An examination of the role of soft law in international human rights law: the Robben Island Guidelines on the Prevention of Torture in Africa

Lead Research Organisation: University of Bristol
Department Name: Law

Abstract

Torture, what it means and whether states have an obligation to prevent torture and other forms of ill treatment has been of increasing political and therefore legal importance in recent years. How one defines torture, who sets the standards and how one implements these are now matters of international and national importance.

The standards relating to torture have been created through international law. This has been done in a number of ways, most notably through written agreements between states (known as treaties) which create legal obligations for states. There are also a number of other documents which are created over which there is a question as to whether they create legal obligations. These are known as 'soft law' documents. On the one hand states and others are more likely to agree to these documents because they are not binding. However, the content of them can develop the detail on what states should do to prevent torture, for example, and various organisations and actors may use them to try to set standards for states and hold them to account. Although there has been some literature on their role and their potential importance in setting and developing legal standards, less attention has been paid to practical examples of these type of documents and to considering how they are used by states, non-governmental organisations and others, whether internationally or within particular countries.

This research takes one example of a 'soft law' document, the Robben Island Guidelines on the Prevention of Torture (RIG) and aims to consider how they were created, whether they create legal obligations, how they are used internationally and nationally and how the standards within them can be implemented. The Robben Island Guidelines were created under the regional human rights body for Africa, the African Commission on Human and Peoples' Rights, and they set out requirements for states to prevent and criminalise torture.

This is a unique opportunity for high value research in this contentious area of torture given the background and experience of both the Principal Investigator, Co-Applicant and the Research Assistant.

The Principal Investigator and the Research Assistant will carry out a literature review relating to soft law before examining the documents and material of the African Commission and its Follow Up Committee established to implement the RIG. It will also undertake a series of trips to several African countries to determine views on the use of the Guidelines nationally. A series of seminars will also be held. A PhD studentship will track what mechanisms are available to prevent torture in one African state of the candidate's choice.

The outputs of the research will be both academic and practical.They will include a book length study on the Creation and Implementation of Standards of Torture, and several articles in leading journals on torture and the strategic use of soft law. More practically, the research will involve seminars the result of which shall be the adoption of policy papers and guidance on implementation of RIG, including a strategic plan for the Follow Up Committee on implementation of RIG. The seminars will bring together members of the Follow Up Committee and other international organisations such as the APT and national bodies such as police and prison ombudsmen and NGOs, as well as government and others to discuss implementation of RIG. A final conference at the end of the project will examine the role of soft law in international human rights law. This will invite key individuals and organisations from the field of international law generally as well as RIG in particular. The research will also provide a website on the RIG and their implementation. A PhD will be completed within the period of the project.
 
Description The research examined the role of non-binding 'soft-law' documents in the development of international human rights law. Our project aimed to examine from a very practical perspective issues about the use of soft law. We have done this through detailed analysis of one soft law document of the African Commission on Human and Peoples' Rights namely the 'Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel and Inhuman or Degrading Treatment or Punishment in Africa' (Robben Island Guidelines) (RIG). We considered that through tracking the development and subsequent use of one soft law document the IHRS project could contribute to a better understanding as to how soft-law documents impact upon the development of international human rights law. While the focus of the project was on the use of the RIG, and soft law documents generally, rather than compliance, issues relating to compliance have been looked at impliedly. Furthermore, while the RIG has been used as a case study, during the course of the research we also looked at a number of other types of soft law documents such as concluding observations of treaty bodies, resolutions and individual communications. This led to look at what forms of follow-up there should be to these documents. The project findings indicate the following:

1. Use of the RIG by the African Commission:

We found that there was very limited reference by the African Commission itself to the RIG in all aspects of its work. This included in its resolutions, decisions on individual communications, concluding observations and other documents. Where there was reference to the RIG, this was mostly in passing often referring to it as a document rather than any specific provisions, and frequently the RIG are not mentioned in isolation but in conjunction with a range of instruments. Although there are a few examples of communications which make reference to particular provisions of the RIG.

2. References to the RIG within the UN human rights mechanisms

Our research also examined references to the RIG by the UN human rights mechanisms. Here we found a number of incidences where the RIG have been referenced by UN mechanisms not just in passing but in a more substantive way. In particular the UN Special Rapporteur on Torture has referenced the RIG in a number of reports on missions to countries where the mandate holder called on the respective State to "abide by" the RIG. The SRT has also mentioned specific provisions of the RIG in reports to the UN General Assembly and in joint reports with other UN Special Procedures. In addition the RIG has also been references in a number of press releases by the SRT. References to the RIG by other UN Mechanisms is limited, although instances of NGOs referencing them in their documents submitted to the UN were found.

