The monitoring of human rights in the modern world is a hotly debated topic. With many conflicts taking place, especially since the start of the war on terror, and the horrors of Abu Ghraib human rights have been a highly debated topic. One right is that which is covered by a Jus Cogens and the prevention of torture. The United Nations Convention Against Torture is another convention that is used to say that torture should not take place. It governs, amongst other things that will be discussed later, the inspection of detention facilities so countries can be held accountable for any torture that does take place. This never used to be the case though.
Pre seventeenth century legal proceedings used to use judicial torture to get convictions. A confession by the person being tortured was the only sure way of getting a conviction and was seen as the Queen of proofs. The methods used then were overt and the damage left behind, if the person survived, was for all to see. Eyes would be gouged out, fingers or whole limbs cut off, scars left all over the body. A famous contraption known as the rack was used to stretch the accused till he confessed or his limbs dislocated. Pre seventeenth century thinking towards law was different to modern thinking. Even with “the Great Writ” Habeas Corpus being traced back to The Magna Carta 1215 stating ‘No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.’ torturing was seen as normal and a part of judicial proceedings. Torture had been abolished for most part in history with Rome not torturing its citizens but it did torture slaves.
The use of torture to acquire a full conviction and the “queen of the proofs” was challenged by Cesare Beccaria in 1764. Beccaria argued three main points as to why torture was an inaccurate method. He started by saying ‘Every act of the will is invariably in proportion to the force of the impression on our senses. The impression of pain, then, may increase to such a degree, that, occupying the mind entirely, it will compel the sufferer to use the shortest method of freeing himself from torment.’ this is stating that if the accused is being tortured he will agree to anything that he is accused of just to stop the pain. People would admit to murdering a person who lied on the other side of a country if it stopped the pain. This is not the basis of a fair legal system. Beccaria then argued ‘Either he is guilty, or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary, if he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent whose crime has not been proved.’ This means that a person can not be punished without a presence of guilt otherwise you are just punishing innocent people. Further point that comes from this is that the test of guilt is not one of legal fact or evidence but one of strength. The strong can withstand the torture and therefore aren’t guilty, the weak submit and therefore are guilty. Beccaria had a third point of non-incrimination, in todays legal world this means that remaining silent does not incriminate you and Beccaria wanted to say that because someone succumbed to the torture did not incriminate them, they did not instantly become guilty. Beccaria had a profaned affect on the perception of the effectiveness of torture and the reliability of its results and in 1830 Torture was banned across Western Europe except for slaves and prisoners of war.
Following the atrocities of the second world war the Universal Declaration Of Human Rights (1948) was created. Article 5 of this declaration prevented anyone being ‘subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ This was quickly followed up by the Geneva Convention which stated ‘wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.’ The efforts to prevent torture continued with the the introduction of the International Covenant on Civil and Political Rights (1976) (ICCPR). This again condemned the use of ‘torture or cruel, inhumane or degrading treatment or punishment’ and state ‘Everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest or detention.’ This covenant came a few years before the Human Rights Act (1998) in the UK. This stated again ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ This serves that in Europe at least there was a desire to eradicate torture on all levels. The Geneva Convention was to stop torture in wars and conflicts, the Human Rights Act to stop governments and to ensure basic rights for its citizens, for the most part these pieces of legislation worked and torture is not as rampant as it was pre seventeen century and is certainly no longer a part of judicial proceedings. The last big convention and piece of legislation to affect the world view on torture is that of the United Nations Convention Against Torture (1984) (UNCAT). This laid out procedures that would allow detainment centres to be visited to make sure no torture or degrading treatment was being administered. As well as reaffirming the previous European Convention on Human Rights (1950) prohibition of torture and the ICCPR.
With this development over time torture has changed from a normal occurrence of everyday legal relevance to a taboo and completely illegal act. The Jus Cogens on torture is a world wide ban. Yes the legislation mentioned is mostly European law or UK law but the Jus Cogens is absolute and affects all countries on Earth, no one can remove the right it guarantees to all people Earth.
That being said this does not mean torture is a thing of the past. Those who do partake in torturing people have just adopted now covert skills or non scaring skills. This means that they no longer cut off fingers or beat people but water board them instead and electrocute them. Darius Rejali was at the forefront of revealing these covert techniques and how they had developed. He put forward that successful torturing devices where ‘non lethal, portable, left few marks on the body, and were labour saving, painful, and flexible to use. They were easily available, easy to maintain, and cheap to replace.’ This in his eyes was so that when such items like ‘hoses, plastic bags, tires, rope, lights, chairs, keys, pins, buckets’ were requested no one gave it a second thought, they were everyday civilian items and could easily be disguised and removed if necessary without raising suspicion. He then discloses some torture techniques that are deemed as clean and covert that include ‘Electrotorture, beating, water torture, dry chocking, exhaustion exercises, positional tortures, positional devices, restraints, and sleep deprivation’ All these techniques wont leave a scar but through the bursting of ear drums, lack of sleep, the pain caused by being made to stand in standing cells or being tied to chairs in the shabeh the victim would eventually break and agree to whatever they are being accused of or give information that could well be wrong. This would also mean that due to the victim not having any scars at all when they made a claim of being tortured by someone they had no proof, their body was completely unmarked.
