Why Torture Is Wrong?

An Article from the Asian Human Rights Commission
October 9. 2013

The following interview was originally printed in the latest issue of the Torture: Asian and Global Perspectives.

An exclusive conversation with Dr. Nora Sveaass

Born in Oslo, Norway, in December 1949, Dr. Nora Sveaass is a clinical psychologist who has been engaged in various parts of the world in relation to human rights and rehabilitation after torture. She is an internationally renown psychologist who became a member of the Committee against Torture in the United Nations (UNCAT). Dr. Sveaass, who is currently an Associate Professor at the Department of Psychology in the University of Oslo, recently corresponded with Nilantha Ilangamuwa, editor of the Torture magazine. Following is the full text of an interview in which she has explored her extensive work on torture prevention and in healing the wounds which have caused a series of conflicts in society.

Nilantha Ilangamuwa (NI): Why is the study of psychology so important?

Nora Sveaass (NoS): Psychology is about human beings, their existence and co-existence with others. Psychology studies human life and action in context. The human being is a whole, and mind and body cannot be understood as separate entities or apart from each other.But it is true that psychology gives special weight to the study of how the human mind works and develops, how human behaviour can be understood, described and even explained and how human beings interact with each other. This includes the study of emotions, motivation, cognition and a lot more of course. One of the important contributions of psychology is knowledge about how human behaviour develops and how changes come about. Insight into processes and conditions for change, that is changes that happen over life span, and changes that come about as result of social processes or social events, is considered an important part of psychology. The study of behaviour change is of course especially important in a context of therapy. I will come back to this. And all what I have mentioned must be seen as elements closely linked to each other and as part of a dynamic process. Psychology has developed a lot over the last 100 years, and today, the study of psychology and what psychology as a science has obtained in terms of knowledge and insight holds a central position in many ways. What happens in the psychological sphere in peoples' lives, whether it relates to emotions, thoughts, experiences and even mental health, may even today often be considered secondary compared to the physical body and the material world. One can often hear expressions such as "just psychological", "only mental" etc. But the psychological aspects of human life and actions represent the qualitative aspects of life. We know that a person may become extremely ill for lack of psychological stimulation, even if a lot of other basic components for survival may be present. And many people, who have experienced isolation, will say that this is the worst form of torture. That is, the body is never directly attacked with pain or suffering, but the pain that is created by lack of social, perceptual and other forms of stimuli, create not only pain then and there, but may create long-lasting suffering and trauma in the lives of those who have been exposed to this. Early research on children showed that babies could even die from what was called "anaclitic depression", that is a serious impairment in an infant's social, physical and intellectual development, due to lack of mothering, that is close emotional contact and stimulation. The knowledge that psychology establishes has important impact in the area of health, ensuring good development for children, and forms the basis I would say also for social justice and respect for human dignity and vice versa. Lack of social justice, and violations of human dignity, have serious consequences for human psychology.

NI: In the last few decades, where has the study of psychology had a major impact on the rest of the world?

NoS: Psychology, being the study of human beings in context, with a focus how we perceive the world, how we react in the world, how we develop in this world, how relations are established and what effect this has upon us, just has to be relevant in a lot of different areas. To be quite honest, , I can think of few areas of modern life where psychology, with knowledge and insight into the human mind and behaviour, its cognitive functions as well emotional and creative ones, is not highly relevant, or at least very interesting. And by being a science with a strong academic backing, and at the same time a practical and applied science, it represents an approach with strong impact in many ways. It will be much too much to refer to all of this here. Because we are talking about a field which over the last years has seen a tremendous development in psychological study of the brain, so-called neuropsychology. This has resulted in a far better understanding of cognitive functioning, and the strong relationship between cognition, behaviour, social and emotional functioning and health. And the strength of psychology is not only in describing the processes in the brain, but it studies the functions, how these processes in fact affect the way humans function in the world, in their bodies, and in their social world.

Psychology, given the fact that it covers such a wide array of studies, its impact is to be seen in quite different areas of society. We are talking about a science which has not only set it footprints many places but has actively contributed to , forming, changing and developing fields as diverse as corporate management and organisations, transport and security, including how can we ensure that traffic signs are perceived as easily and correctly as possible? We have psychologists in selection of personnel, from submarines to airplanes, and a lot of risk assessment, and preparation for stress. Psychology has for long been included as resources in advertisement for commercial reasons, but also in political information and propaganda. And psychology represents an important basis of knowledge and does not in itself have value direction. Therefore there is always the possibility that psychological knowledge can be used both to enhance values related to respect for human rights, and to bring them down, such as we have seen in different situations. Based on psychological knowledge techniques for interviewing has been developed, such as ways of conducting interviews, be it for jobs, for information or for diagnostic purposes. Likewise this information has formed the bases for ways in which to interrogate as well. Good interrogation can be done according to human rights, and respectful interrogation may well be based on our knowledge of how alliances and trust are established. But psychological knowledge may also be used or misused in interrogation, where knowledge about "soft spots", what makes people break down, etc. has been used systematically to get confessions or in other ways to humiliate people. Different ways of creating pain, such as described above, including inducing severe fear, addressing aspects that create shame and humiliation and the like, have all been part of torture, and this may well seem to have been built upon insights developed within psychology. It is therefore always an important challenge to ensure that psychological knowledge is not abused in contexts that are contrary to international human rights principles, and prohibitions, such as the absolute prohibition against torture, and that nothing may ever justify the use of torture.

