Tackling the tools of torture

Margaret TaylorThursday 14 September 2023

Rachel Perez is pictured with bruising around her eye and a plaster on her forehead, injuries sustained from rubber bullets during protests. Minnesota, U.S., May 28, 2020. REUTERS/Carlos Barria

Despite being prohibited under international law, torture continues to be used by governments around the world. Global Insight asks if a torture-free trade treaty is the answer.

The murder of George Floyd by a Minneapolis police officer in May 2020 led to widespread protests across the US. His death gave fresh impetus to the Black Lives Matter movement and millions of people took to the streets to speak out against police brutality. Many police, for their part, reacted with pockets of yet more brutality, with a report from the non-governmental organisation (NGO) Physicians for Human Rights highlighting that ‘[law] enforcement agencies indiscriminately deployed crowd-control weapons, including kinetic-impact projectiles, such as foam bullets, rubber bullets, pepper balls, beanbag rounds, chalk grenades and flashbang grenades against protesters, the vast majority of whom were peacefully assembled’.

The impact, the NGO says, was devastating. ‘Countless protesters, bystanders and journalists sustained critical wounds, broken bones, traumatic brain injuries and even blindness as a result of the projectiles fired by police’, the report, Lethal in Disguise, states. ‘In just one day, 30 May 2020, police partially blinded eight people across the country.’

Linda Tirado was one of them. The freelance photographer suffered a traumatic brain injury and was permanently blinded in her left eye after a 40mm impact foam bullet round was shot at her head. She still suffers from constant headaches, has trouble recalling words and uses a walking frame. In June 2022, the City of Minneapolis paid Tirado $600,000 to settle a lawsuit she had filed and affirmed a statement by its police force to use ‘only the force that is objectively reasonable to effectively bring an incident under control’ in future.

Eliminating torture

The settlement may have been a win of sorts for Tirado, but it’s exactly the kind of situation the Alliance for Torture-Free Trade was established to prevent happening in the first place. Founded in 2017 by the governments of Argentina and Mongolia along with the EU, the aim of the Alliance is to stop torture – which is defined by the UN as any kind of severe pain or suffering, whether physical or mental, inflicted by a public official – from taking place. Though torture is outlawed by both the Universal Declaration of Human Rights, which was adopted in 1948, and the UN Convention Against Torture, which came into force in 1987, it still routinely occurs around the world. The Alliance’s aim is to finally bring it to an end by stopping the products used to inflict it from being bought and sold.

‘Over the last few decades, more and more countries worldwide have committed themselves to eradicating the death penalty, torture, and inhuman and degrading treatment, through the development of United Nations conventions and protocols’, the Alliance says. ‘Yet, despite these improvements, many countries continue to systematically carry out torture and the death penalty, using products that are traded and shipped internationally. Domestic export bans on torture and execution equipment in many countries have made this trade more difficult in recent years, and Argentina, the European Union and Mongolia recognised the need to take further steps to end it.’

Research from human rights NGO Amnesty International has found that items such as stun belts, spiked batons, neck cuffs and restraint chairs continue to be utilised by numerous administrations, while rubber bullets and water cannons are routinely used, even in Western democracies, as a means of controlling crowds. Indeed, a 2016 report from the organisation highlighted how the Italian police used electric shock batons to forcibly facilitate the fingerprinting of newly arriving refugees and migrants, with a 16-year-old Sudanese boy telling how he was taken to the ‘electricity room’, where ‘they gave [him] electricity with a stick, many times on the left leg, then on the right leg, chest and belly’ until he was ‘too weak’ and ‘couldn’t resist’. The Italian authorities didn't respond to Global Insight's request for comment on this issue, but in 2016, then Italian police chief Franco Gabrielli ‘categorically’ denied that violent methods were used by his officers.

Another Amnesty report issued earlier this year detailed how ‘security forces across the world are routinely misusing rubber and plastic bullets and other law enforcement weapons to violently suppress peaceful protests and cause horrific injuries and deaths’. Published jointly with the Omega Research Foundation, the paper investigated instances in 30 countries over the past five years and found that thousands of protesters and bystanders had been maimed and dozens killed by the ‘often reckless and disproportionate use of less-lethal law enforcement weaponry, including kinetic impact projectiles, such as rubber bullets, as well as the firing of rubberised buckshot, and tear gas grenades aimed and fired directly at demonstrators’.

The 57 signatories to the Alliance on Torture-Free Trade have pledged to take measures to control and restrict the export of the equipment these government bodies are using and will also strive to find other ways to shut down such trade. More needs to be done, though. Verity Coyle, a senior adviser and campaigner at Amnesty in London, says that’s precisely why the organisation is leading calls for the UN to introduce a legally binding torture-free trade treaty.