3. Domestically:

Our research does not claim to be comprehensive as we did not visit all states across the continent and therefore our findings are more a snapshot of how RIG has been received and used at the national level. We conducted research visits to Egypt, Ethiopia, The Gambia, South Africa, Tanzania, and Uganda. In deciding upon which States to visit we strategically chose States from different regions of the Continent and ensured we included States which had received visits by the CPTA or Follow-up Committee, and/or the APT,and those which had not. .



We found that overall, the majority of interviewees had not heard of the RIG prior to our research visit. Very few people had heard of the RIG. Of those that had only a handful have actually used RIG in their work. Where it has been used this has been as one of a number of reference tools for drafting legislation or awareness raising on an issue mostly around the criminalisation of torture, for example in Uganda the RIG was used as one of the resources for preparing the Torture Prevention Bill but it was one of a number and no reference to it has been made to the RIG in the preamble to the Bill, so its use is "hidden".



We did discern that knowledge of the RIG seems to be dependent on whether or not the Follow-up Committee, CPTA or APT has actually visited the country and organisation, or if the organisation or individual had attended a session of the African Commission.



Some broader findings.

These findings have led to some broader findings from the research.

(a) Preference for UN instruments and standards rather than African documents in practice, despite rhetoric that useful.



One perhaps surprising finding from our analysis of the RIG is that while on the one hand, we are told that their merit and relevance comes from the fact that they are an African document adopted by the African Commission and that they were to 'Africanise international standards', in reality most would turn to the UN standards first. Those who claimed that regional standards are better because they will be closer to the culture and context of Africa did not in fact use the regional instruments over international.



(b) A mechanism for implementing soft law



It is unusual to have a mechanism to follow up a non-binding document and the appointment of a follow-up committee, now the CPTA, to monitor the RIG was therefore welcomed. However, there are a number of issues raised in this regard with respect to the ability of the RIG to have an impact.



Firstly, despite the rhetoric that the RIG are an important African document, their use at all levels is very limited. This is not wholly negative however. This, as outlined above, appears to be the result of strong and accepted international instruments as well as a lack of awareness of the existence and content of the RIG. There is a recognition that where there are gaps, the RIG can usefully fill these spaces if the African Commission and its CPTA are prepared to develop further guidance and standards in these areas. In addition, many pointed to the continued need for the existence and use of the RIG as having a symbolic relevance as an African document and in its ability to bring together some key international issues in training and advocacy contexts. These areas include, but are not limited to, OPCAT and prevention.



There was also a desire for the CPTA's capacity in terms of its membership to be broadened, with perhaps increased involvement of other actors such as NHRIs. The need for the CPTA, in collaboration with the other special mechanisms of the African Commission, to develop standards, comments and guidelines on torture related issues was also felt to be worthwhile endeavour. However, we also found that it was crucial that the mandates of the CPTA and the Special Rapporteur on Prisons in particular be debated in more detail and practical tools developed to ensure that they support and strengthen rather than overlap or duplicate each others' work.



(c) binding versus non-binding?



On the whole there was a preference to make reference and to use binding standards first and then to look at non-binding standards. In particular this was noticeable in litigation where I think everyone involved in litigation stated that they would of course use binding instruments first and it seemed odd to them to even consider non-binding standards. (I often struggled with people involved in litigation to get them to understand why we looking at non-binding standards and these proved to be the most difficult interviews to explain to people why I was asking questions about binding and non-binding documents.) In litigation many I spoke to appeared wary to use non-binding standards in their litigation and in particular non-binding standards that were not domestic standards because the judges would not view these non-binding, "foreign" standards as relevant or applicable within their jurisdiction. It was mentioned to me on numerous occasions that judges are not well informed about international and regional standards.
Sectors Other

 
Description Our findings have been used not only by the African Commission itself in developing its strategy around torture prevention and the work of its Committee on Prevention of Torture in Africa (CPTA), but also by the African Court on Human and Peoples' Rights and by civil society organisations who have used our findings in their work. We have an excellent ongoing relationship with the CPTA and as a result of this grant have also developed close working relationships with civil society organisations engaged in torture prevention work in Africa.
Sector Government, Democracy and Justice,Other
Impact Types Policy & public services

 
Description Assistance to government in Rwanda on establishment of an NPM
Geographic Reach Africa 
Policy Influence Type Gave evidence to a government review
Impact The research team have been providing assistance to the Ministry of Justice and the national human rights institution in Rwanda on the establishment of a NPM. This included providing assistance with the drafting of a law for the establishment of an NPM and in January 2018 providing training for CSOs for their effective contribution to the implementation of OPCAT.
 
