Key current issues in the fight against torture discussed by a BPTC student in his quest for a solution

What will happen to Trump’s promise to keep Guantanamo Bay open?

In the early days of the theory of Human Rights, during the seventeenth century, it was used as a “political weapon in the fight of the rising bourgeoisie against despotic political power” [1]. Since then it has grown as a major global theory and many treaties and charter mechanisms have been established.

A chief focusing point of these mechanisms has been the prohibition of torture, ‘Torture constitutes an aggravated and deliberate form of cruel inhuman and degrading treatment or punishment’[2]. The Universal Declaration of Human Rights (UDHR)[3] was drafted and adopted by the Human Rights Commission, which coupled with Charters like UNCAT aimed to combat torture.

Whilst the definition of torture, appears straight forward, universal conformity on what constitutes inhumane or degrading treatment is not. Female circumcision, a violation of Article 3 of Human Rights Act, 19(1) and 37(1) of Convention on the Rights of the Child[4], is viewed as a rite of passage for young girls going into womanhood in many parts of Africa, a celebration rather than a punishment. Shashi Tharoor states “all rights and values are defined and limited by cultural perceptions.”[5]. For Human Rights to be accepted in these cultures, lines of communication must be improved, often lack of education and medical awareness restrains communities from accepting the values of human rights, the mere existence of the Act is not sufficient to bring a change.

Often acts widely seen as torture are indoctrinated into the law of countries and is carried out by government officials or bodies. Naureen Shameem of the international rights group Women Living Under Muslim Laws said “Stoning is a cruel and hideous punishment. It is a form of torturing someone to death” and it is often women who are targeted by such laws.

In 2008, Aziz a 16-year-old, eloped with a man against her parents’ wishes. Fearful of her life, she sought help from the Department to End Domestic Violence. The Department turned her over to her family, she was stoned to her death. In March 2013, the head of the Commission for the Promotion of Virtue and the Prevention of Vice in Tunisia, called for a 19-year-old Tunisian named Amina to be stoned to death for posting nude protest images online. In 2015 a 19-year-old, identified as Rokhshana, was stoned to death under the orders of a Taliban leader for adultery, in Afghanistan. Attacks on women and disregard for their rights have been widely documented by international organizations in Afghanistan. What shows a greater obstacle for Human Rights, is the report by Amnesty International, which highlighted concerns about inhumane persecution of women’s rights in the country, not only by the Taliban and tribal warlords, but also by government officials[6]. The UN is powerless to stop these actions, demonstrating the lack of an effective enforcement system where state law and government bodies does not support the provision.

 

The western world also sees laws and punishments which amount to torture. The death penalty, is not something often thought of, when discussing torture, but the psychological state of a person on a death penalty sentence often amounts to it. Although the death penalty itself may not be classified as torture, but the death row phenomenon often comes under the definition of torture from the UN, as mental trauma is classified as torture. As Judge Krishna Iyer commented on a prisoner that had been on death row from many years “[he] must be now, be more of a vegetable than a person and hanging a vegetable is not the death penalty”[7]. This view was echoed in the case of Warren Hill[8], in Atlanta, who was taken to the death chamber four times, each resulting in a stay order. The mental preparation to die amounted to torture itself, executing such persons is inconsistent with the purpose of the penalty, as the prescribed punishment was death, not torture followed by death; the controversy ultimately did not lead to a change of sentence, but it demonstrated acts carried out by the legal system that amounts to psychological torture.

Politics has often been a major obstacle in the restriction of Human Rights. In 2014, Dmytro Bulatov[9], was not able to exercise his freedom of speech when he voiced his opinion against then Ukrainian President Viktor Yanukovich; he was kidnapped, tortured and subjected to brutal and cruel treatment, without question Bulatov’s Human Rights were compromised. The UN’s Special Rapporteur[10] investigates such cases and provides potential resolutions, whilst a positive step, their decisions and recommendations are voluntary and non-binding to countries. Considering it is often the countries government that carries out such atrocities in times of political tension, it is not difficult to see the obstacles the UN faces.

Torture whilst in detention of state authority has led to many controversial issues and cases. Guantánamo Bay is a military prison in Cuba run by the United States; opened under President George W. Bush’s administration as part of his war on terror. Over time, it has held 780 detainees. This detention camp has led to significant claims of human rights violation, by way of torture. Jamal Al-Harith a detainee in Guantánamo Bay remembers that the treatment from the camp officers was so poor that the detainees stopped asking for human rights and instead pleaded for ‘animal rights’[11].