Psychology is also about health - about understanding regular human development and psychological illness and distress of different kind, how it develops, how it is maintained and how it can be dealt with from the point of view of therapy. In particular I want to mention the strong focus on children all we today know about the needs of children and how healthy development can be ensured, and how lack of stimulation, support, safety and active recognition can be very critical in the lives of children. But back to therapy and psychological treatment - many therapeutic approaches have developed over the years, and today there seems to be a tendency for better dialogue and communication between the different schools or traditions. But what we know about human pain and stress is also important to develop strategies for prevention, and early intervention. In particular the knowledge about effects of stress on human functioning has developed strongly the last 30 years. Active involvement in traumatic events, better ways to detect the consequences and better tools to deal with post-traumatic reactions are important. But also this rests upon early traditions in psychology, from Freud's description of sexual violence against children, to studies of shell-shock and concentration camp syndromes from the two World Wars.

It is also worth mentioning that a lot of psychologists have been engaged in peace psychology, and in conflict and conflict-resolution activities. Again, based on psychological knowledge and recent research, this area is something that needs to be highlighted even stronger, and lead to active involvement of psychologists in this area.

NI: "Restructuring meaning after uprooting and violence and Psychosocial interventions in refugee receiving and in post-conflict societies", was your PhD thesis. Can you elaborate on your findings with examples in those areas?

NoS: My objective was to explore ways of reconstructing lives after human rights violations and uprooting. I had worked as a therapist with refugees and victims of torture for many years and I had asked myself - what does it take from a host society to be able to, in collaboration with those who have sought protection in the country, to establish a life in exile and to re-establish a life project. This is not readily answered of course. Because this may involve a long process of rehabilitation involving psychotherapy and other forms of health care, but also because we are talking about how society can engage the newcomers and how people with refugee background can involve themselves in the new society, while at the same time dealing with the pain of the past. So part of my work was to look into therapeutic processes with refugees in Norway, in particular family therapy. But I also included a vast material from an out-patient clinic, the Psychosocial Centre for Refugees, receiving traumatized refugees for therapy and psychosocial assistance. And the results from this study pointed in an interesting direction from my point of view, as I am very interested both in the meaning aspect of people's lives and of family and support as important conditions for recovery and development. We saw that lack of activity, that is, no work or no activity in form of training, education programs etc. , had a detrimental effect on people's health in exile, and this effect was clearly noted whether people had suffered severely or less severely prior to arrival. As to the importance of family, it seemed clear that the more exposed persons had been to violations and pain prior to exile, that is, the higher the rate of trauma-related distress in exile, the more important the presence of family seemed to be. These results strengthened my interested in having a family focus in my work with refugees, knowing that the social and emotional support that families can provide, may have a very beneficial impact on integration and recovery. But, knowing that many families struggle, the health-effects or benefits of assisting families to cope with the different hardships they face in exile seems to be a matter of priority.

But I also wanted to compare the experiences from Norway to experiences from other countries, and as the University of Oslo was collaborating with universities in Central America, I was fortunate to have a semester in Managua, Nicaragua, where I could learn about how post-conflict reconstruction was thought about and worked with in the countries where the conflict had taken place. Interviews with a large group of helpers, of different categories, but all engaged in persons subjected to and traumatized by the civil war in Nicaragua, on both sides, made it clear to me that the lack of life project, and the destruction of meaningful relationships in life, including with regard to the activity that they were good at, namely war, made life miserable and meaningless, in the eyes of many of the affected. The reconstruction of activity, relationships and meaning in life, through skills training and educational activities, and reconstruction of family relationships, seemed very important to the affected groups. Furthermore, the war-affected men and women were also offered, by some of the active NGOs in the field, so-called "moral education", that is, groups where values and norms could be discussed. Too many had continued to live as if they were still at war, and had established a post-conflict life both with violence and drinking, and the psychosocial activities they were offered, a kind of social-therapy groups, were focusing on re-establishing the values and norms that were broken down by the war. In particular, domestic violence, sexual violence and heavy drinking were addressed, and according to many of those I interviewed both among helpers and helped ones, these interventions were regarded as highly useful and with effect in people's lives. My study was qualitative, so exact results cannot be described, but through the study, including a very rich data-material , I definitely learned a lot about the importance of recreating meaning and relationships following severe violence and violations of human rights, and how re-engaging with society again and feeling part of a collective contributes to sense of dignity and self-worth. Because armed conflicts and authoritarian and torturing regimes break down all these aspects of human living. Thus, I have often thought about war and oppression as systematic destruction of meaning. I have taken a lot of these reflections back into my work, both clinical, research and also my human rights work, such as in the UN Committee against torture.

NI: You have been working on a project known as, "Identification of vulnerable asylum seekers in Norway and EU – a comparative study". This is a very challenging subject and many countries are facing significant difficulties in regard to asylum seekers. At the same time, many asylum seekers are facing difficulties to get recognition by the authorities of their host countries. What are some of the chief concerns within this subject, and what countries are having the greatest difficulties with asylum seekers?

