Exercises in Brutality: Torture Laws in Pakistan, in Light of American Policy Failure

Exercises in Brutality: Torture Laws in Pakistan, in Light of American Policy Failure

 

‘It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.’

~ Sir James Stephen on the Indian police’s proclivity for torture, 1883[1]

 

‘I stand 8-10 hours a day. Why is standing limited to 4 hours?’

~ Inscription by U.S. Secretary of Defence Donald Rumsfeld on a memorandum regarding interrogation techniques; 27th November, 2002[2]

 

Introduction

In the wake of the long-delayed United States Senate report on torture, the worldwide condemnation of enhanced interrogation techniques is heartening, as both a series of moral failures, as well as badly laid law besides. It is imperative, however, to understand the direct relationship between granting greater credence to executive authority and violating all norms of decency; the moral and practical aberrations inherent to legalizing torture (thus sacrificing legitimacy on the altar of necessity); and, in lieu of any effective criminal sanction, that it is likely these actions are inadequately stigmatized, and may be repeated.

This article also explores how Pakistan’s policymakers have borrowed the language of detention and counter-terror from a confused and now ultimately discredited Cheney-era narrative – to the detriment of our own legal regimen. The need for a comprehensive anti-torture law, i.e. the prospective Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Act, 2014 cannot be understated. Instead, the legislature lurches toward evermore draconian acts of parliament designed to cheapen the dignity of citizens, and the sanctity of the federation. That trend requires reversing.

 

What is Torture?

It may have seemed inconceivable, in a world before the 9/11 terror attacks, that the global conversation would one day revolve around a cruel and unusual torture programme run via intelligence operatives under the aegis of the United States executive; and as inconceivable considering how draconian detention measures would once again be resurgent in Pakistan’s civilian democracy.

So it is that torture continues to play a disturbingly prominent role in the 21st century, and the terror wars that have come to define it. Understanding what activities constitute ‘torture’ as a legal offence, especially as lawmakers grapple with harsher anti-terror mechanisms, is therefore vital.

International Law

Often is the assertion made that Pakistani lawmakers clearly define the term ‘torture’, so as to facilitate subsequent legislation and penalization. This attitude is ignorant of existing developments in incoming legislation on the domestic level, and long-existing commitments to the United Nations on the world stage.

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, defines torture as:

‘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.’ [3]

According to Switzerland’s Association for Prevention of Torture, this definition comprises three cumulative elements:

  • The intentional infliction of severe mental or physical suffering;
  • by a public official, who is directly or indirectly involved;
  • for a specific purpose.[4]

 

The U.N. Convention against Torture was ratified by the U.S. in 1994, and Pakistan in 2010. Implicit in ratification is ‘an international act whereby a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act.’[5]

Hence for all intents and purposes, Pakistan’s legal conception of torture has an existing set of parameters available to it, should it choose to avail them (a caveat: the U.S., by contrast, took reservation to the convention’s definition of torture itself, deferring instead to its own Bill of Rights’ Eighth Amendment – outlawing cruel and unusual punishment).[6]

 

U.S. Law

Unlike Pakistan’s domestic laws pre-2014, the U.S. Code has clearly defined what activities constitute torture. Under Title 18, Part I, Chapter 113C, § 2340, torture is defined as:

  • an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
  • “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
    1. the intentional infliction or threatened infliction of severe physical pain or suffering;
    2. the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
    3. the threat of imminent death; or
    4. the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.[7]

The activities that would go on to form the nucleus of the George W. Bush administration’s ‘enhanced interrogation’ techniques thereby qualify as torture under Sections 1 and 2, (A), (B), (C), and (D). How they were legalized, the jurisprudential connotations of that legalization, and how their perpetrators have managed to evade prosecution post-illegalization, are described in greater detail later.