Many cases of torture during detention has attempted to be justified on the argument that it was necessary to do so to obtain evidence and information, and although human rights group have pleaded for their rights to be acknowledged, the concerned state relied on state security or ‘ticking time bomb’ scenarios to hide their acts. Although CAT[12] has the authority to investigate individual cases where torture has been reported, they are also prone to many limitations, which makes their findings and decisions voluntary on the state.

During the 2008 election between John McCain and Barack Obama. Obama made the closure of the facility a central principle of his campaign. In January 2009, Obama issued an executive order to close Guantanamo within a year. He also signed a memorandum later that year calling for a prison in Illinois to take in the detainees. However, Congress had other plans, passing legislation banning the transfer of detainees to the United States, effectively blocking the closure of the prison. On February of 2016, President Obama delivered another plan of closure to Congress; he argued that keeping the prison in operation “is contrary to our values”[13], Congressional Republicans quickly denounced the effort. Today, there are 59 detainees currently being held at Guantanamo Bay and that is only likely to increase with President Donald Trump, who pledged amongst other things, “We are keeping (Guantanamo Bay) open … and we’re gonna load it up with some bad dudes, believe me, we’re gonna load it up.” When the President endorses such a prison, it quickly paints an image of the limitations on the Human Rights legislation.

This is not the only instance of the United States of America carrying out torture, during the War on Iraq in 2003, United States Army and the Central Intelligence Agency committed a series of Human Rights violations against detainees in the Abu Ghraib prison in Iraq[14]. These violations included physical and sexual abuse, torture, rape, sodomy, and murder. The Torture memoranda[15], prepared shortly before the 2003 invasion of Iraq by the United States Department of Justice, authorised certain enhanced interrogation techniques, generally held to involve torture of foreign detainees. The memoranda also argued that international humanitarian laws, such as the Geneva Conventions, did not apply to American interrogators overseas. Whilst the U.S. Supreme Court a few years later overturned Bush administration policy, and ruled that Geneva Conventions did apply[16], it didn’t stop the US army in carrying out these acts contrary to various Human Rights Legislation.

 

The Human Rights convention is an evolving area of law and enforcement. Globally many legislations, treaties and charters have been introduced to tackle torture; the enforcement of these treaties is far from completion. The investigating bodies like UNCAT, UDHR, Special Rapporteur are restricted in their powers and their recommendations are often ignored by State governments. In the absence of cooperation from state governments, enforcement of these rights are impaired; for Human Rights to be truly effective, the individual states need to become proactive and work with Human Right bodies to ensure implementation of the legislation.

 

 

 

[1] The End of Human Rights, Costas Douzinas [2000] pg1.

[2] United Nations General Assembly [1975], Article 1

[3] Universal Declaration of Human Rights [1948], Article 5 in particular

[4] Convention on the Rights of the Child [1989]

[5] ‘Are Human Rights Universal?’ World Policy, Vol. XVI, Shashi Tharoor [2000]

[6] Their Lives on The Line, Women Human Rights Defenders Under Attack In Afghanistan, [2015]

[7] Rahendra Prasad v State of Uttar Pradesh, [1979], 3 SCR 78, 130

[8] The Death Row Torture of Warren Hill, Rania Kalek, August 14, 2013

[9] Oksana Grytsenko, http://www.theguardian.com/world/2014/jan/31/ukrainian-protester-kidnapped-tortured-kiev-bulatov

[10] UN Commission on Human Rights (resolution 1985/33) has the authority to appoint Special Rapporteur

[11]Becoming – Animal, Becoming – Detainee: Encountering Human Rights Discourse In Guantánamo, Andrega Zevnik [2011]

[12] Committee Against Torture, commissioned under Article 17 of UNCAT

[13] http://edition.cnn.com/2016/02/23/politics/guantanamo-bay-obama-prison-closure-plan [2016]

[14] Other government agencies. Salon.com. Greenwald, Glenn. [2008]

[15] Memorandum for William J. Haynes IT, General Counsel of the Department of Defense, John Yoo [2003]

[16] Hamdan v. Rumsfeld, 548 U.S. 557 [2006]

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