The international crime of torture
We saw in previous texts that some human rights violations give rise to individual criminal responsibility. We have referred to war crimes and set out the definitions of genocide and crimes against humanity. Such crimes have sometimes been prosecuted in international tribunals and, on occasion, at the national level. Another international crime is the crime of torture. The prohibition on torture in the UN Convention against Torture is described in absolute terms. ("No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.') But we know that torture unfortunately goes on around the world. In this short text, we will focus on four issues: the definition of torture, the arguments that have been put forward to excuse torture in order to prevent a terrorist attack, the prohibition of the use of evidence gleaned from torture, and the ban on sending someone to a country where there is a strong likelihood of them being tortured. It is suggested we can learn a lot about the foundations of human rights thinking from the exploration of these issues. To better understand the challenges involved, it is worth recalling a little of the history of torture.
The purposes of torture have been various. In some contexts torture was considered a useful way to extract confessions and essential proof for a conviction at trial. Although the English common law prohibited torture, an exceptional procedure allowed the King to issue 'torture warrants' through the Star Chamber. One of the most famous individuals subjected to this procedure was Guy Fawkes, caught trying to blow up the Houses of Parliament in 1605. He was then tortured into giving up the names of his accomplices. The judges of the House of Lords in a recent human rights case have reminded us of this episode in English history. This form of investigation became seen as emblematic of the abuse of power by the King, it was therefore abolished, along with the Star Chamber, in 1640. Although the Roman-Canon law tradition in Continental Europe continued to accept confessions extracted by torture as useful elements of proof, this practice was increasingly seen, not only as unreliable, but also as unfair to the innocent.
Lord Hope in A v Secretary of State for the Home Department (2005)
Four hundred years ago, on 4 November 1605, Guy Fawkes was arrested when he was preparing to blow up the Parliament which was to be opened the next day, together with the King and all the others assembled there. Two days later James I sent orders to the Tower authorizing torture to be used to persuade Fawkes to confess and reveal the names of his co-conspirators. His letter stated that 'the gentler tortours' were first to be used on him, and that his torturers were then to proceed to the worst until the information was extracted out of him. On 9 November 1605 he signed his confession with a signature that was barely legible and gave the names of his fellow conspirators. On 27 January 1606 he and seven others were tried before a special commission in Westminster Hall. Signed statements in which they had each confessed to treason were shown to them at the trial, acknowledged by them to be their own and then read to the jury.
In modern times we have seen how brutal regimes considered that torture would remind dissidents and the general population who was in charge - and who was determined to remain in charge. In the 1980s, an anti-torture campaign, led by groups such as Amnesty International, was successful in advocating a set of binding international prohibitions on torture. Torture was already criminalized as a war crime when committed against certain prisoners, and was considered an international crime in the context of genocide and crimes against humanity. But the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment criminalized torture even outside these contexts, and prescribed individual criminal responsibility for a single act of torture. As already mentioned, Senator Pinochet's arrest and detention in London resulted from the application of the rules contained in this Convention and, more recently, we have seen this treaty provide the context for the arrest in Senegal of the former President of Chad, Hissene Habre, with a view to his eventual prosecution for crimes of torture. In 2005, the Afghan rebel leader, Faryadi Zardad, was convicted at the Old Bailey in London of torture and hostage taking and sentenced to 20 years imprisonment. This represented a rare, but concrete, implementation of the torture treaty.
Let us now see how the absolute prohibition of torture has come under strain in recent times. First, in the wake of the shocking 2001 September 11 attacks on the United States, there were attempts to define torture in a particularly narrow way. The interpretation of the term in a 2002 memorandum of the US Justice Department read torture so narrowly as to amount to the intentional infliction of ‘excruciating' or 'agonizing' pain. This looked particularly unfortunate as the photos of the abused Iraqi prisoners surfaced with graphic evidence of the humiliation being meted out. Many blamed the policy makers as well as the disgraced prison guards. By December 2004, the US Justice Department had replaced the previous memorandum with a public document setting out the US policy and abandoning the idea of such an explicit threshold. Instead, the memorandum details those cases of foreign abuse that had been determined as torture by judicial decisions in the United States. These cases were suits brought against foreign torturers from the Philippines, Iraq, and Iran.
