Torture is the act of inflicting severe pain (whether physical or psychological) as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has taken on a wide variety of forms, and has often been used as a method of political re-education, interrogation, punishment, and coercion. In addition to state-sponsored torture, individuals or groups may be motivated to inflict torture on others for similar reasons to those of a state; however, the motive for torture can also be for the sadistic gratification of the torturer.
Torture is prohibited under international law and the domestic laws of most countries in the 21st century. It is considered to be a violation of human rights, and is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights. Signatories of the Third Geneva Convention and Fourth Geneva Convention officially agree not to torture prisoners in armed conflicts. Torture is also prohibited by the United Nations Convention Against Torture, which has been ratified by 147 countries.[1]
National and international legal prohibitions on torture derive from a consensus that torture and similar ill-treatment are immoral, as well as impractical.[2] Despite these international conventions, organizations that monitor abuses of human rights (e.g. Amnesty International, the International Rehabilitation Council for Torture Victims) report widespread use condoned by states in many regions of the world.[3] Amnesty International estimates that at least 81 world governments currently practice torture, some of them openly.[4]
Torture, according to the United Nations Convention Against Torture (an advisory measure of the UN General Assembly) is:
...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 or 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 the 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 to, lawful sanctions. --UN Convention Against Torture[5]
This definition was restricted to apply only to nations and to government-sponsored torture and clearly limits the torture to that perpetrated, directly or indirectly, by those acting in an official capacity. It appears to exclude 1) torture perpetrated by gangs, hate groups, rebels or terrorists who ignore national or international mandates; 2) random violence during war; and 3) punishment allowed by national laws, even if the punishment uses techniques similar to those used by torturers such as mutilation or whipping when practiced as lawful punishment. Some professionals in the torture rehabilitation field believe that this definition is too restrictive and that the definition of politically motivated torture should be broadened to include all acts of organized violence.[6]
In 1986, the World Health Organization working group introduced the concept of organized violence, which was defined as:[7]
An even broader definition was used in the 1975 Declaration of Tokyo regarding the participation of medical professionals in acts of torture:
This definition includes torture as part of domestic violence or ritualistic abuse, as well as in criminal activities. Since 1973 Amnesty International has adopted the simplest, broadest definition of torture:
For most of recorded history, capital punishments were often deliberately painful. Severe historical penalties include the breaking wheel, boiling to death, flaying, disembowelment, crucifixion, impalement, crushing, stoning, execution by burning, dismemberment, sawing, scaphism, or necklacing.[11] An example from Archaic Greece is the story of the brazen bull proposed to Phalaris in the mid 6th century BC. The Five Pains are an example from Ancient China.
Deliberately painful methods of execution for severe crimes were taken for granted as part of justice until the development of Humanism in 17th century philosophy, and "cruel and unusual punishment" came to be denounced in the English Bill of Rights of 1689. The Age of Enlightenment in the western world further developed the idea of universal human rights. The adoption of the Universal Declaration of Human Rights in 1948 marks the recognition at least nominally of a general ban of torture by all UN member states. Its effect in practice is limited, however, as the Declaration is not ratified officially and does not have legally binding character in international law, but is rather considered part of customary international law.
The ancient Greeks and Romans used torture for interrogation. Until the 2nd century AD, torture was used only on slaves (with a few exceptions). After this point it began to be extended to all members of the lower classes. A slave's testimony was admissible only if extracted by torture, on the assumption that slaves could not be trusted to reveal the truth voluntarily.[12]
One of the oldest methods of torture was crucifixion. Its antiquity is indicated in its wide use by the Phoenicians. It was employed also by the Scythians, the Greeks, the Romans, the Persians and the Carthaginians.[13] Notorious mass crucifixions followed the slave rebellion under Spartacus and the Destruction of Jerusalem in 70 AD. To frighten other slaves from revolting, Crassus crucified 6,000 of Spartacus' men along the Appian Way from Capua to Rome.[14] Prior to crucifixion, victims were often savagely whipped with barbed metal lashes, to induce exsanguination (bleeding to death). This had the effect of weakening the condemned and thus sped up what could be an inconveniently long execution process.
Over time the conceptual definition of torture has been expanded and remains a major question for ethics, philosophy, and law, but clearly includes the practices of many subsequent cultures.
Modern scholars find the concept of torture to be compatible with society's concept of Justice during the time of Jesus Christ. Romans, Jews, Egyptians and many others cultures during that time included torture as part of their justice system. Romans had crucifixion, Jews had stoning and Egyptians had desert sun death. All these acts of torture were considered necessary (as to deter others) or good (as to punish the immoral).[15]
Medieval and early modern European courts used torture, depending on the crime of the accused and his or her social status. Torture was deemed a legitimate means to extract confessions or to obtain the names of accomplices or other information about a crime. It was permitted by law only if there was already half-proof against the accused.[16] Often, defendants already sentenced to death would be tortured to force them to disclose the names of accomplices. Torture in the Medieval Inquisition began in 1252 with a papal bull Ad Extirpanda and ended in 1816 when another papal bull forbade its use.
While secular courts often treated suspects ferociously, Will and Ariel Durant argued in The Age of Faith that many of the most vicious procedures were inflicted upon pious heretics by even more pious friars. The Dominicans gained a reputation as some of the most fearsomely innovative torturers in medieval Spain.
Torture was usually conducted in secret, in underground dungeons. By contrast, torturous executions were typically public, and woodcuts of English prisoners being hanged, drawn and quartered show large crowds of spectators, as do paintings of Spanish auto-da-fé executions, in which heretics were burned at the stake.
