Justification of Torture Against Terror Suspects

DeclarationofHumanRightsJUSTIFICATION OF TORTURE AGAINST TERROR SUSPECTS SUBMITTED TO: MA’AM SADIA TABASSUM SUBMITTED BY: MAHWISH TABASSUM REG. NO: ————– Submission date: 17 April 2013 INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD Contents ISSUES3 Introduction4 Defining Tortture5 Geneva Conventions On Torture6 Definition of Torture under Article 1 CAT7 Ticking Bomb Scenario (TBS)8 How Does US Law Require That Terrorist Suspect Be Treated11 What Laws Prohibit Torture? 14 Regional And International Law On The Prohibition Of Torture16 Can a Person be Compelled to Provide Torture? 9 Torture of Suspects Held In The US Or Abroad22 Is Torture Acceptable to People Suspectedof Terrorism in Some Cases? 24 In Order to Combat International Terrorism, Using Torture to Extract Information From Suspected Terrorist? Accepatable? 24 Torture Is Always a Response to an Urgent Threat25 The Use of Torture Against Suspected Terrorist to Obtain Information About Terrorism Activities? And Also if They Know About Future Terrorist Attack Against the US? 27 Situations in Which Torture Is Permitted? 28 Do US Lose Valueable Information if Torture is Prohibited? 8 Remedies Against Torture30 Access to a Medical Examination31 Is Indefinite Detention of Terrorist Suspects Really Constitutional? 32 BIBLIOGRAPHY36 ISSUES i. Defining torture ii. Geneva conventions on torture iii. Ticking Bomb Scenario (TBS) iv. How does us law require that terrorist suspect be treated what laws prohibit torture? v. Can a person be compelled to provide torture? vi. Is torture acceptable to people suspected of terrorism in some cases? vii. In order to combat international terrorism, using torture to extract information from suspected terrorist? Accept able? viii.

The use of torture against suspected terrorist to obtain information about terrorism activities? And also if they know about future terrorist attack against the US? ix. Situations in which torture is permitted? x. Do US lose valuable info if torture is prohibited? xi. Remedies against torture. xii. Is indefinite detention of terrorist suspects really constitutional? INTRODUCTION Torture has also been a major concern in the global “war on terror”, where a number of European countries have been implicated, in particular in the form of complicity in renditions that have often resulted in torture.

At present, torture is alive and well, and by no means only at Abu Ghraib prison, where photographs of U. S. soldiers torturing detainees brought the question of torture to center stage in 2004. In that same year, Amnesty International “recorded allegations of torture and ill-treatment in 132 states—two-thirds of the member states of the United Nations,” and in 2005 reported “documented cases” of torture in more than half the nations that sit on the United Nations Commission on Human Rights. Torture is today prohibited under international law and the domestic laws of most states.

The war crimes and crimes against humanity committed during World War II to a sweeping international rejection of most, if not all, aspects of torture, and a number of international treaties have since been adopted to prevent its use. Torture does not have a clear legal meaning, in part because there have been no general and systematic attempts to map the border between “torture” and “not torture” Why not? One reason may be that, in international human rights instruments, torture is generally twinned with “cruel, inhuman or degrading treatment or punishment. And both have generally been subject to an absolute prohibition. As a result, while some court judgments have distinguished torture from cruel, inhuman, or degrading treatment, the legal result would have been the same in either case. Both run afoul of the law. The distinction between the two might have gotten more precise attention if this distinction corresponded to the line between legality and illegality, but such was not the case. DEFINING TORTURE Although most of us intuitively understand what is meant by the word “torture,” it is difficult to find a clear and objective definition.

This is a word which has deep emotional and political connotations. Definition of Torture by the Present US Government The Unites States Code (Code) provides federal criminal jurisdiction over an extraterritorial act or attempted act of torture if (1) the alleged offender is a national of the United States or (2) if the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender. Section 2340A of the Code makes it a criminal offense for any person outside the US to commit or attempt to commit torture.

Section 2340 defines the act of torture 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 that is incidental to lawful sanctions) upon another person within his custody or physical control. “The term “severe physical or mental pain or suffering” and reference to “lawful sanctions” in the Code confirm that the US intended to implement international obligations under Articles 1 and 4 CAT into federal law.

GENEVA CONVENTIONS ON TORTURE Torture is clearly and unequivocally prohibited in prevailing international agreements, such as the UN’s Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Punishment (1975) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or CAT (1984, entry into force 1987).

