The Case of Torture and the United States

Mahrukh Qazilbash elucidates the universal prohibition against torture and other forms of brutal treatment and draws a contrast between those who subscribe to such prohibitions, particularly the United States, and their less than complimentary domestic behaviour.

There is much debate within the international arena about what exactly comes under the framework of human rights and which rights apply to whom. However, certain rights are universally acknowledged to be jus cogens norms which imply obligations erga omnes (as defined in Article 69 of the VCLT and the Barcelona Traction case, respectively). Article 4 of the ICCPR denotes some non-derogable rights such as an individual’s right to life and the prohibition of torture. This non-derogable prohibition on torture is reinforced further by Common Article 3 of the Geneva Convention and the War Crimes Act which stipulates the rights and treatment of prisoners of war (POW). Moreover, the U.N Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as “severe pain or suffering, whether mental or physical” within its first article – an international convention that the United States has both signed and ratified. Therefore, the “systematic use of torture” in the United States over the past several years is in direct violation of this peremptory norm and showcases the failure of the human rights regime in empowering the individual rather than the state.

Although several governments in the US have skirted around the term torture, they have not shied away from using obvious euphemisms such as President Bush’s “alternative set of procedures” which included “waterboarding (or near-drowning), sleep deprivation, forced standing, stress positions, hypothermia, slapping, light and noise bombardment, and extreme isolation.” Furthermore, institutions such as the American Civil Liberties Union (ACLU) have reported that:

“[D]etainees have been beaten; forced into painful stress positions; threatened with death; sexually humiliated; subjected to racial and religious insults; stripped naked; hooded and blindfolded; exposed to extreme heat and cold; denied food and water; deprived of sleep; isolated for prolonged periods; subjected to mock drownings; and intimidated by dogs.”

This treatment has rightfully been called torture under the definitions provided in the CAT and many detainees have died in US custody after such interrogations. However, the US government maintains that this treatment does not constitute torture under the state’s own narrow definition of the term. It becomes necessary then to ask, how is it possible that the US, a self-described defender of human rights, could violate a non-derogable right such as torture without repercussions? If the international human rights legal system existed with equal empowerment of individuals and states, would such a phenomenon be allowed to occur?

While there was an observable rise in torture in a post-9/11 world, especially under the support of the Bush Administration, as Mayerfeld emphasises, “we expect the law to protect fundamental human rights against bureaucratic zeal, partisan calculations, and shifts in public sentiment.” This erosion of the protection against torture was done through the RUDs that the United States formulated against the ICCPR and the CAT at the time of ratification. This was done in two major steps, firstly “they watered down several treaty obligations, including those regarding the prohibition, prevention, and punishment of torture and other forms of ill-treatment” and secondly, “they prevented U.S. courts from enforcing the treaties’ provisions.” Under these reservations, as Luban and Shue aptly note, the U.S. Congress adopted a “cramped, convoluted, and arbitrary definition of mental pain or suffering, so narrow that few techniques of mental torment qualify as torture under the law.” This meant that unless the treatment of individuals met this narrow definition of torture according to the U.S., they could essentially claim any other treatment was ‘merely’ cruel,  inhuman and degrading treatment or punishment, although those are also very much forbidden under human rights law. Luban and Shue go on to argue that these “restrictions are wrongheaded because they have nothing to do with the basic definition of torture as severe pain or suffering. They also make it nearly impossible to prosecute psychological torture, including the most egregious techniques used in the CIA’s now-shuttered secret prisons and in Guantanamo.”

None of this was done innocently, nor was it a new phenomenon in the history of the U.S. due to the events of September 11, as some would like to suggest. As Rosemann rightly points out, examples such as the “promotion of Major General Geoffrey Miller from commander of the task force in charge of the prison at Guantanamo to head of prison operations in Iraq exhibits not only political continuity but also a personal one.” Furthermore, the legislative record of the United States clearly shows “repeated concerns that unless the definition of mental torture is written narrowly, U.S. law enforcement officials might face accusations of torture.” In fact, several legal loopholes were used not only to avoid accountability but also to keep individuals from accessing courts and other legal protections of their rights. As Jennifer Correale deftly points out, “[v]ictims of human rights abuses often find themselves without remedy because their own governments refuse to provide one and because most international tribunals will not entertain the claims of individuals.”

