Torture

Torture, according to the United Nations Convention Against Torture, is "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." [ [http://www.unhchr.ch/html/menu3/b/h_cat39.htm Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] , United Nations, 10 December 1984.] In addition to state-sponsored torture, individuals or groups may be motivated to inflict torture on others for similar reasons to those of a state; however, the motive for torture can also be for the sadistic gratification of the torturer, as was the case in the Moors Murders.

Torture has often been sponsored by governments. In addition, individuals or groups may inflict torture on others for the same reasons as those acting in an official capacity. Torture is prohibited under international law and the domestic laws of most countries; however, Amnesty International estimates that 75% of the world's governments currently practice torture as they define it.cite journal |author=Quiroga, J. | coauthors = Jaranson, J.M. |year=2005 |title=Politically-motivated torture and its survivors: A desk study review of the literature | journal = Torture | volume = 15 | issue = 2-3 |pages=39–45]

Throughout history, torture has often been used as a method of effecting political re-education. In the 21st century, torture is widely considered to be a violation of human rights, and is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights. Signatories of the Third Geneva Convention and Fourth Geneva Convention agree not to torture protected persons (POWs and enemy civilians) in armed conflicts. Torture is also prohibited by the United Nations Convention Against Torture, which has been ratified by 145 states.

National and international legal prohibitions on torture derive from a philosophical consensus that torture and ill-treatment are immoral. [cite web |publisher=Amnesty International |url=http://www.amnesty.org/en/library/asset/ACT40/014/2005/en/2423fb7b-a2aa-11dc-8d74-6f45f39984e5/act400142005en.html |title=TORTURE AND ILL-TREATMENT IN THE ‘WAR ON TERROR’ |date=2005-11-01 |accessdate=2008-03-17 ] These international conventions and philosophical propositions not withstanding, organizations such as Amnesty International, that monitor abuses of human rights, report a widespread use of torture condoned by states in many regions of the world. [Amnesty International [http://web.amnesty.org/library/index/engPOL100012005 Report 2005] [http://web.amnesty.org/report2006/2af-summary-eng Report 2006] ]

Etymology

The word 'torture' comes from the French "torture", originating in the Late Latin "tortura" and ultimately deriving the past participle of "torquere" meaning 'to twist'.cite book |author= |title=Merriam-Webster's collegiate dictionary, 10th Edition |publisher=Merriam-Webster |location=Springfield, Mass |year=1999 |pages= 1246|isbn=0877797137 |oclc= |doi=]

The word may be used loosely for more ordinary or daily discomforts which would be described as tedious rather than painful.

Laws against torture

On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." [ [http://www.un.org/Overview/rights.html Universal Declaration of Human Rights] , United Nations, 10 December 1948] Since that time a number of other international treaties have been adopted to prevent the use of torture. Two of these are the United Nations Convention Against Torture and the Geneva Conventions III & IV.

United Nations Convention Against Torture

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) came into force in June 1987. The most relevant articles are Articles 1, 2, 3, and the first paragraph of Article 16.

quotation|Article 1
1. For the purposes of this Convention, the term "torture" means 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.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

quotation|Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. 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.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

quotation|Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

quotation|Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

Note several points:
*Section 1: Torture is "severe pain or suffering". [ [http://teaching.law.cornell.edu/faculty/drwcasebook/docs/Rep%20Ireland%20v%20UK.pdf ECHR Ireland v. United Kingdom judgement] ) pp. 40,42, ¶ 167 "Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood."] The European Court of Human Rights (ECHR) influences discussions on this area of international law. See the section Other conventions for more details on the ECHR ruling.
* Section 2: There are "no exceptional circumstances whatsoever" where a state can use torture and not break its treaty obligations". [http://www.ohchr.org/english/bodies/cat/docs/AdvanceVersions/CAT.C.USA.CO.2.pdf PDF file of United Nations Committee Against Torture second report on United States of America (CAT/C/48/Add.3/Rev.1)] 18 May 2006, Paragraph 14] The applicable sanction is publicity that nonconforming signatories have broken their treaty obligations. [Maggie Farley [http://www.truthout.org/cgi-bin/artman/exec/view.cgi/47/17645 A UN inquiry says the treatment of detainees at Guantanamo Bay, which at times amounts to torture, violates international law.] in The Los Angeles Times]
* Section 16: Obliges signatories to prevent "acts of cruel, inhuman or degrading treatment or punishment", in "any territory under its jurisdiction". [The unanimous Law Lords judgement on December 8, 2005 ruled that, under English law tradition, "torture and its fruits" could not be used in court ( [http://politics.guardian.co.uk/terrorism/story/0,15935,1662107,00.html Torture evidence inadmissible in UK courts, Lords rules] by Staff and agencies in The Guardian December 8, 2005). But the information thus obtained could be used by the British police and security services as "it would be ludicrous for them to disregard information about a ticking bomb if it had been procured by torture."( [http://news.bbc.co.uk/1/hi/uk/4510866.stm Torture ruling's international impact] by Jon Silverman BBC 8 December 2005)]

As of June 2008, 145 states are parties to the Convention against Torture, and another nine states have signed but not ratified the treaty.United Nations. "Multilateral treaties deposited with the Secretary-General: [http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/treaty14.asp Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] ". Accessed 11 June 2008.]

