The use of torture

Introduction

All horrors of the reign of terror were based only on the solicitude for public tranquillity.[1]

Throughout history states have raised a variety of claims to justify the use of torture. National Security has often been one of the most prominent and reoccurring reasons, evidenced by centuries of torture being an acceptable war practice States that use torture claim that they have good reason to breach the otherwise general prohibition of torture.[2] However such claims have always been contested on moral/ethical grounds as well as those of effectiveness[3].

The thematic clash which surfaces over the use of torture is how it is identified with derogatory and inhumane behaviour synonymous, not with the rule of law but with dictatorial regimes which have used torture ‘for the purpose of terrorizing people into submission'.[4] Torture may be easier to understand as an emotive reaction as a form of punishment in a society with organic solidarity but not in modern day highly ‘mechanical' societies. ‘Just use of torture' argument hence, is unfavourable for rational debate in present day societies. Moreover, in the real world, torture has been known to yield poor information thereby be in effective.[5] The only real reason why governments and other torture promoting agencies have been successful to a large decree, in flouting international protocol on the use of torture is because of the creation of a mythical scenario. One specific situation where the captured terrorist has the information which can save millions of lives is used to justify the broader framework of torture techniques which continue to expand much beyond the hypothetical situation offering its founding justification.

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The absolute prohibition against torture arose, in many respects, as a result of the failure of a lengthy worldwide, brutal, scientific experiment in which ‘state-sanctioned' torture was considered necessary to pre-empt what were considered great threats to society, primarily due to the reasons outlined above.

However with the resurgence of terrorism the theory of justifiable torture has been playing on the minds of the general public and world governments alike. The US Secretary of State, Condoleeza Rice, observed the ‘war on terrorism challenges traditional norms', that the existing law was ‘designed for different needs' and that ‘[w]e have to adapt'.[6]

One of the most controversial contributions to this debate has been by Harvard Law School Professor Alan M. Dershowitz. He, in his book entitled How Terrorism Works (written in the aftermath of September 11, 2001) advocates the use of torture in exceptional circumstances like the “ticking bomb” scenarios.[7] This, even as, the International Convention Against Torture (CAT) states that:

“No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

In the book's centrepiece, Dershowitz describes the choices and trade-offs between liberty and security that must be made and examines how torture can be justified while maintaining a free society.[8]

There is no specific and separate protection under the Indian Constitution against torture. However, the Supreme Court has interpreted Articles 14 and 19 to establish the impermissibility of torture in Sunil Batra Case[9]. Moreover, there are adequate provisions[10] in the Evidence Act with similar objectives. All this notwithstanding the use of third degree by the police continues unabated.[11] In spite of repeated efforts including those by the National Human Rights Commission (NHRC), India has not ratified the Convention Against Torture (and Other Cruel, Inhuman and Degrading Treatment or Punishment), although it has been a signatory since October 1997.

Research Questions

1. How is torture defined (internationally and nationally)?

1. Is it legally permissible in any form, even as self defence?
2. What is ‘out sourcing torture' and is it legally tenable?
3. Is the ticking bomb scenario a frequently used academic hypothecation, alone?

2. Does torture work?

1. Is it practically amenable, minus the moral prohibitions?
2. Can torture as allowed in the ticking bomb scenario be limited to use in exceptional cases alone? (Slippery Slope Problem)
3. Discuss the admissibility of evidence, obtained by torture, in the Courts

3. How does India fare on the anti-torture conventions and domestic judicial rulings against torture?

1. The tussle with CAT and ratification, an amnesty perspective
2. SC and third degree and humane treatment of accused persons

Chapter One Understanding Torture

DEFINING TORTURE

International humanitarian law prohibits torture and other forms of ill treatment at all times and demands that detainees be treated according to the rules and established principles of International Humanitarian Law and other international standards. There are three principle instruments in international law that prescribe universal prohibition - the Geneva conventions, s, the International Covenant on Civil and Political Rights, and the Torture Convention. In addition, some claim is made that prohibitions against torture are also part of customary international law, or jus cogens - rising to the level of universal law.

Common Article 3 of the Geneva Conventions[12] (common to the four Geneva Conventions of 1949 and to Additional Protocol II) prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" as well as "outrages upon personal dignity, in particular humiliating and degrading treatment," under any and all circumstances.

The universal character of the ban on torture draws from Article 5 of the Universal Declaration of Human Rights[13] which says:

‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.'

