Asian Human Rights Commission
Footnote: This is the text of a statement by the Asian Human Rights Commission for the International Day against Torture, 26 June 2004. It is followed by a special comment for the countries of South Asia, and the text of a written statement to the United Nations Commission on Human Rights’ sixtieth session this April 2004 by the Asian Legal Resource Centre (ALRC). The full text of all written statements to the Commission can be found on the ALRC website, http://www.alrc.net.
Torture is the most serious obstacle to the advancement of human rights in Asia, whether civil and political rights or economic, social and cultural rights. This is because torture is the prime generator of fear, which inhibits people’s ability to react when other rights are threatened. Where large numbers of people decline to participate in ordinary social affairs because of this fear, there is no social progress.
Torture is violence. So long as torture is used by state agencies, the global fight against violence will not succeed. When the officers of police stations or other government security agencies routinely use torture, they are sending a strong message that the state justifies the use of violence. Under these circumstances, the state cannot take a moral stand against violence among the population. And without a moral position, violence cannot be overcome. Thus, if states in Asia are serious about eliminating violence in their societies, they must begin by ensuring that state agencies do not resort to torture under any circumstances.
Torture is absolutely prohibited under international law. By consenting to the Universal Declaration of Human Rights or by ratifying either the International Covenant on Civil and Political Rights or the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, the state accepts this absolute prohibition. However, very little action has been taken in Asia to see this prohibition implemented. In most countries, torture has not been made a serious crime. Even where it has been made a crime the law has not been enforced to ensure that torturers are punished. There are hardly any independent and credible agencies to investigate complaints of torture. Prosecutors are often unable and unwilling to fully implement the law. Other government departments lack genuine commitment to the principle that torture is absolutely prohibited.
Internationally there have been serious setbacks in the fight against torture. Powerful countries are relegating the absolute prohibition of torture to secondary importance. The use of torture is in some quarters being openly advocated as a means to eradicate terrorism. These attempts to diminish the absolute prohibition of torture are extremely dangerous. They encourage violence, and polarise and undermine sensible discourse aimed at obtaining peace.
Together we must put up a strong defence of the absolute prohibition of torture. We must take firm steps to see torture eradicated, lest we be prepared to suffer the disastrous consequences if the principle is altogether breached.
Victims of torture must be assured of justice. In Asia, we must work together to get all countries to ratify the Convention against Torture, and implement it fully. This means every country of Asia declaring torture a serious crime, and establishing competent and independent investigative agencies to deal with cases of torture. It means prosecutors and judges being educated about the absolute prohibition on torture, and the history of the struggle to eliminate torture, to ensure that they act without reservation to properly and fully enforce the law. It means ensuring that the police and other law enforcement agencies understand that the use of torture in criminal investigations is completely prohibited.
Victims of torture must be given proper care. This means establishing and allocating facilities for their physical and psychological recovery. Such facilities do not exist in most parts of Asia. Prompt and effective action should be taken to improve the quality of available treatment. The professional integrity of doctors is also vital in eradicating torture. Doctors can contribute enormously by providing proper medical certificates upon which legal action against torturers can stand.
Above all, victims of torture need our solidarity. Only with strong solidarity will victims of torture develop the confidence to protest against what they have suffered. Only with strong solidarity will victims of torture be sustained through long struggles to obtain justice in courts. Only with strong solidarity will victims of torture overcome their physical and psychological injuries. Only strong solidarity can rekindle trust in the hearts and minds of persons who have been brutalised by torture. And only strong solidarity can stand up to attempts to undermine the absolute prohibition of torture, upon which our common humanity rests.
Make the SAARC region a torture-free zone!
As the world commemorates the International Day against Torture 2004, the countries of South Asia continue to be known only for their collective record of endemic torture. From the pre-colonial period to the present day, horrendous torture has been a characteristic of law enforcement throughout the region. In virtually every police station of every South Asian country, torture is today routinely practiced. Police stations remain in the dark ages: there is neither investment nor interest to modernise criminal investigation techniques, nor bring policing in South Asia as a whole into the twenty-first century. As a result, torture persists as the most common method of criminal investigation.
As the South Asian Association for Regional Cooperation (SAARC) works to promote common interests and solve common problems, torture should receive the attention of all its member states and peoples. In fact, the foremost item on its agenda for social change should be to outlaw and eradicate torture, without which other ventures such as poverty alleviation will be all but meaningless. Therefore, the SAARC should
a. Make a public declaration proclaiming the SAARC region a torture-free zone.
b. Adopt a SAARC convention against torture, fully incorporating the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
c. Encourage all member countries to ratify the CAT and make torture a serious crime, as required by the Convention, and also sign its Optional Protocol.
d. Establish guidelines for compensating torture victims, and offering adequate medical and psychological care at hospitals and other facilities accessible to torture victims from any of the SAARC member countries.
e. Form expert teams of judges, lawyers, doctors and human rights activists for the purpose of realising the CAT in the region.
f. Encourage all national human rights commissions to develop effective means to implement the CAT.
g. Call for a conference immediately to discuss and devise effective strategies towards the above ends.
The undermining of the absolute prohibition on torture
(Text of a written statement to the United Nations Commission on Human Rights sixtieth session this April 2004 by the Asian Legal Resource Centre)
1. As the Asian Legal Resource Centre first warned during the fifty-ninth session of the Commission (E/CN.4/2003/NGO/146), in recent years the absolute prohibition against torture has been dangerously undermined. In the more developed democracies of the West, particularly in the United States, there have been serious attempts to dilute legal provisions on torture refined by centuries of international jurisprudence. For the United States, this is part of the propaganda war against terrorism. As a result, dictators, military regimes and other ruthlessly violent political groups are now readily justifying their disregard for the absolute prohibition on torture.
2. The argument that torture is necessary and justified has not only corrupted intellectual debate but also has resulted in increased torture throughout the world. Inevitably, extrajudicial killings are also increasing in many countries, justified one way or another, be they “encounter killings” of alleged criminals, killings of purported drug dealers, or killings of “suspected terrorists”
3. When the absolute prohibition of torture is slighted, other principles are undermined: these include the notions of fair trial and independence of the judiciary. It is no surprise that there have been some calls to abolish the Geneva Conventions. Others, such as the Malimath Committee in India, have suggested abandoning established principles of fair trial as a means to deal effectively with increasing crime figures.
4. Behind these disturbing developments is a growth in new notions on punishment. Deterrence as a method of social control, irrespective of the guilt or innocence of the accused, has been revived as a common premise. Another is that law enforcement agencies should not be overburdened with the difficulties associated with proof, but should be liberated from fears of being punished for abuse of authority. Together these amount to an ideological defense of impunity. Principles relating to certainty of guilt and punishment, developed during a centuries-long arduous battle against the draconian powers of investigators and prosecutors, are rapidly evaporating.
5. The Asian Legal Resource Centre wishes to draw the attention of the global human rights community to understand that the very fabric of the values we defend is now under threat. This attack is unprecedented: it is not an attempt to relativise human rights on cultural or other grounds, like those that have come before, but rather a large-scale effort to abandon completely human rights as inconvenient and irrelevant.
6. In the fight against this assault on the foundations of human rights, absolute principles, such as the prohibition on torture, should be openly and strongly defended. All persons concerned with the protection and promotion of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment need to revive debate on the most basic principles it represents. A global campaign in favour of the Convention is now imperative. The defense of the physical integrity of everyone, irrespective of whatever allegations may be made against them, is essential if the whole body of human rights thought is to be reasserted and enriched.