 

Pakistani Law

Keeping the virtual absence of any set definition of torture in mind, Pakistani lawmakers[8] have now moved the Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Act, 2014, introduced in the Senate on 11th August.[9]

Cognizant of the same U.N. Convention in its preamble, the bill defines torture under Section 2 (n) as:

‘An act committed by any person, including a public servant, or at the instigation of or with the acquiescence of any other person, with specific intent to inflict physical or mental pain or suffering, not incidental to lawful sanctions, upon another person within his custody, for the purpose of:

  1. Obtaining from that person or some other person any information or a confession; or
  2. Punishing that person for any act he or a third person has committed or is suspected of having committed; or
  3. Intimidating or coercing that person or a third person; or
  4. For any other reason based on discrimination of any kind; or
  5. Harassing, molesting, or causing harm whether physical or mental to a female for any of the above purposes.’

The rather redundant Section 2 (n) (v) notwithstanding, the bill’s definition of torture is, in various places, a word-for-word reiteration of the U.N. Convention. Yet it is vital law that requires to be laid, regardless of the limited imaginations of its draftsmen.

 

How is Torture Penalized?

International Law

The U.N. Convention against Torture ensures that:

  • All acts of torture are offences under (the state’s) criminal law, punishable by ‘appropriate penalties which take into account their grave nature’;
  • that torture is an extraditable offence;
  • that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings; and that
  • the victims have an enforceable right to ‘fair and adequate’ compensation.[10]

But for the states that are actually party to it, the obligation to ensure the convention’s spirit is respected has thus far been shirked. Despite having ratified the convention as aforementioned, both the U.S. and Pakistan have failed to maintain even the lowest standards of enforcement.

Pakistan, for its part, lacks a domestic regimen that is even equipped to address such offences; nor does the vast majority of its torture victims possess the resources that may allow them to pursue the avenues of international justice. It is equally unhelpful that Pakistan takes exception to the convention as a basis for extradition.[11]

Across the Atlantic, the U.S. actively subverted international law in the wake of the 9/11 terror attacks, provided ethically threadbare legal arguments via the Bush administration’s Department of Justice (DOJ) to immunize contractors and intelligence personnel involved in torture, and then refused to prosecute any parties involved in the subsequent administration.

 

U.S. Law

This trend flew in the face of not only international law, but the U.S.’s own federal statutes and judicial precedent. Contrary to popular belief, the U.S. regimen makes no allowances for American torturers on foreign soil. The same Title 18, § 2340A, (a) of the Code holds:

‘Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.’ [12]

And despite taking exception to the convention’s definition of torture, the sum effect of the convention remains the same for the U.S., following the landmark Filártiga v. Peña-Irala decision in 1980.[13] After 17-year-old Joelito Filártiga was kidnapped and tortured to death by a police officer in Paraguay, the Filártiga family – having immigrated to the U.S. – moved the civil courts for wrongful death by torture.

The court ruled that torture was punishable under international law, and held, ‘The torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind.’ It was thereby established that ‘torture falls under the realm of customary international law—thus, all countries, whether party to the Torture Convention or not, must abide.’[14]

It is tragic that U.S. jurisprudence would not only subvert that ideal, but that its shapers would join the ranks of the kind of supracriminals their jurists would liken to pirates and slavers.

 

Pakistani Law as It Is

The Constitution of Pakistan’s Article 14 is the starting point for the national conversation on torture. Article 14 states:

  • The dignity of man and, subject to law, the privacy of home, shall be inviolable.
  • No person shall be subjected to torture for the purpose of extracting evidence.[15]

Having deemed the dignity of man as an inviolable fundamental right – juxtaposed with the prohibition of torture for the sake of extracting evidence – the Constitution prohibits torture in no uncertain terms. Article 14 is also the foundation stone that fresh legislation, i.e. the Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Bill, 2014,[16] may serve to protect.

Unfortunately, the same is not the case with Pakistan’s Penal Code. In its most unambiguous reference to the subject of torture, Section 337-K – ‘causing hurt to extort confession’ – reads:

‘Whoever causes hurt for the purpose of extorting from the sufferer or any person interested in the sufferer any confession or any information which may lead to the detection of any offence or misconduct (…) shall, in addition to the punishment of qisas, arsh or daman, as the case may be, provided for the kind of hurt caused, be punished, having regard to the nature of the hurt caused, with imprisonment of either description for a term which may extend to ten years as ta’zir.’[17]

Unlike its American counterpart, the Pakistani Code neither elucidates that the torturer perform his acts of torture ‘under the colour of the law’, nor fleshes out what is meant by ‘hurt’.

