Časopis pro politiku a mezinárodní vztahy

Global Politics

Časopis pro politiku a mezinárodní vztahy

American Out-fashioned Philosophy of Punishment

Why should prisons be as human as possible rather than being inhuman? Why is the philosophy of punishment in the US completely different not only from the European but also from international standards? Global Politics asked these and other questions to Manfred Nowak, Professor of International Law and Human Rights at the University of Vienna and former UN Special Rapporteur on Torture.

In 1992, he founded the prestigious Austrian Ludwig Boltzmann Institute of Human Rights in Vienna. As UN expert on missing persons in the former Yugoslavia, he started a process aimed at the identification of missing persons through exhumation of mortal remains between 1994 and 1997. From 1996–2003, Manfred Nowak was a judge at the Human Rights Chamber in Bosnia. Since 2000, he is head of an independent human rights commission at the Austrian Interior Ministry. He has been a UN expert on legal questions on enforced disappearances since 2002 and was appointed UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment in 2004 with a mandate until 2010.

As one of the most significant scholars and experts in the international human rights field, Manfred Nowak has published more than 500 books and articles on international, constitutional, administrative, and human rights law, including the standard commentary on the International Covenant on Civil and Political Rights. He was awarded the UNESCO Prize for the Teaching of Human Rights in 1994 and the Bruno Kreisky Prize for Human Rights in 2007.

In addition, from 2000 to 2007 Manfred Nowak was Chairperson of the European Masters Degree in Human Rights and Democratisation (E.MA) in Venice, Italy, on which I am currently enrolled as a student. On the occasion of giving lectures and workshops in Venice in January 2012, Manfred Nowak agreed to provide an exclusive interview for Global Politics and the Czech Centre for Human Rights and Democratization.

First of all, could you describe your position as the UN Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment or punishment, which you held from 2004 to 2010? .[question]

The UN Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment or punishment is one of the thematic special procedures of the United Nations Human Rights Council. The Council is the main political body of the UN, dealing with human rights issues. It is a subsidiary body of the General Assembly. The Council consists of state representatives elected by the General Assembly; however, it uses independent experts as eyes and ears in order to investigate instances of human rights violations. On the one hand there are country-specific procedures investigating overall situations of human rights in particular countries, such as in North Korea or Myanmar. On the other hand there are thematic special procedures such as the Special Rapporteurs dealing with particular human rights issues on a global level.

The Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment or punishment was established in 1985 in order to deal with torture and other forms of ill-treatment. It is an independent and unpaid position, so I have done this next to my normal job as a professor at the University of Vienna. However, it takes a lot of time to do it. In particular you have to deal with individual complaints on a daily basis, sending urgent appeals to the governments and taking care of other communications. There is also a lot of publicity and media work you have to deal with, including also reporting to the UN Human Rights Council in Geneva and to the UN General Assembly in New York. The most time-consuming activity is to carry out fact-finding missions to various countries in the world. I have carried out within my mandate 18 missions, 2 follow-up missions and 3 joint-studies on issues such as the Guantanamo Bay secret detentions in the fight against terrorism and Darfur.

Manfred Nowak

Manfred Nowak

Within your mandate, the UN Human Rights Commission changed into the Human Rights Council in 2006 on the basis of a reform made by the UN. As it was during your mandate, would you say it had any influence on the work of Special Rapporteurs? .[question]

No. The mandate in principle remained the same, i.e. based on investigating torture and ill-treatment, making reports etc. You can also choose topics by yourself, as for example conditions of detention or corporal punishment, torture and women or torture and children, etc. So as you can see, it is a very broad topic you deal with. Since it is a global mandate, I really tried to visit as many countries from every region in the world in order to get a good idea what the situation of torture is in the world of the 21th century.

“Prisons should be not inhuman but as human as possible.”

As practiced in the US, mostly in Virginia and Texas, many prisoners are held in solitary confinement in so-called “supermax” prisons, often isolated for 23 hours a day in small cells. According to the statistics, 20,000 to 25,000 individuals are being held in the US that way. The current UN Special Rapporteur on torture Juan Mendez reported that indefinite and prolonged solitary confinement in excess of 15 days could amount to torture and thus should be absolutely banned. Are you of the same opinion? .[question]

I share the same view. Of course, for some of the most dangerous criminals and terrorists you might need it.

There should be also a life after prison. The prisoners cannot be locked away indefinitely. They have to be seen as human beings who have done something wrong and therefore are punished. Every human being should also have the opportunity of having learned a lesson from what he or she did and have the hope that they can start a normal life after prison. This is rehabilitation, which has to start in the prison. It means open prisons, regular visits, right to recreation, right to education, right to work and thus do something meaningful while in prison.

In most countries in the world there are open prisons for convicts. Prisoners are in their cells or rooms during the night, but during the day they should intermingle with other prisoners. That means having social contacts, such as working together, playing sports together, etc. This is important also in order to prepare them for life after prison. In the US you can be sentenced to 600 years in prison. The prisoner probably knows that he will never get out of prison again. Thus, there should not be prison sentences of this length. The way in which the prisoner behaves in the prison should be also taken into account for release. Prisons should be not inhuman but as human as possible.

