Vikas Shah, Thought Economics, November 2012
“The guards hung me by my wrists from the ceiling for eight days.... After a few days of hanging, being denied sleep, it felt like my brain stopped working. I was imagining things. My feet got swollen on the third day. I felt pain that I have never felt in my entire life. It was excruciating. I screamed that I needed to go to a hospital, but the guards just laughed at me.” - Elias, Torture Survivor (Damascus, Syria)
“They forced me to undress. Then they started squeezing my fingers with pliers. They put staples in my fingers, chest and ears. I was only allowed to take them out if I spoke. The nails in the ears were the most painful. They used two wires hooked up to a car battery to give me electric shocks. They used electric stun-guns on my genitals twice. I thought I would never see my family again...." - Anonymous, Torture Survivor (Idlib, Syria)
These are just two accounts of the extreme levels of brutality which, as we sit here today, are being experienced by tens of thousands of people around the world- tortured (by governments and non-state actors) for political, social and economic motives- and even for reasons as arbitrary as the colour of their skin, gender or where their home is located. Hundreds of thousands more are living with the physical and mental scars of torture, while millions live under the constant fear of such actions taking place against themselves or their families . As one survivor from Haiti (tortured under the regime of François Duvalier notes), "...That experience [of being tortured] has altered my whole life. You can never be the same person and anything you do is in reference to that moment. I have never been able to pass it...."
The horrors experienced by millions during the Second World War triggered the (much overdue) absolute prohibition of torture under international law. Article 3 of the Human Rights Act states, "No one shall be subjected to torture or inhuman or degrading treatment or punishment". It is with that in mind that we must face the hypocrisy of a world where (conservatively) 70% of countries are known to have engaged in torture in the last decade.
"There has never been a time when the world was without torture," writes J. Wisnewski "It has emerged in many ways, and has been supported in many institutional venues, but it has never been far from civilisation – waiting within it plain to all, or on its outskirts, hidden but no less operative....." (Understanding Torture, 2011)
Wisnewski continues by quoting David Sussman who states that “...unlike other kinds of unwanted imposition, pain [mental or physical] characteristically compromises or undermines the very capacities constitutive of autonomous agency itself. It is almost impossible to reflect, deliberate, or even think straight when one is in agony. When sufficiently intense, pain becomes a person’s entire universe and his entire self, crowding out every other aspect of his mental life. Unlike other harms, pain takes its victim’s agency apart from ‘from the inside’, such that the agent may never be able to reconstitute himself fully..."
Given that torture is second only to genocide on "the 'never' list of the 'forbiddens' of human politics", it is important to consider why this phenomenon exists in our world, and is on the rise.
In these exclusive interviews, we speak to two of the world's leading experts on torture. Keith Carmichael (Founder of REDRESS, an organisation that seeks justice and reparation for torture survivors) and Prof Juan Méndez (the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment) - both torture survivors. We look at the true scale of torture globally, exploring why and how it happens, the effect it leaves on survivors, its impact on communities, and how individuals can find justice. We also explore whether we will ever see a world free from torture.
Keith Carmichael is the founder of REDRESS.
From 2 November 1981 until 7th March 1984 Mr. Carmichael was detained unlawfully, without charge or a single court hearing, in the Kingdom of Saudi Arabia. After 857 days of arbitrary detention, the late King Fahd ordered his release. During his imprisonment, he was kept in inhuman prison conditions and subjected to brutal torture by the Saudi secret and civil police. He suffered grave bodily injuries and psychiatric trauma. Seven weeks before his release the [then] British Ambassador- in a conversation with Prince Salman, Governor of Riyadh acknowledged his imprisonment had been a mistake.
Following his release in 1984, Keith Carmichael, a torture survivor, consulted those with extensive experience in human rights, law and non-governmental organizations about how to go about seeking reparation for torture. He also met with over 90 other survivors many of whom, like him, wanted to seek redress but did not know how to go about it. While existing NGOs helped survivors in other ways - by campaigning for their release, providing safe havens and medical care - none assisted them to obtain reparation. While the right to reparation existed in law, the practical difficulties in obtaining reparation proved difficult to overcome.
Keith Carmichael developed the concept for REDRESS in consultation with four persons in particular: the late Peter Davies OBE, former Director of Anti-Slavery International, Dame Rosalyn Higgins DBE QC, Leah Levin OBE, former Director of Justice, and Professor David Weissbrodt of the University of Minnesota, who shared the same interest in seeking ways of obtaining reparation for victims of torture. In 1990, a concept paper for a new initiative, REDRESS - a programme to focus on the right of torture survivors to reparation and to assist them to seek a remedy - was circulated.
The idea was discussed further at the IV International Symposium on Torture and the Medical Profession held in October 1991 in Budapest, and again at the Symposium on Human Rights and Development in December 1991 in Manila. Among others, Eric Sottas, Director of OMCT/SOS-Torture, Professor Bent Sorensen, and Dr Inge Gnefke, participated in the discussion. The conclusion was that there was a need for such a specialised organisation and an action programme should be developed. Keith Carmichael established REDRESS which was registered as a charity in the UK in December 1992.
Juan E. Méndez is a Visiting Professor of Law at the American University – Washington College of Law and the author (with Marjory Wentworth) of "Taking A Stand: The Evolution of Human Rights", New York: Palgrave MacMillan, 2011. As of 1 November 2010, he was appointed the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. He was Special Advisor to the Prosecutor of the International Criminal Court. He was also Co-Chair of the International Bar Association Human Rights Institute from 2010-2011
Until May 2009 he was the President of the International Center for Transnational Justice (ICTJ) and in the summer of 2009 he was a Scholar-in-Residence at the Ford Foundation in New York. Concurrent with his duties at ICTJ, the Honorable Kofi Annan named Mr. Méndez his Special Advisor on the Prevention of Genocide, a task he performed from 2004 to 2007.
