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Tolerating the Intolerable: The Global Failure to End Torture

March 4, 2015

Megan Cansfield

 

Although the greater human rights cause has made significant gains since its codification in the Universal Declaration of Human Rights in 1949, the same cannot be said for the right to freedom from torture. Juan Mendez, the current United Nations Special Rapporteur on Torture, emphasized this harsh reality in his January 23rd lecture at the University of Michigan’s Ann Arbor campus, titled “International Law and the Abolition of Torture”. A former victim of torture himself under the Argentinian military dictatorship in the late 1970s, Mendez brought equal measures of firsthand experience and professional expertise to the subject matter as he specifically addressed the consequential contemporary paradox of torture’s abolition in international law but not in practice. As an illegal and immoral act under all circumstances, torture should be fully discontinued by all states in the international system, which will require a multilateral commitment to investigating, prosecuting, and punishing all perpetrators to both enforce accountability and deter future attempts to torture.

            The case against state-sponsored torture is rooted in substantial pre-existing normative and legal frameworks. Historically, intellectual criticism of torture first emerged in the Eighteenth Century with Italian philosopher Cesare Beccaria’s treatise “On Crimes and Punishments”, in which he raises concerns about torture’s ineffectiveness in soliciting truthful confessions and the invalidity of resulting evidence. These practical humanitarian viewpoints became norms over time as the public’s moral conscience grew to condemn torture, culminating in the 1985 adoption of the most comprehensive resolution yet: the UN Convention against Torture. The Convention holds special supremacy in international law due to its prohibition of “special circumstances” permitting torture and its peremptory norm status mandating universal compliance. Therefore, the Convention equips international actors to take decisive measures against torture, which it broadly defines as “any act by which severe pain or suffering, whether physical or mental, is inflicted upon a person”.

            However, despite having the mechanisms and capabilities to abolish torture, the international community has repeatedly failed to prevent such acts from recurring. Shocking reports of rights abuses still command media attention, as with the recent U.S. Senate investigation into the C.I.A.’s use of “enhanced interrogation techniques” on detainees with the Bush administration’s complicity. In their New York Times article analyzing the issue, Jeremy Ashkenas and his colleagues reveal that the lack of proper accountability or oversight of the C.I.A.’s activities significantly enabled the agency to continue abusing prisoners’ rights. These two checks are also weakened or overlooked processes within the international sovereign state system, which limits opportunities to reduce states’ torture practices and entrenches the permissive international attitudes towards torture that make its use politically tolerable.   

            While torture is also committed by non-state actors such as rebel groups, most torture is state-sponsored because the state can monopolize power over the individual as both the primary protector and the primary oppressor of human rights. In this role, however, states are burdened by a perceived choice regarding torture: to uphold human rights at all costs or to enhance national security with unethical interrogation techniques. Although bartering individual prisoners’ health for the public’s safety might seem noble, even one instance of torture still violates international human rights law under the UN Convention against Torture, meaning that torture on any scale can never be “justified” as state security officials often claim. Furthermore, torture interrogations are often ineffective and result in insignificant information, which Ashkenas and his contemporaries say is true of the C.I.A.’s interrogations. When some states employ torture regardless of these legal and moral dilemmas, the others cannot afford to play the bystander lest they set a dangerous precedent of impunity. The international community must instead press for full legal accountability, strong enforcement of the existing international anti-torture laws and institutions, and disregard of “special circumstances” and other unfounded excuses for torture.

            States may be the primary facilitators of torture, but in the larger context of global civil society, changing the predominant international mindset rather than targeting states themselves can also effectively change violator states’ policies. In his article on torture in international law in the India Journal of Political Science, Mohd. Yousuf Bhat explains the critical assistance of nongovernmental organizations like Amnesty International in raising awareness of torture while pressuring perpetrators through naming and shaming. Leading world nations should also set good examples by not practicing torture themselves and prioritizing human rights in their foreign policies. Economic or political concerns are often favored over human rights in diplomatic negotiations, but if states show the moral integrity to impose sanctions on or otherwise penalize states practicing torture, the disincentives and hostile international environment could effectively force states to stop torturing and change the world mentality on torture, thereby supporting the ultimate intergovernmental aim of abolishing torture worldwide.

            In today’s world, Mendez asserts, over one hundred state governments still practice torture. While global society clearly has much room for improvement, a common commitment to justice and vision of moral progress combined with the solid legal framework offer bright prospects for a torture-free future. 

 

Want to Learn More?

 

Juan Mendez, “International Law and the Abolition of Torture”, Human Rights Initiative Lecture at the University of Michigan, January 23rd, 2015:

https://www.youtube.com/watch?v=I1o_M_ikWKQ

 

Mohd. Yousef Bhat, “Menace of Torture: Prohibition in International Law” in The India Journal of Political Science:

http://www.jstor.org/stable/41856242?seq=1#page_scan_tab_contents

 

Jeremy Ashkenas et al., “7 Key Points on the CIA torture report” in the New York Times:

http://www.nytimes.com/interactive/2014/12/09/world/cia-torture-report-key-points.html

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