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 'War on terror' threatens 'war on torture'
A Statement by the Asian Human Rights Commission on the International Day in Support of Torture Victims and Survivors
The
Milli Gazette Online
24 June 2006
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
convention’s 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. administration’s 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 country’s 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 people’s other rights. In this environment in
which people’s 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 democracy—indeed, principles that are
being regularly espoused and veritably exported by the present
administration—exposes the dangerous global trend of our times. The
attempts by the world’s 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
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 victim’s nose and
mouth hot water in summer or cold water in winter mixed with chilly
powder, electrocution, the removal of fingernails, sexual violence, etc.
Cambodia
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
Cambodia’s human rights obligations under its Constitution and its
ratification of CAT and the signing of CAT’s 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.
India
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 detainee’s 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 person’s 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.
Indonesia
Indonesia’s 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 sum—a “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?
Nepal
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 country’s
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 people’s
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 Representative’s 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
Nepal’s 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.
Pakistan
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 cells—even 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
Pakistan’s people from those who are entrusted to uphold the law and
defend the nation.
Philippines
Almost two decades after acceding to CAT the people of the Philippines,
especially the country’s torture victims, are still waiting for the
convention’s 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 crime—circumstances 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 people’s 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 government’s 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?
Sri Lanka
The existence of endemic torture in Sri Lanka’s 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 Lanka’s legal
institutions is exacerbated and deepened by President Mahinda
Rajapaksa’s 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 Lanka’s 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 country’s 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.
Thailand
Although Thailand’s 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 government’s lack of concern for eradicating torture and for
the country’s 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 Thailand’s
failure to ratify the convention after years of procrastination.
It has been openly acknowledged that one of the main reasons for
Thailand’s 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.
Conclusion
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 people’s 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?
About AHRC The Asian Human Rights Commission is a regional
non-governmental organisation monitoring and lobbying human rights issues
in Asia. The Hong Kong-based group was founded in 1984 (Issued on the
International Day in Support of Torture Victims and Survivors, June 26,
2006)
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