A native of Argentina, Mr. Méndez has dedicated his legal career to the defence of human rights and has a long and distinguished record of advocacy throughout the Americas. As a result of his involvement in representing political prisoners, the Argentinean military dictatorship arrested him and subjected him to torture and administrative detention for more than a year. During this time, Amnesty International adopted him as a “Prisoner of Conscience.” After his expulsion from his country in 1977, Mr. Méndez moved to the United States. For 15 years, he worked with Human Rights Watch, concentrating his efforts on human rights issues in the western hemisphere. In 1994, he became general counsel of Human Rights Watch, with worldwide duties in support of the organization’s mission, including responsibility for litigation and standard-setting activities. From 1996 to 1999, Mr. Méndez was the Executive Director of the Inter-American Institute of Human Rights in Costa Rica, and between October 1999 and May 2004 he was Professor of Law and Director of the Center for Civil and Human Rights at the University of Notre Dame, Indiana. Between 2000 and 2003 he was a member of the Inter-American Commission on Human Rights of the Organization of American States, and served as its President in 2002.
He has taught International Human Rights Law at Georgetown Law School and at the John Hopkins School of Advanced International Studies, and he teaches regularly at the Oxford Masters Program in International Human Rights Law in the United Kingdom. He is the recipient of several human rights awards: the Raphael Lemkin Award for contributions to the prevention of genocide by the Auschwitz Institute on Peace and Reconciliation (2010); the Goler T. Butcher Medal from the American Society of International Law (2010); a Doctorate Honoris Causa from the University of Quebec in Montreal (2006); the inaugural “Monsignor Oscar A. Romero Award for Leadership in Service to Human Rights,” by the University of Dayton (2000); and the “Jeanne and Joseph Sullivan Award” of the Heartland Alliance (2003).
Mr. Méndez is a member of the bar of Mar del Plata and Buenos Aires, Argentina, and the District of Columbia, U.S., having earned a J.D. from Stella Maris University in Argentina and a certificate from the American University Washington College of Law.
Q: What is torture:
[Keith Carmichael] The most widely accepted definition of torture is found in Article 1 of the UN Convention against Torture. According to this definition, torture is "the intentional infliction of severe mental or physical pain or suffering by or with the consent or acquiescence of state authorities (for example, police, military or security forces) for a specific purpose." What distinguishes torture from cruel, inhuman or degrading treatment from a legal perspective is that torture is committed with specific purposes: to extract a confession or denounce others, to punish or intimidate, or for any reason based on discrimination.
Torture exists because of the lack of adequate legal and institutional frameworks for the protection of rights, in particular the rights of people deprived of liberty, lack of effective investigation, and failure to prosecute and punish perpetrators. Torture has been employed historically in different circumstances and for all sorts of reasons- masters against servants, creditors against debtors, against prisoners of war, etc. It was and still is considered a tool of criminal investigation in many countries, and is employed by governments as a means of intimidation against dissidents, political opponents and human rights defenders.
[Prof Juan Méndez] Torture is defined in international law as the pain suffering that is deliberately inflicted on a person for purposes of interrogation, punishment or any other purpose- and that is severe enough to qualify as torture.
Why does torture happen? There are a variety of reasons, paramount is the role of torture as a ‘shortcut’ to investigating crime- many investigators and police have used this from time immemorial, and the efforts to abolish and curb it have been progressing over the years. Certainly decades or even centuries ago, nobody thought there was anything wrong with torturing people. Now there is quite a consensus that it is immoral because it is inhumane and because it is immoral and inhumane it is illegal. The fact remains that it is still practiced, but nobody defends it. No state admits that it practices torture even though it is still very prevalent in this world
Q: At what point does an act become ‘an act of torture’?
[Prof Juan Méndez] International law not only prohibits torture but something a little less severe known as cruel human and degrading treatment. This doesn’t have to have a purpose or even be deliberate. It could for example, be the result of negligence.
There is also a difference in the degree of severity between these two phenomena. Physically mistreating or ‘roughing up’ a prisoner may qualify as cruel, inhuman and degrading treatment- but it only becomes torture when the pain and suffering are severe enough to qualify it as such. The main problem is that the difference of degree depends on subjective and objective criteria. It’s one thing to slap a prisoner once who is a 30-year-old male who is also in good condition- that might be cruel, inhuman and degrading treatment, but I wouldn’t call it torture. To do that to a pregnant woman, an infirm or elderly person? The pain and suffering becomes subjectively more severe. It’s very different to draw a clear line as to when something crosses the line between cruel, human and degrading treatment- and torture. Nevertheless, there is agreement that the degree of severity is the standard against which this is measured.
It’s important to bear in mind that cruel, inhuman and degrading treatment is also prohibited. It’s not a matter of telling police what they can and cannot do; in both cases they are violating the law.
Q: What is the true scale and application of torture globally?
[Keith Carmichael] Throughout the world, torture is routinely used by repressive regimes to maintain control, particularly over dissidents and perceived threats to power and authority. In many countries, it is also used in the context of the routine administration of criminal justice as a result of lack of training for law enforcement officials and an entrenched institutional culture that encourages torture as an expedient means for securing a conviction. In some cases, law enforcement officers also use torture to extort money from detainees.