Optional Protocol to the UN Convention Against Torture

The Optional Protocol to the Convention Against Torture (OPCAT) entered into force on 22 June 2006 as an important addition to the UNCAT. As stated in Article 1, the purpose of the protocol is to "establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment." [ [http://www.ohchr.org/english/law/cat-one.htm Optional Protocol to the Convention Against Torture] , United Nations, 18 December 2002.] Each state ratifying the OPCAT, according to Article 17, is responsible for creating or maintaining at least one independent national preventive mechanism for torture prevention at the domestic level..

Rome Statute of the International Criminal Court

The Rome Statute, which established the International Criminal Court (ICC), provides for criminal prosecution of individuals responsible for genocide, war crimes, and crimes against humanity. The statute defines torture as "intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions". Under Article 7 of the statute, torture may be considered a crime against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". [Article 7 of the [http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm Rome Statute] . Accessed 11 June 2008.] Article 8 of the statute provides that torture may also, under certain circumstances, be prosecuted as a war crime. [Article 8 of the [http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm Rome Statute] . Accessed 11 June 2008.]

The ICC came into existence on 1 July 2002Amnesty International, 11 April 2002. " [http://www.amnesty.org/en/library/info/IOR40/008/2002 The International Criminal Court — a historic development in the fight for justice] ". Accessed 11 June 2008.] and can only prosecute crimes committed on or after that date. [Article 11 of the [http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm Rome Statute] . Accessed 11 June 2008.] The court can generally exercise jurisdiction only in cases where the accused is a national of a state party to the Rome Statute, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council. [Articles 12 and 13 of the [http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm Rome Statute] . Accessed 11 June 2008.] The court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. [Articles 17 and 20 of the [http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm Rome Statute] . Accessed 11 June 2008.] Primary responsibility to investigate and punish crimes is therefore reserved to individual states. [International Criminal Court. [http://www.icc-cpi.int/organs/otp.html "Office of the Prosecutor"] . Accessed 11 June 2008.]

Geneva Conventions

The four Geneva Conventions provide protection for people who fall into enemy hands. The conventions do not clearly divide people into combatant and non-combatant roles. The conventions refer to "wounded and sick combatants or non-combatants" separately from "civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character" [, Article 15.] as well as "Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces", "Members of other militias and members of other volunteer corps, including those of organized resistance movements", "Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power", "Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces", "Inhabitants of a non-occupied territory" [, Article 4]

The third (GCIII) and fourth (GCIV) Geneva Conventions are the two most relevant for the treatment of the victims of conflicts. Both treaties state in Article 3, in similar wording, that in a non-international armed conflict, "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms... shall in all circumstances be treated humanely." The treaty also states that there must not be any "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" or "outrages upon personal dignity, in particular humiliating and degrading treatment". [, 12 August 1949.] [, 12 August 1949.]

GCIV covers most civilians in an international armed conflict, and says they are usually "Protected Persons" (see exemptions section immediately after this for those who are not). Under Article 32, protected persons have the right to protection from "murder, torture, corporal punishments, mutilation and medical or scientific experiments...but also to any other measures of brutality whether applied by non-combatant or military agents".

GCIII covers the treatment of prisoners of war (POWs) in an international armed conflict. In particular, Article 17 says that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind." POW status under GCIII has far fewer exemptions than "Protected Person" status under GCIV. Captured enemy combatants in an international armed conflict automatically have the protection of GCIII and are POWs under GCIII unless they are determined by a competent tribunal to not be a POW (GCIII Article 5).

Geneva Convention IV exemptions

GCIV provides an important exemption:

Also nationals of a State which is not bound by the Convention are not protected by it, and nationals of a neutral State in the territory of a combatant State, and nationals of a co-belligerent State, cannot claim the protection of GCIV if their home state has normal diplomatic representation in the State that holds them (Article 4), as their diplomatic representatives can take steps to protect them. The requirement to treat persons with "humanity" implies that it is still prohibited to torture individuals not protected by the Convention.

The Bush administration afforded fewer protections, under GCIII, to detainees in the War on Terror by creating a new legal status called unlawful combatant. If there is a question of whether a person is an lawful combatant, he (or she) must be treated as a POW "until their status has been determined by a competent tribunal" (GCIII Article 5). If the tribunal decides that he is an unlawful combatant, he is not considered a protected person under GCIII. However, if he is a protected person under GCIV he still has some protection under GCIV, and must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention" (GCIV Article 5). [

"Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. "There is no" intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.", because in the opinion of the ICRC "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action" (Jean Pictet (ed.) – [http://www.icrc.org/ihl.nsf/COM/380-600007?OpenDocument Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958)] – 1994 reprint edition). [http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079 Geneva Conventions Protocol I] Article 51.3 also covers this interpretation "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities".]

Additional Protocols to the Geneva Conventions

There are two additional protocols to the Geneva Convention: Protocol I (1977), relating to the protection of victims of international armed conflicts and Protocol II (1977), relating to the protection of victims of non-international armed conflicts. These clarify and extend the definitions in some areas, but to date many countries, including the United States, have either not signed them or have not ratified them.

