Torture: Today and Tomorrow

Article 2 of the Convention Against Torture which entered into force in June 1987 provides that:

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

For the purposes of this Convention, Article 1(1) states that torture means:

…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

http://www.unhchr.ch/html/menu3/b/h_cat39.htm

International human rights law and its advocates are, for the most part, daily dealing with unresolved issues. Questions such as the meaning of self-determination, or achieving adequate protection of migrant workers, or promoting the justicability of economic and social rights are issues around which a body of literature and experience gathers in order that the appropriate standards can be agreed upon and applied. Some issues however, although they may have seemed to have been resolved in the past, are beginning to appear as intangible as ever. Torture threatens to be one of these. Prior to 2001 there was a clear consensus, as evidenced by the Convention Against Torture, that in no circumstances could torture be tolerated. Thus was the prohibition of torture considered to be a rule of customary international law.

In recent years however, many western governments have either rejected the dictates of humanity by advocating for the toleration and open acceptance of torture within their own jurisdictions, or else they have turned a blind eye to matters such as ‘extraordinary renditions’ which either make use of or take place on their territory.

Three articles from today’s Guardian Unlimited website highlight the role of torture in contemporary international affairs, but also highlight the role which criminal justice and human rights has in holding to account those responsible for torture, even many years after the actual crimes were committed.

In the first http://www.guardian.co.uk/burma/story/0,,2189000,00.html we hear how the Burmese junta has tortured monks and others who may have been involved in the recent protests for democracy in that country “A recently released monk revealed today that he and hundreds of others were interrogated to provide the names of the ringleaders of the protests. When they failed to answer they were kicked and beaten, he told Reuters news agency. Speaking on condition of anonymity for fear of reprisals, he said they were packed in so tightly at a makeshift prison at the Technical Institute campus in Rangoon that they could not lie down. They were denied toilets, medical treatment and were fed on barely cooked rice, which they were forced to eat with their hands.” (and in a link to the earlier post re arms sales to Israel, Brad Adams, Asia director at Human Rights Watch, said in a statement "It's time for the security council to end all sales and transfers of arms to a government that uses repression and fear to hang on to power.")

In the USA, former US president Jimmy Carter spoke out yesterday http://www.guardian.co.uk/usa/story/0,,2188844,00.html to claim that the US government’s assertions that it does not torture were false, noting that "We've said that the Geneva conventions do not apply to those people in Abu Ghraib prison and Guantánamo, and we've said we can torture prisoners and deprive them of an accusation of a crime." He noted that the interrogation methods used, including "head-slapping, simulated drowning and frigid temperatures," constitute torture "if you use the international norms of torture as has always been honoured - certainly in the last 60 years since the Universal Declaration of Human Rights was promulgated.”

Finally, in Argentina a catholic priest has been convicted of crimes against humanity for his role in torture during the era of the military dictatorship in that country http://www.guardian.co.uk/argentina/story/0,,2188308,00.html. “Von Wernich was accused of using his position to comfort prisoners, many of them students and leftwing activists, before betraying their confidences to the police. The prisoners would be murdered and the colleagues they had identified kidnapped. The prosecution accused him of complicity in seven murders, 42 kidnappings and 31 cases of torture. Several witnesses said he was present during torture sessions and killings.”

Given the rapid development of international law in recent years, and particularly of international criminal law, it is imperative that the torturers of the present, be it senior members of the US government, or thugs in the Burmese junta, it is imperative that the absolute prohibition on torture under international law be consolidated and categorically respected as one of the few certainties in international law. By supporting this principle it is likely that unlike the case in Argentina, the victims of today’s torture will not have to wait 20 years for justice.