NEWSLETTER Volume 1, Issue 4
Preventing Torture Framing the Issue
November 2007
within the fight against terrorism Inside this issue:
Counter-terrorism or justification of torture?
Counter-terrorism or justification of torture?
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Commentary on Pakistan
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Changes in policing habits in Commonwealth states By Arnaud Chaltin, Commonwealth Human Rights Initiative
The swift and sometimes emotional reaction to terrorism throughout the Commonwealth has facilitated and in some ways attempted to legitimise recourse to torture. While torture officially remains prohibited, the combined effect of various changes in law enforcement has created a context favourable for the use of torture. Police powers have been enhanced, often with a view to assist interrogation. At the same time, law enforcement units are permitted a more extensive use of force but face less accountability. Given these conditions, many countries are only a small step from challenging and revising the absolute prohibition on torture, leading to a tacit approval of its use. To counter terrorism, many Commonwealth states have enhanced police powers to enter and search, to stop and search, or to arrest and detain. These measures are characterised by the lower threshold of suspicion required to act on them, which raises concerns in particular when viewed along with racial profiling policies. These powers,
generally considered as retribution measures, are here enacted for the purpose of investigation. For example, Australian law provides detention for the purpose of interrogation if the individual is suspected of having relevant information, regardless of the suspected involvement of the detainee with any criminal action. Under terrorism legislation, suspects are being detained preventively for prolonged periods, sometimes indefinitely, often without being charged. Laws in Tanzania, Fiji and Bangladesh provide for unlimited detention, while Singapore, Brunei and Malaysia “limit” preventive detention to up to 700 days. This long lasting alleged preventive measure creates ideal conditions for extreme interrogation techniques, including torture. Yet, states have been very keen on adopting and keeping such procedures. In the UK, for example, provisions for unlimited detention of foreigners were said to be contrary to human rights principles by the House of Lords. However, the government, while repealing
the measures, introduced provisions for control orders that have in practice been used to replace this illegal detention. The provisions were challenged later and said to amount to arbitrary detention by the Court of Appeal. The high security character of detention of suspected terrorists also impacts on other guarantees. Access to a legal council is often restricted, such as under Australian law, where detained suspects can be prevented from contacting a lawyer of their choice, questioned without a lawyer present, and the lawyer can be restricted from intervening at any time. The right to habeas corpus also fell victim of the secrecy surrounding terrorism matters; the security of the state often prevents information about the grounds of detention from being disclosed, and therefore challenged. Under criticism, countries have tried to reconcile the interests of security and detainees’ rights, such as the United Kingdom with its special advocate system where the lawyer can access the information withheld but
Prosecuting torture: the case against Rumsfeld Recommended Reading
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sees his subsequent contacts with his client drastically restricted, a solution still in breach of the right to a fair trial. Pakistan’s anti-terrorism judiciary system provides a good example of legislation likely to lead to extreme forms of torture (due to the urgency to obtain confessions). Terrorism offences will be tried by special tribunals within very tight time frames (7 days for investigation and 7 days for prosecution). This leaves the law enforcement authorities with little time to conduct a thorough investigation. As confessions can form the basis of conviction, the pressure to secure evidence for the conviction might push the investigators to obtain quick confessions, and therefore to resort to unlawful means. Terrorism also has provided an excuse for a greater use of force against suspected terrorists, perceived – despite a widely encompassing definition