Wednesday, 1 February 2017

TORTURE: Is it really necessary?  

The question of torture or other cruel, inhuman or degrading treatment or punishment was included in the agenda of the twenty-ninth session of the General Assembly, in 1974, and was submitted for consideration to the Third Social, Humanitarian and Cultural Committee. The Committee, on October 22, 1974, adopted a draft resolution on torture or other cruel, inhuman or degrading treatment or punishment in relation to detention and imprisonment in which the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders was asked to include, in the elaboration of the Standard Minimum Rules for the Treatment of Prisoners.

In September 1975, I was invited to give several speeches at the United Nations Fifth Congress on the Prevention of Crime and the Treatment of Offenders being held at the UN Headquarters in Geneva, Switzerland.

One of the topics to be dealt with at that Congress was on the subject of torture. At that that time, I had mixed feelings about the use of torture to get information from an uncooperative terrorist. I realized that it was morally wrong but I also believed that it was necessary if it would prevent another terrorist from planting bombs.

Over the years, I gave 15 speeches at the UN Congresses in Europe, Africa, South America and Asia but when I gave those speeches, I had no doubts about my own position on the topics that were on the agendas.  At the Fifth UN Congress in Geneva, I wasn’t sure about my views on the subject of torture so I didn’t speak on that particular subject at that Congress.

Most of the delegations at the Fifth UN Congress were in favour of abolishing torture and degrading treatment used against prisoners. The Congress’ Report was forwarded onto the UN General Assembly.

The matter was on the agenda of the General Assembly at its thirtieth   session, in 1975, and was again allocated to the Third Committee. On December 9th 1975, the General Assembly adopted without a vote, resolution to which the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was annexed. On the same date, the General Assembly also adopted resolution 3453 XXX, in which it expressed its appreciation to the Fifth Congress for the elaboration of the declaration and requested competent bodies to conduct further work for the elaboration of several instruments relating to the question of torture.

The item entitled Torture and other cruel, inhuman or degrading treatment or punishment was again placed on the agenda of the General Assembly at its thirty-first and thirty-second sessions. At the latter session, on December 8th 1977, the General Assembly adopted resolution 32/62, in which, expressing its belief that further international efforts were needed to ensure adequate protection for all persons against torture and other cruel, inhuman or degrading treatment or punishment, and considering that a further significant step would be the adoption of an international convention on the matter, it requested the Commission on Human Rights to draw up a draft convention, in the light of the principles embodied in the Declaration and to submit a progress report to the Assembly at its thirty-third session.

At its 1978 session, the Commission on Human Rights accordingly set up an open-ended working group to consider the alternative drafts for an international convention against torture and other cruel, inhuman or degrading treatment or punishment that had been prepared by Sweden and by the International Association of Penal Law. On March 7th 1978, the Commission adopted resolution 18 by which it took cognizance of the report of the working group, and requested the Secretary-General to transmit all the relevant documents of the Commission on the topic to Governments of Member States and members of the specialized agencies for their comments and to prepare a summary of the comments received. The Commission on Human Rights further requested the Secretary-General to transmit its resolution to the General Assembly, together with the relevant chapter of the Commission’s report to the Economic and Social Council, as constituting the Commission’s progress report. At the same session, the Commission also proposed a draft decision for adoption by the Economic and Social Council, by which the Council would authorize the holding of a meeting of a working group, open to all members of the Commission, for one week before the Commission’s 1979 session in order to prepare concrete proposals for the draft convention. In addition, the Commission decided that the working group concerned with analyzing alternative approaches and ways and means within the United Nations system for the promotion and encouragement of human rights and fundamental freedoms should combine this, its principal task, with the work on the draft convention.    

