Chapter 1
The Multiple Actors Present at the Origin of the Convention against Torture
Hani Shukrallah seems to suggest that human rights are a product of western civilization or thought. I think that is a dangerous mislabelling. The Universal Declaration of Human Rights, and all the Covenants that came after it, were passed by the U.N. General Assembly. During these historic debates, western countries were a mere minority. The Declaration and Covenants were passed by a majority constituted by third-world countries, rather than by American and European power representatives. Indeed, one of the three main drafters of the Universal Declaration was Charles Malik, of Lebanon. So we are talking about something universal that we have actively participated in creating. It is not alien to the Arab world, but part of our work as human beings, not necessarily born in North America or western Europe.1
—Muhamed Mugraby
USING MOROCCO AS AN EXAMPLE, STATE AND citizens alike, this chapter examines the emergence, development, and implementation of international norms and standards for the protection against torture. I illustrate that these norms and standards owe their existence to a multitude of global actors, and I explore the subtleties of theses and popular beliefs that reduce fundamental rights to mere outside impositions.2
The International Mobilization of Citizens against Torture
Indeed, while certain theses argue that among nongovernmental organizations (NGOs), Amnesty International universalized its international norms and standards for the global protection of fundamental rights3 based on an orientalist vision of Arab citizens,4 evidence shows that on the contrary this organization acted as a voice for the victims and/or families of victims of torture and degrading treatment globally.5 Since 1948, the Universal Declaration of Human Rights has prohibited torture and degrading treatment. Article 5 of the Universal Declaration stipulates, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Despite this prohibition, various bodies of the United Nations tasked with protecting fundamental rights, including the Economic and Social Council and the Human Rights Commission, have been alerted to the existence of such practices in diverse parts of the globe, such as in Apartheid South Africa and in occupied Palestinian Territories.6 However, it was Amnesty International’s campaign for the abolition of torture organized in 1972 that resulted in real global awareness about the extent of these practices globally.7
According to the information collected by this organization, no fewer than 61 countries are involved in torture, including at least 14 African countries, 11 Asian countries, 4 Western European countries, more than 20 countries in the Americas, 8 Middle Eastern countries, 3 Eastern European countries, and Russia.8 Additionally, this practice indirectly implicates countries exporting expert personnel in the domain of torture and modern torture equipment.9 According to Amnesty International, the United States, among others, offers generous financial aid, paramilitary personnel, and torture equipment to dictators in Bolivia, Paraguay, and Uruguay.10 Amnesty International notes that Morocco currently employs torture as an administrative practice.11 The Moroccan state practices torture at police stations and at secret detention centers.12
What is relevant to note here is that the information disseminated by Amnesty International about the practice of torture and degrading treatment in almost all nations of the world comes from the victims and/or the families of victims of these practices.13 For instance, in the following testimony, Rabéa Bennouna explains having received a message from her husband, a political prisoner:
A guard from the Tazmamart prison delivered messages written with an old match on very old yellowed paper of poor quality:
The race against the clock . . .
Death awaits us . . .
Our conditions are unworthy of animals
The scorpions and serpents are the masters of these places . . .
In need of medicine, antibiotics, antiseptics and vitamins . . .
Dates. A copy of the Koran. A magnifying glass.
Some warm woolen cloths . . .
Our life will end in this place of death.
The race against the clock, against death, against forgetting.
