TORTURE: ASIAN AND GLOBAL PERSPECTIVES | FEB – APR 2014
VOLUME 03 NUMBER 01 & 02


When we make a closer examination of the obstructions to the elimination of torture, it is obvious that the major problem lies within the criminal justice systems and the actual ways they function in our countries.

by JACK CLANCEY

AS we begin this second meeting let us start with a short reflection on the overall aims of the project to promote the Convention Against Torture (“UNCAT”) and our progress in working to prevent torture in Asia. In this regard, there have been some historically important achievements this year in the Asian region.

The adoption of a law criminalising torture in Bangladesh naturally should receive the pride of place. During our last meeting we learned that there was skepticism about the success of the private member’s bill for criminalising torture which was then before the Bangladeshi parliament. However, as we meet now this bill is already a law passed without any opposition. The title of the new law is the Torture and Custodial Death (Prevention) Act, 2013. It was passed on October 24, 2013.

The passing of this law has an interesting background, which is very relevant to us as we are persons who have taken a voluntary interest in the task of eliminating torture from our countries. The initiative for the new law in Bangladesh and all the work that went into promoting this legislation came from voluntary efforts. Mr. Saber Hossain Chowdhury, an MP from Bangladesh, contacted the Asian Human Rights Commission with a request that we assist to draft a bill criminalizing torture that could be placed before parliament. The Asian Human Rights Commission immediately took the initiative to draft the bill and made it available to this enthusiastic parliamentarian. He placed the bill as a private member’s bill. He also took numerous steps for internal lobbying, as well as external advocacy to bring the bill to the attention of the government. The prime minister later placed the bill before a select committee, which thoroughly discussed the issue and after making some amendments recommended that the bill be placed for debate. Meanwhile the Asian Human Rights Commission carried on with parallel promotional work and soon several civil society organizations in Bangladesh joined in. Of these local organizations, Odhikar, which was also represented at our first meeting, deserves special mention for their efforts in promoting this legislation. What comes next for Bangladesh will be discussed later in this speech, together with the challenges faced in other countries. Suffice to say that at the moment, Hong Kong, Sri Lanka, the Philippines, and Bangladesh are the only places in Asia, which have legislation criminalizing torture.

There have also been encouraging developments elsewhere. For example, in Pakistan a prepared bill has now been placed before a former judge for review after which it will be presented to parliament. This initiative in Pakistan also demonstrates what volunteers, including civil society organizations, can achieve in promoting legislation on human rights issues. Within the short period of two years a large number of human rights organisations responded to the call by the Asian Human Rights Commission to draft legislation criminalizing torture. These organisations formed themselves into a lobby and are presently engaged in advocacy to promote the adoption of this law. They were able to convince both of Pakistan’s leading political parties to give priority to the passage of this law. Several ministers of the former, as well as the present, government as well as other parliamentarians have supported this call from civil society organizations. The bill is currently being discussed in parliament. We hope that when we meet next year we will be able to report that Pakistan has also adopted a law against torture.

In both Nepal and India bills criminalizing torture have already been placed before their respective parliaments. There are important civil society lobby groups pressing for the adoption of these laws. The Asian Human Rights Commission has contributed to the promotion of these bills in both countries.

While we note these extremely significant achievements, we must also recognize some of the central problems obstructing the efforts to eliminate torture. Some skeptics even go to the extent of saying that while laws are passed, the actual implementation of those laws will never happen. While we would like to dismiss such skepticism, it is quite sensible on our part to take a look at the actual situation and the seeming absence of political will on the part of many governments to take the requisite steps to eliminate torture even though these governments condemn torture and ill-treatment as inhumane practices unbecoming of any decent nation.