NoS: The work with asylum seekers is a very challenging one, all over Europe. The project related to identification of vulnerable asylum seekers was actually a European project, initiated as part of evaluation of and possible changes in EU's Reception directive for asylum seekers. This directive, defined by the European Council, the so-called COUNCIL DIRECTIVE 2003/9/EC of 27 January 2003, laying down minimum standards for the reception of asylum seekers, has an article 17 defining the following: "Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care". This said, it was important to define ways in which these vulnerable asylum seekers could be identified and provided with the care that they would need as well as protection. In Norway this has been taken up and at the moment we are defining the standards by which interviewing and identification of vulnerability can be assessed. Also, the importance of finding ways of identifying and documenting torture is an important issue. Here we are working on a plan to integrate and implement the Istanbul Protocol, the UN manual for effective investigation and identification of torture and ill-treatment. The group working with this in Norway, clearly shares the viewpoint clearly expressed also by the Committee against torture in the UN, that torture experienced prior to exile must be thoroughly investigated and documented. This is important both to lay the ground for care and needed therapy and rehabilitation, but also because it may shed important light on the need for protection in an asylum country and it may represent an important document that persons may need in the context of redress, that is, compensation and justice.

Many of the asylum receiving countries today, despite council directives and other important policy documents, do not engage seriously enough in the identification of vulnerability, nor on torture and ill-treatment. We hope to be able to work with this and strengthen the work in this respect. It is important for treatment but as mentioned, also as documentation of wrong-doing.

But of course, many of the challenges today in relation to Europe and asylum seekers may also have to do with financial crises and problems related to an ever higher level of unemployment, the fear for the future etc. This is a realistic problem which cannot be concealed. But on the other hand, this is also an argument that is used to cover up for xenophobic and even racist attitudes. And this is not the first time in history this happens, so one must be very aware of the dangers involved in this.

NI: "Victims' experiences of transitional justice in Argentina and Peru" is another project that you are actively part of. Could you share some of your personal experiences while working on this project in Latin America?

NoS: The battle against impunity, in particular how this was initiated by human rights activists in Latin America during and after the military dictatorships, including by professionals within psychology and medicine, was a strong inspiration and an eye-opener to me.

Much of what happened in international criminal law during the 1990s can be understood in light of this strong and engaged campaign against impunity, in particular in Latin-America. The fight against impunity began during the era of the military dictatorships, and has not diminished following the adoption of amnesty laws for crimes against humanity. In Chile, Argentina, Uruguay and Peru, psychologists, doctors, and others who worked with torture survivors and families of disappeared per­sons within the framework of human rights organizations argued that impunity must be considered as a continued and on-going form of torture. Impunity for those responsible for crimes against humanity was re­garded as detrimental to any reconstruction of society and incompatible with the process of healing and moving on in life. Diana Kordon, Dario Lagos, and Lucilla Edelman from Argentina, and Paz Rojas, Elisabeth Lira, and Maria Castillo from Chile are among those who have stressed the importance of not leaving this battle to the legal field alone. The fight against amnesty laws was thus also based on arguments from a psychological and trauma-informed perspective. These professionals, who have also written extensively about the experiences, are still engaged fulltime in the fight against impunity and for justice and reparation, for the survivors and families of the disappeared, and for assistance, treatment, and follow-up of people severely traumatized some from more than 30 years ago. Inger Agger, in a recent interview with "Torture" (Volume 02 Number One: Page 05) also spoke about this important contribution of our Chilean and other Latin-American colleagues, and she too spoke about how our professional encounter with them have constituted very important inspiration and learning. In fact both Inger and myself have continued to work in this area since we first met with our brave friends in Latin-America, and the two of us have also had a very meaningful collaboration over the years, actively these last years with the issue of Transitional justice and the experiences of witnesses and survivors.

What our colleagues from the south have taught us has really represented important input into the fight against impunity. But in our research project (Anne-Margrethe Sønneland and myself) we wanted also to explore more in depth - what do we actually know about the effects on mental health of impunity. What does it mean to people to experience that the perpetrators and those responsible for the crimes committed against them, and here we are talking about the most serious crimes against humanity, are protected by amnesty laws and a policy of impunity, that allow them to walk freely around and are not held to account for what they have done. This may create in them, not only a deep feeling of injustice and lack of fairness, but it is fear and anxiety, and lack of trust in the society that allows this to happen. A lot has happened in relation to impunity at a global level, and today, amnesty for the crime of torture is a serious violation of the Convention against Torture. So that is why it is so important to ask: when it finally comes to initiatives to transitional justice and transitional justice mechanisms, it is important to ask: What does it mean to the former prisoners, to the tortured ones and their families, to witness in court, to tell their story in public, often for the first time? And furthermore, what about redress, in the form of compensation and rehabilitation..... Is this something that is sought, is it wanted by the affected ones? Yes, their right to receive this is there, but how do they feel about it? These are some of the questions we are raising in our study, and we will publish our findings next year. But we see, perhaps even stronger than we had expected that courts and legal processes are important. It represents a message about accountability, that society has acknowledged the fact that the violations have taken place etc. But equally important are the reactions of society - that is recognition of what actually happened, truth-telling and social acknowledgement of pain and suffering.

NI: You have been involved in a project on Health and Human Rights which has a very comprehensive webpage. Also you are involved in developing training material to persons involved with care to women exposed to conflict and war related GBV. Could you please describe these projects, and also inform about the manual and how this will be used?