Protocol I does not mention torture but it does affect the treatment of POWs and Protected Persons. In Article 5, the protocol explicitly involves "the appointment of Protecting Powers and of their substitute" to monitor that the Parties to the conflict are enforcing the Conventions. [ [http://www.ohchr.org/english/law/protocol1.htm Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)] , Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, 8 June 1977.] The protocol also broadens the definition of a lawful combatant in wars against "alien occupation, colonial domination and racist regimes" to include those who carry arms openly but are not wearing uniforms, so that they are now lawful combatants and protected by the Geneva Conventions--although only if the Occupying Power has ratified Protocol I. Under the original conventions combatants without a recognisable insignia could be treated as criminals, and potentially be executed. It also mentions spies, and defines who is a mercenary. Mercenaries and spies are considered an unlawful combatant, and not protected by the same conventions.

Protocol II "develops and supplements Article 3 [relating to the protection of victims of non-international armed conflicts] common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application" (Article 1). Any person who does not take part in or ceased to take part in hostilities is entitled to humane treatment. Among the acts prohibited against these persons are, "Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment" (Article 4.a), "Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" (Article 4.e), and "Threats to commit any of the foregoing acts" (Article 4.h). [ [http://www.ohchr.org/english/law/protocol2.htm Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)] , Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, 8 June 1977.] There are clauses in other articles which implore humane treatment of enemy personnel in an internal conflict, which have a bearing on the use of torture, but there are no other clauses which explicitly mention torture.

Other conventions

In accordance with the non-binding UN Standard Minimum Rules for the Treatment of Prisoners (1955), "corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences." [ [http://www.unhchr.ch/html/menu3/b/h_comp34.htm Standard Minimum Rules for the Treatment of Prisoners] , United Nations, Geneva, 1955.] The International Covenant on Civil and Political Rights, (16 December 1966), explicitly prohibits torture and "cruel, inhuman or degrading treatment or punishment" by signatories. [ [http://www.ohchr.org/english/law/ccpr.htm International Covenant on Civil and Political Rights] United Nations, 16 December 1966.]

European agreements

In 1950 during the Cold War, the participating member states of the Council of Europe signed the European Convention on Human Rights. The treaty was based on the UDHR. It included the provision for a court to interpret the treaty, and Article 3 "Prohibition of torture" stated, "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." [ [http://conventions.coe.int/treaty/en/Treaties/Html/005.htm European Convention on Human Rights] ,4 November 1950(with later protocols). ]

In 1978 the European Court of Human Rights ruled that the five techniques of "sensory deprivation" were not torture as laid out in Article 3 of the European Convention on Human Rights, but were "inhuman or degrading treatment" [ [http://www.worldlii.org/eu/cases/ECHR/1978/1.html Ireland v. United Kingdom, 1977] . (Case No. 5310/71)] (see Accusations of use of torture by United Kingdom for details). This case occurred nine years before the United Nations Convention Against Torture came into force and had an influence on thinking about what constitutes torture ever since. [Michael John Garcia (Legislative Attorney American Law Division) [http://www.ilw.com/immigdaily/news/2005,1223-crs.pdf U.N. Convention Against Torture (CAT):Overview and Application to Interrogation Techniques] [http://www.ilw.com CRS Report for Congress] November 7, 2005. pp. 13-15]

On 26 November 1987 the member states of the Council of Europe, meeting at Strasbourg, adopted the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT). Two additional Protocols amended the Convention, which entered into force on 1 March 2002. The Convention set up the Committee for the Prevention of Torture to oversee compliance with its provisions.

Inter-American Convention

The Inter-American Convention to Prevent and Punish Torture, currently ratified by 17 nations of the Americas and in force since 28 February 1987, defines torture more expansively than the United Nations Convention Against Torture. "For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article." [ [http://www.oas.org/juridico/English/Treaties/a-51.html Inter-American Convention to Prevent and Punish Torture] , Organization of American States, 9 December 1985.]

upervision of anti-torture treaties

The Istanbul Protocol, an official UN document, is the first set of international guidelines for documentation of torture and its consequences. It became a United Nations official document in 1999.

Under the provisions of OPCAT that entered into force on 22 June 2006 independent international and national bodies will regularly visit places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. Each state that ratified the OPCAT, according to Article 17, is responsible for creating or maintaining at least one independent national preventative mechanism for torture prevention at the domestic level.

The European Committee for the Prevention of Torture, citing Article 1 of the European Convention for the Prevention of Torture, stipulates, "visits, [countries to] examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment". [ [http://www.cpt.coe.int/ European Committee for the Prevention of Torture (CPT)] ]

In times of armed conflict between a signatory of the Geneva conventions and another party, delegates of the International Committee of the Red Cross (ICRC) monitor the compliance of signatories to the Geneva Conventions, which includes monitoring the use of torture. Human rights organizations, such as Amnesty International, the World Organization Against Torture, and Association for the Prevention of Torture work actively to stop the use of torture throughout the world and publish reports on any activities they consider to be torture. [ [http://www.apt.ch Association for the Prevention of Torture] ]

Municipal law

States that ratified the United Nations Convention Against Torture have a treaty obligation to include the provisions into municipal law. The laws of many states therefore formally prohibit torture. However, such "de jure" legal provisions are by no means a proof that, "de facto", the signatory country does not use torture.

To prevent torture, many legal systems have a right against self-incrimination or explicitly prohibit undue force when dealing with suspects.