“…it is the wrong philosophy of punishment. Supermax prisons are only one expression of this philosophy, which is totally different not only from the European but also from international standards.”

Why then do some countries adopt this inhuman approach? .[question]

This has to do with the philosophy of justice. Countries like the US and former Soviet Union still follow the philosophy of retributive justice, which should be as harsh as possible. This is not the right way. In Denmark, for instance, the normalization principle says that prison life should be made as normal and pleasant as possible, not as miserable as possible, because we want these people to be treated in a humane way and educate them. We want to prevent them from immediately committing a crime again once out of prison. By treating them as human beings, in a respectful manner, there is a much lower rate of recidivism. This is what we all should be interested in: having a crime rate as low as possible.

The way in which we treat prisoners in the prison is the major precondition for how high or low the crime rate is. According to the statistics, the US has been for years a country with the highest numbers of prisoners per 100 000 inhabitants. In the US there are between 700 to 800 prisoners per 100 000 inhabitants. In Western Europe the average is much lower, only about 100 prisoners. And there are also countries where you have only 20 or 25 prisoners for 100 000 inhabitants. This is not because the Americans are 8 times more criminal than the Europeans, but it is the wrong philosophy of punishment. Supermax prisons are only one expression of this philosophy, which is totally different not only from the European but also from international standards.

“The fact that the US is one of the countries that still keeps the death penalty is another proof of their out-fashioned criminal justice philosophy.”

In September 2011 the US Supreme Court reached its decision in a case of Manuel Valle, who had been sentenced to death in 1988 and spent 33 years on death row. Valle had asked the Court to halt his execution, on the grounds that to spend so long on death row is “cruel and unusual punishment” and is therefore prohibited by the US constitution. The Court decided that it does not violate the US constitution. Manuel Valle was executed immediately the next day after the judgment. How do you see the US system of waiting even decades on death row for execution? .[question]

The fact that the US is one of the countries that still keeps the death penalty is another proof of their out-fashioned criminal justice philosophy. The US is in a category with countries such as China and Iran, to which they usually do not feel they belong to as a state promoting the rule of law and human rights. The UN General Assembly repeatedly requested all states to have a moratorium, that they will not execute people anymore. The US, however, is one of the countries with the highest number of people sent to death.

As you mentioned in the beginning, the Special Rapporteur has a global mandate and can freely chose what country he wants to visit. Russia is widely criticized for its prison system and many cases of this kind are pending in front of the ECtHR. What is the reason, that none of the Special Rapporteurs have ever succeeded in getting an invitation from the Russian administration to do a visit on their soil? .[question]

I was actually invited. The Russian government accepted my conditions and I should have gone in October 2006. The week before the visit, however, the Russian ambassador in Geneva told me that they had changed their minds and they would not be able to comply with my terms of reference, such as unsupervised interviews with detainees. As a result I had to cancel it. But the European Committee for the Prevention of Torture (CPT) has the right to visit Russia and they regularly do that. Russia actually has had the highest number of visits by the CPT. The CPT investigated the situation, but at the same time the reports can be published only if the government consents. Russia is the only government in the Council of Europe, which has so far refused to publish these reports, with only one exception.

There is also another mechanism, which is the Council of Europe Commissioner on Human Rights. Thomas Hammarberg, the former Commissioner for Human Rights, has visited Russia regularly and wrote very critical reports. Of course, the ECtHR is not doing so many fact-findings on the ground, but has found in many cases serious violations of the ECHR.

“..the vast majority of victims and torture survivors I have interviewed are ordinary people. They are usually from the poorest part of society, very often homeless and jobless people.”

Within your mandate you have carried out altogether 18 missions and 2 follow-up missions. Based on what you have witnessed, who are usually the subjects of torture? .[question]

The political prisoners are of course the cases that are more well known. They are very often subjected to particularly cruel forms of torture. However the vast majority of victims and torture survivors I have interviewed are ordinary people. They are usually from the poorest part of society, very often homeless and jobless people. They are usually picked up and accused by police of having committed a crime. They are very often beaten until they confess to the crime. It does not even have to be a serious crime such as murder.

Unfortunately the situation in many countries in the world is that the administration of justice is corrupt and not functioning. As a result there is a lot of pressure applied by the judges, prosecutors, politicians and also by media on the police. The police is in the situation that it has to “solve” the crimes. The police officers are often not well educated and not well paid, so they just beat a confession out of anybody they suspect. Those people end up for years in pretrial detentions, and are then sentenced on the basis of a confession, which was extorted.

Of course, this violates many standards and conventions. For instance article 15 of the Convention against torture says that you should not use any evidence, which was extracted by torture. In reality, however, the situation is very often different. It is the police itself who sentences the victim and the judge and court then only put a rubber stamp on it.

Thank you very much for the interview. .[question]

Petr Pribyla is a student of European Master's Degree in Human Rights and Democratisation in Venice and an intern at the Czech Centre of Human Rights and Democratization in Brno, Czech Republic.

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Petr Pribyla
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1. 7. 2012