In some countries, police brutality amounting to torture is commonplace and perpetrators enjoy effective impunity. Although torture is said to have become somewhat less widespread in democracies, it continues to manifest in a variety of contexts. This is particularly evident in the use of interrogation methods amounting to torture by US authorities post-9/11, which the administration of US President George W. Bush attempted to legitimize through the 'torture memos', a series of legal memoranda making up a detainee policy for captured suspected terrorists which endorses the use of interrogation methods that constitute torture. The so-called CIA flights or cases of extraordinary rendition also exemplify another way in which democracies have employed torture. From 2001-2005, the US CIA transferred suspected terrorist detainees to countries known for their harsh torture regimes for interrogation purposes- referred to by some critics as 'torture by proxy'. In Spain, torture has similarly been employed against suspected terrorists in detention. In parts of Europe, minority groups such as the Roma face ill-treatment and torture at the hands of police.
[Prof Juan Méndez] It’s difficult to ascertain, but organisations like Amnesty International who monitor every country in the world on a regular basis, have said that it’s practiced in more than half the countries in the world at any given time. That doesn’t mean that 100 countries are actively engaged in a deliberate programme of torturing citizens. Even within those 100 countries, there’s a huge variety. There are countries in which torture happens because of rogue police officers… there are countries in which torture is more prevalent as it’s the ‘usual way of doing business’…. And then there are countries that very deliberately go after their population and establish a programme of torture that is much more severe and systematic- constituting a crime against humanity. Torture also occurs in conflict- although the Geneva Conventions very clearly prohibit any outrage against the personal dignity of enemy soldiers who have been captured. Unfortunately we see this behaviour quite often- not only against enemy soldiers, but also against civilian populations.
It’s therefore important to contextualise torture against these nuances and clarifications. Without doing so, you may get the impression that the task of abolishing torture in our time is impossible- and I don’t think it is.
Q: What 'happens' to an individual for them to able to commit an act of torture?
[Keith Carmichael] Perpetrators of torture are not 'brainwashed' to commit torture. In fact, very often nothing 'happens' to an individual for them to be able to commit torture, but rather the culture in which they live and work results in the dehumanisation of victims at a variety of levels. For example, in many countries where torture is routinely used by the police and other law enforcement officials in criminal investigations torture is seen as a means to secure convictions; it is considered an acceptable way to interrogate suspects and obtain confessions to 'solve' a crime. In this context, the lack of negative consequences for the use of torture, and indeed in some cases when such treatment is rewarded by superiors, a culture is created in which torture is accepted and even normalised. In other circumstances such as armed conflict, torture is used as a weapon of war and means of dehumanising the enemy and diminishing their humanity.
Q: Is torture ever applied by non-governmental entities such as corporations or organised criminals?
[Keith Carmichael] The definition of torture under article 1 of the Convention against Torture specifies that in order for an act to constitute torture, it must be committed at "the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." However, under international human rights law, the state does have a positive obligation to prevent and respond to violations by non-state actors.
Non-state actors, in particular armed groups which in some cases exercise the same power and control as a state in particular areas, have been responsible for widespread use of "torture". Corporations have also been implicated in torture in some circumstances, such as the case of the British mining company Monterrico Metals. In 2009, 33 Peruvian farmers accused the company of colluding with the police in their detention and torture, following a protest over the construction of a mine. Monterrico Metals settled with the claimants out of court. In another case, Exxon-Mobil reportedly hired security forces, comprised of members of the Indonesian military, who committed serious crimes against villagers in Aceh province between 1999 and 2000, including villagers being "beaten, burned, shocked with cattle prods, kicked, and subjected to other forms of brutality and cruelty". A US federal court affirmed the claimants' right to sue the oil company.
There have been also been cases where security companies employed by governments to carry out certain functions such as the management of prisons have been implicated in torture and cruel, inhuman or degrading treatment. Examples include the US-based companies Titan and CACI, whose employees were involved in the abuse of detainees at Abu Ghraib prison in Iraq.
[Prof Juan Méndez] Organised criminals practice torture in different countries, and for different reasons. Organised crime defines a variety of situations but for example, in the north of Mexico- organised crime is responsible for incredible acts of violence against people. This doesn’t just include murder, but also mistreatment and torture- sometimes reaching really egregious levels.
Insurgent groups are also in this category. These are groups who are organised not for the purposes of committing crime, but for attaining power. Unfortunately there are several cases of these groups engaging in torture, cruel, inhuman and degrading treatment. During the war in Sierra Leone, it was quite common for insurgent groups to chop-off limbs from civilians- sometimes even from children. While we can say that not all insurgent groups behave like this, it is unfortunately a fact of life in many countries.
Finally, with respect to non-state agents like corporations and businesses, what we tend to see is some degree of complicity. I have yet to see a case in which a corporation is- itself- not only directly involved in torture, but also the planning, strategizing and ordering of torture to take place. What we do see is evidence of corporations ‘looking the other way’. For example, when governments in Latin America during the 1970’s were military dictatorships, everyone knew they engaged in deliberate, systematic acts of torture. Banks still gave these groups good treatment- providing loans and so on. They wanted to look the other way and say, ‘well, we’re not involved…’ but there is a degree of complicity. In a more direct sense- we see corporations buying oil and minerals from governments and non-governmental groups who commit egregious violations against people, including torture. There have been efforts to curb this- but it still happens.
Q: What is the justification for torture?
[Keith Carmichael] Torture can never be justified under any circumstances. There are virtually no governments around the world who openly admit that torture is practised and justified in their respective countries. Historically, it has been used not just as a part of a "when all else fails strategy" but often as the most expedient form of coercion or punishment for a variety of reasons, which includes, but is not limited to, security.
One of the justifications invoked historically and by commentators in recent years is that there are times when torture may be the only means to avert a greater evil, such as a threat to national security. However, the above reasoning is based on a number of unsubstantiated assumptions (that the subject holds the information sought and that he/she would disclose accurately if tortured, and that the anticipated danger can't be averted without such information). The physical, mental and psychological consequences of torture, by contrast, are real. Further, the line of reasoning would lead to a multiplicity of people being tortured (to identify a person supposed to be holding the information, to establish "the veracity" of the information being disclosed, to obtain further leads from other persons named by the victim, etc).
