5. TORTURE IN INTERNMENT CAMPS

5 TORTURE IN

INTERNMENT CAMPS

“It was a metal chain with 11 links. The two ends were on my feet with bolts. [It weighed about] 3kg. We could barely step 20cm or more. I could barely walk. It was on 24/7.”

Baurzhan, whose feet were shackled together for the first year he was in a camp.

TORTURE AND OTHER ILL-TREATMENT UNDER INTERNATIONAL LAW

States have a legal obligation to treat people in detention humanely and with dignity.465 In addition, under international law, torture and other cruel, inhuman, or degrading treatment or punishment are absolutely prohibited and cannot be justified under any circumstances whatsoever. The prohibition, enshrined in Article 5 of the Universal Declaration of Human Rights and Article 7 of the ICCPR, among others, has become a rule of customary international law, which is binding on states even if they have not ratified the relevant human rights treaties. It is also a peremptory norm, a jus cogens rule, with no reservations or derogations permitted.466 It is not enough to simply prohibit and criminalize torture and, where appropriate, other acts of ill-treatment under national law; states must take a range of measures to protect people from, and prevent, these forms of abuse.467 In certain circumstances, the crime of torture amounts to a crime against humanity (see Chapter 7). The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which binds China legally as a state party, is the primary UN treaty focused solely on prohibiting, preventing, and combating torture and other ill-treatment.468 Article 1 of the CAT defines torture as:

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

465 See Article 10(1) of the ICCPR; UN General Assembly, Basic Principles for the Treatment of Prisoners : resolution / adopted by the General Assembly, 28 March 1991, A/RES/45/111, available at: www.refworld.org/docid/48abd5740.html 466 Amnesty International, Combating torture and other ill-treatment: a manual for action (Index: POL 30/4036/2016), pp. 54-61, www.amnesty.org/download/Documents/POL3040362016ENGLISH.PDF 467 Amnesty International, Combating torture and other ill-treatment: a manual for action (Index: POL 30/4036/2016), Chapter 3, www.amnesty.org/download/Documents/POL3040362016ENGLISH.PDF 468 Unlike torture, “cruel, inhuman or degrading treatment or punishment” has not been defined in international treaties. This phrase originated in the Universal Declaration of Human Rights and was incorporated unchanged into the CAT. In approaching the question of what distinguishes such ill-treatment from torture, Amnesty International is guided by the principle that “[t]he term ‘cruel, inhuman or degrading treatment or punishment’ should be interpreted so as to extend the widest possible protection against abuses”. Amnesty International considers, in line with much of the jurisprudence of international and regional human rights monitoring bodies, that cruel, inhuman, or degrading treatment or punishment may generally be described negatively in relation to torture; that is, as ill-treatment that “do[es] not amount to torture” because it lacks one or more of the key elements of the torture definition described above. An act or instance of ill-treatment would therefore constitute cruel, inhuman, or degrading treatment or punishment rather than torture if 1) it lacks the required intention, 2) it lacks the required purpose (or discrimination), or 3) the pain or suffering it causes is not considered “severe”; see Amnesty International, Combating torture and other ill-treatment: a manual for action (Index: POL 30/4036/2016), pp. 74 – 75.

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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.469

Psychological or mental harm can constitute torture just as much as the infliction of physical pain. Courts have recognized that there is no necessary physical element to torture.470 Psychological torture can include: ƒ isolation ƒ threats ƒ humiliation ƒ intimidation ƒ sleep or sensory deprivation ƒ deprivation of communication ƒ constant exposure to light ƒ a restrictive visiting schedule ƒ witnessing others being tortured

Attempts to destroy a detainee’s sense of self by removing control over their environment (that is, creating “learned helplessness”) is also torture.

The treatment of detainees is strictly regulated under international law.471 The prohibition of torture and other ill-treatment is recognized to include the prohibition of corporal punishment under international human rights law.472 Force should be used in detention settings only when strictly necessary and proportionate to the legitimate objective to be achieved.473

Prohibited interrogation techniques include stress positions or restraining the victim in a highly uncomfortable position.474 Blindfolding and hooding should also be prohibited, as should prolonged sleep deprivation, threats (including threats of torture and death threats), using cold air to chill the detainee, electrocution, and beating.475 Other forms of coercion include interrogation techniques designed to offend personal, cultural, or religious sensitivities.476 Prolonged incommunicado detention and secret detention violate the prohibition against torture and other ill-treatment and are therefore forms of prohibited coercion.477 Other techniques that may violate the right of detainees to be free from ill-treatment include withholding clothing or hygiene products, permanently keeping lights on in the cell, and sensory deprivation.478 Intentionally depriving someone of food, water, or medical attention can also amount to torture.479

Extracting “confessions” through torture or other ill-treatment is a serious human rights issue that must be addressed by bringing domestic legal restrictions on prevention and prohibition of torture into alignment with international law and standards, in particular the Convention against Torture. Statements obtained through torture or other coercive means may not be invoked as evidence in any proceedings, except against the person accused of torture as evidence that the statement was made.

469 UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, available at: www.refworld.org/docid/3ae6b3a94.html 470 See Hernan Reyes, International Review of the Red Cross, “The worst scars are in the mind: psychological torture,” September 2007, www.icrc.org/en/doc/assets/files/other/irrc-867-reyes.pdf 471 In addition to the broad provisions contained in general human rights treaties, the UN and other intergovernmental organizations have developed comprehensive standards for conditions of detention over the years, the Nelson Mandela Rules and the Bangkok Rules. 472 Amnesty International, Combating torture and other ill-treatment: a manual for action (Index: POL 30/4036/2016), pp. 84 – 88, www.amnesty.org/download/Documents/POL3040362016ENGLISH.PDF 473 Amnesty International, Combating torture and other ill-treatment: a manual for action (Index: POL 30/4036/2016), Chapter 4.5, www.amnesty.org/download/Documents/POL3040362016ENGLISH.PDF 474 UN Committee Against Torture (CAT), UN Committee against Torture: Conclusions and Recommendations, United States of America, para. 24, 25 July 2006, CAT/C/USA/CO/2, available at: www.refworld.org/docid/453776c60.html 475 See UN Special Rapporteur on torture, UN Doc. A/56/156 (2001) §39(f); CPT Standards, 12th General Report, CPT/Inf (2002) 15 §38 476 UN Commission on Human Rights, Situation of Detainees at Guantánamo Bay, para. 60, 27 February 2006, E/CN.4/2006/120, available at: www.refworld.org/docid/45377b0b0.html 477 UN Human Rights Council, Joint study on secret detention of the Special Rapporteur on torture & other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the promotion and protection of human rights & fundamental freedoms while countering terrorism, the Working Group on Arbitrary Detention & the Working Group on Enforced or Involuntary Disappearances , 19 February 2010, A/ HRC/13/42, para. 27-28, available at: www.refworld.org/docid/4bbef04d2.html 478 Asencios Lindo et al v Peru, Case 11.182, 1998, hrlibrary.umn.edu/cases/1998/peru53-98.html 479 N. Rodley and M. Pollard, ‘Criminalisation of torture: state obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, European Human Rights Law Review (2006) p.120.

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