http://twocircles.net/2012jul18/torture_one_most_common_forms_human_rights_violations.html
http://www.mynews.in/News/the_prevention_of_torture_law_is_a_much_needed_step_to_embellish_indias_credentials_as_country_with_a_sound_criminal_justice_system_N466357.html
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http://ibnlive.in.com/generalnewsfeed/news/nhrc-pitches-for-passage-of-prevention-of-torture-bill/1021900.html
http://www.hindustantimes.com/India-news/NewDelhi/NHRC-pitches-for-passage-of-prevention-of-torture-bill/Article1-887813.aspx
SPEECH
OF JUSTICE K.G. BALAKRISHNAN
HON’BLE
CHAIRPERSON
NATIONAL
HUMAN RIGHTS COMMISSION
ON
TESTIMONIAL
CAMPAIGN CONTRIBUTE TO
ELIMINATE IMPUNITY
ELIMINATE IMPUNITY
FOR
PERPETRATORS OF TORTURE
ININDIA
IN
ORGANISED BY
PEOPLE’S VIGILANCE
ON 12TH JULY 2012
AT
“No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment” states Article 5 of the
Universal Declaration of Human Rights, adopted by the United Nations General
Assembly in 1948.
The prohibition of torture and other forms
of ill-treatment has a special status in the international protection of human
rights. It is included in a number of international and regional treaties and
also forms part of customary international law, binding all States. The
prohibition of torture is absolute and can never be justified in any
circumstance. This prohibition is non-derogable, which means that a State is
not permitted to temporarily limit the prohibition on torture under any
circumstance whatsoever, whether a state of war, internal political instability
or any other public emergency. Further, the prohibition of torture is also
recognized as a peremptory norm of international law, or jus cogens. In
other words, it overrides any inconsistent provision in another treaty or
customary law.
Considering the particular importance
placed on the prohibition of torture, the traditional obligations of States to
respect, to protect and to fulfill human rights is complemented by a further
obligation to prevent torture and other forms of ill-treatment. States are
required to take positive measures to prevent its occurrence. “In the case of
torture, the requirement that States expeditiously institute national
implementing measures is an integral part of the international obligation to
prohibit this practice.”
Torture is probably one of the most common
forms of human rights violations. Those held in detention frequently experience
torture in many different forms. But it can be prevented. Human rights and
other social justice organizations have a critical role to play in preventing
torture in places of detention. But to do so effectively, a clear understanding
of what is torture and the mechanisms available to prevent it is necessary.
Further, the aim of the testimony is to facilitate integration of traumatic
experiences and restoration of self-esteem. It is also useful as it channels
the victims into socially constructive actions like production of a document
that could be used as indictment against the offenders. Testimonial campaign
plays crucial role in fight for justice and helps the victims of casteist
aggression, police torture, communal violence or any other kind of injustice,
to come out of the trauma.
Definition
Torture, according to the 1984 United Nations Convention
Against Torture (an advisory measure of the UN General Assembly) 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 intimidation 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. -- UN Convention Against
Torture
This definition was restricted to apply
only to nations and to government-sponsored torture and clearly limits the
torture to that perpetrated, directly or indirectly, by those acting in an
official capacity. It appears to exclude:
1. torture perpetrated by gangs, hate groups,
rebels or terrorists who ignore national or international mandates;
2. random violence during war; and
3. punishment allowed by national laws, even
if the punishment uses techniques similar to those used by torturers such as
mutilation or whipping when practiced as lawful punishment. Some professionals
in the torture rehabilitation field believe that this definition is too
restrictive and that the definition of politically motivated torture should be
broadened to include all acts of organized violence.
In 1986, the World Health Organization
working group introduced the concept of organized violence, which was
defined as:
“The inter-human
infliction of significant, avoidable pain and suffering by an organized group
according to a declared or implied strategy and/or system of ideas and
attitudes. It comprises any violent action that is unacceptable by general
human standards, and relates to the victims’ feelings. Organized violence includes
“torture, cruel inhuman or degrading treatment or punishment” as in Article 5
of the United Nations Universal Declaration of Human Rights (1984).
Imprisonment without trial, mock executions, hostage-taking, or any other form
of violent deprivation of liberty, also fall under the heading of organized
violence.”
An even broader definition was used in the
1975 Declaration of Tokyo regarding the participation of medical professionals
in acts of torture:
For the purpose of this
Declaration, torture is defined as the deliberate, systematic or wanton
infliction of physical or mental suffering by one or more persons acting alone
or on the orders of any authority, to force another person to yield
information, to make a confession, or for any other reason.