The Geneva Conventions also contain certain provisions prohibiting torture and cruel treatment (common Article 3) of the Geneva Conventions (common to the four Geneva Conventions of 1949 and to Additional Protocol II) prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” as well as “outrages upon personal dignity, in particular humiliating and degrading treatment,” under any and all circumstances.. Definition of Torture under Article 1 CAT Article 1(1) CAT defines torture as follows: ny 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 In addition to the involvement of a public official, at least by acquiescence, this definition contains three essential criteria: i. Infliction of severe physical or mental pain or suffering; ii. With intention; and iii. For a specific purpose, such as extracting a confession or information. TICKING BOBM SCENARIO (TBS) Imagine that U. S. agents arrest a well-known Al Qaeda terrorist. The terrorist admits he has planted a powerful bomb set to go off in New York

City, but refuses to say where the bomb is. Using standard interrogation methods, the agents cannot get the terrorist to reveal the location of the “ticking bomb. ” Some officials favor using torture to get the terrorist to talk. Others argue that torture violates international and U. S. laws and is not a reliable way of getting information. What should the agents do? The “ticking bomb” metaphor has been employed on numerous occasions to justify the use of torture in extreme circumstances. Specialized agency like the CIA, have a terrorist in their custody.

He is the only source of information about where the bomb is located. The question is whether this suspect should be tortured in order to force him or her to reveal information that could potentially save many lives. Many people believe that in such a situation, agents should do anything they can to find the bomb, including torturing the terrorist. Proponents of the “ticking bomb” scenario argue that “torture may be wrong…but mass murder is worse, so the lesser evil must be tolerated to prevent the greater one” Others strongly disagree.

Some believe that torture is absolutely wrong and the end (saving lives) cannot justify the means (torture). Causing pain for a short time to a bad guy is clearly justifiable if it has a chance of saving hundreds of innocent lives.. Francis Bacon, a seventeenth century English legal scholar, would most likely have justified torturing the ticking bomb terrorist on the basis that torture is a means to obtaining truthful information. The concept of the “ticking bomb” was first conceptualized in a fiction novel written by Jean Larteguy in 1960.

It describes a scenario whereby the torture of a suspect is considered necessary to obtain information to prevent a future catastrophic event from occurringthe use of the ticking bomb scenario in the context of torture was not entirely new. Jeremy Bentham constructed a version of it in the early nineteenth century. Michael Walzer discussed it in 1973. It also appeared in several law review articles written before the September 11 attacks. But after 9/11, the ticking bomb scenario acquired a new salience.

In the wake of September 11, 2001, FBI agents suggested that they might resort to torture to compel terrorist suspects to reveal information necessary to prevent a recurrence. A senior FBI aide stated, “It could get to that spot where we could go to pressure … where we won’t have a choice, and we are probably getting there. ” The US has also handed prisoners of war and terrorism suspects to the military and intelligence forces of countries with less than salubrious human rights records: ‘Since Sept. 11, the CIA has arranged for 230 suspects in 40 countries around the globe to be jailed and questioned.

One notable aspect of putting possible terrorists in the hands of foreign security services is that [those] states … use interrogation methods that include torture and threats to family members. Dershowitz accepts that in the case of a ticking bomb torture is justified on utilitarian grounds: “[I]t is surely better to inflict nonlethal pain on one guilty terrorist than to permit a large number of victims to die. ” His suggested methods for inflicting pain are a sterilized needle under the fingernails, or a dental drill into an anaesthetized tooth.

The cost of hurting one individual through torture – an individual who is guilty of conspiring in a terrorist plot according to the “ticking bomb” scenario and thus unworthy of humane consideration – is considered to be outweighed by the benefit of saving many lives. Many security officials in the American government during the Bush Administration followed this logic; they believed torture as an interrogation method was necessary to protect America from a catastrophic terrorist attack. It was necessary to allow torture to stop a greater catastrophe.

A small amount of pain caused to one person is worth it because it saves a huge amount of pain to a lot of others. Torturing the ticking bomb terrorist can also be justified according to philosopher Jeremy Bentham’s principle of utility. The utilitarian principle seeks to maximize the community’s total good, pleasure, or happiness. On the one hand, if the terrorist suspect is not tortured, the suspect is spared from suffering pain, but thousands of innocent people die. On the other hand, if the terrorist suspect is tortured, he suffers pain, but thousands of innocent lives are saved.