From the US Department of Justice memorandum, 2004
Cases in which courts have found torture suggest the nature of the extreme conduct that falls within the statutory definition. See, e.g., Hilao v Estate of Marcos, ... (concluding that a course of conduct that included, among other things, severe beatings of plaintiff, repeated threats of death and electric shock, sleep deprivation, extended shackling to a cot (at times with a towel over his nose and mouth and water poured down his nostrils), seven months of confinement in a 'suffocatingly hot' and cramped cell, and eight years of solitary or near-solitary confinement, constituted torture); Mehinovic v Vuckovic, ... (Concluding that a course of conduct that included, among other things, severe beatings to the genitals, head, and other parts of the body with metal pipes, brass knuckles, batons, a baseball bat, and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of ‘Russian roulette', constituted torture); Daliberti v Republic of Iraq, ... (entering default judgment against Iraq where plaintiffs alleged, among other things, threats of ‘physical torture, such as cutting off ...fingers, pulling out ...fingernails', and electric shocks to the testicles); Cicippio v Islamic Republic of Iran, ... (Concluding that a course of conduct that included frequent beatings, pistol whipping, threats of imminent death, electric shocks, and attempts to force confessions by playing Russian roulette and pulling the trigger at each denial, constituted torture).
Is it really that important to find the threshold at which coercive interrogation becomes torture? While the international crime and the corresponding rules on prosecution and extradition only attach to conduct which satisfies the legal definition of 'torture', we should recall that the Convention also bans 'other cruel or inhuman or degrading treatment'. The UN Body of Principles for All Persons in Detention explicitly states that: The term 'cruel, inhuman or degrading treatment or punishment' should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.
As attention shifted in 2006 to the human right not to be subjected to cruel, inhuman, or degrading treatment, the US Attorney-General sought to circumscribe that category by stating there was 'disagreement' whether 'embarrassing or insulting' someone should come within that prohibition. Such attempts to define 'how far can you go?' remind us that the goal of breaking the prisoner' still figures as part of the modus operandi for interrogators seeking to play their role in averting the next terrorist attack. The purpose of coercive treatment is no longer really to obtain a confession for trial; it being widely acknowledged that few legal systems would accept that evidence procured through such methods should be admitted in court.
The purpose is said to be to gather intelligence about the terrorist network and to prevent future attacks. This brings us to the philosophical question: might some incidents of torture or ill-treatment be justified to avert a terrorist attack? (The ticking bomb scenario). The argument that the torture of a few individuals (perhaps with the reintroduction of torture warrants) could save the lives of many innocents is repeatedly rehearsed (and not only in the philosophy classroom). Several counter-arguments have been developed. First, it is said that information produced under torture is unreliable as the victim will say anything to avoid the pain. Therefore, torture is more likely to generate false leads than help any investigation. Second, it is argued that once allowed in exceptional circumstances, the use of torture will spread, and we will find ourselves on a 'slippery slope' where mistreatment is seen as normal, even expected. Third, it is suggested that torture is wrong because it negates the whole idea that society exists to ensure that we all respect each other's worth or dignity.
But even after all the arguments for and against have been played out and torture has been officially outlawed, the idea of justifiable torture sneaks back into the contemporary discourse in the form of the suggestion by some that one could admit a possible defence of 'necessity' in the context of a criminal trial of a torturer (this was the view of the Israeli Supreme Court in 1999 when it declared that the General Security Service had no authority to use certain physical interrogation techniques such as shaking). In a similar vein, in the context of a trial for torture, others have chosen to accept as mitigating circumstances the intention to save life through the infliction of torture and consequently imposed a fine rather than imprisonment. (This was the position of the German court in a 2004 judgment concerning the prosecution of police officers who ordered and threatened pain to be inflicted on a suspected kidnapper who refused to reveal the whereabouts of the child he had taken.)
From the article 'Bad Torture - Good Torture?'
On 27 September 2002, law student Magnus Gaefgen kidnapped 11-year-old Jakob von Metzler, the son of a senior bank executive, killed him in his apartment and hid the dead body close to a lake near Frankfurt. In accordance with his plan, he forwarded a letter to the boy's family in which he demanded one million Euro in return for the release of the child. Three days after the boy's disappearance, Gaefgen was arrested after being observed picking up the ransom. During his interrogation, the suspect gave evasive or misleading answers concerning his involvement in the abduction and provided no information about the whereabouts or health status of the boy. Finally, the day after the arrest, Frankfurt Police Vice-President, Wolfgang Daschner, who was responsible for the investigation, ordered that pain be inflicted on the suspect, without causing injuries, under medical supervision and subject to prior warning, in order to save the life of the boy. Accordingly, a subordinate police officer told Gaefgen, who was still in police custody, that the police were prepared to inflict pain on him that 'he would never forget' if he continued to withhold information concerning the whereabouts of the boy. Under the influence of this threat, Gaefgen gave full particulars of the whereabouts of the boy. The actual infliction of pain, which in fact had been arranged by fetching a specially trained police officer, was not necessary. Shortly thereafter, police officers found the body of the boy....
