TORTURE: ASIAN AND GLOBAL PERSPECTIVES | FEB – APR 2014
VOLUME 03 NUMBER 01 & 02
My time in Kosovo and Serbia has added to this experience – maybe mostly in understanding how a democracy should work and which factors need to be there. For example, the role of civil society as a necessary counterweight to the government.
Dr. Jens Modvig is Director, Prevention of Torture in Detention, Danish Institute against Torture (DIGNITY) and an elected member of the United Nations Committee against Torture. He has carried out missions on human rights and democratisation in 45 countries, including Kosovo and Serbia. John Stewart Sloan, on behalf of Torture: Asian & Global Perspectives, interviewed Dr. Modvig in order to question him about the prevalence of torture.
John Stewart Sloan (JSS): Dr. Modvig, thank you for speaking with us today. With 20 years of experience as a medical professional, one of your personal areas of interest is monitoring and documentation of torture and inhuman treatment inplaces of detention. You have published extensively on the issue. Can you tell us why this particular area is of interest to you?
Jens Modvig (JM): Yes, torture is perhaps the most vicious human rights violation – in its worst form aiming to create a life in suffering with severe consequences of torture, so as a medical doctor it is difficult NOT to participate in the fight against torture. As a medical doctor, you may be complicit in torture, you may be indifferent or you may fight torture actively. The last option is very rewarding. Feeling that you can use your education and professional skills in the service of an important cause is in fact a great privilege.
Also, the work against torture represents a lot of professional challenges which in themselves are interesting: How can we document torture in the best way, that is, a way that allows us to prove that torture took place, bring perpetrators to justice and provide compensation to the victim. Thus, documentation of torture is maybe the most important pathway to ending impunity and preventing torture, so effective and credible documentation methods are extremely important in this fight.
JSS: In your opinion why do you think that the practice of torturing inmates still prevails in society?
JM: Actually we believe that detainees not yet convicted are those at highest risk of being tortured – much higher than prisoners who have received a sentence. The reason is that when the investigation of a criminal case proceeds, getting a confession from the suspect is the most direct way to conclude the case – and easier than having to prove the guilt of the suspect by means of technical
proofs or witnesses. Thus, putting pressure on the suspect by inducing pain or suffering may produce the desired result, which is a confession. This pressure can be applied in many ways. When you deprive a person of his liberty, i.e. to put him in a pre-trial detention, you actually – intentionally or not – apply a pressure. In many countries, pre-trial detention of suspects – who have not yet been proven guilty! – is a standard procedure. This in itself is of course not torture, but it is a threat to the right of being considered innocent until otherwise proven.
Once detained, the suspect may be interrogated at the discretion of the police, which may imply sleep deprivation, harsh interrogations, threats and even physical and psychological violence. In such situations, the acts are clearly intentional and with a purpose – as stated in the torture definition – namely to evoke a confession. Alternatively, the purpose could be to make the suspect pay a bribe to get released or treated a bit better.
So, the reason why torture still prevails is – in my opinion – lack of political will to “clean up” bad practices and also the fact that the criminal justice sector in many countries suffers from lack of resources and standards. Beating a confession out of a suspect is an acceptable modus operandi, and nobody is punished for this. Three basic safeguards – rights in connection with arrest – may protect suspects from torture and ill-treatment: the right to see a lawyer, the right to see a doctor and the right to inform relatives about your arrest. If national systems of criminal justice would ensure these rights and the compliance in practice with these rights, much would be achieved.
The burden of this lies on the shoulders of the parliamentarians: the democratically elected representatives of the people. If they would ensure these legal rights and the full implementation, they would have made a considerable contribution to the prevention of torture.
JSS: In countries that have signed and ratified the Convention against Torture, torture is still carried out by the police and armed forces and in many cases it is done with the blessings of the ruling regimes. If we cannot get the governments to realise the wrong they are permitting, how do you think it is possible to get the officers at street level to realise that what they are doing is wrong?
JM: This is a really good question. I agree that the change has to involve the ruling regimes and – as mentioned above – also the legislative branch: the democratically elected representatives in the parliament. In many places, the government – the executive branch – has too much power compared to the legislative branch – the parliament. In democracies, according to the principle of separation of powers, the parliament has to be able to exercise its parliamentary oversight over the executive branch and assume democratic control over the way the system is managed.
In the case of torture prevention, the parliament should decide legislation that protects the people against torture and ill-treatment, and the government should be held accountable for complying with these laws. In some situations, this does not happen because the government holds the population in an iron grip and uses repression, including torture and ill-treatment, as a political tool. In other situations – probably more common – the government and the parliament know what happens but closes their eyes and do not have the resources to make real changes. They end up balancing between acceding to international legal standards and declarations in order to show a progressive will and acknowledging the reality, which is far from these standards but hard to change.