The principles in the UDHR were codified in the International Covenant on Civil and Political Rights (ICCPR), 1976.[14] Article 7 of the ICCPR states:

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."[15]

The United Nations Convention Against Torture, (CAT) 1978 in Article 1(1) defines torture as:

‘For the purposes of this Convention, the term “torture” means 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 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.'[16]

It is important to observe that the definition adopted by CAT is limited to the purposes and provisions of the convention. International humanitarian law differs somewhat from this definition in not requiring the involvement of a person acting in an official capacity as a condition for an act intended to inflict severe pain or suffering to be defined as torture, ICRC for example uses the term ‘ill-treatment'.[17] Without undertaking an extensive exposition of the legal differences between torture and other forms of ill treatment suffice it for the purpose of the paper to know that the primary distinction lies in the level of severity of pain or suffering imposed and also the presence of a specific purpose for causing such pain or suffering. Torture is the one with higher decree of pain and suffering coupled with the requirement of a specific purpose, for eg. to extract information. A differentiation between "cruel, inhuman or degrading treatment" and "torture" might allow governments to tout its adherence to the Convention Against Torture, while simultaneously abusing prisoners to force them to reveal information, however they still would be bound by the principles of international law. One reason may be that, in international human rights instruments, torture is generally twinned with "cruel, inhuman or degrading treatment or punishment

Article 2 specifically holds that torture cannot be validated by the claim to exceptional circumstances as in, for example, "war or a threat of war, internal political instability or any other public emergency." Article 2 follows the principle of the Nuremberg Charter[18] that an order from a superior officer or public authority cannot serve as a legal defense.

Similar sentiments are echoed in various other international instruments like Article 99 of the 1949 Geneva Convention dealing with the protection of the prisoners of war, Article 7 of the International Covenant on Political and Civil Rights,

In 1985, the U.N. Commission on Human Rights established the office of the Special Rapporteur on Torture. The treaty-making process and the enforcement mechanisms created by the United Nations are in itself an extremely important part of the efforts to universally eradicate torture.

TORTURE, THE UNITED STATES AND 9/11

The United States adopted the Joint Resolution Regarding Opposition of the United States to the Practice of Torture by Foreign Governments in 1984. The Joint Resolution affirmed "a continuing policy of the United States government to oppose the practice of torture by foreign governments through public and private diplomacy... [and to oppose] acts of torture wherever they occur, without regard to ideological or regional considerations...."[19]

Yet United States Government itself has been found on the wrong foot with respect to practicing torture time and again. It must be noted that even the language of the 1984 Joint Resolution in akin to request and does not create an express obligation upon the Government to oppose torture.[20] The United States has also ratified the Convention Against Torture, but the campaign to accomplish this took nearly twenty years. The United States' long refusal to ratify the Convention Against Torture is indicative of its general unwillingness to subscribe to a legally enforceable the treaty-based regime.

I991 Congress passed Torture Victim Protection Act which accepted the definition of torture established by the Convention Against Torture a definition that recognises both mental and physical torture. In addition to the 1991 Act, the Torture Victim Relief Act of 1998 and Torture Victim Relief Reauthorization Act of 1999 have also been adopted which talk about the rehabilitation of victims of torture. However this does not necessarily counteract U.S. reluctance to join international legislation against torture, this domestic legislation does demonstrate some U.S. effort to provide legal remedies for torture victims.

In May 2000, Amnesty International submitted a brief to the United Nations Committee against torture, stating that the United States is simply not doing enough to secure compliance with the mandate of the Convention and noting the lack of effective oversight entities to monitor prison conditions and police departments. Amnesty further pointed out that United States' reservations, declarations, and understandings have tended to water down United States compliance with the Treaty. Perhaps the most important omission in Unites States' policy is that torture is not a distinct crime under federal law.

The situation has only worsened since 9/11. The urgency and immensity of the "war on terrorism" tend to tip the scales in favour of torture, because the consequences of an un-diverted attack can be enormous. Debates have ever since been raging over what the appropriate balance should be in a free democratic nation that holds itself as a model of a state governed by the rule of law and respect for human rights. The arguments prescribing torture in the changed global scenario emphasise how the present day legal instruments governing torture were drafted in a world which did not contemplate armed conflict in the context of modern terrorism, that existing law has been "overtaken" by facts on the ground. As Rona[21] argues such argument are tenuous at best since had such a reasoning be allowed to justify the legalisation of all previously illegal practices instances of cyber fraud, eliciting drug use, tax evasion could never have been brought within the folds of justice.

