US and Human Rights Day, 2005

The absolute ban on torture, a cornerstone of the international human rights edifice, is under attack. The principle 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”.

Many United Nations member States disregard this prohibition and continue to subject their citizens and others to torture and ill-treatment,…. …OHCHR continues to receive numerous reports of state agents resorting to torture in the prosecution of ordinary criminals and, increasingly, in the name of the “war on terror”.

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 a number of countries are claiming that established rules do not apply anymore: that we live in a changed world and that there is a “new normal”. 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.

… the fight against terrorism can only be won if international human rights norms are fully respected. Torture is not simply immoral and illegal: it is ineffective.

… Two phenomena today are having 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 former may make countries complicit with torture carried out by others, while the latter creates the conditions for torture by one’s own.

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.

But the problem runs deeper: even if some post-return monitoring were functioning, the fact that some Governments conclude legally non-binding 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 basically create a two-class system among detainees, attempting to provide for a special bilateral protection and monitoring 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.

Rather than extending this protection of convenience to a few, efforts should be directed at eliminating the risk of torture faced by many. Instead of attempting to monitor an individual case, with limited chances of effectiveness, efforts should be directed at creating a genuine system for monitoring all detainees in all places of detention. The tools to do this already exist, including the Optional Protocol to the UN Convention against Torture, which foresees the creation of mechanisms to access places of detention and interview detainees.

Let me turn to my second concern. Secret detention is not a new phenomenon, but it appears to have gained renewed currency in the so-called war on terror. 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 or secret detention 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 cruel, inhuman or degrading treatment exposes those who commit it to civil and criminal responsibility and, arguably, renders them vulnerable to retaliation.

… support for human rights and the rule of law actually improves human security. Ultimately, respect for the rule of law lessens the likelihood of social upheaval, creating greater stability both for a given society and for its neighbours. Pursuing security objectives at all costs may create a world in which we are neither safe nor free. This will certainly be the case if the only choice is between the terrorists and the torturers.

On the occasion of Human Rights Day, I therefore call on all Governments to reaffirm their commitment to the total prohibition of torture by:

• Condemning torture and cruel, inhuman or degrading treatment and prohibiting it in national law;
• Abiding by the principle of non-refoulement and refraining from returning persons to countries where they may face torture.
• Ensuring access to prisoners and abolishing secret detention
• Prosecuting those responsible for torture and ill-treatment
• Prohibiting the use of statements extracted under torture and cruel, inhuman or degrading treatment, whether the interrogation has taken place at home or abroad
• Ratifying the Convention against Torture and its Optional Protocol, as well as other international treaties banning torture.”

Louise Arbour, U.N. High Commissioner for Human Rights, statement to reporters, U.N. headquarters, New York, December 7, 2005.

“Human Rights Commissioner Says Fight Against Terrorism Can Only Be Won If International Human Rights Norms Are Fully Respected,” Press Release, United Nations Office at Geneva, December 7, 2005.

“UN rights chief: total ban on torture under attack in ‘war on terror’,” UN News Service, 12/07/05.