WORLD: 'War on terror' threatens 'war on torture'
As it observes the annual U.N. International Day in Support of Victims of Torture on June 26, the Asian Human Rights Commission (AHRC) notes that fighting the war on terror in recent years is now threatening the much longer war on torture.
For years, the AHRC and others around the world have called upon governments to sign and ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to enact the conventions provisions into domestic law and to enforce this law. These efforts, however, are now being undermined, most notably by the U.S. government that had previously been at the forefront of torture prevention and the protection of other human rights since the end of World War II. Exceptions to long-established international norms on torture are being sought by the United States to justify the use of torture in the war on terror. In this process of relativising the absolute prohibition against torture and redefining what constitutes torture, the principles on which democracy, human rights and the rule of law are based are threatened as well. Indeed, the U.S. administrations unilateral interpretations of international and domestic laws in order to support the use of torture is not only an attack on prohibitions against torture but also an attack on the countrys democratic institutions and legal system. When anyone is allowed to be above the law, especially government officials and military or intelligence personnel, the rule of law ceases to exist, and human rights is at the mercy of those who wield power.
Moreover, the passage of anti-terror laws in the United States and other countries dilute or negate peoples other rights. In this environment in which peoples rights are being sacrificed in the name of their security, the possibility of torture becomes more likely.
This debasement of legality is not new as there are many historic precedents, such as Nazi Germany and South Africa during apartheid in which the law was used for oppressive purposes. However, the fact that it is now being undertaken by a country which sees itself as a defender of human rights and a promoter of democracyindeed, principles that are being regularly espoused and veritably exported by the present administrationexposes the dangerous global trend of our times. The attempts by the worlds only superpower to undermine prohibitions against torture only makes it easier for governments with far less democratic traditions and less impeccable human rights records to rationalise the use of torture in their country.
This state of affairs, of course, is highly relevant for Asia as the summaries of several Asian nations below illustrate.
Bangladesh has constitutional safeguards against torture and has ratified CAT. In spite of these positive developments, torture is widespread in the country because of the lack of laws to enshrine in legislation prohibitions against torture. Indeed, laws have been passed that grant perpetrators immunity from prosecution for human rights violations.
For instance, although Bangladesh has acceded to CAT, the government declared that it will apply Article 14 paragraph 1 in consonance with the existing laws and legislation in the country. Article 14 paragraph 1 states 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. However, there are no laws in Bangladesh that implement the provisions of Article 14 paragraph 1. Thus, the government, in effect, has registered a reservation on this important article. In addition, the government, as noted above, has also failed to put the provisions of CAT into domestic legislation.
Moreover, various domestic laws are contrary to the rights of victims and perpetuates impunity for perpetrators of torture. Impunity, for example, is enshrined in Sections 132 and 197 of the Criminal Procedure Code, which legislate that prior sanction by the government is required in order for courts to take cognisance of any offence committed by any public servant, including members of the police or other forces, while on official duty. Furthermore, the government can decide if an offence is prosecuted and in which court the case will be tried. In addition, the Indemnity Act 2003, which was brought into force following the notorious Operation Clean Heart in which more than 11,000 people were allegedly arrested and 58 were tortured to death in 2002, enables blanket impunity to all actions performed by the army and other security forces during the period between October 2002 and January 2003.
Corruption also plays a role in fostering abuse. People making complaints must be willing to pay, and people under investigation are forced to pay in order to keep themselves off the charge sheet or to avoid being falsely implicated in other cases or to evade torture or ill-treatment, which takes the form in Bangladesh of forcing through the victims nose and mouth hot water in summer or cold water in winter mixed with chilly powder, electrocution, the removal of fingernails, sexual violence, etc.
As a nation, the people of Cambodia were subjected to severe forms of torture during the Khmer Rouge period in the 1970s. The ousting of the Khmer Rouge, however, did not end all of these crimes. They have been perpetuated, though to a much less extent, under the communist regime that succeeded the Khmer Rouge and under the current regime that is purported to be a liberal democracy and governed by the rule of law and respect for human rights. The violation of human rights though has continued despite Cambodias human rights obligations under its Constitution and its ratification of CAT and the signing of CATs Optional Protocol, for the simple reason that the government has failed to exhibit any commitment to its obligations. It has not criminalised torture, for instance, or taken specific legislative, administrative, judicial or other measures to prevent acts of torture as required by Articles 2 and 4 of CAT. Nor has it ratified the Optional Protocol and created a national preventive mechanism as required by its Article 3.