England abolished torture in about 1640 (except peine forte et dure which England only abolished in 1772), in Scotland in 1708, in Prussia in 1740, in Denmark around 1770, in Austria in 1776, in Russia in 1801, in Baden in 1831, in Japan in 1873. [ [http://www.ccel.org/s/schaff/hcc4/htm/i.vi.viii.htm History of the Christian Church, Volume IV: Mediaeval Christianity. A.D. 590-1073. Chapter VI. Morals And Religion: Page 80:"The Torture"] by Schaff, Philip (1819-1893)] [ [http://www.tiscali.co.uk/reference/encyclopaedia/hutchinson/m0013250.html Hutchinson's Encyclopaedia: "Torture"] ] [ [http://www.1911encyclopedia.org/Torture Torture - LoveToKnow 1911] ]

The French 1789 Declaration of the Rights of Man and of the Citizen, of constitutional value, prohibits submitting suspects to any hardship not necessary to secure his or her person. Statute law explicitly makes torture a crime. In addition, statute law prohibits the police or justice from interrogating suspects under oath.

The United States includes this protection in the fifth amendment to its federal constitution, which in turn serves as the basis of the Miranda warning, which law enforcement officers issue to individuals upon their arrest. Additionally, the US Constitution's eighth amendment forbids the use of "cruel and unusual punishments", which is widely interpreted as a prohibition of the use of torture. Finally, 18 U.S.C. § 2340 [ [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_113C.html US CODE: Title 18,CHAPTER 113C—TORTURE ] ] "et seq." define and forbid torture outside the United States.

As the United States Constitution recognizes customary international law, or the law of nations, the U.S. Alien Tort Claims Act also provides legal remedies for victims of torture in the United States. Specifically, the status of torturers under the law of the United States, as determined by a famous legal decision in 1980, Filártiga v. Peña-Irala, 630 F.2d 876 (1980), is that, "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind." [cite web |title="Decision in Filártiga v. Peña-Irala" |url="http://homepage.ntlworld.com/jksonc/docs/filartiga-577FSupp860.html"]

Use of torture

"Recent times" in the context of this article is from 10 December 1948, when the United Nations General Assembly adopted the Universal Declaration of Human Rights.

Torture in the past

The Romans used torture for interrogation. They did not regard crucifixion as torture, though it was a deliberately horrible way to execute people as an example to frighten others. Prior to crucifixion, victims were often savagely whipped (sometimes to death) with barbed metal lashes, also to frighten others. A slave's testimony was admissible "only" if extracted by torture, on the assumption that slaves could not be trusted to reveal the truth voluntarily. [Peters, Edward. Torture. New York: Basil Blackwell Inc., 1985.] Over time the conceptual definition of torture has been expanded and remains a major question for ethics, philosophy, and law, but clearly includes the practices of many subsequent cultures.

Medieval and early modern European courts used torture, depending on the accused's crime and social status. Torture was deemed a legitimate means to extract confessions or to obtain the names of accomplices or other information about a crime. Often, defendants already sentenced to death would be tortured to force them to disclose the names of accomplices. Torture in the Medieval Inquisition began in 1252 and ended in 1816 when a papal bull forbade its use.

While secular courts often treated suspects ferociously, Will and Ariel Durant argued in "The Age of Faith" that many of the most vicious procedures were inflicted upon pious heretics by even more pious friars. The Dominicans gained a reputation as some of the most fearsomely innovative torturers in medieval Spain. Many of the victims of the Spanish Inquisition did not know (and were not informed) that, if they confessed, they might face penalties no more severe than mild penance; confiscation of property; and perhaps a few strokes of the whip. Fact|date=February 2007 Many thus endured torture unaware that with a confession, their torturers would stop. Others, when told that the torture would stop if they confessed, refused, choosing to suffer torture rather than confess to transgressions they did not commit.Fact|date=September 2008

One of the inquisition's most oft-used tortures was the strappado. Torturers bound the accused's hands behind his or her back and then raised the victim off the floor by hauling up the hands. Torturers could add weight to the legs. The prisoner and weights could be hauled up and suddenly dropped. This variation (with dropping) was called squassation. Other torture methods included the rack (stretching the victim’s joints to breaking point), the thumbscrew, the boot (some versions of which crushed the calf, ankle, and heel between vertically positioned boards, while others tortured the instep and toes between horizontally oriented plates), water (massive quantities of water forcibly ingested—or even mixed with urine, pepper, feces, "etc.", for additional persuasiveness), and red-hot pincers (typically applied to fingers, toes, ears, noses, and nipples, although one tubular version [the "crocodile shears"] was specially devised for application to the penis in cases of regicide),Fact|date=May 2007 although church policy sometimes forbade bodily mutilation. If the torturer needed stronger methods, or if a death sentence was issued, the person was sent over to the secular authorities, who had no restrictions.

Torture was usually conducted in secret, in underground dungeons. By contrast, torturous executions were typically public, and woodcuts of English prisoners being hanged, drawn and quartered show large crowds of spectators, as do paintings of Spanish auto-da-fé executions, in which heretics were burned at the stake.

In 1613 Anton Praetorius described the situation of the prisoners in the dungeons in his book "Gründlicher Bericht über Zauberei und Zauberer" ("Thorough Report about Sorcery and Sorcerers"). He was one of the first to protest against all means of torture.

In ancient and medieval torture, there was little inhibition on inflicting bodily damage. People generally assumed that no innocent person would be accused, so anybody who appeared in the torture chamber was ultimately destined for executionFact|date=February 2007, typically of a gruesome nature. Any minor mutilations due to rack or thumbscrew would not be noticed after a person had been burned at the stake. Besides, the torturer operated under the full authority of the church, the state, or both.