This adaptation of techniques seemed to allow the tortures to do what they liked but they still had inspections that were part of UNCAT. This came to a head and has been a sticking point over the detention facility Guantanamo Bay. This detention facility is used for suspected tourists and has been a focus point sine the war on terror began. A recent case that demonstrate that these checks are working is one of Mr Odah. He was finally released on the sixth of November this year after the Supreme Court found that it ‘does not remain necessary to protect against a continuing significant threat to the security of the United States’ Many may attribute this a delayed response to the atrocities of Abu Ghraib or that Obama has failed to shut the facility down.
Many of the soldiers stood trial for their actions in Abu Ghraib but it was not without difficulty. The Alien Tort Statute (1789) was designed to allow non US citizens to bring claims in the USA however in 2013 the US Supreme Court narrowed this applicability by stating that it needed to much and concern US territory with sufficient force. The Abu Ghraib cases did qualify however there are cases that would not. It can therefore be argued that this is a way of America getting away with torturing people in far off lands that have nothing to do with America, often called “black sites” these places are used so that the victim can not prosecute the country or the torturer and seemingly creates a loophole in the law. Now the Abu Ghraib and Guantanamo cases show that the Jus Cogens against torture will be enforced but with the Supreme Court doing this it has just become a lot harder.
The argument against that though is a good one. The treatment of these prisoners of war or suspected terrorist that could be classed as prisoners on the war on terror that did escalate in to an actual war are suffering treatment that we classified as torture in World War Two. ‘We had no difficulty understanding that these methods were torture when our enemies used them: during the second world war we had no difficulty comprehending that the ordeal of British POWs forced by the Japanese forced to stand for days in a tin hut in the brutal heat was a war crime; and recognised that in Stalins gulags standing and sitting while being deprived of sleep was torture too.’ Yet we do not accept out actions as torture because we tell ourselves we are on the side of justice or we justify our actions as to protect our own rights and that of national security.
The national security argument is seen as a easy way for a country to justify their actions but we have to remember that the people being tortured have rights too. They are covered by the Jus Cogens just as much as the country they are purportedly protecting. A famous New Yorker article demonstrates this double standard held by the USA and the British after the attacks of 9/11. The article is filled with a ex CIA operative revealing information about his work. He starts by saying that the CIA was eager for a extraordinary rendition program and makes a remark about one case where ‘The U.S. requested his return, and the Egyptians handed him over—wrapped head to toe in duct tape, like a mummy.’ and he mentions later on that ‘The obvious choice, Scheuer said, was Egypt. The largest recipient of U.S. foreign aid after Israel, Egypt was a key strategic ally, and its secret police force, the Mukhabarat, had a reputation for brutality. Egypt had been frequently cited by the State Department for torture of prisoners.’ This here shows that these arrests weren’t off the cuff or reactions to intelligence, they were fabricating intelligence. The rendition program was designed to get confessions from people to back the claims of governments and to get permission and justification for our own acts of torture. The abductions were calculated and methodical.
An argument that torture itself helps protect the rights of a nations population and so fall within the national security argument is that of the morality equation. This equation is as follows ‘wether the agent is the wrong doer times the number of lives that will be lost times the probability that the agent has the relevant information. This is divided by the time available before the disaster and the time other inquiries will take.’ This equation is said to prove that torture is acceptable the higher the final number is. This argument strips back and removes all humanity from the problem at hand. The dehumanisation of the matter by using this equation could be seen a torture itself. The human being you are torturing has rights to and this equation is a way of trying to dehumanise the situation and turn it in to one of numbers and math.
One of the most famous instances to arrive from a unlawful detention and torture is that of Binyam Mohamed. A native Ethiopian who was abducted and tortured before being sent to Guantanamo Bay for just under 7 years. Mohamed who has suffered some extreme torture over that time saying he head one torturer say ‘it would be better just to cut it off, he can only breed terrorists anyway’ For all his ordeal Binyam Mohamed received one million dollars in a settlement with the government. This would appear to be a admission of guilt and the cost of violating the rights of anther human being comes to the cost of one million dollars.