‘Amnesty research from around the world has demonstrated for decades that standard-issue police equipment can be used to commit torture and other ill treatment, but there is no global regulation that governs the use of [such equipment]’, says Coyle. ‘Torture is absolutely prohibited and regulating the trade in the tools of torture seems to us to be a step in the global struggle to eliminate it. Amnesty was founded with the desire to end torture and is part of a growing coalition that is calling for a torture-free trade treaty. If we’re successful it will be another tool to stop the transfer of instruments to forces that use them in this way.’

For Alka Pradhan, Co-Chair of the IBA Human Rights Law Committee and a lawyer in the US government’s Military Commissions Defense Organization based in Washington, DC, torture has become an increasingly mainstream feature of law enforcement in the years since 9/11, with the so-called ‘war on terror’ military campaign launched following the terrorist attacks against New York appearing to legitimise the use of brutal force even in Western democracies. The need for legally binding international regulations that prevent the tools of torture from being shipped between nations is, she says, long overdue.

‘The way I see it is as a response to over-militarisation given the risk of non-state actors’, she says. ‘The example I’m always drawing from is that in the US, post-9/11, there was a militarisation of the police against a specific population – Muslims – who were scapegoated due to the actions of a couple of non-state actors. You’ve also seen it in France, the UK, India.’

Pradhan questions how we got to the point where, during the Black Lives Matter protests in the US, tanks were deployed on the streets of American cities. ‘It’s a short skip and a jump from tanks to low-grade munitions and other weapons that are developed just to maim’, she says. ‘[The calls for a treaty are] a really good step towards pulling that back and looking at it from a common-sense perspective. It’s something that’s long overdue being addressed.’

Buoyed by progress

There have been a number of developments since the Alliance for Torture-Free Trade was founded close to six years ago. In 2019, the EU introduced an Anti-Torture Regulation that bans the trade in goods that can be used for the death penalty and controls those that can be used for torture. In 2020, UN Secretary-General António Guterres published a report finding that the majority of states responding to a feasibility study supported the creation of a common international standard on trade and were in favour of a legally binding instrument. In May 2022 a group of governmental experts assembled by Guterres recommended a prohibition on the production and trade in inherently abusive law enforcement equipment, and the UN General Assembly later made a commitment to begin negotiations on how to close the governance gap.

Buoyed by this progress, at the beginning of 2023 Amnesty assembled a group of more than 30 international organisations, including the American Civil Liberties Union, Harvard Law School’s International Human Rights Clinic and the Women’s International League for Peace and Freedom, to push for a UN treaty. Together they formed the Torture-Free Trade Network and signed the Shoreditch Declaration for a Torture-Free Trade Treaty, with signatories detailing the ‘devastating psychological and physical toll’ they witness on a daily basis and stressing that ‘[a] global, legally binding prohibition and human rights-focused trade control regime on law enforcement equipment must be established to help prevent torture and other ill-treatment and combat police abuse’.

‘The Torture-Free Trade Network, which is a civil-society mirror of the Alliance for Torture-Free Trade, aims to kick-start the political process’, Coyle says. ‘The network is quite new – our first meeting was in September 2022 and we brought together over 30 organisations in London in January this year. At that meeting we spoke about what a torture-free trade treaty might look like and how we could support more governments to come on board with the Alliance for Torture-Free Trade.’

With Alice Jill Edwards, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, due to issue a thematic report on the matter in October, Anna Crowe, Associate Director of the Harvard International Human Rights Clinic in Massachusetts, says now is a critical time for the network to make its mark.

‘We’re raising awareness’, she says. ‘We have campaigners who are speaking to government officials in various countries to encourage them to take an active interest in the process and to push for the resolution we hope to see. It’s classic campaigning work. At this point one of the most helpful things we can do is make direct contact with governments to encourage them to raise the issue at the UN. There’s going to be the thematic report from the Special Rapporteur in October – that’s the big moment for states to respond and get them to think about the trade in instruments of torture. Civil society has a role to play, particularly in making sure that the voices of survivors are heard.’

Bumps along the road

On one level, making a treaty a reality should be a relatively straightforward process. Pradhan says it should be an easy sell to many governments who are not yet on board, given there’s already an understanding of what torture is, as well as a prohibition of it. ‘Whether or not states engage in torture, they have all agreed that it’s illegal’, she says. ‘In that sense it’s relatively easy to isolate the sorts of weapons that are only used for causing pain.’

Similarly, Coyle says that ‘this road has been well trodden’, with the UN’s Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction – known informally as the Ottawa Treaty – and the Arms Trade Treaty paving the way for torture-free trade laws to follow. ‘If you look at the work on banning weapons like cluster munitions and landmines and the Arms Trade Treaty you can see what the path could look like in terms of states coming together to create new standards’, she says. Andrew Clapham, a professor of international law at the Graduate Institute of International and Development Studies in Geneva, agrees. ‘In a way, all the campaign is asking for is that the torture-instrument regime catches up with the arms-trade regime’, he says.

