Image Source: OMCT SOS-Torture Network, Pakistan takes first step towards making torture a crime < https://www.omct.org/en/resources/statements/pakistan-takes-the-first-step-towards-making-torture-a-crime > accessed 31 January 2023.
Introduction
Under International Law, acts such as cruel, inhuman or degrading treatment or punishment are considered ‘torture’[1] and are strictly prohibited under the primary international human rights instruments, namely, (the 1975 UN Declaration against Torture, the 1984 (UN) Convention against Torture (UNCAT))[2], the 1985 Inter-American Convention to Prevent and Punish Torture along with the developing case law of bodies that work to ensure human rights are not violated. While the treaties do not contain set definition of ‘torture’, per se, they do prohibit it and ill-treatment, the development of the definition of torture is therefore, largely found in the case law, which has developed over the years.
Custodial torture is a global issue that is a more extreme reality for developing countries such as Pakistan and India[3]. Custodial violence is an outright exploitation of the powers given to the Police Force of a country that is conducted by law enforcement agencies; this includes mental and physical torture to those under the ‘custody’ i.e. where an individual’s freedom has been denied by law enforcement agencies mainly during arrests, prosecution, sentencing or correctional confinement. In turn, custodial violence is when such an individual is subjected to inhuman treatment especially when that individual is unable to retaliate. Such a practice has notably had irreversible damage to those that go through it.[4]
Acts that fall within the definition of torture are considered jus cogens i.e. at the highest level of customary law, such acts have universal jurisdiction. Moreover, the Universal Declaration of Human Rights also prohibits torture under Article 5, Article 7 of the International Covenant on Civil and Political Rights (ICCPR) which has been ratified by 153 countries, the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture), ratified by 136 countries along with other regional treaties and the Geneva Conventions. Article 4 of the Convention against Torture obligates state parties to ensure that all acts of torture are criminal offenses under domestic legislation. Countries that have ratified the treaties mentioned above are under the obligation to incorporate torture as a crime and, in turn, ensure that the citizens of the country are safe from all forms of torture.
Custodial Torture around the World
The custodial torture is considered one of the challenges that the Government of a country should work towards preventing in one way or another. This is an issue that persists not only in third world countries but also developing and even some developed countries.
We see that Russia, for example, considers its military and policing action in Chechnya to be counterterrorism. In turn, the federal forces have detained and have been involved in disappearances of thousands of Chechens whom they suspected for this crime. Furthermore, the forces tortured these Chechens in custody to obtain confessions. It is obvious that the federal forces used custodial torture in order to pressurize the detainees so as to make them confess to their crimes.[5]
This phenomenon also remains common in Turkey to date. Although the Government of Turkey has declared zero tolerance for torture along with introducing important reforms in recent years, ill-treatment persists in some areas where the police are seen not respecting the rules as well as ignoring the new safeguards introduced by the Government. Governmental as well as non-governmental organizations interested in this issue continue to record substantial numbers of torture allegations such as the Turkish Human Rights Association, which reported 692 incidents of torture by police in the first six months of 2004[6].
In North Korea, a country known to have the world’s most repressive Government, prisoners are tortured and go through ill-treatment[7]. However, it has largely shunned dialogue with UN experts on human rights.
Through these examples from around the globe, it is evident that this phenomenon is not restricted to a specific area, and despite the laws and international treaties, Governments have been unable to find a solution to protect those detained, from custodial torture. This makes it all the more crucial as well as urgent to be able to come up with ways in which such an inhumane practice can be stopped, once and for all.
International practices that prohibit/ prevent custodial torture
- Strict implementation of the existing laws
In every country, the legal framework grants a foundation for an effective strategy to prevent torture, and this legal framework includes mostly international treaties ratified by the state as well as the domestic laws[8].
Although there are various laws that contribute towards the prohibition of custodial torture, and the Governments in countries like India and Pakistan are of the belief that the existing laws are more than enough, a few developments can be made that may aid in a better implementation of the law, mainly:
- A change, where the burden of proof will not necessarily lie on the plaintiff.