Take good care of the emissary. Give him all the money he asks for.14
The prisoner’s wife, assisted by family members, immediately alerted organizations working within the field of fundamental rights, the first of which was Amnesty International. A fellow inmate recalls: “Beginning in the 1980s, Kabir and Khalid, the captain Abdellatif Belkebir’s brothers, principal agents playing major roles in our liberation, immediately alerted Amnesty International and other humanitarian organizations.”15
To ensure the accuracy of the information it receives, Amnesty International proceeds with an investigation of the claims: “As of 1980, Amnesty International knew what to expect, but what was strange, and what frustrated us at the time, was that the organization did not react; it demanded, before responding, a confirmation of all these claims in a letter written by another inmate.”16
Similar plaints reached Amnesty International from all over the world.17 The plaints revealed to the organization that almost all the world’s states practiced torture regularly.18 Facing a grave situation, Amnesty International launched a campaign for the abolition of torture in 1972. The campaign included an awareness conference in Paris and the publication of a report documenting the use of torture practices.19 The organization employed an original approach to convey its message. It acted as a voice, and therefore as an advocate, for the globe’s citizens.20 Amnesty International functioned as a liaison between states, international organizations, and citizens worldwide. It highlighted the necessity for improving international standards for the protection against torture.21 Therefore it was the international mobilization of citizens, channeled by Amnesty International, which resulted in the emergence of international norms and standards for improving protections against torture.
The Interest of States in the Issue of Torture
Without delay, Amnesty International’s campaign for the abolition of torture bore fruit: in autumn 1973, following the initiative of the Swedish delegation, delegations from Austria, Costa Rica, Holland, and Trinidad and Tobago raised the issue of torture and degrading treatment before the United Nations General Assembly (UNGA), during the session marking the Universal Declaration’s twenty-fifth anniversary.22 Additionally, the Egyptian delegation proposed that the resolution require the Secretary-General to inform the UNGA on progress made by the Human Rights Commission and by other bodies of the United Nations working on the issue of torture and degrading treatment.23
Again in 1974, the issue appeared on the UNGA’s agenda: a resolution project advanced by Austria, Bangladesh, Costa Rica, Holland, Ireland, Jordan, Sweden, and the Philippines explained the need to develop diverse instruments to defeat torture and other forms of degrading treatment.24 The UNGA adopted a series of declarations, codes of conducts, and professional ethics principles targeting health personnel and those responsible for enforcing the law, including the police, forces of law and order, and prison guards. These instruments included the 1975 Declaration for the Prevention of Crime and the Treatment of Offenders,25 the 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,26 the 1979 Code of Conduct for Law Enforcement Officials,27 and the 1982 Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.28
But ultimately, it was the UNGA’s resolution 3453 from 1975 that compelled the Human Rights Commission to ensure the effective observance of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a crucial instrument for the Convention against Torture project. Indeed, following this initiative, Austria, Cuba, Denmark, Egypt, Ecuador, Spain, Ghana, Greece, Holland, India, Iran, Jamaica, Kenya, Morocco, Mexico, New Zealand, Portugal, Sweden, and Yugoslavia sponsored a resolution on October 28, 1977, urging the UNGA to initiate the Convention against Torture project.29 Note here that the Moroccan state looked favorably on the Convention against Torture project.30 Later, other states, including Australia, Cameroon, the Island of Cyprus, Colombia, Costa Rica, Hungary, Iraq, Ireland, Italy, Angola, Lesotho, Mali, Mozambique, Nigeria, Norway, Panama, Poland, the Democratic Republic of Germany, and Tanzania, joined those states already interested in this project.31 Interest in the issue of torture from the international community of states compelled the UNGA to adopt resolution 32/64 on December 8, 1977, urging the Human Rights Commission to develop the Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment based on the principles expressed in the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.32 Consequently, the Convention against Torture project owes its existence to an ensemble of states representing varied geographic distributions and diverse world civilizations.
Hans Danelius, Author of the Convention against Torture
Following resolution 32/64, the Swedish government submitted the Convention against Torture project to the Human Rights Commission in 1978.33 The International Association of Penal Law submitted the Convention on the Prevention and Suppression of Torture project to this same commission.34 For the purpose of this study, this text highlights only the major differences between these documents: the International Association of Penal Law project defined torture as an international crime similar to war crimes and crimes against humanity.35 Consequently, the international control system differed from one project to another. The Swedish project proposed the control procedure incorporated in the International Covenant on Civil and Political Rights. In other words, the Swedish project proposed an examination of the periodic reports from the Human Rights Committee, the examination of state and individual communications, a Conciliation Commission, and investigations by the committee.36 The International Association of Penal Law project, based on the idea of torture as an international crime, provided for the right of all states to prosecute ...