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FOREWORD TO TORTURE: A HUMAN RIGHTS PERSPECTIVE
(July 2005)

Before I became a human rights lawyer, my only encounter with torture came from attending performances of Tosca. In Act II, the judge gives a nod (it’s a non-singing role) and the politically suspect painter is escorted to an off stage torture chamber: his pain-wracked notes traumatise his girlfriend during her interrogation by Inspector Scarpia. To end the torture, Tosca reveals the hiding place of Andreotti, a republican, who is promptly located and killed by Scarpia’s death squad. Meanwhile the tortured tenor, who has hobbled back to centre stage, overhears the news of a republican victory and lets out of his lungs that great operatic paen to liberty: Vittoria! Its incandescent high ‘C’ seemed a pretty convincing refutation of the case for state approved torture, showing that it serves only to inspire defiance and martyrdom.

But not so fast. Let’s update Puccini. Suppose Scarpia is “one of us” (dress him as Donald Rumsfeld) whilst Andreotti is an “enemy combatant” recently escaped from Guantanamo, and last seen being equipped in some way by a sacristan – sorry, mullah – in Act I, which is set in the local mosque. Are our sympathies now, ever so slightly, with the judge who – in a legal process now advocated by Alan Dershowitz - nods for the torture to start and picks up his pen to record the expected confession? Put Tosca in a burka, give Cavaradossi a few flying lessons in Florida, and the audience may wish, ever so faintly, to bring back Linndie England and the alsatians.

In real life, terrorists don’t have girlfriends (more’s the pity) and the female of the species (e.g. the “black widow” suicide bombers from Chechnya) are not only deadlier than the male but hold out longer under interrogation. Tosca, the tender-hearted but air-headed diva (today, she’d be a UN “goodwill ambassador”) informed on Andreotti because she wanted to stop the suffering of the man she loved. Torture works, in other words, if the state is prepared to assault partners, parents and (especially) children, within the sight and hearing of the person from whom it wants to extract information. But this kind of torture is so bestial that “we” – meaning the states in the West – could never sanction it. The only torture we are prepared to contemplate – sleep deprivation, hooding, spread-eagling, “psychological pressure”, and so on – will not terrify the real terrorist, nor will it make his friends or loved ones reveal the secret of the well in the garden. This kind of low-level torture simply produces unreliable information: if we want truth from the prisoner, we would do better to offer large sums of money, or to offer him freedom. Inhumane treatment is counterproductive: the pictures from Abu Graib have become recruiting posters for Al Qaeda.

English common law always refused to adopt the infliction of pain as a device for proving guilt: as Fortesque, the 16th century jurist, said, torture is something done by the French. There had been exceptions, of course, notably for treason: in the National Archives today you can see how the handwriting on Guy Fawkes’ confessions trails away after stretching on the rack leaves him too weak to hold the pen. But in the seventeenth century, the Star Chamber (the King’s torture chamber) was abolished (1641); “cruel and unusual punishments” were outlawed in the Bill of Rights (1689) and habeas corpus, the fundamental right to challenge state detention, was in 1679 given such statutory force that three centuries later it could still be applied by the US Supreme Court, when pointing out to the Bush administration that due process extended to off-shore islands. These safeguards against torture, achieved at a time when, as James Ross points out, it was an established and routine part of criminal justice throughout the continent of Europe, were a form of humanitarian constitutional progress in which we should take Anglo-American-Australian pride.

Just because we have laws against inhumane treatment does not mean they are always obeyed. Suspects are often beaten up in the cells, but at least the common law rules permit cross-examination of police at trial and a rejection of any confession that cannot be proved voluntary. Those suspected of ordinary crime are now protected in Australia and the UK, by rules requiring tape recording (and even video recording), of police interviews. Special regimes that have been enacted for detention of terrorist suspects, however, often do not afford these protections, and it is in this context, when “the gloves must come off”, that infliction of pain is most tempting for interrogators. In Birmingham in 1974, a few hours after IRA bombs in crowded pubs had killed 30 young people, a number of Irishmen had confessions extracted through force, by police who believed them guilty and were thus consumed with righteous fury. After “the Birmingham Six” had served almost two decades in prison, the wrongful convictions were finally overturned – but the damage that the case did to the reputation of British justice was incalculable.

