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No exceptions to ban on torture

The absolute ban on torture, a cornerstone of the international human rights edifice, is under attack. The principle we once believed to be unassailable - the inherent right to physical integrity and dignity of the person - is becoming a casualty of the so-called war on terror.

No one disputes that governments have not only the right but also the duty to protect their citizens from attacks. The threat of international terrorism calls for increased coordination by law enforcement authorities within and across borders. And imminent or clear dangers at times permit limitations on certain rights. The right to be free from torture and cruel, inhuman or degrading treatment is not one of these. This right may not be subject to any limitation, anywhere, under any condition.

Many UN member states disregard this prohibition and continue to subject their citizens and others to torture and ill-treatment. Although a broad range of safeguards is available now to prevent torture, many states have either not incorporated them in their legislation or, if they have, do not respect them in practice.

Particularly insidious are moves to water down or question the absolute ban on torture, as well as on cruel, inhuman or degrading treatment. Governments in several countries are claiming that established rules do not apply anymore: that we live in a changed world. They argue that this justifies a lowering of the bar as to what constitutes permissible treatment of detainees. An illegal interrogation technique, however, remains illegal whatever new description a government might wish to give it.

Two phenomena have an acutely corrosive effect on the global ban on torture and cruel, inhuman or degrading treatment. The first is the practice of having recourse to so-called diplomatic assurances to justify the return and “rendering” of suspects to countries where they face a risk of torture; the second is the holding of prisoners in secret detention.

The trend of seeking “diplomatic assurances” allegedly to overcome the risk of torture is very troubling. The international legal ban on torture prohibits transferring persons - no matter what their crime or suspected activity - to a place where they would be at risk of torture and other ill-treatment (the non-refoulement obligation).

Faced with the option of deporting terrorism suspects and others to countries where the risk of torture is well documented, some governments, in particular in Europe and in North America, purport to overcome that risk by seeking diplomatic assurances that torture and cruel, degrading or inhuman treatment will not be inflicted.

There are many reasons to be skeptical about the value of those assurances. If there is no risk of torture in a particular case, they are unnecessary and redundant. If there is a risk, how effective are these assurances likely to be?

But the problem runs deeper. The fact that some governments conclude legally nonbinding agreements with other governments on a matter that is at the core of several legally binding UN instruments threatens to empty international human rights law of its content. Diplomatic assurances create a two-class system among detainees, attempting to provide for a special bilateral protection regime for a selected few and ignoring the systematic torture of other detainees, even though all are entitled to the equal protection of existing UN instruments.

Let me turn to my second concern. An unknown number of “war on terror” detainees are alleged to be held in secret custody in unknown locations. Holding people in secret detention, with the detainee’s fate or whereabouts, or the very fact of their detention, undisclosed, amounts to “disappearance,” which in and of itself has been found to amount to torture or ill-treatment of the disappeared person or of the families and communities deprived of any information about the missing person.

Furthermore, prolonged incommunicado detention or detention in secret places facilitates the perpetration of torture and other cruel, inhuman or degrading treatment. Whatever the value of the information obtained in secret facilities - and there is reason to doubt the reliability of intelligence gained through prolonged incommunicado or secret detention - some standards on the treatment of prisoners cannot be set aside. Recourse to torture and degrading treatment exposes those who commit it to civil and criminal responsibility and, arguably, renders them vulnerable to retaliation.


Louise Arbour is the UN High Commissioner for Human Rights