In the wake of 9/11 the US realised the impossibility and dangers of keeping torture cells in its homeland they resorted to ‘outsourcing-torture'[22]. Among cases that have been disclosed are the renditions of terrorist suspects to abuse in countries such as Egypt, Syria, Morocco, Saudi Arabia and Jordan.[23] These transfers have frequently been carried out through so-called extraordinary rendition, whereby suspects have been apprehended and handed over to other countries without any formal legal procedure.[24] Yet such a step in international law is equally illegal. Article 3 of the CAT provides that, when determining whether there are substantial grounds for believing that a person would be subjected to torture upon return, the authorities shall take into consideration all relevant considerations, including the possible existence in the receiving state of "a consistent pattern of gross, flagrant or mass violations of human rights."[25]

The US government has claimed that it does not send persons to countries where it is "more likely than not" that they will be subjected to torture and, when deemed appropriate, it seeks "assurances" from receiving countries that those transferred will not be tortured.[26] Further, obtaining so-called diplomatic assurances from the receiving government does not absolve states from the obligation not to send anyone to a country where there are substantial grounds for believing that he or she may be subjected to torture or other ill-treatment. The Committee against Torture[27] has, further, pointed out that the term "another State" used in Article 3 of the CAT refers both to a state to which a person is returned in the first place as well as to any state where he or she may subsequently be sent

In January 2002, the Office of Legal Counsel of the Justice Department (OLC) issued an opinion that prisoners captured during operations in Afghanistan against the Taliban and al Qaeda fell outside of the protections of the Geneva Conventions.[28] The October 11, 2002, opinion of Army Lt. Col. Diane Beaver analyzed proposals for the use of interrogation techniques ranging from removal of clothing and "forced grooming" to sleep deprivation, threatening with military working dogs, threats of "death or severely painful consequences for himself or his loved ones," exposure to cold water or weather, inducing the "misperception of asphyxiation," and "mild non-injurious physical contact."[29]

Some believe the ‘ticking bomb' situation was a post-9/11 development which forced governments to view torture in a new light. That somehow the possibility of a ticking bomb has increased many fold since 9/11. This is not true the hypothecation was as much a part of literature then as it is now.[30] Terrorism has been a menace in the Indian sub-continent for long, mush before 9/11. The Supreme Court took note of the same in Kartar Singh v. State of Punjab[31] The Israeli forces have been using the same reasons as excuses to torture numerous Palestinians for long. Yet international law has never approved of the practice, what is the urgency now, which must upturn international law now? To contend hence that torture is permissible simply because it was not contemplated and rejected by the drafters of present day legal instruments is baseless. The theory in principle puts the right of many against those of one. If at all torture was permissible it must have been recognised in all crimes against the society at large like murder and rape.

Alan Dershowitz was one of the first few to support the use of torture against the terrorists. Under his model law enforcers would be allowed to use non-lethal forms of torture to force a terror-suspect to give up information that would prevent an imminent and massive terrorist attack, after first obtaining a judicial warrant from a court. He responds like all other pro-torture academicians by citing the "ticking bomb" scenario.

The ticking bomb situation refers to an hypothetical situation where a bomb has been activated and the only person who may have any information to prevent or minimise the potential damage from an explosion of a bomb is a suspect who refuses to disclose this information. Dershowitz, opposed to torture in general prescribes torture in such an event. The details of the hypothecation would be highlighted better in the next chapter.

Chapter 2 Does Torture Work

Whether torture works or not is the most contentious question in the debate for it hits at the very purpose used to further its use in certain extraordinary situations. "Assuming that harsher interrogations can produce valuable intelligence -- an open question -- Congress and the president must weigh that benefit against the enormous strategic cost of operating a facility like Guantanamo."[32]

Historically the most important lesson is that it has not been possible to make coercion compatible with truth. Between 1500 and 1750, French prosecutors tried to torture confessions out of 785 individuals. Torture was legal back then, and the records document such practices as the bone-crushing use of splints, pumping stomachs with water until they swelled and pouring boiling oil on the feet. But the number of prisoners who said anything was low, from 3 percent in Paris to 14 percent in Toulouse (an exceptional high). Most of the time, the torturers were unable to get any statement whatsoever.[33]

It has been proven time and again that building trust is the best way to gain information. The entire system of spying as old as civilization itself has been based on this very principle. What is the guarantee that the detainee subject to torture shall divulge the truth? In a severely affected mental and physical capacity the chances of inaccuracy and hallucination have been proven to be medically much more, even more so when such a person is continuously in a position of subjugation, convinced that he is the criminal. The New York Times reported that:

"The Bush administration based a crucial pre-war assertion about ties between Iraq and Al-Qaeda on the detailed statements made by a prisoner while in Egyptian custody who later said he fabricated them to escape harsh treatment...after he was secretly handed over to Egypt by the United States in January 2002, in a process known as rendition"[34]

SLIPPERY SLOPE

It is important to note the theory of limiting torture to ‘ticking bomb' situations also suffers from a slippery slope problem.