And abhorrent to existing constitutional and penal provisions is Pakistan’s Prisons Act of 1894 anyway (brought to this contribution’s grateful attention by Khawaja Aizaz Ahsan and Nimra Gilani’s excellent article on the subject).[18] For those imprisoned for life, the Prisons Act permits the use of fetters for the first three months at the supervisor’s discretion, and for greater than three, were the supervisor to be granted sanction from the prison director.[19]

Following a visit to Pakistan by the U.N. Special Rapporteur on Torture, the resultant report dryly observed, ‘The widespread practice in Pakistan of using bar fetters as a means of restraint or punishment of prisoners inside prisons for extended periods (confirmed at Lahore Central Jail) is a clear violation of the Standard Minimum Rules and can be considered a form of inhuman and degrading treatment.’ [20]

 

Pakistani Law as It Should Be

Hence the advent of the Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Bill, which marks substantial progress toward papering over gaps in Pakistan’s legal sphere. The bill intends to act as a comprehensive set of anti-torture laws, thereby thrashing out a definition of torture that parallels the U.N. Convention’s idea of the same. And Section 3 of the bill introduces penalisation cognizant of the severity of the offense:

‘Whosoever commits, or abets or conspires to commit torture shall be punished with imprisonment for a term, not less than 5 years, which may extend to 10 years and with fine, which may extend to Rs.1,000,000/-.’

Having penalized conspiracy, the bill also covers negligence and authorization of torture under the same section, ‘any public servant, or any other person who has a duty to prevent and either intentionally or negligently fails to prevent the commission of torture shall be punished with imprisonment for a term, not less than 3 years which may extend to 5 years and with fine, which may extend to Rs.500,000/-.’  All fines so recovered will be provided to the victim.

In sum, the bill brings with it both a tremendous overhaul of Pakistan’s legal conception of torture, as well as a set of muscular protections for victims:

  • Statements extracted through torture are rendered inadmissible;
  • the offence of torture is deemed an extraditable offence,
    • provided there is a treaty between Pakistan and the other country;
    • and it follows that no person shall be returned or expelled to a country where there are ‘substantial grounds to believe’ he would be in danger of being subject to torture;
  • any person, including the victim or complainant or any witnesses, who allege(s) that he requires protection from a person accused of having committed an offence under this law or from any of his associates, shall file a petition to the Sessions Court in this regard.

With a view to perhaps upending the threadbare legal cover provided to such acts during the wider war on terror, the bill also declares that neither ‘a state of war’ nor ‘political instability’ shall constitute a defence.

And it strikes out the most popular plea available for such acts. Befehl ist behfehl, German for ‘orders are orders’, is the universally degraded theory that an official cannot be held guilty for actions ordered by superior officers. It was most famously (and unsuccessfully) applied during the Nuremberg trials and, in horrifically contemporary fashion, during the Abu Ghraib prisoner abuse scandal in 2004. [21] Pakistan’s torture prevention bill thankfully does away with the defence; a base evasion of criminal responsibility.

Besides the necessity of such laws to combat both the prevalence and acceptability of torture at an official level in Pakistan, interest shown by human rights groups and overseas organizations in passing the bill may also have been facilitated by the U.S.’s violation of the letter and spirit of international laws criminalizing torture.

What is unfortunate is that the signature achievement of the current legislature – the Pakistan Protection Act – is instead redolent of the failed detention and interrogation policies of the Cheney era, and the overtly flawed legal rationale explored below.

 

The Free World’s Descent into the Torture Chamber

In the wake of the terrorist attacks on 11th September, 2001, the George W. Bush administration declared a global ‘war on terror’, marking a sea change in both citizens and policymakers’ approach toward balancing national security against civil liberties, as well as infringing the laws of foreign sovereignties in the process. Among the defining aspects of the war became ‘enhanced interrogation techniques’, measures by which information could be extracted from terror suspects.

