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Q&A: Torture and International Law

What is the history of international laws against torture?

Akila: The prohibition on torture, at least in modern international law, began with the Universal Declaration on Human Rights that was passed in the 1960s and contained a general prohibition on torture and cruel and inhumane treatment. This prohibition was replicated in the 1970s in the International Covenant on Civil and Political Rights. Prohibitions on torture were also contained in the 1949 Geneva Conventions.

Around this time, in the 70s, Amnesty International began a campaign to get a declaration through the UN or another binding treaty body prohibiting torture.  Due to this campaign, in 1975 the UN passed a non-binding declaration on torture.  In the ten years after it passed, Amnesty did important documentation and individual reporting that found the declaration wasn’t serving its purpose. This began the push and process of advocating for a stand-alone convention against torture. The Convention Against Torture was formally drafted in the early 1980s and was ratified by a number of states somewhere between the late 1980s and early 1990s.

Grant: It was opened up for ratification in 1988, and I believe it came to force in 1994, so it took six years for a critical mass of states to accept it and for it to become enforceable, which is pretty typical of any international treaty.  In writing, the Convention the drafters very much had a traditional view of torture in mind. They were thinking of what we might think of as a “James Bond-esque” type of interrogation where there is one person under the control or custody of another person who wants information from that person either to use that information against them in a court of law or for whatever government purposes. So, when you read the Convention, you see a lot of that type of language regarding formal interrogation by a state.

A: Yes, they were considering issues around the French engaging in torture against the Algerians in the 1950s, the British using torture against the Irish in their civil war, those were the recent experiences in people’s minds, ideas of the state trying to elicit information. This is also what we see in the US today; when people think of the torture they think of Bush administration, of water boarding, etc.

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Who has ratified the Convention Against Torture?

G: There are 102 state parties to the treaty. There are 194 countries in the world, so a very solid proportion. The US ratified it in 1994, so it’s been a party for about 23 years.

A: But very importantly, when the US ratified it they do what they do and with all treaties and put in declaration, reservation, and understanding into it. The most important one limited the definition and understanding of torture to be that within the US constitution, so the 8th amendment and 5th amendment, which is very limiting. Especially considering how the international jurisprudence on torture has grown.

Since 1994 to today, how has the convention been enforced?

G: The Convention operates very similar to a lot of other human rights treaties where a treaty body is created, in this case the Committee Against Torture, that oversees how state parties to the Convention enact its provisions and otherwise abide by the rules that it sets. With any human rights treaty you have a variety of articles that say state parties undertake to do this and that, for example, they will outlaw torture or outlaw XYZ. In order to make sure that states actually take these actions, the treaty body reviews states parties to the convention on a periodic basis. The Committee Against Torture (CAT), every several years, undertakes a review of countries that have ratified the treaty, and will issue reports that say things like, “the US is doing great for not conducting waterboarding, but we are concerned about the excessive use of police force in the US. We recommend that you undertake some sort of governmental action in order to reduce torture as it is being conducted through excessive use of police force.”

Can you give an example of this process?

G: Basically, when a country is up for review by the Committee, areas where a country isn’t complying with its obligations, for example by committing torture, can be brought to the Committee. The Committee then has to issue a recommendation, and the country has to take action based on that recommendation. Which has happened, for example, in Sweden, it used to be that when you were arrested you were instantly put into solitary confinement. That was referred to the Committee, the Committee said, “Sweden stop doing that,” and Sweden stopped doing it. In the Czech Republic there were insufficient protections against excessive police violence, the police were using excessive force all the time, the Committee said “Hey Czech Republic, you need to fix this,” and so the Czech Republic put in a special prosecution unit to find out whether excessive police force was being used. One thing I think that gets overlooked in the effectiveness of treaties like this, is one of the requirements of the Convention is to outlaw torture. So, if you are one of the state parties to the Convention you have to outlaw torture and the vast majority of them have done that. I mean, the US ratified it in 1994 and in 1994 we passed the Torture Prevention Act making torture something that can be prosecuted in the United States. We passed that law because we were trying to adhere to our obligations because we ratified the treaty, that is a huge progress and those are actions countries are doing without the Committee having to tell them to.

Aside from the Convention Against Torture what other jurisprudence exists on torture?

G: So, torture is an interesting Convention as there is no other outlawed criminal law that has its own Convention in a similar way that torture does. Torture is embedded in the Geneva Conventions, its embedded in the Rome Statute of the International Criminal Court (ICC), it was part of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda, but it also has its own Convention. The definition of torture amongst those different legal entities varies slightly, in particular in the Convention. The Convention says, in order for something to be considered torture, it has to have some state hand. The government has to be involved in some way, and that is not the case for the ICC, so it’s a complicated area of law.

