Philippe Sands: It is the destiny of democracy to renounce torture

From a lecture at the British Institute of Human Rights, London, by the law professor and barrister
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The Independent Online

Torture and other cruel and inhuman treatment have been internationally outlawed since the Second World War.

Torture and other cruel and inhuman treatment have been internationally outlawed since the Second World War.

The 1984 Torture Convention takes the general post-war obligations that outlaw torture and codifies them into more specific rules. It prohibits torture and "other acts of cruel, inhuman or degrading treatment or punishment". It criminalises torture and seeks to end impunity for any torturer by denying him all possible refuge. The House of Lords ruled that Augusto Pinochet's claim to immunity could not withstand the 1984 Convention.

This is one area in which the rules of international law are clear. It does not matter whether a person is a criminal, or a warrior combatant, or a lawful combatant or an unlawful combatant, or an al-Qa'ida militant, or a private US contractor. He may not be tortured. If he is, then the perpetrator of any such acts must be punished under the criminal law. Any person who threatens torture, or who is complicit or participates in torture, is also to be treated as a criminal. Complicity can include a commanding officer, or a political official. It can include a legal adviser who gives the green light to torture. It can include a prime minister or a president.

The rules prohibiting torture and criminalising terrorism allow no exceptions. The rationale is simple: torture is morally wrong and, according to the US Army's Field Manual, a poor technique which leads to unreliable results. In 1999 the Israeli Supreme Court gave a landmark ruling that prohibited the Israeli Security Services from using physical abuse on suspected terrorists during interrogation.

"This is the destiny of democracy," wrote Chief Justice Barak, "as not all means are acceptable to it, and not all practices employed by its enemies are open before it."

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