Torture is the infliction of severe physical or psychological pain as an expression of cruelty, a means of intimidation, deterrent or punishment, or as a tool for the extraction of information or confessions. Sometimes torture is practiced even when it appears to have little or no functional purpose beyond the gratification of the torturer or because it has become the norm within the context.
Torture is an extreme violation of human rights. Signatories of the Third Geneva Convention agree not to commit torture under certain circumstances in wartime, and signatories of the UN Convention Against Torture agree to not commit certain specific forms of torture. These conventions and agreements notwithstanding, it is estimated by organisations such as Amnesty International that around 2/3 of countries do not consistently abide by the spirit of such treaties. Realistically, torture or similar techniques have been a tool of many states throughout history and for many states they remain so (when expedient and desired, and often unofficially) today.
Current legal status of torture
On December 10, 1948 the Universal Declaration of Human Rights was adopted by the United Nations General Assembly. Article 5 states "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".
Since that time the use of torture has been regulated by a number of international treaties, of which the two major ones are the United Nations Convention Against Torture and the Geneva Conventions.
United Nations Convention Against Torture
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. 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 in stability 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.
There are several points which should be noted:
- Section 1: torture is defined as severe pain or suffering, which means there exist levels of pain and suffering which are not severe enough to be called torture. Discussions on this area of international law are influenced by a ruling of the European Court of Human Rights(ECHR). See the section Other conventions for more details on the ECHR ruling.
- Section 2: If a state has signed the treaty without reservations, then there are no exceptional circumstances whatsoever where a state can use torture and not break its treaty obligations. However the worst sanction which can be applied to a powerful county is a public record that they have broken their treaty obligations. In certain exceptional cases the authorities in those countries may consider that with plausible deniability that this is an acceptable risk to take as the definition of severe is open to interpretation.
- Section 16: contains the phrase territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment, so if the government of a state authorises its personnel to use sensory deprivation on a detainee in territory not under its jurisdiction then it has not broken its treaty obligations.
At the moment this treaty has been signed by about half the countries in the world.
Geneva Conventions
The four Geneva Conventions provide protection for people who fall into enemy hands. They envisage war in its traditional form, whereby people in uniforms fight clearly defined enemies in uniform, within a clearly defined arena. It therefore divides people into two explicit groups: combatants and non-combatants (civilians). There is a third group whose existence is implied, but whose treatment is not covered in detail. These are unlawful combatants, such as spies, mercenaries and other combatants who have broken the laws of war, for example by firing on an enemy while flying a white flag. Whilst combatants and non-combatants are provided substantial protection, a lesser level of protection is afforded to unlawful combatants.
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 their similarly worded article 3 that in a non-international armed conflict that "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 and 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".
Under GCIV most enemy civilians in an international armed conflict will be "Protected Persons" under the meaning of GCIV, (see exemptions section immediatly 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."
The treatment of prisoners of war (POWs) in an international armed conflict is covered by GCIII. In particular article 17 states 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.".
GCIII POW status has far fewer exemptions than "Protected Person" status under GCIV. If a person is an enemy combatant in an international armed conflict, then they will have the protection of GCIII and be entitled to be regarded as POWs under GCIII unless they are an unlawful combatant. If there is a question of whether the combatant is an unlawful combatant, they must be treated as POW's "until their status has been determined by a competent tribunal" (GCIII article 5). If the tribunal decides that they are an unlawful combatant, and they are a Protected Person under GCIV, they will still have the some protections under GCIV Article 5. They must be "treated with humanity and, in case of trial [for ], shall not be deprived of the rights of fair and regular trial prescribed by the present Convention".
Once a person in an international armed conflict, has been found guilty of war crimes, or they are not protected by GCIV because of some other exemption, they no longer have the protection of the Geneva Conventions.
Geneva Convention IV exemptions
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." (GVIV article 5)
In a conflict like the US War on Terrorism many so called "unlawful combatants" have been controversially denied protection under the Geneva Conventions, because they are either excluded by their nationality (see below) or they are deemed to be so dangerous that Article 5 can be invoked.
There are two further groups who are not protected by GCIV:
- Nationals of a State which is not bound by the Convention are not protected by it.
