Preventing Torture within the Fight against Terrorism 4 by IRCT International Rehabilitation Council for Torture Victims

NEWSLETTER Volume 1, Issue 4

Preventing Torture Framing the Issue

November 2007

within the fight against terrorism Inside this issue:

Counter-terrorism or justification of torture?

Commentary on Pakistan

Changes in policing habits in Commonwealth states By Arnaud Chaltin, Commonwealth Human Rights Initiative

The swift and sometimes emotional reaction to terrorism throughout the Commonwealth has facilitated and in some ways attempted to legitimise recourse to torture. While torture officially remains prohibited, the combined effect of various changes in law enforcement has created a context favourable for the use of torture. Police powers have been enhanced, often with a view to assist interrogation. At the same time, law enforcement units are permitted a more extensive use of force but face less accountability. Given these conditions, many countries are only a small step from challenging and revising the absolute prohibition on torture, leading to a tacit approval of its use. To counter terrorism, many Commonwealth states have enhanced police powers to enter and search, to stop and search, or to arrest and detain. These measures are characterised by the lower threshold of suspicion required to act on them, which raises concerns in particular when viewed along with racial profiling policies. These powers,

generally considered as retribution measures, are here enacted for the purpose of investigation. For example, Australian law provides detention for the purpose of interrogation if the individual is suspected of having relevant information, regardless of the suspected involvement of the detainee with any criminal action. Under terrorism legislation, suspects are being detained preventively for prolonged periods, sometimes indefinitely, often without being charged. Laws in Tanzania, Fiji and Bangladesh provide for unlimited detention, while Singapore, Brunei and Malaysia “limit” preventive detention to up to 700 days. This long lasting alleged preventive measure creates ideal conditions for extreme interrogation techniques, including torture. Yet, states have been very keen on adopting and keeping such procedures. In the UK, for example, provisions for unlimited detention of foreigners were said to be contrary to human rights principles by the House of Lords. However, the government, while repealing

the measures, introduced provisions for control orders that have in practice been used to replace this illegal detention. The provisions were challenged later and said to amount to arbitrary detention by the Court of Appeal. The high security character of detention of suspected terrorists also impacts on other guarantees. Access to a legal council is often restricted, such as under Australian law, where detained suspects can be prevented from contacting a lawyer of their choice, questioned without a lawyer present, and the lawyer can be restricted from intervening at any time. The right to habeas corpus also fell victim of the secrecy surrounding terrorism matters; the security of the state often prevents information about the grounds of detention from being disclosed, and therefore challenged. Under criticism, countries have tried to reconcile the interests of security and detainees’ rights, such as the United Kingdom with its special advocate system where the lawyer can access the information withheld but

Prosecuting torture: the case against Rumsfeld Recommended Reading

sees his subsequent contacts with his client drastically restricted, a solution still in breach of the right to a fair trial. Pakistan’s anti-terrorism judiciary system provides a good example of legislation likely to lead to extreme forms of torture (due to the urgency to obtain confessions). Terrorism offences will be tried by special tribunals within very tight time frames (7 days for investigation and 7 days for prosecution). This leaves the law enforcement authorities with little time to conduct a thorough investigation. As confessions can form the basis of conviction, the pressure to secure evidence for the conviction might push the investigators to obtain quick confessions, and therefore to resort to unlawful means. Terrorism also has provided an excuse for a greater use of force against suspected terrorists, perceived – despite a widely encompassing definition

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Counter-terrorism or justification of torture? (cont.) that lowers the threshold of suspicion – as one of the most dangerous threats for societies today. Thus, current circumstances allege that it is necessary to allow police to use, for example, army techniques, such as “shoot to kill policies”, or to enact clauses allowing to “fire upon, or otherwise use force, even to the causing of death, against any person” as in the Special Power Act in India. The face of policing is also changing where counter-terrorism is left to specialists, whether specially trained police units or mixed forces composed of both police and army personnel, such as the Rapid Action Battalion in Bangladesh or the Black Mambas in Uganda. Another element completes this new landscape, weakening dangerously the safeguards against torture: the reduction of police accountability. This takes the form of both a standstill of accountability despite the extension of police powers, or of a direct

More information about the changes to policing resulting from counter-terrorism initiatives in the Commonwealth is available in the CHRI report Stamping Out Rights: the impact of anti-terrorism laws on policing.

removal of these checks on anti-terrorism policing. For example, Indian law prohibits legal proceedings to be taken against police officers if the action is “purported to be taken in good faith”, a claim which is practically impossible to disprove. This shift in police powers is to be read in parallel with a shift of international principles in regard to torture. It seems that the absolute prohibition of torture is being re-read in the light of counterterrorism, which, in an environment conducive to torture, might give the extra push to cross the line.

tortured since “torture was the only deterrent to terrorism”. This bold assertion produced little public condemnation, nor action from courts or human rights institutions. However, such remarks are even more worrying when coming from high level diplomats and judges. South Africa, for example, has been criticised for justifying its return of a Pakistani national to his home country on the grounds that it could not prove that the victim would be tortured there. Once returned, the suspect disappeared and allegedly had been tortured. A similar