In principle the argument once allowed will only tend to expand to all other areas where the lives of many are at stake as opposed to one. It is very easy to slip over from the example of the ticking bomb-limited, specific, and time-bound-to a broader kind of situation. The rights of many may hang in balance even in situations other than a ticking bomb, in situations of reasonable suspicion of an attack by a foreign agency, in case of prisoners of war and potentially any confrontational situation for it is always the state against the crime, the protector of rights of many against one.

Even if we assume that somehow the use shall be limited only to a few ‘ticking bomb' cases what is to happen when the traditional ways of torture sacking, tying into painful positions, sleep-deprivation, shaking, enclosure in the cupboard where one cannot stretch out, blasting with loud music, do not work? Since many lives would still be in danger, would it be permissible then to resort to beating, ripping fingernails, using electricity? If we accept the ticking bomb scenario as an argument justifying torture, then we can find no principle to limit the extent and degree of the torture it justifies.

On a more logical ground, if the terror-suspect truly knows about the bomb then he must also be aware of the time he must hold out till before the disaster erupts, what then is the incentive to speak out? We must remember at all times the terrorists are trained to endure all suffering and pain in the name of faith. A process of brainwashing spanning years, can faith truly be shaken in a few hours up till the explosion?

The authorities do not require absolute certainty that the terror suspect knows where the bomb is. One only needs reasonable suspicion. Dershowitz when asked on a CNN interview ‘how do you know he doesn't have that kind of ticking-bomb information right now, that there's some plot against New York or Washington that he was involved in and there's a time sensitivity? If you knew that, if you suspected that, you would say [to] get the president to authorize torture' Dershowitz responded "Well, we don't know,.... countries all over the world violate the Geneva Accords. They do it secretly and hypothetically,.."[35]

The use of torture by the state indicates insecurity in the processes of governance.[36] If torture were justified there would be nothing stopping all the democracies of the world from slipping into a police state[37].

USE OF EVIDENCE PROCURED THROUGH TORTURE

Article 15 of CAT states that evidence extracted by torture cannot be used in proceedings against the victim of torture or anyone implicated by the victim, with the exception of the torturer himself.

The Military Commissions Act 2006, which was signed into law by President Bush in October 2006, enables the US government to try before military tribunals non-US citizens who have engaged in hostilities against the US or its allies or who have "purposefully and materially" supported such hostilities.[38] The new system of military commissions created by this law represents certain improvements over commissions introduced by the Bush administration shortly after the September 11 events, which were declared unlawful by the US Supreme Court in June 2006.[39] However, a number of problematic rules were retained. Although the new military commissions cannot use evidence obtained under torture, they are allowed to admit statements extracted through other forms of abuse if they consider these statements to be "reliable" and in "the interests of justice." In order to be admissible, evidence obtained under coercion should also have been made prior to the adoption in December 2005 of the so-called Detainee Treatment Act, which explicitly prohibited the use of ill-treatment by US officials anywhere in the world.[40]

Torture cannot be undone once it is committed, and a sanctioning policy in which the punishment is somehow proportionate to the crime is very problematic in cases of torture, mass murder, and genocide. Therefore, an extremely important strategy of global torture law enforcement is to emphasize the prevention of torture. Article 10 of the Convention Against Torture requires states to educate their "law enforcement personnel, civil or military, medical personnel, public officials, and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment" about the prohibition against torture. Resolution 1999/32 of the U.N. Commission on Human Rights bolstered this mandate, calling upon the United Nations High Commissioner for Human Rights to provide, at the request of governments, advisory services to these governments.

Chapter 3 The Indian picture

Torture, including sexual abuse and rape, continues to be endemic in India. Hundreds of people die every year in the custody of police, armed or paramilitary forces. Torture is widespread and has routinely been practised at police stations in India. Unchallenged and unopposed, it has become a 'normal' and 'legitimate' practice all over.[41]

Custodial torture is rampant; either to get the victim to confess, or, perhaps, given the tardiness and tedium of the legal process, simply to ‘teach him a lesson'.[42] "Encounter killings," extrajudicial executions of suspected criminals, are also immensely popular and politically motivated.

Laws fostering torture in Indian haven't been restricted to terrorist laws. Laws such as the National Security Act, the Disturbed Areas Act, the Armed Forces Special Powers Act or the Armed Forces (Jammu and Kashmir) Special Powers Act have spawned abuses in various parts of the country, including many deaths in custody and widespread allegations of torture.

In 1993, the Indian Government established the National Human Rights Commission (NHRC), which began to address this issue through investigation of selective cases, the award of compensation and the training of law enforcement officials.