[Prof Juan Méndez] I don’t think anyone can seriously point to a justification for torture.
With respect to whether torture works or not? We see often the pragmatic justification of torture as ‘the lesser evil’ – as if, for example, if you torture somebody you get information that allows you to prevent something worse from happening. That argument is sometimes called ‘the ticking bomb scenario’ and has been debunked by the evidence. The people who propose it, have never been able to show that what they did on a certain day to an inmate prevented something else from happening. It is a very immoral argument that presupposes that because in one case you might have been able to save lives by torturing somebody, you must have a generalised practice of torture whether linked to a ticking bomb or not. That’s what really happens in reality.
Interestingly, the Supreme Court of Israel in 1999 said that if an agent believes that he is doing the right thing by torturing somebody to save lives- that might go into the mitigation of the illegality of the act. It could even be some form of defence at trial. It would never however, be sufficient to justify an administrative programme of torturing everybody that comes your way which- in the end- is what happens.
It’s not to say that the information you get from torture is always wrong- it isn’t. Obviously some people do confess and yield actionable intelligence. Torture is very unreliable. People under torture will say whatever the torturer wants to hear or- if they are well-trained, they will be able to withstand some forms of torture at-least for enough time for the ‘ticking bomb’ to explode. This argument also doesn’t take into account what happens to a police or military force that, over time, gets accustomed to the impunity of torture. They become unreliable, corrupt and engaged in many forms of illegal conduct. This results in a police or military that the community fears, but cannot trust- and is therefore useless at combating crime in all its forms including organised crime and terrorism.
Torture demeans and degrades the forces that practice it, and the loss of trust it engenders is very difficult to rebuild.
Q: Is there a difference in the use of torture during times of war and other periods?
[Keith Carmichael] Under international law, the prohibition against torture is non-derogable, meaning that there are no circumstances in which it can lawfully be employed, even in times of war or other public emergency. The prohibition is also considered a peremptory norm and has jus cogens status under the customary international law- in other words, the prohibition of torture is accepted and recognised by the international community as a norm for which no derogation is permitted, and which applies to all states regardless of whether they have ratified instruments including the prohibition of torture. In addition to being part of the international human rights framework, the prohibition also exists in international law on armed conflict, namely article 3 common to the four Geneva Conventions of 1949. Concededly, however, most historic and contemporary armed conflicts are associated with widespread use of torture as evidenced in a number of countries, including in the context of the US wars in Iraq and Afghanistan. During periods of conflict, states also invoke increased security threats, real or perceived, to justify the curtailment of rights including the protection against torture and ill treatment.
Q: Does torture 'work'?
[Keith Carmichael] Torture is illegal under international law. There is no evidence to show that torture is an effective means of gathering information. On the contrary, it is argued that it is particularly ineffective as persons suffering torture are likely to say whatever their torturers want to hear, making the information they disclose inherently unreliable.
In the post 9/11 period, military and intelligence officials have expressed doubt as to the effectiveness of torture- Ali Soufan, former FBI interrogator stated in an interview with Time Magazine that "When they are in pain, people will say anything to get the pain to stop. Most of the time, they will lie, make up anything to make you stop hurting them. That means the information you're getting is useless." The US Army Training Manual similarly states "Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear."
Israel's former policy on torture provides an example of how the use of the 'ticking bomb' justification can be dangerous. In the 1990s, the Israeli military justified the use of torture using the 'ticking bomb' argument, however Israeli forces "rarely if ever were able to identify a particular suspect with knowledge about a particular bomb set to explode imminently. Rather, they ended up applying the scenario metaphorically to justify torturing virtually every Palestinian security detainee on the theory that they might know something about some unspecified, future terrorist attack"
There is no way to carry out torture in a 'controlled' or 'sanctioned' manner- torture always causes severe physical or mental suffering and always constitutes a violation of international law. In addition, the use of torture cannot be 'controlled' or limited- if 'reasonable use of force' or 'moderate use of force' is permitted and does not yield any information, it is likely that the level of force would escalate to more severe abuse.
Q: How does torture relate to societal issues such as homelessness, marginalisation, refugee status and more?
[Keith Carmichael] The issue of marginalisation and torture is apparent in many contexts. In many countries, marginalised groups are targeted for torture, such as homosexuals, lesbians and transgendered persons as has been seen in Uganda, or members of certain castes in India and Nepal. This is often due to the link between the lack of empathy a society has towards such marginalised groups, and the fact that this attitude is reflected in governmental institutions and their treatment of members of these groups. Socially and economically marginalised groups are at heightened risk of torture as in many cases they are unaware of their rights and are in addition unable to get assistance, in particular, legal representation, to help them secure adequate and effective remedy. The lack of negative consequences for perpetrators of torture against such marginalised groups only serves to perpetuate the problem. In other contexts, victims of torture become marginalised as a result of their torture, such as refugees who have fled their country of origin to avoid further victimisation and who face discrimination and marginalisation in the country of refuge.
Q: What is the argument against torture?
[Keith Carmichael] There are a number of arguments.
- It is morally wrong for human beings to treat other human beings in ways that would amount to torture. Torture violates basic human dignity, and serves to dehumanise not only the victim but also the torturer. Additionally, torture is not effective.
- Torture constitutes a serious violation of international human rights law, including the right to security of person and the right to dignity. The fact that the prohibition against torture has reached jus cogens status in international law is indicative of the gravity of the violation. All of the major international and regional human rights instruments, such as the UDHR, ICCPR, Convention against Torture, European Convention on Human Rights, American Convention on Human Rights, African Charter on People's and Human Rights, etc. include the prohibition of torture.