During the early modern period, the torture of witches took place. In 1613, Anton Praetorius described the situation of the prisoners in the dungeons in his book Gründlicher Bericht Von Zauberey und Zauberern (Thorough Report about Sorcery and Sorcerers). He was one of the first to protest against all means of torture.
In England the trial by jury developed considerable freedom in evaluating evidence and condemning on circumstantial evidence, making torture to extort confessions unnecessary. For this reason in England a regularized system of judicial torture never existed and its use was limited to political cases. Torture was in theory not permitted under English law, but in Tudor and early Stuart times, under certain conditions, torture was used in England. For example the confession of Marc Smeaton at the trial of Anne Boleyn was presented in written form only, either to hide from the court that Smeaton had been tortured on the rack for four hours, or because Thomas Cromwell was worried that he would recant his confession if cross-examined. When Guy Fawkes was arrested for his role in the Gunpowder Plot of 1605 he was tortured until he revealed all he knew about the plot. This was not so much to extract a confession, which was not needed to prove his guilt, but to extract from him the names of his fellow conspirators. By this time torture was not routine in England and a special warrant from King James I was needed before he could be tortured. The wording of the warrant shows some concerns for humanitarian considerations, the severity of the methods of interrogation were to be increased gradually until the interrogators were sure that Fawkes had told all he knew. In the end this did not help Fawkes much as he was broken on the only rack in England, which was in the Tower of London. Torture was abolished in England around 1640 (except peine forte et dure, which was abolished in 1772).
In Colonial America, women were sentenced to the stocks with wooden clips on their tongues or subjected to the "dunking stool" for the gender-specific crime of talking too much.[17] Certain Native American peoples, especially in the area that later became the eastern half of the United States, engaged in the sacrificial torture of war captives.[18]
In the 17th century the number of incidents of judicial torture decreased in many European regions. Johann Graefe in 1624 published Tribunal Reformation, a case against torture. Cesare Beccaria, an Italian lawyer, published in 1764 "An Essay on Crimes and Punishments", in which he argued that torture unjustly punished the innocent and should be unnecessary in proving guilt. Voltaire (1694–1778) also fiercely condemned torture in some of his essays.
While in Egypt in 1798, Napoleon Bonaparte wrote to Major-General Berthier that the
barbarous custom of whipping men suspected of having important secrets to reveal must be abolished. It has always been recognized that this method of interrogation, by putting men to the torture, is useless. The wretches say whatever comes into their heads and whatever they think one wants to believe. Consequently, the Commander-in-Chief forbids the use of a method which is contrary to reason and humanity.[19]
European states abolished torture from their statutory law in the late 18th and early 19th centuries. Sweden and Prussia were the first to do so in 1722 and 1754 respectively; Denmark abolished torture in 1770, Russia in 1774, Austria in 1776, France in 1780, and the Netherlands in 1798. Bavaria abolished torture in 1806 and Württemberg in 1809. In Spain the Napoleonic conquest put an end to torture in 1808. Norway abolished it in 1819 and Portugal in 1826. The Swiss cantons abolished torture in the first half of the 19th century.[20]
Tortures included the chevalet, in which an accused witch sat on a pointed metal horse with weights strung from her feet.[21] Sexual humiliation torture included forced sitting on red-hot stools.[22] Gresillons, also called pennywinkis in Scotland, crushed the tips of fingers and toes in a vice-like device.[23] The Spanish Boot, or "leg-screw", used mostly in Germany and Scotland, was a steel boot that was placed over the leg of the accused and was tightened. The pressure from the squeezing of the boot would break the shin bone in pieces. An anonymous Scotsman called it "The most severe and cruel pain in the world".[24] The echelle more commonly known as the "ladder" or "rack" was a long table that the accused would lie upon and be stretched violently. The torture was used so intensely that on many occasions the victim's limbs would be pulled out of the socket and, at times, the limbs would even be torn from the body entirely. On some special occasions a tortillon was used in conjunction with the ladder which would severely squeeze and mutilate the genitals at the same time as the stretching was occurring.[23] Similar to the ladder was the "lift". It too stretched the limbs of the accused, this time however the victim's feet were strapped to the ground and their arms were tied behind their back before a rope was tied to their hands and lifted upwards. This caused the arms to break before the horrific portion of the stretching began.[24]
Modern sensibilities have been shaped by a profound reaction to the war crimes and crimes against humanity committed by the Axis Powers in the Second World War, which have led to a sweeping international rejection of most if not all aspects of the practice.[25] Even so, many states engage in torture; however, few wish to be described as doing so, either to their own citizens or to international bodies. A variety of devices bridge this gap, including state denial, "secret police", "need to know", denial that given treatments are torturous in nature, appeal to various laws (national or international), use of jurisdictional argument, claim of "overriding need", and so on. Many states throughout history, and many states today, have engaged in torture (unofficially).
According to scholar, Ervand Abrahamian, although there were several decades of prohibition of torture that spread from Europe to most parts of the world, by 1980s the taboo against torture was broken, and torture "returned with a vengeance," propelled in part by television and opportunity to break political prisoners and broadcast the resulting public recantations of their political beliefs for "ideological warfare, political mobilization, and the need to win `hearts and minds.`" [26] According to professor Darius Rejali, although dictatorships may have used tortured "more, and more indiscriminately", it was modern democracies, "the United States, Britain, and France" who "pioneered and exported techniques that have become the lingua franca of modern torture: methods that leave no marks."[27]
Torture has become distressingly common in liberal democracies despite several international treaties such as the International Covenant on Civil and Political Rights and the UN Convention Against Torture making torture illegal. Despite such international conventions, torture cases continue to arise such as the 2004 Abu Ghraib torture and prisoner abuse scandal committed by military police personnel of the United States Army. The US Constitution and US federal law prohibits the use of torture, yet such human rights violations occurred. Soldiers involved in the violations have been tried and sentenced to prison, and additional court cases are pending on other persons who engaged in such violations. At least one alleged person who engaged in a violation, an alleged homicide, was granted qualified immunity.