When we make a closer examination of the obstructions to the elimination of torture, it is obvious that the major problem lies within the criminal justice systems and the actual ways they function in our countries. As was noted during our meeting last year, the frequent, widespread use of torture in many Asian countries is almost the necessary result of the very primitive and backward nature of the criminal justice systems in these countries. The use of the fist, the boot, and far worse methods of torture and ill-treatment are, in fact, tacitly approved methods of dealing with accused persons. Governments don’t invest much in criminal justice. While issuing statements that are pleasing to the ears of the international community, governments do not make the necessary investments to provide modern systems of investigations into crime. Purported investigations rely solely on the torture and ill-treatment of suspects. In fact, a heavy reliance on torture and ill-treatment is considered a convenient and inexpensive method for collecting information. These practices contravene the basic axiom of criminal justice: “it is better for a hundred criminals to go free than to wrongly punish one innocent man” and invert it to: “it is better to torture and ill-treat a hundred persons in order to catch a single criminal.” A book published earlier this year, Narrative of Justice, narrates 400 stories of torture victims in Sri Lanka, almost all of whom were innocent. The use of torture and ill-treatment reflects an irrational approach to criminal investigations that prevail in many Asian countries. Therefore, perhaps it is important for the legislators attending this meeting to try to address this overall policy problem relating to criminal justice. The sheer irrationality of the prevailing system should be exposed so as to make it

possible for legislators and the executive to adopt improved policies, backed by realistic budgetary allocations that would make the system more rational and efficient.

What makes the issue of the backwardness of the criminal justice systems more complicated is the increase in organized crime, as well as the increased use of more sophisticated weapons by criminals.

Experienced organized criminals know how to avoid torture, as they often bribe police officers to remain free. One consequence of this aspect of the system is that large numbers of innocent persons are arrested, tortured, and charged as substitutes for the actual criminals who have carried out serious crimes. A study of torture cases shockingly reveals that officers who have arrested victims know from the very start quite that these “replacements” have no link whatsoever to the crime in question. However, either because they cannot solve a particular crime, or because they do not want to arrest a person that they think, or know, did commit the crime, officers often decide to implicate an innocent person. Naturally an innocent person who has been arrested and accused of committing a crime would deny his involvement. Therefore, the only way to get that person to confess to committing the crime is by way of torture and ill-treatment. This is happening on a large scale in many Asian countries. Documentary evidence of this reality has already been done in several countries.

A further aspect of organised crime is the police-criminal nexus. In Sri Lanka, for example, a Deputy Inspector of Police has been arrested in regard to the contract killing of a wealthy businessman. It is also alleged that this officer, along with a few subordinate officers and some criminal gangs, had been engaged in a series of crimes over a period of several years. These crimes include murder and the illegal disposal of bodies, as well as various financial transactions that have benefitted some police officers and criminals. The government neglect of the policing system is the actual cause of this degeneration. It is starkly clear that one of the primary needs in many Asian countries is thorough police reform. Such reform is also a primary requirement for economic development. Can there be much incentive to invest in an environment where the police have a reputation for being linked to crime and where corruption is rampant? Is the policing problem not also an economic problem that needs to be addressed by both legislators and the executive? To ignore this issue is to invite a great peril.

One of the frequent questions that is asked about the prevention of torture is: “Who will investigate complaints of torture and ill- treatment?”

Quite naturally, there is a tremendous distrust that the police or army officers could properly investigate or carry out an impartial inquiry into torture perpetrated by their own respective colleagues. Given that some higher ranking officers are complicit in the wrong doings of their subordinates, and given the fact that when some high ranking officers have been called upon to investigate torture and ill-treatment they have attempted to discourage the complainants or even intimidate and threaten them, these officers cannot be trusted to carry out proper investigations .

On the other hand, organisations like the human rights commissions or the national institutions do not have the requisite resources or power needed to properly investigate allegations of torture and ill- treatment. Most of the laws relating to national institutions authorize functions of a civil nature. Further, it is not within the mandate of such organisations to investigate crimes. Besides, the appointments of persons to these institutions, as well their removal, are both quite susceptible to direct political pressures. Thus, these institutions, in terms of establishing a permanent institutional framework for the implementation of laws criminalizing torture, are unsuited to the task.

Who then can investigate complaints of torture and ill-treatment? When the policing institutions reach the proper standard, the police themselves, using modern techniques and procedures, under the ultimate supervision of the judiciary, will be able to properly investigate torture and ill- treatment. In the process of modernization, the policing institution will develop proper supervision and discipline, as well as the capacity to investigate itself.