Thus, under Bentham’s theory, it would be permissible to allow one terrorist suspect to suffer the pain from non-lethal torture in order to save thousands of innocent lives from a massive terrorist attack. HOW DOES US LAW REQUIRE THAT TERRORIST SUSPECT BE TREATED Thus, in addition to physical torture there can be psychological torture, such as threatening to execute the suspect, putting a gun to his head and saying you will shoot, threatening to castrate him, telling him that you are going to kill his family members if he does not tell you the information you re seeking, and similar tactics that, while not physically painful, inflict mental pain or suffering, even when there is no intent to carry out such threats. The United States’ interpretation of the U. N. Convention is that such infliction of mental pain or suffering must be prolonged in order to constitute torture. The use of truth serum or other mind-altering substances may well be legal under United States law. In a passage of his book quoted in court, the General wrote, “The best way to make a terrorist talk when he refused to say what he knew was to torture him. ‘I was indifferent. They had to be killed; that’s all there was to it. ”In addition, the General said in court, “Alas, torture does serve a purpose. And today I would do the same thing again if I had a bin Laden in my hands’. . “The General, age 83 at the time of trial, testified that the acts of torture were necessary to obtain information fast and to save lives. On 16 April 2009, the U. S. Department of Justice began releasing a series of memos drafted under the direction of Bush administration lawyer John Yoo outlining U. S. egal justifications for coercive interrogation in Central Intelligence Agency (CIA) prisons. One of the most widely cited of these memos, dated 1 August 2002, addressed to General Counsel John Rizzo of the CIA, and signed by Assistant Attorney General Jay Bybee, describes proposed CIA torture techniques for Zayn al-Abidin Muhammad Husayn (Abu Zubaydah), a prisoner who was shot and apprehended by the CIA in Faisalabad, Pakistan, in March 2002. Before being subjected to indefinite detention as a so-called enemy combatant in the U.

S. prison at Guantanamo Bay, Cuba, Abu Zubaydah was tortured within the CIA’s offshore prison network: he was reportedly incarcerated in Thailand, Poland, Jordan, and Diego Garcia, among other locations. The memo gained international media attention for its description of a variety of proposed CIA torture techniques and the conditions under which the Justice Department’s Office of Legal Counsel understood them to be permissible. It lists ten techniques: 1) attention grasp, (2) walling, (3) hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (l0) the water board. Detainees should be given prompt access to counsel of their choice (not later than 48 hours from the moment of detention – UN Basic Principles on the Role of Lawyers) Perhaps the most notorious interrogation technique used by the United States—now referred to as “water boarding” —has roots in medieval torture chambers.

In one variant of the technique, the person being interrogated is tied to a board and the board is tipped so that the prisoner’s head is submerged in a pool of water. In another variant, water is poured down the throat of the restrained prisoner. This simulated execution produces terror as the struggling suspect is forced to experience the sensation of drowning. The procedure can be repeated many times (although suspects may need to be revived if they lose consciousness) and does not leave physical bruises or scars.

Porter Goss, former director of the CIA, defended water boarding as a “professional interrogation technique” WHAT LAWS PROHIBIT TORTURE? Several international agreements prohibit the use of torture in any circumstances, including the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War,Article 5 of the Universal Declaration of Human Rights,Article 7 of the International Covenant on Civil and Political Rights (“ICCRP”), and the United Nations Convention Against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“the U.

N. Convention”). These conventions generally impose an absolute prohibition on the use of torture or other cruel, inhuman, or degrading treatment or punishment However, it is clear that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. ” Thus, the prohibition is absolute, admitting of no exceptions.

Finally, there are a number of legally non-binding UN guidelines, recommendations and codes of conduct that contain relevant provisions and are applicable to particular groups, such as law enforcement officials, or particular situations, such as places of deprivation of liberty. These include the UN Code of Conduct for Law Enforcement Officials (1979),the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), and the UN Standard Minimum Rules for the Treatment of Prisoners (1957).

There also exist a number of practical codes and guidelines on this subject, including the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (the Robben Island Guidelines);the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol);and the Guidelines to EU policy towards third countries on torture and cruel inhuman or degrading treatment or punishment.

