European Journal of Migration and Law 8: 1 8, 2006. 2006 Koninklijke Brill NV. Printed in the Netherlands. 1 Editorial: How Absolute is the Prohibition on Torture? KEES WOUTERS* Introduction The law is clear: torture is prohibited. Various human rights treaties contain an absolute prohibition on torture and other forms of cruel, inhuman or degrading treatment or punishment. States are under no circumstances and for no apparent reason allowed to commit or condone acts of torture. Unfortunately, the reality in many states is different. In fact, ever since the attacks on 11 September 2001 in the United States and the subsequent war on terror, the use of torture as a means of extracting information is a recurring feature in news stories, academic writing, political debates and policy initiatives. One may even wonder whether such practices have already become reality when reading reports regarding interrogation practices in Afghanistan, Iraq and Guantanamo Bay, the apparent existence of secret detention centres and extraordinary rendition programs. It seems that the absolute prohibition of torture has become susceptible to erosion. This erosion becomes evident in various debates and studies regarding legalizing torture, re-defining and narrowing down the concept of torture and the use of secretive and extra-judicial practices facilitating the use of torture. 1. Legalizing Torture Proponents of legalizing torture often use the ticking bomb scenario: a captured terrorist knows the location of a (ticking) bomb that threatens hundreds of innocent lives; the only way to prevent the mass murder is to torture the so-called terrorist into disclosing the bomb s location; there is no time for reflection; a decision must be made immediately. 1 Does the end justify the means? Irrespective of how legitimate the ticking bomb scenario may sound, in reality the scenario is highly improbable and hypothetical. Any would-be torturer would need to know for sure that a bomb really exists, that it will explode unless it is defused, that the person being * Kees Wouters is a legal researcher and lecturer at the Institute of Immigration Law of Leiden University, the Netherlands and a Ph.D.-fellow at the E.M. Meijers Institute of Legal Studies, Leiden University, the Netherlands, where he is conducting a Ph.D. research on the different obligations of nonrefoulement in international law. 1 Dershowitz, Alan M., Shouting Fire, Civil Liberties in a Turbulent Age (Little, Brown and Company 2002) p. 470. See also Paola Gaeta, May Necessity Be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?, Journal of International Criminal Justice, Vol. 2 (2004) p. 786 (note 1).
2 KEES WOUTERS held does indeed know where the bomb is, and that it remains there, that if he is tortured he would provide the necessary information, that the information will be accurate and will enable the bomb to be defused in time, and that there is no other way to discover the bomb. 2 Moreover, it is questionable whether a tortured person will actually speak the truth. Israel has long claimed that the use of a moderate degree of pressure in order to obtain crucial information is unavoidable under certain circumstances. 3 In its State Report to the Committee against Torture in 1997 Israel claimed this type of pressure had foiled some ninety terrorist attacks. 4 Although acknowledging Israel s terrible dilemma in dealing with terrorist threats to its national security, the Committee against Torture considered these techniques to be in violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, irrespective of whatever exceptional circumstances existed, as these techniques amounted to torture within the meaning of article 1 of the Convention. 5 The definition of torture contained in article 1 of the Convention against Torture entails an interesting element regarding the discussion on the legalisation of torture. According to this article torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Neither the Convention nor its legislative history gives any indication as to the applicable international legal standards in this regard, thereby leaving it to the domestic laws and interpretation of States to determine what is lawful. Consequently, states would be able to take certain treatment outside the scope of the Convention by making it a lawful sanction under its municipal legal system. 6 During the drafting process of the Convention it was, however, pointed out that it would be unsatisfactory if a State was permitted to continue applying punishments of such cruelty that they would, by normal standards, be considered to fall under the definition of torture. It was not possible to reach an agreement on any reference to accepted international standards as no such standards seemed to exist. What may be lawful in one legal system may not be so in another. 7 2 Amnesty International, Stop Torture and Ill-Treatment in the War on Terror, Campaign Homepage at www.amnesty.org, Questions and Answers, viewed on 2 January 2006. 