Preventing Torture within the Fight against Terrorism 14

NEWSLETTER Volume 3, Issue 4

Preventing Torture Framing the Issue

July 2009

within the fight against terrorism Inside this issue:

From words to action on human rights: Guidelines on torture and the fight against terrorism

by Amnesty International, EU Office

P

rior to Sweden taking the presidency of the European Union on 1 July, Amnesty International’s EU Office published From Words to Action on Human Rights: Amnesty International’s Recommendations for the Swedish Presidency of the EU, which provides concrete

recommendations for how the Swedes can improve policies and practice related to discrimination, asylum, corporate accountability and other measures. The following excerpt focuses on torture and counter-terrorism.

In 2001 the previous Swedish Presidency developed and adopted operational guidelines on torture “to identify ways and means to effectively work towards the prevention of torture and illtreatment within the Common Foreign and Security Policy”.

However, there is no equivalent EU internal instrument or policy framework to support efforts and action at international, regional or national level, to

prevent and combat torture and other ill-treatment within the EU. This has an impact on coherence and credibility.

Coherence is an issue because the EU cannot aim at working towards the upholding of the universal ban on torture worldwide and leave aside 27 countries.

Credibility is an issue because the EU cannot claim to encourage third countries to end the use of torture if it is perceived as accepting violations committed by its own member states.

In the context of the fight against terrorism, the lack of EU scrutiny and accountability for torture and other human rights violations committed by EU member states have undermined the EU’s commitment to upholding the absolute ban on torture.

Member states seeking “diplomatic assurances” from third countries to expel terrorist suspects to countries despite the fact that they would be at risk of torture and other ill-treatment there is in clear violation of the nonrefoulement principle that is highlighted in the preamble to the EU Guidelines on Torture.

States including: Austria, Germany, Italy, the Netherlands, Sweden, and the

UK have used these diplomatic assurances. As these assurances were sought from countries including Jordan, Algeria, Egypt, Syria and Tunisia – countries with a well-known record of torturing exactly this type of detainee – this practice is in flagrant contradiction of EU efforts to fight torture in these countries.

Despite the renewed call of the European Parliament for the Council to address member states’ complicity in US-led illegal renditions and the secret detention programme, there has been no significant move from the Council to acknowledge its responsibilities. This complicity has manifested itself in many ways, including: assisting or turning a blind eye to CIA rendition flights over their territories, sharing information that has led to people being forcefully captured and tortured, failing to protect EU citizens or residents from torture and enforced disappearances and allowing the CIA to operate secret prisons in Europe. The ongoing denial of justice and reparation to the victims of such abuses, in the vast majority of cases, amounts to a serious and persistent

From words to action on human rights: guidelines on torture and the fight

1

against terrorism Uganda: enact antitorture law now

2

Recommended resources 3

breach of the founding values of the EU. If such issues of coherence are not adequately addressed they will undermine the EU’s credibility and effectiveness when confronting third countries over violations of international human rights law. This is becoming evident in relation to EU demarches on torture, as documented in recent evaluations of the implementation of the EU Guidelines on Torture. More and more third countries are challenging the EU to reaffirm their own commitment to the absolute ban on torture before challenging them on their record. This adds to inertia on the implementation of the EU guidelines, resulting in a lack of political leadership to prioritize action on this sensitive issue in relations with third countries. There is also a lack of understanding among EU diplomats in the field about how to work on these guidelines, including how to involve civil society.

Although at EU and member state level important steps

Volume 3, Issue 4

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From words to action on human rights (cont.) have been taken to update the text of the guidelines, this has yet to lead to improvements in their practical use.

EC regulation 1236/2005 regulating trade in, and originating from, EU member states in instruments that could be used for torture is another example of an instrument that could be used more effectively to fight torture in a coherent manner. Currently, many EU member states do not provide annual activity reports on their compliance with this regulation. Greater transparency and reporting on relevant trade activity could help to close remaining loopholes in this regulation, and demonstrate clearly that the EU means to practice what it preaches in this important area.

Recent positive discussions regarding humanitarian protection for Guantánamo detainees who are at risk of being tortured or suffering

other ill-treatment if returned to their countries of origin have shown that the EU can begin to meet some of the challenges exposed above. By its engagement on this important

Guantánamo who cannot be returned to their countries of origin because they are at risk of torture or other ill treatment;

The ongoing denial of justice and reparation to the victims of such abuses, in the vast majority of cases, amounts to a serious and persistent breach of the founding values of the EU. debate the EU is explicitly acknowledging the need for consistency in its defence of human rights globally.

Sweden led the EU in adopting the torture guidelines in the first place and we look forward to new initiatives in this important area.