NoS: I have often experiences that good projects aimed at assistance and support develop from the very first start each time they are required, which usually may be situation of crises and need. We wanted to put together experiences, and lessons learned in relation to psychosocial assistance and psychological help to persons exposed to war and conflict, and subjected to torture and other forms of ill-treatment. So on one hand this project is a resource data base with a lot of good practical experiences grouped together but presented in such a way that care providers, whether they are working in humanitarian crisis, such as war and conflict, or the like, or they are working with internal refugees, persons imprisoned and tortured, those who have suffered other forms of hardships and losses, given political violence and oppression, may have some input as to how to deal with and respond to such situations. In such circumstances, the problem is also that specialists and trained personnel may be far away and not available, and a lot has to be developed then and there. We hoped that communicating the experiences of others would help care givers and inspire them in their work. At the same time we felt it was important to bridge the gap between health care professionals and human rights activists, including legal professionals in the field. To develop this website, where health care and ways of dealing with such problems are presented together with information about conventions, treaties etc. may give this extra understanding both to the human rights field and to the care and health field. Then we developed thematic pages in order to bring these aspects even closer together. Under the page called TORTURE, there is information both about conventions, methods to assess and detect, ways of assisting and providing necessary care to those exposed to this, based on a lot of experiences in the field. We include information on therapeutic principles as well as some shorter interventions. We know that this webpage has been actively used also as part of training, and we hope that our efforts with this project may be beneficial in many ways. At the moment we are developing a manual to assist those working with victims of gender based violence in conflict. We hope that after we have done completed to pilot training projects, this manual will be available on our page, and that it may prove possible to use in the work to strengthen helpers in this very serious and tragic field, of sexual violence in conflict.

NI: You are a member of the Committee against Torture, (CAT) which monitors the implementation of the United Nations Convention against Torture (UNCAT). What are the some of the positive aspects you have seen since the UNCAT was first created?

NoS. The Convention against Torture was adopted in 1984 and entered into force in 1987. This year the 25th anniversary for the convention was celebrated in Genève at the Palais de Nation with the aim of highlighting some of the important contributions and advances that have taken place during these years. A total of 153 states have ratified the convention, meaning the states, have agreed to comply with the provisions of the convention, both in its legal system and in actual life. The state parties to the convention must bring their domestic laws in line with the requirements of the treaty. Among other things, this means that the definition of torture, as this is defined in article I, must be integrated, acts of torture must be properly defined as offences under the criminal law and penalties for such crimes must take into account the grave nature of torture. Furthermore, states must take effective, legislative, administrative, judicial or other measures, as it says in Article 2, to prevent acts of torture in any territory under its jurisdiction. This means that measures must be taken on a lot of different levels. The responsibility of the state to prevent torture also refers to the responsibility to prevent, investigate and punish acts of torture or cruel and inhuman treatment done by non-state actors as well. I consider this as one of the very important articles of the convention, and the committee has been working very specifically with this obligation. In 2009 a General comment to this article was adopted. Here state responsibility is described more in depth, and the failure to prevent, as well as the failure to investigate and punish such acts, are seen as a serious violations. General comment No 2, in paragraph 18 states the following: "Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non-State actors to commit acts impermissible under the Convention with impunity, the State's indifference or inaction provides a form of encouragement and/or de facto permission. The Committee has applied this principle to the State parties' failure to prevent and protect victims from gender-based violence, such as rape, domestic violence, female genital mutilation, and trafficking" (Gen.comment no. 2). With this formulation, the CAT has strengthened its position with regard to different forms of violations, in particular violence against women and girls, which too often, in much too many places in the world, have been going on with impunity, and with lack of protection, compensation and assistance to those affected. I regard this point as one of the very important steps in the 25 year history of CAT, and today one will find questions, as well as expression of deep concern and clear recommendations in relation to gender based violence and violence children also in private settings, in relation to trafficking and gender mutilation, and gender discriminate laws and regulation, such as early marriage age, non-accountability in cases where rapist marries rape victim etc.

A strong focus on training in the prohibition against torture is also among the important issues worked with. Training is required not only for uniformed personnel but also doctors, psychologists, teachers etc. As part of training, a systematic training in the Istanbul protocol is among the requirements, and this is an important condition for detecting and documenting torture, as well as a strategy to prevent it.

The most recent development within the Committee against Torture and the work to prohibit torture is the focus that has been on article 14, on the obligation of states to provide redress to victims of torture, including the right to rehabilitation. In November 2012 a general comment No 3 to article 14 was adopted. This defines and clarifies the content and scope of the obligations under article 14 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and seems to become a very important document in the process of ensuring that all victims of torture in fact may enjoy the rights they have under the convention, in particular to the right to compensation including rehabilitation. All victims of torture have the right to redress, which includes the right to effective remedy and to reparation. As formulated in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UN Resolution 2005) the notion of reparation includes five forms of reparation, that is, restitution, compensation, rehabilitation, satisfaction and guarantees of non-reparation. The General comment explicitly refers to these same forms. In the general comment the Committee affirms the importance of rehabilitation as something which must be multi-disciplinary in nature and include medical and psychological care as well as legal and social services. "The aim of rehabilitation thus refers to the restoration of function or the acquisition of new skills required by the changed circumstances of a victim in the aftermath of torture or ill-treatment. It also seeks to enable the maximum possible self-sufficiency and function for the individual concerned, and may involve adjustments to the person's physical and social environment. Rehabilitation for victims should aim to restore, as far as possible, their independence, physical, mental, social and vocational ability; and full inclusion and participation in society" (GC3). Given what one knows about the effects of torture, both the short term and long-term effects, emotionally, socially and cognitively, a holistic and integrative concept of rehabilitation is vital. We hope that this general comment will strengthen the process of ensuring not only compensation and other forms of redress, but also good therapeutic assistance and rehabilitation, in line with what we know about this from all the work that has been undertaken, and in full respect of and in full participation with the victim and his or her family.