Description Contributed to a draft Guide on the Implementation of the African Commission's General Comment on the right to reparation for victims of torture
Geographic Reach Africa 
Policy Influence Type Membership of a guideline committee
Impact Contributed to a draft Guide on the Implementation of the African Commission's General Comment on the right to reparation for victims of torture developed by PARI (Pan African Reparation Initiative) - a coalition of NGOs involved in reparations for victims in Africa. This was adopted by the African Commission on Human and Peoples' Rights as standards for States and others.
URL http://www.achpr.org/news/2015/09/d191/
 
Description Human Rights Law Clinic support to the Committee on the Prevention of Torture in Africa (CPTA) country briefings
Geographic Reach Africa 
Policy Influence Type Citation in other policy documents
Impact Under the Human Rights Implementation Centre's Law Clinic, research was carried out and over 15 country briefings were prepared for the African Commission's Committee on Prevention of Torture in Africa (CPTA) on recent developments with the prevention of torture and other ill-treatment in Africa. The country briefings are used by the CPTA to inform their engagement with member States of the AU on the implementation of their obligations under Article 5 of the African Charter on Human and Peoples' Rights, as well as UNCAT and other treaties that prohibit torture and other ill-treatment.
 
Description Influencing the policy of the African Commission on Human and Peoples' Rights
Geographic Reach Africa 
Policy Influence Type Implementation circular/rapid advice/letter to e.g. Ministry of Health
Impact Our findings from this project and seminars held during the lifetime of this project have aimed to engage directly with stakeholders, including the African Commission on Human and peoples' Rights. In so doing, these activities and our findings have impacted on the policy of the Commission. In particular through our collaboration with the African Policing Civilian Oversight Forum the research team provided input into the process for developing the AFrican Commission's policy in relation to pre-trial detention through the adoption of Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (The Luanda Guidelines) in 2014.
URL http://www.bristol.ac.uk/law/research/centres-themes/hric/softlawrigproject/
 
Description Influencing the work of NHRIs in monitoring implementation
Geographic Reach Africa 
Policy Influence Type Membership of a guideline committee
Impact Influenced NHRIs in terms of their monitoring of implementation of decisions on human rights violations in their countries.
 
Description Ratification and implementation of the OPCAT in Uzbekistan
Geographic Reach Multiple continents/international 
Policy Influence Type Influenced training of practitioners or researchers
Impact In August 2018 organised a workshop with the OSCE to support the ratification and implementation of the OPCAT in Uzbekistan. This workshop brought together representatives from a range of institutions including the government, law enforcement, parliament, the Ombudsman Office and the National Human Rights Centre to examine the opportunities and challenges for the ratification of OPCAT in Uzbekistan. The training explored how the OPCAT aims to assist States to implement their existing obligation to prevent torture and other ill-treatment, and examined the mandate and functioning of the UN Subcommittee on Prevention of Torture. It also explored different models for National Preventive Mechanisms (NPMs) drawn from the experience of States parties to the OPCAT globally.
 
Description Tools for implementation of UNCAT and OPCAT for the Convention Against Torture Initiative (CTI)
Geographic Reach Multiple continents/international 
Policy Influence Type Influenced training of practitioners or researchers
Impact The project team have been involved in preparing and coordinating the drafting of five tools for the implementation of the UNCAT and OPCAT for the Convention Against Torture Initiative (CTI). These practical tools share good State practices from around the world on different implementation themes, and are intended to offer support, guidance and ideas for State practitioners and policymakers as they develop or revise context-specific strategies, mechanisms and procedures for the effective implementation of the UNCAT and OPCAT. The tools also draw on, inter alia, the provisions of the Robben Island Guidelines and recommendations and substantive comments made by the UN SPT.
URL https://www.cti2024.org/en/cti-uncat-implementation-tools/
 
Description EC Grant to develop torture prevention strategies in African states
Amount £75,000 (GBP)
Funding ID EuropeAid 
Organisation European Commission 
Sector Public
Country European Union (EU)
Start 01/2010 
End 01/2013
 
Description EC Grant to develop torture prevention strategies in African states
Amount £75,000 (GBP)
Funding ID EuropeAid 
Organisation European Commission 
Sector Public
Country European Union (EU)
Start 01/2010 
End 02/2015
 