In recent years the NHRC has repeatedly urged the government to ratify the CAT. However, there continues to be a high level of acceptance of the practice of torture. In March 1997, a survey conducted among Indian Police Service officers at the National Police Academy, Hyderabad -- published in the magazine India Today -- revealed that 17 per cent agreed that detainees should be “subjected to torture and third-degree methods to get to the truth”.[43]

The Apex Court in D.K. Basu v. State of West Bengal[44], considered the right of the Police to investigate into a case and interrogate an accused vis-a-vis the precious right of the individuals under Article 21 of the Constitution, and answered the same as follows:

"The Supreme Court as the custodian and protector of the fundamental and the basic human rights of the citizens cannot wish away the problem. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be “right, just and fair”. Using any form of torture for extracting any kind of information would neither be “right nor just nor fair” and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated - indeed subjected to sustained and scientific interrogation - determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc. His constitutional right cannot be abridged in the manner permitted by law though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal."

The court then surveying the case-law, as preventive measure, to curb custodial violence, required the Police to follow, in all cases of arrest or detention till legal provisions are made in that behalf.[45]

However the impact of 9/11 was felt in India too. India acted quick, banking upon new found American empathy, hoping to channel it against terrorist camps across the border and hastily pushed through Parliament the controversial Prevention of Terrorism Act, 2002 (POTA).[46] Rather than being piloted through Parliament as a Bill, POTA was promulgated as an Ordinance four weeks before Parliament opened for its winter session. The use of this fast-track procedure enabled the government to bypass the requirement of submitting the text to the Parliamentary Standing Committee on Home Affairs and the National Human Rights Commission for examination and comment. After the Bill was rejected in the Upper House in which the then governing party (BJP) lacked a majority, a rare joint session of both Houses was called. The BJP coalition's majority in the combined 782-member Parliament allowed the Bill to go through. In a majority of ways the Indian legislation is akin to the US PARTIOT Act. ‘Both the PATRIOT Act and POTA have enlarged the executive's powers in the field of conducting searches, electronic surveillance and intelligence-gathering, running squarely into privacy rights that enjoy constitutional protection.'[47]

Fears about POTA have been evaluated against the Indian experience with the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), an anti-terror law under which more than 76,000 individuals were arrested for carrying out obscurely-defined[48] ‘anti-national' and ‘disruptive activities'. TADA was allowed to lapse in 1995 following a sustained campaign by the National Human Rights Commission, together with domestic and international human rights organizations.

It was argued that we needed POTA since the current criminal justice system was not equipped to deal with ‘heightened threats' post 9/11.

It allowed the detention of a suspect for up to 180 days without the filing of charges in court. In practice, the law was often used against marginalized communities such as Dalits (so-called "untouchables"), indigenous groups, Muslims, and the political opposition.[49] It also allowed law enforcement agencies to withhold the identities of witnesses and treats a confession made to the police as an admission of guilt.

However how much benefit the government derived out of having a legislation enhancing the powers of investigating authorities is doubtful. The legislation could not stop the December 13 attack on the Indian parliament. The Prevention of Terrorism Ordinance (POTO) was already in force when the assault occurred.

For reasons well supported in fact and principle the current, United Progressive Alliance (UPA) government led by Dr. Manmohan Singh which succeeded the BJP-led National Democratic Alliance decided to repeal the POTA.[50] However notwithstanding the repeal any investigations, legal proceedings may be instituted, continued, enforced and any penalty or punishment may be imposed as if the said Act had not been repealed.[51] A large number of objectionable features of POTA have been retained by the not so clever exercise of amendments made in Unlawful Activities (Prevention) Act, 1967 Ordinance 2004.[52] But none of these relate to torture.

Following the Mumbai terrorist attacks (26/11), responding to soaring public anger the Government debated and brought to the table two bills, the National Investigating Agency Bill and the Unlawful Activities (Prevention) Amendments Bill, which will facilitate investigation and trial of the accused in cases of terrorism.[53]

The new law proposes to increase the period of detention of suspects by the police and the judiciary from 90 to 180 days and seeks to choke the financial pipelines of groups suspected of abetting terrorism. But the law also makes the signed confession of suspects in police custody inadmissible in court, a crucial deterrent against coercive methods often used during interrogation. According to Criminal Procedure Code, 1973 164 provides expressly that ‘no confession shall be recorded by a police officer.' Moreover, statements made to the police are not admissible as evidence (except that part that leads to discovery of evidence) as per 162 of the CrPC and 25 of the Indian Evidence Act, 1972.

The Government also proposed setting up a national agency, along the lines of the FBI