1. Introduction
In addition to the individual communication procedures, the Convention Against Torture and the Optional Protocol to the Convention on the Elimination of Discrimination Against Women, authorize the treaty bodies to undertake investigations in response to allegations of rights violations.
The standard for initiating such an inquiry is that there must be "reliable information" which indicates that "torture is being systematically practised" (article 20) in the case of CAT, or "grave or systematic violations", in the case of CEDAW (article 8 of the Optional Protocol). In other words, in contrast to the individual complaints procedure which may address a single violation, the inquiry procedure is available in the case of CAT only where there is significant evidence indicating a pattern of misconduct. In the case of CEDAW, the violations must be grave if not "systematic". Secondly, it is not sufficient that there are grounds to believe that a violation of treaty rights has occurred. CAT authorizes an investigation where "reliable information" has been submitted to the Committee that torture is being systematically practised . The CEDAW Optional Protocol permits an investigation where there is "reliable information indicating grave or systematic violations".
The investigation procedure is most commonly instigated by NGO's which may be in a better position to document a pattern of violations. Nevertheless, individuals are not barred from providing information to CAT or CEDAW and suggesting to the Committee that an investigation is warranted according to the information provided.
Other contrasts between the individual complaints and inquiry procedures:
2. Convention Against Torture
a) Introduction
The investigation mechanism allows the Committee to conduct its own investigation into allegations that "torture is being systematically practised." (Article 20 and Rules 69 to 84 of the CAT Rules of Procedure)
In the fifteen years that the CAT has been in force, only a handful of reports on investigations have been published, and only a few others have been, or are being, conducted.
States that are party to CAT have not necessarily permitted the Committee to undertake investigations. Article 28 specifically allows states parties to opt out of Article 20. The Committee may not consider information submitted regarding countries which have opted out of the procedure. It is therefore necessary to ensure not only that the state against whom information is submitted under Article 20 is a party to CAT, but that they have made no declaration opting out of the inquiry mechanism.
b) The Preliminary Stages of Consideration
The procedure for establishing and conducting an inquiry is set out in Article 20. There are two distinct stages to the process of determining whether an inquiry is to be initiated. The first hurdle is the "preliminary consideration of information" in which the Committee must receive "reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of the state party." This information may be furnished by individuals and organizations specifically for the purpose of encouraging the Committee to undertake an Article 20 investigation. Information arising from the state reporting process may also be sufficient in form and substance to suggest to the Committee that an Article 20 investigation is warranted.
Submissions made under Article 20 should be as thoroughly documented as possible. As with individual communications, submissions should clearly indicate that the information is submitted for the purpose of initiating an Article 20 proceeding. Submissions may be considered by the Committee even if they are made anonymously, in whole or in part. If the information submitted in itself appears insufficient to meet the requisite standard of proof, the Committee is entitled to make its own inquiries to determine whether, at this threshold stage, the information is reliable and accurate.(Rule 75)
If the preliminary consideration hurdle is cleared, a more extensive "examination" stage may be initiated. At this stage the Committee "shall invite the state party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned." (Article 20, paragraph 1) In addition to the views of the state party involved, the Committee may also actively solicit information from anyone it deems appropriate, including NGO's, individuals, governments, or other UN institutions to ascertain whether the information received is reliable. Once this process is complete, the Committee may decide formally to establish an inquiry. In general, an inquiry is warranted where there are "well-founded indications that torture is being systematically practised."
In order for torture to be "systematically practised", the Committee has said that the incidents must not have occurred fortuitously in a particular place or at a particular time, but are seen to be habitual, widespread and deliberate in at least a considerable part of the territory of the country in question. However, there need be no direct intention of a Government to perpetrate torture. According to the Committee, the systematic practice "may be the consequence of factors which the Government has difficulty in controlling, and its existence may indicate a discrepancy between policy as determined by the central Government and its implementation by the local administration. Inadequate legislation which in practice allows room for the use of torture may also add to the systematic nature of this practice."
c) The Inquiry Procedure
The Committee may designate one or more of its members to conduct the inquiry. The members designated by the Committee have wide latitude in the methods of inquiry and the sources on which they may rely. Article 20 authorizes the Committee or its delegates, with the consent of the state party involved, to visit the territory of the state party to conduct an on-site investigation. The Committee's rules and practice permit oral hearings to elicit testimony, conduct interviews with individuals, inspect specific sites, and consult with government officials and local non-governmental organizations. Such activities must be approved and supported by the state party involved. In the one investigation to date in which the state party (Egypt) refused permission to visit, adverse inferences were drawn by the Committee in its final report.
Upon completion of the inquiry, the members responsible for the investigation submit their findings to the Committee. The Committee considers their findings and transmits them to the state party with any additional comments or suggestions it deems appropriate. The state party is then invited to inform the Committee of any action it plans to take in response to the findings.
The entire inquiry process is supposed to be confidential. Thus, an individual or organization which submits information to the Committee for the purpose of initiating the procedure may not be aware that the Committee has commenced an inquiry. At the same time, the Committee has wide latitude in the conduct of its investigation and may solicit further information from individuals or organizations as part of its investigation. Should that be the case, the latter are also under an obligation of confidentiality.