While Coyle says the way to do that would be to ‘put a resolution in front of the UN’, Pradhan warns that although creating a new law aimed at preventing torture appears to be ‘common sense’, it’s also ‘complex’. ‘Where it gets more difficult is where those things have been developed into big business’, she says. ‘The complexity comes from having to rein in government contracts that have developed those businesses.’

At the same time, in many countries the ultimate form of torture – death – is still legal. The list of nations that have either abolished or suspended the death penalty is growing, with data from the Death Penalty Information Center showing that more than 70 per cent of countries have either passed laws that abolish capital punishment or have done so on a de facto basis through lack of use. Kazakhstan, Malaysia and Papua New Guinea are among those to have recently repealed their death penalty laws.

Yet capital punishment is still used in 27 US states as well as in countries such as China, Jamaica and Japan. This creates a ‘moral and ethical dilemma’ in terms of bringing a treaty forward, Pradhan says. Clapham agrees, highlighting that it should be relatively easy for states to reach agreement on items such as ‘batons with spikes or belts that can give electric shocks’, but ‘where there will be less agreement is, for example, if the equipment is going to be used for the death penalty’. Here, he says, some states will be less enthusiastic. ‘These things are banned in the EU – for example the guillotine or certain drugs – but I predict that’s where things will be more divisive [because] we are starting to judge the receiving state. That will start to get more controversial.’

Similarly, Raj Bhala, Diversity and Inclusion Officer of the IBA International Trade and Customs Law Committee and a senior advisor with Dentons in Kansas City, says the fact that some items being traded will have a dual use – for example police batons or hand guns – could cause problems during negotiations.

‘Some of the merchandise being used for torture is obvious – the instruments are almost too hideous to think about and there’s really no other purpose for it other than to torture someone, like an electric-shock device’, he says. ‘The problem comes, and this is a problem we see in many areas of trade, when you come across merchandise with a dual use, [where the item] has a legitimate purpose but also hideous purposes. You could be talking about a hammer or a bamboo staff – how do you agree that it should be on a list of banned items when it is a legitimate dual-use item?’

Bhala adds that even where there is agreement, there’s a difficulty in policing the downstream commercial chain. That is to say, in ensuring that if sales of a dual-use item are allowed to one jurisdiction, those items are not then sold on to a state that may use the item for torture.

The greater good

Despite the difficulties, Bhala says states pushing for a treaty must not let ‘best be the enemy of the good’. Rather than attempt to outlaw trade in every item that has been implicated in state-sanctioned torture, they should ‘agree on some items where there’s no use other than torture’ as a starting point and also consider how to ‘sanction abusers’.

Reputational sanctions could be considered, Bhala says, meaning a ‘global clearing house of information’ could be created ‘where anyone can go and check a country and check companies to see if they are on the register of entities that are importing or exporting merchandise’. He suggests a strategy of ‘name and shame’ and says ‘you can’t underestimate the efficacy of that. Even if it’s just about maximising profits, everyone wants approval’.

Coyle, meanwhile, notes that the Arms Trade Treaty has already shown what’s possible even when states refuse to comply. ‘The Arms Trade Treaty has been able to cut off some of Russia’s trade routes because some states that goods would have to pass through are members of the treaty’, she says. ‘They say “we don’t want that set of weapons going through us” so you can start to build up barriers around states as well.’

Pradhan echoes Bhala’s sentiment, saying that when it comes to products used to carry out capital punishment in particular, she would ‘never want to make perfect the enemy of the good’. If some states cannot agree on whether those products should be included in new regulations, it would be better, she says, to proceed without them for the moment and focus on what can be done rather than abandon a treaty completely. ‘It’s wise that we begin with the items where everyone can agree that their only use is to cause pain’, she says. ‘From there, the beauty of treaties is that as law develops you can amend them. You saw that develop in Europe with the abolition of the death penalty. We need to get to the point where [states that still have capital punishment] realise the death penalty is a form of torture.’

Ultimately, as Anne Ramberg, Co-Chair of the IBA’s Human Rights Institute, says, the fact that there are currently no global regulations on the production or trade of law enforcement equipment highlights a serious gap in international human rights law. Addressing that, she says, is critical. ‘This is a global issue that needs collective awareness, coordination and action at the international level to introduce legally binding prohibitions and human rights-based trade controls and to prevent loopholes and inconsistencies’, she says. ‘Allowing unregulated sales of such equipment not only enables human rights abuses, but also contributes to the normalisation and perpetuation of torture and ill-treatment.’

Ramberg adds that supporting the creation of a robust torture-free trade treaty would reaffirm states’ commitments to uphold human rights and advance the fulfilment of their positive obligations to prevent and eradicate torture and ill-treatment. ‘The significance of such a treaty cannot be overstated’, she says.

Margaret Taylor is a freelance journalist and can be contacted at mags.taylor@icloud.com