This definition includes torture as part of
domestic violence or ritualistic abuse, as well as in criminal activities.
Since 1973 Amnesty International has adopted the simplest, broadest definition
of torture:
“Torture is the systematic
and deliberate infliction of acute pain by one person on another, or on a third
person, in order to accomplish the purpose of the former against the will of
the latter.”
Risk Factors
Ø
In
order to effectively address the root causes of torture and other forms of
ill-treatment, a direct preventive strategy should begin with a thorough
analysis of risk factors (those conditions that increase the possibility of
torture occurring).
Ø
The
general political environment is an important factor to consider, as a lack of
political will to prohibit torture, a lack of openness of governance, a lack of
respect for the rule of law and high levels of corruption can all increase the
risk of torture. The same is true for the social and cultural environment.
Where there is a culture of violence, or high public support to “get tough” on
crime, the risk of torture occurring is also increased.
Ø
The
national legal framework should also be analyzed. In countries where torture is
prohibited in the Constitution and in law, as well as being a specific offence
under the criminal code the risk of torture might be lower than in countries
where this is not the case. The analysis should also focus on the rules and
regulations that apply to places where persons are deprived of their liberty,
as well as the existence of appropriate legal safeguards. In addition, the way
in which the legal framework is implemented in practice should be closely
analysed.
Ø
The
organization and functioning of the criminal justice system is another
important factor to consider. The level of independence of the judiciary, as
well as the level of reliance on confessions in the criminal justice system,
will have a direct influence on the risk of torture. As the risk of torture is
higher during the initial period of detention, particular attention should be
paid to law enforcement authorities. In this regard, the institutional culture,
the role and functioning of the police and recruitment and training processes
for officers can all positively or negatively influence the risk of torture.
Finally, the overall institutional environment should be included in the
analysis. The level of accountability and transparency of the authorities, the
existence of public policies regarding crime prevention and the effectiveness
of complaints mechanisms are factors that can reduce the risk of torture, along
with effective independent external actors, such as NHRIs and civil society
organizations.
Situations of risk
Ø
Any
situation where a person is deprived of his or her liberty and when there is an
imbalance of power, in which one person is totally dependent on another, constitutes
a situation of risk. The risk of being tortured or ill-treated is higher at certain
time during the period of a person’s detention, such as the initial period of
arrest and police custody, as well as during transfer from one place of
detention to another. Situations where persons deprived of their liberty are
held out of contact with others can also increase the risk of torture or
ill-treatment, in particular incommunicado detention or solitary confinement.
Ø
The
risk of torture and other forms of ill-treatment exists within any closed
facility; not only prisons and police stations but also, for example,
psychiatric facilities, juvenile detention centres, immigration detention
centres and transit zones in international ports.
Potential Victims
Ø It can be difficult to identify persons or
groups who are at greater risk of torture and ill-treatment, as this can vary
significantly according to the national context. In fact, any person could potentially
be at risk. In general, however, vulnerable and disadvantaged groups within
society – such as minority groups (racial, ethnic, religious or linguistic),
women, minors, migrants, people with disabilities, the homeless and the poor –
commonly face a higher risk of torture and ill-treatment.
Ø An effective preventive strategy requires a
certain level of political will to combat torture, which is publicly stated and
able to be monitored. In an Environment where torture is systematically used to
silence political opposition, prevention initiatives are likely to fail or be
used for political propaganda.
Ø It is important to stress that no State is
immune from the risk of torture and ill-treatment. As a result, there is always
a need to be vigilant and to develop and implement effective preventive
strategies.
Torture of innocent people
One well documented effect
of torture is that its victims will say or do anything to escape the situation,
including untrue “confessions” and implication of other 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. 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 (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. 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. However the most common and prevalent form of torture
worldwide in both developed and under-developed countries is beating.
Effects of torture
The consequences of
torture reach far beyond immediate pain. Many victims suffer from
post-traumatic stress disorder (PTSD), which includes symptoms such as
flashbacks (or intrusive thoughts), severe anxiety, insomnia, nightmares,
depression and memory lapses, Torture victims often feel guilt and shame
triggered by the humiliation they have endured. Many feel that they have
betrayed themselves or their friends and family. All such symptoms are normal
human responses to abnormal and inhuman treatment.
Organizations like the
Freedom from Torture and the Center for 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 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 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 attach, inflammation,
or embolism due to extreme stress
For survivors, torture
often leads to lasting mental and physical health problems.
