Wajahat Masood in an interview with Manfred Nowak, United Nations Former Special Rapporteur
November 11, 2011
In an interview with Wajahat Masood, Manfred Nowak, United Nations former special Rapporteur on torture, who recently attended Roundtable Discussions on Combating Torture in Pakistan organised by Democratic Commission for Human Development, talks about the state of torture in the country and the major structural changes needed in the administration of justice programme.
Q: Professor Nowak, since the enforcement of Convention against Torture in 1987, we have travelled almost a quarter of a century. How do you evaluate the progress made by international community against the practice of torture in this period?
A: That is a difficult question. You have to assess it in different regions. The Convention against Torture was a reaction to systematic practices of torture in Latin America, during national security military dictatorships. With Latin America returning to democracy, many of the former victims of torture are now prime ministers and presidents; and many Latin Americans are engaged with The United Nations actively struggling against torture and shaping UN policies. At the same time, there was Soviet Union and other Communist regimes in Eastern Europe and other parts of the world which were systematically practicing various torture methods. Again, with the end of the Cold War and the implosion of Soviet Union, a lot of things changed. In Africa and Asia, there were changes. On the other hand, you have situations that worsened. Overall, the situation probably didn’t improve much. During the last six years, I visited 18 countries, in all regions of the world. I found torture in 17 of theses countries; the only exceptions being Denmark and Greenland. So, I think, torture is practiced in more than 90% of all countries in all regions of the world; big or small, dictatorship or democracy. I would say that in more than half the countries of the world, torture is widespread, or even systematic. And that is a very, very negative and disturbing conclusion. In addition, the conditions of detention worsened worldwide, and places with loaded prisons are calling upon the United Nations to enact, or draft a Universal Convention of the Rights of Detainees. Last point, of course, torture is absolutely prohibited and usually denied by governments, which is why it is so difficult to prove or investigate torture.
The Bush administration was the first democratic government that openly put the absolute prohibition of torture in question with their so-called War against Terrorism. President Bush and his administration have paid the world a very, very negative service by undermining the absolute prohibition of torture. I spoke to very high level officials in other countries and they say that if America is torturing openly, why shouldn’t we? The very first question that the Speaker of Parliament in Jordan asked me was that why was I visiting Jordan, if at the same time, America had an official policy of torture? When President Obama changed his policy, torture as it had been under the Bush administration with the secretive places of detention and illegal flights, to my knowledge, has stopped. At the same time, Obama doesn’t want to take any action against his predecessors, not even investigating fully the torture policies and all the other human rights violations under the Bush administration. It would be very important to investigate this, by an independent commission, to show the world that this was a policy that was grossly violating international human rights values and law standards, and it has been abolished, so it should not be used anymore, as an excuse for other governments to continue their practices of torture.
Q: We authorise the state to have the sole monopoly over use of force so that citizens can be protected against violence and injustice. When a state indulges in torture, is it a mere dereliction of duty or the concerned state also cedes its status as a social contract?
A: In the ‘social contract’ philosophy of people like Locke and Rousseau the idea was that people are living in a constant fight of what Thomas Hobbs refers to as ‘everybody against everybody’, and the justification behind the formation of a state is to create law and order and security for the people. Locke went even beyond that; he said that the main aim, which you’ll find it in the Declaration of Independence, of a constitutional government is to protect the natural human rights of its citizens. The concept of sovereignty was developed in a very state-centred manner. It says that you are sovereign as long as you can effectively control your own territory and your people. That’s the definition of a sovereign state. And if you have sovereignty towards your people, then you also enjoy external sovereignty which includes principle of non-interference by other states, non-violence etc. Recently, the notion of sovereignty is changing, and that is very important, the most pronounced expression of this new philosophy is the responsibility to protect which the General Assembly of the United Nations, on the proposal of Kofi Annan, clearly defined in 2005. All governments in the world agreed that sovereignty means not just that you govern and you exercise effective control, but it means that you have a responsibility to protect your own people against the most serious crimes, such as genocide, crimes against humanity, war crimes etc. As long as you fulfil this and are a good government, you also enjoy external sovereignty and other should not interfere. However, if you are not able or not willing to protect your own citizens, then gradually the responsibility shifts to the international community that they should assist you if you are not able to protect your own people, and if you are not willing then the international community might even intervene, as we have seen recently in Libya, where the responsibility to protect was clearly applied by the Security Council after the General Assembly excluded Libya from the Human Rights Council. Also, the Arab League, the Organisation of Islamic Conference, the African Union and other organisations called upon the Security Council to take necessary action under Article 41 and 42 of the UN Charter to protect the citizens of Libya against gross human rights violations by the Gaddafi regime. I think that should be a lesson that the very notion of sovereignty has changed or is at least changing towards a more peaceful way of exercising power in order to protect your own people, to ensure that they enjoy basic human rights.