3 Committee Against Torture, State Party Report, Second Periodic Report, Israel, 18 February 1997, CAT/C/33/Add.2/Rev.1, par. 5. 4 Committee Against Torture, State Party Report, Second Periodic Report, Israel, 18 February 1997, CAT/C/33/Add.2/Rev.1, par. 24. 5 CAT, Concluding Observations on Israel, 9 May 1997, A/52/44, paras. 253 260, paras. 257 258; a similar consideration was already made by the Committee in its Concluding Observations on Israel, 12 June 1994, A/49/44, paras. 159 171, par. 168 and repeated in CAT, Concluding Observations on Israel, 18 May 1998, A/53/44, paras. 232 242, par. 239 and CAT, Concluding Observations on Israel, 23 November 2001, CAT/C/XXVII/Concl.5, par. 6; also mentioned in Joseph, Sarah, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights, Cases, Materials, and Commentary (Oxford: OUP 2000) p. 151. Notably, already in 1994 the Committee had declared the use of moderate physical pressure to be unacceptable, CAT, Concluding Observations on Israel, 12 June 1994, A/49/44, paras. 159 171, par. 168. 6 Boulesbaa, A., The U.N. Convention on Torture and the Prospects for Enforcement (Leiden: Martinus Nijhoff 1999) p. 29. 7 For example, the amputation of a hand for the offence of theft is lawful in some Arab States which follow the traditions of Islamic law, but is not in other States, see Boulesbaa, A., The U.N. Convention on Torture and the Prospects for Enforcement (Leiden: Martinus Nijhoff 1999) p. 31.
EDITORIAL 3 It was left open whether the exception refers only to national law or whether it must also comply with international humanitarian standards. 8 In my opinion it can not be the purpose of the Convention to give carte blanche to States to torture by making every severe conduct a lawful sanction in its national law. 9 The exception made for pain or suffering arising only from, inherent in or incidental to lawful sanctions is in obvious tension with the prohibition of torture itself. 10 Allowing lawful sanctions of such a cruelty that they amount to torture would be contrary to the absolute nature of the prohibition of torture in international law, and contrary to the Convention s object and purpose. 11 On several occasions the Committee against Torture has expressed its opinion that certain conduct by definition amounts to torture and cannot be excluded from the Convention through the adoption of lawful sanctions. 12 2. Re-defining Torture Another path to seek out the borders of the torture prohibition States are currently taking is re-defining torture. According to the definition of torture in article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment 13 a variety of acts and omissions may amount to torture, as long as the 8 Burgers, J.H. and H. Danelius, The United Nations Convention against Torture, A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff 1988) pp. 46 47. 9 In this regard the Netherlands and the United States of America made relevant reservations to article 1 of the Convention against Torture. The Netherlands declared that the term lawful sanctions in article 1, paragraph 1, of the Convention must be understood as referring to those sanctions which are lawful not only under national law but also under international law, and the United States of America declared that sanctions include judicially-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. None the less, the United States understands that a State party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture. The text of these reservations is available via www.unhchr.ch/tbs/ doc.nsf. 10 Anker, Deborah E., Law of Asylum in the United States (Boston: Refugee Law Center 1999) p. 507. 11 Preamble of the Convention against Torture; Ingelse, Ch., The UN Convention against Torture: an assessment (The Hague: Kluwer Law International 2001) p. 214; see also, the ICTY, Furundzija case, Trial Chamber, 10 December 1998, IT 95 17/1 T, par. 144. 12 CAT, Concluding Observations on Israel, 9 May 1997, A/52/44, paras. 253 260, par. 257 258, repeated in CAT, Concluding Observations on Israel, 18 May 1998, A/53/44, paras. 232 242, par. 239 and CAT, Concluding Observations on Israel, 23 November 2001, CAT/C/XXVII/Concl.5, par. 6. CAT, Concluding Observations on Namibia, 6 May 1997, A/52/44, paras. 227 252, par. 250; CAT, Concluding Observations on Saudi Arabia, 12 June 2002, CAT/C/CR/28/5, par. 4 (b). CAT, Concluding Observations on China, 26 June 1993, A/48/44, paras. 387 429. See also Ingelse, Ch., The UN Committee against Torture: an assessment (The Hague: Kluwer Law International 2001) pp. 231 236. 13 According to article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment torture 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 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
