Barbara Bernath: Reflections on 25 years advancing torture prevention (Part 2)

This episode of Perspectives is the second in a two-part series 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.

Much has changed over the past 25 years in how we talk about and approach torture prevention, at the international, regional and national levels.

However, as Barbara describes, it is essential to keep reflecting, keep researching, and keep developing new responses to counter the risk factors that can lead to torture and ill-treatment.

And sometimes those changes need to be immediate, like when the COVID-19 pandemic hit and States, detaining authorities and national monitoring bodies had to respond to an unprecedented public health crisis that left people deprived of liberty more vulnerable than ever before.

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 second part of the conversation 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.

Much has changed over the past 25 years in how we talk about and approach torture prevention, at the international, regional and national levels.

As Barbara describes here, it is essential to keep reflecting, keep researching, and keep developing new responses to counter the risk factors that can lead to torture and ill-treatment.

But sometimes those changes need to be immediate, like when the COVID-19 pandemic hit and States, detaining authorities and national monitoring bodies had to respond to an unprecedented public health crisis that left people deprived of liberty more vulnerable than ever before.

Barbara Bernath

The COVID pandemic was really a crisis for the world, for everybody, but in a way it helped really in advancing the reflection about the importance of access to places of detention at any time. The fact that with the lockdown, with the confinement, we all in a way lived the experience of being deprived of liberty, made us more conscious of the problems of the risks and the importance of monitoring.

Very early the SPT came with advice for NPMs that they should continue to monitor. The High Commissioner as well, Michelle Bachelet, at the time strongly emphasised the risks for prisons and at the APT, of course, it changed not only the way we work, but also we had to think about what is our role. And very early we decided together to convene all the NPMs on a regional level and have online meetings with them just to understand their needs and their challenges.

And then it came out from these regional webinars that they needed some guidance because okay, the SPT says you should continue to monitor - but how? So we quickly, or as quickly as we could, produce this note on how to continue monitoring in times of COVID. We also had meetings again on the practicalities and the modalities together with the WHO. Is it good to conduct visits with masks or with all the full moon equipment? Or is it better maybe to do videos online? So we had all these discussions and I think this was really very, very important.

In some countries, the NPMs were the only ones continuing to be able to enter places of detention. So this link was very important. And it was really clear, the importance of having access, the importance of monitoring what’s happening, but also of advising the States and the authorities that were also in this crisis, trying to find the best way to deal with that.

The NPMs became members in some countries of the task force reflecting about how to deal with this issue. It was clear as well that places of detention, especially prisons, but also home for elderlies who were the most exposed, are not isolated from the rest of the world. People are entering, including the staff, every day, in and out. So this concept or this motto from the WHO, ‘prison health is public health’ really become very, very clear with this crisis and helped to raise the importance of the NPM's in the different countries.

We also had some hope that this would help with decongestion because there was a lot of early release schemes in different countries. But then at the end of the pandemic, prisons started to fill in again. So this was unfortunately not sustained. But still it showed that it's possible, it's possible to release people from prison without higher security risks.

Ben Buckland

So moving away a little bit from the OPCAT and NPMs now, I wonder if you have some reflections on this really strong move over the last decade or so to make focusing on safeguards a key part of APT's work, including through the research and then more recently through the Méndez Principles, and how that came about, and what that means and why that's been so important.

Barbara Bernath

So during many years, and due to the vision of the founder of APT, Jean-Jacques Gautier, the focus of our work was very much on monitoring places of detention, on transparency and on OPCAT implementation. Then we commissioned this independent academic research: ‘Does torture prevention work?’. It started in 2011 and was published in 2016. And it was a bit of a bold move because it was questioning our work. Based on our assumptions, yes, it's worked, but we were not sure about the answers. So the research – ‘Does torture prevention work?’ – was really an important milestone in our reflection, but also in our work.

So it focuses on 30 years, 1984 to 2014, 16 countries in different regions, and looking at the correlation between a set of preventive measures, 66 preventive measures, and the correlation with the incidence, the prevalence of torture. They were grouped in four clusters: detention, prosecution, monitoring and complaints. The result is that the most effective means are really these detention safeguards applied in practice from the first moment of detention. Monitoring also was one of the effective measure. The correlation, especially for unannounced access, and also for private interviews, was quite high. And what is interesting as well is that for unannounced visits, the correlation is higher in law than in practice, and it's the only one of all the 66 preventive measures that is higher in law than in practice. So it shows that it's important to have this power to conduct unannounced visits, but then in practice, you can decide to announce if it's more important to achieve your objectives.

But on the safeguards, after these results that we discussed with the board already in 2015, before the publication, we decided to focus more on these issues and the idea was to have a better analysis of the idea of prevention is to reduce the risks of torture to happen. So the analysis of the risks was broader than just, okay, secrecy in place of deprivation of liberty. So we broadened with the results of the research. We broadened the analysis of risks to look at moments of risks, practises of risk, like body searches. We also had an analysis on persons at risk, with a focus on vulnerability. And in parallel, at the same time, the Special Rapporteur on Torture at the time, Juan Méndez, published his last report and presented it to the General Assembly in 2016. And he called for the development of standards on conducting interviewing. So to move away from interrogation to interviewing.