Q: You have been to a diverse range of countries in your work as United Nations Special Rapporteur on Torture (2004-1010). Do you believe it is easier to address the issue of torture in a democratic dispensation than under a dictatorship?
A: Yes, of course. Democratic governments usually also have, at least, a policy against torture, which doesn’t mean that torture doesn’t occur in democratic states. The Bush administration was an exception where the democratic government of the United States was condoning or advocating, or openly justifying torture. This was really a very bad example. You have seen also, that most European and other democratic states around the world were not following them. So, of course, it is easier in democratic states to combat torture. I give you an example of Uruguay, where you have a highly democratic government, who are very committed to abolish torture and improving prison conditions. When they invited me, I was really encouraged to be as critical as possible. I didn’t find so much torture but I found appalling prison conditions, and I requested the government to close down some of the prisons, or the wings of the prisons which I found totally inhuman. The President of Uruguay immediately afterwards did that, he ordered the closure of those prisons. The same was in Georgia, which was my first mission, soon after the Rose Revolution and President Saakashvili was sitting together with me and we went through the most important recommendations, most of which were then implemented within a year. It doesn’t mean that the situation is ideal now, but it’s a long process. Coming from a Post-Soviet country where you have a culture of violence and punishment, it takes very long. But he changed many of the police officers, and much has improved because in principle, of course, Georgia is a democratic country. That does make it much easier than a dictatorship, although you might have dictatorships that are recognising that things need to be done. Nepal, I visited in 2005, when it was a dictatorship. All the democratic parties had been dissolved, parliament had been dissolved, you had armed conflict with the Maoists at that time, and the King was an authoritarian ruler. Nevertheless, the government invited me, and I could do all my fact-finding, and my recommendations were esteemed to be useful in the transition phase, when the King was deposed and it was turning from a monarchy to a republic. I was told afterwards by the Minister of Foreign Affairs, ‘your recommendations were useful in our transition to an inclusive government where the Maoists were also a part, now we have a different situation in Nepal. So, that would be an example that also in a dictatorship, my mission and recommendations might have a positive impact. To give you another example, Equatorial Guinea is a classical dictatorship in Africa, where I found systematic practices of torture. At the end, I was sitting in my debriefing with five Ministers; Foreign Affairs, Internal Affairs, National Security, Defence and Justice, and I told them that they really had to change something with the governmental practice because this was one of the worst countries I had ever seen and I was very frank with them. They all said that they didn’t believe me and all what I said was wrong. Then, you don’t have any kind of impact and you can only change something if there is external pressure. So, for instance, I talked to the Obama administration, because under the Bush administration, President Obiang of Equatorial Guinea was a close ally because they had a lot of oil et cetera. The Obama administration in the State Department report used my report very prominently to describe and criticise the situation in Equatorial Guinea. So that is another way, then, to have a certain impact. But directly, there is no impact with a dictator who just says, ‘I don’t believe you.’
Q: Torture, as defined by CAT, is explicitly an act, either authorised, condoned or committed on behalf of the state. Do you see an inter-linkage between the societal attitudes towards violence and the incidence of torture in a state?
