By Justice K. G. Balakrishnan
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” states Article 5 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948.
The prohibition of torture and other forms of ill-treatment has a special status in the international protection of human rights. It is included in a number of international and regional treaties and also forms part of customary international law, binding all States. The prohibition of torture is absolute and can never be justified in any circumstance. This prohibition is non-derogable, which means that a State is not permitted to temporarily limit the prohibition on torture under any circumstance whatsoever, whether a state of war, internal political instability or any other public emergency. Further, the prohibition of torture is also recognized as a peremptory norm of international law, or jus cogens. In other words, it overrides any inconsistent provision in another treaty or customary law.
Considering the particular importance placed on the prohibition of torture, the traditional obligations of States to respect, to protect and to fulfill human rights is complemented by a further obligation to prevent torture and other forms of ill-treatment. States are required to take positive measures to prevent its occurrence. “In the case of torture, the requirement that States expeditiously institute national implementing measures is an integral part of the international obligation to prohibit this practice.”
Torture is probably one of the most common forms of human rights violations. Those held in detention frequently experience torture in many different forms. But it can be prevented. Human rights and other social justice organizations have a critical role to play in preventing torture in places of detention. But to do so effectively, a clear understanding of what is torture and the mechanisms available to prevent it is necessary. Further, the aim of the testimony is to facilitate integration of traumatic experiences and restoration of self-esteem. It is also useful as it channels the victims into socially constructive actions like production of a document that could be used as indictment against the offenders. Testimonial campaign plays crucial role in fight for justice and helps the victims of casteist aggression, police torture, communal violence or any other kind of injustice, to come out of the trauma.
Torture, according to the 1984 United Nations Convention Against Torture (an advisory measure of the UN General Assembly) is: …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 intimidation 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. — UN Convention Against Torture
This definition was restricted to apply only to nations and to government-sponsored torture and clearly limits the torture to that perpetrated, directly or indirectly, by those acting in an official capacity. It appears to exclude:
1. torture perpetrated by gangs, hate groups, rebels or terrorists who ignore national or international mandates;
2. random violence during war; and
3. punishment allowed by national laws, even if the punishment uses techniques similar to those used by torturers such as mutilation or whipping when practiced as lawful punishment. Some professionals in the torture rehabilitation field believe that this definition is too restrictive and that the definition of politically motivated torture should be broadened to include all acts of organized violence.
In 1986, the World Health Organization working group introduced the concept of organized violence, which was defined as:
“The inter-human infliction of significant, avoidable pain and suffering by an organized group according to a declared or implied strategy and/or system of ideas and attitudes. It comprises any violent action that is unacceptable by general human standards, and relates to the victims’ feelings. Organized violence includes “torture, cruel inhuman or degrading treatment or punishment” as in Article 5 of the United Nations Universal Declaration of Human Rights (1984). Imprisonment without trial, mock executions, hostage-taking, or any other form of violent deprivation of liberty, also fall under the heading of organized violence.”
An even broader definition was used in the 1975 Declaration of Tokyo regarding the participation of medical professionals in acts of torture:
For the purpose of this Declaration, torture is defined as the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason.
This definition includes torture as part of domestic violence or ritualistic abuse, as well as in criminal activities. Since 1973 Amnesty International has adopted the simplest, broadest definition of torture:
“Torture is the systematic and deliberate infliction of acute pain by one person on another, or on a third person, in order to accomplish the purpose of the former against the will of the latter.”
In order to effectively address the root causes of torture and other forms of ill-treatment, a direct preventive strategy should begin with a thorough analysis of risk factors (those conditions that increase the possibility of torture occurring).
The general political environment is an important factor to consider, as a lack of political will to prohibit torture, a lack of openness of governance, a lack of respect for the rule of law and high levels of corruption can all increase the risk of torture. The same is true for the social and cultural environment. Where there is a culture of violence, or high public support to “get tough” on crime, the risk of torture occurring is also increased.
The national legal framework should also be analyzed. In countries where torture is prohibited in the Constitution and in law, as well as being a specific offence under the criminal code the risk of torture might be lower than in countries where this is not the case. The analysis should also focus on the rules and regulations that apply to places where persons are deprived of their liberty, as well as the existence of appropriate legal safeguards. In addition, the way in which the legal framework is implemented in practice should be closely analysed.
