Prevention of Torture: Between Playbooks and Real Life

Abstract

This is no ordinary book. Its author, Sir Professor Malcolm Evans, needs no introduction: his many years as Chair of the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) have made him one of the most prominent figures in the field of torture prevention, and his writing skills alone would probably transform even the driest subject into compelling prose. Yet what makes this book so distinctive is its blending of genres: a skilful interweaving of sharp legal analysis, a frank account of the UN’s structural shortcomings, a practical guide, and a generous handful of personal recollections. What is it, then? A handbook, an essay, a memoir? Or perhaps all of the above?

One explanation for this unique narrative approach is the purpose of the book, as the author’s intention is not only to provide an honest account of the SPT’s work, but also to confront and dismantle certain illusions and myths—some of which, the author suggests, may be deliberately perpetuated—surrounding the prevention of torture (Evans 2023: 3–4). The somewhat relaxed narrative style, looser than that found in many high-minded academic works where rigidity of style often masks a lack of substance, serves this purpose well. It allows for digressions and the inclusion of practical details that might seem out of place in a more formal account.

The book is structured in two main sections, each subdivided into chapters: the first section, The Solution, is followed by the second, entitled The Problem. It may at first seem counter-intuitive, or even peculiar, to begin by suggesting remedies without first introducing the problems to be addressed. Yet this structure proves effective as it establishes a coherent path by starting with the theoretical underpinnings of anti-torture efforts—the definition of torture, a brief but rich history of the Optional Protocol to the Convention Against Torture (OPCAT) and the SPT, and the concept of national preventive mechanisms (NPMs). Only then does it move on to the author’s accumulated insights from years of preventive visits to places of detention, and this is where the complex realities on the ground are finally revealed.

Some books read as if under a spell, with the reader encountering their own thoughts, or at least intuitions, page after page. This is what prompted me to reflect on Professor Evans’ account of the realities of torture prevention, even though my experience as Deputy Ombudsman in charge of Poland’s National Preventive Mechanism differs significantly. Firstly, I am not technically inside the NPM. Secondly, the visits of the NPM, which only monitors institutions within its own country, naturally lack the diplomatic entourage and language barrier that are part of the SPT’s daily life. And thirdly, though no less importantly, the reality of places of detention visited in my country—even the most dismal, where no one would voluntarily spend a single moment—is infinitely better than what has certainly been presented to SPT members on some occasions. But even though, for all these reasons, I am not part of the banana team (readers of the book will be well aware of why bananas play a special role in this story!), I believe that some realities can be seen quite well from where I stand.

This volume is a powerful account of the forging of legal safeguards against torture, an excellent companion for anyone who wants to trace how we arrived where we are, and an inspiring discussion of the current state of freedom from torture. Yet the main reason for my enthusiasm for this book is that Malcolm Evans successfully avoids the two main pitfalls that await anyone writing on the prevention of ill-treatment. He neither succumbs to the temptation to detail the atrocities that an anti-torture institution must address nor romanticizes the prevention of torture. His book praises realism and pragmatism, but realism and pragmatism are opposed to formalism rather than idealism. It also defends the approach that sometimes the best you can do is good enough. These are not easy truths for everyone to accept:

What matters is being honest with yourself and with everyone else about what can and cannot be done. This involves the discomfort of sometimes having to accept, in the short term at least, that what ought to be done just cannot be done, in which case you must focus on the next best thing. … The thing which bothered me the most, perhaps, was that some thought this approach was controversial. Departing from the orthodox in the human rights world is greatly frowned on – even if all you are doing is stating the blindingly obvious. (Evans 2023: 169–70)

And this is probably the most fascinating side of the book, or at least the one that resonates most with my feelings and experiences. But let’s take it one step at a time.