So we had these two events, the publication of the research focusing on the importance of detention safeguards, access to a lawyer, access to a medical doctor, notification of the family, and a notification of rights, that were really effective in reducing torture prevention. The call by Juan Méndez on developing a set of standards on interviewing.

So in the new strategic plan, 2016 to 2019, we integrated these elements and we put into our strategic plan a strong focus on safeguards, both on the development of safeguards, but also on the monitoring of safeguards by national prevention mechanisms. In 2016, we also pushed the adoption of a thematic resolution on safeguards adopted by the Human Rights Council, which was also helpful.

Then in January 2017, we decided to organise, here at the APT, a meeting to discuss how to respond to the call by Juan Méndez. So we had a group of a lot of different experts from different fields, meeting here in our conference room, discussing, okay, now, shall we open again negotiating a treaty or not? It was decided to go for an expert-driven process. So the APT, together with its partners, Anti-Torture Initiatives and the Centre for Human Rights, supported the drafting process, creation of a steering committee of 15 experts from different fields, regular meeting of the steering committee in Rio, in Tunis, Tunisia and in Bangkok, Thailand, to discuss different drafts, review the drafts, so the process of developing these principles, guidelines, universal protocols. We discussed the name change over time. The drafting process took four years and it was eventually finalised in May 2021. So the process was finalised in May 2021, with the approval and the launching of the Principles on Effective Interviewing for Investigations and Information Gathering, called, in short, the Méndez Principles. So the drafting process was led by Juan Méndez, who had been a former Special Rapporteur on torture, and Mark Thompson, the former Secretary General of the APT, together with this group of experts, 13 other experts.

And then the APT, with the partners, decided to invest in awareness raising and advocacy for their support beyond this group of experts. So a lot of efforts and money put into translation in the different languages, to have all the UN languages, also a lot of advocacy with the States: webinars, side events, breakfast meeting in Geneva and in New York to discuss them. And then in 2022, 53 States from different regions made a joint statement welcoming the Méndez Principles. The African Commission on Human and People's Rights adopted a stand-alone resolution welcoming the Méndez Principles. The Organization of American States also adopted a resolution supporting the Méndez Principles. 

So this was the beginning of our work, then moving more at the implementation at the national level. So there is a kind of interaction between what's happening at the international level and what's happening at the national level. At the national level, we also had the support, and we also raised awareness with national human rights institutions through regional webinars. So we had the support of national human rights institutions, national preventive mechanisms and some NGOs. And so we could move on towards more implementation, discussion with the States and with the authorities about how moving away from interrogation that comes with the risks of coercion to rapport-based interviewing is really effective, not only in respecting and protecting the rights of the persons, the suspect or the witness or the victims, but also more effective in advancing and in professionalising the work of the law enforcement, the investigation agencies.

Ben Buckland

Yeah. I think that’s super interesting. Just a couple more questions. One is about, thinking more broadly, and some of it relates to the Méndez Principles and some of it relates to what we talked about in OPACT, but generally whether you have some reflections about the importance of building and strengthening these kind of international, regional and national partnerships for torture prevention, and how you see these partnerships as important for APT's work and for advancing torture prevention.

Barbara Bernath

I think from the beginning, partnerships are at the key of the work of the APT. Even when it was still the Swiss Committee against Torture, the cooperation with the ICJ, the International Commission of Jurists, was key from the beginning. So cooperation with the civil society, cooperation with States, friendly States and others, cooperation with national actors.

So if we look back, cooperation with civil society, as I said from the beginning, there was this strong support, alliance and strategic thinking with the ICJ and then there was a strong coalition with all the other international NGOs to support the adoption of the OPCAT by the General Assembly. We would not have reached this, only four states against, without this strong coalition. And then also before the Secretary General, Claudine Reni had this idea of building coalitions with other NGOs and we had this synapse, the coalition of International NGO's against Torture, which was created at the end of the ‘90s, maybe ‘99, 2000, together with Fiacat, IRCT, Redress and Amnesty International. So really having the five logos, and later with the ICJ as well, the six logos of all these international NGOs on some of the issues, UNCAT ratification, we had joint campaigns, appointment of special rapporteur against torture was really, really strong and key.

And now since last year, we launched the United Against Torture Consortium, which is a little bit the continuation of this work of the synapse. And it's just a realisation that we need to join forces to have a stronger voice at the international level, at the national level. But really to make change happen, we need to work more together as civil society and we need to work more together as international civil society organisations. But to make change happen at the national level with the members that some of our partners have in UATC, but also with the partners. So working in partnership with civil society, I think is really, really key. 

Then working in partnerships with States. This was always also the strategy. And we have seen that OPCAT adoption would not have been possible without Costa Rica first, that deposited the draft, but also without the other European, Latin American States and some other partners, supporters from Africa and Asia. And this was also key for the Robben Island Guidelines and further advances.

