Torture: the need to move forward
24-06-2005 by Alain Aeschlimann
The 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment entered into force on 26 June 1987. But even though torture is strictly prohibited, it remains common in many countries. By the head of the Protection Division at the ICRC.
Events in recent years have reignited public discussion on torture, its definition and whether its use is ever justified. Once again, it is has become necessary to argue why torture must remain prohibited.It is indisputable that States and public authorities have a duty to take all possible measures to protect public security. However, they must fulfil this duty within a legal framework that guarantees respect for human dignity. The detention and interrogation of those who may provide information on potential threats must conform to these basic tenets of law.
The formal prohibition of torture and other forms of ill treatment dates back to the nineteenth century, when domestic legislation and international treaties began to outlaw torture either explicitly or implicitly. The 1984 Convention was the culmination of a legislative process at both international and national levels. It introduced three new elements: an internationally accepted definition of torture; the introduction of international criminal liability for " torturers " and associated obligations on States with regard to prevention and prosecution; and a reaffirmed prohibition of cruel, inhuman and degrading treatment.
The current debate on torture often centres on four key arguments.
First is the " threshold " debate. Those who advocate using certain forms of ill-treatment regularly question the definition of torture, narrowing it down and limiting it to the infliction of severe physical harm. They say or imply that anything below the level of this limited definition is authorized and legal. However, internationally agreed standards are much stricter when it comes to defining what is humane and lawful and what is not. International law (and most domestic legislation), prohibits behaviour as diverse as outrages upon personal dignity; violence to life, health and welfare; any form of indecent assault; any measure of brutality; inhuman, cruel, humiliating or degrading treatment or punishment; physical or moral coercion; intimidation; and mutilation or any form of corporal punishment.
Secondly, advocates of ill-treatment list permissible methods to the exclusion of others. However, merely establishing a check-list of what is or is not allowed is not sufficient to determine whether abuse has occurred. Methods must be assessed in the light of the overall circumstances under which they are applied. The effects of ill-treatment vary according to the mental health, physical strength, cultural background, age and gender of the victim, and the environment in which the ill-treatment occurs. Other elements are also important, such as the duration or combination of the methods used. In some cases a single act may amount to torture. In others, ill-treatment may be the result of a number of methods used over time, which, taken individually and out of context, may seem harmless.
Thirdly, the suffering caused by ill-treatment is frequently played down. The consequences of torture and other forms of ill-treatment may be purely psychological or both physical and psychological. Expert opinion holds that the psychological anguish caused by ill-treatment often outweighs the physical pain. The psychological effects of having to witness the torture of a family member or having to endure sexual forms of ill-treatment may be as traumatic as maiming – or worse.
Lastly, those supporting a circumscribed use of torture often exploit public concerns about security to justify ill-treatment during interrogation, the so-called " ticking bomb " argument. However, many ex perts question the value of information obtained under torture or ill-treatment. Furthermore, the resulting humiliation and resentment felt by individuals and entire communities may lead to an escalation of violence. Historically, whenever torture has been tolerated it has resulted in a more permissive environment that caused an erosion of its prohibition. If this slippery slope is to be avoided, a steadfast adherence to total prohibition is required.
The ICRC's position is clear: it firmly rejects any recourse to torture and other forms of ill-treatment. The prohibition contained in international law is absolute and allows for no exceptions of any kind. Finally, the ICRC considers that the merits of respecting human dignity far outweigh any justification for torture.