I've just finished reading an article entitled The Optional Protocol to the Convention Against Torture and the Detention of Refugees by Alice Edwards of the University of Nottingham. Edwards has put together a thorough and compelling argument for the application of the OPCAT's treaty monitoring mechanism to refugees deprived of liberty at arrival points, in administrative detention, in closed refugee camps, and in extraterritorial holding centers. Though her paper focuses only on refugees, Edwards' suggestions also offer a creative though imperfect solution to the problems of the conditions of detention of immigrants (refugees and non-refugees alike) in the United States (about which I've blogged here and here). Moreover, the article's a reminder that the United States has yet to sign or ratify the OPCAT -- a step that the Obama administration should add to its list of priorities. Edwards begins by discussing OPCAT's twin inspection bodies: the Subcommittee on Prevention of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (SPT) and the national preventive mechanisms (NPMs), which are responsible for regular visits to detention centers and must be given unhindered access to detention sites and detainees. While we've seen recent visits to and reports on U.S. immigration detention centers by the UN Special Rapporteur on the Rights of Migrants and the UN Working Group on Arbitrary Detention, the establishment of regular visits by an international and a domestic body would provide more reliable and consistent monitoring of the conditions of detention for immigrants in the U.S.
One central problem, of course, is whether the conditions of immigration detention in the United States meet the definition of torture or cruel, inhuman, and degrading treatment. Edwards argues for a broad definition of torture and other forms of ill-treatment, even positing that OPCAT's definitions need not be as narrow as those in the Convention Against Torture. Because of the protocol's preventive function, the argument goes, the requirements of interrogational/confessional intent and government consent or acquiescence should be relaxed (the latter to ensure that OPCAT's protections apply to private custodial settings). This argument holds more sway applied to the refugees that are the subject of Edwards' article as they are particularly psychologically vulnerable to such ill-treatment; whether member states would accept its application to non-refugee immigrants is less clear.
Given these definitional issues, it may be a more sensible approach to locate monitoring bodies within a U.N. agency with a mandate that maps more precisely onto the problems encountered in immigration detention. It would also be preferable to utilize an agency whose authority the U.S. has accepted for monitoring purposes. It's not immediately apparent which agency that might be -- for the refugees, the UN High Commissioner for Refugees (which Edwards argues should play a complementary role to OPCAT), and for other immigrants, perhaps the UN Human Rights Committee. But these solutions are far from perfect, as UNHCR would have to establish such a monitoring body, likely through a treaty, and its mandate extends only to refugees, not other immigrants. Moreover, the HRC doesn't offer the dual monitoring framework focused exclusively on detention that we see in OPCAT, and its individual petition option would again require ratification by the U.S. So Edwards' OPCAT solution appears better than the alternatives even when applied to non-refugee immigrants, and in any case, her article is well worth a read.
(Hat tip to IntLawGrrl Diane Marie Amann for sending the article my way.)
