ANU UN Society MiniMUN II The Question of Torture Briefing Paper The United Nations and Torture Following the adoption of the United Nations Convention Against torture in 1984, torture has been widely been accepted as a breach of customary international law. The convention has been signed and ratified by 161 member states. Ratification of this treaty involves a complete ban on any acts considered to be torture or degrading punishment and applies to both nationals and foreigners. This act is considered to be absolute, meaning that torture is prohibited in all scenarios. This includes scenarios involving war, political dissent, security threats as well as extra judiciary torture. It also means that states must declare torture illegal in all areas of jurisdiction, even where it may not have been previously practiced. While this aspect is supposed to follow the UN definition of torture, it is worth noting that definitions of torture vary wildly between member starts. The act is also clear in affirming that orders from superiors, within any command structure, may not be used as a justification for an absolution of guilt. This means that beyond state responsibility for systemic torture, any individual who commits torture under any circumstance will also be considered guilty. This condemnation in the strongest terms has however had a limited success in mitigating the actual proliferation of torture worldwide. Torture continues in every shape and form both in states that have ratified the treaty, and in non-signatory member states. This has led to the frequent use of torture as a pretence to both condemn and sanctions seen to be in violation of the treaty. Customarily torture is also considered a human rights violation, and is the object of significant NGO work. Organizations such as Amnesty International often work alongside the UN to call identify and combat instances of systemic torture. Beyond the mere act of banning torture, signatories are also prohibited from refoulment in cases where the individuals in question are exposed to a demonstrable risk of torture. This means that individuals cannot be extradited, deported, or refouled (returned following a denial of immigration clearance) to any state where they would be exposed to the risk of torture. It also includes provisions that draw possible future deportations and forced movements into account (eg. a scenario where a deportation to Mexico (where hypothetically no risk of torture exists) that would hypothetically under Mexican law lead to an extradition to the Democratic Republic of Congo (where a high risk of torture exists) would also not be permissible. It also bans acts that are deemed cruel inhuman or degrading, even when they do not meet the criteria as to be considered torture. Definition of Torture The United Nations Convention Against Torture defines torture as: For the purpose of this Convention, the term "torture" means 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. One of the largest weaknesses in this definition is the non-consideration of acts deemed to be “lawful sanctions”. This was added to preserve national sovereignty, yet has been repeatedly been abused by states as a means to legally justify the ongoing use of systemic torture. There is no clear definition nor limitation as to what constitutes a lawful sanction and this has left the act vulnerable to national interpretations of lawful punishment. While acts of torture as per the UN definition should technically be banned in ratifying states, many have managed to maintain violating practices as per their own “lawful” penal code. This argument has been used to defend various traditional punishments that are legal on a national level. However, most scholars and politicians agree that this part of the convention refers to sanctions lawful under international law, and so does not grant states free jurisdiction to define torture. Other restrictions on torture under international law Rome Statute of the International Criminal Court (ICC) The Rome Statute (the founding document of the International Criminal court) defined torture as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions” and outlines it as a war crime. This act makes it possible to convict those guilty of torture on the war crimes tribunal. Use of Torture Despite the frequent and strong worded condemnation of torture on the international arena, torture remains pervasive. In 2014, the 30th anniversary of the convention, Amnesty international reported that 141 countries still routinely use torture. Countries such as Israel, the US, the UK, Saudi Arabia, Oman, China, Uzbekistan and Iran have been recently accused of severe violations of torture conventions. In some countries such as Nigeria, Congo, Chad, China and Uzbekistan torture is a routine feature of police practice. The norm rather than the exception, anyone from organized criminals to petty thieves are commonly subjected to torture and many are killed. Often such torture takes the form of forced starvation, sensory deprivation, beatings and electrocutions. Often this form of torture is used as a means for extortion, and is intertwined with other forms of corruption. In countries such as Uzbekistan there is an extreme prevalence of political torture. Evidence has repeatedly emerged that enemies of ex-president Karimov were boiled alive both to
extract information and simply out of sadism. In China and Iran political prisoners are often beaten as a means of unofficial punishment despite domestic laws banning these practices. While not limited to single party states, the use of torture in North Korea and Eritrea is a particularly concerning violation of human rights. Both states are essentially closed to the free movement of persons, yet Eritrea is one of the largest source countries for refugees. Thousands are tortured on an ongoing basis due to their religious affiliation or for violations of the states unlimited military conscription policy. In North Korea families of the accused are also commonly tortured as a further systematic breach of international law. Beyond political repression and systematic brutality, national security is frequently invoked to justify torture especially in western countries. Both the US and UK have been accused of violations during the Iraq and Afghanistan Wars. A prominent case involved Abu Ghraib prison, where hundreds of Iraqi detainees were subjected to sodomy, physical and sexual abuse, torture and even murder. While it was portrayed as a set of isolated incidents, NGO’s have increasingly found evidence that these practices are endemic in the overseas detention centres maintained by these states. Despite the severity of these abuses and their supposed frequency, many governments still maintain the use of “enhanced interrogation techniques” for terror suspects, often ignoring their own laws prohibiting the use of intelligence gained under duress. While many of these detention centres have since been shut down, the continued operation of Guantanamo continues to taint America’s criticism of torture elsewhere.
A/RES/3023 (2017)
United Nations
General Assembly
Distr.: General 8 March 2017
Grand Finals Seen Resolutions Resolution #1: The Small Arms
Resolution 3023 (2017): The Question of Torture The General Assembly, Concerned about the negative effective torture and other cruel, inhuman or degrading treatment or punishment can have on an individual, Recalling the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Observing the problems with the current United Nations definition of torture, Deeply disturbed by the current widespread usage of torture, Noting with deep concern the failure of many countries to take effective action against torture; Distressed with the statements of some world leaders in their support for torture, Seeking to eradicate the usage of torture, Concerned with the current regime of offshore refugee processing in some countries, Guided by Chapter I, Article VI of the United Nations Charter, and the principles inherent in the whole of the United Nations Charter, Welcoming the work of Amnesty International, 1.
Condemns all forms of torture and other cruel, inhuman or degrading treatment or punishment;
2.
Calls upon all member states sign and ratify the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
3.
Declares that any pain or suffering that arises from, inherent in, or incidental to, lawful sanctions, will no longer be exempt from being classified as torture;
S/RES/3023 (2017)
4.
Calls upon all member-states to criminalise, as soon as is practically possible, all forms of torture and other cruel, inhuman or degrading treatment, notwithstanding relevant security concerns;
5.
Condemns all nation states and non-state actors who actively engage in the use of torture, as well as all nation states, non-state actors and individuals who actively encourage the use or torture, and further; (a) Strongly condemns Oman, Nigeria, and Uzbekistan for their particularly egregious regimes of torture, and; (b) Recommends the Special Rapporteur on Torture investigates the aforementioned countries, as well as any world leader who encourage the use of torture;
6.
Affirms that the Australian government has gravely breached the United Nations Convention against Torture in carrying out its offshore detention programme;
7.
Proclaims that the continued actions of North Korea, Eritrea, and China in employing torture demonstrates that they have persistently violated the Principles of the United Nations Charter, and; (a) Declares accordingly that the United Nations Security Council should convene a special meeting with the aim of removing North Korea, Eritrea, and China from the United Nations, as per Chapter I, article VI of the Charter of the United Nations;
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8.
Commends Amnesty International for its continues efforts in exposing human rights violations around the world;
9.
Decides to remain actively seized of the matter.