The organization and functioning of the criminal justice system is another important factor to consider. The level of independence of the judiciary, as well as the level of reliance on confessions in the criminal justice system, will have a direct influence on the risk of torture. As the risk of torture is higher during the initial period of detention, particular attention should be paid to law enforcement authorities. In this regard, the institutional culture, the role and functioning of the police and recruitment and training processes for officers can all positively or negatively influence the risk of torture. Finally, the overall institutional environment should be included in the analysis. The level of accountability and transparency of the authorities, the existence of public policies regarding crime prevention and the effectiveness of complaints mechanisms are factors that can reduce the risk of torture, along with effective independent external actors, such as NHRIs and civil society organizations.
Situations of risk
Any situation where a person is deprived of his or her liberty and when there is an imbalance of power, in which one person is totally dependent on another, constitutes a situation of risk. The risk of being tortured or ill-treated is higher at certain time during the period of a person’s detention, such as the initial period of arrest and police custody, as well as during transfer from one place of detention to another. Situations where persons deprived of their liberty are held out of contact with others can also increase the risk of torture or ill-treatment, in particular incommunicado detention or solitary confinement.
The risk of torture and other forms of ill-treatment exists within any closed facility; not only prisons and police stations but also, for example, psychiatric facilities, juvenile detention centres, immigration detention centres and transit zones in international ports.
It can be difficult to identify persons or groups who are at greater risk of torture and ill-treatment, as this can vary significantly according to the national context. In fact, any person could potentially be at risk. In general, however, vulnerable and disadvantaged groups within society – such as minority groups (racial, ethnic, religious or linguistic), women, minors, migrants, people with disabilities, the homeless and the poor – commonly face a higher risk of torture and ill-treatment.
An effective preventive strategy requires a certain level of political will to combat torture, which is publicly stated and able to be monitored. In an Environment where torture is systematically used to silence political opposition, prevention initiatives are likely to fail or be used for political propaganda.
It is important to stress that no State is immune from the risk of torture and ill-treatment. As a result, there is always a need to be vigilant and to develop and implement effective preventive strategies.
Torture of innocent people
One well documented effect of torture is that its victims will say or do anything to escape the situation, including untrue “confessions” and implication of other without genuine knowledge, who may well then be tortured in turn. That information may have been extracted from the Birmingham Six through the use of police beatings was counterproductive because it made the convictions unsound as the confessions were worthless. There are rare exceptions, such as Admiral James Stockdale, Medal of Honor recipient, who refused to provide information under torture.
Before the emergence of modern policing, torture was an important aspect of policing and the use of it was openly sanctioned and acknowledged by the authority. The Economist magazine proposed that one of the reasons torture endures is that torture does indeed work in some instances to extract information/confession, if those who are being tortured are indeed guilty. Depending on the culture, torture has at times been carried on in silence (official denial), semi-silence (known but not spoken about), or openly acknowledged in public (to instill fear and obedience).
In the 21st century, even when States sanction their interrogation methods, torturers often work outside the law. For this reason, some prefer methods that, while unpleasant, leave victims alive and unmarked. A victim with no visible damage may lack credibility when telling tales of torture, whereas a person missing fingernails or eyes can easily prove claims of torture. Mental torture, however can leave scars just as deep and long-lasting as physical torture. Professional torturers in some countries have used 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. However the most common and prevalent form of torture worldwide in both developed and under-developed countries is beating.
Effects of torture
The consequences of torture reach far beyond immediate pain. Many victims suffer from post-traumatic stress disorder (PTSD), which includes symptoms such as flashbacks (or intrusive thoughts), severe anxiety, insomnia, nightmares, depression and memory lapses, Torture victims often feel guilt and shame triggered by the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. All such symptoms are normal human responses to abnormal and inhuman treatment.
Organizations like the Freedom from Torture and the Center for Victims of Torture try to help survivors of torture obtain medical treatment and to gain forensic medical evidence to obtain political asylum in a safe country and/or to prosecute the perpetrators.
Torture is often difficult to prove, particularly when some time has passed between the event and a medical examination, or when the torturers are immune from prosecution. Many torturers around the world use methods designed to have maximum psychological impact while leaving only minimal physical traces. Medical and Human Rights Organizations worldwide have collaborated to produce the Istanbul Protocol, a document designed to common torture methods, consequences of torture, and medico-legal examination techniques. Typically deaths due to torture are shown in an autopsy as being due to “natural causes” like heart attach, inflammation, or embolism due to extreme stress
For survivors, torture often leads to lasting mental and physical health problems.
Physical problems can be wide-ranging, e.g. sexually transmitted diseases, musculoskeletal problems, brain injury, post-traumatic epilepsy and dementia or chronic pain syndromes.
