Why Torture is Wrong
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) 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.
Nilantha Ilangamuwa, editor of the ‘Torture: Asian and Global Perspectives’, a bi-monthly magazine published by the Asian Human Rights Commission (AHRC), based in Hong Kong and the Danish Institute Against Torture (DIGNITY) based in Denmark He also edits the Sri Lanka Guardian, an online newspaper based in Colombo, Sri Lanka.
The following interview was originally printed in the latest issue of the Torture: Asian and Global Perspectives. ( ISSN 2304-134X (print) | ISSN 2304-1458 (online) is a bi-monthly magazine which focuses on torture and its related issues globally. Writers interested in having their research on this subject published, may submit their articles to firstname.lastname@example.org