• The International Criminal Court’s Stance on Torture

    by  • March 30, 2012 • ICC, International Justice • 4 Comments
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    ICC Bemba

    People in Bangui, the capital of the Central African Republic, watching the International Criminal Court's trial against Jean-Pierre Bemba, a former vice president of Congo accused of rapes and killing in the Central African Republic. PHOTO/ICC-CPI

    People who deal professionally with victims of physical and psychological torture want to not only heal their patients but also stop torture dead in its tracks. So they were pleased to learn that like other individuals or groups, they could submit evidence they had gathered to the International Criminal Court (ICC) in The Hague, says John Washburn, convener of the American Nongovernmental Organization Coalition for the International Criminal Court, or Amicc.

    In his advocacy for Amicc, a program of Columbia University’s Institute for the Study of Human Rights, Washburn has begun advising professionals in the United States on how to send evidence that their patients, mostly refugees, are ready to reveal to the court. The prosecutor’s staff at the ICC can look at the material and decide to develop a case. The court, governed by the Rome Statute treaty and independent of the United Nations, is the only international criminal institution to try criminals for war crimes, crimes against humanity and genocide.

    An example of such an investigation was the submission of names of Kenyan politicians allegedly responsible for inciting violence there in 2008. The list was handed over by Kofi Annan, the former UN secretary-general who negotiated a peace arrangement in Kenya at the time. Numerous people have since been charged by the court with crimes against humanity.

    Washburn spoke to PassBlue about the status of torture at the ICC and how people can submit evidence on torture and other atrocity crimes. Washburn also touched on the court’s first conviction, of  Thomas Lubanga, a Congolese warlord who used child soldiers; on crimes against humanity in Syria; and on the court’s relationship with the US.

    Q. Where does the ICC stand on torture?

    JW: Torture is a crime against humanity. It’s covered in considerable length in the Rome Statute because one source of the statute was the UN convention on torture, by which countries bind themselves not to do it. This is part of a pattern that informs a good deal of the court’s jurisprudence, where you  start out with an early declaration on torture, a nonbinding affirmation of a norm — that torture is an unacceptable, illegal practice. That was followed by a convention that is binding, but it referred only to states. The creators of the Rome Statute took this convention, which applied only to states and had no effective enforcement measures, and turned into part of a doctrine that defines and imposes trials and crimes, and established an institution to do that and convict and lock up people through a trial process.

    Q. Is torture part of the crimes against humanity category?

    JW: Yes, and it’s also a war crime. The difference is that with crimes against humanity you don’t have to have a formal conflict under way. You can be at peace and choose to torture. War crimes have to occur in the context of some formal conflict.

    Q. How does the court define torture?

    JW: Torture is an action that creates severe pain, psychological or physical, to accomplish a purpose. It’s in the Rome Statute, Article 7, Section 2E. When it’s a crime against humanity, it must be committed as part of a widespread attack or systematic attack against civilians. War crimes torture also refers to inhumane treatment and includes biological experimentation.

    Q. What is defined as severe pain?

    JW: The severity of the pain needs to be looked at in the context of the victim; obviously, levels of pain are different for different people, for adults versus children.  But it must be inflicted to achieve a plan or purpose —  if the torturers are trying to get information from the victim, say. Or it can be used to spread terror.

    Q. What forms of physical torture are happening today?

    JW: A lot of the crimes are occurring in primitive places. People doing it are not people who tend to use sophisticated techniques, like in Argentina in the old days, using cattle prods. Methods that the court hears are beatings, burnings, cuttings and things like that. It predominates in conflict areas, mostly Africa, involving Congolese warlords, Omar al-Bashir in Sudan [the president who is under arrest by the court but has not been able to apprehend him], the Qaddafi family in Libya, the Lord’s Resistance Army in Central Africa.

    Q. How is psychological torture defined by the court?

    JW: It is pressure that is severe enough to be compatible with achieving an objective or policy. There are many forms of psychological torture and physical torture.  Many ICC defendants are accused of torture but not specifically being tried for that offense; they are being tried for crimes against humanity.

    Q.What are some types of psychological torture?

    JW: Very primitive forms of mental torture are occurring: raping the daughter or wife in front of the husband; a child secreted in a room screaming with the mother outside, thus making her talk. Rape is a crime itself and a form of torture. For rape, in the past, the only tool the international community had to fight it was shaming and blaming because you’re dealing with states.  Now, we have the ICC and other tribunals that can try individuals for rape.