- Widespread use of torture by a state can have a perverse effect on a society's sensibilities, and can delay or reverse its evolution towards greater respect for human dignity and civility.
- Consequently, the use of torture plays a significant role in hindering the growth of democratic principles, including equality and dignity for all, and also serves to corrupt established democracies.
- In addition, if torture is condoned in some countries, other countries will feel entitled to employ it, and similarly, if some limited forms of abuse are permitted, there is a strong likelihood this could devolved into torture or cruel, inhuman or degrading treatment.
[Prof Juan Méndez] The argument traditionally has relied mostly on the degrading nature of the practice of torture. It ignores the humanity of the person who is the victim, and- as such- treats the person as an entity less than an animal. Society has come to realise that they don’t want to be reflected in this kind of practice, and that they way the state treats its citizens and inhabitants says a lot about the quality of life and relationships within that society. If torture happens- whatever its scale- we are left with a society that has a very low image of itself.
Q: Does the threat of torture itself act as a destabilising agent?
[Prof Juan Méndez] The prohibition against torture is absolute in international law and morality, and does not allow for any suspensions in any situation- however exceptional.
Once you open the floodgates and say that ‘torture is bad, but in this case it’s necessary’- it’s very difficult to close them again later on. You then end up with a situation in which it’s very difficult to eradicate.
It’s also absolutely prohibited in the sense that it doesn’t need to be generalised. It’s illegal and immoral even if it only happens to a few selected individuals. Examples of this would include the phenomenon of ‘water boarding’, which we saw during the ‘war on terror’. Nobody is saying that thousands of people were tortured during the war on terror, but even the few and selective application of torture is immoral and illegal- demeaning those who apply it.
Torture also makes the state responsible, internationally for their actions- and makes those who practice it responsible (often criminally) for their conduct.
Q: What are the manifestations and effects of ‘stealth torture’?
[Keith Carmichael] Electric shocks, tasers, stuns etc. are methods of torture designed not to leave any marks of abuse on the victim. They may be more 'effective' for perpetrators in the sense that because the signs of abuse are less visible, there is less accountability. Indeed, such methods are increasingly employed in countries where there is more scrutiny on the actions of the police and security forces so as to avoid detection.
For victims, methods of torture that do not leave any marks are just as scarring as other forms of torture, however, their experience as victims may be worsened by the fact that there are no obvious signs of the abuse. This can lead to difficulties in medical recording of torture, registering a complaint, obtaining acknowledgement by their communities as well as authorities etc.
[Prof Juan Méndez] Torture in most countries happens from neglect. It’s not that countries or their authorities are intent on keeping torture going- but they don’t feel that it’s important to curb it, so let it happen. You see that when prosecutors say, “well I had my hands full with these more serious crimes…” or judges who say, “well if I start to look into whether this person was tortured or not, I’ll start having problems with the police and they won't cooperate with me…”. When these attitudes keep occurring, torture becomes rampant.
Stealth torture also suggests the very selective use of torture. There are countries who would never torture a common criminal, but would reserve this kind of treatment for national security purposes. That’s the kind of thing we associate with torture in the more general understanding and- unfortunately- occurs more frequently.
Torture in the past decade has become ‘normalised’ by culture. After 9/11 in particular, we have conditioned our communities to accept torture. Not to celebrate or support it, but to consider it inevitable and to take the view that, “if it makes us safer, then we’d rather not even look at it as a problem…” This is a serious problem.
In the decades before we had reached quite a universal consensus that torture was immoral and illegal- and therefore should never be justified. Public opinion is particularly important here as if we tend to be tolerant of torture? It will be a lot harder to eradicate.
Q: What are the manifestations and effects of physical and psychological torture?
[Keith Carmichael] Common methods of mental torture include isolation, threats, humiliation, mock executions, and witnessing the torture of others. Common methods of physical torture include beatings, electric shocks, stretching, submersion in water, suffocation, burns, rape and sexual assault.
According to the International Rehabilitation Council for Torture Victims, "The consequences of torture reach far beyond immediate pain. Many victims suffer from post-traumatic stress disorder (PTSD), which includes symptoms such as flashbacks (or intrusive thoughts), severe anxiety, insomnia, nightmares, depression and memory lapses. Torture victims often feel guilt and shame, triggered by the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. All such symptoms are normal human responses to abnormal and inhuman treatment."
[Prof Juan Méndez] The prohibition applies to pain and suffering that is physical or mental, there’s no distinction. In both cases, it has to reach a level of severity and inflicted with deliberate purpose.
The forms of what is commonly known as ‘psychological torture’ have been around for a while, for example- the techniques of identifying and exploiting phobias and fears. Depending on severity, these things can reach a level of torture. You don’t have to touch someone, but you can still be torturing them…
Sleep deprivation, food depravation and especially isolation and solitary confinement are also examples of this. Scientific evidence shows that a person who spends 23-24 hours a day looking at a wall will have marked changes in how their brain operates. If this is prolonged, it’s undoubtedly a form of torture. It may sound more sophisticated but it's illegal, immoral and prohibited under all circumstances.
In my experience not only as the UN’s special Rapporteur, but also as a victim of torture, I would say that psychological and physical torture always go together. For example, when they’re applying an electric prod to you- they may also tell you that they will do it to your children. They may also say that this will go on forever, and there’s nothing you can do. This all works psychologically and physically.
As for the question of whether psychological or physical torture is worse… It’s difficult to say, as it depends on the length and severity of treatment. From one session very brutal physical treatment, you can mostly recuperate… From 6 months of solitary confinement? I’m not sure how you recuperate.
The exclusively psychological tortures probably need more time to work and obtain their desired results, but the long-term effects on those to which it is applied can be devastating.
Q: To what extent do arguments against torture relate to the administration of the death penalty, and the period(s) of incarceration leading to it?
