Legal Perspectives on Torture Research Paper

1. Defining Torture

According to the United Nations Convention against Torture (UNCAT 1984, Art. 1 sect. 1), torture is defined as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information for a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental or (sic) lawful sanctions.’

Although this notion is widely accepted, it is still a matter of controversy whether the concept of torture should be enlarged to incorporate similar patterns carried out by non-state actors or organizations, such as armed opposition groups. These groups have used torture as a weapon of war, to terrorize and thereby to control segments of the population. For example, mass rape of women as a tactic of ‘ethnic cleansing’ in the wars in the former Yugoslavia, combined with a feminist reconceptualization of human rights, made it impossible for the world community to continue to keep gender-based violence outside the circle of urgent anti-torture strategies (cf. Copelon 1993 4, pp. 293 and 367). Because the growing public sentiment could no longer be ignored, rape and sexual abuse of both females and males can now be considered a form of torture.

2. Historical Development

There is a long tradition of torture in various countries, although its objectives differ widely. It has accompanied mankind since approximately the beginning of the hierarchical organization of society. In the ancient city of Athens, torture was used to extort confessions from slaves. In the Roman Empire, free men as well as slaves were tortured for the purpose of obtaining or confirming evidence. Torture was also employed by government authorities against detained persons. In Europe, the use of torture as a means of directly extorting evidence dates back to at least the fourteenth century. Although early legal records demonstrate awareness of the dangers inherent in torture, its application was intensified in the so-called trials by inquisition. The developmental significance of these trials hence ought not to obscure the fact that the torture system authorized the commission of crimes far more serious than those for which the torture was imposed. Only sporadic attempts were made to stem these excesses.

The Age of Enlightenment initiated the modification and, sometimes, the abolition of torture and inhumane treatment by the state. This was no doubt due not only to the realization that such a line of action is inhumane, but also to the fact that trials by inquisition ( prevailing at that time) were increasingly subject to criticism. As a consequence, the main goal of torture (to extort a confession at any price) lost importance.

Despite these advances, various codes of criminal procedure in the nineteenth century still stipulated that an accused who refused to disclose information or who denied facts was to be either caned or imprisoned in chains. Indeed, some of these codes or their relevant provisions remained in effect until almost the mid-twentieth century. The renaissance of torture and inhumane treatment of criminals under the auspices of authoritarian or totalitarian state systems, particularly under the national socialist regime during World War II, shocked the entire international community and intensified efforts towards recognition of antitorture standards, protection of vulnerable people and rehabilitation of victim survivors.

3. International Conventions And Control Mechanisms

Although the prohibition of torture has been effective as imperative international customary law since about the end of World War II, and despite the fact that Art. 5 of the Declaration of Human Rights of December 10, 1948 explicitly includes this prohibition, torture and other kinds of serious ill-treatment of detainees are still rather common and, in some parts of the world, an everyday occurrence. Many victims are tortured with modern technology (‘high-tech torture’), at times even under medical supervision, while some are subjected to ‘isolation torture.’ These modern methods of torture are unique because they do not leave visible marks. Torture has taken on a more psychological character, causing permanent mental disorder in the victim. Ill-treatment has therefore become rather difficult to ascertain and to verify. Thus, the need to advocate the prevention of torture and the protection of human rights remains acute.

The international community is developing control mechanisms and counter-measures against torture.

The United Nations and the Council of Europe have increased their efforts to combat torture and other forms of ill-treatment by the introduction of special control mechanisms (cf. Bank 1996, pp. 9 et seq., 19 et seq., 381 et seq.). Art. 7 of the International Covenant on Civil and Political Rights of December 19, 1966 and Art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 (European Human Rights Convention, EHRC), which have legal force at least in all European states. Both explicitly guarantee the protection of detainees from torture and from in-human or degrading treatment or punishment. In order to assure the fundamental freedoms under the conditions of deprivation of liberty, the adoption of a supplementary protocol to the EHRC is currently being discussed. If adopted, this provision is intended to strengthen the legal position of detained persons.

In 1985, the UN Commission of Human Rights appointed a special rapporteur to prepare and submit an investigative report of torture (cf. e.g., Rodley 1994). In 1987, the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) became effective, and was simultaneously backed up by the establishment of the Committee against Torture (CAT), a taskforce set up to oversee implementation of the Convention. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the European Committee for the Prevention of Torture (ECPT) came into being in 1989 (cf. Council of Europe 1989, pp. 2 et seq., Evans and Morgan 1998, p. 1 et seq.). Moreover, in 1987, the organization of American States enacted the Inter-American Convention to Prevent and Punish Torture, with the aim of imposing substantive obligations on member states very similar to those enshrined in the UNCAT. But as the American Convention neither provides for a specialized body to pursue implementation nor introduces any novel procedures, it has had only a small impact. Nevertheless, the Inter-American Court on Human Rights on December 2, 1999 condemned the State of Guatemala for the torture of five street youths in violation of the Inter-American Convention for the Prevention and Punishment of Torture.