4 KEES WOUTERS conduct inflicts pain or suffering, either physical or mental, which is of a certain severity. The element of severity separates torture from other acts of cruel, inhuman or degrading treatment. Furthermore, the pain or suffering must be inflicted intentionally and for a certain purpose, such as obtaining information or as a means of punishment or intimidation. A significant limitation in the definition is the requirement that torture has to be 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. In other words, only torture for which the authorities can somehow be held responsible, because they acted or refrained from acting, falls within the definition laid down in article 1 of the Convention against Torture. 14 As already mentioned above, Israel, for example, referred to their interrogation tactics not as torture but as moderate physical and psychological pressure. 15 And in the infamous Bybee Memorandum of 2002 16 the US government explicitly re-interpreted torture to enable US agents to apply certain interrogation practices, in particular when such practices are conducted outside the United States and will not involve US citizens. According to the Memorandum for a certain conduct to amount to torture, it must be of an extreme nature. The pain must be difficult to endure, whereby physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death. And for purely mental pain to amount to torture it must result in significant psychological harm of significant duration, for example, lasting for months or even years. 17 Interrogation practices not of such an extreme nature may, according to the Memorandum, be applied by US agents. The threshold for any conduct to amount to torture according to the Memorandum is significantly higher when compared to article 1 of the Convention against Torture. Moreover, the understanding that certain interrogation practices do not amount to torture but to other cruel, inhuman or degrading treatment or punishment should also be called into question, as it fails to recognize the equally absolute prohibition on other forms of cruel, inhuman or degrading treatment. 18 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. 14 It should be noted that according to the drafters of the Convention the inclusion of a State involvement is not a judgment on the nature or seriousness of violence by private actors, but rather an assumption and expectation that such violence would be addressed by the normal machinery of justice under the conditions of the domestic legal system, see: Burgers, J.H. and H. Danelius, The United Nations Convention against Torture, A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff 1988) p. 120. 15 Committee Against Torture, State Party Report, Second Periodic Report, Israel, 18 February 1997, CAT/C/33/Add.2/Rev.1, par. 5. 16 The Bybee Memorandum refers to a memorandum written by the Assistant Attorney General of the USA, Jay S. Bybee, to Alberto R. Gonzales, the Council to the President, dated 1 August 2002, viewed on www.findlaw.com, 2 January 2006. 17 U.S. Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzales, Council to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. paras. 2340 2340A, 1 August 2002, p. 1 ( Bybee Memorandum ). 18 Article 7 ICCPR, article 3 ECHR, article 16 CAT.
EDITORIAL 5 3. Extraordinary Rendition Despite the absolute prohibition on torture, the use of conduct amounting to torture is real, in particular in various secretive and extra-judicial practices. Especially in the context of immigration it may be possible for states to conduct torture outside the realm of the law. Most notorious in this regard is the extraordinary rendition program of the United States, whereby an individual, most often an alleged terrorist, is transferred, with the involvement of the US, to a state where it is known he may be subjected to torture or cruel, inhuman or degrading treatment or punishment, hoping to gain useful information. 19 Many extraordinary renditions have been reported in the media. 20 One such story concerns the transfer of Ahmed Agiza and Mohammed Al-Zery from Sweden to Egypt. This story is especially interesting because it lead to an individual complaint by Mr. Agiza under article 22 of the Convention against Torture, and a subsequent condemnation of extraordinary rendition practices by the Committee against Torture. 21 On 18 December 2001 Ahmed Agiza and Mohammed Al-Zery were expelled from Sweden and transferred to Egypt, with the help of the United States. According to a Swedish television program, Kalla Fakta, Agiza and Al-Zery were handed over to a group of special agents by Swedish police after which they boarded a private jet that had just landed and which was owned by a US company and frequently used by the US government. The Committee against Torture acknowledges in its view in this case that it indeed concerned an airplane of a foreign, i.e. neither Swedish nor Egyptian, intelligence service. 22 Several sources make clear that it concerns a private plane rented by the US government and used by the CIA. 23 According to the Committee, the complainant was subjected on the State party s territory to treatment in breach of, at least, article 16 of the Convention by foreign agents but with the acquiescence of the State party s police. 