Combating torture: are we going into reverse?

The absolute prohibition of torture is routinely flouted around the world, with many states failing to prevent it or bring those responsible to justice. An IBA and United Nations panel discussion moderated by the BBC’s Owen Bennett-Jones emphasised the importance of reaffirming torture as a human rights violation.

Owen Bennett-Jones (OBJ): United Nations High Commissioner for Human Rights, it’s part of your job to make the case that torture doesn’t work to the international community. What are your reflections?

Zeid Ra’ad Al Hussein (ZH): It’s very interesting to look at the data from the Committee against Torture, which is a treaty body that examines the reports submitted by a state. A small number of states are thought to be torturing systematically. Then, there’s a larger number where there are incidents of torture and individual acts of torture and inhuman treatment. Here, there’s a rather relaxed attitude toward pursuing impunity for those who are doing the torturing: they are slapped with administrative penalties, but very rarely are criminal charges leveraged.

 

“ If you don’t have a sense of shame, it’s very difficult for us on the human rights side to make you change your mind

Zeid Ra’ad Al Hussein
UN High Commissioner for Human Rights

Then there is another category where you see repatriation of individuals to countries that clearly acquiesce to torture. That’s deeply disturbing and a growing trend. Finally, there are many countries that don’t do what they’re required to under the UN Convention against Torture – that is, to provide the rehabilitation and care that victims of torture deserve.

If you look at all the 162 countries that are currently party to the Convention, it’s very difficult to find even one that abides by all its terms. Yet, very few – maybe not a single country – will openly say that it tortures or has tortured in the past. The rather dramatic point that President Trump made [when, during the United States presidential campaign, he stated his support for torture practices] breaks almost a fundamental taboo by not even going for euphemism but saying ‘I want to do this’. If you don’t have a sense of shame, it’s very difficult for us on the human rights side to actually make you change your mind, because you are immune to the pressure we could bring to bear on you.

So we have to work with the communities that do feel shame, and the communities we can turn around to bring the sorts of influence we need on someone like President Trump.

OBJ: Juan Méndez, many argue that torture does work. What’s your view?

Juan Méndez (JM): Whether torture works or not must be seen in the whole context of what you want information for and how you get it. In that sense, it doesn’t work because it obtains a lot of information which is completely useless and false, and it distorts and sends law enforcement on wild goose chases. So it’s very ineffective. And it also hurts the efforts of well-meaning and democratic institutions.

In the US, the summary of the Senate Select Committee on Intelligence report demonstrates that the majority of good intelligence the US has obtained in the fight against terrorism was not obtained under torture, and that the information that was did not prevent anything from happening. In many countries, there has now been a paradigm shift away from confessions-driven interrogation and to interviewing suspects and witnesses with the full purpose of obtaining the truth and also of realising the principle of presumption of innocence. This method is a lot more useful, a lot more valid, and it’s morally and legally correct as well.

 

“ The issue of torture feeds its way into the systems of countries that like to think of themselves as being committed to the rule of law

Helena Kennedy QC
Co-Chair, IBA Human Rights Institute

OBJ: Helena Kennedy, if ‘torture works’ is a faulty argument, then why is it so persuasive?

Helena Kennedy (HK): We’ve got to recognise that there will be times when people end up disintegrating under force or mental anguish, or any of the horrible psychological tortures that operate, and they might give a piece of information that is valid. But, so often it’s integrated with other stuff that is not accurate. Disentangling that which is accurate from that which isn’t is so hard to do that you question the value of doing it at all.

We have to consider the morality of it, the idea that we are in a project of civilising and recognising our common humanity. To deliberately and consciously make a decision to inflict pain, humiliation and degradation on another person, what does that say about us as humans?

 

“ Because of the immoral leadership on this issue, people think that torture is ugly but it has to happen, otherwise we all are unsafe

Juan Méndez
Former UN Special Rapporteur on Torture

People are not persuaded against torture because they are afraid. If governments raise the temperature of fear around terrorism – that there’s going to be a disintegration of our society because people are assaulting the fabric of society, your children are going to be at risk, your enemies are at the gate – then you can very easily use that fear to persuade people that being cruel and vicious to others is justifiable.