Torture also occurs in Cambodia because of inadequacies in law enforcement techniques and the weakness of the judiciary that fails to confront the police about the use of torture. Claims of torture by victims in court are rarely, if ever, investigated. The acceptance of confessions in court encourage the use of torture in police stations as a way to solve crimes. The police employ torture to also extort money from victims. Moreover, there is a fear of prosecuting powerful or protected offenders. As a result, a climate of impunity prevails. These factors are reinforced by the social attitude of the Cambodian people in which those arrested and tortured are presumed to be guilty. A person can be caught and beaten by a mob upon shouts and cries that the person is a thief or robber. At times, these shouts and cries have led to extrajudicial killings.
Of the 511 sections in the Indian penal code, not a single provision exists to punish a law enforcing officer for engaging in custodial torture. Custodial torture is not yet a crime in India in spite of the fact that custodial torture is rampant. Most often it is the poor and the underprivileged, who comprise about 70 percent of population, who are subjected to torture. The government though continues to deny that torture is rampant in India and that there are no effective remedies available in the country to address this issue.
This situation is aggravated by the absence of such basic elements as accountability and impartiality within the police department and years of delay in courts that result in no complaints against the police ever being properly investigated. Departmental inquires, if they occur at all, are mostly empty gestures. It is not an exaggeration to state that the possibility for a person tortured by the police to get redress for their grievances during their lifetime is a near impossibility. Thus, victims resort to support from political parties to sort out grievances which are often exploited by political parties.
In theory, a person could attain justice if they are tortured by invoking the existing provisions in the Indian penal code for causing bodily harm or injury. However, to convict a person under any offence in the Indian penal code requires evidence. For torture victims, the evidence required to meet the burden of proof in a court of law is not limited to their statements but also includes medical evidence. For medical evidence to be accurate, however, it must be recorded at the earliest possible time. Since police officers will not produce a detainee for a medical examination at the detainees request, the medical examination is carried out only in cases where there is an order from the court; but to obtain such an order, the court should be addressed at the earliest possible occasion. Most detainees though are never produced before the court. Even orders extending remand and the continuation of custody are often made without the detainees being present in court and often on the advice of the police officers. Thus, it is difficult for a detainee to lodge a complaint in court about the treatment they receive in custody. A lawyer could make a complaint about their client being tortured by the police, but it is rare for most torture victims, who are usually poor, to afford a lawyer. Moreover, owing to the absence of a witness protection mechanism in most cases, victims are afraid to speak against their perpetrators in cases of police brutality.
In cases of custodial death, the persons body is the primary form of evidence. Post-mortem reports though are often prepared by inexperienced and unqualified people. Qualified medical doctors merely sign reports without examining the person. In many states, mortuaries are controlled by the local police, providing an opportunity for the police to manipulate records as well as tamper with evidence. Thus, even in death, there is no justice for the victim.
In this environment, impunity for police officers thrives. It is common for anyone in India to inquire about the rates, a euphemism for a bribe, of the police officer or the rates prevailing at the police station if a person needs to lodge a complaint. It is taken for granted that torturing people, no matter whether the person is a suspect, witness or an onlooker, is often a matter of normal police procedure in India. It is also taken for granted that the local police primarily serve the representatives of political parties and other influential people.
Indonesias international obligations hold little meaning to its government. Indonesia ratified CAT in 1998; eight years later though torture is still not a punishable offence under the Indonesian penal code. While torture is considered a crime against humanity under Law No. 26 of 2000 in the Human Rights Court Act, the penal code does not define the act of torture and has no specific provisions for the prosecution of torture. At present, torture is treated in the same way as ordinary maltreatment between civilians. Furthermore, there are no provisions for the compensation of victims and no complaint mechanisms through which abuse can be reported.