[Keith Carmichael] It is difficult to see how implementing a policy of death penalty could avoid violating the prohibition against torture and cruel, inhuman or degrading treatment, as set out in international human rights instruments given that the death row phenomena in itself constitutes a violation, as do the methods of used. The Second Option Protocol of the International Covenant on Civil and Political Rights is focused on prohibition of the death penalty and the Committee against Torture has regularly recommended that States party to the UNCAT ratify ICCPR Second Option Protocol in recognition of this, with a view to abolishing the death penalty, as sentencing to capital punishment leads to severe mental pain and suffering, resulting from the often long wait times for those awaiting execution, as well as the possible severe physical suffering that can result from the implementation of a death sentence.
The European Court of Human Rights made this position clear in the case of Soering v. UK (para. 111): "Having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant's extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3 [prohibition against torture and CIDT]"
[Prof Juan Méndez] My report to the UN General Assembly this October will deal thematically with the death penalty. This report explores a number of key issues. Is the death penalty capable of being applied in a way that doesn’t violate the prohibitions on torture, cruel, inhuman and degrading treatment? If so... how?
My general conclusion tends to say that all states are better off abolishing the death penalty. In practice, it’s very difficult or impossible to avoid the cruelty associated with torture, cruel, inhuman or degrading treatment.
This debate is not just about the ‘death row’ phenomenon, but the question of whether there is truly any painless way of administering the death penalty. For example- by now there is consensus that death by hanging is cruel, and therefore it is not practiced anymore. I believe people must also ask whether the lethal injection is as painless as it is asserted to be. There’s evidence to suggest that we only think it’s painless because we don’t see the fact that people are in pain. A component of the cocktail of drugs administered are muscle inhibitors, thus we cannot- from the outside- see how much that person is suffering.
There’s much more consensus that beheading, stoning and hanging are generally outlawed precisely because of cruelty. Considering firing squads and lethal injection? The debate is still open as to whether they are as painless as people say.
The death row phenomenon is also important. Granted in some cases, the cruelty here is sitting for years waiting to know whether you will be executed or not- but in other cases, it’s also surrounded by very physical ways of mistreatment such as isolation, denial of certain prison benefits and more. It’s important to note that the death row phenomenon has been found to be cruel, inhuman and degrading in many settings. Not just in domestic courts, but by international bodies. This is not just because these bodies are against the death penalty, but as a result of them looking at the conditions of death row, and the penalty itself, in a much more systematic way.
Q: To what extent do torture, cruel, inhuman and degrading treatment manifest in the health arena (e.g. pain relief and assisted suicide)?
[Prof Juan Méndez] As long as we have some connected with a state, state agent or the agent of an organised group that exercises like powers- treatment that inflicts pain and suffering is included in the prohibition. Under my mandate, my next thematic report will explore forms of treatment that constitute cruel, inhuman and degrading treatment or torture in the setting of healthcare and mental institutions. This could take the form of denying a patient pain relief medication and so on. We need to be careful as there may be medical justifications for any given treatment decision, but the patient must play an active role and be able to decide for themselves what pain they are willing to suffer, and for what purpose.
A lot of pain and suffering that occurs in the healthcare setting is probably unnecessary and unjustified. There are better ways for dealing with patients.
If we look at the debate around euthanasia, it’s one thing to allow a person to choose a dignified death, and it’s another to exonerate those who may help him or her to achieve that. That’s a very difficult moral and social issue that isn’t covered by our prohibitions under international law. With pain treatments that are available now, people can have a more dignified and less painful death without engaging in euthanasia. I think it is the responsibility of the state to minimise pain under all circumstances but the pain that is caused by illness is not covered by mandates around torture, cruel, inhuman and degrading treatments under international law.
I would definitely call it torture if some state agent purposely and with indifference, deprives a person of pain medication required to ease their way into death in a more painless way. I would not go so far as to say that the state has an obligation to allow that person to be euthanized.
Q: Has media and public awareness of torture affected its use?
[Keith Carmichael] It is not clear what the specific impact of Wikileaks has been, but the post 9/11 exposure of the treatment of Abu Ghraib and Guantanamo detainees, and the interrogation tactics employed by the US government and its allies in the context of the 'war on terror' has served to raise public awareness and consciousness about torture. In addition, the work of the media in following these developments and pressuring governments for more openness in cases of alleged torture, including through Freedom of Information Act request sin the UK, have played a significant role in raising public awareness about torture.
History indicates that torture is given an opportunity to flourish in secrecy, i.e. in contexts where the government exercises tight control on the media and civil society. Therefore the media has an important role to play in terms of reporting on judicial proceedings relating to torture as well as raising public awareness about acts or suspected acts of torture. In addition, monitoring of places of detention by independent bodies and civil society and media coverage of findings, as well as access to legal counsel, doctors and family members for detainees plays a highly important role in the prevention of torture as well as ensuring accountability for perpetrators.
[Prof Juan Méndez] The phenomenon of torture has come back.
Even very highly developed democracies resort to torture- though they do not call it by that name, as they know it is prohibited. It’s very difficult to hold powerful countries accountable. In the United States for example, whilst the worst of the practices seem to have been abolished- there has been no effort to prosecute and punish individuals for what did happen. I have seen a similar lack of action where we consider other countries involved in extraordinary rendition such as Britain.
In the realm of public opinion, attempts to hold states accountable are progressing by limiting use of torture through the shaming of countries that practice it. The downside is that culture has made us more tolerant of torture and has resulted in many holding the view that it’s useful, even though it’s immoral.
The fact that so many people buy into the ‘ticking bomb’ scenario shows me that we have a lot of work to do educating people that it’s irrelevant and incorrect. On the contrary, even if we prevent one attack today- every case of torture is a breeding ground for more people to come and attack us again and again. The long term costs- social, moral and political- are being overlooked.