A: For example, under the ICC, torture can actually be a crime against humanity, torture can be a war crime in and of itself, and it can also be a way of committing an act of genocide. It can be its own crime or it can be an element of another crime. Under the ICC, individual criminal responsibility exists for torture, so for example with sexual violence, if the other elements are met, the state doesn’t have to have anything to do with it, any one individual can be held accountable for committing torture. The Convention against Torture, on the other hand, is really looking specifically at state obligations to prohibit, prevent, and redress torture.

Can you talk a little bit more about the use of sexual violence as torture?

A: Some of the most important jurisprudence around ideas of sexual violence as torture really started in the 1990s out of the International Tribunal for the Former Yugoslavia. In torture jurisprudence up until the 1990s, as it mostly developed from war, it was seen as a very male crime. It was something usually committed by military actors against men to elicit information, including from spies. It was only when you started seeing the extreme circumstances of how sexual violence was used in a conflict like Yugoslavia that people started realizing it is possible to have a gendered perspective when looking at torture. So in Yugoslavia in some of the cases in particular, the cases that looked at the rape camps, the sexual violence was Prosecuted both in and of itself as a crime, as well as a crime against humanity/war crime of torture.

G: Which, under the statute that created the ICTY, torture is inflicting severe mental and physical pain on a person is the underlying requirement. What the ICTY did was look at the cases of sexual violence and say “Well, this is the infliction of severe mental and physical harm and pain,” and thereby we are able to find torture in these gendered acts in ways that hadn’t been done before. So it was really truly revolutionary new interpretations of the intersection of gender and torture.

Can you explain how the denial of abortion services can constitute torture?

A: In terms of denial of abortion, it really can be construed as torture in two different contexts. In the first, abortion is a safer procedure than caring a risky pregnancy; there are a lot of mental and other harms that come with the criminalization of abortion, including knowing that you might be prosecuted for obtaining an illegal one. Blanket laws that outright prohibit abortions can be considered torture in and of themselves and this is a concept that really has come out through the special rapporteurs on torture and some of the other broader thinking about what laws and gendered view of torture can look like. In the second context, it’s women who have been raped or women whose lives are specifically endangered by carrying through a pregnancy. When those women are forced to carry that pregnancy to term, they can be considered torture victims. With rape, when the woman herself is considered to be a torture victim, you have a right to redress, reparations, and rehabilitation. Where rape is already an act of torture, pregnancy and denial of abortion can be considered a further act of torture by taking away their agency, by subjecting them to a daily reminder of what they went through with their pregnancy.

G: In short, denying an abortion to a woman who wants one causes severe physical or mental harm. It’s that simple. There is an additional layer that the Committee Against Torture is very aware of in that when you deny abortion services, women are going to seek abortions anyway. And a lot of times, it will happen in a situation that is unsterile, unsafe, unregulated, and the Committee knows that causes its own form of severe mental and physical harm. So not only is outright denying an abortion causing severe harm, the subsequent act that everyone knows will happen, of obtaining an unsafe abortion, causes severe mental harm. There is a compounding of severe experiences that are happening.

A: There has been a transformation of the ideas of violence against women as torture. The Convention, as we said, specifically requires some sort of state actor, but violence against women was often a private act. It’s not necessarily the police raping or beating a woman in the streets; it’s something that happens in the home, by for example a husband etc. It is outside the traditional purview of the Convention against Torture.

G: On the abortion example, discrimination against women and things that might amount to torture happen at home or in a doctor’s office but it’s not happening in a state prison, it’s not happening in a James Bond interrogation cell, which we all think of when we think of torture. It’s not the torture of the movies. It’s happening in more attenuated ways from the state.

A: And the actors are private actors, this is not a doctor in a state hospital, it could be any doctor. So what happened with this transformation is they started looking more broadly at some of the principles behind it, so they looked at laws. And they decided the state has an obligation to take action to prevent and punish acts of torture that can reasonably be attributed to it. So when the state is the one with problematic laws that, say, fail to protect women from violence, that force women to subject themselves to treatment that can be cruel and unusual by engaging in preventable maternal mortality, that is something the state has an obligation to do something about. And that was a remarkable transformation in the view of what torture looked like; to look at it more expansively to protect women and other minority classes as well.

