacy for ratification. But because the Optional Protocol is not creating new norms, the advocacy for ratification was very much an advocacy for what does it mean to create national preventive mechanisms? What is their role? How will they function? So there were different aspects. First the institutional development aspects in terms of okay, what are the costs? What can be the body that can be an NPM? Because the OPCAT does not prescribe any model for NPMs.

But very clearly from the beginning and even our own reflection, the OPCAT forces one or several mechanisms. So in our reflection, analysis of the articles we thought, okay, one mechanism can be either a new specialised mechanism, this was one option by some States. The second option is designating an existing national human rights institution, Ombudsman or Commission, creating a new national human rights institution and giving it as well the mandate to be the NPM, or designate several existing mechanisms on a thematic basis or on a regional basis. So all the models existed from the beginning, from the first States that started to ratify after 2002, between 2002 and 2006 when it entered into force.

So our role was very much supporting States, advising States in terms of process. Ratification is not an end in itself. It should be accompanied with a reflection on what are the options already existing in your countries and then designating. And then once the NPM was designated, whatever the model, then another part of our work was really starting, which was helping these national preventive mechanisms that were really new bodies to do their work well. So one part was a methodology, how to conduct visits to places of detention. And here we had the guide, monitoring guide, Monitoring Places of Detention, that was already published before, more for NGOs, and that we revamped for the OPCAT, that is really looking at the standard methodology based on the ICRC still, but also at the standards by issues.

Then we also had face-to-face workshops with NPMs, how to conduct visits, with visiting exercises and debriefing. So this was our support to NPMs from the beginning in terms of tools, resources, trainings, and at the same time, and from the beginning, very much bringing the NPMs together because they were part of the same treaty, with the same mandate. This collective identity was very important. And in Europe, we joined the Council of Europe to create these NPM forums between 2007, 2009, 2012, with regular regional meetings where we invited all the NPMs, a growing number of NPMs every year, to discuss the methodology, to discuss the mandate, to discuss the challenges and the opportunities. 

In Latin America, there were a high number of ratifications from the beginning, but a very low number of NPMs designated. So we decided to open a regional office. So we discussed where to open it. So in the end it was based in Panama, to advocate and lobby with States parties to designate the NPMs. And this was very successful because in 2009, when we opened the NPMs, in 2009, when we opened the regional office, there were two NPMs designated Costa Rica and Mexico, and when we left, when we closed the office back in 2018, there were 14 NPMs. We cannot claim that it's all thanks to the APT, but we really lobbied the States, but also we brought them together. And during this ten-year period of the regional office, we had several regional meetings and regional conferences to discuss these strategies.

In 2011, we organised a big OPCAT Forum for the fifth anniversary of the entry into force of the OPCAT in Geneva with 300 participants to bring the SPT, the States parties, the civil societies and the NPMs together to discuss the advances, the challenges. And they were discussions by discussions by regions as well. And Elizabeth Ogiobenito, who was Chair of the working group for the negotiations of the OPCAT for all the ten years from 1992 to 2002, she gave the opening speech and she said, the night before the vote at the Human Rights Commission was the worst night of my life because not everybody was really convinced about these national preventive mechanisms. And she said, oh, I thought maybe, and if they were right, maybe I'm doing a mistake with these votes. And then at the Forum, when she said that, she said, and now looking at all these persons from different backgrounds, from different countries, from different regions, all united to celebrate this fifth anniversary of the OPCAT, I realise that I was right. The NPMs are really at the forefront of the advances of the OPCAT.

And today it's true that we now have 78, almost 80 national preventive mechanisms, working in different regions worldwide, entering places of detention every day, different places of detention, police stations, prisons, of course, but also psychiatric institutions, centre for migrants, centre for juveniles, even home for elderly. And they are really making a difference for the lives of these persons deprived of liberty, but also for the staff and also for the functioning of the institutions themselves. So I think the NPMs are really what makes the OPCAT so different from other human rights treaties.

Ben Buckland

It's not on the list of questions, but I wonder, because now, as you said, there are 78 NPMs and these networks and many of them have existed for a long time. And I wonder if you have any kind of memories or reflections from some of those very first NPMs and how NPMs navigated those very early years where there really weren't so many lessons or models or networks.

Barbara Bernath

I think really from the first meetings in Europe in 2009, but then also in Latin America a bit later, what always strikes me with NPMs is first a very strong, positive dynamic. I almost want to say enthusiasm and commitment. Like we said before, the work on torture prevention, like any work on human rights, in the end it's not so much about institutions, it's about persons. All the persons who started this new work of NPMs in the different countries were very committed and very enthusiastic and also with strong vision. And the second element that I think makes these networks very powerful and also sustainable is that all the NPMs have the same mandate and this mandate is anchored in an international treaty. So you don't have to discuss about who you are and what you do because this is common. And this is very different from meetings with NGOs and civil societies where everybody has a little bit its own turf or approach or strategy. Here it's the same mandate, so it really helps to discuss directly about the issues, the challenges. And then there are differences from one region to the others. But in the end it's very common in all the regions, this very strong commitment and positive dynamic and this common area. So you can just discuss how best to advance your mandates.