The administration achieved its aims via a brutal and bureaucratic torture apparatus implemented by inexperienced intelligence contractors, and a set of legal justifications emanating from the DOJ that require becoming case studies in badly laid law, executive overreach, and breaching welfarist considerations in the name of necessity.

 

Weasel Words: the Torture Lawyers’ Defence

In a series of memoranda in 2002 by John Yoo, a lawyer working in the DOJ as Deputy Assistant Attorney General, the executive was provided legal opinions that international laws and conventions could not apply to stateless militias:

‘The Taliban was not a government and Afghanistan was not – even prior to the beginning of the present conflict – a functioning State during the period in which they engaged in hostilities against the United States and its allies. Afghanistan’s status as a failed state is ground alone to find that members of the Taliban militia are not entitled to enemy POW status under the Geneva Conventions (…) Second, it appears from the public evidence that the Taliban militia may have been so intertwined with al-Qaeda as to be functionally indistinguishable from it.’[22]

With regards to the laws governing detained ‘combatants’, Yoo’s memo continues: ‘customary international law, whatever its source and content, does not bind the President, or restrict the actions of the United States military, because it does not constitute federal law recognized under the Supremacy Clause of the Constitution.’[23]

In August of the same year, a memorandum from DOJ Legal Counsel Jay Bybee – but written by Yoo – provided a more precise rationale via which detainees could be tortured. Now known as the Torture Memo (one of several), it vastly expanded and complicated the definition of torture under Section 2340A (see above), creating a standard for torture that verged on the near-fatal; thus ensuring interrogators evade all charges:

‘Torture as defined in and proscribed by Sections 2340-2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like post-traumatic stress disorder…Because the acts inflicting torture are extreme, there is significant range of acts that though they may constitute cruel, inhuman, or degrading treatment or punishment, fail to rise to the level of torture.’[24]

It also invoked the plea of ‘necessity’ as a means to override any obvious violations, with a near revolutionary idea of executive authority:

‘Further, we conclude that under the circumstances of the current war against al-Qaeda and its allies, application of Section 2340A to interrogations undertaken pursuant to the President’s Commander-in-Chief powers may be unconstitutional. Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.’[25]

Bybee and Yoo’s memoranda went on to form the legal basis of the Bush administration’s ‘enhanced interrogation’ techniques, but perhaps the most outrageous qualification to the DOJ’s memoranda was that the reasoning itself was quasi-legal.

Citing Leocal v. Ashcroft (wherein Chief Justice William H. Rehnquist affirmed that ‘when interpreting a statute, we must give words their “ordinary or natural meaning”),[26] Peter Brooks wrote, ‘It offers a remarkable example of textual interpretation run amok—less “lawyering as usual” than the work of some bizarre literary deconstructionist.’[27]

The memo stated that Congress had accorded the limits of torture in such fashion that its use could be permitted when necessary – Congress had actually been explicit in its prohibition of the same. It also confused ‘severity’ of pain with pain that could only be symptomatic of medical emergencies.

Bybee and Yoo also laid the grounds for what would allow Attorney General Aberto Gonzalez to later justify the use of torture in foreign black sites: U.S. legislation criminalized only torture, not cruel, inhuman or degrading treatment, arguing the latter was only prohibited in U.S. territory.

To take a macro-view of the subject, perhaps the major casualty of the Bush administration’s take on torture was the very purpose of law itself: legitimacy. The DOJ relied on reasoning that permitted the use of torture in foreign jurisdictions, but could not breach those overriding principles itself.

As Berkeley’s Chrisopher Kutz aptly put,

‘The effort by Bush administration lawyers to argue against the constraining force of this legislation, and by policymakers to argue for preserving the CIA’s ability to deploy torture overseas, represents a deliberate unwillingness to pay the costs of legitimacy. Instead, the administration has put forward an even broader theory of necessity: when the country is at war, the executive must be unconstrained by law in order to serve the demands of military necessity and national security.’

