Torture – Under No Circumstances and For No Reason Justifiable

by Dr. Heinz Loquai, Brigadier General ret., Meckenheim/Germany

Any attentive observer of the meagre reports and pictures coming out of Camp X-Ray in Guantanamo could foresee it. But, the publication of the pictures from the Abu Ghraib prison near Bagdad made it a terrible certainty: Ill-treatment, degradation and the torture of prisoners was commonly practiced as part of an insidious interrogation strategy that showed utter contempt for human beings. The attempts by the American President and his Secretary of Defence to explain and clumsily apologize for their actions only served to make matters worse. Above all, they demonstrated their blatant lack of any sense of justice. International law, one of the most important achievements of the so commendable civilized world, appears to be a negligible quantity for these US leaders. Does it surprise us to learn about the recently publicised crimes committed by US citizens?

The public discussion about torture and abuse in American camps and prisons refers almost exclusively to violations against regulations of the III Geneva Convention of 1949. They define how prisoners of war should be treated. However, this is an insufficient basis on which to judge the case. This rather limited view also fosters the American government‘s attempts to justify their actions.

Any fair judgement of the scale of the American government’s scandalous actions and responsibility means that the whole matter must be looked at on a deeper level, i.e. against the international standards for the safeguarding of human rights.

On 10 December 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights. Eleanor Roosevelt, the widow of the American president, was the driving force behind the document. 48 of the then 56 member states of the United Nations agreed to the declaration. Saudi Arabia, South Africa, the Soviet Union and 5 of their allies abstained. Article 5 of the declaration states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The priority of this prohibition in the list – it is directly linked to the prohibition of slavery, the slave trade and servitude in Article 4 of the declaration – clearly outlines the importance of the prohibition of torture.

In the “International Covenant on Civil and Political Rights” of 19 December 1966, the contracting states again agree in Article 7: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Torture, cruel and inhuman treatment are obviously, according to the agreements of the international community, considered to be among the worst violations against the dignity of man and the inferred fundamental rights of each human being. This is also manifest in the so-called anti-torture convention of the United Nations, the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” of 10 December 1984.

It is remarkable that this international agreement is hardly mentioned in media reports and commentaries. This document does not seem to exist when governments negotiate even though it is the most detailed and far-reaching catalogue of ethical standards concerning the prohibition of torture. Governments would do well to remember the obligations they agreed upon.

Article 1 of the convention states: “The term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.” It is important that the convention does not only include torture, but also “other cruel, inhuman or degrading treatment or punishment” as the title makes clear. Article 2 rules that it is the responsibility of each contracting state “to prevent acts of torture in any territory under its jurisdiction.” An occupying power, such as the USA in Iraq, undoubtedly has this responsibility. Any justification for torture is out of question. “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” says Article 2, par. 2. In addition, all evidence given under torture may not be used in judicial proceedings.

The state’s responsibility to prevent the crime of torture is comprehensively laid down in the “Anti-Torture Convention”. The most important obligations of the states are:

– Each contracting state must ensure that according to its criminal law torture is a criminal offence.

– Each contracting state must strictly proceed against torture and torturers. Immediate investigation must be carried out on suspicion of torture.

– Legal and military personnel must be informed about the prohibition of torture.

– Victims of tortures and their family members must be granted compensation.

In addition to this worldwide convention, the member states of the Council of Europe decided on a “European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment”, which came into force on Feb. 1, 1989. Above all, this agreement aims to establish a European committee “for the prevention of torture or degrading treatment or punishment”.

The “civilized world” has clearly established unambiguous norms for the prevention and punishment of torture and similar crimes. This is valid international law. Member states have taken on obligations and bear the responsibility for them. The past behaviour of the American government does not give one the impression that this government has lived up to its responsibility.

The German Federal Government could face fulfilling certain obligations as well, because the ‘Anti-Torture Convention’ has now become German national law. Accordingly, German law must proceed against suspects in Germany, e.g. against US citizens. One can only hope that soldiers of the German Federal Armed Forces, who have fought in Afghanistan together with the Americans, did not participate in torture crimes, which obviously were an integral part of military operations.

First published in the Blätter für deutsche und nationale Politik (Papers on German and International Policy) No. 6, 2004.