The practice of torture is endemic in Asia, and the regions governments show no political will to eliminate it. In fact, states treat torture as a necessary aspect of social control, directly or indirectly approving the practice. The clearest indication of the states unwillingness to eliminate torture is the refusal to criminalise the practice, as well as the inadequate implementation of laws against torture. In most Asian countries, civil society has also not shown sufficient interest or commitment to press for the elimination of torture. The International Day in Support of Victims of Torture, June 26, should be an occasion to seriously reflect on the failures in Asia to eliminate this unacceptable and cruel practice.
Since its inception, the Asian Human rights Commission (AHRC) — a regional human rights organisation committed to the promotion and protection of human rights–has focussed its attention on the issue of torture prevention in Asia. In the coming years, particularly the next one year, the AHRC will campaign for the criminalisation of torture in Asian states. The campaign will be formally launched on June 26. The following reflections on the International Day in Support of Victims of Torture are based on the information gathered by the AHRC over several years of work.
Torture is practiced by law enforcement agencies in the region as a crude shortcut for criminal investigation. Law enforcement agencies function with the belief that the deterrence quotient against a crime is the possibility of being tortured, rather than the crime being detected and punished in the legal process. Custodial torture and other forms of violence are used by the state for social control, with torture as one of the most common forms of punishment.
Torture neither promotes democracy nor supports the rule of law. On the contrary, torture and its open or clandestine use undermine the fundamentals of democratic governance. States in the region allow law enforcement agencies, particularly the police, to practice torture. The police being one of the most visible presences of the state, its directives are permeated into society through fear. In some countries this fear is so immense that obtaining a confession does not require torture; a suspect in custody admits anything and everything required by the police in fear for his life. Criminal investigation in most Asian countries begins and ends with a confession. Fair trial has no place in such an environment.
The practice of torture is not limited to policing. Paramilitary and military units and other agencies around the region also resort to torture, often brutal. Whether torture is practised by a military detachment or by the local police, the possibility for a victim of torture to complain does not exist in many Asian states. The absence of witness protection laws, proper investigation mechanisms including medico-legal facilities, and prosecution mechanisms, render complaint making suicidal for a victim. This allows torture to also be used for blackmailing, as a form of revenge and for monetary gain.
In the past four years, there have been attempts by countries inside and outside the region to form alliances to engage in torture. Countries where torture is criminalised have entered into clandestine pacts with countries where the practice is a routine phenomenon, to detain and question individuals using torture. Of particular relevance are torture cells run by military dictatorships or governments subjugated by the military in Asia, to detain and question individuals of foreign as well as domestic origin. Prolonged periods of detention and extreme forms of torture are the unique characteristics of these torture centres. Often such centres are manned by foreign troops or run under the supervision of foreign states. Some of these non-Asian entities have in the past been champions of anti-torture campaigns. Their engagement in torturing suspects and often outsourcing torture cells to certain Asian states has made a severe dent in international efforts to condemn and campaign against torture.
The trend of condoning torture in the name of national security has encouraged many Asian states to consciously refuse to recognise that torture is a crime against humanity, or to have a legal framework against torture. On the contrary, Asian states are increasingly providing statutory protection and impunity for state agents to engage in torture. States are fielding criticisms by juxtaposing critiques with fake nationalism.
The practice of torture remains the central defect in protecting, promoting and fulfilling human rights in the region. From the standpoint of state responsibility to protect, promote and fulfil human rights, the fight against torture is an important component of human rights work. In essence, human rights work is engaging in a dialogue with the state, reminding the state of its responsibility to serve the people and identifying its failures in meeting people’s demands.
In most of Asia, states notoriously attempt to reduce the space for this dialogue by instilling fear, largely through law enforcement agencies. By using law enforcement agencies as a tool in this way, the state engages in a counter dialogue with citizens, reminding them it has the means to silence dissent and enforce its writ.
Enforced silence nurtures resistance. In the absence of a democratic framework where common humanity and equality are the key principles, resistance movements look to other elements for cohesion and identity. In many Asian states these elements have been religion or political ideology rooted in violence. For a silenced community, violence becomes the liberator, with individuals finding commonness in the fight against the oppressor. The state then resorts to impunity for its agents using torture and other means of violence to fight back. This cycle of violence only reduces the space for peaceful dialogue.
