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.