- A comprehensive law that define strictly the meaning of “custodial torture”. The definition that is found in international treaties and conventions is considered vague, which loosely connects other terms such as ‘ill or inhumane treatment’ to torture, which proves challenging in certain situations. Thus, having a specific definition of the factors of custodial torture, experts, lawyers and courts will have more accuracy to classify a certain act.
Moreover, the Supreme Court of India laid down guidelines first in Joginder Kumar V. State of Utar Pradesh (1994)[9] where the judgment held that “no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person” and later on in D.K Bose V. State of West Bengal (1997). Those guidelines including rules relating to detention, arrests and rights of the person, if followed in the manner in which it has been prescribed, the need for new laws will be reduced.
Additionally, monitoring and ensuring implementation of the laws by an independent agency is sufficient to end custodial torture.
- Role of media and people’s mindset
Today’s world has evolved with new media, where the latest information can be accessed quickly. The Internet has immense power in creating the opportunity to access to range of links and applications. Instagram, Facebook, and Twitter seem to be the applications that keep people in contact with each other, around the world. Despite all the access to the media, the method in which information is transferred is heavily flawed. The media is considered to be the mirror of the society, for instance, in democracies media is fundamental to political life; in turn, the media has a huge role in affecting the thinking of a person and thus, the media has great responsibility and therefore, should be taken as such. Evidently, media plays an essential role in everyone’s life and therefore, it can be used to make a change i.e. to collect and even submit evidence of crimes.[10]
There are various instances when one witnesses a crime occurring but turns a blind eye to it, for instance, when we see a person being beaten by a police officer. Moreover, when a bail is rejected by the court we automatically assume that the person must be in the wrong and our perception is set. However, such an approach can be considered harmful, in the long-run.
- Exercising a pressure by senior officers and government
The way in which senior officers and Governments deal with the lower- ranked officers can be considered, especially, in order to get the truth or confession out of the detainees they deal with. This leads to a huge amount of unwarranted pressure being created on those officers which results in them resorting to torture of the detainee to extract the truth, to meet the demands of the superiors. Such a crisis is most common in South Asian countries such as Pakistan.[11]
This phenomenon mark a point on the necessity of reforming the police administration in order to follow better methods of dealing with the detainee.
- Reforms in police administration
Many reforms are required[12]:
- As mentioned above, the Police today resort to torture in order to get a confession instead of using forensic science in solving crimes. Nowadays, science and technology have developed so much, and forensic science can help crack the case without any torture. Rather than the wrong use of torture, police officers may use their mind and intelligence in order to capture the minds of the accused person. Intelligence can be a non-violent, helpful way to collect proof and evidence which can be validated by putting science to use, once obtained.
- Senior Officers should take responsibility for the pressure they put on officers lower to them, infamously known under the law of torts as “Vicarious liability”.
- Working on the mental health of a police personnel can also prove to be effective. This can be accomplished by creating a system that would allow them to seek help, such as having a counseling session, which may result positively for their mental health and their work efficiency will be stable and maintained.
The judgment of Prakash Singh vs Union of India[13], the Supreme Court provided six directives for police reforms. The relevant directive talks about the need of separating function of investigation and law and order and the establishment of the Police Complaints Authority at State and district level.
- Investigation and punishment
In case of custodial torture, investigation process should be reinforced by an internal consistency of a testimony, this is an important element that can support allegations of torture. In addition, other information like medical documents, as well physical or psychological signs of torture can provide more evidence.
First and foremost, it is important to collect any information that can be useful in supporting allegation, and this can be done by conducting an interview with the detainee who is allegedly the victim of custodial torture. Secondly, information concerning allegations of torture must be properly recorded, preferably in writing, using a specific format that allows others to analyse it and use it appropriately.[14]
Concerning the punishment, there should be an independent inquiry in every case of custodial torture under the supervision of a magistrate. There were several suggestions in various reports such as that from National Police Commission which proposed Compliance with Supreme Court Directives on Police Reforms[15]. Moreover, other suggestions highlighted the idea of creating a separate law to punish the use of torture and insertion of an explanation of it.
