Torture has been at the heart of debate even before the 9/11 attacks receiving extensive deliberation in the past as well. Eminent scholars have tried to dissect each and every detail attached to the subject including a possibility of exceptions that can be made in the wake of eminent terrorist threat, a situation termed as the ‘ticking time bomb scenario’. Considering the situation that Pakistan faces in terms of fighting the war against terrorism, it is alleged of violating its commitment to prohibit torture which the incumbent must fulfill particularly after the ratification that it accorded to the ‘Convention Against Torture’ in 2010.
Article 1(1) provides that torture would be deemed to have been committed if severe pain, either mental or physical, has been intentionally inflicted for the purposes of adducing confession, intimidation, and coercion or for any reason based on discrimination on the person by or with consent of an official or a person acting in official capacity. However, ‘It does not include pain or suffering arising only from, inherent in or incidentalto lawful sanctions.’Though, the definition uses the term ‘severe’, the intensity has never been described to bring forth a clearer picture of the instances and techniques which would amount to incrimination of the public official. European Court of Human Rights (ECtHR) in the Case of Mamatkulov andAskarov v. Turkey provided a subjective test to determine the intensity of the ill-treatment that would amount to torture. It is pertinent to note that the prohibition against torture is provided for in Article 3 of the European Convention on Human Rights. The European court noted that ‘ill treatment must attain a minimum level of severity’. The minimum, it said, was to be determined on ‘the basis of the nature and context of the treatment or punishment, the manner and method of its execution, its duration and its physical or mental effects.’
It is interesting to note that the inclusion of the term ‘mental’ may result in coherence of various techniques such as constantly playing songs to sleep deprive an individual or not allowing an individual, kept in detention, to meet his family for an extended period. The latter instance was quoted by the Inter-American Court of Human Rights in Cantoral Benavides Case that ‘prolonged isolation and being held incommunicado constitute, in themselves, forms of cruel and inhuman treatment, harmful to the mental and moral integrity of the person and to the right of all detainees of respect for the inherent dignity of the human being’.
The last element relating of the definition requiring the involvement of a public official for the purposes of incrimination of the prohibited conduct has, too, been interpreted to include circumstances of civil war or areas under direct and effective control of militants. However, this does not mean that the condition becomes applicable in the case of Pakistan since it would require the establishment of unwillingness and lack of capacity on part of the state before the writ is deemed to have been lost in the troubled areas of Federally Administered Tribal Areas. In SadiqShekAlmi v. Australia, Committee Against Torture noted:
‘The Committee notes that for a number of years Somalia has been without a central government, that the international community negotiates with the warring factions and that some of the factions operating in Mogadishu have set up quasi-governmental institutions and are negotiating the establishment of a common administration. It follows then that, de facto, those factions exercise certain prerogatives that are comparable to those normally exercised by legitimate governments. Accordingly, the members of those factions can fall, for the purposes of the application of the Convention, within the phrase “public officials or other persons acting in an official capacity” contained in article 1’.
Further, the Convention expressly provides that the prohibition is absolute and no circumstances are sufficient enough to allow derogation from the set rule. This may also be regarded as a codification of the existing customary law. The principle of prohibition of torture is widely considered to have the status of Jus Cogens or that of peremptory norms. Jus Cogens norms are of universal importance from which no derogation is allowed even by way of a treaty and the International Law Commission recognized the same during its preparation for the Vienna Convention on Law of Treaties (VCLT). Article 53 of VCLT expressly states that ‘treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’.ECtHR noted in Al-Adsani v. United Kingdom that the prohibition of torture enjoys the status of a peremptory norm. A greater detail regarding the effect of violating the jus cogens prohibition will follow later. It is sufficient to say, at this stage, that the violation would have legal consequences for any official act or authorization be it executive, legislative or judicial relating to the violation.
Other important features of the Convention require State parties to criminalize the violation under its criminal laws and apprehend the perpetrators with appropriate punishment. Moreover, it provides for extra-territorial jurisdiction whereby any state in whose jurisdiction the perpetrator is present may investigate and prosecute him according to their laws. Extradition under the convention to a state willing to prosecute the offender, given the universal nature of the crime, is an option while prosecution is an obligation.A state cannot deny extradition or hold on to the offender without conducting the relevant inquiry and following the procedures provided for in the law of the land. Belgium brought proceedings against Senegal to compel the latter to either prosecute MrHissèneHabré, former President of the Republic of Chad, or to extradite him to Belgium for the purposes of criminal proceedings. Mr. Habré was alleged to have committed acts of torture. Belgian contended that the purpose of the convention was to protect a common interest a duty ergaomnes owed by all states to prevent torture and prosecute the perpetrators. Court found that Senegal breached its obligation by not conducting an enquiry as soon as it had a reason to suspect that Mr. Hebre was in its territory. For the purposes of Article 7 paragraph 1, court have opined that the state is under an obligation to begin prosecution when the alleged wrongdoer is in its jurisdiction irrespective of whether there exists a request for extradition or not. Extradition under the convention is an option provided to the state whereas prosecution is an obligation.
Lastly, one of the essential features of the Convention restrict the power of the state to return (refouler) an individual to the state of his nationality or extradite him to a state demanding his prosecution where there are substantial grounds for believing that the person, if returned, would be subjected to torture. The level of strictness attached to this restriction was stressed in Ismoilov v Russia by ECtHR in the following words:
‘In his report to the UN General Assembly of 1 September 2004, the special Rapporteur of the UN Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non-refoulement obligations inherent in the absolute and nonderogable prohibition of torture and other forms of ill-treatment. ‘in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to…post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached…’
The principle of non-refoulement is of particular relevance in the case of Pakistan as Islamabad and the provincial government of Khyber Pakhtunkhwa seeks to devise policy guidelines for sending the Afghan refugees back across the western border. As reflected earlier in the case of SadikShekAlmi by the Committee Against Torture, an area under the effective control of an entity, not recognized as government, would be deemed to be operational in the official capacity for the purposes of determination of torture. It is still believed that a large part of Afghanistan is strongly influenced and controlled by the ousted regime of Talibans. In such conditions, asking refugees to return to their homeland may pose significant problems for Pakistan. Similarly, seeking extradition of alleged terrorists from Afghanistan who were involved in Peshawar and other attacks, in the absence of assurances carrying legal consequences, would be a difficult task for the authorities on both sides to accomplish.
At the same time, we must acknowledge that the ratification of Convention is not only important to reflect Pakistan’s intent of moving forward with the rest of the global community and play its role in condemning torture but also has significant impact on domestic sphere. Though, there is no enabling legislation till date that has been put into effect to ensure that public officials do not commit acts of torture against alleged criminals, the very fact that Pakistan has ratified the Convention puts it under an obligation to devise methods which would guarantee its compliance with the Articles of the Convention.
Bibliography can be made available upon request.