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Should torture be dealt with through the traditional criminal justice system

Title: Should torture be dealt with through the traditional criminal justice system (i.e. police, courts, prisons)?

Contents

Introduction. 3

Definition of Torture. 3

Challenges with the current legal framework. 4

Literature Analysis. 4

Recommended Approach. 5

Conclusion. 6

References. 7

 

 

 

Introduction

The following is a research report on the subject of torture. Different existing literature has been reviewed to better understand the subject of torture. This report has also done a deep dive that has been done on the state conducted torture and what are the current legal mechanisms to remediate the same. Based on the current legal options this report has come up with different challenges that can arise due to the torture conducted by the state officials. As a result, this report has then analyzed existing literature based on high-quality journals to better understand different scenarios which can be leveraged to mitigate the different challenges that arise out of the current legal system around torture and its remediation. Care has been given to look at this subject from a global perspective with cases from different countries wherever applicable. This has been done to understand the possibility of involving a global agency in case there are cases of torture.

Definition of Torture

According to the United States of America’s prohibition under domestic law act “ 18 U S C  § 2340 ” which is also known as the torture act. According to this act, the definition of torture has been divided into 2 categories (Ahmad and Lilienthal, 2016). According to the first category, any act which is done against any person of any color with the intention of inflicting pain in the form of mental or physical with a degree of high severity, by another person who has the custody or physical control of the victim in this situation. As per this category, a person who has been remanded in the police custody, a criminal in jail, a terrorist being interrogated for war crimes and for that matter a child living with his parents, can all be subject to torture. The second category states that in case there is the infliction of pain in the form of any physical pain or any other form of suffering that will be categorized as torture. This pain has to be intentional, which means that the torturer has to know that he is inflicting pain to his victim. Severe pain can also be inflicted upon the victim by administering substances inside their body and that also comes under torture. Torture is also anything that has led to death of the person in the custody (Amnesty International, 2020).

Challenges with the current legal framework

Even though according to 1948 UDHR which is the Universal Declaration of Human Rights has banned deploying torture as means in any form, there have been several instances since then where countries/departments/groups have engaged in one or more forms of torture. One such has been the usage of waterboarding, conducting mock executions, depriving the detained individual of basic human needs like- food, water and sometimes confining the individual to the darkroom. CIA from the US, multiple terrorist organizations, Saddam Hussein government, etc. have all been accused of doing torture on their prisoners. (Book Review, 2018)

Even though at the international level due to 1948’s UDHR the mater is adjudged by the United Nations under the 21 Articles of UDHR. The real challenge is in the internal country-specific issues. Police brutality is something that is very common and is also categorized as torture. As part of the current legal options, in case there has been an incident of police brutality, then the victim can put a case against the policeman and the police department. Now the challenge with this situation is that the prosecutors and other departments in the legal system like the District Attorney office all have people who know each other, and they have leaders who are friends and/or have been colleagues. There are several occasions when to ensure that the reputation of the department is not tainted with something like this sort of acquisition against any policeman, there have been instances in which the case has been squashed, judges and the defense lawyers have been bought, etc. Thus, the current model is not foolproof and has challenges that need to be addressed. Other such cases like that of police brutality include torture by government officials or for that matter any individual in a private organization in terms of harassment, etc. (Fischer, 2019)

Literature Analysis

There has been several journal papers, written around the concept of torture and the steps that need to be taken to ensure that torture has to be curbed. While many researchers have conducted research on this subject from across the world, most of these have been interview led of torture victims. There have been very few researches which has actually addressed the topic about the steps that can be taken at the level of a country to curb torture. While most researchers have attributed the responsibility of United Nations in this regard, they have not addressed the challenges at the UN level while addressing torture related issues at the country / state / city / local level. A UN would find difficulty in involving themselves in police brutality cases, corporate torture, etc. Even though, there are laws that are already in place against both the above mentioned examples, still there is not much that the literature analysis has assisted in terms of providing a one stop solution (UDHR, 2020 ; Pérez-Sales, Witcombe and Otero Oyague, 2018 ; Ledwidge, 2016)