According to the findings of Dr. Christian Davenport of the University of Notre Dame, Professor William Moore of Florida State University, and David Armstrong of Oxford University during their torture research, evidence suggests that non-governmental organizations have played the most determinant factor for stopping torture once it gets started.[28] Preliminary research suggests that is it civil society, not government institutions, that can stop torture once it has begun. Organization such as Amnesty International serve to expose widespread human rights violations and hold the individuals accountable to the international community.
For most of recorded history, capital punishments were often cruel and inhumane. Severe historical penalties include breaking wheel, boiling to death, flaying, slow slicing, disembowelment, crucifixion, impalement, crushing, stoning, execution by burning, dismemberment, sawing, decapitation, scaphism, or necklacing.[29]
Slow slicing, or death by/of a thousand cuts, was a form of execution used in China from roughly 900 AD to its abolition in 1905. According to apocryphal lore, língchí began when the torturer, wielding an extremely sharp knife, began by putting out the eyes, rendering the condemned incapable of seeing the remainder of the torture and, presumably, adding considerably to the psychological terror of the procedure. Successive rather minor cuts chopped off ears, nose, tongue, fingers, toes, and such before proceeding to grosser cuts that removed large collops of flesh from more sizable parts, e.g., thighs and shoulders. The entire process was said to last three days, and to total 3,600 cuts. The heavily carved bodies of the deceased were then put on a parade for a show in the public.[30]
Impalement was a method of torture and execution whereby a person is pierced with a long stake. The penetration can be through the sides, from the rectum, or through the mouth. This method would lead to slow, painful, death. Often, the victim was hoisted into the air after partial impalement. Gravity and the victim's own struggles would cause him to slide down the pole. Death could take many days. Impalement was frequently practiced in Asia and Europe throughout the Middle Ages. Vlad III Dracula and Ivan the Terrible have passed into legend as major users of the method.[31]
The breaking wheel was a torturous capital punishment device used in the Middle Ages and early modern times for public execution by cudgeling to death, especially in France and Germany. In France the condemned were placed on a cart-wheel with their limbs stretched out along the spokes over two sturdy wooden beams. The wheel was made to slowly revolve. Through the openings between the spokes, the executioner hit the victim with an iron hammer that could easily break the victim's bones. This process was repeated several times per limb. Once his bones were broken, he was left on the wheel to die. It could take hours, even days, before shock and dehydration caused death. The punishment was abolished in Germany as late as 1827.[32]
The word 'torture' comes from the French torture, originating in the Late Latin tortura and ultimately deriving the past participle of torquere meaning 'to twist'.[33] The word is also used loosely to describe more ordinary discomforts that would be accurately described as tedious rather than painful; for example, "making this spreadsheet was torture!"
Although the Catholic Church had sanctioned governments' use of torture during the medieval inquisitions (see Papal Bull: Ad extirpanda), and this practice was approved by Church officials until the mid-19th century as a legal and moral way of extracting confessions from alleged heretics, witches, or regular criminals, further advocating cruel means of execution for said heretics and witches, the modern Church's views regarding torture have changed drastically which are generally associated with the Enlightenment . Thus, the Catechism of the Catholic Church (published in 1994) condemns the use of torture as a grave violation of Human Rights. In No. 2297-2298 it states:
Torture, which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity... In times past, cruel practices were commonly used by legitimate governments to maintain law and order, often without protest from the Pastors of the Church, who themselves adopted in their own tribunals the prescriptions of Roman law concerning torture. Regrettable as these facts are, the Church always taught the duty of clemency and mercy. She forbade clerics to shed blood. In recent times it has become evident that these cruel practices were neither necessary for public order, nor in conformity with the legitimate rights of the human person. On the contrary, these practices led to ones even more degrading. It is necessary to work for their abolition. We must pray for the victims and their tormentors.
On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."[34] Since that time, a number of other international treaties have been adopted to prevent the use of torture. Two of these are the United Nations Convention Against Torture and for international conflicts the Geneva Conventions III and IV.
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) came into force in June 1987. The most relevant articles are Articles 1, 2, 3, and the first paragraph of Article 16.
Article 1
1. For the purposes of this Convention, the term "torture" means 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 or 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 the 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 to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. 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.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
Note several points:
As of June 2008, 145 states are parties to the Convention against Torture, and another nine states have signed but not ratified the treaty.[37]
The Optional Protocol to the Convention Against Torture (OPCAT) entered into force on 22 June 2006 as an important addition to the UNCAT. As stated in Article 1, the purpose of the protocol is to "establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment."[38] Each state ratifying the OPCAT, according to Article 17, is responsible for creating or maintaining at least one independent national preventive mechanism for torture prevention at the domestic level.