OBJ: There’s very strong international legal architecture around this subject, and yet very little happens in terms of punishing torturers. Beatrice Mtetwa, your thoughts on impunity?

Beatrice Mtetwa (BM): Impunity is actually one of the biggest problems, because torture is generally encouraged by those who are supposed to punish offenders. In Zimbabwe, torturers are rewarded. They’re given access to state resources, are protected, have legal representation from government attorneys and are promoted. I’m currently claiming damages in a case where one of the torturers is now occupying an even higher post than he did when he committed the torture. Prosecutions for torture simply do not happen.

In fact, torture is not seen as an offence under Zimbabwean law. It can be pursued civilly, though, and the courts are slowly beginning to give damages, but they are so small and it’s so difficult to collect the amounts because the system is trying to protect the torturers. If you do go to the courts to claim damages from a civil perspective, the courts look at it more as an assault. And when you try to explain the difference between torture and assault, they absolutely do not understand that. So society must be made aware that torture is a crime.

OBJ: It is almost as if the shame that is attached to torture means no state will ever admit their involvement, even in retrospect.

JM: Yes, up until the terrorist attacks of 9/11, we had a very universal condemnation of torture. Countries that tortured denied it and did it in secret, and convinced the public that they weren’t torturing but were only using enhanced interrogation techniques. Nowadays, because of the immoral leadership of some leaders on this issue, popular culture also conditions us to think that torture is ugly but it has to happen, because otherwise we all are unsafe.

But, in the countries where the cycle of impunity has been broken, we see some encouraging results. For example, in Argentina and Chile, literally hundreds of people are serving time or being prosecuted for crimes committed during the military dictatorships, even 30 years later.

OBJ: What about cases where governments have sent prisoners to foreign countries where they can be tortured, so they can see the results?

HK: There are places in the world that torture and where it’s endemic. They might not admit to it publicly, but we know where those countries are. And one of the things that’s so shameful is that many Western democracies, in their efforts to secure intelligence, believe they were justified in sending questions to so-called ‘black sites’ overseas where people were being detained. This was certainly happening in the 2000s after 9/11. Democratic governments’ security services were sending questions to these sites. Products of that were sent back to be used by our intelligence services and ultimately in processes that were quasi-legal.

The issue of torture feeds its way into the systems of countries that like to think of themselves as being profoundly democratic and committed to the rule of law. We have behaved in questionable ways ourselves and we have to address some of that in our own jurisdictions rather than just wagging our fingers at countries that do it because we, in a way, are collusive in it.

Since 9/11, we’ve seen a retreat from standards that we thought were being improved. It is a thing that we have to be constantly drawing to public attention.

OBJ: High Commissioner, when you go to Western governments involved in these kinds of practices with regard to black sites, when you have private conversations with ministers and say ‘are you really going to keep on doing that?’, what happens in those conversations?

ZH: It’s remarkable how stupid this policy is. When you torture someone who then turns out to have absolutely no connection to a terrorist organisation, you may assume you’ve turned one person against you. From then on, that one person, their family and friends, even the extended community of that one person, will harbour deep grievances. And then, from that community, how many will migrate to the extreme? So it’s entirely counterproductive, if you think you can extract information like this.

The action is what shames the particular government, and the UN puts up a mirror and shows the government. In the privacy of the room, usually they say ‘we will have a look and come back’. They don’t often deny it outright. But whether they then follow up in the way they should is debatable.

 

“ As many people as possible should get reparation because prosecutions, at least where I come from, are not going to happen

Beatrice Mtetwa
Human rights lawyer, Zimbabwe

OBJ: One of the underlying issues is ‘when do you cross the line into torture?’

BM: When they’ve forced you to say things you may know nothing about, and when it’s systematic, and when they’re trying to stifle dissent through force – that is going beyond the bounds of normal investigation.

