Human rights monitor
Practice of state torture in Bangladesh
Failure of state compliance with international human rights obligations
Farah Ashraf
In the human rights era, the torture of individuals by states is a continuous but brutal practice. The right not to be subject to torture and cruel, inhuman or degrading treatment is a core human right. As a consequence, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment constitutes one of the few human rights which are absolute under international law and, therefore, permit no exception. It cannot be suspended under any circumstance, including armed conflict, whether international or internal, or in situations of public emergency, or for other reasons relating to national security. However in many cases, it has been observed that governments are fully responsible for any practice of torture and ill-treatment committed by their legal agents.
Bangladesh is party to the major human rights treaties dealing with torture, notably the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). The UN convention against torture is the key legally binding convention at the universal level concerned exclusively with the abolition of torture. The main purpose of the convention is to lay down obligations on state parties to establish and implement jurisdiction over the crime of torture. The convention furthermore enforce significant obligations on states to take measures to prevent torture and to facilitate compensation to torture victims and survivors. This convention bans torture under all circumstances and establishes the UN Committee against Torture. Specifically, it defines torture, requires states to take effective legal and other measures to prevent torture, declares that no state of emergency, other external threats, nor orders from a superior officer or authority may be invoked to justify torture. The CAT requires states to make torture illegal and provide appropriate punishment for those who commit torture. It requires states to assert jurisdiction when torture is committed within their jurisdiction, either investigate and prosecute themselves, or upon proper request extradite suspects to face trial before another competent court. It also requires states to cooperate with any civil proceedings against accused torturers.
Each state is obliged to provide training to law enforcement and military on torture prevention, keep its interrogation methods under review, and promptly investigate any allegations that its officials have committed torture in the course of their official duties. It must ensure that individuals who allege that someone has committed torture against them are permitted to make and official complaint and have it investigated, and, if the complaint is proven, receive compensation, including full medical treatment and payments to survivors if the victim dies as a result of torture. It forbids states to admit into evidence during a trial any confession or statement made during or as a result of torture. It also forbids activities which do not rise to the level of torture, but which constitute cruel or degrading treatment.
Article 12 of the Convention against Torture provides that each State Party "shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction." Moreover, according to Article 13 of the Convention, "Each State Party shall ensure that any individual who alleges that he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given." A similar obligation arises from Article 7 of the International Covenant on Civil and Political Rights as held by the UN Human Rights Committee.
The Committee against Torture has interpreted the word "prompt" on a case- by-case basis, apparently giving the word its literal meaning. "Impartial" means that an investigation has to be carried out following an appropriate procedure and without apparent bias. Although independence of the investigating body is not an explicit or absolute requirement, it has been constantly held to be a key indication of impartiality. It follows that an investigation cannot be considered to be impartial if it is conducted by the same agency that is accused of torture, or by anyone having close professional links to such an agency.
As a state party Bangladesh is in violation of these conventions when an act of torture is committed by an agent or official of the state, most commonly the police and armed forces (as we know it happens frequently). The government's failure to investigate promptly and impartially credible allegations of torture and ill-treatment of political detainees and ordinary citizens, even in many cases of death in custody, has promoted a culture of impunity. In the exceptional instances where the courts have convicted officials of torture, penalties have been lenient. The authorities do not provide information on the number of complaints received, and have seldom disclosed criminal, administrative or civil actions taken in relation to incidents of death in custody or torture and ill-treatment.
While ratifying the CAT the state has reserved Article 14 of the convention, which stipulates "that the state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including means of full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation." This means the state does not accept any legal liability to provide compensation to the victim or their families for torture or to provide for rehabilitation to torture victims. In failing to accept this obligation, which is one of the core elements of the CAT and all the legal doctrines associated with the elimination of torture. . This circumstance facilitates the police institution and all other battalions, like the RAB and many other task forces, in practicing torture.
On 18 December 2002, the United Nations (UN) General Assembly adopted a new mechanism aimed at preventing torture: the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Protocol).
The Protocol allows independent international experts to conduct regular visits to places of detention within states parties. The aim of these visits is to assess the condition of detention and the treatment of those detained and to make recommendations to states parties for improvements. The Protocol also requires states parties to set up national mechanism to conduct visits to places of detention and to cooperate with the international experts. The Optional Protocol provides for a two-pronged approach to prevent torture: First, it establishes a new international entity, the international visiting mechanism (IVM), which is a sub-committee of the Committee against Torture (CAT), established under the principal Torture Convention to report on state compliance. Second, it obliges each state party to establish one or more international visiting mechanisms (IVMs) to visit places of detention within the state and to enter into a co-operative dialogue with the authorities in order to help them ensure that torture does not take place. Bangladesh has yet to ratify the Optional Protocol to the Convention against Torture that provides for a visiting mechanism for the prevention of torture. Therefore, there is no safeguard to ensure the prevention of torture by legal agents.
In Bangladesh, international treaties do not automatically become part of national law and therefore have to be incorporated by a legislative act. Bangladesh has not yet adopted any precise implementing legislation incorporating the provisions of the UN Convention against Torture or the International Covenant for Civil and Political Rights, despite its ratification of these treaties. Hence, there is a sincere requirement to take legal steps to implement the conventions domestically. The ratification of Optional Protocol to the Convention against Torture is an essential step which the state should take to prevent torture. It will positively facilitate the state to comply with international human rights obligations.
The author is doing her LLM in Human rights Law in UK.