24 In the end, Sweden was condemned by the Committee for extraordinary rendition conducted by the USA. Although the United States is a party to the Convention 19 Centre for Human Rights and Global Justice, New York University School of Law, Torture By Proxy: International Law Applicable to Extraordinary Renditions, Briefing Paper, December 2005, p. 6, www.chrgj.org, viewed on 2 January 2006, also published as a briefing paper for the United Kingdom Parliament All Party Parliamentary Group on Extraordinary Rendition, www.extraordinaryrendition.org. 20 To name but a few sources: Human Rights Watch report, Still at Risk: Diplomatic Assurances No Safeguards Against Torture, April 2005, Vol. 17, No. 4(D), pp. 57 and 58, available at www.hrw.org; Seymour Hersh, Chain of Command, the road from 9/11 to Abu Ghraib (New York: Harper Collins Publishers 2004) pp. 53 55; Bob Herbert, Outsourcing Torture, International Herald Tribune, 12 and 13 February 2005; Jane Mayer, Outsourcing Torture, the secret history of America s extraordinary rendition program, The New Yorker, 14 February 2005; Douglas Jehl and David Johnston, Bush gave CIA wide authority to send suspects abroad, aides say, International Herald Tribune, 7 March 2005. 21 CAT, Agiza v Sweden, 20 mei 2005, nr. 233/2003. 22 CAT, Agiza v Sweden, 20 mei 2005, nr. 233/2003, par. 13.4. 23 Human Rights Watch report, Still at Risk: Diplomatic Assurances No Safeguards Against Torture, April 2005, Vol. 17, No. 4(D), p. 57 and 58, available at www.hrw.org; Seymour Hersh, Chain of Command, the road from 9/11 to Abu Ghraib (New York: Harper Collins Publishers 2004) pp. 53 55. 24 CAT, Agiza v Zweden, 20 mei 2005, nr. 233/2003, par. 13.4.
6 KEES WOUTERS against Torture it is unfortunately not possible to lodge an individual complaint before the Committee for involvement of the US in this matter, because the US have not declared the Committee competent to receive and examine such a complaint under article 22 of the Convention. 4. Diplomatic Assurances Migrants are particularly vulnerable when it comes to the erosion of the torture prohibition. Extraordinary rendition not only violates the absolute prohibition on torture, but also the equally absolute prohibition of refoulement, as contained in various treaties, most notably in Article 3 of the Convention against Torture and Article 33(1) of the Refugee Convention. In general, the prohibition of refoulement prohibits a state from transferring an alien to a country where he is at risk of being tortured (in accordance with article 3 of the Convention against torture), persecuted (in accordance with article 33 (1) Refugee Convention), or subjected to inhuman or degrading treatment or punishment (in accordance with article 7 ICCPR and article 3 European Convention on Human Rights). It seems that since the attacks on 11 September 2001 more and more situations are occurring or at least are reported in which persons are sent to a country where they are at risk of being subjected to torture or other forms of cruel, inhuman or degrading treatment or punishment. Such situations either occur in secrecy, without legal scrutiny and as part of the abovementioned extraordinary rendition programs, or, they occur when the sending state can rely on diplomatic assurances that the person(s) involved will not be tortured or subjected to other forms of inhuman treatment. Martin Jones addresses the issue of diplomatic assurances extensively in this EJML issue. He points to a dramatic increase in the use of diplomatic assurances since the 11 September 2001 attacks in the US, which, according to Jones, can be traced to political changes that have heightened the importance of executing the removal of certain categories of individuals. And while the absolutely prohibition on removing individuals who are at risk of being tortured is regularly expressed in the emerging jurisprudence on the use of diplomatic assurances, diplomatic assurances are threatening this absolute prohibition as Jones illustrates very comprehensively by discussing a considerable amount of international and national jurisprudence. Jones debates the legal significance of diplomatic assurances and discusses the implications of the use of diplomatic assurances. 5. Refoulement Protection and Prosecution of Torturers The September 11 attacks and the subsequent war on terror have seen an increase in deportations and extraditions of alleged terrorists, torturers, and other persons suspected of serious crimes. While these persons can possibly be excluded from refugee protection in accordance with article 1F of the Refugee Convention, they may still have a right to be protected against violations of fundamental human rights in accordance with the obligation of non-refoulement, contained in various human