‘Taking these points together,’ Kutz concluded, ‘the Administration’s policy can be seen as rejecting two of the deepest legacies of the Enlightenment: the inviolability of the individual and the priority of right to power.’[28]

For an administration that was clearly fixated on the universal good of liberal democracy in exotic Muslim locales, its lawyers used perhaps the most illiberal and illegal means to enforce that good. The Bush administration’s lawyers relied on the idea of ‘stateless’ and faceless militias running amok in faraway lands to strip them of the Geneva Conventions, and then raised the legal standard wherein torture was classified to impossible highs; perpetuating a culture of human behaviour that was – by its very designation – cruel, inhuman, and degrading.

 

The Ticking Time Bomb Scenario, a Fragile Case for

Underpinning the intellectual bankruptcy of either approach was the famous ticking time bomb scenario often trotted out to justify torture: is it not ethically kosher to torture someone with knowledge of where the bomb is, and save millions of lives?

Such hypothetical conundrums were added further heft by one of the world’s leading legal luminaries. Said Justice Antonin Scalia in the wake of the Senate torture report, ‘(…) It’s very facile for people to say, “Oh, torture is terrible.” You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person?’

Side-stepping torture’s blanket condemnation in Filártiga as a ‘dastardly and totally inhuman act’, Scalia, J, reposed, ‘I don’t know which article of the (U.S.) Constitution that would contravene.’[29]

The kind of uncertainty that formed an additional defence in the DOJ’s Torture Memos: ‘The threat of an impending terrorist attack threatens the lives of hundreds if not thousands of American citizens (…)  To be sure, this situation is different from the usual self-defense justification, and, indeed, it overlaps with elements of the necessity defense.’

Undeterred, the DOJ cited Moore from the Israel Law Review[30] in conflating their ticking time bomb hypothetical with the protections afforded by self-defence; because the combatant would culpably cause a situation where someone might get hurt. ‘If hurting him is the only means to prevent the death or injury of others put at risk by his actions, such torture should be permissible, and on the same basis that self-defence is permissible.’[31]

 

The Ticking Time Bomb Scenario, an Absolutist Case against

The ticking time bomb scenario is itself a deranged hypothetical, validated further by American pop culture and conservative legal theory. For Justice Antonin Scalia to lend his gravitas to such a hypothetical signifies the two-pronged attack of such a scenario: it has generated public support for torture, while positing the sort of highly improbable macro-utility that would justify it in the eyes of legal theorists.

By highly improbable, consider:

  • There would have to be trained regiments of legally authorized torturers who only operate in cases of preempting national tragedies akin to nuclear fallout.
  • There is absolute certainty that the individual so tortured would possess such crisis-averting information.
  • As all torture experiments eventually yield, torture as an information-extraction exercise is practically useless.
  • It is unlikely that said torturers have the degree of torture calibrated to the kind of precision that would allow them to acquire the information and foil such an attack.
  • No such situation, at least any whereby information was coerced via torture, has preempted an imminent attack or disaster.

As Connor Friedorsorf put it, ‘Just as the morality of raping six-year-olds under threat of nuclear holocaust has nothing to do with whether we should maintain an absolutist taboo and total legal prohibition against child rape, the wisdom of torture in a situation where it could stop a nuclear device from incinerating New York has nothing to do with whether there should be an absolutist taboo and total legal prohibition against torturing prisoners.’[32]

 

Torture Science

The torture programme was the brainchild of two psychologists with virtually no prior experience of interrogation, and no proof of their tactics’ success either: James Mitchell and Bruce Jenssen. Mitchell and Jenssen co-opted their theories from the same resistance techniques taught to American service personnel in case of capture by Chinese communists during the Korean War.[33]

Additionally extrapolating their findings from experiments conducted on caged dogs, these psychologists were contracted by the as-inexperienced Central Intelligence Agency to, ironically, design a programme that perpetrated those acts rather than resist them. Thus a set of defensive tactics was reverse-engineered into ‘a blueprint for torture’.[34] It was never imagined that the method whereby false confessions were extracted by communist regimes in the 1950s – for propaganda purposes – may not be at all useful for gleaning credible intelligence instead.