In Colonial America women were sentenced to the stocks with wooden clips on their tongues or subjected to the "dunking stool" for the gender-specific crime of talking too much. [Brizendine, Louann "The Female Brain" Broadway Books. New York. 2006 pg 36]

While in Egypt in 1798, Napoleon Bonaparte wrote to Major-General Berthier that the "barbarous custom of whipping men suspected of having important secrets to reveal must be abolished. It has always been recognized that this method of interrogation, by putting men to the torture, is useless. The wretches say whatever comes into their heads and whatever they think one wants to believe. Consequently, the Commander-in-Chief forbids the use of a method which is contrary to reason and humanity." [Napoleon Bonaparte, "Letters and Documents of Napoleon, Volume I: The Rise to Power", selected and translated by John Eldred Howard (London: The Cresset Press, 1961), 274.]

Torture in recent times

Modern sensibilities have been shaped by a profound reaction to the war crimes and crimes against humanity committed by the Axis Powers in the Second World War, which have led to a sweeping international rejection of most if not all aspects of the practice.Dubious|date=March 2008 Even so, many states engage in torture; however, few wish to be described as doing so, either to their own citizens or to international bodies. A variety of devices bridge this gap, including state denial, "secret police", "need to know", denial that given treatments are torturous in nature, appeal to various laws (national or international), use of jurisdictional argument, claim of "overriding need", and so on. Many states throughout history, and many states today, have engaged in torture (unofficially). Despite worldwide condemnation and the existence of treaty provisions that forbid it, torture still occurs in two thirds of the world's nations. [ [http://www.nytimes.com/2004/05/23/opinion/23HOCH.html?ex=1086315207&ei=1&en=dd8a4b003ac8f504 New York Times] , 23 May 2004. This link needs fixing. See the references [http://hnn.us/articles/5352.html in this link] . This could be one of two articles.]

Torture by proxy

In 2003, Britain's Ambassador to Uzbekistan, Craig Murray, made accusations that information was being extracted under extreme torture from dissidents in that country, and that the information was subsequently being used by Western, democratic countries that officially disapproved of torture. [ [http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/10/23/nenv23.xml&s The envoy silenced after telling undiplomatic truths] , "The Daily Telegraph" 23 October 2004]

The accusations did not lead to any investigation by his employer, the Foreign and Commonwealth Office, and he resigned after disciplinary action was taken against him in 2004. No misconduct by him was proven. The National Audit Office is investigating the Foreign and Commonwealth Office because of accusations of victimisation, bullying, and intimidating its own staff. [ [http://www.timesonline.co.uk/article/0,,2087-1533100,00.html "Foreign Office faces probe into 'manipulation'"] by Robert Winnett, "The Sunday Times" 20 March 2005]

Murray later stated that he felt that he had unwittingly stumbled upon what others called "torture by proxy" [ [http://www.newyorker.com/online/content/?050214on_onlineonly01 Q & A: Torture by Proxy] Jane Mayer answers question asked by Amy Davidson The New Yorker on 14 February 2005] and with the euphemism of "extraordinary rendition". He thought that Western countries moved people to regimes and nations knowing that torturers would extract and disclose information. Murray alleged that this practice circumvented and violated international treaties against torture. If it was true that a country participated in torture by proxy and it had signed the UN Convention Against Torture then that country would be in specific breach of Article 3 of that convention.

Aspects of torture

Ethical arguments regarding torture

Torture has been criticized not only on humanitarian and moral grounds, but on the grounds that evidence extracted by torture can be unreliable and that the use of torture corrupts institutions which tolerate it. [cite web|url=http://www.bbc.co.uk/religion/ethics/torture/ethics/wrong_2.shtml|title=Consequentialist reasons why torture is wrong|publisher=BBC]

Organizations like Amnesty International argue that the universal legal prohibition is based on a universal philosophical consensus that torture and ill-treatment are repugnant, abhorrent, and immoral. [cite web|author=Amnesty International|authorlink=Amnesty International|url=http://web.amnesty.org/pages/stoptorture-arguments-eng#question1|title=Torture and ill-treatment: the arguments: 1. What is torture? What is ill-treatment? What’s the difference?] But since shortly after the September 11, 2001 attacks there has been a debate in the United States about whether torture is justified in some circumstances. Some people, such as Alan M. Dershowitz and Mirko Bagaric, have argued the need for information outweighs the moral and ethical arguments against torture. [http://comment.independent.co.uk/columnists_a_l/yasmin_alibhai_brown/story.jsp?story=640612 Yasmin Alibhai-Brown: People matter more than holy books] Editorial and Opinion (Page 31) in The Independent Monday 23 May 2005. Includes commentary on how some Americans have changed their attitudes to torture.] [Bagaric, Mirko & Clarke Julie;" [http://www.usfca.edu/lawreview/Vol39number3.htm Not Enough Official Torture in the World? The Circumstances in Which Torture Is Morally Justifiable] " University of San Francisco Law Review, Volume 39, Spring 2005, Number 3, pp. 581-616.] However, after coercive practices were banned interrogators in Iraq saw an increase of 50 percent more high-value intelligence. Maj. Gen. Geoffrey D. Miller, the American commander in charge of detentions and interrogations, stated "a rapport-based interrogation that recognizes respect and dignity, and having very well-trained interrogators, is the basis by which you develop intelligence rapidly and increase the validity of that intelligence." ["General Says Less Coercion of Captives Yields Better Data" NY Times September 7 2004] Others point out that despite administration claims that water boarding has "disrupted a number of attacks, maybe dozens of attacks", no one has come up with a single documented example of lives saved thanks to torture. [ [http://www.washingtonpost.com/wp-dyn/content/blog/2007/12/11/BL2007121101053.html?nav=rss_opinion/columns Did torture Work?] Washington Post December 11 2007]