To date, the most reliable information on torture, inhuman and degrading treatment is based on the reports of the coalition of International Nongovernmental Organizations (NGOs) against torture (CINUT) and the so-called fact-finding missions of the European Anti-Torture Committee (ECPT). The ECPT carried out more than 90 visits to nearly 40 European countries during the 1990s (cf. Council of Europe 1999, pp. 2 et seq., Kaiser 1995, pp. 2 et seq.), starting in Ireland and ending in Siberia at the Japanese Sea. On this solid basis, enriched by the worldwide reports of NGOs (e.g., Amnesty International 1997, pp. 3 et seq.), one can generalize the findings of present-day torture and ill-treatment practices.

4. Pressing Problems And ‘Sensitive’ Domains

In the 1990s, much of the ‘torture’ literature has focused on abuses by police officers and, through solitary confinement and overcrowding of prisons in general, on the totality of inhumane custodial conditions. Complaints of prisoners that came to ECPT’s attention ranged from serious bodily torture (hanging up by the arms, electric shocks, contusion of testicles, caning of soles of the feet [ fallaka], violent penetration of body orifices with truncheons) to considerable mental injuries resulting from solitary confinement in extremely small, unlit and unventilated cells. Many of the complaints were confirmed by further evidence; frequently the alleged acts of ill-treatment were verified medically. However, none of these acts was shown to be systematic. It is hence to be assumed that amendments to laws or even to constitutions are not alone sufficient to prevent the ill-treatment of prisoners. Rather, what is needed is a fundamental change of attitude throughout the entire system of criminal justice: we must refuse to accept that torturers are simply ‘ordinary people’ whose willingness to carry out acts of torture can be attributed to the brutal socialization techniques of totalitarian regimes.

Observations indicate that the risk of ill-treatment by prison personnel is considerably lower than the risk posed by local police. At present, however, it seems that inhuman living conditions and a pattern of torturous behavior by the prison staff are not unheard of in some institutions in which prisoners are held prior to trial.

5. People Particularly Vulnerable To Torture

Certain categories of people are particularly vulnerable to torture: aliens, minorities, and apprehended persons from the moment of arrest throughout their imprisonment. Detention of asylum seekers and refugees, especially those likely to be expelled, presents considerable difficulties with respect to equal treatment and the prohibition of discrimination. Penitentiaries in European capitals or in large cities with an international airport frequently harbor detainees from more than 30 countries. All in all, native and foreign prisoners speak various languages, engage in a variety of eating habits and religious practices, and have diverging recreational needs. These circumstances render difficult communication, treatment, and assurance of basic rights such as visits, exchange of letters, and telephone contact. Restricted communication with the outside world, denial of education, and denial of privileges are often imposed by the prison administration for security reasons upon the foreign detainee. The dangers of tension in the institution, of interpersonal violence between detainees, and of ethnic conflicts between different groups of foreign inmates are additional aggravating circumstances. In this respect, the prison management must counteract possible conflicts by distributing the prison population sensitively and responsibly.

6. Overcoming The Restricted Impact Of Control Mechanisms

All international organs and agencies acknowledge the limited impact of their activities. Because fewer than 120 state parties have ratified the UNCAT, it remains one of the least ratified human rights treaties at the level of UN. Additionally, the international organizations are sometimes confronted by obstructive government reactions; their recommendations for structural changes are not always met with positive responses. Of course, the most effective results could be produced with the help of an international control network representing the international bodies themselves. In particular, follow-up visits would constitute an effective monitoring tool. Nevertheless, none of the agencies—including the ECPT—are in a position to provide close and continuous monitoring of new developments. Careful observations by the NGOs might contribute and fill the gaps.

The future of torture control ought not to be confined to Europe. The establishment of a universal visitation system, based on the model of the European Convention, is as necessary as ever. Therefore, the prospects for effective protection against torture throughout the world will depend on the introduction of a global system of visits. Lasting control of torture and effective improvements in the conditions of detention presuppose international recognition of the preventive visitation system. The existence of international conventions and the criminalization of acts of torture do not always succeed in preventing ill-treatment and abuse. Thus, we must attach increasing importance to the training of police and prison officials in accordance with the relevant recommendations of the United Nations.

In addition to strong efforts to repress and prevent torture, the need to provide for the care and rehabilitation of torture survivors is urgent. This is regarded as a new field and is supported by the International Rehabilitation Council for Torture Victims.

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