Description Evaluation of treaty monitoring work of Equality and Human Rights Commission
Amount £16,000 (GBP)
Organisation Equality and Human Rights Commission 
Sector Public
Country United Kingdom
Start 01/2012 
End 04/2012
 
Description Evaluation of treaty monitoring work of Equality and Human Rights Commission
Amount £16,000 (GBP)
Organisation Equality and Human Rights Commission 
Sector Public
Country United Kingdom
Start 01/2012 
End 04/2012
 
Description Global Challenges Research Fund
Amount £5,000 (GBP)
Organisation Economic and Social Research Council 
Sector Public
Country United Kingdom
Start 10/2016 
End 12/2016
 
Description Grant from OSJI to hold pre-trial detention training with SPT
Amount £5,000 (GBP)
Organisation Open Society Foundation, New York 
Department Open Society Justice Initiative
Sector Charity/Non Profit
Country United States
Start 12/2012 
End 04/2013
 
Description Grant from OSJI to hold pre-trial detention training with SPT
Amount £5,000 (GBP)
Organisation Open Society Foundation, New York 
Department Open Society Justice Initiative
Sector Charity/Non Profit
Country United States
Start 12/2012 
End 04/2013
 
Description Human Rights and Democracy Programme
Amount £61,204 (GBP)
Organisation Foreign Commonwealth and Development Office (FCDO) 
Sector Public
Country United Kingdom
Start 05/2015 
End 02/2016
 
Description Human Rights and Democracy Programme
Amount £58,270 (GBP)
Organisation Foreign Commonwealth and Development Office (FCDO) 
Sector Public
Country United Kingdom
Start 08/2015 
End 02/2016
 
Description African Commission Pre-trial Detention Guidelines 
Organisation African Policing Civilian Oversight Forum
Country South Africa 
Sector Charity/Non Profit 
PI Contribution As a result of this project we were invited to provide expert advice on the development and implementation of soft law instruments of the African Commission on Human and Peoples' Rights specifically to assist the process for developing pre-trial detention guidelines for Africa at the regional level. Members of the research team participated in consultations and provided expert submissions to the drafting process which led to the adoption of guidelines by the African Commission on Human and Peoples' Rights.
Collaborator Contribution The African Policing Oversight Forum led the process for developing guidelines on pre-trial detention and organised consultations on the draft guidelines.
Impact New Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa were adopted by the African Commission on Human and Peoples' Rights in 2014.
Start Year 2013
 
Description Collaboration between CPTA and SPT, 5 September 2016 
Organisation African Commission on Human and Peoples' Rights
Department Committee on Prevention of Torture in Africa
Country Gambia 
Sector Public 
PI Contribution The Human Rights Implementation Centre (Rachel Murray and Debra Long) organised a one day meeting between members of the UN Subcommittee on prevention of torture and the African Commission's Committee on prevention of Torture in Africa to discuss areas of potential collaboration between them. The HRIC team funded the meeting from an internal Bristol University fund and facilitated discussions on the day, compiling the agreed note.
Collaborator Contribution Discussion of how to develop their relationship
Impact A record of agreements was made on how the two could collaborate in the future including publishing in each others' reports and publications, joint visits and attendance at sessions. Subsequent activity has included the compilation of documents together (through the GCRF) and a publication of one of the members of the SPT in a newsletter of the CPTA.
Start Year 2016
 
Description Collaboration between CPTA and SPT, 5 September 2016 
Organisation United Nations (UN)
Country United States 
Sector Public 
PI Contribution The Human Rights Implementation Centre (Rachel Murray and Debra Long) organised a one day meeting between members of the UN Subcommittee on prevention of torture and the African Commission's Committee on prevention of Torture in Africa to discuss areas of potential collaboration between them. The HRIC team funded the meeting from an internal Bristol University fund and facilitated discussions on the day, compiling the agreed note.
Collaborator Contribution Discussion of how to develop their relationship
Impact A record of agreements was made on how the two could collaborate in the future including publishing in each others' reports and publications, joint visits and attendance at sessions. Subsequent activity has included the compilation of documents together (through the GCRF) and a publication of one of the members of the SPT in a newsletter of the CPTA.
Start Year 2016
 
Description Collaboration with Association for the Prevention of Torture (APT) 
Organisation Association for the Prevention of Torture (APT)
Country Switzerland 
Sector Charity/Non Profit 
PI Contribution We signed a Memorandum of Understanding with the Association for the Prevention of Torture (APT) at the start of the project. The APT is a leading figure in the field and a member of the African Commission's Committee on the Prevention of Torture in Africa (CPTA). We have invited the APT to the events that have been carried out under the project and have participated in events that they have held in return. We have each committed to sharing our findings and opinions.
Start Year 2008
 