Also worth mentioning in this context is the OSCE Handbook on Preventing Torture (1999),which was the Organization’s first attempt to distil lessons learned up to that point for the benefit of all OSCE field operations. REGIONAL AND INTERNATIONAL LAW ON THE PROHIBITION OF TORTURE The main regional and international treaties relating to torture are: * the European Convention on Human Rights 1950 the International Covenant on Civil and Political Rights 1966 * the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987 * the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and * The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 2002. Armenia, Croatia, Cyprus, France, Germany, Hungary, Poland, Romania, Spain, Turkey, Ukraine and the UK have become parties to all of the above treaties.

Belgium, Greece, and Russia are equally State party to all treaties except the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 2002 (OPCAT). All 15 States considered are party to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. All of these States have ratified the four Geneva Conventions of 1949, and with the exception of Turkey, all are also party to Additional Protocols I and II to the Geneva Conventions.

Most of the States, with the exception of Armenia, Russia, Turkey and Ukraine, are also party to the Rome Statute of the International Criminal Court (ICC). In Greece torture is prohibited under article 7(2) of the constitution and criminalized under article 137 of the Penal Code, which includes a definition of torture that is largely in line with article 1 of UNCAT. In Cyprus, where torture is prohibited under the constitution, as well as under legislation adopted to incorporate UNCAT domestically.

Similarly, in Croatia, though torture is prohibited under a number of articles of the constitution as well as under article 176 of the Croatian Criminal Code, and even though the definition is in accordance with UNCAT, experts highlighted the fact that in practice there are very few prosecutions. In Spain, torture is prohibited as element of international crimes and under article 174 of the Criminal Code, though the definition provided does not include acts committed with the intention of intimidating or coercing the victim or a third person, and is therefore not in line with article 1 of UNCAT.

Experts reported that prosecutions for torture are extremely rare. Armenia is an example of a country where the criminal law definition of torture is deficient. In Turkey, torture is prohibited under article 94 of the Turkish Penal Code (TPC). Office of Legal Counsel of the Justice Department (OLC) issued an opinion that prisoners captured during operations in Afghanistan against the Taliban and al Qaeda fell outside of the protections of the Geneva Conventions. CAN A PERSON BE COMPELLED TO PROVIDE TORTURE?

The inadmissibility of statements obtained through torture in legal proceedings is a key safeguard and deterrent in respect of torture, as recognized in article 15 of UNCAT and ECtHR jurisprudence. Most countries considered prohibit this in their legislation and/or jurisprudence, and in some jurisdictions, special proceedings are in place when defendants allege that evidence submitted by the prosecution was obtained through torture or ill-treatment. In Cyprus, for example, evidence obtained through torture is not admissible.

When an objection is raised as to the voluntariness of the confession, the court orders a “trial within a trial” to determine whether evidence can be used in legal proceedings. The prosecution must prove that the testimony was not taken in conditions that adversely impacted on the will of the accused or by inflicting direct or indirect violence or threat. Legal systems and courts may accept the “fruit of the poisonous tree” doctrine regarding evidence that has been obtained as a result of torture.

One prominent example is the case of Gafgen v Germany, where the suspect, Gafgen, upon being threatened with torture, led the police to the body of the child he had murdered. This evidence was later admitted by the German courts, after having found that it was in the interests of justice, weighing the seriousness of the crime of murder against the breach of Gafgen’s rights. The use of evidence obtained under tortured has also featured prominently in several terrorism cases.

In A v United Kingdom, which concerned the use of evidence in detention proceedings which may have been obtained through the torture of third parties abroad, the House of Lords found that evidence obtained under torture is always inadmissible in British courts although it differed on how the issue should be dealt with by the Special Immigration Appeals Commission (SIAC). In Othman v UK, the ECtHR found for the first time that an individual should not be returned to a country, in this case Jordan, where he faces a trial in violation of article 6 ECHR because of the real risk that evidence obtained by torture would be admitted in his retrial.

In El-Haski v Belgium, El Haski was convicted to seven years of imprisonment in Belgium for several offences committed with regard to an alleged terrorist group based in Afghanistan and Morocco. At his conviction, witness testimony from Morocco was used which, according to El Haski, was procured by torture. The ECtHR decided that an accused only has to prove a “real risk” that evidence has been obtained under torture or inhuman treatment.