On May 5th 1978, the Economic and Social Council adopted, without a vote, by which it approved the Commission on Human Rights’ recommendation concerning the pre-session working group meeting. It also decided to request the Secretary-General to transmit to the General Assembly the Commission’s resolution concerning the draft convention, together with the relevant chapter of the Commission’s report. At the thirty-third session of the General Assembly, in 1978, the item relating to torture or other cruel, inhuman or degrading treatment or punishment was again referred to the Third Committee for consideration. On December 20th 1978, on the recommendation of the Third Committee, the General Assembly adopted resolution 33/178, in which it took note of the progress report of the Commission on Human Rights and requested it to give high priority, at its following session, to the question of drafting a convention on torture. In 1979, the Working Group accordingly met prior to the session of the Commission on Human Rights. It continued to meet prior to and during the sessions of the Commission in the following years up to 1984, on the basis of authorizations given annually by the Economic and Social Council, on the recommendation of the Commission on Human Rights, for the purpose of completing the drafting of the. Also on a yearly basis, the General Assembly took note of the progress in the work of the Commission and renewed its request to the Commission on Human Rights to complete, as a matter of urgency, the drafting of the convention (resolution 34/167 of December 17th 1979, resolution 35/178 of December 15th 1980, resolution 36/60 of November 25th 1981, resolution 37/193 of December 18th 1982, and resolution 38/119 of December 16th 1983).      

On December 10th 1984, the General Assembly, acting on the recommendation of the Third Committee, adopted without a vote resolution 39/46, by which it adopted and opened for signature the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, annexed to the resolution. The Convention entered into force on June 26th 1987, in accordance with its article 27, paragraph 1, following the deposit of the twentieth instrument of ratification.

As you can see, this issue of the use of torture and degrading treatment was very much on the minds of those working on the topic at the United Nations.     

The text of the Convention was adopted by the United Nations General Assembly on December 10th 1984 and came into force on the 26th of June 1987. As of October 2016, as many as 160 nations are signatories of the Convention against torture and degrading treatment of prisoners.  

Article 1.1 of the Convention defines torture as the following;

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.

It's indisputable that the United States engaged in various forms of torture used against terrorist suspects during its post-9/11 war on terrorism. The Obama administration and Congress both acknowledged that “the authorization and practice of torture and cruelty after September 11 was a grave error.

A nonpartisan report by the Constitution Project, urged the federal government to beef up the US federal laws to make clear that torture and cruel and inhuman treatment of detainees are federal crimes.

The group said in a 560-page report issued after two years of research “Torture occurred .in many instances and across a wide range of theaters. (areas around the world including the United States).

Article 3 of the Convention prohibits parties from extraditing, or refouling (return of refugees or asylum seekers) any person to a state where there are substantial grounds for believing that he would be in danger of being subjected to torture. The Committee against Torture has held that this danger must be assessed not just for the initial receiving state, but also to states to which the person may be subsequently expelled, returned or extradited.  

Despite that part of the Convention, The US government authorized the transfer of a Canadian citizen who was visiting the US to Syria in order that he could be tortured to reveal information the Americans wanted. It turned out later after months of torture that the Syrians concluded that he was not a terrorist and they subsequently released him to Canada.

The Convention against Torture also requires states to take effective measures to prevent torture in any territory under their jurisdiction, and forbids states to transport people to any country where there is reason to believe they will be tortured.

The United States signed the Convention on 18th of April 1988 and ratified it on the 21st of October 1994. This means that as of the latter date, the US must adhere to the terms of the Convention with no exceptions. Alas, the United States government hasn’t adhered to all the terms of the Convention. 

There are  documented and alleged cases of torture both inside and outside the United States by members of the U.S. government, the U.S. military, U.S. law enforcement agencies and U.S. intelligence agencies.

A two-year study by the U.S. independent group, The Constitution Project concluded that it was "indisputable" that U.S. forces had employed torture as well as "cruel, inhuman or degrading treatment" in many interrogations; that "the nation's most senior officials" bear ultimate responsibility for allowing and contributing to the spread of these techniques, and that there is substantial evidence that information obtained by these methods was neither useful nor reliable.