Take the case of Mamdouh Habib who was abducted in Pakistan and was held for three years and his torturers were both American and English. In Egypt he was subjected to horrific conditions. He said that he was beaten frequently with blunt instruments, including an object that he likened to an electric “cattle prod.” And he was told that if he didn’t confess to belonging to Al Qaeda he would be anally raped by specially trained dogs. Habib said that he was shackled and forced to stand in three torture chambers: one room was filled with water up to his chin, requiring him to stand on tiptoe for hours; another chamber, filled with water up to his knees, had a ceiling so low that he was forced into a prolonged, painful stoop; in the third, he stood in water up to his ankles, and within sight of an electric switch and a generator, which his jailers said would be used to electrocute him if he didn’t confess. Habib’s lawyer said that he submitted to his interrogators’ demands and made multiple confessions, all of them false.’ This type of torture is what Beccaria said would lead to false confessions, they had a suspicion but no proof of anything and the torture was to make the proof reality, this was a guilty first evidence later scenario. It is especial cruel three years when Habib is released with no charge. To some this would be no surprise but the USA could never get a conviction based upon confessions induced by torture.
This very point is evident in the case of El-Masri v the former Yugoslav Republic of Macedonia (2012) he was detained in Macedonia and flew to Afghanistan to be tortured. The European Court of Human Rights decided that ‘Macedonia [was] responsible for abducting Khaled El-Masri and subjecting him to inhuman and degrading treatment, as well as for failing to prevent his torture and enforced disappearance by CIA agents, and for subsequently failing to investigate his complaints effectively, and to provide him with a remedy for the violations of his rights.’ this decision had a further effect in that ‘it strongly deters European states not only from engaging directly in torture and enforced disappearances, but also from assisting other states in carrying out these grave violations of human rights.’ This ruling sets a very clear guideline in that if the victim can prove beyond reasonable doubt that they wee tortured then any state can be found liable. This is a clear step forward in terms of enforcing the rights that are now enshrined in numerous laws and ends the loop hole that the USA used in that some people were non lawful combatants is so the geneva convention would not apply. This case closes a lot of loopholes but is still a rare decision.
With the current situation regarding the state of ISIS and their mass beheadings this could be regarded as torture. Although we don’t know the ordeal that these hostages are put through the fear it instills in their enemies can be classed as torture. There persecution of Christians and the slaughtering of children is certainly cruel, inhumane treatment and above all murder. These acts are certainly not with in anything covered by the treaties I have made reference to. It still stands that their attitude towards the people they capture can reasonably be deduced to be torture and therefore would violate the Geneva Convention. With this being so they would be in violation of anti torture laws. but as has been expressed, achieving anything in court sand seeking justice is a hard and long journey. With ISIS proving to difficult to get near and with the current situation representing a war zone it would to be too much of an exaggeration to class the chances of trying ISIS on behalf torture near impossible. This of course shows that the Jus Cogens on torture is not as easy to enforce at all or takes a long time to enforce.
To conclude even though the laws that exist today that have come about via a Jus Cogens, or the Geneva Convention and the many European treaties and conventions, it has shown that they didn’t end torture, torture just adapted to be harder to detect. A main worry though is that even if cases start to reach the courts a lot easier and more cases are ruled in favour of the victim what is to stop torture just adapting again. It has shown through history how it has adapted and changed. The little changes and thresholds that have to be met to start a torture trial could get harder. Torture could be used as a threat to stop people from suing for torture. Violations against Human Rights is a sanction no country wants against their name but at the same time no country wants to be in the dark about what threats there are. Until such a time that Governments feels information can be gathered in a more reliable and easy way torture will continue. There a few glimmers of hope that our human rights are being enforced and torture is being monitored effetely but to have your rights invoked and upheld you have a lot of barriers to get through, the first being not breaking under torture no matter how bad the pain is. The renumeration as evidenced by the Binyam Mohamed case shows that even in winning your case the renumeration does not seem to value your rights very highly. This raises the question of do the government care about our rights and the international laws they violate.
Mirko Bagaric and Julie Clarke, Torture (State University of New York Press 2007)
Jess Bravin, The Terror Courts: Rough Justice at Guantanamo Bay (Yale University Press)
Gareth Peirce, Dispatches from the Dark Side: On Torture and the Death of Justice (Verso 2012)
Darius Rejali, Torture and Democracy (Princeton University Press 2009)
Magna Carta 1215
Universal Declaration Of Human Rights (1948) Art. 5
Alien Tort Statute (1789)
Geneva Convention IV (1949) Art. 147
European Convention on Human Rights (1950) Art. 3
International Covenant on Civil and Political Rights (1976) Art. 7
Human Rights Act (1998) Art. 3
El-Masri v the former Yugoslav Republic of Macedonia (2012)
BBC, ‘Kuwaiti Guantanamo Inmate Sent Home’ BBC US & Canada (6 November 2014) <http://www.bbc.co.uk/news/world-us-canada-29928061 accessed 7 November 2014.
Of Crimes and Punishments Cesare Beccaria Of Torture.’ (Constitution Society) <http://www.constitution.org/cb/crim_pun16.htm accessed 1 December 2014.
Jane Mayer, ‘The New Yorker’ (New Yorker, 14 February 2005) http://www.newyorker.com/magazine/2005/02/14/outsourcing-torture accessed 2 December 2014.