The Swedish Presidency can provide leadership in this field again by: • brokering an agreement on the EU offering humanitarian protection and assisting with the rehabilitation of those detainees remaining in

• adopting a strong EU position against the use of diplomatic assurances to facilitate the transfer of persons to a country where they may be at risk of torture; • taking the lead in calling for full reparation to victims and accountability for anyone responsible for human rights violations in the context of EU complicity in the US led renditions and secret detention programme; • showing leadership to EU member states that do not currently provide national

reports against EC regulation 1236/2005 by compiling a public national annual activity report to the European Commission in line with Article 13 of this regulation; and, • actively carrying out demarches under the EU Guidelines on at least two torture cases per month.

To download the full report in both English and Swedish, visit http://www.aieu.be/ NOTE: A number of AI sections are running a postcard action between now and December 2009 calling for action by the Swedish Presidency on the issues highlighted in this chapter. The IRCT—which sent letters to Swedish authorities in June with similar recommendations— encourages further involvement in this campaign. For further information, or to get involved, please contact Susi Dennison at sdennison@aieu.be or call 0032 2548 3765

Uganda: enact anti-torture law now

by Nicholas Opiyo

In April this year, Human Rights Watch released a report that detailed the use of torture at the Kololo based offices of the Joint Anti Terrorism Task force (JATT).

This report was quintessentially denied by the government. While

appearing on the talk show On the Spot, the army spokesperson refuted the use of torture by JATT and the Uganda People’s Defence Force (UPDF) and forcefully asserted, even in the face of glaring evidence, that the UPDF does not condone torture. The good Major actually even questioned the report author’s “love” for Uganda.

A couple of weeks later, Mr. Francis Atugonza, the Hoima mayor and Forum

for Democratic Change Secretary for Trade and Industry , alleged abduction by members of the Rapid Response Unit (RRU) and in a press conference claimed to have been tortured at the JATT offices in Kololo.1 Before the end of April, Mr. Mukhawana, a National Resistance Movement (NRM) Historical was in the press pleading for the intervention of President Museveni to bring to account officers of the RRU, whom he claimed

had tortured his son to death.2 What is really intriguing about the incident is that he was expressing dissatisfaction with the investigation carried out by an officer of RRU which concluded that the deceased died of an accident. Mr. Mukhawana had appealed to the President who referred him to the Police Chief who then referred Mr. Mukhawana to an officer of RRU, the same body that was alleged to have tortured his son.

Volume 3, Issue 4 While Mr. Mukhawana may have been able to get an audience with the President and Police Chief because of his historical connections with the NRM government, hundreds of torture victims suffer every day without recourse. In any case reporting to the President may not be as fruitful after all as Mr. Mukhawana has learnt. The absence of a specific law on torture has made access to justice for victims of torture nearly impossible.

Perpetrators commit torture with impunity and walk away without any criminal or civil responsibility on their part. At best, it is the Attorney General who is sued on behalf of the government for torturous acts of its servants.

The need for a specific criminal law on torture can not be overstated; it is long overdue.

At present, the only legislation Uganda has that penalises the specific offence of torture is the Anti-Terrorism Act of 2002 and unfortunately, it only applies to those officials who commit torture whilst engaged in antiterrorist operations. If victims of torture are to get any redress and the government is to save taxpayers’ money in compensation, we need to criminalise all acts of torture and make individual persons

Page 3 criminally and civilly liable for their actions. This is not only a necessity but an obligation of Uganda as a State party to the UN Convention Against Torture and Other Cruel Inhuman and Degrading Treatment (UNCAT).

We may dismiss reports such as that of Human Rights Watch, but not for long.

Decisive action must be taken and taken now when we have the chance to do so.

electoral process and law should provide not only laws that will ensure a free and fair election but also restore the confidence of the electorates in the election process. When politicians who use torture to get elected are banned from running for public office, or are sentenced and convicted to a prison term, public confidence in the electoral process will be boosted.

If victims of torture are to get any redress and the government is to save taxpayers’ money in compensation, we need to criminalise all acts of torture and make individual persons criminally and civilly liable for their actions.

I dare argue that as part of our electoral law reforms, we must pass a law against torture. This is because our experience in the past has shown that in periods of elections, cases and the magnitude of torture are widespread. In both presidential election petitions of 2001 and 2006, the Supreme Court noted with concern the use of torture as a means of intimidation. Several elections of members of parliament were annulled on similar grounds.

Torture therefore has undermined our democracy and any reforms in the

I reject as false the argument that our penal laws are adequate to deal with cases of torture. This argument is premised on the lack of appreciation of the constituent element of the offence of torture as defined under international law. As Lord Archer of Sandwell stated, “of all ways in which human beings mistreat another, there can be none which evokes greater loathing and condemnation than torture”. Torture is the vilest affront to human dignity and is never justified, neither to fight terrorism nor to

maintain public order. To submit that offences of causing grievous bodily harm or assault are enough to deal with torture is erroneous and premised on the limited appreciation of the tenets of the offence of torture.