Q: What is the role of governments, NGOs and the justice system in the elimination of torture?
[Keith Carmichael] Increased accountability for torturers itself serves as a disincentive for the use of torture, and the development of the international justice system over the course of the last two decades has played an important role in this regard. In particular, increasing the acceptance and implementation of universal jurisdiction for crimes such as torture means that the perpetrators will have fewer and fewer 'safe havens'.
Q: What is reparation?
[Keith Carmichael] In 2005 the UN adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and Serious Violations of International Humanitarian Law. This instrument constitutes a means for ensuring that States comply with their obligations under international law to guarantee an effective remedy and reparations when violations of international human rights and humanitarian law occur, including torture and other cruel, inhuman or degrading treatment or punishment, as well as to prevent the commitment of future violation.
The principles reflect international law, and provide that victim’s right to a remedy encompasses: (a) access to justice; (b) reparation for the harm suffered; and (c) access to factual information concerning the violations. Reparation, it is stated, should be adequate, effective, prompt, proportional to the gravity of the violation and the harm suffered and should include the following four forms:
Restitution – designed to re-establish the situation which would have existed had the wrongful act not occurred. This may include restoration of liberty, family life, citizenship and restoration of employment or property.
Compensation – should be provided for any assessable damage which results from the act (physical or mental pain, suffering, lost opportunities, loss of earnings, medical and other expenses of rehabilitation, legal fees, etc)
Rehabilitation – to include medical, psychological and other care and services, as well as measures to restore dignity and reputation.
Satisfaction and guarantees of non-repetition – including verification of facts and full public disclosure of the truth; a declaratory judgment (as to the illegality of the act); apology; judicial or administrative sanctions against the perpetrator(s); commemorations; prevention of recurrence (through legal and administrative measures).
Q: How do you define a torture survivor?
[Keith Carmichael] Although it is usual to refer to individuals as “victims”, those to whom it is applied do not always welcome the term. Some feel that it implies vulnerability, passivity or weakness, and therefore prefer the term “survivor”. (It is also important to note that the right to reparation extends not only to direct victims of human rights violations, but also to their dependents as well as those who were harmed as a result of intervening to assist them.)
Q: What are the rights of torture survivors to obtain reparation?
[Keith Carmichael] Under international law, there is a well-established right (laid down in Article 8 of the 1948 UN Declaration of Human Rights) entitling victims of human rights abuses to obtain reparations for their loss and suffering. Article 14 of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (“The Convention”) outlines the detailed right to reparation for torture victims, and provides that:
"Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law."
Article 14 is more explicit than most international legal provisions regarding reparation in that it expressly states that victims have the right to obtain reparation and not simply the right to seek it. It also specifies rehabilitation as a form of reparation, which is particularly important in the context of torture, and is understood to encompass both medical as well as psycho-social rehabilitation. The Committee Against Torture is currently negotiating a General Comment on Article 14 which will provide States’ party to the Convention guidance as to the full scope of their obligations under this provision, and how they can fulfil these.
Q: What is the UK policy on enabling cases for reparation or civil damages for torture?
[Keith Carmichael] As regards the UK, successive government have opposed any amendments to the State Immunity Act 1978 which would create a right of action for damages in respect of torture, wherever and by whoever committed. In this respect former Lord Chief Justice Lord Woolf argued at the House of Lords 2nd Reading of the Torture (Damages) Bill (16 May 2008) that he regretted that the Governments hadn’t amended the State Immunity Act in 1988 to provide a civil remedy or words to that effect. He said on May 17, 2008, “Alleged victims of torture should be able to sue the perpetrators, including foreign countries, in the British courts.” [17 May 2008]
[My friends in the USA (Congressmen and lawyers) struck a much bolder strategy to comply with The Convention. On May 13, 1992 I testified at The Hearing before the Subcommittee on International Law, Immigration, and Refugees of the Committee on the Judiciary, House of Representatives on HR 2357, Amending the Foreign Sovereign Immunities Act of 1976. The Amendment authorised American citizens to bring civil lawsuits in the US courts seeking monetary damages for torture and mistreatment by officials of foreign governments. Governments of foreign states would no longer be able to claim immunity. In April 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 which included under Section 221, a provision allowing US citizens to sue foreign States in US courts, though only for torture in countries on the US State Department’s list of “terrorist states”. Leonard Garment, lawyer who was formerly Special Counsel to the late President Nixon and my lawyer made some counter arguments about the US State Department’s resistance to the legislation on the “ground that it would trigger retaliatory measures”]
Q: What are victims’ needs and perceptions of justice?
[Keith Carmichael] Given that victims come from a diversity of backgrounds and experiences, their perceptions of reparations and the 'reparations process' are varied and multidimensional.
For some torture survivors the legal case can itself become a focus, a way of coping with their problems, a way of keeping hope alive. To others, energised by their struggle against the torturer, the pursuit of reparation becomes a compulsion or an obsession.
Victims in the midst of conflict will not have time to think about 'reparations'. Cultural differences may also impact on perceptions of reparations. In some cultures, active participation in criminal proceedings may be essential whereas in others, the admission of guilt by the wrongdoer will be most important. In some contexts, the fact that one can never undo what was done or make adequate reparations may mitigate against reparations, whereas in others, the symbolic effect is seen as extremely beneficial. The context of the violation may give rise to specific perceptions of what kind of reparation should take place. For example, a situation of massive population displacement and ethnic cleansing may necessitate a program for the return of refugees and displaced persons, and/or the other sustainable solutions for these victims.
Q: In what ways can torture survivors obtain justice and reparation?