All this said about the content of the provisions and obligations, it is important to refer to what it means to a state to ratify CAT, and how also civil society is involved in the process. In many ways this aspect is one of the central elements in the treaty body system. And during the years, the steps and structure in this process have been better and more clearly defined, so that one today has a transparency and a possibility of looking into and claim monitoring and insight that is remarkable. Ratifying means that the state has to submit reports every 4th year on compliance, that is, what has the state done to integrate and implement the requirements, both the legal ones, and implications on the ground. The committee receives the state report (the periodic report), reports from the UN system, including the special procedures, and others such as regional human rights bodies, and last but not least, the alternative information from civil society, usually national and international Non-governmental organisations. This information is vital to the committee. These alternative reports, formerly often called "shadow-reports" often point to loopholes in the practical implementation and compliance with the convention, and frequently provide concrete examples and cases. Based on this material direct questions can be raised with the states, asking them for more information, explain why things are as described by other sources and what plans the state may have to alter this. So - in this way civil society contributes importantly to the work of the committee -and the recommendations from the committee may certainly be an important basis, not only for actions by the state, but also as support to NGO-claims regarding respect for human rights.

The treaty bodies, together with an ever stronger system to monitor and overlook respect and violations of human rights, represent important developments, and it is my strong conviction that during these years of the Torture convention being in force, a number of very important monitoring and complaint mechanisms have seen the daylight, and have proved valuable in practice. This of course became even stronger with the adoption of the Optional Protocol to the convention, the OPCAT, and the establishment of the Subcommittee, which as part of its mandate, must overlook the establishments of National Preventive mechanisms in all the state parties to the convention.

NI: Torture still exists in many parts of the world. Many of those who commit torture believe that their actions are justified and that they have the support of significant portions of the general population in many countries. This has been especially true after the rise in popularity of governments "declaring war" against terrorism. What is your opinion on this?

NoS: The prohibition against torture is absolute. There is no justification for torture, and as it is clearly stated in article 2 of the Convention against Torture -

This is written many years before the so-called "war against terror" was launched, and emphasizes that this has been the important principle since the adoption of the convention. A state that allows torture to happen not only violates international human law but creates a room that is extremely destructive. It undermines the trust and confidence that every society must contain, and such practices open up for more violence and disrespect of human rights. What was attempted as part of the war against terror was to create the picture that better one guilty than many innocent. But there is absolutely no justification for torture. And this campaign has also been used as a way of getting rid of or pacifying opposition. A lot of human rights violations over the last years have taken place under the auspices of fighting terror. The campaigns to fight this are extremely important. In addition, it has been argued, especially from people trained in interrogation and forensic psychology that torture, in addition to be totally wrong, also brings about wrong or false intelligence.

NI: Article One of the UNCAT defines torture as: "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."

Why does torture have to be instigated by or have the consent of government officials or people acting in 'official' capacities? Does this exempt torture between private individuals, rebellious groups, criminal groups, etc.? Why are governments singled out in a definition that is intended to be universal?

NoS: Human rights is about the relationship between state and individuals, to protect individuals from abuse of power from the state. If the state does not establish mechanisms to protect individuals, they are responsible for the results and must take action. The most important duty of states is to protect its citizens and ensure that people's rights are respected. So human rights laws deal with state vs. individuals. But - the discussion raised is a very important one because it asks about the role of non-state actors in relation to violations. The main principle here is that the state in principle should also have power over, or be able to manage violence committed by them. An interesting case is the role of guerrilla fighters in conflicts. Some places they may attain a kind of state power, that is, the state may seem rather powerless in relation to them. Nevertheless, I would say that violence from such actors is violence and crime, and if there is an unwillingness or a lack of possibility on the part of the state to deal with this, then we are talking about serious human rights violations. An interesting example is Peru. The Shining Path was fighting the Peruvian government, in particular the military. Atrocities in very high numbers were committed on both sides. In the aftermath, the state has assumed a kind of responsibility also for those who were tortured or seriously affected by the guerrilla. They are providing them with reparation together with those that were subjected to human rights violations by the state itself. But, if people themselves have committed such crimes, for instance, participated in the guerrilla, then no reparation is given. But the victims have rights, regardless of the perpetrators.

NI: Article Two of the UNCAT differentiates between "cruel, inhuman, or degrading treatment" and "torture". What is the difference between the two and why are the defined separately? Also, is there any possibility of someone using an argument over these definitions to get away with torturing someone else? Can you give a couple of examples of when such a distinction would help protect human rights?