No state denies the prohibition on torture, yet throughout the Commonwealth, the principle seems less important, even negotiable in the light of counter-terrorism. Countering terrorism became the top priority, to be upheld at any costs. Therefore, fundamental principles such as human rights or the absolute prohibition of torture became secondary to the now prime concern of fighting terrorism. Therefore, on the field, law enforcement agents seem to believe in the necessity of the use of torture, and are ready to defend it, by referring for example to the ticking bomb scenario, one person tortured so that many lives may be saved. For example, in India a senior police officer openly declared that a person accused of having taken part in the failed attacks on Parliament had been

path has been followed by the highest jurisdictional national bodies, such as the House of Lords in the United Kingdom. The latter had to take a position on the admissibility (for legal proceedings) of evidence obtained under torture. Torture was clearly and unanimously said to be unacceptable. However, they contradicted this strong statement by asserting that it had to be established that the information was obtained under torture. This might sound reasonable, but in practice, it is impossible to establish such facts, in particular in cases of outsourcing torture to third countries with reduced visibility and information

about the place and conditions of detention. Therefore, as Lord Bingham pointed out in his dissenting opinion, “despite the universal abhorrence expressed for torture and its fruits, evidence procured by torture will be laid before SIAC (Special Immigration Appeals Commission) because its source will not have been ’established’”. Among the Commonwealth countries 24 out of the 53 have yet to ratify the Convention against Torture, and face little pressure from others to do so. No state denies the prohibition on torture, yet throughout the Commonwealth, the principle seems less important, even negotiable in the light of counterterrorism. The principle is being re-read, interpreted restrictively, while tools and conditions to practice torture on a regular basis are being provided by counter-terrorism laws. Torture is becoming a tacitly accepted tool to maintain security. Where countering terrorism derives from the obligations of the state to uphold the human rights of its citizens, it is surprising to accept as necessary such blatant violations, without challenging their legality or efficiency.

Arnaud Chaltin is a consultant with the Commonwealth Human Rights Initiative (CHRI) and one of the authors of the report Stamping out rights: the impact of anti-terrorism laws on policing. To read the report , visit

www.humanrightsinitiative. org.

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Commentary on Pakistan

On 3 November, Gen. Pervez Musharraf, President of Pakistan and Chief of the Armed Forces, suspended the country’s Constitution and imposed emergency rule in what he claimed was a necessary step to deal with threats to the nation from Islamic extremists. A week later, Musharraf amended the Army Act of 1952 to provide state intelligence agencies with significant powers, including arbitrary detention and the ability to try civilians in military courts on terrorism charges. Subsequently, Pakistani authorities have arrested hundreds of judges, lawyers and human rights defenders under the pretext of protecting national security. The declaration of emergency is a response to alleged interference by the judiciary in the government policy to fight terrorism and extremism. In Pakistan, enforced disappearances

have increased alarmingly on a regular basis since 2001, in connection with the fight against terror. Several hundreds of cases of enforced disappearances had been submitted to the Supreme Court, which ordered the government and intelligence services to produce the missing people before the court. As a result of the state of emergency, the cases of disappearances pending before the Supreme Court are suspended. These actions pose potentially devastating consequences for the advancement of rights and democracy in Pakistan. Historically, the imposition of emergency rule in a state often is a precursor to an increase in incidences of torture and other human rights violations. As the Asian Human Rights Commission has observed, “if the intelligence agencies are given legal cover to abduct and torture in

custody then no citizen will remain secure in the hands of military intelligence agencies and the country will become a military state.” While President Musharraf has been recognised by the U.S. as a key partner in its so-called “war on terrorism”, he and his allies must realise that extremism cannot be fought with repression. Protecting national security and respecting human rights are not contradictory goals. Musharraf should immediately end unlawful detentions, reinstate the Supreme Court, rescind the Army Act amendments, and restore the Constitution and rule of law. The most effective way to fight terror is not with terror, but with adherence to international standards for human rights and fair democratic processes.

To read more regarding the current events in Pakistan visit the following: Deep concern regarding the decision to proclaim the state of emergency http://www.fidh.org/ spip.php?article4848 Human Rights Commission of Pakistan http://www.hrcp-web.org/ Asian Human Rights Commission Pakistan page http://pakistan.ahrchk.net/ Human Rights Watch Pakistan page http://www.hrw.org/doc? t=asia&c=pakist –The Editors

Prosecuting torture: the case against Rumsfeld

For the fifth time in recent years, human rights groups have filed a criminal complaint alleging that former U.S. Defense Secretary Donald Rumsfeld ordered and authorised torture. The charges were put forth to the Paris Prosecutor by the International Federation for Human Rights (FIDH), Center for Constitutional Rights, the European Center for Constitutional and Human Rights and the

French League for Human Rights to coincide with a visit by Rumsfeld to France in late October. Rumsfeld’s presence in France gives French courts jurisdiction to prosecute him under the UN Convention against Torture, to which both the United States and France are party. The complaint states that it is the legal obligation of states such as France to take up the case, given that the United States and Iraq have

failed to launch their own independent investigations. In addition, Rumsfeld’s current status as a former state official means he can no longer claim immunity from the charges. The case is being supported by written testimony from the former army brigadier general at Abu Ghraib and other documents implicating Rumsfeld with having command responsibility for torture at U.S. detention facilities in

Iraq and other countries. Two previous cases against Rumsfeld filed in Germany have been dismissed; other cases have been filed in Argentina and Sweden. FIDH and others also have appealed to the Frankfurt High Regional Court to reconsider its earlier dismissal. For more information about these cases, visit the FIDH web site: www.fidh.org.

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

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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, the Philippines, Russia and Syria. 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 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