The use of "third degree interrogation" techniques in order to compel confessions, ranging from "psychological duress such as prolonged confinement to extreme violence and torture", was widespread and considered acceptable in early American policing. In 1910 the direct application of physical violence in order to force a confession became a media issue and some courts began to deny obviously compelled confessions. In response to this, "covert third degree torture" became popular, since it left no signs of physical abuse. The publication of the Wickersham Commission's Report on Lawlessness in Law Enforcement in 1931 highlighted the widespread use of covert third degree torture by the police to force confessions, and led to a subsequent decline in its use over the 1930s and 1940s. Alas, not all police forces both in the US and Canada stopped using torture to obtain confessions. I friend of mine who was a police officer before he became a lawyer, told me of torture being used by the Toronto Police as late as in the 1960s to get accused felons to confess.

American officials were involved in counter-insurgency programs in which they encouraged their allies, such as the Armed Forces of South Viet Nam to use torture, and actively participated in it, during the 1960s to the 1980s. From 1967 to at least 1972, the Central Intelligence Agency (CIA)   coordinated the Phoenix Program, which targeted the infrastructure of the Communist National Front for the Liberation of South Vietnam ("Viet Cong"). The program killed 26,000 Viet Cong and captured over 60,000. Critics of the program assert that many of those identified by the program were Viet Cong members who were actually civilians, who when captured suffered torture by the South Vietnamese Army, under CIA supervision.

In more modern policing, police brutality has involved torture. Police officials have generally described these cases as aberrations or the actions of police officers who are acting as criminals in police uniform, as stated by  New York City Police Commissioner Howard Safir  when he described the attack on Abner Louima. This man was assaulted, brutalized, and forcibly sodomized with a broken-off broom handle by officers of the New York City Police Department after he was arrested outside a Brooklyn nightclub in 1997 for assaulting a fellow patron. Later it was established that he wasn’t the man that committed the assault on the patron in the nightclub.

The arresting officers beat Louima with their fists, nightsticks, and hand-held police radios on the ride to the station. On arriving at the station house, he was strip-searched and put in a holding cell. The beatings continued later, culminating with Louima being sexually assaulted in a bathroom at the 70th Precinct station house in Brooklyn. Officer Volpe kicked Louima in the testicles, and while Louima's hands were cuffed behind his back, he first grabbed onto and squeezed his testicles and then sexually assaulted him with a broomstick by shoving it up his rectom. According to trial testimony, Volpe then walked through the precinct holding the bloody, excrement-stained broom handle in his hand, bragging to a police sergeant that he "took a man down tonight.”

Louima's teeth were also badly damaged in the attack by having the broom handle jammed into his mouth. He testified to the presence of a second officer in the bathroom helping Volpe in the assault but could not positively identify him. The identity of the second attacker became a point of serious contention during the trial and appeals.

The day after the incident, Louima was taken to the emergency room at Coney Island Hospital. Escorting officers explained away his serious injuries being a result of "abnormal homosexual activities."

An emergency room nurse, Magalie Laurent, suspecting the nature of Louima's extreme injuries were not the result of homosexual sex, notified Louima's family and the Police Department's Internal Affairs Bureau of the likelihood of sexual assault and battery attack left Louima with severe internal damage to his  colon  and  bladder  that required three major operations to repair. He was hospitalized for two months after the incident.

On August 29, 1997, an estimated 7,000 demonstrators marched on to the New York City Hall and the 70th Precinct station house where the attack took place. The march was dubbed Day of Outrage against Police Brutality and Harassment.

Volpe initially pleaded not guilty to several counts of violating Louima's civil rights, obstruction of justice, and making false statements to police. Midway through the trial, Volpe changed his plea to guilty, confessing to having sodomized Louima. Despite the fact that Louima had several broken teeth, Volpe denied that he ever struck Louima in the mouth with the stick and claimed that he only put it very close to Louima's mouth. Volpe also admitted that he had threatened Louima's life. On December 13th, 1999, Volpe was sentenced to 30 years in prison, without the possibility of parole as well as a $525 fine and restitution in the amount of $277,495,0oo. Volpe is currently serving his 30-year sentence at a minimum security facility at the Butner Low FCI in North Carolina; he is scheduled for release on August 3, 2025. It is highly unlikely that Vope will be able to pay that amount of restitution to his victim. Schwarz in 2002, pleaded guilty to a perjury charge for testifying that he did not lead Louima to the bathroom. For that, he was sentenced to five years in prison. He was released to a halfway house in February 2007. I imagine that these two officers had a real bad time in prison.