- 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). Since nearly every state has diplomatic recognition of every other state, most citizens of neutral countries in a war zone are not able to claim any protection from GCIV.
Geneva Conventions additional Protocols
In addition, 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 explicitly mention torture but it does clarify one or two points which effect the treatment of POWs and Protected Persons. The first is that it explicitly involves "the appointment of Protecting Powers and of their substitute" to monitor that the Conventions are being enforced by the Parties to the conflict. It also broadens the definition of a lawful combatant in occupied territory 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. It also defines who is a mercenary and therefore 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" . It states in Article 4.a "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.b "Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;" and Article 4.h "Threats to commit any of the foregoing acts". There are other clauses in other articles which entreat humane treatment of enemy personnel in an internal conflict, which have a bearing on the use of torture, but there are no other clauses which explicitly mentions torture.
Other conventions
During the Cold War in Europe a treaty called European Convention on Human Rights was signed. 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".
In 1978 the European Court of Human Rights ruled that the five techniques of "sensory deprivation" were not torture but were "inhuman or degrading treatment". See Accusations of use of torture by United Kingdom for details. This case was 9 years before the UNCAT came into force and had an influence on States thinking about what constitutes torture ever since.
Domestic and national law
Countries which have signed the "United Nations Convention Against Torture", have a treaty obligation to include the provisions into domestic law. The laws of many countries 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.
- The United States includes this right in the fifth amendment to its constitution, which in turn serves as the basis of the Miranda warning that is issued to individuals upon their arrest. Additionally, the US Constitution's eighth amendment expressly forbids the use of "cruel and unusual punishments", which is widely interpreted as a prohibition of the use of torture. However, Bush's white house councel Alberto Gonzales issued a memo which defined torture as "intentionally causing permanent damage to vital organs or permanent emotional trauma" (so techniques such as electric shocks are considered acceptable). Principal Deputy Associate Attorney General Brian Boyle acknowledged that confessions obtained under duress would be acceptable as evidence in Guantanamo Bay.
- 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 person. Statute law explicitly makes torture a crime. In addition, statute law prohibits the police or justice from interrogating suspects under oath.
Supervision of anti-torture treaties
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 signatory to the Geneva Conventions, which includes monitoring the use of torture.
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.
Human rights organizations, such as Amnesty International, are actively involved in working to stop the use of torture throughout the world and publish reports on any activities they consider to be torture.
Aspects of torture
The use of torture has been criticized not only on humanitarian and moral grounds, but on the grounds that evidence extracted by torture tends to be extremely unreliable and that the use of torture corrupts institutions which tolerate it.
The purpose of torture is often as much to force acquiescence on an enemy, or destroy a person psychologically from within, as it is to gain information, and its effects endure long after the torture itself has ended. In this sense torture is often described by survivors as "never ending". See Psychology of torture.
Incrimination of innocent people
One well documented effect of torture is that with rare exceptions people 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. There are rare exceptions, such as F. F. E. Yeo-Thomas, G.C., who refused to provide information under torture.
Secrecy / publicity
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 (in order to instill fear and obedience).
Since torture is in general not accepted in modern times, professional torturers in some countries tend to use 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. Evidence of torture also comes from testimony of witnesses and from breaches of discipline as for example, the untrained and indiscreet amateur photographers of Abu Ghraib prison.
Motivation to torture
It was long thought that "good" people would not torture and only "bad" ones would, under normal circumstances. Research over the past 50 years suggests a disquieting alternative view, that under the right circumstances and with the appropriate encouragement and setting, most people can be encouraged to actively torture others. Stages of torture mentality include:
- Reluctant or peripheral participation
- Official encouragement: As the Stanford prison experiment and Milgram experiment show, many people will follow the direction of an official person (such as a superior officer) in an official setting (especially if presented as a compulsory obligation), even if they have personal uncertainty. The main motivations for this appear to be fear of loss of status or respect, and the desire to be seen as a "good citizen" or "good subordinate".
- Peer encouragement: to accept torture as necessary, acceptable or deserved, or to comply from a wish to not reject peer group beliefs. At worst this leads to competition between torturers to produce more pain or harsher results.