Physical problems can be
wide-ranging, e.g. sexually transmitted
diseases, musculoskeletal 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 inter subjectivity, 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.
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, reenact 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.
Psychiatric treatment of
torture-related medical problems might require a wide range of expertise and
often specialized experience.
Fighting torture – A multi
dimensional issue
There is no impartial
mechanism for receiving complaints against torture. The complaints must be made
to police authorities themselves. The National Commission for Police Reforms
many years ago recommended that police in India
Ø
Torture
and fabrication of cases are closely linked. In attempting to save offenders
for obvious reasons, the police implicate innocent people and impose any amount
of cruelty and torture on them until a ‘confession’ is extracted.
Ø
The
prosecution system at time protects the perpetrators. Prosecutors should be
independent, competent, and appointed through a judicious process to scrupulously
uphold the cherished values enshrined in statutes.
Ø
In
the present criminal justice system in India
Ø
India
Ø
Despite
its many human rights groups, an effective and powerful campaign for the
elimination of torture has yet to be developed in India
Ø
The
concept of Human Rights Courts needs to be revamped and re-envisaged so that an
effective mechanism can be introduced. Judges who sit in such courts need to
have a through knowledge of human rights law and should be endowed with a deep
sense of the sublime supremacy of human life over all else.
Ø
The
early ratification of the Convention against Torture is imperative if we wish
to defend the human rights of torture victims. It is mandatory for any attempt
at reforms in the police system as an effective mechanism for law enforcement
and administration of justice.
Ø
Meanwhile,
it is highly necessary to document torture cases in a meticulous way. The lack
of proper documentation only permits the unfettered continuance of barbaric
methods of torture and acquittal of the culprits. Had there been proper
documentation, it would not have been possible to hide the colossal and
devastating atrocities of the police, whose constitutional mandate is to
protect the people. NGOs should undertake scientific and systematic
documentation of torture and follow-up on it.
Ø
Modern
communication systems offer tremendous opportunities for victims of torture to
expose it to the rest of the world. Urgent Appeals have been quite successful
at coordinating and combining domestic and international efforts to resist this
atrocious encroachment on human rights. Hence human rights defenders and
activists should be equipped and conversant with what information technology
offers for the promotion of human rights activity anywhere in the world, less
expensively and with greater efficiency.
The development of a
comprehensive strategy for the prevention of torture and other ill-treatment
requires an integrated approach composed of three broad, interrelated elements:
legal framework, public policies and shared conceptions of best practice for
prohibiting and preventing torture and other ill-treatment that is implemented
by actors (e.g. judges and the police) relevant to efforts to prevent torture.
Implementation of the legal
framework
Effective implementation
requires practical measures to be taken on a range of levels to ensure that
national laws regarding torture and ill-treatment are respected in practice.
Training and education
The different actors
involved in implementing the legal framework, and in particular those within
the criminal justice system (such as law enforcement officials, judges and
detaining authorities), will require proper training – both initial and ongoing
– regarding the normative framework and the development of operational
practices that respect these norms.
Procedural measures
Procedural safeguards
should be put in place and operate as intended, in particular for persons
deprived of their liberty. This could include ensuring that all registers in
places of detention are properly maintained and that there is a regular review
of police codes of conducts.
Investigation and punishment
Allegations of torture
must be promptly, impartially and effectively investigated, even in the absence
of a formal complaint, and “the investigation must seek both to determine the
nature and circumstances of the alleged acts and to establish the identity of
any person who might be involved.” Any breach of the law must be appropriately
sanctioned. When this does not occur, a culture of impunity develops which can
undermine both the force of the law and its implementation.
Taking action to tackle
impunity is even more important in relation to torture and ill-treatment, as it
is absolutely prohibited under all circumstances. The following actions may be
taken:
Ø
Strengthening
the independence of the judiciary
Ø
Establishing
effective and accessible complaints mechanisms
Ø
Ensuring
access to free legal aid and legal assistance
Ø
Promptly
and effectively investigating allegations of torture or ill-treatment
Ø
Ensuring
those who breach the law are punished
Reparation for victims
Victims of torture and
ill-treatment should be provided with full and effective reparation, including
restitution, compensation, rehabilitation, satisfaction and a guarantee of
non-repetition.
Financial compensation
should be provided for economically assessable damages. Satisfaction can
include a variety of measures, such as an official declaration to restore the
dignity of the victim, a public apology or a commemoration and tribute to
victims.