G: To summarize, there has to be some state hand in order for something to be counted as torture. Now, there are two ways that a state can be liable for torture under the Convention; they could water board, electrocute a detainee, what have you. There is also a different form of state accountability where the state knows that anybody is having severe mental and physical harm inflicted on him or her and the state is not stepping in to do anything. So for abortion laws, the Committee has said, “Well, government, you can look at your restrictive abortion law and know there are no exceptions, or receive an abortion in rape, life, or incest, and that’s going to inflict severe emotional or physical harm on a woman and you are not doing anything to fix that, therefore you have a hand in the torturing of the individual.” You incur responsibility under the government for not legislating out of this individual’s severe mental and physical pain.

How US abortion restrictions constitute torture?

G: The United States under the Helms Amendment restricts any foreign aid from going to fund any abortions as a method of family planning, which is currently implemented without excepts for rape, life, or incest. So, let’s take for example, women who have been raped and impregnated under the control of ISIS. US restrictions prohibit a humanitarian aid provider from administrating an abortion to these ISIS victims. If you are an ISIS victim in Mosul who is freed and liberated and you go to a health facility and that health facility is funded by the United States and you want an abortion, the US says you can’t have one. Even though that organization might not be a US organization, even though they are operating in Iraq, as long as they are receiving US money, they are not permitted to perform abortions as a method of family planning and that has been interpreted by USAID to include situations of rape, life, or incest. Because that woman is unable to receive an abortion and because she’s unable to receive an abortion, she is going to experience mental or physical harm, and the US is ultimately to blame. So in that way, the restrictions amount to torture on this particular individual.

A: There is an interesting legal question here about the responsibility of the US, but what it comes down to is, as a state who signed the Convention against Torture, the US has an obligation not go against the object and purpose of the treaty that is a generalized duty that anyone who signed a treaty owes to any treaty that they have signed. In this way, knowing that the committee has specifically said that the denial of abortion to rape victims is torture, what that means is that by imposing this blanket policy, the US is violating its basic obligation not to contravene the object and purpose of the treaty.

G: It’s a higher order responsibility. It is very hard to draw the legal liability line from the US to that individual in Iraq under the confines of the convention, but as Akila rightly notes, you are violating the treaty in its object and purpose because you know that denying abortion in the circumstances of rape violates the Convention and you are doing it anyway.

A: With abortion restrictions, more directly when it comes to the laws being passed today in the US, whether it’s in Congress or in the states, a lot of those heavily restrictive abortion laws, if brought to the CAT, could be found to be in violation of the US direct obligations to its own citizens. This is where in other countries, such as in Paraguay, Nicaragua, and El Salvador, the CAT has reviewed their abortion laws and found blanket abortion laws or ones that are highly restrictive. They found that these countries need to take acts to bring their laws into compliance, whether it’s because it’s a blanket ban on abortion or whether it’s because it’s a complicated structure that makes access to abortion either unclear or unduly difficult. The Committee has very clearly said “You need to change your abortion laws in certain circumstances,” so domestically the US could very well be liable for some of those violations, and the US is coming up for review again next year.

G: And access to these reviews and trying to hold states accountable for failing to make progress uncertain of their domestic laws is something that GJC has done recently in Sri Lanka. Sri Lanka was under review by CAT so we wrote what is called a Shadow Report, which is essentially a report to the committee saying, “Sri Lanka’s laws on abortion, marital rape and child marriage, all violate the Convention and therefore should be brought to the attention of the Committee and the state party in order to fix them.”

A: I think this recognition that the denial of abortion is cruel and inhuman treatment is incredibly important because when we have this discourse and policy making that completely disregards risks to women’s lives, the seriousness of how the denial of abortion services can affect women, not only in the short term but in the long term, we really lose sight of what we are doing. When we think of abortion as some sort of luxury or something that women are doing because they are being irresponsible, we underestimate the scope of the violations against women when we increasingly create these laws. So when these legislators in the states or DC are putting in place laws that are unduly restrictive, that makes abortion access incredibly difficult, we need to show that they’re not just doing something that makes women’s lives harder, they are doing something that constitutes cruel and inhumane treatment of women. I think the standards are an incredibly important metric in continuing to measure how we hold our own legislators, our own policy makers, to account for what they are doing.

G: I would also add to not stop with abortion. This also applies to domestic violence, it applies to violence against LGTBQ persons, it applies to honor killings, and it applies to female genital mutilation. Having the conversation on torture can change the framework on how we think about these highly normalized forms of violence. The fact that they are normal to us, doesn’t meant that they’re not torture.

A: And that a state has a duty to do something about it.