Here it becomes necessary to take a slight detour to one of the most favoured justifications of torture proponents of the United States have made: the ticking bomb scenario. This hypothetical situation has often been employed to illustrate a set of circumstances in which its advocates believe torture is excusable. This “dreamland”, as Henry Shue calls it is “badly misleading” as the set of circumstances it requires will never come to fruition. However, Shue goes on to state, that even if “the perfect time for torture comes, and we are not prepared to prevent a terroristic catastrophe, we will at least know that we have not sold our souls and we have not brutalized the civilization.” The fact of the matter remains, that the prohibition of torture exists both in human rights treaties such as the CAT and the ICCPR but also under customary international law under the Geneva Conventions as a non-derogable right. If the international human rights regime cannot protect individuals from their most essential human rights being violated by states themselves, it is difficult to believe that human rights empower individuals at all – let alone over the state.

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

Photo Credit: WIKIMEDIA COMMONS

Government Reform and Human Rights in Uzbekistan

Hanif Osman discusses the pace and scope of reform in the country recently named as The Economist’s Country of the Year 2019.

The most populous state of Central Asia has received considerable positive attention in recent months for its economic and political reforms. Uzbekistan was named The Economist magazine’s 2019 Country of the Year, due to new president Shavkat Mirziyoyev’s reforms since coming to power after the death of former leader Islam Karimov in December 2016.[1] These have included working to end the country’s notorious forced labour base in the cotton farming industry, the liberalisation of the largely state-controlled economy, and a more constructive foreign policy.

Indeed, when I travelled in Uzbekistan earlier this year, I encountered an outward-facing country with a vibrant and expanding economy. Visa rules for tourists were very recently relaxed, and the opening of more border posts with neighbouring states facilitated the relatively easy movement of foreigners and locals alike. This was an especially important change for the densely-populated Ferghana Valley, where jagged international borders and enclaves cut through the land, severing family and economic connections. 

However, the current state and trajectory of human rights in Uzbekistan have been far less remarked upon. On the face of it, the country is ‘not free’ according to the latest Freedom in the World report.[2] Criticism of Uzbekistan’s human rights record stems from the country’s authoritarian political system, the restrictions to free speech and the right to protest, the commonplace jailing of political opponents, and torture used in detention facilities. The killing of hundreds of peaceful protestors in Andijan in May 2005 is perhaps the clearest symbol of the government’s repressive nature.[3]

Yet when the UN High Commissioner for Human Rights was granted access to Uzbekistan for the first time in May 2017, he concluded that the new government showed clear intent to reform.[4] This article tracks the positive human rights developments in Uzbekistan in recent years. However, it also identifies many areas of remaining concern, some of which appear so significant as to overall cast a doubt on the prospects for democratisation and a dismantling of the authoritarian regime.

Political opposition and press freedom

Since 2017 around 50 high-profile political prisoners have been released, including human rights activists such as Akzam Turgunov and Fakhriddin Tillayev.[5] Notably, the final two journalists that had been in prison were released in May 2018, which suggests a shift in the government’s attitude to criticism. However, there remains an effective ban on establishing human rights organisations. Furthermore, thousands of political opponents are still imprisoned in Uzbekistan, including scholars, film producers and clerics.[6]

The recent election on 22 December 2019 utilised new methods in the administration of the ballot such as a central voter register and an intensive voter information campaign, though also other methods pertaining to “fundamental freedoms” were ignored.[7] This is because as with the previous election under Mirziyoyev in 2016, it was devoid of real political opposition – the four registered parties declared their support for the president before the vote was even concluded. [8] In fact, these parties are “effectively pro-government” according to Freedom House.[9] Genuine opposition parties, such as the Erk Democratic Party and its exiled leader Muhammad Solih, remain banned.[10]

However, the December election did attract more engagement from ordinary Uzbekistanis. Debates between party candidates were televised, and UN and OSCE monitors could observe the electoral process. Sherzodkhan Kudratkhojaev of the Central Elections Committee reported to Al Jazeera that “there’s a wide spectrum of issues being discussed, and the political parties have finally started to polemise with one another.”[11] Meanwhile, Akhmed Rahmanov, a research fellow at IPSE (Institut Prospective & Sécurité en Europe), offered a more pessimistic view, commenting that “people… realise that this election is not going to change much. There is no real opposition, no real competition and the Parliament doesn’t have much power”.[12] This comment symbolises the concern about the recent positive developments in Uzbekistan: the new president wishes to create the impression of greater political participation, whilst not actually achieving it.