The ticking time bomb scenario, a thought experiment, asks what to do to a captured terrorist who has placed a nuclear time bomb in a populated area. If the terrorist is tortured, he may explain how to defuse the bomb. The scenario asks if it is ethical to torture the terrorist. A 2006 BBC poll held in 25 nations gauged support for each of the following positions: [cite web|url=http://news.bbc.co.uk/1/hi/6063386.stm|title=One third support some torture|publisher=BBC News|date=19 October 2006]
*Terrorists pose such an extreme threat that governments should be allowed to use some degree of torture if it may gain information that saves innocent lives.
*Clear rules against torture should be maintained because any use of torture is immoral and will weaken international human rights.An average of 59% of people worldwide rejected torture. However there was a clear divide between those countries with strong rejection of torture (such as Italy, where only 14% supported torture) and nations where rejection was less strong (Israel showed 43% supporting torture, but 48% opposing, India showed 37% supporting torture and only 23% opposing). [ [http://news.bbc.co.uk/1/hi/6063386.stm "Ibid"] : "Israel has the largest percentage of those polled endorsing the use of a degree of torture on prisoners, with 43% saying they agreed that some degree of torture should be allowed."]

Within nations there is a clear divide between the positions of members of different ethnic groups, religions, and political affiliations. The study found that among Jewish persons in Israel 53% favored some degree of torture and only 39% wanted strong rules against torture while Muslims in Israel were overwhelmingly against any use of torture. In one 2006 survey by the Scripps Center at Ohio University, 66% of Americans who identified themselves as strongly Republican supported torture, where as 24% of those who identified themselves as strongly Democratic. [ [http://www.newspolls.org/story.php?story_id=59 "Support for torture is linked to attitudes on spanking"] ] In a 2005 U.S. survey 72% of American Catholics supported the use of torture in some circumstances compared to 51% of American secularists. [ [http://ncronline.org/NCR_Online/archives2/2006a/032406/032406h.htm "Majority of Catholics would support torture."] ]

A [http://www.galluppoll.com/content/?ci=15160&pg=1 CNN/USA Today/Gallup poll] "found that sizable majorities of Americans disagree with tactics ranging from leaving prisoners naked and chained in uncomfortable positions for hours, to trying to make a prisoner think he was being drowned". [cite news |first=Toni |last=Locy |title=Poll: Most object to extreme interrogation tactics |url=http://www.usatoday.com/news/washington/2005-01-12-poll-interrogation_x.htm |work=USA TODAY |publisher=USA TODAY |date=2005-01-13 |accessdate=2007-01-20 |language=eng | quote = sizable majorities of Americans disagree with tactics] There are also different attitudes as to what constitutes torture, as revealed in an ABC News/Washington Post poll, where more than half of the Americans polled thought that techniques such as sleep deprivation were not torture. [David Morris and Gary Langer " [http://abcnews.go.com/sections/us/Polls/torture_poll_040527.html Terror Suspect Treatment: Most Americans Oppose Torture Techniques] " ABCNEWS.com May 27, 2004 "Americans by nearly 2-to-1 oppose torturing terrorism suspects — but half believe the U.S. government, as a matter of policy, is doing it anyway. And even more think the government is employing physical abuse that falls short of torture in some cases."]

Motivation for torture

It was long thought that "good" people would not torture and only "bad" ones would, under normal circumstances.Fact|date=August 2008 Research over the past 50 years suggests a disquieting alternative view, that under the right circumstances and with the appropriate encouragement and setting, most people can be encouraged to actively torture others. Stages of torture mentality include:Fact|date=July 2008

* Reluctant or peripheral participation
* Official encouragement: As the Stanford prison experiment and Milgram experiment show, many people will follow the direction of an authority figure (such as a superior officer) in an official setting (especially if presented as mandatory), even if they have personal uncertainty. The main motivations for this appear to be fear of loss of status or respect, and the desire to be seen as a "good citizen" or "good subordinate".
* Peer encouragement: to accept torture as necessary, acceptable or deserved, or to comply from a wish to not reject peer group beliefs.
* Dehumanization: seeing victims as objects of curiosity and experimentation, where pain becomes just another test to see how it affects the victim.
* Disinhibition: socio-cultural and situational pressures may cause torturers to undergo a lessening of moral inhibitions and as a result act in ways not normally countenanced by law, custom and conscience.
* Organizationally, like many other procedures, once torture becomes established as part of internally acceptable norms under certain circumstances, its use often becomes institutionalized and self-perpetuating over time, as what was once used exceptionally for perceived necessity finds more reasons claimed to justify wider use.
* Many perpetrators of torture are coerced by their superiors.