A higher standard, such as Belgian courts and the UK, intervening in the case, require with the proof of torture “beyond reasonable doubt”, violates the right to a fair trial enshrined in article 6 of the ECHR. Israeli procedural law contains clear and explicit limitations on the admissibility of evidence. According to Israeli law, confessions extracted by threats of violence or violence itself or through the application of psychological pressure are inadmissible. The Landau Commission stated that for years, confessions were extracted through the use of such inadmissible methods, and that these confessions were accepted by the courts.

After these conclusions were published, it could have been assumed that the judicial system would strictly ensure that confessions extracted through the use of threats or violence would not be accepted. The rejection of such evidence would be an incentive for investigators not to use illegal methods in extracting confessions or evidence. Article 15 of CAT states that evidence extracted by torture cannot be used in proceedings against the victim of torture or anyone implicated by the victim, with the exception of the torturer himself.

The Military Commissions Act 2006, which was signed into law by President Bush in October 2006, enables the US government to try before military tribunals non-US citizens who have engaged in hostilities against the US or its allies or who have “purposefully and materially” supported such hostilities TORTURE OF SUSPECTS HELD IN THE US OR ABROAD In a study of whether countries that have signed human rights treaties have refrained from using torture more than countries that have not, The Apex Court in D. K. Basu v.

State of West Bengal, considered the right of the Police to investigate into a case and interrogate an accused vis-a-vis the precious right of the individuals under Article 21 of the Constitution, and answered the same as follows: “The Supreme Court as the custodian and protector of the fundamental and the basic human rights of the citizens cannot wish away the problem. The right to interrogate the detainees, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty.

The Latin maxim salus populi supreme alex (the safety of the people is the supreme law) and salus republicae supreme alex (safety of the State is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be “right, just and fair”. Using any form of torture for extracting any kind of information would neither be “right now just nor fair” and, therefore, would be impermissible, being offensive to Article 21.

Such a crime-suspect must be interrogated indeed subjected to sustained and scientific interrogation determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc. His constitutional right cannot be abridged in the manner permitted by law though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. The court then surveying the case-law, as preventive measure, to curb custodial violence, required the Police to follow, in all cases of arrest or detention till legal provisions are made in that behalf. Until recently, torture was widespread, routine, and legal and institutionalized in Israel. Although the state always denied that it resorted to torture, interrogation methods known as “moderate physical pressure” were deemed acceptable, legal and necessary in Israel’s fight against Palestinians it deemed security threats.

These methods included violent head-shaking; relentless sleep deprivation; shackling of detainees to poles, desks and slanting kindergarten chairs in excruciating positions; beatings; exposure to extreme temperatures, incessant harsh light and blaring music; and threats to family members. Currently there is evidence that torture is being used by military juntas such as that of Myanmar, in countries including Jordan, Syria, Pakistan, and by US military forces in Guantanamo Bay, Iraq and elsewhere. IS TORTURE ACCEPTABLE TO PEOPLE SUSPECTED OF TERRORISM IN SOME CASES?

Similarly, a senior Pentagon civilian lawyer stated that intense interrogation techniques were necessary with respect to a Saudi Arabian detainee who was believed to be the planned twentieth hijacker in the September 11 terrorist plot. The situation was one of “some urgency” in that he likely “had information that the people at Guantanamo believed was important, not just about perhaps 9/11, but about future events. ” This particular detainee ended up providing information about a planned attack and about financial networks to fund terrorist operations.

IN ORDER TO COMBAT INTERNATIONAL TERRORISM, USING TORTURE TO EXTRACT INFORMATION FROM SUSPECTED TERRORIST? ACCEPT ABLE? Following the September 2001[,] terrorist attacks on the United States, much support for Torture interrogation of terrorists has emerged in the public forum. The appeal was that rare use of torture interrogation of key terrorists could thwart terrorist plans of mass destruction at minimal cost to civil liberties and democratic process. Moreover, a strictly monitored legal program would eliminate current, illegal covert programs.

Torture Is Always a Response to an Urgent Threat Jack Bauer only tortures when compelled to by extreme exigency. Unlike some of the evil forces in 24 (terrorists, the Chinese government), who torture sadistically or gratuitously, Bauer only tortures for the purposes of eliciting life-saving information. For example, in season 2, Bauer interrogates Syed Ali, the terrorist leader involved in an attempt to detonate a nuclear bomb in Los Angeles. Ali refuses to give up any information. Bauer has Ali’s son executed while Ali watches over a video-link, and threatens to execute the other.