Working against torture is thus crucial to enlarging the space for democratic dialogue. Human rights work in the region and globally has yet to appreciate this fact. In fact, the challenges of campaigning against torture — including individual activists confronting omnipresent state agencies — often prevent human rights groups from working on this key issue.
Fighting torture involves walking with the victim, encouraging the victim to speak and finding means for their speech to be heard, often in an environment where redress is remote. In most Asian countries, attempts to speak or amplify the voice of the victim face stiff opposition.
The work against torture in Asia has thus been reduced to advocating international norms and standards, while ignoring the reality that these norms and standards have no meaning in countries where even minimum human rights protection does not exist. In countries where laws addressing torture exist, they may not cover the universally accepted definition of torture. Or, the victims do not have safe mechanisms through which to complain or obtain witness protection. In other countries, the possibility of impartial investigations, prompt prosecutions and proportionate punishments are limited or non-existent. As a result, the few attempts by domestic mechanisms to address torture are easily subjugated and court decisions not followed. The open dismissal of judicial directives in this manner creates the perception that the state and its agencies are above the law.
By criminalising torture and bringing a torture perpetrator within the realm of accountability and punishment, the biting teeth of the state are blunted, enlarging the space for dialogue. In fact, the governments of Asia are fully aware of the potential of an anti-torture framework. Such a framework will however, be detrimental to those in power as well as vested interest groups. The prevention of torture and its consequent reform of law enforcement agencies have far-reaching effects. It is for this reason that most states are resistant to the implementation of any robust law concerning torture.
Twenty-two years since the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into force, most Asian states are yet to ratify the convention or have a functioning domestic legal framework to combat torture. Their abstention in combating this brutal crime against humanity has reduced the space for democracy and the rule of law in their respective countries. By not attaching adequate importance to the work against torture, domestic and international human rights organisations have also failed to play their part in addressing this fundamental issue.
To begin a strong and serious campaign to eliminate torture in Asia, the AHRC makes the following recommendations:
1. Asian states should urgently consider eliminating torture and to therein carryout necessary reforms to their respective justice institutions. This should be reflected in legal frameworks, as well as the allocation of human and material resources;
2. The AHRC urges countries that have not yet ratified the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and its Optional Protocol, to do so as a matter of priority. Upon ratification, governments must enact corresponding domestic legislation to guarantee that torture in all its manifest forms is recognised as a serious, punishable crime. Legislation should also provide victims with the possibility to obtain adequate compensation. Countries where domestic laws already exist should review and streamline the laws in accordance with the principles of the Convention;
3. Torture is directly linked to the policing systems in Asian states. To prevent police from relying on torture for criminal investigations, governments need to undertake thorough police reforms. These reforms should be geared towards creating credible civilian policing systems suitable for modern societies. Adequate budgetary allocations must be made to these ends;
4. All states are obligated to eliminate impunity. This means ensuring accessible complaint mechanisms, effective investigations by competent, independent and impartial investigators, and the prosecution of all offenders, particularly on complaints concerning torture. The funds necessary for investigation must be provided. Another important aspect in eliminating impunity is the application of command responsibility;
5. Training for law enforcement officers, the military and the judiciary must include information about the Convention and the states’ treaty obligations. Superior courts should develop jurisprudence and guidelines relating to the elimination of torture as a priority. Subordinate courts need to be effectively guided and supervised on their obligation to punish the crime of torture;
6. Fair trial and torture cannot coexist. Legal professionals in Asia however, often condone torture or see it as the mere use of force, the reasonability of which is to be decided in a court of law. They need to be more informed of torture as a grave crime attracting universal jurisdiction;
7. Finally, the AHRC encourages civil society organisations throughout Asia to make the elimination of torture as their priority, irrespective of their current focus. A more visible role must be played by civil society, particularly human rights groups, in promoting the Convention regionally, as well as developing awareness on torture prevention as a key prerequisite to rule of law and democracy.