The Rome Statute, which established the International Criminal Court (ICC), provides for criminal prosecution of individuals responsible for genocide, war crimes, and crimes against humanity. The statute defines torture as "intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions". Under Article 7 of the statute, torture may be considered a crime against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".[39] Article 8 of the statute provides that torture may also, under certain circumstances, be prosecuted as a war crime.[40]
The ICC came into existence on 1 July 2002[41] and can only prosecute crimes committed on or after that date.[42] The court can generally exercise jurisdiction only in cases where the accused is a national of a state party to the Rome Statute, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council.[43] The court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.[44] Primary responsibility to investigate and punish crimes is therefore reserved to individual states.[45]
The four Geneva Conventions provide protection for people who fall into enemy hands. The conventions do not clearly divide people into combatant and non-combatant roles. The conventions refer to:
The third (GCIII) and fourth (GCIV) Geneva Conventions are the two most relevant for the treatment of the victims of conflicts. Both treaties state in Article 3, in similar wording, that in a non-international armed conflict, "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms... shall in all circumstances be treated humanely." The treaty also states that there must not be any "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" or "outrages upon personal dignity, in particular humiliating and degrading treatment".[48][49]
GCIV covers most civilians in an international armed conflict, and says they are usually "Protected Persons" (see exemptions section immediately after this for those who are not). Under Article 32, protected persons have the right to protection from "murder, torture, corporal punishments, mutilation and medical or scientific experiments...but also to any other measures of brutality whether applied by non-combatant or military agents".
GCIII covers the treatment of prisoners of war (POWs) in an international armed conflict. In particular, Article 17 says that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind." POW status under GCIII has far fewer exemptions than "Protected Person" status under GCIV. Captured enemy combatants in an international armed conflict automatically have the protection of GCIII and are POWs under GCIII unless they are determined by a competent tribunal to not be a POW (GCIII Article 5).
GCIV provides an important exemption:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention [ie GCIV] as would ... be prejudicial to the security of such State ... In each case, such persons shall nevertheless be treated with humanity (GCIV Article 5)
Also, nationals of a State not bound by the Convention are not protected by it, and nationals of a neutral State in the territory of a combatant State, and nationals of a co-belligerent State, cannot claim the protection of GCIV if their home state has normal diplomatic representation in the State that holds them (Article 4), as their diplomatic representatives can take steps to protect them. The requirement to treat persons with "humanity" implies that it is still prohibited to torture individuals not protected by the Convention.
The George W. Bush administration afforded fewer protections, under GCIII, to detainees in the "War on Terror" by codifying the legal status of an "unlawful combatant". If there is a question of whether a person is a lawful combatant, he (or she) must be treated as a POW "until their status has been determined by a competent tribunal" (GCIII Article 5). If the tribunal decides that he is an unlawful combatant, he is not considered a protected person under GCIII. However, if he is a protected person under GCIV he still has some protection under GCIV, and must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention" (GCIV Article 5).[nb 3]
There are two additional protocols to the Geneva Convention: Protocol I (1977), relating to the protection of victims of international armed conflicts and Protocol II (1977), relating to the protection of victims of non-international armed conflicts. These clarify and extend the definitions in some areas, but to date many countries, including the United States, have either not signed them or have not ratified them.
Protocol I does not mention torture but it does affect the treatment of POWs and Protected Persons. In Article 5, the protocol explicitly involves "the appointment of Protecting Powers and of their substitute" to monitor that the Parties to the conflict are enforcing the Conventions.[50] The protocol also broadens the definition of a lawful combatant in wars against "alien occupation, colonial domination and racist regimes" to include those who carry arms openly but are not wearing uniforms, so that they are now lawful combatants and protected by the Geneva Conventions—although only if the Occupying Power has ratified Protocol I. Under the original conventions combatants without a recognisable insignia could be treated as criminals, and potentially be executed. It also mentions spies, and defines who is a mercenary. Mercenaries and spies are considered an unlawful combatant, and not protected by the same conventions.
Protocol II "develops and supplements Article 3 [relating to the protection of victims of non-international armed conflicts] common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application" (Article 1). Any person who does not take part in or ceased to take part in hostilities is entitled to humane treatment. Among the acts prohibited against these persons are, "Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment" (Article 4.a), "Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" (Article 4.e), and "Threats to commit any of the foregoing acts" (Article 4.h).[51] Clauses in other articles implore humane treatment of enemy personnel in an internal conflict. These have a bearing on torture, but no other clauses explicitly mention torture.
In accordance with the optional UN Standard Minimum Rules for the Treatment of Prisoners (1955), "corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences."[52] The International Covenant on Civil and Political Rights, (16 December 1966), explicitly prohibits torture and "cruel, inhuman or degrading treatment or punishment" by signatories.[53]
In 1950 during the Cold War, the participating member states of the Council of Europe signed the European Convention on Human Rights. The treaty was based on the UDHR. It included the provision for a court to interpret the treaty, and Article 3 "Prohibition of torture" stated; "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."[54]
In 1978, the European Court of Human Rights ruled that the five techniques of "sensory deprivation" were not torture as laid out in Article 3 of the European Convention on Human Rights, but were "inhuman or degrading treatment"[55] (see Accusations of use of torture by United Kingdom for details). This case occurred nine years before the United Nations Convention Against Torture came into force and had an influence on thinking about what constitutes torture ever since.[56]
On 26 November 1987 the member states of the Council of Europe, meeting at Strasbourg, adopted the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT). Two additional Protocols amended the Convention, which entered into force on 1 March 2002. The Convention set up the Committee for the Prevention of Torture to oversee compliance with its provisions.
The Inter-American Convention to Prevent and Punish Torture, currently ratified by 17 nations of the Americas and in force since 28 February 1987, defines torture more expansively than the United Nations Convention Against Torture.
For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.
The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.[57]
The Istanbul Protocol, an official UN document, is the first set of international guidelines for documentation of torture and its consequences. It became a United Nations official document in 1999.
Under the provisions of OPCAT that entered into force on 22 June 2006 independent international and national bodies regularly visit places where people are deprived of their liberty, to prevent torture and other cruel, inhuman or degrading treatment or punishment. Each state that ratified the OPCAT, according to Article 17, is responsible for creating or maintaining at least one independent national preventative mechanism for torture prevention at the domestic level.