Ali finally relents and reveals the location of the bomb and key details of the plot. Similarly, in season 4, Sarah Gavin, a CTU employee, is framed by a mole in the agency, leading CTU to believe that she knows the location of a device that will halt the impending meltdown of several nuclear reactors. Erin O’ Driscoll, the head of CTU demands that Gavin reveal the location of the device, emphasizing that “thousands of people’s lives are at stake. “Faced with Gavin’s unresponsiveness and impending disaster, O’ Driscoll orders that Gavin be tortured even as she expresses some doubt over Gavin’s guilt.

Gavin is repeatedly shocked with a Taser, and injected with a pain-inducing drug In this ongoing public debate about torture, legal scholar Alan Dershowitz’s proposal for “torture warrants” has received the lion’s share of attention. In a nutshell, he proposes that, in moments of emergency such as so-called ticking-bomb cases, judges should be given the authority to order the application of ‘‘non-lethal torture’’ on a suspect believed to possess information that might save lives When used on a large scale, torture is designed to terrorize, intimidate, punish, demoralize, and break the resistance of an enemy.

However, when modern democracies have used torture, they have almost always relied on a much more limited justification: that torture is a uniquely effective and indispensable interrogation device. This was the justification when England used torture in Northern Ireland, when Israel used torture against Palestinians, and when the United States used torture as part of its “war on terror”. The assertion is that only torture will enable us to extract valid, “actionable” information from suspected enemies. The use of torture at Guantanamo Bay and at secret, so-called “black sites” in the Middle East was explicitly based on this assertion.

And, although the prisoner abuses at Abu Ghraib went beyond the official goal of extracting information, those abuses were set in motion and legitimized by an official directive to prepare prisoners for interrogation. THE USE OF TORTURE AGAINST SUSPECTED TERRORIST TO OBTAIN INFORMATION ABOUT TERRORISM ACTIVITIES? AND ALSO IF THEY KNOW ABOUT FUTURE TERRORIST ATTACK AGAINST THE US? In some instances, torture might not involve physical discomfort at all: for instance, reasonable people might agree that to force a Muslim individual to fall to his knees and kiss the cross can be humiliation and torture.

It is widely recognized that there should be no statutes of limitation for torture, as stated by the Committee against Torture. Alan Dershowitz was one of the first few to support the use of torture against the terrorists. Under his model law enforcers would be allowed to use non-lethal forms of torture to force a terror-suspect to give up information that would prevent an imminent and massive terrorist attack, after first obtaining a judicial warrant from a court. He responds like all other pro-torture academicians by citing the “ticking bomb” scenario. SITUATIONS IN WHICH TORTURE IS PERMITTED?

In the world of 24, torture swiftly yields critical intelligence Moreover, as Sam Kamin notes, “The imposition of torture on a suspect invariably and almost instantaneously forces the suspect to speak and to speak truthfully about what she knows. ” DO US LOSE VALUEABLE INFO IF TORTURE IS PROHIBITED? In signing the Convention against Torture, the United States agreed that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. The Court has specified in numerous cases that investigations must be effective in the sense that it is capable of leading to a determination of what happened and of identifying the perpetrators. Furthermore, investigations must be prompt, impartial and effective. While States have various systems in place for investigating torture, including special police or prosecution units and independent complaints bodies, obstacles abound in practice and often result in impunity.

In the case of Magnus Gafgen, who was suspected of kidnapping 11-year-old Jakob von Metzler and arrested in October 2002 by German police. Police surveillance had observed Gafgen pick up a €1 million ransom demanded from the von Metzler family and proceed to go on a spending spree. After the ransom was paid, the boy was not released. Fearing for the boy’s safety Frankfurt’s deputy police chief, Wolfgang Daschner, had Gafgen arrested and when he would not talk threatened to cause Gafgen severe pain. Gafgen told police where he had hidden von Metzler’s body.