NoS: It is often referred to intent as being the difference between the two. That torture is severe pain inflicted with intent, whereas cruel, inhuman or degrading treatment or punishment (CIDT) has been looked upon as pain where the degree of intentionality is less obvious. At the same time, the term torture, or amounting to torture has also been used in situations where conditions are so serious and painful to those affected, and where the responsible one have not been capable of reducing, changing or bettering this. In such examples there has not been a clear intent to create pain, but the lack of action to reduce the pain has been so overarching that the result has been regarded by the committee as torture, or tantamount to torture. The difficulties in delineating between torture and CIDT are fully recognized. Personally I think that the most relevant text explaining the relationship between the two is paragraph 2 in CAT's General Comment no 2. Here the following is articulated: "The obligation to prevent torture in article 2 is wide-ranging. The obligations to prevent torture and other cruel, inhuman or degrading treatment or punishment (hereinafter "ill-treatment") under article 16, paragraph 1, are indivisible, interdependent and interrelated. The obligation to prevent ill-treatment in practice overlaps with and is largely congruent with the obligation to prevent torture. Article 16, identifying the means of prevention of ill-treatment, emphasizes "in particular" the measures outlined in articles 10 to 13, but does not limit effective prevention to these articles, as the Committee has explained, for example, with respect to compensation in article 14. In practice, the definitional threshold between ill-treatment and torture is often not clear. Experience demonstrates that the conditions that give rise to ill-treatment frequently facilitate torture and therefore the measures required to prevent torture must be applied to prevent ill-treatment. Accordingly, the Committee has considered the prohibition of ill-treatment to be likewise non-derogable under the Convention and its prevention to be an effective and non-derogable measure". In other words, CIDT may lay the ground for torture, and as such must be equally prohibited and action considered to be ill-treatment, equally met with reactions similar to reactions to acts of torture.

Former special Rapporteur on Torture, Manfred Nowak, elaborated the distinction between these two concepts by pointing to differences in thresholds dependant on whether the violence happens as part of detention or out in the free. For instance, violence or force committed by police in situations for instance of riot control, may be considered as ill-treatment, whereas the same acts may be regarded as torture if committee inside prisons or places where the person is deprived of liberty and has no way out of the situation. This position was elaborated by Professor Nowak in an article in the Danish journal Torture, some years ago, and this position created an interesting discussion of course. Today there are a number of researchers and others engaged in the field who are questioning the terms and what consequences it has to separate them. It has also been argued that agreeing to acts being CIDT, may conceal acts of torture, and as such create a space for violent acts that otherwise would have come under the total prohibition. But here I would respond that this is the reason why the point referred to above from the General comment no 2 is so relevant and important.

NI: Thank You very much for being with us.

Time to move the talks!

Press Statement
September 27, 2013

We, concerned peace advocates from Luzon, Visayas and Mindanao earnestly call on the Government of the Republic of the Philippines (GPH) and the National Democratic Front of the Philippines (NDFP) to immediately resume the stalled peace talks.

We view with deep concern the breakdown in the peace negotiations due to unresolved issues in both the regular and special tracks. The regular track which involves the formal talks on the substantive agenda has been on an impasse mainly over the release of detained NDFP consultants. The special track, which involves talks on a proposal for alliance and truce and is parallel and complementary to the regular track, is likewise stalled.

We believe that consistently honouring signed agreements builds on the trust imperative and the kind of peace architecture both Parties had mutually envisioned. Hence, we call for the immediate resumption of the formal peace talks in accordance with the Hague Joint Declaration and other bilateral agreements. The implementation of JASIG would provide conditions conducive to the resumption and continuation of the GPH-NDFP talks, specifically, safety and immunity guarantees for all those who participate in the talks, from either side. The full implementation of CARHRIHL and the reactivation of the Joint Monitoring Committee (JMC) will help mitigate the impact of the armed conflict, deter human rights violations, provide redress to the victims and end the climate of impunity.

We are aware of the pressing need for social and economic reforms, which is the second item in the substantive agenda of the peace talks, geared to addressing the continuing hardships of our people, especially the poor and the oppressed. It is incumbent on both Parties to immediately return to the negotiating table and work at reaching an agreement on these urgent reforms. The two Parties are therefore urged to find ways and to take measures to resolve the issue on the release of detained NDFP consultants and thus break the current impasse.

We likewise urge the GPH and NDFP to resume talks on the special track to explore immediate and practical areas of cooperation such as upholding national sovereignty, agrarian reform and national industrialization alongside the cessation of armed hostilities. We have confidence that simultaneous discussions on both tracks can mutually enhance the prospects of reaching constructive agreements.

We believe that the resumption of the peace talks between the GPH and NDFP will redound to immediate as well as long term benefits for our people. We therefore commit ourselves to accompany the peace negotiations and contribute to the discussions on the substantive agenda in both regular and special tracks. We shall continue to undertake and support all efforts towards the attainment of a just and enduring peace throughout the land.

Time is of the essence. End the prolonged impasse. Resume the talks, now.

Signatories:

Sulong CARHRIHL
Pilgrims for Peace
Philippine Ecumenical Peace Platform (PEPP)
Waging Peace Philippines
Generation Peace Youth Network
Women Engaged in Action 1325
Initiatives for International Dialogue – IID
Philippine Peace Center

Parental duties

By Fr. ROY CIMAGALA, roycimagala@gmail.com
September 25, 2013

IT doesn’t do us harm if from time to time we remind ourselves of certain basic duties. Given the rapid flow of events nowadays, chances are high that even the most fundamental responsibilities are taken for granted.

Among these duties are those of parents toward their children. Truth is a number of problems are sprouting nowadays whose causes can be traced to a certain extent to parental neglect.

These problems, of course, vary according to the circumstances of the families and parents. I have seen “habal-habal” and jeepney drivers, for example, bringing little children and even infants in their vehicles. I imagine it’s because the poor fellows do not have anyone else to leave their little children in the house when they do their work.

Among middle-class families, I have also seen cases where the parents are out of the house the whole day, presumably working hard for the family, but without spending time with the children. As a result, many of these children grow unsupervised and likely end up wayward.