Rejection of torture

A famous example in which the use of torture was rejected was cited by the Argentine National Commission of the Disappearance of Persons in whose report, General Carlo Alberto Dalla Chiesa was reputed to have said in connection with the investigation of the disappearance of Aldo Moro, "Italy can survive the loss of Aldo Moro. It would not survive the introduction of torture." [ [http://www.nuncamas.org/english/library/nevagain/nevagain_002.htm Report of Conadep (National Commission on the Disappearance of Persons): Prologue] - 1984]

Incrimination of innocent people

One well documented effect of torture is that with rare exceptions people will say or do anything to escape the situation, including untrue "confessions" and implication of others without genuine knowledge, who may well then be tortured in turn. That information may have been extracted from the Birmingham Six through the use of police beatings was counterproductive because it made the convictions unsound as the confessions were worthless. There are rare exceptions, such as Admiral James Stockdale, Medal of Honor recipient, who refused to provide information under torture.

Secrecy

Before the emergence of modern policing, torture was an important aspect of policing and the use of it was openly sanctioned and acknowledged by the authority. The Economist Magazine proposed that one of the reasons torture endures is that torture does indeed work in some instances to extract information/confession, if those who are being tortured are indeed guilty. [http://www.economist.com/world/international/displaystory.cfm?story_id=9832909] Depending on the culture, torture has at times been carried on in silence (official denial), semi-silence (known but not spoken about), or openly acknowledged in public (in order to instill fear and obedience).

In the 21st century, even when states sanction their interrogation methods, torturers often work outside the law. For this reason, some prefer methods that, while unpleasant, leave victims alive and unmarked. A victim with no visible damage may lack credibility when telling tales of torture, whereas a person missing fingernails or eyes can easily prove claims of torture. Mental torture, however can leave scars just as deep and long-lasting as physical torture. [ [http://aliran.com/oldsite/monthly/2004a/5e.html Abu Ghraib and the ISA: What's the difference?] ] Professional torturers in some countries have used techniques such as electrical shock, asphyxiation, heat, cold, noise, and sleep deprivation which leave little evidence, although in other contexts torture frequently results in horrific mutilation or death.Fact|date=December 2007 However the most common and prevalent form of torture worldwide in both developed and under-developed countries is beating.Fact|date=December 2007

Torture methods and devices

Physical torture methods have been used from time immemorial and can range from a beating with nothing more than fist and boot, through to the use of sophisticated custom designed devices such as the rack. Other types of torture can include sensory or sleep deprivation, restraint or being held in awkward or damaging positions, uncomfortable extremes of heat and cold, loud noises or any other means that inflicts physical or mental pain.

Psychological torture uses non-physical methods which are used to cause psychological suffering. Its effects are not immediately apparent unless they alter the behavior of the tortured person. Since there is no international political consensus on what constitutes psychological torture, it is often overlooked, denied, and referred to in different names.Fact|date=March 2008

Rape and other forms of sexual abuse are often used as methods of torture for interrogative or punitive purposes. [Nooria Mehraby. [http://www.startts.org.au/default.aspx?id=201 Refugee Women: The Authentic Heroines] ]

Medical torture Medical practitioners may also be involved with torture either to judge what victims can endure, to apply treatments which will enhance torture, or as torturers in their own right. Josef Mengele and Shiro Ishii were infamous during and after World War II for their involvement in medical torture and murder.

Torture murder

Torture murder involves torture to the point of murder as for punishment in law enforcement agencies of countries that allow torture. Murderers may also torture their victims to death for pleasure.

Effects of torture

Organizations like the Medical Foundation for Care of Victims of Torture try to help survivors of torture obtain medical treatment and to gain forensic medical evidence to obtain political asylum in a safe country and/or to prosecute the perpetrators.

Torture is often difficult to prove, particularly when some time has passed between the event and a medical examination, or when the torturers are immune from prosecution. Many torturers around the world use methods designed to have a maximum psychological impact while leaving only minimal physical traces. Medical and Human Rights Organizations worldwide have collaborated to produce the Istanbul Protocol, a document designed to outline common torture methods, consequences of torture, and medico-legal examination techniques. Typically deaths due to torture are shown in an autopsy as being due to "natural causes" like heart attack, inflammation, or embolism due to extreme stress. [cite web
url=http://action.aclu.org/torturefoia/released/102405/
title=Autopsy reports reveal homicides of detainees in U.S. custody
publisher=ACLU]

For survivors, torture often leads to lasting mental and physical health problems.

Physical problems can be wide-ranging, e.g. sexually transmitted diseases, musculo-skeletal problems, brain injury, post-traumatic epilepsy and dementia or chronic pain syndromes.

Mental health problems are equally wide-ranging; common are post-traumatic stress disorder, depression and anxiety disorder.Psychic deadness, erasure of intersubjectivity, refusal of meaning-making, perversion of agency, and an inability to bear desire constitute the core features of the post-traumatic psychic landscape of torture. cite journal | author =Nguyen L. |title=The question of survival: the death of desire and the weight of life | journal = Am J Psychoanal | volume = 67 | issue = 1 |pages=53–67|year=2007 | pmid = 17510619 | doi = 10.1057/palgrave.ajp.3350007 ]

quotation| The most terrible, intractable, legacy of torture is the killing of desire - that is , of curiosity, of the impulse for connection and meaning-making, of the capacity for mutuality, of the tolerance for ambiguity and ambivalence. For these patients, to know another mind is unbearable. To connect with another is irrelevant. They are entrapped in what was born(e) during their trauma, as they perpetuate the erasure of meaning, re-enact the dynamics of annihilation through sadomasochistic, narcissistic, paranoid, or self-deadening modes of relating, and mobilize their agency toward warding off mutuality, goodness, hope and connection. In brief, they live to prove death. And it is this perversion of agency and desire that constitutes the deepest post-traumatic injury, and the most invisible and pernicious of human-rights violations.