Control mechanisms
In addition to an
effective legal framework, there is also a need to establish control
mechanisms, as the risk of torture is present in all countries at all times.
Control mechanisms can help identify areas of potential risk and propose
possible safeguards. Internal administrative control mechanisms which are set
up within an institution – such as police inspection services or prison inspection
services – help monitor the functioning of State institutions and their respect
for legislative norms and regulations. While very useful, internal control
mechanisms are, by themselves, insufficient for this preventive work as they
lack independence and have a more administrative monitoring function. In
addition to internal control mechanisms, it is essential to set up independent
mechanisms to visit places of detention.
The mere fact that
independent bodies can enter places of detention, at any time, has a strong
deterrent effect. The objective of these visits is not to document cases of
torture or denounce the situation or the authorities. Instead the aim is to
analyse the overall functioning of places of detention and provide constructive
recommendations aimed at improving the treatment and conditions of detained
persons.
The international human
rights system also provides an important control mechanism, with relevant
treaty bodies able to review and make recommendations regarding the State’s
legal framework wand its implementation.
Finally, the media and
civil society organizations can contribute to an effective system of check and
balances to prevent and prohibit torture. Responsible media reporting, public
education campaigns and targeted awareness-raising initiatives can build
greater knowledge and understanding of the issues, influence public opinion and
help change the attitudes of stakeholders and decision makers.
Conclusion
It is the responsibility
of the government to ensure the protection of rights of its citizens. It needs
conviction, plans, strategies, education and proper implementation.
Lack of rights’ education
among both oppressors and victims has led to gross violation of rights.
Government should take an initiative to teach human rights as a subject for all
students in schools & colleges through a systematic curriculum…One has to
fight for the justice for himself, his people and his community. We have
succeeded in producing that kind of numerous individuals in this journey of struggle.
To be a successful social transformation, there is a need of action from both
the ends, i.e. from authorities and the people.
‘Silence’ is the biggest
promoter of impunity. A well – informed, well guided public can make a big
change in the existing scenario.
Dr. Lenin’s organization
is doing a tremendous task by holding testimonial ceremonies where-in
testimonials are read out and survivors are facilitated. It boosts up the moral
and confidence among them. This creates and atmosphere of understanding among
the survivors of different kind of violence and between different communities.
They keep them following up as per UN standards, until everything becomes
normal. We need several such organizations to testimonial campaign to its
logical end. Use of the all the possible means to raise the voice for justice,
especially Information Technology has to be utilized to amplify the unheard
voice of people.
The long-pending
Prevention of Torture Bill has been enacted by the Parliament recently. This
step has underscored India
The prevention of torture
law is a much-needed step to embellish India
*****
http://ibnlive.in.com/generalnewsfeed/news/nhrc-pitches-for-passage-of-prevention-of-torture-bill/1021900.html
NHRC pitches for passage of prevention of torture bill
PTI | 06:07 PM,Jul 12,2012
New Delhi, Jul 12 (PTI) The National Human Rights Commission today made a strong pitch for immediate passage of Prevention of Torture Bill in Parliament, saying it is urgent to ensure that extracting information through torture is declared illegal. Addressing a conference here, NHRC Chairperson K G Balakrishnan said Parliament needs to pass the Bill urgently so that the culture of extracting information through torture is made illegal and the guilty are punished by law. "Torture is a serious problem for India. Basic human rights are violated when torture is inflicted. It is not just physical pain, but mental which traumatises the individual and is an assault on his right to life," he said. India has also not ratified the UN convention against torture which asks states to declare torturing a criminal offence under its jurisdiction, he noted. "Stringent punishment for perpetrators of torture and adequate compensation for the victim must be done to check this growing culture of impunity," Sankar Sen, former Director General of NHRC, said. The need to give proper training to the police and sensitizing them about the rights of persons lodged in jail is urgent, he said adding investigating the case needs to be paramount which sadly is not the case. "Police devotes very less time in investigating the cases," he added. Mohammad Amir Khan, who was allegedly picked up by the police 14 years ago and framed in various bomb blast cases before being recently acquitted by the court, was also present at the seminar. "Implementation of our laws needs to be strict and the trial must be expedited," said Khan who had spent around 10 years in Tihar jail. Compensation and rehabilitation are also a neglected part in our justice system which must be high on the priority list of the government and security forces, Sen said. A multi-pronged approach from the training and education of security forces to a fair and impartial judical system is required," said Balakrishnan.
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