What many researchers have proposed is leveraging the Human Rights Commission. Every country has a human rights organization most working as a non-profit agency. Researchers feel that these agencies are a good starting point as they have the ability to bring forward cases that would be difficult for the UN to manage. Even though, at the National level UN should have jurisdiction, however, at the local level the researchers feel that the human rights group should have the power of brining forward the cases of torture and be the spokesperson of the victims who are affected by torture in any shape and form (UDHR, 2020 ; Pérez-Sales, Witcombe and Otero Oyague, 2018 ; Ledwidge, 2016)

Now the challenge with this approach is that a human rights group as stated earlier is run by people and people can be subject to corruption. It may be possible that not all people in that agency would be corrupted but even if one member is working on the payroll of corrupt government officials, then that person ahs the capability to ensure that the voice of the voiceless, that are the victims in this case should be curbed and not heard. In most cases these organizations work on the charity and donations received by different volunteers and that is not a sustainable model to operate. With these organizations leading the charge or getting justice for people against torture done by state officials it is not sure that they will receive the right set of budgets from the national government as well. Therefore, for them to sustain and use the right resources to conduct their operations they would need to have funds to sustain and this can lead to corruption. Also, besides corruption, it is possible that a human rights group is not well defined across all nations. Comparing the human rights group that exists in the UK to one that exists in Kenya, or Pakistan or other nations would not be fair. Thus, this is not a full proof mechanism to ensure torture prevention and getting the legal remediation.

Recommended Approach

There are 2 recommended approach to ensuring that torture is appropriately dealt with at the state and / or the national level with or without the involvement of UN, the International Criminal Court, etc. Setting up of a global organization under the UN, specifically focused on torture and torture related crimes. This organization would act as a global movement to ensure human right is provided and there is justice for all. This organization would be funded from the budget of the UN and thus, this would not be subject to corruption. Thus, even though this would be a subsidiary of the UN it would essentially mean that the UN is getting involved in all matters. The legal proceedings should be subject to courts with respect to the specific country and a dedicate bench of the senior most judges be responsible for the hearings. Thus, this would avoid challenge of prosecutions, judges being bought or influenced (Wang, 2014).

The second recommendation is launch of a centralized application by this organization in which based on the geo tagging of a user’s location, the person can directly report the cases. This will allow for the vetting of cases to be directly done so that the victims cannot be influenced to take their cases away as well (Wang, 2014).

Conclusion

The overall goal of this report was to look at recommendation that would ensure that there is low to no conflict of interest in case of torture. Care has been given that only high profile credible researches have been reviewed. This report has also attempted to analyze the challenges that can occur due to the recommendation as part of the recommendation from the literature research. Different researchers feel that a human rights organization would have better power in such matters. However, this report has addressed faults with this observation and provided recommendations around the same.

References

Ahmad, N. and Lilienthal, G., 2016. Proscribing torture: an analysis in Indian and ethical contexts. Commonwealth Law Bulletin, 42(1), pp.38-58.

Amnesty International, 2020. Who We Are. [online] Amnesty.org. Available at: <https://www.amnesty.org/en/who-we-are/> [Accessed 21 May 2020].

Book Review, 2018. Book Review: Prevention of torture: a digest of cases of the European Committee for the Prevention of Torture and the United Nations Committee against Torture. Netherlands Quarterly of Human Rights, 19(4), pp.518-518.

Fischer, M., 2019. The Use Of State-Sponsored Torture For National Security: A Debate On The Permissibility Of Torture In The Name Of Public Safety. [online] Scholarship.rollins.edu. Available at: <https://scholarship.rollins.edu/cgi/viewcontent.cgi?article=1089&context=honors> [Accessed 21 May 2020].

Ledwidge, F., 2016. The Optional Protocol to the Convention Against Torture (OPCAT): A major step forward in the global prevention of torture. Helsinki Monitor, 17(1), pp.69-82.

Pérez-Sales, P., Witcombe, N. and Otero Oyague, D., 2018. Rehabilitation of torture survivors and prevention of torture: Priorities for research through a modified Delphi Study (with Commentaries). Torture Journal, 27(3).

UDHR, 2020. Universal Declaration Of Human Rights. [online] Un.org. Available at: <https://www.un.org/en/universal-declaration-human-rights/> [Accessed 21 May 2020].

Wang, M., 2014. Agents of a Rogue State? Physicians' Participation in State-Sponsored Torture. AMA Journal of Ethics, 6(9).

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