Conclusion
Custodial violence is one of the menacing phenomenon that may prove harmful to the credibility of our international system. It has been all over the world in many countries like India and Pakistan for a long time and is, for now, even hampering the police system. Such methods lead to the requirement for accountability by and for people. Although the existing laws and the rules of the constitution have been formed and are available on paper, application of the law is lacking. There is a huge need to implement the guidelines and rules on a high level, practically. Custodial torture is a crime against humanity and it should be treated as such, urgently.
[1] Nigel S Rodley, ‘Current Legal Problems (Oxford University Press) “THE DEFINITION(S) OF TORTURE IN INTERNATIONAL LAW” ’, [2002] 55, pp.467-493.
[2] United Nations Convention against Torture.
< https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading > accessed 31 January 2023.
[3] R. S. Saini, ‘CUSTODIAL TORTURE IN LAW AND PRACTICE WITH REFERENCE TO INDIA’, Journal of Indian Law Institute [1994].
[4] Dr. Anju Sinha, ‘Custodial Violence And Human Rights: Constitutional Perspective’, Ilkogretim Online – Elementary Education Online [2020].
[5] Amnesty International, ‘Russian Federation: Torture and forced “confessions” in detention’, November 2006.
< https://www.amnesty.org/en/wp-content/uploads/2021/08/eur460562006en.pdf%5C > accessed 31 January 2023.
[6] Human Rights Watch Briefing Paper, ‘Eradicating Torture in Turkey’s Police Stations: Analysis and Recommendations’, September 2004.
< https://www.hrw.org/legacy/backgrounder/eca/turkey/2004/torture/eradicate_torture.pdf > accessed 31 January 2023.
[7] Reuters Staff, ‘U.N. documents North Korean torture chambers, prison camps … and luxury goods’, (Reuters, 17 February, 2014).
< https://www.reuters.com/article/us-korea-north-un-excerpts-idUSBREA1G0OF20140217 > accessed 31 January 2023.
[8] OHCHR, APF and APT, ‘Preventing Torture, An Operational Guide for National Human Rights Institutions’, May 2010.
< https://www.ohchr.org/sites/default/files/Documents/Publications/PreventingTorture.pdf > accessed 31 January 2023.
[9] Nidhi Bajaj, ‘Arrest shouldn’t be done as a routine: the Supreme Court perspective’ (iPleaders Blog, 15 December 2021).
< https://blog.ipleaders.in/arrest-shouldnt-be-done-as-a-routine-the-supreme-court-perspective/ > accessed 31 January 2023.
[10] Kotie Geldenhuys, ‘The media and its role in reporting crime’ (Servamus Community-based Safety and Security Magazine, 10 September 2021).
< https://journals.co.za/doi/full/10.10520/ejc-servamus_v114_n9_a4 > accessed 31 January 2023.
[11] Tahir Alam Khan, ‘Police Torture: Reasons and Remedial Measures’, (Global Village Space, 3 October 2019).
< https://www.globalvillagespace.com/police-torture-reasons-and-remedial-measures/ > accessed 31 January 2023.
[12] Rohan Raj, ‘Custodial Torture and Reforms in Police Administration’, (Legal Service India, 2020).
< https://www.legalserviceindia.com/legal/article-3120-custodial-torture-and-reforms-in-police-administration.html > accessed 31 January 2023.
[13] Prakash Singh vs Union Of India [2006].
< https://indiankanoon.org/doc/1090328/ > accessed 31 January 2023.
[14] General Assembly Resolution, ‘Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ [2000].
[15] CHRI, ‘Government Compliance With Supreme Court Directives On Police Reforms’, [September 2021].
<https://www.humanrightsinitiative.org/download/1632218542Government%20Compliance%20with%20SC%20Directives%20On%20Police%20Reforms%20An%20Assessment.pdf > accessed 31 January 2023.
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Authors
Filzah Asif, Research Assistant, RCIL & HR (hashmifilzah@yahoo.com)
Ghinwa Fayad, Research Assistant, RCIL & HR (ghinwaziadfayad@gmail.com)