Louima's subsequent civil suit represented by attorney Sanford Rubenstein against the City of New York ended in a settlement of $8.75 million on July 30, 2001, the largest police brutality settlement in New York City history. After legal fees, Louima collected approximately $5.8 million.

Frank "Curly" Lino Sr.was born on October 30, 1938.  On May 18, 1962, he was arrested with respect to the shootings of two Brooklyn police detectives The detectives died as a result of the shootings. Lino was charged in the murders after he supplied a getaway vehicle for one of the stickup men so that the stickup man could flee to Chicago. Lino was one of the five men charged after being taken to the 66th Precinct for an interrogation.  

During the interrogation Lino claimed the police drove staples into his hands and a broomstick up his rectum. He was left with a broken leg and arm. Lino was let off with three years probation after he threatened to sue the city for police brutality. One of his eyes blinked uncontrollably which he claimed was the result of injuries that occurred during the 1962 police beating at the hands of the NYPD.

Shoving a broom handle up a suspect’s rectum was a common practice in Toronto by members of the Robbery Squad up until the 1960s.

Police brutality critics, such as law professor Susan Bandes, have argued that such a view is erroneous and that it "allows police brutality to flourish in a number of ways, including making it easier to discount individual stories of police brutality, and weakening the case for any kind of systemic reform.

The United States uses waterboarding and other forms of torture against terrorists and in doing so; they rarely gain valuable information from these people.

Waterboarding, which mimics the sensation of drowning, was first allowed during former the Bush administration for terror suspects captured after the September 11, 2001 attacks.

Former Vice President Dick Cheney and several senior officials in the Bush administration were strong proponents of waterboarding. Cheney has stated since leaving office that he does not consider waterboarding to be torture. Wrap a towel around his head and pour water all over the towel and then ask him while he is gasping for air if he feels as if he is being tortured.

The brutal practice was finally banned by the Bush administration in 2006. In January 2009, former US President Barack Obama issued a similar ban on the use of waterboarding and other forms of torture.

US President Donald Trump's current willingness to reinstate waterboarding and other forms of torture against terrorist suspects indicates that the new American leader is preparing to bring back one of the most infamous policies of former US President George W. Bush.

During an interview with ABC News on January 20, 2017 at the White House, Trump said he thinks hat torture “absolutely works.” You think? Of course, Trump also thinks that molesting women works since he always got away with it and even after  publically bragging about it. 

As to the effectiveness of waterboarding, one of the Islamic leaders who was behind the 9911 terrorist act was waterboarded 181 times and he didn`t tell his interrogators anything that was of any use to them.

There are many issues at stake. Critics say the administration’s handling of detainees violates international law, produces poor intelligence, and puts U.S. detainees abroad at risk. Human-rights groups further allege that instances of prisoner abuse at Abu Ghraib prison in Baghdad, Baghram Air Force base outside Kabul, Afghanistan, and Guantanamo Bay was part of a larger pattern of behavior and harsh interrogation techniques approved at the highest levels. Critics allege that the abuses stemmed from the White House’s willingness to bend the accepted legal definition of what constituted torture. Further, these groups charged the U.S. government, from before September 11, 2001, of engaging in renditions: the transferring of prisoners to countries that engage in torture. Instead of leaving these detainees in legal limbo, human-rights groups have said they should be have been turned over to U.S. courts and afforded legal counsel.

If the United States slips down that slippery slope into the morass of torture where President Trump is leading them, citizens of democratic nations will strongly suspect that the Americans are returning to the Dark Ages.

Having tall buildings, rockets reaching far distances in space, having great universities and having a powerful military doesn’t necessarily mean a nation is great. What will make the United States great will be its love of peace, its sense of justice and recognition of the human rights afforded to everyone, even those who would harm them. 

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