The U.S. Supreme Court decision in Hamdan v. Rumsfeld in 2006 led to a temporary suspension of its use of enhanced interrogation, and the policy failed to recover momentum thereafter. Press coverage and the growing squeamishness of foreign republics over indulging in contractual brutality meant the CIA last used its enhanced interrogation techniques on 8th November, 2007.Among findings culled from findings at Bagram, Abu Ghraib, and Guantánamo Bay, torture practices included sleep deprivation, sensory deprivation, hooding, exposure to freezing temperatures, tight restraints for months on end, injections of food into prisoners’ rectums, use of enemas, forcible administration of intravenous drips, beatings, waterboarding, lashing, forced nudity, stress positions that induced severe pain, and the use of diapers that forced prisoners to urinate and defecate on themselves.

 

Evading Justice

After the Obama administration opened investigations into over a hundred cases involving severe abuse in 2009, the last two torture cases under investigation were closed on 30th August, 2012, by the very same DOJ that had legalized them in the first place.[35]  President Obama reiterated his guiding principle pertaining to torture – vastly at odds with his take as a candidate (and former constitutional law professor), that ‘they must look forward, not backward.’[36]

Wrote Harvard’s Feldman, ‘The Department of Justice gave the CIA a free pass to torture without being punished. The legal analysis may have been wrong or morally monstrous, and the CIA appears to have lied to the Department of Justice. But even discounting the political factors that make it unlikely a president would prosecute the CIA, the legal ground for proceeding would be very rocky. Serious crimes were committed. They’re going to go unpunished.’[37]

But as with application of universal jurisdiction in cases of severe human rights abuses, the International Criminal Court could be moved to consider charges against U.S. officials involved in the torture programme. In its preliminary report, the ICC prosecutor’s office stated, ‘Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan (…) could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.’[38]

But the ICC must first determine whether a situation meets the legal criteria established by the Rome Statute to warrant such investigation. Nor is the U.S. a party to the statute (having withdrawn its assent during the Bush administration), and the report too implies it may only commence proceedings via the principle of complementarity, i.e. that the ‘ICC prosecutors would have to demonstrate that the US was unwilling or unable to prosecute the abuses itself.’[39]

Considering the DOJ has thus far shown neither the will nor the ability to prosecute as much, that demonstration may not prove difficult. But were such prosecutions to even be effected, little may come of them (contingent as it is on the unlikely situation U.S. officials wander into foreign jurisdictions where their arrest warrants have been issued). A famous example: criminal indictments in Germany against CIA agents involved in the rendition of Khaled al-Masri have, as yet, borne no result.[40]

And yet legal sanction that is entirely symbolic in nature may be better than none at all.

 

Conclusions

The psychologist Carl Jung once wrote, ‘The healthy man does not torture others – generally it is the tortured who turn into torturers.’ The Bush administration itself made much of the claim that it introduced the rule of law to lands where there was none: the jihadist theocracy of Taliban-run Afghanistan, and the secular, Ba’athist dictatorship of Iraq. But by creating, legalizing, and then implementing a systematic torture programme during both occupations, it degenerated to employing the same culture of vicious human rights abuses it aimed to upend.

Pakistan’s own approach toward torture may see fresh light with the passing of the Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Act, 2014. But it must be noted that mere legislative flourishes will not undo the systemic torture culture prevalent in Pakistan’s police stations and military detention camps. It will take consistent pressure from the executive on implementing such legislation, long-awaited institutional reform within the police, and change in policy by the military vis-à-vis interment in Balochistan, to begin to effect any trajectory of positive change.

And yet, following the Pakistan Protection Act (and in lieu of the Torture Prevention Bill becoming the law of the land), the country’s approach toward torture is destined to worsen – not improve. Ironically, Pakistan was one of the few countries to issue an official condemnation of the Senate Torture report’s findings, as ‘a violation of international laws,’ before prettily adding, ‘human rights laws must be respected.’[41] But condemnations of foreign acts are most resonant when said ideals are introduced at home.