In terms of press freedom, the government still maintains a firm grip of control on the sources of media available to citizens, and the internet is censored. One example is the Facebook group ‘Qorqmaymiz’, a group which numbers some 14,000 members and which, due to its criticism of the government, is illegal.[13] Other publications which are critical of the authorities remain blocked, and the rest of the media performs its own self-censorship. Government officials respond harshly to critical reporting, by arresting the authors of such material on false charges. For instance, in 2017 Nurullo Otakhonov, the author of a critical book of formerpresident Islam Karimov, was arrested on terrorism charges. Despite being released, he remained under investigation for other ‘constitutional’ offences.[14]

Torture and detention

In January 2018 the head of Uzbekistan’s National Security Service (SNB) was dismissed, and later that year five of the most senior members of the SNB were sentenced to prison for torture charges. Then, the law was changed so that the police and security services could restrain a person for a maximum of 48 hours, reduced from 72 hours previously. Finally, in November 2018 President Mirziyoyev issued a decree which prohibited the use of torture in gaining confessions and their admission as evidence in court.[15]

However, in December 2019 Human Rights Watch reported that “widespread, routine torture and ill-treatment” remain.[16] According to Hugh Williamson, Europe and Central Asia director at HRW, “the key pillars of the country’s abusive, authoritarian system are still in place”.[17] Since Mirzyoyev’s ascent to power in 2016, brutal torture methods have continually been reported. Indeed, reports to the Prosecutor’s office increased tenfold from 2017 to 2018, according to the United Nations Committee Against Torture.[18] Overall, the SNB remains incredibly powerful.

The use of forced labour in cotton fields continues during harvest periods, despite top-level government rhetoric to condemn it. It is local governmental authorities that apply pressure to civil servants, including medical professionals, teachers and students, to work in the fields. Amnesty International reported that monitoring of this work in the cotton fields is by human rights activists often prevented by police, using intimidation and arbitrary detention.[19] For example, in March 2018, police detained human rights defender Elena Urlaeva for one month to prevent her from speaking to the International Labour Organisation in Tashkent about the topic.[20]

Indeed, the government has failed to take adequate steps to end the practice, such as appointing an independent committee to monitor the situation across the country. It is additionally unclear whether any genuine condemnation of those local authorities’ actions in promoting forced labour has arisen from the central government; though on the facts, it appears unlikely.

Equality

In time for the December 2019 election, a new electoral code was passed – which included the provision that 30% of party candidates must be women, and lifted restrictions on those with criminal proceedings or convictions.[21]  Homosexuality remains a criminal act in Uzbekistan, and transgender and homosexual people are subject to persecution.[22]

Positively, some gender-related legislation has been passed under the leadership of the new president. In April a draft law was publishing aiming to prevent sex discrimination by protecting women’s rights and setting penalties for breaching them. Two months before, President Mirziyoyev signed a decree purporting to increase women’s participating in state affairs.[23]  

However, Uzbekistan remains one of the few countries in the world lacking any domestic violence legislation. In 2018, draft legislation on preventing domestic violence was published, though it has not progressed further.[24] Nonetheless, recently the Women’s Committee of Uzbekistan has established a hotline and several shelters for sufferers of violence.[25] In summary, there is clearly a vast amount of work required to improve the rights of women and minorities in Uzbekistan, but the direction of travel is positive.

Judicial Reform

In February 2018 the government announced it was committed to reforming the judiciary, including ensuring its independence as an institution, protecting citizens’ rights, and increasing its authority. Despite this, Freedom House reports that the judiciary remains dependent upon the executive government’s support, and corruption appears to be widespread.[26]

Positively, Mr Diego Garcia Sayán, UN Special Rapporteur on the Independence of Judges and Lawyers, reported after his September 2019 visit to the country that “An increase in the number of acquittals in criminal proceedings demonstrates a gradual move from a system in which the autonomy of judges was limited to rubber-stamping decisions by the prosecutor”.[27] Indeed, from a total of just six acquittals recorded in 2016, by 2018 the figure stood at 867 acquittals.[28]