Mental health problems are equally wide-ranging; common are post-traumatic stress disorder, depression and anxiety disorder. Psychic deadness, erasure of inter subjectivity, refusal of meaning-making, perversion of agency, and an inability to bear desire constitute the core features of the post-traumatic psychic landscape of torture.
The most terrible, intractable, legacy of torture is the killing of desire – that is, of curiosity, of the impulse for connection and meaning-making, of the capacity for mutuality, of the tolerance for ambiguity and ambivalence. For these patients, to know another mind is unbearable. To connect with another is irrelevant. They are entrapped in what was born(e) during their trauma, as they perpetuate the erasure of meaning, reenact the dynamics of annihilation through sadomasochistic, narcissistic, paranoid, or self-deadening modes of relating, and mobilize their agency toward warding off mutuality, goodness, hope and connection. In brief, they live to prove death. And it is this perversion of agency and desire that constitutes the deepest post-traumatic injury, and the most invisible and pernicious of human-rights violations.
Psychiatric treatment of torture-related medical problems might require a wide range of expertise and often specialized experience.
Fighting torture – A multi dimensional issue
There is no impartial mechanism for receiving complaints against torture. The complaints must be made to police authorities themselves. The National Commission for Police Reforms many years ago recommended that police in India should be made independent. However, the absence of political will has meant that these attempts have failed.
Torture and fabrication of cases are closely linked. In attempting to save offenders for obvious reasons, the police implicate innocent people and impose any amount of cruelty and torture on them until a ‘confession’ is extracted.
The prosecution system at time protects the perpetrators. Prosecutors should be independent, competent, and appointed through a judicious process to scrupulously uphold the cherished values enshrined in statutes.
In the present criminal justice system in India, the victims or complainants have no decisive role in seeking redress. Everything depends on the mercy of the investigating officer and the state prosecutor, who are often subject to manipulations and malpractice. Therefore, the de facto complainants or victims, if they are resourceful and confident, should be allowed to appoint their own lawyers to conduct prosecution on their behalf.
India not having ratified the Convention against Torture, its citizens do not have the opportunity to find recourse in remedies that are available under international law. Indian practices with respect to torture do not come under international scrutiny. Access to the UN Committee against Torture, and other mechanisms, is effectively denied people living in the largest democracy in the world. Since the country has also not signed the Optional Protocol to the International Covenant on Civil and Political Rights, its citizens also do not have the right to make individual complaints to the UN Human Rights Committee. The victims are trapped with the local system, which in every aspect militates against their rights. Many victims conclude that a justice system accessible to the poor of the land does not exist at all.
Despite its many human rights groups, an effective and powerful campaign for the elimination of torture has yet to be developed in India. If we fail to protect ourselves from torture, which is the basis for all other fundamental rights, we will not be able to vindicate any other rights.
The concept of Human Rights Courts needs to be revamped and re-envisaged so that an effective mechanism can be introduced. Judges who sit in such courts need to have a through knowledge of human rights law and should be endowed with a deep sense of the sublime supremacy of human life over all else.
The early ratification of the Convention against Torture is imperative if we wish to defend the human rights of torture victims. It is mandatory for any attempt at reforms in the police system as an effective mechanism for law enforcement and administration of justice.
Meanwhile, it is highly necessary to document torture cases in a meticulous way. The lack of proper documentation only permits the unfettered continuance of barbaric methods of torture and acquittal of the culprits. Had there been proper documentation, it would not have been possible to hide the colossal and devastating atrocities of the police, whose constitutional mandate is to protect the people. NGOs should undertake scientific and systematic documentation of torture and follow-up on it.
Modern communication systems offer tremendous opportunities for victims of torture to expose it to the rest of the world. Urgent Appeals have been quite successful at coordinating and combining domestic and international efforts to resist this atrocious encroachment on human rights. Hence human rights defenders and activists should be equipped and conversant with what information technology offers for the promotion of human rights activity anywhere in the world, less expensively and with greater efficiency.
The development of a comprehensive strategy for the prevention of torture and other ill-treatment requires an integrated approach composed of three broad, interrelated elements: legal framework, public policies and shared conceptions of best practice for prohibiting and preventing torture and other ill-treatment that is implemented by actors (e.g. judges and the police) relevant to efforts to prevent torture.
Implementation of the legal framework
Effective implementation requires practical measures to be taken on a range of levels to ensure that national laws regarding torture and ill-treatment are respected in practice.