 

Previously published in Human Rights Review Vol. II, January 2015

 

 

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RADIO TELEVISION SUISSE (2014) La Torture pas Anti-Constitutionelle, 12th December

[http://www.rts.ch/la-1ere/programmes/le-journal-du-matin/6357256-le-journal-du-matin-du-12-12-2014.html#6357249]

REID, T.R. & WHITE, J. (2005) England to Plead Guilty in Abu Ghraib Case. The Washington Post. 30th April.

[http://www.washingtonpost.com/wp-dyn/content/article/2005/04/30/AR2005043000006.html]

RODLEY, S. (1996), U.N. Commission on Human Rights Report of the Special Rapporteur on Torture and Cruel, Inhuman or Degrading Treatment or Punishment, University of Minnesota Human Rights Library

[http://www1.umn.edu/humanrts/commission/thematic53/97TORPAK.htm]

SENATE OF PAKISTAN (2014) Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Act, 2014, 11th August

[http://www.senate.gov.pk/uploads/documents/1407838416_517.pdf]

STEPHEN, J. (1883), A History of the Criminal Law of England, MacMillan & Co.

UNITED NATIONS (1984) Convention against Torture and Other Cruel or Degrading Treatment or Punishment, New York, 10th December

[http://www.un.org/documents/ga/res/39/a39r046.htm]

UNITED STATES DEPARTMENT OF JUSTICE (2012) Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees, 30th August

[http://www.justice.gov/opa/pr/statement-attorney-general-eric-holder-closure-investigation-interrogation-certain-detainees]

U.S. CODE Title 18, Part I, Chapter 113C, § 2340

[http://www.law.cornell.edu/uscode/text/18/2340]

U.S. CODE Title 18, Part I, Chapter 113C, § 2340A

[http://www.law.cornell.edu/uscode/text/18/2340A]

YOO, J. (2002)  United States Department of Justice Memorandum for William J. Haynes II, General Counsel, Department of Defense, 9th January

[http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.09.pdf]

[1]STEPHEN, J. (1883), A History of the Criminal Law of England, MacMillan & Co.

[2] GENERAL COUNSEL OF THE U.S. DEPARTMENT OF DEFENCE (2002), Unclassified Action Memo, 27th November, Washington

[http://www.defense.gov/news/Jun2004/d20040622doc5.pdf]

[3] UNITED NATIONS (1984) Convention against Torture and Other Cruel or Degrading Treatment or Punishment, New York, 10th December

[http://www.un.org/documents/ga/res/39/a39r046.htm]

[4] ASSOCIATION FOR PREVENTION OF TORTURE (2014), What is Torture?, Geneva

[http://www.apt.ch/en/what-is-torture/]

[5] DAG HAMMARSKJÖLD LIBRARY (2014) What is the Difference Between Signing, Ratification and Accession of UN Treaties? 10th December

[http://ask.un.org/faq/14594]

[6] BRENNER, L. (2005), Torture, the United States, and the Laws of War. Council on Foreign Relations Backgrounder, 11th November.

[7] U.S. CODE Title 18, Part I, Chapter 113C, § 2340

[http://www.law.cornell.edu/uscode/text/18/2340]

[8] Pakistan People’s Party’s Farhatullah Babar in the Senate, and Pakistan Muslim League (Nawaz)’s Maiza Hameed in the National Assembly.

[9] SENATE OF PAKISTAN (2014) Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Act, 2014, 11th August

[http://www.senate.gov.pk/uploads/documents/1407838416_517.pdf]

[10] UNITED NATIONS (1984) Convention against Torture and Other Cruel or Degrading Treatment or Punishment, New York, 10th December

[http://www.un.org/documents/ga/res/39/a39r046.htm]

[11] AHSAN, K.A. & GILANI, N. (2014), Criminalizing Torture in Pakistan. University College Lahore Human Rights Review Vol. I, Lahore

[12] U.S. CODE Title 18, Part I, Chapter 113C, § 2340A

[http://www.law.cornell.edu/uscode/text/18/2340A]

[13] Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)

[14] BRENNER

[15] THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN (1973)

[16] SENATE OF PAKISTAN (2014) Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Act, 2014, 11th August