EDITORIAL 7 rights treaties. That does, however, not mean they can or should evade justice as they must be held accountable for their alleged crimes. The tension between ensuring on the one hand protection against refoulement and on the other hand prosecution of alleged torturers is addressed by Elizabeth Santalla in this EJML issue. The main question she poses is, are there sufficient legal guarantees in international law to assure prosecution in such cases. Santalla analyses the Geneva Conventions, the Convention against Torture and the Statute of the International Criminal Court, thereby focusing on the principles of aut dedere aut judicare, universal jurisdiction and complementarity. Based on these principles Santalla argues that torture as a war crime under the Geneva Conventions, as a crime against humanity under the ICC Statute and as a crime under the Convention against Torture entails an obligation for states to prosecute or to extradite to another state or surrender to an international criminal tribunal those persons suspect of committing torture. As a consequence, states are obliged to prosecute, extradite or surrender alleged torturers who can be excluded from refugee protection and are protected against refoulement. Unfortunately, as Santalla points out, no legal instrument links exclusion of refugee protection, with guaranteeing protection against refoulement while trying to prosecute the alleged torturer. In her article Santalla calls for a clear legal provision in this regard, thereby analyzing various possibilities. 6. Victims of Torture: Compelling Grounds to Stay Unfortunately, torture still exists in the world today. The media is reporting stories of torture practices almost on a daily basis. And in spite of a legal prohibition on torture in international law and the national laws of many countries, victims of torture find it often difficult to obtain protection from their own government. As a consequence they seek protection elsewhere. Unfortunately, states seem to turn a blind eye for the specific needs of torture victims, in particular when there is no longer a risk of again being subjected to torture. In this EJML issue René Bruin pleas for providing a residence permit for people who have compelling grounds out of former persecution to which they were subjected in their country of origin and for setting up standards for a medical examination in the asylum procedure. The basis for his plea is article 1C (5) and (6) of the Refugee Convention, according to which states are not allowed to withdraw refugee status when the refugee can invoke compelling reasons arising out of previous persecution for refusing to re-avail himself to the protection of the country of nationality or habitual residence. According to Bruin this reflects a general humanitarian principle for which an appropriate status benefiting traumatised asylum seekers should be created. By discussing the case law of the European Court of Human Rights, the views of the Committee against Torture, legislation initiatives within the European Union for a common European asylum system, the practice of states, in particular the Netherlands, and the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment ( Istanbul Protocol ), Bruin clearly shows that states far from sufficiently address the needs and difficulties of traumatised asylum seekers.
8 KEES WOUTERS 7. Victims of Torture: Credibility Assessment of their Asylum Claims When seeking protection, victims of torture will often have difficulty telling their stories. Nevertheless, the backbone of any claim for asylum protection is the individual account of the events that have taken place in the country of origin. If an individual making an asylum claim cannot persuade the decision-maker that his claim is to be regarded as credible, then he is unlikely to be recognised as a refugee or as a person otherwise in need of international protection. In this EJML issue Robert Thomas eloquently addresses the problems and challenges of assessing the credibility of asylum claims, thereby examining relevant provisions in EU and UK law. Thomas points to a growing trend whereby legislators seek to guide the credibility assessment of asylum claims more and more, often to favor a negative assessment. Particular problematic in this regard is the fact that asylum has become an increasingly contested area of policy in which policy-makers may be under intense political and media pressure. As a consequence, so are the decision makers, who are either viewed as being unduly lenient or as unjustifiable mistrustful. It is in this in my opinion stressful context that the decision maker must assess the credibility. Thomas comprehensively describes the complexity of what credibility entails, what is involved in assessing the credibility of an asylum claim and when credibility is lacking, thereby examining general legislative standards in EU and UK law concerning the credibility assessment of asylum claims that recently have been introduced. The war on terror has had great consequences. Where it aims at fighting terrorism it has opened Pandora s Box to allow practices of torture. The absolute prohibition on torture and refoulement in international law is no longer safe. Migrants are particularly and increasingly vulnerable to practices of torture as this issue of the European Journal of Migration and Law clearly shows. To have the law prevail it is imperative that the rights of every migrant are guaranteed and their needs fulfilled.