The European Committee for the Prevention of Torture, citing Article 1 of the European Convention for the Prevention of Torture, states that it will, "by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment".[58]
In times of armed conflict between a signatory of the Geneva conventions and another party, delegates of the International Committee of the Red Cross (ICRC) monitor the compliance of signatories to the Geneva Conventions, which includes monitoring the use of torture. Human rights organizations, such as Amnesty International, the World Organization Against Torture, and Association for the Prevention of Torture work actively to stop the use of torture throughout the world and publish reports on any activities they consider to be torture.[59]
States that ratified the United Nations Convention Against Torture have a treaty obligation to include the provisions into municipal law. The laws of many states therefore formally prohibit torture. However, such de jure legal provisions are by no means a proof that, de facto, the signatory country does not use torture.
To prevent torture, many legal systems have a right against self-incrimination or explicitly prohibit undue force when dealing with suspects.
England abolished torture in about 1640 (except peine forte et dure, which England only abolished in 1772), Scotland in 1708, Prussia in 1740, Denmark around 1770, Russia in 1774, Austria and Polish-Lithuanian Commonwealth in 1776, Italy in 1786, France in 1789, Baden in 1831, Japan in 1873.[60][61][62]
The last European jurisdictions to abolish legal torture were Portugal (1828) and the canton of Glarus in Switzerland (1851).
The French 1789 Declaration of the Rights of Man and of the Citizen, of constitutional value, prohibits submitting suspects to any hardship not necessary to secure his or her person. Statute law explicitly makes torture a crime. In addition, statute law prohibits the police or justice from interrogating suspects under oath.
As the United States Constitution recognizes customary international law, or the law of nations, the U.S. Alien Tort Claims Act also provides legal remedies for victims of torture in the United States. Specifically, the status of torturers under the law of the United States, as determined by a famous legal decision in 1980, Filártiga v. Peña-Irala, 630 F.2d 876 (1980), is that, "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind."[63]
Recently the question of the use of evidence obtained under torture has arisen in connection with prosecutions in the so-called War on Terror in the United Kingdom and the United States.
During a House of Commons debate on 7 July 2009, MP David Davis accused the UK government of outsourcing torture, by allowing Rangzieb Ahmed to leave the country (even though they had evidence against him upon which he was later convicted for terrorism) to Pakistan, where it is said the Inter-Services Intelligence was given the go ahead by the British intelligence agencies to torture Ahmed. Davis further accused the government of trying to gag Ahmed, stopping him coming forward with his accusations, after he had been imprisoned back in the UK. He said, there was "an alleged request to drop his allegations of torture: if he did that, they could get his sentence cut and possibly give him some money. If this request to drop the torture case is true, it is frankly monstrous. It would at the very least be a criminal misuse of the powers and funds under the Government's Contest strategy, and at worst a conspiracy to pervert the course of justice."[64]
In 2003, the United Kingdom's Ambassador to Uzbekistan, Craig Murray, suggested that it was "wrong to use information gleaned from torture".[65] In March 2003 he was informed in the London offices of the Foreign and Commonwealth Office (FCO) by Sir Michael Wood, chief Legal Adviser, that it was not illegal under the UN Convention Against Torture for the UK to obtain or to use intelligence gained under torture, provided the British government itself did not use torture or request that a named individual be tortured.
The unanimous Law Lords judgment on December 8, 2005 confirmed this position. They ruled that, under English law tradition, "torture and its fruits" could not be used in court.[66] But the information thus obtained could be used by the British police and security services as "it would be ludicrous for them to disregard information about a ticking bomb if it had been procured by torture."[67] The Law Lords thus dismissed concerns about the validity of information obtained under torture, which have been expressed by various security agents and human rights activists.
Murray's accusations did not lead to any investigation by his employer, the FCO, and he resigned after disciplinary action was taken against him in 2004. The Foreign and Commonwealth Office itself is being investigated by the National Audit Office because of accusations that it has victimized, bullied and intimidated its own staff.[68]
Murray later stated that he felt that he had unwittingly stumbled upon what has been called "torture by proxy".[69] He thought that Western countries moved people to regimes and nations where it was known that information would be extracted by torture, and made available to them.
Murray states that he was aware from August 2002 "that the CIA were bringing in detainees to Tashkent from Bagram airport Afghanistan, who were handed over to the Uzbek security services (SNB). I presumed at the time that these were all Uzbek nationals — that may have been a false presumption. I knew that the CIA were obtaining intelligence from their subsequent interrogation by the SNB." He goes on to say that he did not know at the time that any non-Uzbek nationals were flown to Uzbekistan and although he has studied the reports by several journalists and finds their reports credible he is not a firsthand authority on this issue.[70]
As in the United Kingdom, US law prohibits using evidence obtained illegally or under duress in US courts. The United States includes protection against self-incrimination in the fifth amendment to its federal constitution, which in turn serves as the basis of the Miranda warning, which law enforcement officers issue to individuals upon their arrest. Additionally, the US Constitution's eighth amendment forbids the use of "cruel and unusual punishments," which is widely interpreted as prohibiting torture. Finally, 18 U.S.C. § 2340[71] et seq. define and forbid torture outside the United States.
In May 2008 Susan Crawford, the official overseeing prosecutions before Military Tribunals at Guantanamo, declined to refer for trial the case of Mohammed al-Qahtani because she said, "we tortured [him]".[72][73] Crawford said that a combination of techniques with clear medical consequences amounted to the legal definition of torture, and that torture "tainted everything going forward."[72]
In the 2010 New York trial of Ahmed Khalfan Ghailani who was accused of complicity in the bombing of US embassies in Tanzania and Kenya, Judge Lewis Kaplan ruled evidence obtained under coercion inadmissible.[74] The ruling excluded an important witness, whose name had been extracted from the defendant under duress.[75] The jury acquitted him of 280 charges and convicted on only one charge of conspiracy.[74][75]
"Recent times" in the context of this article is from 10 December 1948, when the United Nations General Assembly adopted the Universal Declaration of Human Rights.