The temptation to spice up a story about torture in international law with a few macabre examples will be familiar to anyone who has ever had to stand in front of a group of bored students (the eternal curse of morning classes!) and consider smuggling in a handful of gory details from cases that the international community has brought to light in its campaign against torture. This is probably a good way of turning a lethargic lecture into a trailer for a splatter film, a strategy that may animate the audience for a while, but is ultimately ineffective because not quite what is needed will be remembered, and also morally ambiguous because an academic anecdote is made out of real human suffering.¹ The author of the book writes explicitly about why he does not intend to go down this road, stating that he does not want it to be a ‘litany of horror stories’ (Evans 2023: 139) and refusing to navigate between cheap entertainment and thinly veiled accusations. The door to hell is sometimes ajar in this story, for without it is impossible to realize what torture is really about. But these details never overwhelm, for they are there to make the brain work better, not to make the heart beat faster.

While it is always a cheap temptation to overwhelm the reader with nightmare stories, it is often much more appealing to romanticize the prevention of torture, especially since in the latter case we are often talking about ourselves, our sensitivity to human suffering, and our unwavering commitment to confronting it. It is then easy for a human rights defender to fall into self-admiration, to make themselves the central character of the story, perhaps even to embark on an endless media tour to receive congratulations and tributes for saving the world. All this may look splendid in the limelight, but has little to do with reality.

Malcolm Evans does not depict the prevention of torture as an exalted service to ideals, a never-ending source of satisfaction that leaves no shadow of doubt about the significance of one’s efforts. The reality of torture prevention is usually far less spectacular, and it’s not just about the sights and smells, for it is probably clear to everyone that torture prevention at close quarters is not a job for the overly sensitive. The actual point is that torture prevention is also a constant compromise and the art of fixing reality in small steps. The author openly admits that incrementalism, however difficult for many to accept, is his approach to dealing with torture (Evans 2023: 6). This is in keeping with the realistic premise that ‘while we may never live in a world in which no-one is ever subjected to torture, we can live in a world in which far fewer people are’ (Evans 2023: 3).

The romanticization of torture prevention, from which this book is refreshingly free, often brings with it a tendency to demonize law enforcement. Every St George needs a dragon, and while the abstract concept of torture does not fit well in this role, it is another matter when the ‘dragon’ becomes prison guards, border officers, police, or psychiatric ward staff. Virtue tends to shine brighter when set against vice; the darker the portrayal of those enforcing order, the more the human rights defender’s merit seems to glow.

This is another trap that Malcolm Evans sidesteps, as he acknowledges that real security concerns raised by staff cannot be dismissed too easily, although not all such concerns can be accepted uncritically (Evans 2023: 146). There is wisdom in seeing both sides: recognizing that guards are also human, that they too are vulnerable to harm, and that providing them with basic security may foster the peace of mind that could, ideally, lead to better treatment of prisoners.

And perhaps more importantly, when a human rights defender clashes with facility authorities during a visit and then leaves the prisoners behind with them, what result can be expected? In doing so, they may be bolstering their own sense of moral superiority, but they are certainly not helping those they claim to support. Such a defender resembles someone who, upon seeing a violent parent publicly mistreat a child, loudly calls it out. While the defender leaves the scene feeling validated in their sensitivity to injustice, the child returns home to their abuser, now at risk of further punishment for the public humiliation caused. The point is not to appease those who resort to unnecessary violence, but to carefully weigh the potential consequences of one’s own actions. Above all, it is crucial to remember that real change must often come from the very people we may feel inclined to criticize or lecture.