Moreover, the lack of effective legislation prohibiting torture and other cruel treatment has led to an insensitivity among judicial and other officers. In the rare cases when complaints of torture are investigated, the findings are usually not made public. Furthermore, the only action taken against errant police officers is disciplinary; they may be transferred or fined a small suma punishment that diminishes the gravity of torture and further victimises those who have been tortured.
Unfortunately, Indonesia is a country with many past human rights abuses, including disappearances and extrajudicial killings as well as torture, that have been perpetuated by state forces as well as sectarian warfare. It is not possible for Indonesia to extricate itself from such violence until the rule of law is effectively established within the country and the perpetrators of abuse, both state and civilian, are held accountable. The enforcement of anti-torture legislation, in line with the principles of CAT, is therefore essential.
The only response made by the Indonesian government to critiques of its domestic law regarding torture is that after the revision of the penal code all loopholes will be closed. However, the penal code has been under revision for more than a decade. How much longer must victims of torture and ill-treatment wait to seek justice and redress?
Over recent years, Nepal has had some of the highest recorded cases of human rights violations in the world, notably torture, extrajudicial executions and forced disappearances. Severe forms of torture, often resulting in death, have been perpetrated by all sides in the countrys conflict. About 800 cases of torture have been documented between March 2005 and April 2006 alone. After years of suffering and struggle though, there is now greater hope for the respect of human rights in general, and for torture victims in particular, as a result of the historic peoples movement in Nepal in April 2006. As a result of the widespread protests, the king of Nepal was forced to hand over power to Parliament on April 24, 2006. Since then, political developments, including the transfer of control of the military to the government and the formation of a commission of inquiry to look into abuses committed during the nearly three weeks of protests in April, have offered some optimism that the widespread and grave human rights violations that have crippled the country in recent years will now be prevented and that real opportunities for justice for victims can be attained.
There is disappointment, however, that in the landmark adoption of the House of Representatives proclamation on May 18, 2006, which curtailed the power of the king and ensured that the military would be under the control of the government, reforms relating to the judicial system were sadly missing. Without a strengthened judiciary, support to victims of torture in the form of legal redress will likely prove elusive. The issues of accountability of perpetrators from all sides and at all levels of authority and the establishment of a capable and independent judiciary are prerequisites for the transition of Nepal to a state of peace and respect for human rights.
Meanwhile, the transfer of control of the armed forces to the civilian government should, in part, enable gross violations of human rights to be brought to an end. It is necessary too that the Maoist commanders also ensure that violations perpetrated by their forces end and that the perpetrators of past and any future violations will be held accountable. Vigilante groups, established and armed by the army, must be disarmed and disbanded as well.
Other measures to facilitate a greater respect for human rights are also needed. The government, for example, must immediately create a publicly available, up-to-date and well-maintained register of all detainees being held in Nepal as torture is most prevalent when people are held incommunicado. The government must also enact legislation that criminalises the practice of torture, for, to date, no specific law exists to punish this act. This lacuna ensures impunity for perpetrators and robs victims of any possibility of legal redress concerning torture despite Nepals accession to CAT in 1991. The strengthening of the judiciary, which should include the reappraisal of judges, the provision of greater resources and training concerning torture and other human rights violations, is key to the future of the nation. Moreover, the protection of torture victims that are seeking redress and witnesses involved in any legal processes must be ensured.
While it has been vital, in the first instance, to ensure an end to hostilities under a cease-fire and an avenue for peaceful dialogue in the country, justice and redress for victims of torture and other abuses must not be sacrificed for short-term political gains as these abuses and the lack of justice have been at the root of the conflict in Nepal and must be addressed if long-term stability is to be reached.
In 2004 and 2005, there were 2,000 reported cases of torture committed by the state. However, in just the first five months of this year, more than 400 people from the province of Balochistan and 200 people from the northern areas of Pakistan, in particular from the tribal areas, were detained and tortured purely on political grounds by the army, police and other state agencies. People are usually tortured to obtain information, force a confession or extort money from detainees. The torture cells are generally found in cantonments and other military-controlled areas. In Karachi and Quetta, these cells are under the control of the corp commanders. Only the personnel of Inter-Services Intelligence (ISI) and military intelligence are allowed to visit these cellseven the police cannot enter them without being blindfolded first.