Many governments approve the inhumane treatment of detainees “in the interests of national security”. That was the case in Singapore’s “Marxist conspiracy” detentions in 1988, when the ISD (its secret police) rounded up a group of young lawyers, Catholic aid workers and women playwrights, detaining them for years without trial and subjecting them to what Home Affairs Minister (now Prime Minister) BG Lee admitted was “psychological pressure to get to the truth of the matter… the truth would not be know unless psychological pressure was used during interrogation”. This psychological pressure was described by the detainees who became my clients: it amounted to sleep deprivation (for up to 20 hours), standing for interrogation in cotton pyjamas under sub-zero blasts from an air conditioner; being doused with cold water and enduring threats to have their loved ones arrested for similar treatment. These “psychological pressures” were cunningly chosen so that they would leave marks on the mind but not on the body. But what “truth” did they elicit? They said what their paranoid interrogators told them to say: “I am Marxist inclined… my ideal society is a classless society… I was made use of by…” (insert name of priest or student that the ISA wanted an excuse to interrogate). These “confessions”, made by frightened middle class idealists to win respite from the deep-freeze, were anything but the truth, because the truth in their case was of no interest to conspiracy-fixated interrogators.

We should not underestimate the effect of torture on the weak, the innocent or the mere sympathiser. It can produce amazing results – false admissions to crimes carrying life imprisonment or even death. In the 1930s, Stalin’s show trials fooled the world because every defendant’s confession was word-perfect. In Darkness at Noon Arthur Koestler imaginatively attributed to these old Bolsheviks an urge to sacrifice themselves for communism, but the truth we now know to have been more mundane. Before the trial opened, they spent months on “the conveyor”, a disorientation technique in which denial of food and sleep produced suggestibility and acquiescence in the fantastical script written by the prosecutor. They were told at rehearsal that if they changed their lines in the public courtroom, their wives and children would be killed – and they knew that Stalin’s willing executioners were not bluffing.

This book explains that “the conveyor” has been followed, in the grim argot of state sadism, by “the parrot’s perch”, “the telephone”, “the airplane”, “water-boarding”, “the Liverpool” not to mention old standards like the cattle prod, the cigarette burn and the electrode attached to the genitals. Some years ago I had the privilege of representing Human Rights Watch in proceedings against General Pinochet, and I have kept a copy of his indictment. It contained 30 charges, of which the following are typical:

That you on or about 29th October 1976 being a public official, namely Commander-in-Chief of the Chilean Army, jointly with others intentionally inflicted severe pain or suffering on José Marcelino Gonzalez Malpu, by applying electric current to his genital organs, shoulders and ankles and pretending to shoot his captive naked mother in front of him, in purported performance of official duties.

That you jointly with others intentionally inflicted severe pain or suffering on Irma del Carmen Parada Gonzalez by:

  1. stripping her of her clothes;

  2. applying electric current to her mouth, vagina and breasts;

  3. subjecting her to rape by two men;

  4. putting her hands into chemicals and introducing them into a machine causing her to lose consciousness;

  5. forcing her to eat putrid food and the human remains of her dead fellow captives; in purported performance of official duties.

That you in 1974 being a public official, namely Commander-in-Chief of the Chilean Army, jointly with others intentionally inflicted severe pain or suffering on others by the employment of “Papi”, a man who had visible open syphilitic sores on his body, to rape female captives and to use on them a dog trained in sexual practices with human beings, in purported performance of official duties.

Given these charges, it is interesting to recall the distinguished people who demanded that Pinochet should never face them. His freedom to live happily ever after was championed by Mrs Thatcher and Dr Kissinger (of course) by Jesse Helms and George Bush Snr (as you would expect) and regrettably; by the Pope and the Pope-in-Waiting. Even, and incredibly, by Pinochet’s mortal enemy, Fidel Castro, who declared the arrest “an affront to national sensibilities”. In Australia, John Howard merely evinced surprise that the law had changed so much since he had studied it.