OBJ: Are there protocols on this and attempts to define it internationally?

JM: The definition in the Convention against Torture, which is customary international law as well, says that it’s pain and suffering deliberately inflicted of a mental or physical nature. So anything that is coercive during an interrogation is beginning to cross the line. If it crosses a line into cruel, inhumane and degrading treatment, it is already absolutely prohibited by international law. And if it’s more severe and deliberate, it’s torture.

Solitary confinement, for example, is something that has crept up on us. It was abolished back in the 19th century, and then 30 or 40 years ago countries started using it again. Nobody thought it was that bad, because it was not physical torture and also because, at first, it was used for disciplinary purposes for a few days, at other times for purposes of administration of prisons, or to separate gangs inside prisons.

OBJ: In the public discourse on this, there isn’t clarity on what is and what isn’t torture.

JM: No, because it depends on both objective and subjective factors. For example, if you’re being yelled at as you’re being forced to sign a statement, that can be so coercive, depending on the circumstances, that it violates the prohibition.

HK: Anybody who is a medical person will tell you why torture is so destructive to the human psyche. I did a shocking case a few years ago about the ways in which someone was not only physically but also psychologically tortured. He was blindfolded and taken to a mock execution, making him feel that his life was over. He described the whole degradation of feeling. We’ve got to be clear: torture is not just physical, it can be psychological and also it can be about prolonged things such as keeping people away from other human contact and dehumanising people as a result.

BM: It’s also very important that the advocacy side of torture is pursued with vigour so that victims know that there is help, and that torturers are themselves pursued in their personal capacity.

OBJ: The UN has been doing plenty of work on rehabilitation.

ZH: The UN Voluntary Fund for the rehabilitation of victims of torture treats about 50,000 victims a year. This number is only the tip of the iceberg. Those who cannot be treated, and their families as well, have to endure a lifetime of prolonged suffering. That’s why support for the Voluntary Fund must be maintained.

We are all worried about the threats to funding from the Trump administration. It could herald further cuts from other governments. We have to be extremely careful that prohibition of torture isn’t just supported in terms of abiding by the articles of the Convention against Torture, but also that funding is made available so that victims are able to find some form of recovery throughout their lifetime. We have to continuously work on this – if you are complacent for a moment, governments will do odd things.

OBJ: Do these programmes work?

JM: I’m familiar with the UN Voluntary Fund for Victims of Torture. It does excellent work with relatively little money, not only in rehabilitation and redress, but also in supporting civil society organisations that are working in places where it’s dangerous to defend people who are being tortured. Without this support, several of these organisations are going to be even more at risk and some may even disappear. Beyond that, we have a very good normative framework against torture, with very clear obligations on the part of all states, not only the territorial state. But we need to strengthen the preventive mechanisms that are already included in that normative framework.

BM: We can never get rid of torture. The majority of victims will not come forward. But let’s make it possible for as many as possible to come forward and for them to at least receive reparation because prosecutions, at least where I come from, are not going to happen.

OBJ: UN institutions are often accused of only dealing with states and not non-state actors and other types of violence.

ZH: The problem is that the human rights system as a whole is under so much pressure. We could easily lose the enormous gains made over the last 70 years or so. The funding of the UN system, national preventive mechanisms, ombudspersons’ offices, national human rights institutions, etc, is just a small fraction of what is spent. We need help and support.

So we must preserve what we have and then we must extend, and we have to be wise about how we do this because all rights are important. The absolute prohibition of torture must be pursued doggedly, but we also need to think further and look at other vulnerable groups who have been victimised by this form of treatment.

It’s very clear that the prohibition on torture is part of customary law, recognised as jus cogens, and also a cornerstone of human rights law. But, if we see a larger number of heads of states and governments use rhetorical devices [to persuade people that torture works] – and we have a growing number of leaders who feel they can do so – the threat to the international legal order, international law writ large, is very real.