Meanwhile, the police generally victimise people of lower income groups. Sadly, the police and law enforcement agencies are often trained in such a way that they think it is their duty to torture people. In some cases, people are randomly taken off the streets and kept in the police stations where they are badly beaten and tortured. Their families are then informed and asked to pay large amounts of money to have their relatives released from custody.
If there are inquiries into police brutality, it often just leads to the suspension of the accused officers. However, this lenient punishment rarely lasts long as the accused is swiftly reinstated in his old job. Conversely, there are very few ways in which the victim is able to attain justice since the legal system is reluctant to bring the perpetrators to court and to convict them. In rare cases of convictions, the person commonly manages to escape. Because of the lack of internal and external checks and punishment for the actions of the police, some officers have transformed their police stations into a lair for torturing and extorting the people they should be protecting.
Supporting this infrastructure of violence is the medical profession that falsifies medical reports related to custodial deaths or torture cases due to pressure exerted by the police.
To counteract the present use of torture by the military and police, Pakistan should, first of all, ratify CAT and implement its provisions into domestic law. In addition, a list of missing people and torture victims should be made public by the government, and compensation should be paid to torture victims. The government should also create a medical board to treat the physical and mental effects left by torture. Lastly, an independent tribunal should be empanelled consisting of a Supreme Court justice, a member of Parliament, representatives of human rights organisations and torture victims, and human rights committees at the grassroots level should be established to check the first information reports (FIRs) at local police stations and to visit places of detention. The implementation of these measures will provide greater protection for Pakistans people from those who are entrusted to uphold the law and defend the nation.
Almost two decades after acceding to CAT the people of the Philippines, especially the countrys torture victims, are still waiting for the conventions requirements to be put into domestic law. Torture victims have long been denied the possibility of seeking remedies and justice due to the absence of a law in spite of the ratification of CAT and constitutional protections against torture in the 1987 Constitution. Having these rights in the Constitution and CAT ratified, but with no law to implement them, has proved meaningless, for torture victims cannot prosecute perpetrators in court for torture offences without a law that makes torture a crimecircumstances that create a culture of impunity.
In addition to enacting a law on torture, the government must also establish rehabilitation programmes and adequate medical provisions for Filipino torture victims. Otherwise, it is extremely difficult for victims to recover from their trauma and injuries.
A step toward changing this unacceptable situation occurred on June 7, 2006, when a congressional committee in the Philippines approved a consolidated bill seeking to outlaw torture. Members of Congress can no longer delay this proposed bill and must consider it with the utmost priority if the peoples representatives are serious about making torture of the Filipino people a crime.
Another welcome development was the pledge of the Philippine government when it sought membership on the new U.N. Human Rights Council to ratify the Optional Protocol of CAT. However, the governments sincerity and commitment to implement international human rights instruments and procedures is highly questioned by torture victims within the country. Part of the obligations for a state party ratifying the Optional Protocol under Part IV Article 17 is for them to maintain, designate or establish a national preventive mechanism for the deterrence of torture. However, no effective mechanism for the prevention of torture exists in the Philippines. Moreover, can the Filipino people and the international community expect the government of the Philippines to adhere to the provisions of the Optional Protocol when it has failed to outlaw torture for almost 20 years after acceding to CAT?
The existence of endemic torture in Sri Lankas police stations is now acknowledged by many actors inside and outside of the country. This acknowledgment is made, for instance, by U.N. agencies in international reports. The Sri Lankan government has also admitted that the problem exists as do high-ranking police officers, including the inspector general of police himself. Moreover, the former commissioners of the Human Rights Commission of Sri Lanka, lead by Dr. Radhika Coomaraswamy, acknowledge the problem and have declared a zero tolerance policy on torture, which unfortunately has not been implemented due to the lack of cooperation from the police as well as other state agencies. In addition, the former commissioners of the National Police Commission have also acknowledged the problem and interdicted 102 police officers in 2005 after they were indicted in courts for offences under the CAT Act (Act No. 22 of 1994). Furthermore, the Supreme Court of Sri Lanka has mentioned the increasing number of credible complaints of torture on many occasions.
Despite this extensive acknowledgment of torture, nothing has been done to eliminate its widespread use. The government talks about improving human rights but does not go beyond mere words. What exists is only a public relations exercise for damage control in the event of serious criticism from international agencies that might affect foreign aid.