By definition, torture is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Those most likely to be involved in torture include persons such as[76]:
But perpetrators may also include:
In the context of armed conflicts, torture and other forms of ill-treatment could also be inflicted by:
In 2003, Britain's Ambassador to Uzbekistan, Craig Murray, made accusations that information was being extracted under extreme torture from dissidents in that country, and that the information was subsequently being used by Western, democratic countries that officially disapproved of torture.[77]
The accusations did not lead to any investigation by his employer, the Foreign and Commonwealth Office, and he resigned after disciplinary action was taken against him in 2004. No misconduct by him was proven. The National Audit Office is investigating the Foreign and Commonwealth Office because of accusations of victimisation, bullying, and intimidating its own staff.[78]
Murray later stated that he felt that he had unwittingly stumbled upon what others called "torture by proxy"[79] and with the euphemism of "extraordinary rendition". He thought that Western countries moved people to regimes and nations knowing that torturers would extract and disclose information. Murray alleged that this practice circumvented and violated international treaties against torture. If a country participated in torture by proxy and had signed the UN Convention Against Torture, that country would be in specific breach of Article 3 of that convention.
Torture has been criticized on humanitarian and moral grounds, on the grounds that evidence extracted by torture is unreliable, and because torture corrupts institutions that tolerate it.[80]
Organizations like Amnesty International argue that the universal legal prohibition is based on a universal philosophical consensus that torture and ill-treatment are repugnant, abhorrent, and immoral.[81] But since shortly after the September 11, 2001 attacks there has been a debate in the United States about whether torture is justified in some circumstances. Some people, such as Alan M. Dershowitz and Mirko Bagaric, have argued the need for information outweighs the moral and ethical arguments against torture.[82][83] However, after coercive practices were banned, interrogators in Iraq saw an increase of 50 percent more high-value intelligence. Maj. Gen. Geoffrey D. Miller, the American commander in charge of detentions and interrogations, stated "a rapport-based interrogation that recognizes respect and dignity, and having very well-trained interrogators, is the basis by which you develop intelligence rapidly and increase the validity of that intelligence."[84] Others including Robert Mueller, FBI Director since July 5, 2001, have pointed out that despite former Bush Administration claims that waterboarding has "disrupted a number of attacks, maybe dozens of attacks", they do not believe that evidence gained by the U.S. government through what supporters of the techniques call "enhanced interrogation" has disrupted a single attack and no one has come up with a documented example of lives saved thanks to these techniques.[85][86] On June 19, 2009, the US government announced that it was delaying the scheduled release of declassified portions of a report by the CIA Inspector General that reportedly cast doubt on the effectiveness of the "enhanced interrogation" techniques employed by CIA interrogators, according to references to the report contained in several Bush-era Justice Department memos declassified in the Spring of 2009 by the US Justice Department.[87][88][89]
The ticking time bomb scenario, a thought experiment, asks what to do to a captured terrorist who has placed a nuclear time bomb in a populated area. If the terrorist is tortured, he may explain how to defuse the bomb. The scenario asks if it is ethical to torture the terrorist. A 2006 BBC poll held in 25 nations gauged support for each of the following positions:[90]
An average of 59% of people worldwide rejected torture. However there was a clear divide between those countries with strong rejection of torture (such as Italy, where only 14% supported torture) and nations where rejection was less strong. Often this lessened rejection is found in countries severely and frequently threatened by terrorist attacks. E.g., Israel, despite its Supreme Court outlawing torture in 1999, showed 43% supporting torture, but 48% opposing, India showed 37% supporting torture and only 23% opposing.[91]
Within nations there is a clear divide between the positions of members of different ethnic groups, religions, and political affiliations, sometimes reflecting distinctions between groups considering themselves threatened or victimized by terror acts and those from the alleged perpetrator groups. For example, the study found that among Jews in Israel 53% favored some degree of torture and only 39% wanted strong rules against torture while Muslims in Israel were overwhelmingly against any use of torture, unlike Muslims polled elsewhere. Differences in general political views also can matter. In one 2006 survey by the Scripps Center at Ohio University, 66% of Americans who identified themselves as strongly Republican supported torture, whereas 24% of those who identified themselves as strongly Democratic.[92] In a 2005 U.S. survey 72% of American Catholics supported the use of torture in some circumstances compared to 51% of American secularists.[93] A Pew survey in 2009 similarly found that the religiously unaffiliated are the least likely (40 percent) to support torture, and that the more a person claims to attend church, the more likely he or she is to condone torture; among racial/religious groups, white evangelical Protestants were far and away the most likely (62 percent) to support inflicting pain as a tool of interrogation.[94]
A CNN/USA Today/Gallup poll "found that sizable majorities of Americans disagree with tactics ranging from leaving prisoners naked and chained in uncomfortable positions for hours, to trying to make a prisoner think he was being drowned".[95]
There are also different attitudes as to what constitutes torture, as revealed in an ABC News/Washington Post poll, where more than half of the Americans polled thought that techniques such as sleep deprivation were not torture.[96]
In practice, so-called "enhanced interrogation" techniques were employed by the CIA in situations that did not involve the "ticking time bomb" scenario that has been the subject of opinion polls and public debate. In April 2009 a former senior U.S. intelligence official and a former Army psychiatrist stated that the Bush administration applied pressure on interrogators to use the "enhanced interrogation" techniques on detainees to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein's regime.[97] The purported link between al Qaida and Hussein's regime, which has been disproven,[98] was a key political justification for the Iraq War. On May 13, 2009, former NBC News investigative producer Robert Windrem reported, as confirmed by former Iraq Survey Group leader Charles Duelfer, that the Vice President's Office suggested that an interrogation team led by Duelfer waterboard an Iraqi prisoner suspected of knowing about a relationship between al Qaeda and Saddam.[99][100]
