Obligation to Investigate Torture
Australia is a party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT). Article 7 of the ICCPR states that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. Under the ICCPR, a state party must take “legislative, administrative, judicial and other measures to prevent and provide remedy to survivors of torture in any ‘country under its jurisdiction.”[i] The United Nations also clearly states that “[c]complaints about ill-treatment must be investigated effectively by competent authorities.”[ii] Although the torture did not occur on Australian soil, to fully adhere to its international human rights obligations as they were meant for interpretation, Australia should hold an investigation into David’s treatment because the United States has not conducted a competent, independent or thorough investigation into credible allegations of torture. Instead, the former Howard government relied on diplomatic assurances from the Bush administration and an investigation by the US Navy which was far from being independent or impartial considering they were employed by the same Bush administration government.
Further to this, the Australian government willingly left David in Guantanamo Bay many years after reports of abuse by the CIA, the U.S. military and private contractors had surfaced, and publically dismissed any allegations (eg. the Abu Ghraib photos, and former detainees testifying to David’s mistreatment). David was also interviewed by Australian officials when first detained and, in his book, David states that he told them about the ill-treatment he was enduring. In addition, David told Australian consular officials about the conditions of his incarceration- including submitting a list of complaints to the consular official. These were not remedied by the Australian Government; in fact, David says that he was punished for complaining about his treatment.
If the former Howard government did in fact know about David’s torture or cruel, inhuman and degrading treatment and willingly turned a blind eye, this would make them complicit in these acts.
Is there a difference between torture and cruel inhuman and degrading treatment?
The Committee against Torture’s General Comment on Article 2 points out;
“In practice the definitional threshold between cruel, inhuman or degrading treatment or punishment and torture is not clear. The conditions that give rise to cruel, inhuman or degrading treatment or punishment frequently facilitate torture and therefore the measures required to prevent torture must be applied to prevent cruel, inhuman or degrading treatment or punishment. Accordingly, the Committee has considered the prohibition of ill-treatment to be likewise non-derogable under the Convention”[iii] (emphasis added)
Further to this, the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment notes that “All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person.” The principles also interpret cruel, inhuman and degrading treatment as; “to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.”[iv]
So, torture cannot be separated from cruel, inhuman and degrading treatment- they are both unlawful and certainly do not constitute lesser crimes. There is still an obligation for Australia to hold a competent investigation.
Psychological Torture – More damaging than physical torture?
Studies have shown that treatment such as being held in a life-threatening environment, the deprivation of basic needs, sexual torture, psychological manipulation, humiliation, exposure to extreme temperatures, isolation, and forced stress positions cause even more damage than physical torture.[v]
The Torture Abolition and Survivors Support Coalition International (2010) defines psychological torture as;
Any action or technique, or any combination thereof, which might result in severe mental trauma or harm when inflicted upon a human being. This includes but is not limited to the following: Death threat or threats of immediate and severe physical pain, mock executions, rape or sexual abuse, extended disruption of food and sleep, extended solitary confinement, extended sensory deprivation, extended sensory disruption or overload, use of hallucinogenic or other mentally disruptive drugs, threats against family members, secret detention or “disappearances” of a loved one, forced observance, by hearing or watching, of the mental and/or physical torture or murder of another or forcible participation in the mental or physical torture of other.
Severe mental trauma or harm means a level of fear or trauma that a person would not voluntarily accept for himself or herself, or which results in prolonged mental suffering afterwards.
Torture and the Law
Article 17 of the Third Geneva Convention states that ‘No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.’
The 1984 Convention against Torture (CAT) defines torture as;
“Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
In 2006, Australia’s then attorney general, Phillip Ruddock claimed that sleep deprivation was not torture. So what is the legal definition of torture, cruel, inhuman and degrading treatment, and do we have proper protections in Australia?