As to the well-to-do families, there is a tendency to spoil the children who are given practically everything to satisfy their most ridiculous whims and caprices. The poor kids end up being soft and yet burning with inordinate desires and ambitions.

The problems are many indeed. So we just have to remind ourselves of basic truths that actually are very beautiful to consider and are also practicable, if only to more effectively address these problems.

Parents, to be sure, have to be keenly aware that they are the first and direct link between God and their children. It’s through them that a human person, a child of God is brought into existence.

As such, they have to be always conscious of their God-given mission as parents. They cannot constrict the understanding of their parenthood by restricting it to its merely natural basis, which in the last analysis would always point to God as the creator and lawgiver of the nature of parenthood.

They have to have the mind of God always when dealing with their children. We have to remember that God always intervenes in the lives of everyone, and he uses us as human instruments in that abiding divine intervention in our life. And parents are one of these human instruments he uses to reach out to children.

Parents, of course, take care of their children in their basic needs – physical, emotional, educational, social, etc. More than these, they are the first educators of their children, since parenthood is not simply a matter of begetting children but also a duty of bringing up their children to be mature persons and children of God.

They instill in their children not only the human values and virtues but also nurture the spiritual life, the piety, life of prayer, faith, charity, etc. of their children. In the hierarchy of parental duties, these that refer more to the spiritual and moral life of the children possess greater importance.

For this, parents should deal with their children with a lot of affection and understanding, but without compromising the need for discipline which children are always in need of, and much less neglect their duty to educate their children in the faith and morals.

Parents should therefore realize that they have to be role models to their children 24/7. That’s why they need to be spiritually and morally strong and vibrant, always realizing the need for continuing spiritual struggle and renewal, since our human condition is hounded also by human weaknesses, temptations and sin.

And without compromising their parental authority over their children, but rather enhancing it, parents should know how to be friends to their children, always winning their trust. They should be able to enter into the minds and hearts of their children to help them in the more important aspect of the children’s inner spiritual growth.

They have to spend time with their children, and practices and traditions should be created in the family that foster family togetherness and unity, as well as mutual care and concern for one another in the family.

When signs of insensitivity to the needs of others, habitual laziness and idleness and inability to fulfill tasks reasonably can be observed in children, parents should not hesitate to give the appropriate discipline. This is a matter of genuine love.

As to faith and piety, it would be good that within the family, a continuing catechesis adapted to the conditions of the children be given. This for sure will do a lot of good to the children.

When the whistle blows

By JUAN L. MERCADO
September 15, 2013

“You shall know the truth. And the truth shall make you mad”. That sums up reaction of many to whistleblower Benhur Luy’s testimony, before the Senate Blue Ribbon Committee, on the most severe scandal to rock Congress since it opened in 1907.

Clad in a bulletproof vest, and hedged in by three Witness Protection Program guards, the 31-year long-haired former medical technologist testified how legislators swapped their pork barrels for 50 percent kickbacks.

Six senators and 24 congressmen, to date, have been tarred. More names will most likely surface. Ten others are singing on pork dealings of now detained Janet Lim-Napoles.

“The ‘happiest whistle-blower’ in Senate history is Benhur Luy,” Senator Sonny Angara tweeted. “Frequently giggling.” He spoke without notes. “Luy was engaged in a very serious matter,” Inquirer noted. “Possibly even deadly”, specially because he was credible.

“I think he is very believable,” said Sen. Teofisto Guingona III, committee chair. “There is basis to conclude malversation of public funds or plunder (was) committed by some legislators.” Who?

“Pogi” is the code name Napoles used for Sen. Ramon Revilla Jr, earlier reports said Sen. Juan Ponce Enrile, 89, is dubbed “Tanda” or “old man”. “Kuya” and “Sexy” are the handles for Sen. Jinggoy Estrada. An entry in one note says P20 million was allotted for “Kuya” and “Sexy.”

Jinggoy Estrada denied ever meeting Luy. “Mamatay man (Let me die if I’m telling a lie),” Estrada told Inquirer. Wait. No need to lay down one’s life for one’s pork. All Estrada needs to remember the Dec. 14, 2000 hearing of the impeachment case against President Joseph Estrada.

Testimony showed Jingoy hefted the name “Jingle Bells” then connection with jeuteng payoffs. Witness Emma Lim said she’d brought P5 million money to Malacanang. Witness Menchu Itchon accompanied jueteng auditor Yolanda Ricaforte to President Estrada where setting up of a casino, called Fontainbleau, using jueteng money was discussed.

Ricaforte has since fled the country. So did Senator Juan Ponce Enrile’s former chief of staff: Jessica Lucila “Gigi” Gonzales-Reyes – two days after Whistleblower No 11 testified she received huge sums from Napoles.

“History repeats itself,” the noted lawyer Clarence Darrow once wrote. “And that's one of the things that’s wrong with history. Look at the track record of whistleblowers here.

Banker Clarissa Ocampo testified that Joseph Estrada signed the notorious Jose Velarde account – which she refused to certify. Threats cascaded in. And she had to leave the country for while. She has now joined ABS/CBN.

Auditor Heidi Mendoza testified on her documentation of a P510-million theft by the AFP Comptroller’s Office. Gen. Carlos Garcia has been convicted. But a partisan Commission on Appointments refused to confirm President Aquino’s appointment of Mendoza as Commission on Audit commissioner – up to this day.

