Online Encyclopedia
Torture
Torture is the infliction of severe physical or psychological pain as a means of cruelty, intimidation, punishment, for the extraction of a confession or information or simply for the entertainment of the perpetrator.
Signatories of the Third Geneva Convention agree not to commit torture under certain circumstances in wartime, while signatories of the UN Convention Against Torture agree to not commit certain specific forms of torture. It is a severe violation of human rights. These conventions and agreements notwithstanding, torture remains in use throughout the world in several contexts, through various definitions, restrictions on judicial jurisdiction and plausible deniability. [1] http://www.nytimes.com/2004/05/23/opinion/23HOCH.html?ex=1086315207&ei=1&en=dd8a
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Secrecy / publicity
Sometimes torture is and was carried on in secret, while on other occasions it (or evidence of it) is public, in order to induce fear into a population. Some professional torturers use techniques such as electrical shock, asphyxiation, heat, cold, noise, and sleep deprivation which leave little evidence, although in other contexts torture frequently results in horrific mutilation or death. Evidence of torture also comes from testimony of witnesses and from breaches of discipline as for example, the untrained and indiscreet amateur photographers of Abu Ghraib prison.
Historical use of judicial torture
Persons under torture, with rare exceptions (like F. F. E. Yeo-Thomas, G.C.), will say or do anything to escape the situation including signing confessions to serious crimes they had nothing to do with and implicating other innocent people who may be tortured to the same effect in turn. The acceptance of confessions without collaborating evidence as sufficient evidence for conviction of a crime is in practice an invitation to the use of torture to obtain them. Despite this, torture was used by many governments and countries in the past; in the Middle Ages especially and up into the 18th century, torture was considered a legitimate way to obtain testimonies and confessions from suspects for use in judicial inquiries and trials.
In the Roman Republic, for example, a slave's testimony was admissible only if it was extracted by torture, on the assumption that they could not be trusted to reveal the truth voluntarily.
In much of Europe, medieval and early modern courts of "justice" freely inflicted torture, depending on the accused's crime and the social status of the suspect. Torture in the Medieval Inquisition was used starting in 1252. The torture methods used by inquisitors were mild compared to secular courts, as they were forbidden to use methods that resulted in bloodshed, mutilation or death. One of the most common forms of medieval inquisition torture was known as strappado. The hands were bound behind the back with a rope, and the accused was suspended this way, dislocating the joints painfully in both arms. Weights could be added to the legs dislocating those joints as well. Other torture methods could included the rack (stretching the victim’s joints to breaking point), the thumbscrew, the boot (crushing the foot and leg), water (massive quantities of water forcibly ingested), and the medieval red-hot pincers, although it was technically against church policy to mutilate a persons body. If stronger methods were needed, or death, the person was handed over to the secular authorities who were not bound by any restrictions.
Torture was abolished in England about 1640, in Scotland in 1708, in Prussia in 1740, in France in 1789 (one early measure of the French revolution), in Russia in 1801. [2] http://www.ccel.org/s/schaff/hcc4/htm/i.vi.viii.htm [3] http://www.tiscali.co.uk/reference/encyclopaedia/hutchinson/m0013250.html
Torture in recent times
Recent times in the context of this article is from December 10, 1948 when the Universal Declaration of Human Rights was adopted by the United Nations General Assembly as Article 5 states "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".
Treaties
The use of torture is regulated by many treaty obligations two major world wide treaties are United Nations Convention Against Torture and the Geneva Conventions.
United Nations Convention Against Torture
The treaty the United Nations Convention Against Torture(UNCAT) "entry into force [was] June 26 1987". Its full title is "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment". It has 33 articles of which for this Wikipedia article the first two are the most relevant along with article 16 paragraph 1.
- Article 1.
- 1. Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
- 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
- Article 2.
- 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
- 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
- 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
...
- Article 16
- 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
...
At the moment this treaty has been signed by about half the countries in the world.
The Scope of the Convention
There has been some debate at various times whether there are forms of physical pressure which do not fulfil the criteria laid down in the convention and therefore do not constute torture and/or whether there are situations or territries where the convention would not apply to officials of a signatory state. This debate is ongoing.
Geneva Conventions
In the case of war the different Geneva Conventions protect different categories of people who fall into the hands of an enemy. The Third Geneva Convention (GCIII) covers Prisoner of War. If a combatant becomes a Prisoners of War in an international war, then "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind." (GCIII Art 17). If there is any doubt as to their status then they must be treated as a POW until "their status has been determined by a competent tribunal(GCIII Art 5) to be that of a none-combatant or an unlawful combatant in which case they are covered by Fourth Geneva Convention (GCIV). In the case of a civil war there is a minimum requirement stated, in Article 3, that "Persons taking no active part in the hostilities, including members of armed forces who have laid down down their arms... shall in all circumstances be treated humanely" and that no "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" be applied, as one of a minimum provisions.