The judgment concluded that the act was neither justified nor excused, and that both defendants were criminally responsible. However, the Court found 'massive mitigating circumstances' in favour of both defendants. The judgment referred in particular to the defendants' aim of saving the life of the child, but also mentioned the provocative behaviour of the suspect during the interrogations, a hectic atmosphere, great emotional pressure on the investigating officers, and the consequences of the crimes for the defendants, particularly the public attention the incident received.
All of this tells us that officials cannot bring themselves to actually authorize torture. No judges are today ready to find arguments to justify torture. This is not just because torture is forbidden under human rights law - something deeper is surely at stake. Quite why the prohibition is so absolute may depend on different ways of seeing the issue. For some, it is simply revolting and unacceptable to treat another human being in a way that is so obviously inhuman; for others, it denies the idea that we have a society and any meaningful sense of law that can protect us from one another. For many, it seems that, even if we accept that in the equation between some temporary pain and preventive life-saving action, the balance may come down in favour of some pain, the wise course is to avoid torture at all times for it risks expanding into general abuse for all sorts of prisoners - generating further resentment and violence aimed at the very population which the torturers seek to protect or save. None of these arguments, however, will convince someone who believes that lives could be saved by using a bit of rough treatment (or torture).
Some commentators feel obliged to weigh in the balance the well-being of the torture victim and the prospect of saving lives. Such an approach does not fit with the current understanding of the absolute ban on torture. Indeed, adherence to the outright ban reveals the extent of our commitment to the underlying values that inform human rights. In the end, I would suggest that it is our twin commitments to democracy and human dignity that underlie the continuing outright prohibition of torture. In the words of the political philosopher Steven Lukes: torture is doubly vicious, combining the vice of concealment and the vice of violence - specifically violence against the defenseless. The first is anti-democratic, preventing us from reaching a collective judgment; the second is anti-liberal, constituting, if anything does, a violation of dignity of a person.
The rule that prohibits the use of evidence gleaned from torture has been at the centre of concern about detention of suspected terrorists in the recent context of the 'war on terror'. As mentioned above, no one really expects to use evidence extracted through torture to convict those accused of terrorism or kidnapping. The issue that has arisen is whether such information obtained through torture can be used, not for conviction, but for the continuing detention of terrorist suspects in the 'war on terror'. A couple of recent decisions have confirmed the prohibition on the use of any evidence obtained using torture. At the end of 2005, the UK House of Lords delivered a landmark judgment holding that evidence resulting from torture could not be used in proceedings reviewing the legality of the detention of suspected terrorists. A few months later, in 2006, the United States acknowledged, through Military Commissions Instruction No. 10, that it had international human rights obligations under the Torture Convention of 1984, and stated that the Military Commissions may not admit any evidence against an accused established to have been made as a result of torture.
There remain differences of opinion about firstly, whether in cases of doubt as to whether the evidence was obtained using torture, the evidence should be allowed, and, secondly, what should be the burden of proof that should be applied establishing whether particular information was in fact the product of torture. Furthermore, it was conceded in the House of Lords that, even if the judiciary must exclude as evidence information obtained using torture, the executive should be able to rely on this information, as it could be essential to the protection of public safety. Peter King, the Chairman of the US Homeland Security Committee, arguing in 2006 against a new legislative ban on cruel, inhuman, and degrading treatment, was reported as saying: 'If we capture Bin Laden tomorrow and we have to hold his head under water to find out where the next attack is going to happen, we ought to be able to do it.' Even if the prohibition of torture remains a cornerstone of human rights, its seems that we still have some way to go before everyone has shaken off the nagging doubt that, some of the time, for some people, the right not to be tortured has to give way to the rights of others to be protected from future violence.