In the early days of the NPMs, there were some new specialised NPMs created, and in particular the French NPM, the General Controller of Places of Detention and the first, Jean-Marie Delarue, who was very strategic and a very clear vision of how to do things and how not to do things. But at the same time and in parallel, there were also a lot of NHRIs designated, and as I said, in Latin America, there were two NPMs already in 2009, the Ombudsman of Costa Rica and the National Human Rights Commission of Mexico. And in Europe as well, several NPMs from the beginning were NHRIs.

So this discussion about the integration of the work of NPMs with their preventive mandate within the work of human rights institutions, was part of the discussion from the beginning and is still part of the discussion today. And we had a project before on the role of NHRIs. So the APT in its strategies on torture prevention was always working with allies, and national human rights institutions were strong allies from the beginning. We had a strong, an important, project back in 2005, 2007 I think, together with the Office of the High Commissioner for Human Rights, that was called Actors for Change, which was really about the role of NHRIs on torture prevention, including monitoring, including OPCAT, but not only. And then in 2010, we published this joint guide together with APF and the OHCHR on a practical guide for national human rights institutions on torture prevention, again on monitoring, but not only on monitoring. The role of NHRIs is very huge. And I think now the OPCAT was adopted in 2002, entered into force in 2006, we now have 78 more or less national preventive mechanism. From these, I think 56 or 57 are national human rights institutions. So this trend is growing. 

We are not promoting one type versus the other, but this is the reality. And I think in the last Global Alliance of NHRIs conference, that was devoted to torture in November last year, the declaration, Kyiv-Copenhagen Declaration of November 2023, clarifies this role of NPMs within NHRIs and also clarifies, when the NHRI is not the NPM, how they should cooperate with the NPM. So I think there are clear guidance now towards the integration of the NPM role in the broader NHRI mandate. And there is no contradiction. It's just really the complementarity of these roles and how to best use the rest of the institution, the legal department, the thematic department, I don't know, children, women or other departments, to advance towards this change perspective that we had, as I said we had from the beginning, pushing NPMs to focus on, what are the changes they want to see. And NHRIs are also best placed as institutions to advance some of these changes through their other departments to support the work of the NPM in the places of detention. 

Ben Buckland

You mentioned that SPT. There are some elements of that, including the kind of history and role, mandate that you want to mention as well, when we're looking back at the OPCAT in the early years.

Barbara Bernath

Yes, indeed, I focused a lot on the work of the NPMs. But the SPT itself is really innovative for the UN system as well, because all the other treaty bodies are looking and reviewing reports by States. So it's also in a way reactive. They receive the reports, they look at it, they have this interactive dialogue with the States, ask question received responses and draft conclusions, recommendations and general comments. 

The SPT was completely new. It's a proactive body that has to conduct visits to places of detention in the different States parties. So we had a lot of discussions, discussions with the Office of the High Commissioner, how to integrate this mandate. I think the discussions are still ongoing as part of these discussions on the treaty body strengthening process, because it's just a different nature. The SPT is also the biggest treaty body in terms of number of members. It grew from ten to 25. And the spirit of the OPCAT, I said before as well, it's very much based on cooperation, the reality or the recognition that torture prevention is a shared responsibility. And it's not so much for the SPT to tell the NPMs or to tell the States what they have to do, but try to find jointly all the three together, some solutions to improve the treatment, improve the conditions of detention and reduce the risks of torture. 

So I think the SPT is putting a lot of emphasis on its visiting role, is trying to conduct between eight to ten visits a year, which is very important. But the advisory role of the SPT is as important as its visiting role. And this advisory role goes to the NPMs and it's really helping them to be stronger and the advice advisory role is also for the States, helping them to designate their NPM, but also helping them to implement the recommendations, the recommendations of the NPM and the recommendations of the SPT. So I think they could better balance between the visiting and the advising role.

The adoption of the General Comment, the first General Comment by the SPT on the definition of deprivation of liberty, the General Comment on article four, I think is really key and maybe is the first step toward putting a bit more emphasis on this advisory role. It's giving guidance of where to go, how to implement rather than criticising too much the situation in places of detention or the situation, the functioning or the budget of the NPMs.

Ben Buckland

Barbara Bernath is the outgoing Secretary General of the Association for the Prevention of Torture.

The second episode of this two-part series is now available. You can also download the transcripts.

Thanks for listening to Perspectives and we look forward to your company next time.