- Dehumanisation: seeing victims as objects of curiosity and experimentation, where pain becomes just another test to see how it effects the victim.
- Disinhibition: socio-cultural and situational pressures may cause torturers to undergo a lessening of moral inhibitions and as a result act in ways not normally countenanced by law, custom and conscience.
Organisationally, like many other procedures, once torture becomes established as part of internally acceptable norms under certain circumstances, its use often becomes institutionalised and self-perpetuating over time, as what was once used exceptionally for perceived necessity finds more reasons claimed to justify wider use.
Medical torture
Main article: Medical torture
At times, medicine and medical practitioners have been drawn into the ranks of torturers, either to judge what victims can endure, to apply treatments which will enhance torture, or as torturers in their own right. A famous example of the latter is Dr. Josef Mengele the so-called "Angel of Death".
Effects of torture
Organizations like the Medical Foundation for Care of 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. 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.
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.
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.
Use of torture
Recent times in the context of this article is from December 10, 1948 when the Universal Declaration of Human Rights was adopted by the United Nations General Assembly.
Torture in the past
Torture was used by many governments and countries in the past; in the Middle Ages especially and up into the 18th century, torture was considered a legitimate way to obtain testimonies and confessions from suspects for use in judicial inquiries and trials.
In the Roman Republic, for example, a slave's testimony was admissible only if it was extracted by torture, on the assumption that they could not be trusted to reveal the truth voluntarily.
In much of Europe, medieval and early modern courts of "justice" freely inflicted torture, depending on the accused's crime and the social status of the suspect. Torture was seen as a legitimate means for justice to extract confessions, or obtain the names of accomplices or other information about the crime. Often, defendants sentenced to death would be tortured prior to execution, so as to have a last chance that they disclose the names of their accomplices. Torture in the Medieval Inquisition was used starting in 1252. The torture methods used by inquisitors were mild compared to secular courts, as they were forbidden to use methods that resulted in bloodshed, mutilation or death.
One of the most common forms of medieval inquisition torture was known as strappado. The hands were bound behind the back with a rope, and the accused was suspended this way, dislocating the joints painfully in both arms. Weights could be added to the legs dislocating those joints as well. Other torture methods could included the rack (stretching the victim’s joints to breaking point), the thumbscrew, the boot (crushing the foot and leg), water (massive quantities of water forcibly ingested), and the medieval red-hot pincers, although it was technically against church policy to mutilate a persons body. If stronger methods were needed, or death, the person was handed over to the secular authorities who were not bound by any restrictions.
In 1613 Anton Praetorius described the terrible situation of the prisoners in the dungeons in his book "Gründlicher Bericht über Zauberey und Zauberer" (Thorough Report about Sorcery and Sorcerers). He was one of the first to protest against all means of torture.
Torture was abolished in England about 1640, in Scotland in 1708, in Prussia in 1740, in France in 1789 (one early measure of the French revolution), in Russia in 1801.this link to mean a difficult time at ordinary office work.
See also
External links
Footnotes
- See Wikipedia:Footnote3
- History of the Christian Church, Volume IV: Mediaeval Christianity. A.D. 590-1073. Chapter VI. Morals And Religion: Page 80:The Torture by Schaff, Philip (1819-1893)
- ^ Hutchinson's Encyclopaedia: Torture
- ^ New York Times, Sunday, May 23, 2004 This link needs fixing. See the references in this link. This could be one of two articles.
- Susan Sontag, "Regarding the Torture of Others: Notes on what has been done – and why – to prisoners, by Americans," New York Times Magazine, Sunday, May 23, 2004, 24-29, 42.
- Adam Hochschild, "What’s in a Word? Torture," New York Times, Sunday, May 23, 2004, Week in Review. May 23 may go down as the day on which a number of commentators finally faced up to the practice of torture – on 60 Minutes the same evening, Andy Rooney echoed both Sontag and Hochschild.
- ^ The envoy silenced after telling undiplomatic truths, The Daily Telegraph 23 October 2004
- ^ as reported in the Sunday Times on 20 March 2005
- ^ Q & A: Torture by Proxy Jane Mayer answers question asked by Amy Davidson The New Yorker on 14 February 2005