On February 14, 2010, in an appearance on ABC's This Week, Vice-President Dick Cheney reiterated his support of waterboarding and "enhanced interrogation" techniques for captured terrorist suspects, saying, "I was and remain a strong proponent of our enhanced interrogation program."[101]
Pressed by the BBC in 2010 on his personal view of waterboarding, Presidential Advisor Karl Rove said: "I'm proud that we kept the world safer than it was, by the use of these techniques. They’re appropriate, they're in conformity with our international requirements and with US law."[102]
There is a strong utilitarian argument against torture; namely, that there is simply no scientific evidence supporting its effectiveness.[103]
The lack of scientific basis for the effectiveness of torture as an interrogation techniques is summarized in a 2006 Intelligence Science Board report titled "EDUCING INFORMATION, Interrogation: Science and Art, Foundations for the Future".[104]
Those favoring torture have however pointed to some specific cases where torture has elicited true information.[105]
A famous example of rejection of the use of torture was cited by the Argentine National Commission on the Disappearance of Persons in whose report, Italian general Carlo Alberto Dalla Chiesa was reputed to have said in connection with the investigation of the disappearance of prime minister Aldo Moro, "Italy can survive the loss of Aldo Moro. It would not survive the introduction of torture."[106]
One well documented effect of torture is that its victims will say or do anything to escape the situation, including untrue "confessions" and implication of others without genuine knowledge, who may well then be tortured in turn. That information may have been extracted from the Birmingham Six through the use of police beatings was counterproductive because it made the convictions unsound as the confessions were worthless. There are rare exceptions, such as Admiral James Stockdale, Medal of Honor recipient, who refused to provide information under torture.
Before the emergence of modern policing, torture was an important aspect of policing and the use of it was openly sanctioned and acknowledged by the authority. The Economist magazine proposed that one of the reasons torture endures is that torture does indeed work in some instances to extract information/confession, if those who are being tortured are indeed guilty.[107] Depending on the culture, torture has at times been carried on in silence (official denial), semi-silence (known but not spoken about), or openly acknowledged in public (to instill fear and obedience).
In the 21st century, even when states sanction their interrogation methods, torturers often work outside the law. For this reason, some prefer methods that, while unpleasant, leave victims alive and unmarked. A victim with no visible damage may lack credibility when telling tales of torture, whereas a person missing fingernails or eyes can easily prove claims of torture. Mental torture, however can leave scars just as deep and long-lasting as physical torture.[108] Professional torturers in some countries have used techniques such as electrical shock, asphyxiation, heat, cold, noise, and sleep deprivation, which leave little evidence, although in other contexts torture frequently results in horrific mutilation or death. However the most common and prevalent form of torture worldwide in both developed and under-developed countries is beating.[109]
Physical torture methods have been used throughout recorded history and can range from a beating with nothing more than fist and boot, through to the use of sophisticated custom designed devices such as the rack. Remarkable ingenuity has been shown in the invention of instruments and techniques of physical torture, exploiting medical knowledge of the vulnerabilities of the human body (e.g., the sensitivity of the nail beds to pressure, or of the soles of the feet to heat). Other types of torture can include sensory or sleep deprivation, restraint or being held in awkward or damaging positions, uncomfortable extremes of heat and cold, loud noises or any other means that inflicts severe physical or mental pain. The boundary between torture and legitimate interrogation techniques is not universally agreed. In a separate opinion, at the end of the 1978 in the European Court of Human Rights (ECHR) trial "Ireland v. the United Kingdom" (Case No. 5310/71), Judge Zekia stated that "It seems to me permissible, in ascertaining whether torture or inhuman treatment has been committed or not, to apply not only the objective test but also the subjective test. As an example I can refer to the case of an elderly sick man who is exposed to a harsh treatment—after being given several blows and beaten to the floor, he is dragged and kicked on the floor for several hours. I would say without hesitation that the poor man has been tortured. If such treatment is applied on a wrestler or even a young athlete, I would hesitate a lot to describe it as an inhuman treatment and I might regard it as a mere rough handling".[111]
Psychological torture uses non-physical methods that cause psychological suffering. Its effects are not immediately apparent unless they alter the behavior of the tortured person. Since there is no international political consensus on what constitutes psychological torture, it is often overlooked, denied, and referred to by different names.
Psychological torture is less well known than physical torture and tends to be subtle and much easier to conceal. In practice the distinctions between physical and psychological torture are often blurred. Physical torture is the inflicting of severe pain or suffering on a person. In contrast, psychological torture is directed at the psyche with calculated violations of psychological needs, along with deep damage to psychological structures and the breakage of beliefs underpinning normal sanity. Torturers often inflict both types of torture in combination to compound the associated effects.
Psychological torture also includes deliberate use of extreme stressors and situations such as mock execution, shunning, violation of deep-seated social or sexual norms and taboos, or extended solitary confinement. Because psychological torture needs no physical violence to be effective, it is possible to induce severe psychological pain, suffering, and trauma with no externally visible effects.
Rape and other forms of sexual abuse are often used as methods of torture for interrogative or punitive purposes.[112]
In medical torture, medical practitioners use torture to judge what victims can endure, to apply treatments that enhance torture, or act as torturers in their own right. Josef Mengele and Shirō Ishii were infamous during and after World War II for their involvement in medical torture and murder.