The collapse of the rule of law in the country causes and contributes to the prevalence of torture. The breakdown in Sri Lankas legal institutions is exacerbated and deepened by President Mahinda Rajapaksas decision to appoint members to the Human Rights Commission, National Police Commission, Public Service Commission and justices to the Supreme Court and Court of Appeal in contravention of the 17th Amendment to Sri Lankas Constitution. When the president of the nation violates the Constitution, what prospect exists for respect for the rule of law by other government institutions, the police, military and, indeed, the public?
With the countrys commitment to human rights nothing but a farce, the only hope lies with civil society and those committed individuals and organisations who will fight hard to improve human rights, an endeavour in which the elimination of torture is the key component. Among the steps needed to end torture are the immediate filing of indictments against torturers and their interdiction, speedy trials for torture cases, the enactment of a witness protection law and creation of a witness protection fund and improvement in the court awards for compensation for torture victims and their families.
Although Thailands Constitution of 1997 prohibits torture and other acts of inhuman treatment, no domestic law has ever been enacted to prosecute alleged perpetrators of torture. Nor have its authorities ever been able to cite a single case of a law enforcement officer facing any form of criminal action in a court of law over allegations of torture.
The Thai governments lack of concern for eradicating torture and for the countrys torture victims is also evident by its failure to ratify CAT. Notwithstanding repeated assurances from some quarters that ratification is imminent, it is clear that some powerful agencies or persons are working against it. This comes as no surprise in spite of the tarnished international image that this refusal to ratify the convention brings the nation. Any agreement to comply with an international law against torture will be a challenge to law enforcement agencies that have been accustomed to using violence as a means of extracting confessions and punishing bad people. That is why state security officers do not have the authority to make decisions about signing international laws. That authority lies with the government and cabinet, especially with the prime minister, justice minister and interior minister. The responsibility for ratification rests with them as does the blame for Thailands failure to ratify the convention after years of procrastination.
It has been openly acknowledged that one of the main reasons for Thailands failure to get elected to the new U.N. Human Rights Council was its failure to ratify CAT. And rightly so: any country that has failed to subscribe to this key international prohibition on torture does not deserve a seat on the council. The government has already expressed its intention to seek election to the Human Rights Council when a number of seats fall vacant in 2007. There is little chance of this happening though if Thailand still does not ratify the anti-torture treaty by then.
With the new U.N. Human Rights Council now meeting in Geneva, it is most appropriate to relate its first meeting and the record on torture of its members, especially its Asian members, on the U.N. International Day in Support of Victims of Torture. Of the countries whose records are highlighted above, Bangladesh, India, Indonesia, Pakistan, the Philippines and Sri Lanka are inaugural members of the council. It would be wise, citing the call in the section on Thailand above, that all council members ratify CAT as a benchmark for membership on the council. All of the current Asian council members profiled earlier would thus qualify except India and Pakistan. This criteria should be expanded though to include enacting the provisions of CAT into domestic legislation to make torture a crime, allowing torture victims to prosecute their torturers. This requirement would exclude all of the current council members from Asia above except Sri Lanka. However, laws without enforcement of those laws is meaningless, which would presently eliminate Sri Lanka from the council as well. In short, one of the criteria for membership on the council should be the manner in which they investigate and prosecute claims of torture because the rampant use of torture indicates that the rule of law has failed; and without the rule of law, does human rights have any meaning?
In addition to these criteria, the provision to torture victims of medical assistance, adequate compensation based on international standards and witnesses protection should be other standards for membership.
The AHRC recommends that the U.N. Human Rights Council employs these criteria as part of its new universal periodic review mechanism to assess the human rights record of its members to ensure that the member countries of the council maintain the highest human rights standards, which was one of the rationales for replacing the U.N. Commission on Human Rights with the council. The purpose of subjecting council members to these criteria is not to remove them from the council, however, but to improve their human rights records, especially in the area of torture prevention, in order that the dignity and lives of their people are respected and their rights protected. If torture is a part of peoples everyday experience in the countries of U.N. Human Rights Council members, what is the hope for those who live in countries that are not council members?