“The nail that sticks out gets hammered down,” the Filipino axiom warns. Ensign Philip Pestaño bucked in 1997 the misuse of Navy boats to haul illegal lumber and drugs. He was shot in his cabin. Ombudsman Conchita Carpio-Morales reinstituted murder charges stalled for decades.

Marian School of Quezon City academic supervisor Antonio Calipjo Go exposed flawed textbooks. False charges were filed against him and some columnists smeared him. Education Secretary Bro. Ermin Luistro, FSC, visited Go to officially convey the Aquino administration’s admiration for his whistle blowing.

Yet, a Quezon City court, upon complaint of a giant publishing company raked profits from miseducating generations thru flawed textbooks, convicted for Antonio Calipjo Go for what? “Light threats”.

After Land Bank’s Acsa Ramirez blew the whistle on tax scams, NBI agents shoved her into a police lineup which President Gloria Arroyo used for photo op. Shanghaied by government agents, Rodolfo “Jun” Lozada testified before the Senate how a ZTE broadband loan, for $132 million, ballooned to $329 million. The overrun authors of this scam remain scot-free. Still guarded by Catholic nuns today, Lozada is harassed by charges.

Primitivo Mijares was one of Ferdinand Marcos’ chief propagandists. He wrote the book “Conjugal Dictatorship” and testified against the dictatorship. Mijares disappeared in 1977 and his 15-year-old son was later found murdered.

Not every whistle-blower is a candidate for beatification. Former police officer Cezar Mancao II, who offered to blow the whistle on the Bubby Dacer murder, bolted NBI custody when courts ordered his transfer to jail. Mancao is still on the lam.

Tell that to the family of Bubby Dacer. The PR man never made his appointment to brief former President Fidel Ramos on scams involving government. He and driver Emmanuel Corbito were intercepted by 22 military agents in Makati. Blindfolded, then strangled, their bodies were burned in Indang, Cavite.

Thieves are lionized, not ostracized, here. Cash ushers them to first places at tables. Those in a position to adopt reforms are often the very persons whistles are blown at. Would Senators Ramon Bong Revilla, Juan Ponce Enrile, Jinggoy Estrada, Ferdinand Marcos Jr. and Gringo Honasan ever scrap the pork barrel? “Though a crow bathes, it remains black.”

They “should take a leave of absence pending formal investigation,” Sen. Miriam Defensor-Santiago urged. Inaction by those involved is buttressed by a culture of impunity. People bolt from those who rock the boat with harsh truths. Jerusalem crucified its Whistle-blower.

Lawyers and ethics

By Fr. ROY CIMAGALA, roycimagala@gmail.com
September 11, 2013

MY father was a lawyer, and as early as when I was in Grade 5 or 6, I already started helping around in his office which actually was in our house also.

That’s when I discovered I was pretty good at typing some papers, but quite a disaster when it came to filing them. My father finally gave up on me in the latter, but was happy with me in the former. He had a good typist who offered his services gratis et amore.

Those where very memorable years when aside from learning things in school, I had the feeling I was learning a lot more in my father’s office. I felt I had the edge over my classmates in school because of what I got from my father’s office.

There were times we had to sleep late to finish some job, and I sacrificed a little of my youthful preferences just to be with my father whom I idolized. But I was convinced it was all worth it. I actually did not miss anything from life in the streets and moviehouses with my friends.

There were also amusing moments. Many of my father’s clients were simple people from the towns and mountains of Bohol. They even would often stay in our house and would take their meals with us.

So, I got familiar with all the idiosyncracies of the different places, especially their accents, their sense of humor, their simple ways, etc. I laughed most of the time with them, but there were times when I also cried with them. The human drama of their cases was more absorbing than what I read in novels or saw in movies.

The evening before a trial, my father would usually rehearse the clients on how to answer the possible queries during the hearing. In this area, most of the time I had fun just watching the simple folks grapple with the intricacies of logic and legal defense. But there were also moments when I asked myself whether what my father did was right.

I was not at that time into spiritual exercises or pious practices, and much less was I clear about moral principles. But something told me there were things that did not sound quite right.

Like when the client would earnestly give his answer to a question my father asked, which I considered to be the real answer, and my father would tell him to modify it or simply to keep quiet on a certain point.

I didn’t like the idea that my father would earn his living for us, a big family of 11 children, by tampering with the truth. I preferred to sell fish in the market than to do that. But I did not know how to confront him.

Finally, when I gathered enough courage, I asked him about my doubts, and surprisingly he was very happy to engage me with what I considered as a very paternal explanation of his legal profession. My father also had a very tender heart.

He assured me everything was ethical, and that he was not doing anything wrong just to provide for the family. And then very patiently he told me about what lawyers were supposed to do with their clients, especially those whom my father already suspected or was even sure were guilty of the accusation.

He told me everyone has to the right to be defended, even the one who is guilty. And the lawyer’s job is to help the client defend himself along the technicalities of a legal trial.

He told me the lawyers, like everybody else, should not tamper with the truth, but neither is the accused client obliged to incriminate himself. The burden of proof lies on the accuser. The accused is always presumed innocent unless proven otherwise. This is a legal process, my father said, not the Last Judgment before God where absolutely everything would be in the open.

And so the accused client may not have to say everything that he knows, and when asked directly about something that might incriminate him, he can remain silent, which should not be automatically interpreted as incriminating him.

I must confess that it took me time before I could feel at ease with this explanation. Even up to now I feel a little discomfort. But I can see the validity of the lawyer’s job to defend his client, however guilty he may be or not.

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