The issue is what can now be done about the complaints regarding torture and ill- treatment in countries that have notoriously substandard policing. Unless a practical solution to this problem is found,achievements in related areas, including good legislation, will not be of much value to the public, particularly the victims of torture. Thus, in this “transitional period” before substantial changes have been achieved, ways have to be developed to conduct credible, independent investigations into cases of torture. We may look at some concrete experiences. In about 2006, there was pressure from the United Nations human rights agencies, as well as wide-spread criticism by NGO groups and others, about the prevalence of large scale torture in Sri Lanka. The government responded by investigating complaints of torture; this proved quite effective, as long as these measures were implemented. The method used was that the Inspector General of Police, or the Attorney General, would refer complaints of torture to a Special Unit of Inquiry of the Criminal Investigation Division (CID) for investigation. The special units, called SIUs, usually consisted of officers whose capacity and integrity had been recognized. Within a period two to three years these SIUs investigated a significant number of cases: in about 60 cases, they found that there was adequate evidence to prosecute officers. The files of these cases were presented to the Attorney General’s Department with recommendations for prosecution. Thus far, this is the only example in Asia where effective measures were taken for the investigation of torture and ill- treatment. Unfortunately this approach was abandoned due to pressures from the police and the military, which reacted strongly against the investigations and subsequent court proceedings.

Although unfortunately it lasted for only a short while, this experiment proved that ways can be found to establish a special group of investigators, with competence and integrity, to conduct investigations into complaints of torture. Whether or not this will happen again will depend on the political will of the government; in turn, the political will of the government, at least to some measure, will depend on the extent of pressure from civil society.

There is an increasing number of civil society organizations committed to the documentation of torture, as well as providing assistance to torture victims by way of legal, medical, and psychological assistance. Committed members of civil society can help to create the local and international pressure necessary to make governments aware of the need to eliminate torture. In this regard conscientious legislators can play an important role by helping to mobilize civil society. I hope that during this meeting this all-important issue will be a subject of your deliberations.

Associated with effective investigations is the need to provide protection for the victims, as well as for those human rights defenders and lawyers who assist victims of torture. A victim who makes a complaint about torture puts himself at risk of being harmed. The particular officers who use torture usually do all that they can to stop victims from pursuing their complaints. The methods adopted vary and include: intimidating and harassing victims and their families; fabricating false charges; as well as offering monetary compensation and other incentives to try to get the victims to withdraw their complaints. If any of this behavior was done in regard to other crimes it would be considered an interference with the administration of justice. However, when the police and military are accused of torture, this interference with the administration of justice is usually not pursued. There have been examples where the alleged perpetrators of torture have killed the victims who have made the complaint. Thus, this vital issue of witness protection, which is accepted as a necessary part of the administration of the criminal law, should be in the forefront of the minds of legislators and civil society. Is there any justification for delay in passing and implementing witness protection laws?

Another area of great importance is the welfare of the victims. Today we are more aware than ever of the crippling nature of torture and ill-treatment. Conditions such as acute shock and post traumatic will lead to the allocation of much needed resources.

All this work will require more alert, and at first more frequent, judicial interventions. Traditionally, the criminal bench of the judiciary has only been used to deal with ordinary criminals. When state officers, particularly police and military officers, are brought as accused before the courts, the judges often feel caught in a very complex dilemma. Some judges who consider police officers as key players in maintaining law and order often take a sympathetic view of these accused officers. Some judges even think that the punishment of these officers might have a chilling effect on other police officers, which might adversely affect the entire

disorders, which have become part of our daily vocabulary, are caused not only by accidents, but also torture. The role played by psychologists needs to be better recognized, not only from the point of view of treating and assisting victims with their recovery, but also the role they can play in the process of investigation and prosecution of torture and ill-treatment. Some psychologists are trying to assist victims who are dealing with these problems. Other psychologists have been willing to assist victims by helping them to articulate their psychological condition as testimony. Again, I suggest this is an area that you should discuss, both in terms of the needs of victims, as well as helping to create awareness in our societies. Hopefully this criminal justice system. If effective torture prevention is to take place, a very essential component is judicial education: judges need to learn the role they can play, first to prevent torture, and second to demand the development of the kind of police work which meets the highest standards. In most Asian countries, it would not be an understatement to comment that most judges have not played their part in trying to achieve the all-important goal of eliminating torture. Some would even say that the cold- heartedness of judges is a contributory factor to the support of the widespread practice of torture. Judicial education must necessarily include education on basic human rights and modern jurisprudence regarding torture and ill-treatment.