[http://www.senate.gov.pk/uploads/documents/1407838416_517.pdf]

[17] PAKISTAN PENAL CODE (1860)

[18] AHSAN & GILANI

[19] THE PRISONS ACT (1894), Section 46 and Section 57

[http://punjablaws.gov.pk/laws/13.html]

[20] RODLEY, S. (1996), U.N. Commission on Human Rights Report of the Special Rapporteur on Torture and Cruel, Inhuman or Degrading Treatment or Punishment, University of Minnesota Human Rights Library

[http://www1.umn.edu/humanrts/commission/thematic53/97TORPAK.htm]

[21] REID, T.R. & WHITE, J. (2005) England to Plead Guilty in Abu Ghraib Case. The Washington Post. 30th April.

[http://www.washingtonpost.com/wp-dyn/content/article/2005/04/30/AR2005043000006.html]

[22] YOO, J. (2002)  United States Department of Justice Memorandum for William J. Haynes II, General Counsel, Department of Defense, 9th January

[http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.09.pdf]

[23] Ibid.

[24] BYBEE, J. (2002) United States Department of Justice Memorandum for Alberto R. Gonzalez, Counsel to the President, 1st August

[http://news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf]

[25] Ibid.

[26] Leocal v. Ashcroft (2004), (03-583) 543 U.S. 1

[27] BROOKS, P. (2005) The Plain Meaning of Torture? Literary Deconstruction and the Bush Administration’s Legal Reasoning

[http://www.slate.com/articles/news_and_politics/jurisprudence/2005/02/the_plain_meaning_of_torture.html]

[28] KUTZ, C. Torture, Necessity, and Existential Politics, Stanford Public Law Working Paper No. 121

[29] RADIO TELEVISION SUISSE (2014) La Torture pas Anti-Constitutionelle, 12th December

[http://www.rts.ch/la-1ere/programmes/le-journal-du-matin/6357256-le-journal-du-matin-du-12-12-2014.html#6357249]

[30] MOORE, M.S. (1989), Torture and the Balance of Evils, 23 Isr. L. Rev. 280

[31] BYBEE, J. (2002)

[32] FRIEDERSDORF, CONOR (2014), The Ticking Time-Bomb Defense of Torture is Evasive and Irrelevant, The Atlantic, 18th December.

[33] MEYER, J. (2008) The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, Doubleday Publishing

[34] Ibid.

[35] UNITED STATES DEPARTMENT OF JUSTICE (2012) Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees, 30th August

[http://www.justice.gov/opa/pr/statement-attorney-general-eric-holder-closure-investigation-interrogation-certain-detainees]

[36] GREENWALD, G. (2012) Obama’s justice department grants final immunity to Bush’s CIA torturers. The Guardian, 31st August.

[37] FELDMAN, N. (2014) Why the CIA Won’t Be Punished for Torture. Bloomberg View, 9th December [http://www.bloombergview.com/articles/2014-12-09/why-the-cia-wont-be-punished-for-torture]

[38] THE OFFICE OF THE PROSECUTOR, INTERNATIONAL CRIMINAL COURT (2014), Report on Preliminary Examination Activities 2014, The Hague

[http://justsecurity.org/wp-content/uploads/2014/12/International-Criminal-Court-OTP-Report-Preliminary-Examination-Activities-2014.pdf]

[39] BORGER, J. (2014) Senate report on CIA torture could lead to prosecutions of Americans abroad. The Guardian, 10th December [http://www.theguardian.com/us-news/2014/dec/10/cia-report-prosecutions-international-law-icc]

[40] PROKOP, A. (2014) Torture is illegal. Americans tortured. Why hasn’t anyone been prosecuted? Vox, 11th December [http://www.vox.com/2014/12/11/7367543/torture-report-prosecutions]

[41] HAIDER, M. (2014) Pakistan deplores CIA torture of detainees: Foreign Office. Dawn. 11th December. [http://www.dawn.com/news/1150192]

Asad Rahim Khan

The writer is a barrister and columnist. He tweets at: @AsadRahim



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