The law – international human rights law – has changed, to the extent that states now owe a duty to the international community to investigate and punish any breach of the absolute prohibition in Article 5 of the Universal Declaration of Human Rights:

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

The 1984 Convention against Torture has been ratified by 127 states. It requires torture suspects to be put on trial or else extradited to a country which will put them on trial. Torture is defined by the Convention as the intentional infliction of severe pain or suffering, whether physical or mental, by or with the consent of a public official (excluding the imposition of lawful punishments). The Convention on torture defines “degrading treatment”, and there have been several unsatisfactory attempts to draw a distinction. The case most commonly quoted was brought in the European Court of Human Rights by the Republic of Ireland against the UK over “in depth interrogation” to which internees in Belfast in 1970 were subjected by the British Army. They were hooded and forced to stand for several hours spread-eagled against a wall, while questioning was interspersed with discombobulation from sleep-deprivation and high-pitched noises. The Court held that this treatment was degrading although it did not amount to torture, which was defined as “deliberate inhumane treatment causing very severe suffering”. In cases brought against the fascist military junta in Greece, it had no hesitation in finding that electric shocks, bastinado (beating of feet so as to produce pain and swelling), genital assault, burning with cigarettes and sticking pins under nails would all cause pain of sufficient cruelty and intensity to satisfy this definition. In 1999 it emphasized, in a case brought against France, that repeated beatings during police interrogation, causing severe pain over a period of time, amount to “torture” rather than to “inhumane treatment”.

For the purposes of the European Convention, the distinction between “torture” and “inhuman treatment” does not matter other than to calculation of damages. Both techniques are prohibited. But in post-9/11 pronouncements from the US officials who have seized upon the distinction, is that the war on terror justifies “inhuman or degrading treatment” which does not amount to “torture”. They claim that certain intentional forms of suffering, euphemistically called “augmented techniques of coercive interrogation” may be inflicted upon terrorist suspects. But the Geneva Conventions, which protect prisoners of war, specifically prohibit “outrages upon personal dignity”, and the Convention prohibits “cruel, inhuman and degrading treatment”. Reed Brody picks his way through the US military euphemisms: forced standing for hours on end; taking advantage of individual phobias; environmental manipulation (this may involve adjusting temperature – presumably as they do in Singapore); dietary manipulation (i.e. temporary starvation); deprivation of light and deprivation of auditory stimuli (blindfolding, or solitary confinement in a darkened cell); stress positions (painful shackling and contortions), forced nudity (especially in the presence of dogs); isolation (solitary confinement for 30 days); working dogs (one way of taking advantage of individual phobias, i.e. the Arab fear of dogs).

All these degrading techniques have at one time or another been approved by Donald Rumsfeld or his senior commanders to “soften up” detainees in Guantánamo and Iraq. All of them breach the Geneva Conventions, whether or not they amount to torture, and their approval would have sent a supportive signal to Linndie England and other “sadists on the nightshift” whose behaviour at Abu Graib has encouraged hatred of America throughout the Arab world.

Bush lawyers have in this respect proved bush lawyers. Jay Bybee, assisted by John Yoo, defined torture so tightly that pulling fingernails would not qualify, while Alberto Gonzales thought that Islamist jihad "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions", and advised that Guantanamo was beyond the reach of habeas corpus. They turned a blind eye to international law, and believed the US government was entitled to withhold due process from men who are not American citizens and are not imprisoned in the US, and to subject these non-Americans, once located in an offshore limbo-land, to treatment that could qualify as inhuman or degrading. This approach is not merely provincial, it is counter-productive because, as Senator John McCain points out, it sets an unhappy precedent for captured US servicemen in future wars whose lives may depend upon strict compliance by their captors with the Geneva Convention.