If a civilian falls into the hands of an enemy in an international conflict, they have certain rights granted to them under GCIV among which is protection from " murder, torture, corporal punishments, mutilation and medical or scientific experiments..., but also to any other measures of brutality whether applied by civilian or military agents.(Article 32) In the case of a civil war the same minimum protections are granted as described for GCIII above.
However given the nature of international armed conflict in the 2000s, there is an important group who are not covered by the GCIV. That is "Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are." (article 4). Which means that as nearly every state has diplomatic recognition of every other state, most none native civilians in a war zone and in particular unlawful combatant, who are citizens of a neutral state, are not covered by GCIV.
The state holding the detainees can also invoke Article 5 of GCIV, the first paragraph of which states:
- Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
In the traditional conflicts, where the armies fight in clearly distinguishable uniforms and the civilians are all natives of a region then the Geneva Conventions III and IV give people a lot of protection from torture if they fall into the hands of an enemy. But in a conflict like the US "War on Terrorism" many unlawful combatants have little or no protection under the Geneva Conventions, because they are either excluded by their nationality or they are deemed to be so dangerous that the US can invoke Article 5 GCIV. The only protection that most unlawful combatants have under the Geneva Conventions is that until "their status has been determined by a competent tribunal"(GCIII Art 5), they should be treated as POWs.
Other Conventions
During the Cold War in Europe a treaty called European Convention on Human Rights was signed. The treaty was based on the UDHR. It the included the provision for a court to interpret the treaty and Article 3 ? "Prohibition of torture" stated "No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
In 1978 the court ruled that the five techniques of "sensory deprivation" were not torture but were "inhuman or degrading treatment". See Accusations of use of torture by United Kingdom for details. This case was 9 years before the UNCAT came into force and had an influence on States thinking about what constitutes torture ever since.
Domestic law
Countries which have signed the "United Nations Convention Against Torture", have a treaty obligation to include the provisions into domestic law. The laws of many countries therefore formally prohibit torture. However, such de jure legal provisions are by no means a proof that, de facto, the signatory country does not use torture.
To prevent torture, many legal systems have a right against self-incrimination or explicitly prohibit undue force when dealing with suspects.
- The United States includes this right in the fifth amendment to its constitution, which in turn serves as the basis of the Miranda warning that is issued to individuals upon their arrest. Additionally, the US Constitution's eighth amendment expressly forbids the use of "cruel and unusual punishments", which is widely interpreted as a prohibition of the use of torture.
- The French 1789 Declaration of the Rights of Man and of the Citizen, of constitutional value, prohibits submitting suspects to any hardship not necessary to secure his person. Statute law explicitly makes torture a crime. In addition, statute law prohibits the police or justice from interrogating suspects under oath.
The use of torture
- See uses of torture in recent times for recent cases, alleged or established.
Torture remains a frequent method of repression in totalitarian regimes, terrorist organizations and organized crime. Even in Western democratic societies, the police sometimes resort to torture and are frequently backed-up by sympathizing politicians.
In undemocratic regimes, torture is often used to extract confessions from political dissenters, so that they admit to being spies or conspirators, probably manipulated by some foreign country. Most notably, such a dynamic of forced confessions marked the justice system of the Soviet Union (thoroughly described in Aleksandr Solzhenitsyn's Gulag Archipelago).
However, the use of torture is by no means restricted to totalitarian and dictatorial regimes. Established democracies can also use torture, albeit illegally, for instance when it is estimated that national security is more important than the rights of suspects.
In 2003 and 2004 there was a lot of controversy over the "stress and duress" methods sanctioned by the U.S. Executive branch of government at Cabinet level, (that in 1978 in were ruled by ECHR to be inhuman and degrading treatment when used by the UK in the early 1970s in Northern Ireland) are used in the U.S.'s war on terrorism. [4] http://www.washingtonpost.com/wp-dyn/articles/A56753-2004Jun20.html?referrer=ema
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Opposition to the use of torture and the supervision of anti-torture treaties
The use of torture has been criticized not only on humanitarian and moral grounds, but on the grounds that evidence extracted by torture tends to be extremely unreliable and that the use of torture corrupts institutions which tolerate it. Torture victims have often reported that the purpose is as much to force acquiescence on an enemy as it is to gain information.
Human rights organizations, such as Amnesty International, are actively involved in working to stop the use of torture throughout the world.