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No exceptions to the ban on torture
By Louise Arbour
12/06/05 "IHT" - - - - GENEVA The absolute ban on torture, a
cornerstone of the international human rights edifice, is under
attack. The principle we once believed to be unassailable - the
inherent right to physical integrity and dignity of the person - is
becoming a casualty of the so-called war on terror.
No one disputes that governments have not only the right but also
the duty to protect their citizens from attacks. The threat of
international terrorism calls for increased coordination by law
enforcement authorities within and across borders. And imminent or
clear dangers at times permit limitations on certain rights. The
right to be free from torture and cruel, inhuman or degrading
treatment is not one of these. This right may not be subject to any
limitation, anywhere, under any condition.
Many UN member states disregard this prohibition and continue to
subject their citizens and others to torture and ill-treatment.
Although a broad range of safeguards is available now to prevent
torture, many states have either not incorporated them in their
legislation or, if they have, do not respect them in practice.
Particularly insidious are moves to water down or question the
absolute ban on torture, as well as on cruel, inhuman or degrading
treatment. Governments in several countries are claiming that
established rules do not apply anymore: that we live in a changed
world. They argue that this justifies a lowering of the bar as to
what constitutes permissible treatment of detainees. An illegal
interrogation technique, however, remains illegal whatever new
description a government might wish to give it.
Two phenomena have an acutely corrosive effect on the global ban on
torture and cruel, inhuman or degrading treatment. The first is the
practice of having recourse to so-called diplomatic assurances to
justify the return and "rendering" of suspects to countries where
they face a risk of torture; the second is the holding of prisoners
in secret detention.
The trend of seeking "diplomatic assurances" allegedly to overcome
the risk of torture is very troubling. The international legal ban
on torture prohibits transferring persons - no matter what their
crime or suspected activity - to a place where they would be at risk
of torture and other ill-treatment (the non-refoulement obligation).
Faced with the option of deporting terrorism suspects and others to
countries where the risk of torture is well documented, some
governments, in particular in Europe and in North America, purport
to overcome that risk by seeking diplomatic assurances that torture
and cruel, degrading or inhuman treatment will not be inflicted.
There are many reasons to be skeptical about the value of those
assurances. If there is no risk of torture in a particular case,
they are unnecessary and redundant. If there is a risk, how
effective are these assurances likely to be?
But the problem runs deeper. The fact that some governments conclude
legally nonbinding agreements with other governments on a matter
that is at the core of several legally binding UN instruments
threatens to empty international human rights law of its content.
Diplomatic assurances create a two-class system among detainees,
attempting to provide for a special bilateral protection regime for
a selected few and ignoring the systematic torture of other
detainees, even though all are entitled to the equal protection of
existing UN instruments.
Let me turn to my second concern. An unknown number of "war on
terror" detainees are alleged to be held in secret custody in
unknown locations. Holding people in secret detention, with the
detainee's fate or whereabouts, or the very fact of their detention,
undisclosed, amounts to "disappearance," which in and of itself has
been found to amount to torture or ill-treatment of the disappeared
person or of the families and communities deprived of any
information about the missing person.
Furthermore, prolonged incommunicado detention or detention in
secret places facilitates the perpetration of torture and other
cruel, inhuman or degrading treatment. Whatever the value of the
information obtained in secret facilities - and there is reason to
doubt the reliability of intelligence gained through prolonged
incommunicado or secret detention - some standards on the treatment
of prisoners cannot be set aside. Recourse to torture and degrading
treatment exposes those who commit it to civil and criminal
responsibility and, arguably, renders them vulnerable to
retaliation.
On Human Rights Day, I call on all governments to reaffirm their
commitment to the total prohibition of torture by:
Condemning torture and cruel, inhuman or degrading treatment and
prohibiting it in national law;
Abiding by the principle of non-refoulement and refraining from
returning persons to countries where they may face torture;
Ensuring access to prisoners and abolishing secret detention;
Prosecuting those responsible for torture and ill-treatment;
Prohibiting the use of statements extracted under torture and cruel,
inhuman or degrading treatment, whether the interrogation has taken
place at home or abroad;
Ratifying the Convention against Torture and its Optional Protocol,
as well as other international treaties banning torture.
(Louise Arbour is the UN High Commissioner for Human Rights.)