As I read through chapter after chapter of Malcolm Evans’ book, it struck me that almost everything I find so compelling and refreshing about it comes down to one thing: realism. Perhaps we have reached a stage in human rights literature where simply portraying things as they are is remarkable in itself. But there is more. This book places the victims of torture at its centre, rather than celebrating the people and institutions tasked with preventing it. It focuses on what truly needs to be done to help, rather than on expanding the empire of help. Even when the author talks about the institutional architecture of OPCAT, even when he complains about the inadequate resources of the UN, he ultimately does so with a view to ensuring the effectiveness of prevention. It gave me particular (albeit slightly cynical) satisfaction to read in an account of one of SPT’s visits:

It was suggested to us by the national authorities that we might like to suggest sources of funding so that the staff in that police station could be sent on a course to receive appropriate human rights training. I muttered in reply that it might be better to send them on a course to be trained in how to use a bucket and a mop … (Evans 2023: 152)

The idea of training has, over the years, become the holy grail of human rights, as though the entire world suddenly believed Socrates’ claim that it is enough for a person to know what is good, and they will do good. Training is, of course, necessary, because humanity has yet to invent better ways of transmitting practical knowledge, and spontaneous self-education within law enforcement is hard to rely on. But they are sometimes a mere ritual for trainees and trainers, an arrangement that benefits everyone except those the training is supposed to help: the victims of abuse. I have read reports from visits to institutions where staff have received, at least on paper, enhanced training on a wide range of topics, from anger management to preventing professional burnout. Yet, despite these soft skills, they have continued to act insensitively, thoughtlessly, and cruelly. So, what should we do—provide more training? Indeed, sometimes a doctor who sees that a medication is not working as it should will increase the dosage. But if it still does not work, perhaps it is time to face the truth. That kind of honesty can be difficult to come by when you are both the producer and provider of the treatment, and that is the position many human rights institutions find themselves in.

The obsession with endless training is, in fact, a symptom of a wider problem, to which the author devotes one of the most interesting chapters of the book, entitled Prescribing the Inappropriate. This problem is the vagueness and inadequacy of the proposed remedies for the identified deficiencies. At first glance, this may appear to be, above all, a problem of international bodies making recommendations to national governments:

raising a concern with the state at the end of a visit or making a rather generic recommendation without specifying who or what should be done might itself not be of very much help since the national authorities might not know the answers to those questions either, being too far removed from the day-to-day operational management of a situation to be able to understand what would really make a difference. (Evans 2023: 161)

But is this not a more general weakness that also affects national human rights institutions, which are often unwilling to investigate the causes of observed violations? This somebody-should-do-something approach is often a way of shirking responsibility for improving a particular area, but it rarely leads to real progress. Much like the well-known example from social psychology, where crying out for help to an anonymous crowd results in responsibility being diluted and help never arriving, it seems a better strategy to direct expectations towards specific institutions.

Malcolm Evans’ book is painfully realistic in many ways. Nowhere else have I read such an accurate description of the unpredictable chaos that any visit, even the best-planned, can seamlessly turn into (Evans 2023: 131–2). If the visit is to be unannounced, the price is that the unwitting host will not inform you of any changes in plans: you may find on the spot that the institution has been closed, its purpose changed, it is being refurbished, or that the head of the institution is away on an official trip or on sick leave. Detailed schedules of activities to be carried out during the visit become a record of ambitious intentions that reality has cruelly mocked, as certain tasks take longer than expected and alarming details emerge in conversations that cannot be ignored. And then there is the fact that you may simply not be allowed in and have to wait at the gate until the relevant services arrive, explain your mandate to the person in charge of the facility, and persuade them to let you in; by which time, most regrettably, the evidence of staff abuse may have been effectively erased. I am sure that any NPM, including mine, would have quite a lot to say on this subject.

Another level at which pragmatism should challenge established habits is that of the UN’s administrative resources. I must admit that I was not aware (but who was?) of the horrendous cost of translating SPT documentation into other languages, including Mandarin and Russian (Evans 2023: 188–9). The UN’s reckless profligacy in this area contrasts sharply with its economy in other areas, as illustrated by the understaffing of the SPT Secretariat.