And then national partners, or national human rights institutions and national preventive mechanisms, are the key drivers for change at the national level to implement torture prevention in the daily work or in the daily advances at the national level. So we have worked closely with the regional network of NHRIs in Africa, in Asia, the Asia Pacific Forum for National Human Rights Institutions, now with a recent network in Latin America, also in Europe. So these networks are key. Now there are new NPM networks that are created by NPMs, led by NPMs, for NPMs. And our role is more to support them. And I think they are really key in advancing the torture prevention agenda. 

In our work on partnerships, depending on the context and the opportunities, we have also signed MoUs or cooperate with ministries, with authorities. And I think that makes us also a bit different from other human rights NGOs that are more like, sometimes in a more confrontational relationship with the authorities. We are working with the police in Madagascar, in Thailand, in Brazil with the judges, and they are key actors as well, to bring changes from inside. And it's not always an easy way, but it's a very powerful way to build ownership and strategic changes at the national level.

Maybe one specific example of a project where we have built all these different partnerships together is the Safe in Custody project that has been funded by the EU to reduce risky practises by the police in three countries, Thailand, Malaysia and the Philippines. And where we have been working with one national NGO in each country, CRCF in Thailand, Task Force Detainees in the Philippines, and Suaram in Malaysia.

And we see now the project is ending in the next weeks that there have been these synergies and there has been more dialogue between the civil society, the partner and the NHRI at the national level, but also between the civil society and the police. And in Thailand, for example, CRCF was on very bad terms with the police at the beginning, and we just invited them in our workshops with the police, and now they are invited directly to conduct training to the police in some sessions in Thailand. So building synergies through the partnerships, but not in a public way, but in discrete ways, just building these synergies is very powerful and contributes to advances in torture prevention in these three countries, but also at the regional level.

Ben Buckland

So, last question. I know it's difficult and occasionally perilous to make too many predictions, but thinking ahead, do you have a sense of what some of the challenges might be, but also some of the opportunities for torture prevention in the years or decades ahead?

Barbara Bernath

So I think in terms of challenges, and I think the 9/11 really was a kind of waking up call for us. But the overemphasis on security versus human rights and this debate is ongoing in the fight against terrorism, but also now, for example, in the work we are doing on public demonstrations, peaceful demonstrations, where the cursor lies between the individual fundamental human rights and the security. And we have to push hard to bring it back to the human rights and showing that there can be no security without human rights in the long term. So that's one of the first challenges, this battle between security and human rights.

The second challenge, I guess, now, compared to when I started back in 1997, that there is a kind of breaking of the taboo of torture by States. And we have seen with the populists at the time of Trump, but Bolsonaro in Brazil, presidents condoning torture, which was never the case before. I don't know if it's better or worse, they were more hypocritical, saying that there is no torture and torture is not acceptable. But then, in the end, they were also condoning torture. But this is a bit scary, this openness about acceptability of torture or justifying torture or tolerating torture under certain circumstances. And I think this is the other battle that we have to fight. And here is really where partnerships, and I think the communication here, is really key, because we have to also fight against a Hollywood movie or series like ‘24’. So here we have to win the public opinion again. And it's quite different from the ‘80s, ‘90s, where torture was under the dictatorship and the bad guys. And now it's also torture, ill treatment against common criminals, that is daily routine. These forced confessions that we discussed again, and here there is less enthusiasm. So that’s a challenge that is not new, but a fight that we have to take up again is winning the public opinion.

Then, in some countries, in some regions, organised crime is also a big issue, and we see that mainly in Latin America, where organised crime is infiltrating a lot of different areas. And how to maintain the rule of law, the democratic institutions, the oversight and the human rights, in this context is also very important. Authoritarianism, the shrinking space for the civil societies, legislation that are not now limiting the powers of civil society to conduct their work, is really key. The legislation that are now restricting the work of the civil society to conduct their work, or to receive funding from abroad, is a threat as well to the work of human rights.

And we have to have a strong human rights, civil society movements at the national level, to be able to continue to defend human rights. I think what we have seen is that torture prevention, human rights and torture prevention is never a given, that you have to always fight and work hard to maintain the standards, the institutions. So it takes many years to create strong and powerful institutions, and it takes a few seconds to dismantle them.

So this is really ongoing work that we have to do and not take it for a given at any moment. But the hope as well is that we have to work long term and not focus on the short term. And if we look back at where we come from, there is progress, there is more oversight, there is transparency, the States that were against the idea of monitoring, of oversight, are joining the movement. The civil society are still progressing, even in difficult conditions. So if we look back, there is progress, and we should keep this agenda, which is more like mid-term, long-term. It's not easy, because sometimes you just feel not hopeful about what's happening. But if you look back in a period of ten years, I think this will be growing and continuing, but we just have to keep up the hard work and continue to work altogether. Because really, the fight against torture, contributing to societies without torture or ill treatment, is a joint responsibility, is a work that we can do only together with all the partners at the international level and at the national level, and regional level.

Ben Buckland

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

From all of us at the APT, we want to thank Barbara for her profound contribution to torture prevention efforts around the world. 

The transcripts for both episodes in this series are available for download.

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