Description Collaboration with the Committee for the Prevention of Torture in Africa (CPTA) 
Organisation African Commission on Human and Peoples' Rights
Department Committee on Prevention of Torture in Africa
Country Gambia 
Sector Public 
PI Contribution The team at the University of Bristol (Debra Long and Rachel Murray) have offered research support to the CPTA, a committee under the African Commission on Human and Peoples' Rights, in terms of reports and analysis. The Human Rights Implementation Centre at the University of Bristol runs a Human Rights Law Clinic which involves placing students in teams who then provide background research for external organisations. The teams have provided research reports on the laws and practices of various African countries at the request of the CPTA.
Collaborator Contribution Request for advice from the research team and input into their reports. The CPTA have requested that we sign a memorandum of understanding with them to consolidate and formalise our work. This has yet to be realised.
Impact Internal reports for the CPTA.
Start Year 2017
 
Description Open Society Justice Initiative group collaboration on litigation before the African Commission 
Organisation Open Society Foundation, New York
Department Open Society Justice Initiative
Country United States 
Sector Charity/Non Profit 
PI Contribution Invited to be part of group collaboration involving lead NGOs working on enhancing litigation and follow up before the African Commission on Human and Peoples' Rights
Start Year 2013
 
Description Training and work with International Bar Association 
Organisation International Bar Association (IBA)
Country United Kingdom 
Sector Charity/Non Profit 
PI Contribution Training for Libyan human rights organisation organised by IBA. We were involved as trainers and for advice
Start Year 2009
 
Description University of Cape Town 
Organisation University of Cape Town
Country South Africa 
Sector Academic/University 
PI Contribution As a result of this project, we were invited to become partners on a European Commission funded grant looking at the implementation of Article 5 in six African states.
Start Year 2011
 
Description Working with Amnesty International to update their Combating Torture Manual 
Organisation Amnesty International
Country United Kingdom 
Sector Charity/Non Profit 
PI Contribution As a result of our work on this project we have been invited to work with Amnesty International to update their Combating Torture Manual. This is currently ongoing
Start Year 2011
 
Description Development of country briefings on torture and other ill-treatment for the CPTA 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Professional Practitioners
Results and Impact Development of country briefings on torture and other ill-treatment for the CPTA of the African Commission on Human and Peoples' Rights, for it to use in its work.
Year(s) Of Engagement Activity 2017
 
Description Engagement with African Commission on Human and Peoples' Rights 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact Attendance at sessions of the African Commission, engagement with its Commissioners and working groups; participation in events; submissions on commission draft resolutions and other documentation; assistance in developing its strategy
Year(s) Of Engagement Activity 2008,2009,2010,2011,2012,2013,2014,2015,2016
 
Description Establishment of an advisory group 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact Establishment of an advisory group composed of experts from civil society background, those with government and international organisation experience as well as academics, through which preliminary findings from the research project were submitted for their input and discussion.
Year(s) Of Engagement Activity 2008,2009,2010,2011,2012
 
Description Participation in 60th ordinary session of the African Commission on Human and Peoples' Rights, Niger 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact Debra Long and Prof. Frans Viljoen participated in the 60th Ordinary Session of the African Commission on Human and Peoples' Rights held in May 2017 in Niger. At the session a statement was made on behalf of the HRLIP during the plenary discussions outlining the research project objectives and individual communications being examined. Attendance at the session also provided an opportunity to hold meetings with the Commissioners and civil society organisations.
Year(s) Of Engagement Activity 2017
 
Description Participation in CTI/Government of Ghana seminar on the criminalisation of torture in sub-Saharan Africa, 5-6 April 2016 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact Participation in CTI/Government of Ghana seminar on the criminalisation of torture in sub-Saharan Africa, 5-6 April 2016. Engagement in high level disucssions with government and others on how to criminalise torture in domestic legal systems in Africa
Year(s) Of Engagement Activity 2016
 
Description Participation in the CPTA's drafting retreat to develop a General Comment on Victims Right to Redress under Article 5, February 2016, Cape Town South Africa 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact Participation in small working group to draft the African Commission's Committee on Preventino of Torture's (CPTA) General Comment on Article 5. Direct influence in content of the General Comment.
Year(s) Of Engagement Activity 2016
 
Description Participation in: REDRESS - IMLU Conference: Anti-Torture Legislative Frameworks: pan-African strategies for adoption and implementation 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact Participation on conference organised by REDRESS, useful for future collaboration around torture prevention
Year(s) Of Engagement Activity 2016