There is perhaps one central argument on which I would find it difficult to fully agree with the author. Professor Evans is not particularly fond of the distinction between torture and ill-treatment; he already raised his objections to it many years ago (Evans 2002). Indeed, it can be argued that the distinction is artificial and leads to a bizarre and morally questionable calculus of suffering, for in the case of torture, pain and suffering are expected to reach a level of severity that is not required for inhuman or degrading treatment or punishment. Linguistic intuition alone, without familiarity with the case law, does not help much here: why was inhuman placed next to degrading and below torture? But more importantly, and this is where my doubts arise, Malcolm Evans believes that the distinction between torture and ill-treatment in fact serves to downplay the latter:

there can be something almost voyeuristic about the obsession with the severity of suffering that characterises, or underpins, much of the discussion about the distinction between inhuman treatment and torture, and the very descriptions found in some of the cases seem to be intended to highlight – or downplay – the severity of what has occurred. … Whether intended or not, this can have the effect of diminishing the significance of a finding that ‘inhuman’ treatment has taken place. … But when the word ‘torture’ is reserved for such cases it can result in those ‘other’ cases, cases in which the pain and suffering inflicted is not thought to be ‘quite so severe’, not being called out for what they really is – torture. (Evans 2023: 35)

And this approach, further stimulated by academic rigour and hierarchical habits of mind, is then met with political demand:

there was never any acceptance anywhere that torture was just a routine part of the way in which the state went about things. It was always a criticism to avoid, deflect or seek to excuse – in marked contrast to the general willingness of national authorities to accept that much else concerning the treatment of detainees was inhuman or degrading. (Evans 2023: 28)

No doubt there is much truth in this. The broad category of ill-treatment is a perfect excuse for governments to allow the inexcusable. After all, things might not be so bad if torture had not been established! But in the end, the prohibition of ill-treatment, like the prohibition of torture, is absolute and allows no exceptions. So why make the distinction at all? Unlike Professor Evans, I see at least two benefits of doing so.

The main benefit is precisely that states are generally more willing to accept responsibility for ill-treatment, which they would probably avoid at all costs if the stigma of torture were attached to accepting it. This is where a sense of justice gives way to pragmatism: if the price of addressing human rights abuses is to save the reputation of the state and make the government feel better, why not pay it?

But there is a second benefit, this time more related to justice for victims of torture. We all agree that, although everything becomes unacceptable at a certain level of severity, there is still a gradation. Even the most egregious examples of inhuman treatment, taken from the case law of the European Court of Human Rights, are still less horrific than the medieval tortures inflicted on those condemned to agonizing death. Or, to avoid clichéd examples from the past, given a choice between two evils, anyone would choose Ahmed Selmouni’s police station over Jamal Khashoggi’s consulate (even if they would rather not choose at all). My point is this: doesn’t equating ill-treatment with torture dilute the horror of ‘real’ torture? Would it be fair to the victims of torture to equate their unimaginable pain and despair with the (undeniable) suffering of someone who has served a short prison sentence in inadequate confinement with poor ventilation? And finally, wouldn’t we be getting too used to the idea of torture if, at a certain level, not too high, everything was labelled as torture? It looks a bit like the message an overly strict teacher sends to his students, especially the less talented ones, by failing 95% of them: if almost everyone fails, why bother trying at all? I certainly wouldn’t want to live in a world where the less able pupils in that class would stop trying.

There is probably much more that could be said about Professor Evans’ illuminating and inspiring book, but a review should leave the reader with something to discover. After all, nobody likes movie trailers that spoil all the best moments. Tackling Torture: Prevention in Practice is essential reading for anyone who wants to understand what torture prevention is really about, both academics and practitioners alike. One final caveat: this may not be the best book to start with when exploring the world of torture prevention. Perhaps it should be read later on, after guides and manuals—precisely to understand why things can turn out to be very different in the real world.

Conflict of Interest

None declared.

Funding

None declared.

Disclaimer

The views expressed in this essay are those of the author alone and do not necessarily reflect the official position of the Commissioner for Human Rights of the Republic of Poland.

References

Footnotes

Author notes