The solution to this problem is to ensure development funds for true improvement of human rights. As it is now, there is a world of international standards on human rights and mechanisms to assess human rights violations. We have treaty bodies and special rapporteurs and regional commissions and courts, which all contribute to the normative development and assessment of standard violations. On the other hand, there is also a different world of development programmes and development goals, with a huge amount of bilateral and multilateral funds for development. It seems that these two worlds are not very well connected. If a higher proportion of the development funds could be allocated to for instance anti- torture work – police reform and education, technical upgrade, monitoring of places of detention, anti-corruption programmes in the law enforcement, capacity building of the general prosecution in cases of alleged torture, medical documentation of torture, strengthening parliamentary oversight over the law enforcement – prospects would be better.
JSS: Do you feel that awareness programmes for the general public and human rights programmes for the police and military will have any affect?
JM: Yes, but they cannot stand alone. I believe that interventions to change the practice of torture should make use of synergy from intervening at several points at the same time. For instance, it is necessary to make the general population more aware of their rights including the right not to be tortured. This may influence their vote for the parliament. Elected parliamentarians who are accountable to the people in terms of combatting torture is of course very helpful. However, the effect may be tenfold as high if you, at the same time, work with the ministry of interior and implement international standards for treating suspects and allow them to see a doctor, work with the ministry of health and the medical association on documenting and reporting cases of torture, work with the ministry of justice to create an independent body which may process cases of alleged torture, and you work with the civil society to have them monitor progress in the fight against torture.
JSS: To cite an actual example, early last year there was an incident in a Sri Lankan prison where the prison authorities themselves surrendered their duties to the police who sent in a detachment of the Special Task Force. The resulting death toll was horrendous and the government of President Mahinda Rajapaksa has never made good on its promise to make a report open to the public. What message would you send to Rajapaksa over this incident?
JM: I am not in a position to send messages to any Presidents or governments unless I have a thorough insight in the situation. In general, I am a strong supporter of transparency and accountability. This means that places of detention should not be closed institutions without insight, where anything could happen and no information ever gets out. On the contrary, the criminal justice institutions spend taxpayers’ money and should be accountable to the people. This may take place by reporting obligations. For instance, any time force is being used by the criminal justice institutions, they should make a report, describing the situation, why the use of force was necessary and what was the legal basis of using force? Such reports should describe any use of batons, handcuffs, shields, isolation cell, pepper- spray and physical force. The reports should be sent to the central authorities and reviewed with a view to legality and to statistical occurrence of use of force in single institutions. This will provide transparency of the institutions and hold them and their managers accountable for any use of force
– the smallest and also those where severe human losses are involved.
JSS: Staying in Sri Lanka for the time being, there have been numerous incidents where the doctors and medical professionals have sided with the authorities in covering up, or attempting to cover up horrific injuries caused by custodial torture. One of your publications covered the issue of ‘Helping to stop doctors becoming complicit in torture’. Can you please tell us something of this and how you think it can be applied.
JM: Yes – thank you for the opportunity to address this important issue. As I mentioned, medical doctors can play a positive or a negative role in the fight against torture. The negative role is to be involved in torture, either directly or indirectly. Direct involvement may be to advise interrogators on health weaknesses of a detainee, which may be utilized in the interrogation. Indirect involvement might be to omit the reporting of obvious cases of torture encountered to appropriate authorities and just let the practice continue.
The positive role for doctors is to fight torture by, e.g., documenting and reporting on torture and rehabilitating the torture survivors in the most effective way. Some doctors have job situations where they are at increased risk of being involved in situations which may amount to torture. For instance, doctors employed by the law enforcement agencies (police, prisons, military) often find themselves in situations of dual loyalty, where it may be difficult to decide whether to pursue the interests of your employer (e.g. the prison) or those of your patient – the prisoner. The medical associations have a role to play to support doctors working under these dilemmas – to provide clear ethical guidelines, reporting opportunities and working conditions which reduce the risk of doctors being involved – actively or passively – in torture.
JSS: You have recently spent three years in Kosovo and a further one year in Serbia, can you tell us about your experiences in these countries and how that experience has impacted on your work?
JM: It is always useful to know and understand other settings and cultures than the one you come from. I am lucky in many ways to live in a country – Denmark – where there is a good situation in terms of human rights and torture. This does not mean, however, that we do not have problems. Denmark, like any other country, has a need to constantly prevent torture. And we – my organization DIGNITY – Danish Institute Against Torture – do harvest useful experiences in the prevention of torture through our participation in the Danish National Preventive Mechanism – a prison visiting mechanism under the Optional Protocol to the Convention Against Torture. We visit – together with the Danish ombudsman – places of detention and identify problems which may develop into a breach of international standards, notably the UN Convention against Torture, and therefore should be discontinued.
My time in Kosovo and Serbia has added to this experience – maybe mostly in understanding how a democracy should work and which factors need to be there. For example, the role of civil society as a necessary counterweight to the government. In Kosovo and Serbia, when I was there, like in many other countries, the civil society was not appreciated very much. On the contrary, NGO’s might even be suspected of being foreign spies or money laundering agencies hostile to the government. Measures were considered to subject NGO’s to harsh audit procedures or legality procedures in order to allow or prohibit them to operate. This, of course, was a way to control civil society and in reality to suppress opposition to the government. This experience obviously highlights the way civil society is treated and considered as a litmus test of the degree of democracy that the government actually wants to support.
JSS: Dr. Modvig, thank you for your time.