As part of our electoral reform ahead of the 2011 polls, we must embrace the civil society initiative to draft an anti-torture law. This will not only provide an avenue and procedure for redress to victims of torture but also up citizen confidence in the election process .

Nicholas Opiyo is a Ugandan lawyer with extensive experience working in the research, advocacy and defence of human rights.

1

See “Hoima Mayor Calls for Speedy Hearing of Case” The New Vision, 21 April 2009 available at http://allafrica.com/ stories/200904220330.html 2

See “Police Killed My Son”, The

Daily Monitor 27 April 2009 available at: http:// www.monitor.co.ug/artman/ publish/regional-special/ Police_killed_my_son_says_NR M_historical_83875.shtml

Recommended reading

Readers of the “Preventing Torture within the Fight against Terrorism” newsletter may be interested in the following recent reports which discuss in more depth the issues touched upon in this issue. These resources are not meant to be an exhaustive list.

“Beyond Guantanamo”, an article by Sarah Mendelson in Democracy Journal, describes

how the U.S. faces a critical window in which it needs to improve its human rights record. Available at: http:// www.csis.org/images/ stories/ hrs/090615_mendelson_bey ond_guantanamo.pdf

Beyond the “war on terror”: Towards a new Transatlantic framework for counterterrorism from the European Council on Foreign Relations show-

cases the divisions between U.S. and European policy and offers strategies for the EU to move forward on counterterrorism. Available at: http:// ecfr.3cdn.net/1e18727eafddd cceb7_81m6ibwez.pdf

Guantanamo’s hidden history: shocking statistics of starvation from Cageprisoners is a comprehensive collection of figures indicating that one in

ten prisoners is grossly underweight at the camp, and illustrating the effects of hunger strikes on the prison population. Available at: http:// www.andyworthington.co.uk /wp-content/uploads/ guantanamos-hiddenhistory-shocking-statisticsof-starvation.pdf

How to promote human rights in Egypt from Human

Volume 3, Issue 4

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International Rehabilitation Council for Torture Victims (IRCT) Borgergade 13 · P.O. Box 9049

For more information...

1022 Copenhagen K DENMARK Phone: +45 33 76 06 00 Fax: +45 33 76 05 00 Email: irct@irct.org www.irct.org

FIDH 17, passage de la main d’or 75011 Paris FRANCE Phone: +33 1 43 55 25 18 Fax: +33 1 43 55 18 80

The “Preventing Torture within the Fight against Terrorism” newsletter is published bimonthly as part of a joint FIDH-IRCT project aimed at reinstating respect for the prohibition against torture in counterterrorism strategies both globally and in ten target countries: Bangladesh, Colombia, Egypt, Indonesia, Jordan, Kenya, Mauritania, Pakistan, the Philippines and Russia.

The newsletter editors welcome submissions of content for future issues, including articles (send query first), comments, letters to the editor (up to 250 words) and suggestions for recommended reading. To submit content or make enquiries, email Brandy Bauer, IRCT Senior Communications Officer, at tortureandterrorNL@irct.org

www.fidh.org

For more information about the “Preventing Torture within the Fight against Terrorism” project, please visit the IRCT web site (www.irct.org) or contact: Sune Segal, Head of Communications, IRCT, +45 20 34 69 14, sse@irct.org or Isabelle Brachet, Director of Operations, FIDH, +33 1 43 55 25 18, ibrachet@fidh.org

This newsletter is being published with funding from the European Commission. The views contained herein are those of the authors’ and do not represent those of the EC.

Recommended reading (cont.)

Rights First offers a blueprint for the Obama administration to challenge the Egyptian government to develop a human rights promotion strategy. Available at: http:// www.humanrightsfirst.org/ pdf/how-to-promote-humanrights-in-egypt-090528.pdf

Rule without law: human rights violations in the North Caucasus from Amnesty International looks at how, despite claims from the Russian

government that counterterrorism operations have ceased in the region, law enforcement officials continue to abuse rights in the name of fighting terror. Available at: http://www.amnesty.org/en/ library/asset/ EUR46/012/2009/ en/66cda198-85c0-452ca2c5-98cac593a990/ eur460122009en.pdf

Universal jurisdiction developments: 2006-2009 is

a paper from REDRESS and FIDH which collects headlines from 27 countries regarding their willingness to prosecute crimes under universal jurisdiction. Available at:

http://www.redress.org/ news/09-06-01Universal% 20Jurisdiction% 20Developments%20200609.pdf