However Mr Sayán concluded that “substantial threats against judicial independence and the rule of law remain”.[29] These include defence lawyers struggling to access their clients, being the victim of threats, a severe lack of access to legal advice in the first place, and a limited separation of powers between the executive and judiciary.[30] Improvements such as better training of judges, establishing a Supreme Judicial Council as a constitutional body to insulate the judiciary from political pressure, and publishing court decisions on the Supreme Court’s website have gone some way to improving the judicial system, but significant issues clearly remain.[31]

Conclusion

Overall Uzbekistan’s human rights record has improved in recent years, though there remain significant issues. The release of high-profile government opponents, the reduction in cases of brutal torture, and the new leadership’s rhetoric about legislative and judicial changes certainly point in the right direction. The slight opening up of political debate and reduced fear of journalists being imprisoned also marks a positive development.

However, Uzbekistan retains many elements of its formerly authoritarian system. The lack of a genuinely competitive political system, which would present a real public challenge to the leader’s power, was evident in the most recent election at the end of 2019. Civil society remains weak without the legal ability of groups to protest and document government abuses of power. Furthermore, law enforcement authorities remain all-powerful, and torture is reputed to still be “widespread”, according to Human Rights Watch.[32] The judiciary is not independent, censorship of the media remains, and forced labour is still a fact of life in some of Uzbekistan’s cotton-producing regions.

Uzbekistan will continue to open to the world, but without continuous improvement to its human rights record, the extent of its development is brought into question. In the coming years, the interplay in Uzbekistan between human rights on the one hand, and economic development on the other, will be closely followed. A key question remains of this opaque regime: does President Mirziyoyev desire to create genuine political engagement, or more just the acquiescence of the population? Many commentators fear the latter. If the government were to continue its positive trajectory towards improving its human rights record and if – although it appears doubtful – genuine political participation is desired and indeed fostered by the Mirziyoyev government, then Uzbekistan’s already positive path towards success would be secured.

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[1] https://www.economist.com/leaders/2019/12/21/which-nation-improved-the-most-in-2019

[2] https://freedomhouse.org/report/freedom-world/2019/uzbekistan

[3] http://news.bbc.co.uk/1/hi/world/asia-pacific/4550845.stm

[4] https://www.hrw.org/news/2017/05/13/uzbekistan-un-official-calls-rights-reforms

[5] https://www.bbc.co.uk/news/world-asia-50835845

[6] https://www.hrw.org/world-report/2019/country-chapters/uzbekistan

[7] https://www.economist.com/asia/2019/12/18/uzbekistan-holds-a-semi-serious-election

[8] https://www.dw.com/en/uzbekistan-set-to-confirm-new-parliament-loyal-to-reformist-president-shavkat-mirziyoyev/a-51769993

[9] https://freedomhouse.org/report/freedom-world/2019/uzbekistan

[10] https://www.bbc.co.uk/news/world-asia-50835845

[11] https://www.aljazeera.com/news/2019/12/uzbekistan-set-hold-parliamentary-elections-lacking-opposition-191221085111732.html

[12] Ibid.

[13] https://webcertain.com/site/knowhowAmp/Internet-Censorship-In-Uzbekistan/kb1206

[14] https://www.refworld.org/docid/5b3cc25f26.html

[15] https://www.amnesty.org/en/countries/europe-and-central-asia/uzbekistan/report-uzbekistan/

[16] https://www.hrw.org/news/2019/12/09/uzbekistan-torture-widespread-routine

[17] Ibid.

[18] Ibid.

[19] https://www.amnesty.org/en/countries/europe-and-central-asia/uzbekistan/report-uzbekistan/

[20] Ibid.

[21] https://www.aljazeera.com/news/2019/12/uzbekistan-set-hold-parliamentary-elections-lacking-opposition-191221085111732.html

[22] https://www.amnesty.org/en/countries/europe-and-central-asia/uzbekistan/report-uzbekistan/

[23] https://www.opendemocracy.net/en/odr/uzbekistan-gender-ineaulity-violence-en/

[24] Ibid.

[25] Ibid.

[26] https://www.refworld.org/docid/5b3cc25f26.html

[27] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25043&LangID=E

[28] Ibid.

[29] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25056&LangID=E

[30] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25043&LangID=E

[31] Ibid.

[32] https://www.hrw.org/news/2019/12/09/uzbekistan-torture-widespread-routine

Image Credit: Ulugh Beg Madrasa, Samarkand, by Hanif Osman

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

Current issues and possible solutions in the fight against torture

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.