It puts British and Australian soldiers in peril, too. Those of our fathers and grandfathers held prisoner in Nazi Germany were treated with some dignity, thanks to the Geneva rule. Many were maltreated by the Japanese (who, contrary to myth, were well aware of the rule) but at least some of their captors were punished after the war. Later, in Korea and Vietnam, patchy compliance with the Conventions saved at least some Australian – and many US – lives. That is why we dishonour and diminish the Geneva Conventions at our peril. “Obsolete” they may be in part (the right of prisoners to smoke cigarettes is certainly outdated and the privileges for officers reflects an antiquated British class system). “Quaint” they may seem, but only to those ignorant of how they were influenced by the Holocaust. “The American people are never going to pay for Taliban prisoners to have a musical instrument!” fumed a White House spokesman, failing to appreciate that this rule a) came about because of the importance of orchestras in Jewish ghettoes like Terezin and b) that the Taliban hate music.

* * * * *

Torture is not confined to the application of pain to induce a suspect to confess. I first encountered it in real life in the atmosphere of death row in Trinidad, when visiting black power radical Michael X after he had been sentenced to hang. There were about 30 men in monkey cages, sweating in the heat, fingers scratching through the wire, screeching and shouting at each other and at the warders. They were allowed neither education nor exercise as they waited in torment for their death warrant to be read. The victim would then be weighed and measured for the drop: the sound of his family wailing and screaming would be interspersed with the sound of the hangman loudly testing “the trap”. After spending a few hours on death row, it struck me that men stuck here for years were effectively being tortured, and were certainly subjected to “cruel and inhumane treatment or punishment”, contrary to the 1689 Bill of Rights and to the Trinidadian Constitution. Most condemned men in the Caribbean – as well as in the US - stay on death row for many years before their eventual execution, and this prolonged emotional and psychological suffering is of a different – a more extreme – dimension of inhumanity than the actual hanging. Although the death penalty itself is carefully protected from constitutional challenge the Privy Council in the case of my clients Earl Pratt and Ivan Morgan v Jamaica held in due course that a prolonged stay on death row amounted to torture and prevented the state of Jamaica from executing them. As a consequence, hundreds of death sentences have had to be commuted and the argument which has saved these lives in the Caribbean will shortly be tested by a case awaiting argument in the US Supreme Court. If accepted, very few death sentences will be carried out.

If there is one addition I would make to the reform suggestions in the book, it is to improve the existing Geneva provisions for monitoring the treatment of persons detained in the wake of war, whether as POWs, “enemy combatants”, or as suspected spies or terrorists. They are most at risk of torture, and the only safeguard is the International Committee of the Red Cross. Article 3 gives Red Cross representatives a legal right to enter the prisons and police cells of all belligerents, to monitor conditions and compliance. This is a task that the Red Cross has courageously and punctiliously performed, but under a procedure which has one fatal flaw. It is utterly confidential: Red Cross reports are secretly sent to a country’s high commanders and are never made available to the public. The mistreatment at Abu Graib was first detected by the Red Cross, but its report to the US defence department was completely ignored – until it was leaked by some “deep throat” in the Department to the Wall Street Journal. In how many other prisons has the Red Cross found evidence of torture, yet cannot disclose it or speak out when the torturers are permitted to continue?


This confidentiality seems unconscionable. If torture is a crime against humanity, (and it is) then covering it up must always be ethically questionable. The Red Cross justifies secrecy on the basis that if its reports were published, many governments would not allow it access to their prisons. The argument may be overstated: the Geneva Conventions give it access by right and countries which refuse would suffer aid and trade sanctions and turn the human rights spotlight on themselves, since the refusal would signify that they had something – namely torture – to hide. But the Red Cross is adamant, with the result that its monitoring can never be a satisfactory safeguard. There are, no doubt, a few governments which would deny it access if its reports were to be made public, but surely it is time for those countries – like Australia - which both condemn torture and maintain they have nothing to hide, to take the lead by waiving their right to confidentiality in Red Cross reports.

The paradox of torture is that all states pay lip-service to its illegality yet many – 73 at Amnesty International’s last count – still secretly permit the practice. It will never end for terrorist suspects and prisoners of war, unless states are prepared not only to allow independent observers into their prisons, but to suffer publication of their findings. That time may be far off, but it is the work of organisations like Human Rights Watch which bring it closer.

 

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© 2005 Geoffrey Robertson QC
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