[Keith Carmichael] Theoretically torture survivors are able to seek reparations in criminal or civil proceedings through national courts, depending on the legal system in place and subject to the State’s obligations under international law. In some jurisdictions, a civil remedy can be sought independently of any criminal proceedings, while in others civil action is reliant on a criminal conviction, which can serve as an obstacle to obtaining reparations in some cases. In the UK, victims of torture can make claims for reparation based on common law torts and for breaches the Human Rights Act 1998. Though there is no tort of torture in common law, it is possible to file a civil claim for damages for violations of article 3 of the European Court of human Rights.
Under S. 134 of the Criminal Justice Act 1988, any public official or someone acting in that capacity, of any nationality who commits and offence of torture in the UK or elsewhere can be prosecuted in the UK. Faryadi Zardad, a warlord from Afghanistan, was the first person to be convicted on the basis of universal jurisdiction in the UK. However, state or sovereign immunity is currently the key barrier that has to be overcome in order to provide a civil remedy for victims in the UK who have been tortured overseas by foreign perpetrators. In addition to needing to found UK jurisdiction through conflict to flaws principles, if the claim is brought against authorities from a foreign government, the principle of sovereign immunity will be barred. REDRESS has proposed a Torture Damages Bill to remedy this, though sufficient parliamentary support for this is lacking.
If victims are denied their right to reparation at the domestic level and are left with no available recourse, they can bring their complaint to a regional human rights mechanism such as the European Court of Human Rights, which is empowered to award reparations though there are difficulties in enforcing these at the domestic level. In some countries where armed conflict has recently ended or is on-going, and with a legacy of human rights violations and large victim populations, administrative reparations programmes have been established, for example in Peru and Colombia.
Reparation most often takes the form of financial compensation, which can be problematic as this does not always include an apology or an acknowledgement of the harm done, which is an important component of reparative measures.
Q: Will we see a day where torture, cruel, inhuman and degrading treatment cease to exist?
[Prof Juan Méndez] These practices are abolished in law and there has not been any retreat on that. The difficulty is abolishing them in practice.
I don’t see it [abolishing torture in practice] happening any time soon, but I am encouraged by the fact that the phenomenon of torture ebbs and flows. There are countries who did practice it, who do not now. There are countries who are very self-conscious about not letting it come back again…. I don’t think there is a single country that has completely abolished it in practice, but there are many where societies are clear that it should not happen.
If we look at the phenomenon of slavery, it took centuries to abolish- but it was. I believe that we can conceive that within our lifetimes or our children’s, we will see a world free from torture.
"If there is one value that seems beyond reproach, in our current confused ethical climate, it is that of the self and the terms that cluster around it- autonomy, identity, individuality, liberty, choice, fulfilment." wrote Nikolas Rose in his paper 'Inventing Our Selves', " ...It is in terms our autonomous selves that we understand our passions and desires, shape our life-styles, choose our partners, marriage even parenthood. It is in the name of the kinds of persons that we really are that we consume commodities, act out our tastes, fashion our bodies, display our distinctiveness. Our politics loudly proclaims its commitment to respect for the rights and powers of the citizen as an individual. Our ethical dilemmas are debated in similar terms."
Humanity is- if nothing else- steeped in hypocrisy (to the extent that society does not follow its own expressed morals and principles). Whilst we cherish autonomy, we also seek (through power) to reduce the autonomy of others. As Lammers, Stapel et, al note in their paper 'Power Increases Hypocrisy' - "Anecdotal evidence from various domains of society suggests that power undermines people’s sense of morality, corrupting their thoughts and behaviour... Power inspires hypocrisy: it makes people stricter in moral judgements of others but less strict in their own behaviour. As a rule, human societies are unequal (Leavitt, 2005: Magee & Galinsky, 2008). Even egalitarian democracies are made up of a large group of powerless have-nots and a small group of powerful haves (Mills, 1956). A question that lies at the heart of the social sciences is how this status-quo is defended and how the powerless come to accept their disadvantaged position. The typical answer is that the state and its rulers, regulations, and monopoly on violence coerce the powerless to do so (Weber, 1948). But this cannot be the whole answer: Social order rests on more than fear of the law’s reach (Arendt, 1951). One explanation is that there exists a general acceptance of inequality among social groups, not only among the powerful, but also among the powerless, in order to produce social harmony (Sidanius, Levin, Federico, & Partto, 2001). Working class people embrace ideologies that seem fair but actually reinforce the status-quo (Grasci, 1971). Members of low-status groups show outgroup favouritism and hold negative stereotypes about their own group’s abilities (Jost & Banaji, 1994). All these and others findings show that protection of social inequality is not something necessarily imposed by one group and resisted by the other. Rather, the stability of the system comes from within, in the sense that even the victims of that system contribute to its acceptance (Foucalt, 1979/1991; Jost, Banaji, & Nosek, 2004)"
Whilst our experience of life is individual, our conduct is together. We are all responsible for our part in the endeavours of humanity- be they beautiful, or barbaric. By condoning torture in our world, we are sending a clear message to those being tortured that, "...What happens to you here is forever. Understand that in advance. We shall crush you down to the point from which there is no coming back . Things will happen to you from which you could not recover, if you lived a thousand years. Never again will you be capable of ordinary human feeling. Everything will be dead inside you. Never again will you be capable of love, or friendship, or joy of living, or laughter, or curiosity, or courage, or integrity. You will be hollow. We shall squeeze new empty, and then we shall fill you with ourselves..." (O’Brien to Winston, Nineteen Eighty-Four, George Orwell, 264-265).
Our species has grown out of adolescence, and abolished many of its most jarring injustices, yet glaring omissions- such as the existence of torture- remain. Any observer of this iteration of culture would perhaps simply describe us as a more technologically advanced brute than our ancestors.
We must end this and start a new chapter- realising that until we act like humans, we do not deserve to be described as such.
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