North Korea: Will the human rights violations ever stop?

North Korea’s leadership is committing systematic and appalling human rights abuses against its own citizens on a scale unparalleled in the modern world, including crimes against humanity, a United Nations report has concluded.

The UN’s commission of inquiry on human rights in North Korea, established by the UN Human Rights Council in March 2013 has been gathering evidence for almost a year. In an unprecedented series of public testimonies from more than 320 witnesses around the world, including former inmates of North Korea’s notorious political prison camps, the report details harrowing accounts of widespread torture, deliberate starvation, mass executions and arbitrary imprisonment.

Testimony given to the inquiry includes an account of a woman forced to drown her own baby, children imprisoned from birth and starved, and families tortured for watching a foreign soap opera.

“These are not mere excesses of the State,” the report read, “they are essential components of a political system that has moved far from the ideals on which it claims to be founded. The gravity, scale, and nature of these violations reveal a State that does not have any parallel in the contemporary world.”

“In the political prison camps of the Democratic People’s Republic of Korea, the inmate population has been gradually eliminated through deliberate starvations, forced labour, executions, torture, rape and the denial of reproductive rights enforced through punishment, forced abortion and infanticide,” the report said. However, up to 120,000 people are estimated to still be detained in prison camps.

The report has likened the ‘unspeakable atrocities’ as being ‘strikingly similar’ to Nazi Germany and has called on the UN Security Council to refer the matter to the International Criminal Court (ICC). The chair of the three person commission, Michael Kirby has written a personal letter to warn North Korea’s leader, Kim Jong-Un that he could face trial at the ICC for his personal culpability as head of state and leader of the military.

North Korea, who refused to participate in the investigation or give permission for the commission to visit the country, has unsurprisingly rejected the findings. In a statement sent to Reuters, North Korea called the findings ‘a product of politicisation of human rights on the part of the EU and Japan, in alliance with US hostile policy’. It reiterated that it had no charges to answer and that it would ‘strongly respond’ to any attempt to bring about regime change in the country.

After years of flouting international pressure over its nuclear programme, it is unclear what impact, if any, the UN report will have on North Korea’s leadership and what the international response will be. The recommendation of the report to refer the situation in North Korea to the ICC is neither helpful nor likely to be successful. While North Korea is not a signatory to the treaty that created the ICC, the UN Security Council can extend the court’s remit in exceptional cases. The Security Council will have to unanimously approve the request for any action at the ICC. That may be unlikely as China and Russia, two of five veto-wielding members, have consistently blocked punitive moves against North Korea’s human rights record.

China is widely seen as having more leverage over North Korea than any other country, not least because it is a vital source of resources. China supplies its neighbour with virtually all of its fuel needs and some 80 per cent of all its imports. Despite its considerable influence over North Korea, a change in China’s attitude is hardly likely to be forthcoming if its response to the UN report is to serve as an indication. It dismissed the UN’s criticism of its policy of forcibly repatriating North Koreans despite widespread evidence that they face mistreatment and detention on their return and it further rejected the findings of the report.

According to Reuters, the Chinese Foreign Ministry spokeswoman Hua Chunying stated: “Of course we cannot accept this unreasonable criticism. We believe that politicising human rights issues is not conducive towards improving a country’s human rights. We believe that taking human rights issues to the International Criminal Court is not helpful to improving a country’s human rights situation.”

There is little prospect for change with internal discontent in North Korea itself. There is no way for people to organise as there is no institution other than the leadership and freedom of thought, expression and belief is almost non-existent. State surveillance permeates every aspect of the lives of its citizens and any perceived ‘anti-State activities or expressions of dissent’ are harshly punished. In addition, the regime operates an indoctrination campaign that takes root from childhood which propagates an official personality cult and helps manufacture total obedience to its supreme leader.

The UN report on North Korea will be officially presented to the UN Human Rights Council in March 2014 where proposals on what action to take will be further debated and discussed. It is highly improbable that an ICC investigation would make it through the UN Security Council, and even if it did it is difficult to see Kim Jong-Un being tried. The UN report succeeds in bringing to the attention of the international community the sheer scale of brutality and appalling human rights abuses in North Korea for the first time. However, the report confirms what many had already suspected and in the absence of support from China it is difficult not to be sceptical about what meaningful change will occur in North Korea.

By Foridha Yasmin