Training and education
The different actors involved in implementing the legal framework, and in particular those within the criminal justice system (such as law enforcement officials, judges and detaining authorities), will require proper training – both initial and ongoing – regarding the normative framework and the development of operational practices that respect these norms.
Procedural safeguards should be put in place and operate as intended, in particular for persons deprived of their liberty. This could include ensuring that all registers in places of detention are properly maintained and that there is a regular review of police codes of conducts.
Investigation and punishment
Allegations of torture must be promptly, impartially and effectively investigated, even in the absence of a formal complaint, and “the investigation must seek both to determine the nature and circumstances of the alleged acts and to establish the identity of any person who might be involved.” Any breach of the law must be appropriately sanctioned. When this does not occur, a culture of impunity develops which can undermine both the force of the law and its implementation.
Taking action to tackle impunity is even more important in relation to torture and ill-treatment, as it is absolutely prohibited under all circumstances. The following actions may be taken:
Strengthening the independence of the judiciary
Establishing effective and accessible complaints mechanisms
Ensuring access to free legal aid and legal assistance
Promptly and effectively investigating allegations of torture or ill-treatment
Ensuring those who breach the law are punished
Reparation for victims
Victims of torture and ill-treatment should be provided with full and effective reparation, including restitution, compensation, rehabilitation, satisfaction and a guarantee of non-repetition.
Financial compensation should be provided for economically assessable damages. Satisfaction can include a variety of measures, such as an official declaration to restore the dignity of the victim, a public apology or a commemoration and tribute to victims.
In addition to an effective legal framework, there is also a need to establish control mechanisms, as the risk of torture is present in all countries at all times. Control mechanisms can help identify areas of potential risk and propose possible safeguards. Internal administrative control mechanisms which are set up within an institution – such as police inspection services or prison inspection services – help monitor the functioning of State institutions and their respect for legislative norms and regulations. While very useful, internal control mechanisms are, by themselves, insufficient for this preventive work as they lack independence and have a more administrative monitoring function. In addition to internal control mechanisms, it is essential to set up independent mechanisms to visit places of detention.
The mere fact that independent bodies can enter places of detention, at any time, has a strong deterrent effect. The objective of these visits is not to document cases of torture or denounce the situation or the authorities. Instead the aim is to analyse the overall functioning of places of detention and provide constructive recommendations aimed at improving the treatment and conditions of detained persons.
The international human rights system also provides an important control mechanism, with relevant treaty bodies able to review and make recommendations regarding the State’s legal framework wand its implementation.
Finally, the media and civil society organizations can contribute to an effective system of check and balances to prevent and prohibit torture. Responsible media reporting, public education campaigns and targeted awareness-raising initiatives can build greater knowledge and understanding of the issues, influence public opinion and help change the attitudes of stakeholders and decision makers.
It is the responsibility of the government to ensure the protection of rights of its citizens. It needs conviction, plans, strategies, education and proper implementation.
Lack of rights’ education among both oppressors and victims has led to gross violation of rights. Government should take an initiative to teach human rights as a subject for all students in schools & colleges through a systematic curriculum. One has to fight for the justice for himself, his people and his community. We have succeeded in producing that kind of numerous individuals in this journey of struggle. To be a successful social transformation, there is a need of action from both the ends, i.e. from authorities and the people.
‘Silence’ is the biggest promoter of impunity. A well – informed, well guided public can make a big change in the existing scenario.
Dr. Lenin’s organization is doing a tremendous task by holding testimonial ceremonies where-in testimonials are read out and survivors are facilitated. It boosts up the moral and confidence among them. This creates and atmosphere of understanding among the survivors of different kind of violence and between different communities. They keep them following up as per UN standards, until everything becomes normal. We need several such organizations to testimonial campaign to its logical end. Use of the all the possible means to raise the voice for justice, especially Information Technology has to be utilized to amplify the unheard voice of people.
The long-pending Prevention of Torture Bill has been enacted by the Parliament recently. This step has underscored India’s respect for human rights. The prevention of torture law is intended to align Indian law with the UN convention; the ratification of the convention will enable provisions in the convention to be part of Indian law.
The prevention of torture law is a much-needed step to embellish India’s credentials as country with a sound criminal justice system.
Text of the speech of Justice K. G. Balakrishnan, Chairperson, National Human Rights Commission on July 12, 2012 in a program on Testimonial Campaign Contribute to Eliminate Impunity for Perpetrators of Torture in India organized by People’s Vigilance Committee on Human Rights (PVCHR) at India Habitat Centre, New Delhi.