International watch mechanisms have been established to ensure that states adopt measures to uphold these treaties and to condemn any practices of torture when they occur. The European Committee for the Prevention of Torture (CPT) has also authority to make unannounced visits to places of detention.
This is not a theoretical debate – torture has continued to be used on a distressing scale, also in recent times. The proper response is to strengthen the existing mechanisms. It is therefore shocking that misdirected counter-terrorism strategies are now challenging the very consensus against torture.
The devious “ticking bomb” argument has returned and even been taken seriously by some leading opinion makers, not least in the United States where it has been used to defend one of the most cruel torture methods, the so-called water boarding (mock drowning).
The argument is a familiar one, built on a hypothetical scenario in which police or security forces could save lives by torturing someone who knows where a bomb is placed and thereby obtain information to prevent the explosion.
The purpose of this argument is to question the absolute prohibition of torture: if there is a case in which you would save lives by torturing – how could the ban be general and total? This line of reasoning may appear reasonable at first glance, but is flawed and dangerous.
The scenario itself is built on a series of assumptions the combinations of which are extremely unlikely in reality: that the captured person has the necessary information and that the police know that; that he or she will talk under torture and only then; that he or she will tell the truth; that no other means is available to obtain the information in time; and that no other action could be taken to avoid the harm.
To create legal room for exceptions from the ban on torture – the obvious intention behind the argument – would have alarming consequences. The use of torture would become a relative issue of ends and means, a question of judgment from case to case. The consequence would be the spread of torture, we would find ourselves on a “slippery slope”.
Even today with the clear and absolute ban in national and international law, torture is used in too many cases, not least before and during interrogations – also in European countries. Any confusion about its illegality would almost certainly increase the number of cases. This is also why the attempts of the US administration to “redefine” torture are so disquieting.
What is needed is a solid underpinning of the legal ban. Every government must make clear that nothing but zero tolerance is acceptable, that the judiciary reacts decisively on any reported case and that evidence produced under torture is never accepted in police investigations or any judicial or administrative procedures.
No one must be deported to countries where they risk torture. The attempts to overcome this prohibition through “diplomatic assurances” are not acceptable. Governments which have used torture cannot be trusted to make an exception in an individual case through a separate bilateral agreement. Moreover, respect for such promises is very difficult to monitor. It is absolutely wrong to put individuals at risk through testing such dubious assurances.
Each government should put in place an effective program of prevention. Police and security staff must be instructed on legal methods of interrogations. Capacity for disciplined, lawful behaviour must be a key factor when recruiting law enforcement personnel; unsuitable officers have to be removed.
Safeguards must be in place to guarantee that anyone arrested has prompt access to a lawyer and impartial medical examination upon arrival and release. And there must be an effective system of continued, independent monitoring of all places where people are held deprived of their liberty.
This is the intention behind the 2002 optional protocol to the United Nations Convention against torture, the so-called OPCAT. One obligation for States which have ratified the protocol is to establish a national preventive mechanism to monitor police detention cells, prisons, psychiatric hospitals, detention centres for refugees and migrants, institutions for young law offenders and any other place where persons are held involuntarily.
Certainly, there have been systems to visit such places before in Europe. The value of the protocol is that it clarifies the mandate of these mechanisms and constructive cooperation with the special United Nations sub-committee established under the protocol.
It is up to each country to decide on the precise nature of the mechanism. In France, there is a proposal about a new institution, a Controleur General, in the UK that several existing monitoring bodies would share this responsibility and in several other countries the plan is to leave this task to the Parliamentary Ombudsman.
Whatever model is chosen, it is important that the mechanism be fully independent and authorized to undertake visits without forewarning, with access to all places of detention, without exception. It should be staffed and funded in a manner which guarantees its independence.
There is one effect, which the setting-up of a national preventive mechanism should certainly not have: to bar non-governmental organizations from access to places of detention. NGOs continue to be essential actors in the work against ill-treatment in places of detention - even where national preventive mechanisms exist.
So far, 17 member states of the Council of Europe have ratified the OPCAT, six have put in place a national preventive mechanism.(1) I hope the other members will do the same. At a meeting recently held in Paris a number of ombudsmen and other representatives of National Human Rights Structures in European countries discussed the implementation of the protocol.(2) The general opinion was that the time was ripe for more systematic work against torture – and that the Protocol is a useful basis for this renewed effort.
I am sure that such development would be welcome by serious law enforcement agencies. They know that torture is ineffective, that it tends to produce unreliable information and at the same time transform their agents into criminals themselves.
Thomas Hammarberg
Notes
1. Ratifications: Albania, Armenia, Croatia, Czech Republic*, Denmark*, Estonia*, Georgia, Liechtenstein, Malta, Modova*, Poland*, Serbia, Slovenia*, Spain, Sweden, Ukraine, United Kingdom (* with a national preventive mechanisms put in place).
2. This meeting was conceived and co-organised by the Ombudsman of the France and my Office to foster the sharing of thoughts and experiences amongst representatives of International Organisations, national human rights structures, NGOs and other associations, on the possible ways to implement the OPCAT provisions.