Confidentiality may end once the investigation has been completed, the findings transmitted to the state party, and the state party has had the opportunity to indicate what measures it may take in response. The Committee may then decide, after consultation with the state party, to publish a summary account of the results of the inquiry in its annual report. This may mean that the scrutiny and embarrassment occasioned by publication of a report may only emerge years after the incidents have taken place.
3. Convention on the Elimination of All Forms of Discrimination Against Women
a) Introduction
The investigation mechanism for violations of the Convention on the Elimination of all Forms of Discrimination Against Women was established by the CEDAW Optional Protocol when it entered into force in December 2000. The Committee has as yet not undertaken any such investigations. The procedure adopted closely follows the model set out in CAT, though there are some potentially significant differences. To be subject to the investigation procedure, a state must have ratified the Optional Protocol, and must not have exercised the right to opt out of the procedure as specifically permitted by Article 10 of the Optional Protocol. Thus, before submitting information for the purpose of instigating an inquiry for violations of CEDAW, a petitioner should ascertain the state party has (1) ratified the Optional Protocol, and (2) not declared under Article 10 that it is not subject to the investigation procedure. Petitioners should also be aware of any state party reservations to substantive provisions of the Convention which might purport to have a limiting effect.
b) The Preliminary Stages of Consideration
The Committee can initiate an investigation upon receiving "reliable information indicating grave or systematic violations by a state party of rights set forth in the Convention." (Article 8) Under the CEDAW Optional Protocol, the use of the disjunctive "grave or systematic" indicates that even an isolated but egregious violation of the Convention could satisfy the requisite standard. (Article 8)
There is a two-stage process for determining whether to initiate an inquiry. The preliminary consideration stage is initiated by the receipt of information. Information submitted to the Committee for the purpose of triggering an inquiry should state explicitly that it is submitted for this purpose. The Committee is authorized to seek out information substantiating the information received, but the information submitted should be as well-documented as possible. Information may be furnished by individuals and organizations. In addition, information arising from the state reporting process may be sufficient in form and substance to suggest to the Committee that an Article 20 investigation is warranted. There is no rule against the submission of anonymous information.
Should the Committee decide that the information is reliable and indicative of grave or systematic violations of rights, the Committee shall invite the state party involved to submit its observations on the information. At this "examination" stage, the Committee may also solicit information from governmental organizations, non-governmental organizations, and individuals. (Rule 83) Based on that information, the Committee may designate one or more of its members to conduct an inquiry and report to the Committee. The standard for deciding whether an inquiry should be held is that there is "reliable information indicating grave or systematic violations by a state party of rights set forth in the Convention."
c) The Inquiry Procedure
The Rules of Procedure adopted by the Committee as regards the conduct of investigations are nearly identical to the Rules adopted by the Committee Against Torture, and the practice of that Committee will likely be an influential guide.
The Committee and the members designated to conduct an inquiry have wide latitude in determining the methods of their investigation. Article 8 specifically authorizes that "where warranted and with the consent of the state party, the inquiry may include a visit to its territory." Hearings may be conducted as part of the visit and the state party is expressly required to "take all appropriate steps to ensure that individuals under its jurisdiction are not subject to ill treatment or intimidation as a consequence of communicating with the Committee." (Article 11) The state party's consent is a prerequisite to any visit and any hearings that occur during the visit.
Upon completion of the inquiry, the members responsible for the investigation submit their findings to the Committee, which then transmits the findings to the state party concerned with any additional comments or recommendations it deems appropriate. The Optional Protocol obligates the state party to submit its observations in response to these findings, comments or recommendations within six months.
As with CAT, investigations are to be "conducted confidentially" and "all documents and proceedings of the Committee relating to the conduct of an inquiry...are to be confidential." (Article 8, and Rule 80) However, the Committee is required to include a summary of its activities under the Protocol in its annual report, which includes the existence and results of any investigations. (Article 12) The publication of the results of an inquiry differs from CAT in two significant respects. First, the Committee is required to indicate the existence (though perhaps not the content) of an ongoing inquiry in its annual report. Second, the Committee must publish a summary of its findings and recommendations and need not consult with the state party before doing so (Rule 80).
d) Follow-Up
The Committee is required to maintain pressure on the state party by inviting it to give details of the measures taken in response to an inquiry in its periodic report to the Committee as part of the state reporting obligations. (Article 9) The Committee may also make this request after the expiration of six months from the date of transmittal of the final report of an inquiry, in order to encourage a more timely response.
4. Conclusion
Requests to trigger an inquiry either under CAT or the CEDAW Optional Protocol do not preclude the submission of an individual communication related to the same set of facts. The inquiry procedure cannot yield a recommendation for an individual remedy. However, an inquiry which finds a state party in violation of the treaty's provisions would bolster any related claim of individual rights violations. The inquiry procedure also offers the potential for international public scrutiny of widespread or gross human rights violations, with the concomitant hope of attendant international pressure and incentive for reform.