Last week, the USA based Institute on Medicine as a Profession released a report, which stated that medical professionals “helped design, enable and participate in torture and cruel, inhumane and degrading treatment” of detainees. One of the authors of the report stated, “It’s clear that in the name of national security, the military trumped (the Hippocratic Oath), and physicians were transformed into agents of the military and performed acts that were contrary to medical ethics and practice.” In Asian countries, doctors sometimes stand by when persons are being tortured; more frequently, doctors assist police officers who try to cover up torture, by performing so-called “examinations” of the torture victims and then preparing false medical reports. This is an area that should be more closely examined by the medical profession. Perhaps it should also be a subject that parliamentarians may wish to investigate.

In a very interesting book, On Killing, retired U.S. army Lt. Colonel Dave Grossman, who is a psychologist, refers to “compelling data that indicate that this singular lack of enthusiasm for killing one’s fellow man has existed throughout military history.” (p.
16) A study conducted by S.L.A. Marshall found that in WWII, 80% to 85 % of U.S. soldiers did not fire their weapons at the enemy. Marshall is quoted as noting that when faced with the responsibility of killing another person, if it is possible to turn away, a soldier “at this vital point … becomes a conscientious objector.” (p. 1) Grossman concludes, “There is a force within mankind that will cause men to rebel against killing even at the risk of their own lives.” (p. 336) Yet, soldiers do kill. Grossman notes that there are sociopaths “who will kill without regret or remorse” but that those individuals only comprise 2% of all veterans. (p. 181). Grossman discusses the increase in murders in the U.S. and discusses how, through

the senseless violence depicted in movies and video games, “we, as a society, have become systematically desensitized to the pain and suffering of others.” (p. 315) One of Grossman’s most interesting footnotes is his note that after the My Lai massacre in Vietnam, the U.S. Army instituted a program of mandatory annual training about the Geneva convention and related law. He notes, “In this training, soldiers are taught which orders are illegal and how to disobey illegal orders” [emphasis added]. He then comments, “This may be the first time in history that soldiers have been taught to disobey orders.”

We can discuss how these insights can be applied to torture by police officers, military officers, and intelligence officers. I would guess that, as with soldiers, there are only about 2% of police officers who can torture without any regret or remorse. Should we discuss legislation that requires all police officers to participate in annual training programs that present the clear guidelines set out in the International Convention against Torture, as well as the legislation for those countries who have such laws? Can we also discuss the possibility of passing legislation that will encourage police offices to be “whistle blowers” and reveal specific cases of torture? Can the legislation for the protection of witnesses also offer protection to those police officers who speak up and are prepared to give evidence in Court?

While each country has to pass their own legislation and establish their own institutions to prevent torture, it is also necessary for the international community, including the UN agencies engaged in human rights, to take an active part in the promotion of police reforms. The goal is to transform police agencies into modern institutions that abhor and prevent the use torture and ill-treatment.

There are ongoing activities among NGOs, such as by the Asian Alliance against Torture and Ill-treatment, and groups of lawyers, to document instances of torture, to speak out against the use of torture, and to urge institutional changes that will prevent the wide-spread use of torture.

Allow me to diverge briefly. There are troubling signs around the world that political leaders are increasingly searching for excuses to allow them to torture persons, as well as “justifications” for not investigating or prosecuting those persons who are alleged to have committed torture. The most common rationale is national security.

There are many examples from around the world that can be given. I would cite examples of the U.S.A., which often, usually correctly, condemns specific human rights

abuses in other countries.

When he was a candidate, Barack Obama condemned waterboarding and other interrogation practices, which he considered amounted to torture. Obama stressed the importance of upholding the rule of law. “No more ignoring the law when it’s inconvenient. That is not who we are. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.” (Cited in With Liberty and Justice for Some, Glenn Greenwald, p. 155. I am indebted to the research and insights of Greenwald for the material I will cite below; giving the page references to the same book)

In a June 2008 speech, Eric Holder, who would become President Obama’s Attorney General, stated in unambiguous language: “Our government authorized the use of torture, … and authorized the use of procedures that both violate international law and the United States Constitution.” (p. 158)

General Barry McCaffrey, in a 2009 interview, stated, “We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the CIA.” (p. 174) Human Rights Watch researcher, John Sifton, claims, “Approximately 100 detainees, including CIA-held detainees, have died during U.S. interrogations, and some are known to have been tortured to death.” (p. 174)

However, after he was elected, Obama took up the mantra of recent presidents: “…we need to look forward as opposed to looking backwards… I don’t want them [officials accused of torture] to suddenly feel they’ve got to spend all of their time looking over their shoulders and lawyering up.” (pp. 160-161) As you are aware, the CAT states very clearly: “No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture.” Even for those who are not lawyers, that message is unambiguous.

