ol. 9 No. 7 (July 1999) pp. 296-298.
PREVENTING TORTURE: A STUDY OF THE EUROPEAN CONVENTION FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT by Malcolm D. Evans and Rod Morgan. Oxford: Clarendon Press, 1999. 475 pp.
Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.
"[T]he justification for, and certainly the temptation to use, forms of coercion that might be judged to constitute torture lies at best only just below the surface of everyday police and custodial practice." That is the assertion of Evans and Morgan in the preface of their book. To some, such an assertion might seem outrageous. To others, like myself, it is a modest statement of fact, for, as the authors also note at the outset, prisoners, whether ordinary prisoners in criminal justice systems, or political prisoners, are among the most marginalized members of a society. Indeed, it should be stressed that when the justifications for torture are suspected terrorism or "national security," the temptations for its use are even more likely to "justify" the actual practices of coercion.
For an example of perceived necessity as the justification of torture, consider the authors’ review of the work of the Israeli Commission headed by Mr. Justice Moshe Landau. The Landau Commission was created to investigate the treatment of prisoners or suspects by Israeli security agencies. It founded a justification for the "systematic use of physical pressure by the state on the criminal law defense of necessity." While the Commission’s report did not justify extreme physical coercion, it did conclude that interrogation techniques:
should principally take the form of non-violent psychological pressure through a vigorous and extensive interrogation, with the use of stratagems, including acts of deception. However, when these do not attain their purpose, the exertion of a moderate measure of physical pressure cannot be avoided (p. 47).
But we can hope that such concessions by those who otherwise may be committed to the rule of law will sometimes run aground. On May 26, 1999, the Israeli Supreme Court heard testimony challenging the legality of the interrogation procedures that had been authorized by the Landau Commissions. Israel is a party to the two principal conventions that ought to control: the Convention against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (CAT, 1984) and the International Covenant on Civil and Political Rights (ICCPR, 1966). According to a Human Rights Watch report, interrogation techniques practiced by the Israeli General Security Service have led to the death of at least one Palestinian and to permanent injury to many others. Unfortunately, the May 29th hearing was only for the Plaintiffs to present testimony. A decision on the merits may yet be months away (Human Rights Watch, 1999).
The Evans and Morgan book is about the European equivalent of CAT. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT) was adopted by the Committee of Ministers of the Council of Europe in 1987 and opened for signature by member states. As of the publication date of the Evans and Morgan book, thirty-seven European states had ratified ECPT, the most recent being Croatia in November 1997. At that point only Latvia, Lithuania and Russia among members of the Council of Europe had yet to ratify the ECPT.
Evans and Morgan begin with a fascinating history of torture. Their review includes nuggets such as the fact that in ancient Greece and in the early Roman empire citizens were ordinarily exempt from judicially mandated torture, while the testimony of non-citizens, slaves and foreigners was accepted in court only if coerced. However, by the late Roman empire anyone suspected of a serious crime could be tortured, and so could witnesses in serious cases (pp. 2-3). Indeed, it was not until the age of the Enlightenment that torture was viewed as anathema by leading thinkers. Of course, that did not mean that torture was entirely abandoned by governments, but as the authors conclude:
The emergent view of contemporary historians is that the decline and abolition of torture was intimately bound up with the growth of the state, the establishment of a more professional judiciary, the emergence of incarceration and forced labor as punishments, and subtle changes in the law of evidence (p.11).
The problem for us is that torture reemerged with a vengeance in the twentieth century, and the authors’ historical review cites many examples: in terms of ideology, Nazism, Fascism, Communism, Maoism, as well as Anti-Communism, in other terms, racism (especially Apartheid), religion, and ethnic identity have provided some of the twentieth century justifications for torture. Yet, Evans and Morgan present three case studies of torture by liberal democratic states: by France in Algeria (1954-62), by the United Kingdom in Northern Ireland (1963-94) and, as we saw above, by Israel against the Palestinians.
A key difference between torture in ancient times and today is that while torture was once accepted and acknowledged, it is now mostly "secret and denied" (p. 55). Yet most close observers of modern justice systems know (or suspect) that what Evans and Morgan call "near torture" (the sorts of practices accepted and approved by the Landau Commission) often lie just beneath the surface. For example, in the instance of the United Kingdom in Northern Ireland, "near torture" consisted of physical isolation, "wall standing" (leaning for protracted periods with one’s hands against a wall as the only means of support), "hooding" (a black opaque hood being placed over the head), "noise" (the use of a continuous and unpleasant background noise, and, finally, a bare bread and water diet (p. 34, see also Jackson, 1997, Ch. 3).
Because torture or near torture is rarely disclosed or acknowledged, it cannot easily be discovered or, of course, regulated (p. 58). So the usual response has been to attempt to prohibit it. Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights, Article 3 of he European Convention on Human Rights, Article 5(2) of the Inter-American Convention on Human Rights, and Article 5 of the African Charter on Human and People’s Rights all condemn torture and inhuman or degrading treatment. And, as we saw above, the 1984 UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment (104 ratifications as of the publication of this book) provides potential global coverage.
The European Convention for the Prevention of Torture (ECPT) represents Europe’s effort to make the prohibition of torture more than pious platitudes. Evans and Morgan bring impressive expertise and practical experience to the writing of this book. The Secretary to the Committee created by the ECPT, the European Committee for the Prevention of Torture (CPT), invited one of the authors to join the Committee as an observer expert during its first visit of inspection in 1990. He became, as the authors note in the preface, an "insider" to the work of the CPT, and both of the authors have monitored the documentary history of the CPT from its beginning through early 1998, when this manuscript was submitted to the publisher.
The ECPT came into force on February 1, 1989. The ECPT creates no new prohibitions. Instead, it provides for a Committee (the CPT, consisting as of the writing of the book of 29 members) with unusual access to holding facilities and places of detention within the European member states. The work of the CPT chiefly consists of conducting visits and making "findings, recommendations and requests for further information of the responsible governments. Apart from the visits, most of the work of the CPT is conducted behind closed doors. That, of course, makes the access of the authors to the CPT especially useful. The plenary sessions of the CPT are conducted entirely in secret. Between 1990 and 1997 the CPT issued reports on 30 governments and general annual reports through 1996. Despite the written reports, Evans and Morgan tell us that the CPT has low visibility, but they find that those who know of its work are "overwhelmingly positive." Still, few activists within NGOs and few officials have actually read the reports of the CPT, except, as they note, the reports for their own country. The authors found that their visits to Greece and Austria were especially informative because the CPT had found evidence of "grave ill treatment" in both countries. In Greece officials were quite angry about the CPT report, while in Austria officials acknowledged that there had been a problem with the detective branch of the Vienna police, as the CPT found (p. 355 et seq.).
If, as the authors say, the work of the CPT is to "discover evidence of ill treatment," to "investigate allegations of ill-treatment," to "inspect conditions in which people are detained," and to "seek improvements in the legal protection of detainees," then, while they find some serious shortcomings in the methods of the committee, overall they find it to have been a "conspicuous success" (p. 381).
This is an excellent book on an emerging institution that is as yet little known, particularly in the United States. It is especially recommended for those, such as NGO lawyers and activists, who have a keen interest in this important but little studied subject.
REFERENCES
Human Rights Watch, "Israel Torture Trial Background Briefing," May 27, 1999. www.hrwatchnyc@igc.org.
Jackson, Donald W. 1997. THE UNITED KINGDOM CONFRONTS THE EUROPEAN CONVENTION ON HUMAN RIGHTS. Gainesville:
The University Press of Florida.