On August 19, 2007, the American Psychological Association (APA) voted to bar participation, to intervene to stop, and to report involvement in a wide variety of interrogation techniques as torture, including "using mock executions, simulated drowning, sexual and religious humiliation, stress positions or sleep deprivation", as well as "the exploitation of prisoners' phobias, the use of mind-altering drugs, hooding, forced nakedness, the use of dogs to frighten detainees, exposing prisoners to extreme heat and cold, physical assault and threatening the use of such techniques against a prisoner or a prisoner's family." [ [http://www.washingtonpost.com/wp-dyn/content/article/2007/08/19/AR2007081901513.html APA Rules on Interrogation Abuse] ]

However, the APA rejected a stronger resolution that sought to prohibit “all psychologist involvement, either direct or indirect, in any interrogations at U.S. detention centers for foreign detainees or citizens detained outside normal legal channels.” That resolution would have placed the APA alongside the American Medical Association and the American Psychiatric Association in limiting professional involvement in such settings to direct patient care. The APA echoed the Bush administration by condemning isolation, sleep deprivation, and sensory deprivation or over-stimulation only when they are likely to cause lasting harm.

Treatment of torture-related medical problems might require a wide range of expertise and often specialized experience. Common treatments are psychotropic medication, e.g. SSRI antidepressants, counseling, Cognitive Behavioural Therapy, family systems therapy and physiotherapy.

:"See Psychology of torture for psychological impact, and aftermath, of torture."

Methods of execution and capital punishment

For most of recorded history, capital punishments were often cruel and inhumane. Severe historical penalties include breaking wheel, boiling to death, flaying, slow slicing, disembowelment, crucifixion, impalement, crushing, stoning, execution by burning, dismemberment, sawing, decapitation, scaphism, or necklacing. [ [http://www.time.com/time/magazine/article/0,9171,950826,00.html Revenge Is the Mother of Invention] ]

"Slow slicing", or "death by/of a thousand cuts", was a form of execution used in China from roughly 900 AD to its abolition in 1905. According to apocryphal lore, "língchí" began when the torturer, wielding an extremely sharp knife, began by putting out the eyes, rendering the condemned incapable of seeing the remainder of the torture and, presumably, adding considerably to the psychological terror of the procedure. Successive rather minor cuts chopped off ears, nose, tongue, fingers, toes, and such before proceeding to grosser cuts that removed large collops of flesh from more sizable parts, e.g., thighs and shoulders. The entire process was said to last three days, and to total 3,600 cuts. The heavily carved bodies of the deceased were then put on a parade for a show in the public. [ [http://www.manchestereventsguide.co.uk/feature/Death_by_a_Thousand_Cuts_at_Chinese_Arts_Centre_18th_January_to_23rd_March/114.html Death by a Thousand Cuts at Chinese Arts Centre 18th January to 23rd March] ]

"Impalement" was a method of torture and execution whereby a person is pierced with a long stake. The penetration can be through the sides, from the rectum, or through the mouth. This method would lead to slow, painful, death. Often, the victim was hoisted into the air after partial impalement. Gravity and the victim's own struggles would cause him to slide down the pole, especially if the pole were on a wagon carrying war prizes and prisoner. Death could take many days. Impalement was frequently practiced in Asia and Europe throughout the Middle Ages. Vlad III Dracula, who learned the method of killing by impalement while staying in Constantinople, the capital of the Ottoman Empire, as a prisoner, and Ivan the Terrible have passed into legend as major users of the method. [ [http://concise.britannica.com/ebc/article-9382120/Dracula Dracula - Britannica Concise] ]

The "breaking wheel" was a torturous capital punishment device used in the Middle Ages and early modern times for public execution by cudgeling to death, especially in France and Germany. In France the condemned were placed on a cart-wheel with their limbs stretched out along the spokes over two sturdy wooden beams. The wheel was made to slowly revolve. Through the openings between the spokes, the executioner hit the victim with an iron hammer that could easily break the victim's bones. This process was repeated several times per limb. Once his bones were broken, he was left on the wheel to die. It could take hours, even days, before shock and dehydration caused death. The punishment was abolished in Germany as late as 1827. [ [http://www.1911encyclopedia.org/Breaking_on_the_wheel Breaking on the wheel - LoveToKnow 1911] ]

See also

* Suffering;Methodology and physiology
* Interrogation
* Physical abuse
* Psychology of torture
* Al-Abd Al-Aswad
* Waterboarding;Organizations
* World Organisation Against Torture
* Physicians for Human Rights
* Doctors of the World
* Medical Foundation for Care of Victims of Torture
* Rehabilitation and Research Centre for Torture Victims
* Redress (Charitable Trust for Torture Survivors);Reports for and against torture
* Country Reports on Human Rights Practices
* United Nations Convention Against Torture

;History
* Extraordinary rendition
* Hanoi Hilton
* Spanish Inquisition
* Nazi human experimentation
* Unit 731
* Khmer Rouge

;Other
* Command responsibility
* Enhanced interrogation techniques
*
*

Footnotes

Further reading

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* [http://plato.stanford.edu/entries/torture/ Torture] , 7 February, 2006 - Stanford Encyclopedia of Philosophy (Stanford University)