In January 2009, Manfred Nowak, the UN special rapporteur on torture announced, “Judicially speaking, the United States has a clear obligation to bring proceedings against top government officials who authorized techniques that under international law are considered torture.” (p. 166)

In a later interview with Greenwald, Nowak said, “…whoever practices torture shall be brought before an independent criminal court and be held accountable. That is, the torturer, him or herself, but also those who are ordering torture practices, or in any other way participating in the practice of torture. This is a general obligation, and it applies to everybody; there are no exceptions in the Convention.” (p. 166)

Greenwald emphasizes, “A criminal investigation of torture allegations is thus mandatory under both the Geneva Conventions and the Convention Against Torture. Refusing to carry out such an investigation is itself a crime, a new violation of the law separate from the original acts of torture.” (p. 166)

President Obama, a former constitutional law professor, who clearly knows the law, not only refused to initiate any investigations into the allegations of torture committed

or ordered by U.S. government employees and officials, but also took a wide variety of measures to obstruct investigations and even interfered in court proceedings.

A few examples:

1. “Just to be extra certain that Holder would not initiate criminal proceedings against Bush officials, the White House continued to pressure the attorney general even after Obama had publicly acknowledged that such pressure was inappropriate.” (p. 177)
2. White House officials made efforts “to forestall any formal inquiry into Bush’s torture regime that might be carried out by a congressional committee.” (p. 181)
3. When prosecutors in Spain initiated a criminal investigation of former Attorney General Alberto Gonzales and five top associates in regard to the roles they played in the torture of five Spanish citizens held at Guantanamo, not only did Obama speak out against the investigation, but, we know, thanks to WikiLeaks, that “Obama’s State Department warned Spanish authorities that any efforts to hold Bush torturers accountable would, as one cable put it,
‘not be understood or accepted in the US and would have an enormous impact on the bilateral relationship.” (p. 183)
4. Although, in 2009, an Italian court found
22 CIA agents guilty of kidnapping an Islamic cleric in Milan, “the administration has actively protected these CIA agents from any extradition attempts by the Italian authorities.” (p.
184)
5. “The Obama administration also undertook extraordinary efforts to prevent courts in Britain from investigating claims of torture by Binyam Mohamed, a British resident who was incarcerated at Guantanamo for six years without charges. This example deserves a bit more detail. Mohamed’s lawyers sought discovery of “notes taken by British agents during discussions with CIA agents who detailed to the Brits what they were doing to Mohamed. A British High Court ruled in his favor, finding that Mohamed was entitled to obtain the documents to prove that he had been tortured in American custody. As part of the ruling, the British High Court prepared a summary of the notes in question. But as the ruling was about to be released – and the world to learn the details of Mohamed’s abuse at the hands of his American captors – the British government warned the court that British national security would be severely jeopardized if these details were disclosed.” (p. 185) The British government specifically said that if the courts released the information. “U.S. intelligence agencies would no longer pass onto Britain any information about terrorist plots aimed at British citizens.” [!!] (p. 185) It would appear then that Obama was not only in breach of CAT and the U.S. Constitution, but, as he was prepared to not disclose information about terrorist plots, he would, in effect, be aiding and abetting terrorists.

Whenever we hear attempts of any kind, by any persons to defend the use of torture, we need to remember the clear message of CAT: torture is never permissible for any reason!

I would like to return to the main theme, namely the use of torture, by police officers in many Asian countries, as an ordinary means to attain the objective they have set. That objective is to force persons to state what the police want those persons to say. The police officers attempt to justify the torture they employ as a means of carrying their investigations. These police officers

must learn: first, that it is always wrong to use torture, and second, that proper police investigations do not rely on torturing people. In many Asian countries, there are not yet laws in place that make torture illegal. If torture should never be used by anyone, should not the first step be to pass laws making torture illegal? Once laws making torture illegal, are passed, the requisite structures to ensure a strict implementation of those laws must be put in place.

These are some of the more important challenges facing those concerned about working to eliminate torture.

(The article is based on the speech delivered by the author at the second meeting of Asian Parliamentarians and Human Rights Defenders jointly organized by the Asian Human Rights Commission and the Danish Institute Against Torture in end 2013)