In this case torture was threatened, but not used, to extract information that, in other circumstances, could have saved a boy’s life. The ethical question is whether this can ever be justified. Wolfgang Daschner felt that in the circumstances it was justified. German Chancellor Merkel, in an interview on January 9, 2006 in reference to the Metzler case stated “The public debate showed that the overwhelming majority of citizens believed that even in such a case, the end does not justify the means. REMEDIES AGAINST TORTURE

Access to a lawyer at the very outset of detention and before interrogation is one of the strongest safeguards against torture and other ill-treatment. Access to appropriate medical services is also essential for pretrial detainees. In Armenia a criminal suspect has the right to defense only from the moment the protocol of detention (the legal document which officially makes the detainee a suspect) is drawn up, which can be up to three days after arrest, resulting in no access to a lawyer prior to and during initial olice interviews. Similarly, in Russia, experts noticed that it is common for suspects to be brought in for questioning before they are formally charged and therefore not officially in custody, and consequently are not granted their right to access a lawyer. In Belgium, access to a lawyer is also not immediate, but is provided only after the investigating judge has interviewed the suspect, which usually takes place before issuing a warrant of detention on remand.

In practice, this means that in most cases the first contact between the suspect and his lawyer takes place 24 hours after of detention. This is also the case in Poland. A new Belgian law has recently been passed concerning access to a lawyer upon arrest. The Belgian “Salduz Act” gives arrested persons the right to access a lawyer at the initial stage of arrest, and before the first interrogation by police. In Turkey, a suspect can request access to a lawyer at all stages of the investigation and prosecution under article 149 of the Criminal Procedure Code. Access to a Medical Examination

The legal systems of many countries do not provide an explicit right to medical examination in line with international standards such as the Istanbul Protocol. The Armenian situation illustrates some of the challenges. Article 21 of the Armenian law on “Treatment of arrestees and detainees” of 6 February 2002 provides detainees with the right to undergo a medical examination upon admission to the relevant detention facility. If a detainee is thought to be in need of medical attention, whether requested or not, the detainee must receive appropriate clinical attention as soon as reasonably practicable.

The most common form of reparation awarded to victims of torture and ill-treatment in the region is monetary compensation. The kinds of damages that can be compensated vary within the region, with some jurisdictions allowing for pecuniary, non-pecuniary damages, or both. In Belgium, notably, The Financial Support Board for the Victims of Deliberate Acts of Violence (Composition and Operation) Act of 2003 has reportedly broadened the scope of compensation for victims of torture and ill-treatment.

Victims of direct physical or psychological violence reportedly received compensation which covered moral injuries and took into account a range of factors, including permanent or temporary disability, medical expenses and hospitalization. IS INDEFINITE DETENTION OF TERRORIST SUSPECTS REALLY CONSTITUTIONAL? Torture warrants were in frequent use in England during the sixteenth and seventeenth centuries Torture was also used for people who were convicted of capital crimes, such as high treason, in an effort to obtain further information necessary to prevent future attacks on the state.

Langbein shows that of eighty-one torture warrants, issued between 1540 and 1640, many of them were used for discovery in order to protect the government from plots. Of course, torture was undoubtedly abused, as is famously known during the reign of Henry VIII. In 1994, the United States ratified the U. N. Convention, which allows that “Certain rights may be restricted in emergency situations,” and that such emergencies “must be proved to require a particular restriction on a right” before derogation will be permitted.

The UN Committee against Torture has routinely emphasized the importance of limiting pre-trial detention as an article 2 obligation of States party to UNCAT. Most of the relevant countries have legislation that limits pre-trial detention in line with internationally accepted norms. However in many countries there are legal and practical loopholes that make it possible for pre-trial detention to be extended, thereby increasing the risk of torture and ill-treatment A major safeguard during pre-trial detention is the right to be brought promptly before a judge in criminal proceedings.

Equally in detention, the right to habeas corpus, such as in psychiatric hospitals, ensures that a judge determine the legality of detention within 48 hours and take any measures necessary to protect a detainee from torture. In Armenia, both the Constitution and the Criminal Procedure Code State that a person may not be subjected to detention for more than 72 hours unless a relevant warrant is issued by the court. Police are also obligated to draw up a protocol of detention within three hours from when a suspect is presented to the investigating body.

The 72 hours period is unduly long as it exceeds the internationally recognized 48 hours limit. In Germany, the prohibition of torture is guaranteed by the constitution; it forms part of the inviolability of human dignity under Article 1 and the right to bodily integrity protected in article 2(1) of the Basic Law. Furthermore, article 104(1) provides that detained persons may not be abused physically or psychologically. Although torture is not defined by national law, according to commentary on the constitution, torture is understood in accordance with international treaties, particularly the ECHR.