A: Definitely. If torture is systematically practiced by the police, by the military or by the intelligence, it is similar to the death penalty, in that it contributes towards the brutalisation of society and vice versa, of course. If society is very violent, I give you examples from my fact-finding missions, Nigeria for example, has very, very high levels of violent crime like robbery or Jamaica as another example, and Papua New Guinea where you have a lot of violence and organised crime in Jamaica with the trafficking of arms and drugs. They are very violent, and the response of the police is as violent, they have so many targeted killings and extrajudicial killings where instead of arresting them, you just kill people. It is the same in Nigeria, although it is a democratic government. When I was there, I had a very long and fruitful meeting with President Obasanjo, who was at that time the President of Nigeria and a respected African leader, he again told me to give him my three most important recommendations and said that he would try to implement them. To his credit, he did. I told him he should release 20 to 25 thousand people and he said, ‘Why?’ and I said that they had already spent more time in pre-trial detention then the maximum penalty would have been for their crimes, because they are poor and forgotten. This information had also been confirmed by the government. Some of those people were over 60 years old. It was the government who really wanted to change something, because they introduced other policies, but if you have such high levels of violence and ‘culture’ of violence, then it becomes hard for the police to break through this circle of violence. However, you can’t just wait for crime to get less violent, it has to be the police who will set a good example and tell the people that ‘We can also combat organised crime by less violent means, particularly without torture’. Then you give positive example. It’s the same with death penalty, there are always people who argue that death penalty has a deterrent effect, no, it’s the opposite, and it has a brutalising effect. Look at the countries that have death penalty, look at the USA; it is one of the most violent countries in the world. They have a lot of violent crime, and we even have proof that states which have re-introduced death penalty, thinking that it will have a deterrent affect. They have actually faced a rise in the levels of violent crime. The people say that if the state can kill or torture, why shouldn’t we? By doing this, you are lowering basic ethical standards that human life and human dignity is inviolable.
Q: Pakistan ratified CAT towards the end of your tenure as United Nations Special Rapporteur on Torture (June 2010). Do you have any specific observations towards state response in Pakistan to the issue of torture?
A: I haven’t been in Pakistan on a fact-finding mission, I was invited by the civil society, but my pre-predecessor Sir Nigel Rodley was here in 1996 and he found, back then already, widespread systematic torture and all the different talks I had and reports I read about the present situation show that not much has changed in the meantime. Most people would agree, and that is a single very positive sign, that not only civil society organisations but the Minister of Punjab and the Director General of the Ministry of Human Rights agree that torture is rampant in the country and action needs to be taken. Now, the fact that the new government has ratified CAT and both UN Covenants for Human Rights is a very encouraging sign. Originally, they had certain reservations which were strongly objected because of being against the objective purpose of the treaty and now the government has committed itself to fully implementing all the various positive obligations of the CAT. And I think this Round Table that we’ve had these past three days in Lahore is a very good example of showing that if you bring all the different stakeholders from the government, police, media, lawyers and civil society together, then there is an understanding that much more needs to be done than just minor changes and little trainings. You need major structural changes in the administration of justice programme. I think, in this round table, quite a number of useful recommendations have been developed. Recommendations for civil society; it needs to really cooperate much more closely in taking torture as one of the main issues. Hina Jilani said in her opening speech that torture is the public enemy number one of the civil society in Pakistan. It is a very serious problem and we should tackle it together. Now, there is this window of opportunity because the government has to report to the Human Rights committee, to the Committee against torture what actions they have taken. These are structural changes, necessary legislative reforms in the Criminal Code, the Criminal Procedure Code, the Civil code, whatsoever to ensure that victims of torture and their lawyers are able to complain about torture and their complaints are taken seriously and investigated effectively. I think that one of the most important obligations under the Convention is to use criminal law; torture is not just a human rights violation like many others, it is similar to genocide, slavery. It is one of the most serious human rights violations, which under international law must be made crimes similar to other major violent crimes. This also means that people found having tortured should also be punished with appropriate sanctions, and that means long-term imprisonment. In many countries, including Pakistan, it’s seen more as a misdemeanour that if, at all, there should be some minor disciplinary punishment. No, it should be a heavy criminal penalty.
Source: The Daily Times, Lahore