GENEVA The absolute ban on torture, a cornerstone of the
international human rights edifice, is under attack. The principle
we once believed to be unassailable - the inherent right to physical
integrity and dignity of the person - is becoming a casualty of the
so-called war on terror.
No one disputes that governments have not only the right but also
the duty to protect their citizens from attacks. The threat of
international terrorism calls for increased coordination by law
enforcement authorities within and across borders. And imminent or
clear dangers at times permit limitations on certain rights. The
right to be free from torture and cruel, inhuman or degrading
treatment is not one of these. This right may not be subject to any
limitation, anywhere, under any condition.
Many UN member states disregard this prohibition and continue to
subject their citizens and others to torture and ill-treatment.
Although a broad range of safeguards is available now to prevent
torture, many states have either not incorporated them in their
legislation or, if they have, do not respect them in practice.
Particularly insidious are moves to water down or question the
absolute ban on torture, as well as on cruel, inhuman or degrading
treatment. Governments in several countries are claiming that
established rules do not apply anymore: that we live in a changed
world. They argue that this justifies a lowering of the bar as to
what constitutes permissible treatment of detainees. An illegal
interrogation technique, however, remains illegal whatever new
description a government might wish to give it.
Two phenomena have an acutely corrosive effect on the global ban on
torture and cruel, inhuman or degrading treatment. The first is the
practice of having recourse to so-called diplomatic assurances to
justify the return and "rendering" of suspects to countries where
they face a risk of torture; the second is the holding of prisoners
in secret detention.
The trend of seeking "diplomatic assurances" allegedly to overcome
the risk of torture is very troubling. The international legal ban
on torture prohibits transferring persons - no matter what their
crime or suspected activity - to a place where they would be at risk
of torture and other ill-treatment (the non-refoulement obligation).
Faced with the option of deporting terrorism suspects and others to
countries where the risk of torture is well documented, some
governments, in particular in Europe and in North America, purport
to overcome that risk by seeking diplomatic assurances that torture
and cruel, degrading or inhuman treatment will not be inflicted.
There are many reasons to be skeptical about the value of those
assurances. If there is no risk of torture in a particular case,
they are unnecessary and redundant. If there is a risk, how
effective are these assurances likely to be?
But the problem runs deeper. The fact that some governments conclude
legally nonbinding agreements with other governments on a matter
that is at the core of several legally binding UN instruments
threatens to empty international human rights law of its content.
Diplomatic assurances create a two-class system among detainees,
attempting to provide for a special bilateral protection regime for
a selected few and ignoring the systematic torture of other
detainees, even though all are entitled to the equal protection of
existing UN instruments.
Let me turn to my second concern. An unknown number of "war on
terror" detainees are alleged to be held in secret custody in
unknown locations. Holding people in secret detention, with the
detainee's fate or whereabouts, or the very fact of their detention,
undisclosed, amounts to "disappearance," which in and of itself has
been found to amount to torture or ill-treatment of the disappeared
person or of the families and communities deprived of any
information about the missing person.
Furthermore, prolonged incommunicado detention or detention in
secret places facilitates the perpetration of torture and other
cruel, inhuman or degrading treatment. Whatever the value of the
information obtained in secret facilities - and there is reason to
doubt the reliability of intelligence gained through prolonged
incommunicado or secret detention - some standards on the treatment
of prisoners cannot be set aside. Recourse to torture and degrading
treatment exposes those who commit it to civil and criminal
responsibility and, arguably, renders them vulnerable to
retaliation.
On Human Rights Day, I call on all governments to reaffirm their
commitment to the total prohibition of torture by:
Condemning torture and cruel, inhuman or degrading treatment and
prohibiting it in national law;
Abiding by the principle of non-refoulement and refraining from
returning persons to countries where they may face torture;
Ensuring access to prisoners and abolishing secret detention;
Prosecuting those responsible for torture and ill-treatment;
Prohibiting the use of statements extracted under torture and cruel,
inhuman or degrading treatment, whether the interrogation has taken
place at home or abroad;
Ratifying the Convention against Torture and its Optional Protocol,
as well as other international treaties banning torture.
(Louise Arbour is the UN High Commissioner for Human Rights.)
Copyright © 2005 the International Herald Tribune
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