However, the lack of definition is problematic. In the Gafgen case, for example, the deputy chief of the Frankfurt police and the detective officer who had threatened Gafgen with torture were prosecuted and convicted for coercion and sentenced to a suspended fine. The Committee Against Torture has repeatedly, though unsuccessfully to date, recommended that Germany make torture a criminal offence in line with article 1 of UNCAT. In Poland, torture is explicitly prohibited under article 40 of the constitution. While the Criminal Code refers to torture as an element of international crimes, there is no explicit crime of torture.

Acts of torture can therefore only be prosecuted under article 207 of the Criminal Code as “use of violence or threat thereof” in order to coerce witnesses or suspects within the scope of criminal proceedings – a public official (or an accomplice) who perpetrates such an act is subject to penalty of up to ten years of imprisonment, or other crimes, such as rape where applicable. In Hungary, torture is prohibited under article 54 of chapter XII of the constitution. However, the Penal Code does not include per se a criminal offence of torture; it contains several provisions that address offences that may constitute torture.

Section 226 prohibits ill-treatment in official proceedings, section 227 addresses forced interrogation and section228 unlawful detention. The UN Committee against Torture observed in its recommendations on Hungary, “that all elements of the definition of torture as provided by article 1 of the Convention are still not included in the Criminal Code of the State party. ” Under the Universal Periodic Review in 2011, the Hungarian government pledged to amend the Penal Code in order to bring the definition in line with article 1 of UNCAT. Torture is prohibited in the statutory law of most countries. BIBLIOGRAPHY “24” T V series. . d. http://www. imdb. com/title/tt0285331/ (accessed April 12, 2013). AIR 1997 SC. n. d. http://indiankanoon. org/search/? formInput=air%201997%20sc%20610%20 (accessed APRIL 2, 2013). Amnesty International, ‘‘2005 UN Commission On Human Rights: The UN’s Chief Guardian. n. d. Http://Web. Amnesty. Org/Library/Index ENGIOR410082005? Open &Of=ENG-313 (accessed March 27, 2013). An EU Law to Guarantee suspects the right to legal advice-progress so far. Fair Trials. n. d. https://www. google. com. pk/url? sa=t&rct=j&q=&esrc=s&source=web&cd=6&cad=rja&sqi=2&ved=0CFkQFjAF&url=http%3A%2F%2Fwww. airtrials. net%2Fdocuments%2FTimeline_on_Measure_C_so_far_Final1. pdf&ei=GURoUbCjEIrOrQfw3YHoAQ&usg=AFQjCNGNV5jI5KkWZbbMtWtc0szVSyO7bg&sig2= (accessed april 13 , 2013). Belgium Country Report 2011: Flemish Bar Council (Belgium). Flemish Bar Council. n. d. http://www. e-p-k. at/downloads/flemishbar_en_2012. pdf (accessed april 12, 2013). Case of Gafgen v. Germany. ( Application no. 22978/05) the European Court of Human Rights. n. d. http://hudoc. echr. coe. int/sites/eng/pages/search. aspx? i=001-99015 (accessed march 27, 2013). Case OF Gafgen v. Germany. European Courts of Human Rights. . n. d. ttp://hudoc. echr. coe. int/sites/eng/pages/search. aspx? i=001-99015 (accessed april 12, 2013). Case OF Othman (Abu Qatada) v. The United Kingdom. (Application no. 8139/09) European Courts of Human Rights. n. d. http://hudoc. echr. coe. int/sites/eng/pages/search. aspx? i=001-108629 (accessed april 6, 2013). Committee Against Torture, Consideration of Reports submitted by the States Parties Under Article 19 of the Convention Conclusions and recommendations of the Committee against Torture Japan, UN doc. CAT/C/JPN/CO/1, 3 August 2007, Para. 12, . n. d. http://www1. umn. edu/humanrts/cat/observations/japan2007. df. (accessed april 13, 2013). Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment . n. d. http://www. hrweb. org/legal/cat. html (accessed April 13, 2013). Criminal Code of The Republic of Hungary . n. d. http://www. scribd. com/doc/29048832/Criminal-Code-of-the-Republic-of-Hungary (accessed april 12, 2013). Custom Oxbridge Essays & Oxbridge Dissertations by Oxbridge Graduates. . n. d. http://www. oxbridgewriters. com/order/essaywritingorder/help/help. php? script=cookie. php&sid=17&from=Oxbridge+Writer (accessed april 6, 2013).

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