Pharmacological torture is the use of drugs to produce psychological or physical pain or discomfort.
Tickle torture is an unusual form of torture which nevertheless has been documented, and can be both physically and psychologically painful.[113][114][115][116]
Torture murder involves torture to the point of murder as for punishment in law enforcement agencies of countries that allow torture. Murderers might also torture their victims to death for sadistic reasons.
The consequences of torture reach far beyond immediate pain. Many victims suffer from post-traumatic stress disorder (PTSD), which includes symptoms such as flashbacks (or intrusive thoughts), severe anxiety, insomnia, nightmares, depression and memory lapses. Torture victims often feel guilt and shame, triggered by the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. All such symptoms are normal human responses to abnormal and inhuman treatment.[117]
Organizations like the Freedom from Torture and the Center for Victims of Torture try to help survivors of torture obtain medical treatment and to gain forensic medical evidence to obtain political asylum in a safe country and/or to prosecute the perpetrators.
Torture is often difficult to prove, particularly when some time has passed between the event and a medical examination, or when the torturers are immune from prosecution. Many torturers around the world use methods designed to have a maximum psychological impact while leaving only minimal physical traces. Medical and Human Rights Organizations worldwide have collaborated to produce the Istanbul Protocol, a document designed to outline common torture methods, consequences of torture, and medico-legal examination techniques. Typically deaths due to torture are shown in an autopsy as being due to "natural causes" like heart attack, inflammation, or embolism due to extreme stress.[118]
For survivors, torture often leads to lasting mental and physical health problems.
Physical problems can be wide-ranging, e.g. sexually transmitted diseases, musculo-skeletal problems, brain injury, post-traumatic epilepsy and dementia or chronic pain syndromes.
Mental health problems are equally wide-ranging; common are post-traumatic stress disorder, depression and anxiety disorder. Psychic deadness, erasure of intersubjectivity, refusal of meaning-making, perversion of agency, and an inability to bear desire constitute the core features of the post-traumatic psychic landscape of torture.[119]
The most terrible, intractable, legacy of torture is the killing of desire - that is , of curiosity, of the impulse for connection and meaning-making, of the capacity for mutuality, of the tolerance for ambiguity and ambivalence. For these patients, to know another mind is unbearable. To connect with another is irrelevant. They are entrapped in what was born(e) during their trauma, as they perpetuate the erasure of meaning, re-enact the dynamics of annihilation through sadomasochistic, narcissistic, paranoid, or self-deadening modes of relating, and mobilize their agency toward warding off mutuality, goodness, hope and connection. In brief, they live to prove death. And it is this perversion of agency and desire that constitutes the deepest post-traumatic injury, and the most invisible and pernicious of human-rights violations.[119]
On August 19, 2007, the American Psychology Association (APA) voted to bar participation, to intervene to stop, and to report involvement in a wide variety of interrogation techniques as torture, including "using mock executions, simulated drowning, sexual and religious humiliation, stress positions or sleep deprivation", as well as "the exploitation of prisoners' phobias, the use of mind-altering drugs, hooding, forced nakedness, the use of dogs to frighten detainees, exposing prisoners to extreme heat and cold, physical assault and threatening the use of such techniques against a prisoner or a prisoner's family."[120]
However, the APA rejected a stronger resolution that sought to prohibit “all psychologist involvement, either direct or indirect, in any interrogations at U.S. detention centers for foreign detainees or citizens detained outside normal legal channels.” That resolution would have placed the APA alongside the American Medical Association and the American Psychiatric Association in limiting professional involvement in such settings to direct patient care. The APA echoed the Bush administration by condemning isolation, sleep deprivation, and sensory deprivation or over-stimulation only when they are likely to cause lasting harm.
Psychiatric treatment of torture-related medical problems might require a wide range of expertise and often specialized experience. Common treatments are psychotropic medication, e.g. SSRI antidepressants, counseling, Cognitive Behavioural Therapy, family systems therapy and physiotherapy.
The aim of rehabilitation is to empower the torture victim to resume as full a life as possible. Rebuilding the life of someone whose dignity has been destroyed takes time and as a result long-term material, medical, psychological and social support is needed.[121]
Treatment must be a coordinated effort that covers both physical and psychological aspects. It is important to take into consideration the patients' needs, problems, expectations, views and cultural references.[121]
The consequences of torture are likely to be influenced by many internal and external factors. Therefore, rehabilitation needs to employ different treatment approaches, taking into account the victims' individual needs, as well as the cultural, social and political environment.[121]
Rehabilitation centres around the world, notably the members of the International Rehabilitation Council for Torture Victims, commonly offer multi-disciplinary support and counselling, including:
In the case of asylum seekers and refugees, the services also may include assisting in documentation of torture for the asylum decision, language classes and help in finding somewhere to live and work.[121]
In the worst case, torture can affect several generations. The physical and mental after-effects of torture often place great strain on the entire family and society. Children are particularly vulnerable. They often suffer from feelings of guilt or personal responsibility for what has happened. Therefore, other members of the survivor’s family – in particular the spouse and children – are also offered treatment and counselling.[121]
In some instances, whole societies can be more or less traumatized where torture has been used in a systematic and widespread manner. In general, after years of repression, conflict and war, regular support networks and structures have often been broken or destroyed.[121]
Providing psychosocial support and redress to survivors of torture and trauma can help reconstruct broken societies.[122] Rehabilitation centres therefore play a key role in promoting democracy, co-existence and respect for human rights. They provide support and hope, and act as a symbol of triumph over the manmade terror of torture which can hold back the development of democracy of entire societies.[121]
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