Because Australia has ratified the CAT, Australia’s obligations are to enshrine this into domestic legislation. However, the specific torture legislation in Australia is limited to section 3 of Crimes (Torture) Act 1988 which defined torture as;
[An] “act of torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
- (a) for such purposes as:
- (i) obtaining from the person or from a third person information or a confession;
- (ii) punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
- (iii) intimidating or coercing the person or a third person; or
- (b) for any reason based on discrimination of any kind; but does not include any such act arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights
However, this definition has been widely criticised by human rights organisations as being extremely narrow[vi]. The Act fails to address what defines cruel, inhuman and degrading treatment and most importantly, does not criminalise cruel, inhuman and degrading treatment.
Cruel, inhuman and degrading treatment has been criminalised in relation to detention by intelligence officials or any detention authorised under Australia’s anti-terror laws. Unfortunately, the prohibition is limited to a small group in narrow circumstances and is far from comprehensive.
Human Rights Legislation that Covers Torture, Cruel, Inhuman and Degrading Treatment in Australia
In 2004, the Australian Capital Territory (ACT) passed a Human Rights Act. It contains the provision that;
- (1) No-one may be—
- (a) tortured; or
- (b) treated or punished in a cruel, inhuman or degrading way.
- (2) No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent.
And also includes that;
- (1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
- (2) An accused person must be segregated from convicted people, except in exceptional circumstances.
- Note: An accused child must also be segregated from accused adults (see s 20 (1))
- (3) An accused person must be treated in a way that is appropriate for a person who has not been convicted.
Victoria also has a Charter of Rights and Responsibilities that includes;
Charter of Human Rights and Responsibilities Act 2006 – SECT 10
Protection from torture and cruel, inhuman or degrading treatment
A person must not be-
- (a) subjected to torture; or
- (b) treated or punished in a cruel, inhuman or degrading way; or
- (c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.
US Accountability for Torture
The Detainee Abuse Accountability Project found that US authorities have failed to investigate allegations, or have investigated them inadequately; and numerous personnel have been protected and spared criminal liability. Four UK detainees who attempted to sue the U.S. government due to the torture and religious abuse they endured had their case thrown out of a U.S. Supreme court. The Obama administration argued that they were not entitled to be treated as ‘persons’ under the Religious Freedoms Restoration Act. The court reinforced a lower court’s decision that the defendants were immune to prosecution because ‘torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.’ And that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any Constitutional rights.’ See The Detainee Abuse Accountability Project, ‘By the Numbers: Findings of the Detainee Abuse Accountability Project’, April, 2006 (vol 18:2(G)); and Centre for Constitutional Rights, ‘Supreme Court Refuses to Hear Suit Seeking Accountability for Guantanamo Torture’, Press release, 14th December 2009.
[i] UN Human Rights Committee, General Comment No 20, 10 March 1992, para. 8.
[ii] UN Human Rights Committee, General Comment No. 7 (article 7), 30 May 1982, para. 2
[iii] The United Nations Committee Against Torture (CAT) (2008, January 24), General Comment No. 2, CAT/C/GC/2.
[iv] Office of the United Nations High Commissioner for Human Rights (OHCHR) (1988), Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Retrieved August 20, 2010, from http://www2.ohchr.org/english/law/bodyprinciples.htm
[v] Reyes, Hernan (2007) “The worst scars are in the mind: Psychological Torture,’ International Review of the Red Cross, vol.89, no.876, September 2007; Basoglu, Metin (2009) ‘Cruel and Inhuman Treatment causes more damage than physical torture’, American Journal of Orthopsychiatry. Available at; http://psycnet.apa.org/index.cfm?fa=browsePA.volumes&jcode=ort
[vi] Human Rights and Equal Opportunity Commission (HEREOC) (2008, April). ‘Comments of the Human Rights and Equal Opportunity Commission (HREOC) on Australia’s compliance with the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment’. Retrieved November 1, 2010, from HEREOC website: http://www.hreoc.gov.au/legal/submissions/2008/080415_torture.html#fnB4