Lord Rodger of Earlsferry in A and others v Home Secretary (2005)
Information obtained by torture may be unreliable. But all too often it will be reliable and of value to the torturer and his masters. That is why torturers ply their trade. Sadly, the Gestapo rolled up resistance networks and wiped out their members on the basis of information extracted under torture. Hence operatives sent to occupied countries were given suicide pills to prevent them from succumbing to torture and revealing valuable information about their mission and their contacts. In short, the torturer is abhorred as a hostis humani generis not because the information he produces may be unreliable but because of the barbaric means he uses to extract it.
The premise of this appeal is that, despite the United Nations Convention against Torture and any other obligations under international law, some states still practise torture. More than that, those states may supply information based on statements obtained under torture to the British security services who may find it useful in unearthing terrorist plots. Moreover, when issuing a certificate under section 21 of the 2001 Act, the Secretary of State may have to rely on material that includes such statements. Mr Starmer QC, who appeared for Amnesty and a number of other interveners, indicated that, in their view, it would be wrong for the Home Secretary to rely on such statements since it would be tantamount to condoning the torture by which the statements were obtained. That stance has the great virtue of coherence; but the coherence is bought at too dear a price. It would mean that the Home Secretary might have to fail in one of the first duties of government, to protect people in this country from potential attack.
Lastly, let us address the rule that prohibits sending anyone to a country where they run a real risk of being tortured. Here again there is universal agreement on the principle. But in its application we see countervailing forces at work. Asylum-seekers claim they will be tortured on return, immigration authorities question the available evidence, doubt the risk of future torture, and refer to 'diplomatic assurances' from the destination state that torture will not take place. A few well known cases attest to genuine concern from human rights organizations that the practice of believing diplomatic assurances has led to violations of human rights. In 2005, the UN Committee against Torture decided that Sweden had violated the international obligation that prohibits sending persons to countries where there is a real risk of torture.
From the Human Rights Watch 2005 report Still at Risk: Diplomatic Assurances No Safeguard Against Torture
The U.S. government has also refused to release any information regarding the assurances against torture it claims it received from Syria in the case of Maher Arar. In September 2002, U.S. authorities apprehended Arar, a dual Canadian-Syrian national, in transit from Tunisia through New York to Canada, where he has lived for many years. After holding him for nearly two weeks, and failing to provide him with the ability to effectively challenge his detention or imminent transfer, U.S. immigration authorities flew Arar to Jordan, where he was driven across the border and handed over to Syrian authorities. The transfer was affected despite Arar's repeated statements to U.S. officials that he would be tortured in Syria and his repeated requests to be sent home to Canada. The U.S. government has claimed that prior to Arar's transfer; it obtained assurances from the Syrian government that Arar would not be subjected to torture upon return. Arar was released without charge from Syrian custody ten months later and has credibly alleged that he was beaten by security officers in Jordan and tortured repeatedly, often with cables and electrical cords, during his confinement in a Syrian prison. The U.S. government as not explained why it sent Arar to Syria rather than to Canada, where he resides, or why it believed Syrian assurances to be credible in light of the government's well-documented record of torture, including designation as a country where torture is a serious abuse by the U.S. Department of State's 2OO1 (issued March 4, 2002) Country Reports on Human Rights Practices. It remains unclear whether the immigration regulations that should govern cases like Arar's were followed.
The High Commissioner for Human Rights, Louise Arbour, chose to mark Human Rights Day in 2005 with a statement about torture. She specifically challenged the practice of ‘diplomatic assurances': There are many reasons to be skeptical about the value of those assurances. If there is no risk of torture in a particular case, they are unnecessary and redundant. If there is a risk, how effective are these assurances likely to be? Assurances that the death penalty will not be sought or imposed are easy to monitor. Not so, I suggest, in the case of torture and ill-treatment. Short of very intrusive and sophisticated monitoring measures, such as around-the-clock video surveillance of the deportee, there is little oversight that could guarantee that the risk of torture will be obliterated in any particular case. While detainees as a group may denounce their torturers if interviewed privately and anonymously, a single individual is unlikely to reveal his ill-treatment if he is to remain under the control of his tormentors after the departure of the 'monitors'.
From the UN Committee Against Torture's Decision in Agiza v Sweden
13.4 The Committee considers at the outset that it was known, or should have been known, to the State party's authorities at the time of the complainant's removal that Egypt resorted to consistent and widespread use of torture against detainees, and that the risk of such treatment was particularly high in the case of detainees held for political and security reasons. ...The procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.