    Q. How can the international community stop rape?

    JW: It’s difficult to compel a state to stop doing something, though you can try with sanctions and such. It may be relatively easy to get a norm on state behavior established, but a lot harder to get state compliance. That’s a major motive to have the ICC — it’s teeth for the human rights approach by criminalizing human rights violations. Those were the motives of the ICC.

    Q. Tell us about some of the professionals who want to get to the source of torturing.

    JW: I spoke at a symposium held by the National Consortium of Torture Treatment Programs in Washington in February, and the audience was people — like social workers and doctors and other professionals — deeply engaged in treating persons who have been tortured outside the United States. What has happened is that a number of people who treat torture victims are fed up or feel the need to get beyond treating victims over and over again. One thing that also happens to those who treat victims is they get very angry at the torturers and want to get them to stop.

    Q. Where in the US is most of the treatment on torture victims being done?

    JW: There are institutions for this across the country. I’ve been working with a group in St. Paul, Minnesota, where a well-organized institution, the Center for Victims of Torture, treats people with terrific techniques. They are so good that victims, mostly refugees, keep coming and coming. In the Twin Cities, you have very large communities of Somalis and people of Hmong descent from Vietnam and Laos. Now that the word is out that the Twin Cities has this place that treats torture, they come for that reason.

    Q. What would the professional like to see happen to torturers?

    JW: They want to see people who do this dealt with effectively. They don’t want them to go on indefinitely, generation after generation.  The professionals believe that over time that if people are locked up it will have a deterrent effect and show that the world has recognized that what happens to victims is deeply wrong and it takes action.

    Q. What can the professionals hope to achieve at the court?

    JW: They can submit material to the prosecutor’s office, even if the US is not a member of the court. [The US agreed to join the ICC but Congress never ratified the treaty.] Anyone in the world can submit evidence, and the ICC prosecution staff separates the wheat from chaff, looking at evidence and advising the prosecutor if there’s a case. The audience at the February forum got really thrilled when I explained how easy it is to do. There’s a description right on the ICC Web site

    Q. There are no cases focused solely on torture at the court; why is that?

    JW: Partly because there have been a lot of other charges up to now that are easier to prove. Torture tends to take place behind closed doors. Child soldier recruitment is out in the open. Then you have massacres, acts of genocide; those are obvious and compelling. Torture is hard for investigators to establish, but the “treaters” in the Twin Cities have information given to them day in and day out. I thought that the people would say that their patients don’t want to have this information revealed. I was quite wrong; many of them want their information passed on. They’re safe in the US now.

    judges at ICC

    Judges at the International Criminal Court. PHOTO ICC/CPI

    Q. How has Thomas Lubanga’s conviction this month for conscripting child soldiers helped the court?

    JW: It is a demonstration of the court’s ability to try and convict a criminal. As the first case, it was the one that had to be used to get all the bugs out of the system, with strings of appeals and constant disagreements what the Rome Statute required in certain circumstances. The judges did not roll over for the prosecution; they were far from doing that.

    Q. Yet militants still use child soldiers, so does the deterrent factor really work when a warlord like Lubanga is convicted?

    JW: It’s too early to say. If Lubanga is locked up for a very long time — 30 years, say — that will show that this court is a threat that you have to take into account. We know anecdotally that warlords have taken note of this. They ask, Can this happen to me?

    Q. The United Nations concluded in a human rights report this winter that the Syrian government has committed crimes against humanity on its people. What can the court do?

    JW: Syria is not a state party to the Rome Statute; if it were, the ICC could act right away. Instead, the Security Council must refer the case to the court. China and Russia will not allow this to happen. The real problem is that the Security Council is dysfunctional.

    Q. Why do atrocity crimes occur even after the Geneva Conventions were set up to prevent them from happening after World War II?

    JW: Wherever you have severe conflict in which at least one party is not a government, you particularly tend to get this, crimes of atrocity, occurring. Or the government thinks of certain people as insurgents or rebels that don’t have to be given the same consideration – human rights protection – that they would if they were another country’s army, which involves reciprocity. In Somalia, it’s just militias fighting each other, as in Congo. All these are situations in which one party thinks the other party is not protected by the rules, if they recognize the rules at all.

    Q. Has there been any progress on the US joining the court?

    JW: There’s been no commitment to take steps to ratification; not even close. But we’re seeing a development of a relationship that can be sustained to create trust that would make ratification thinkable. It is more a question of circumstances coming together: the court could do something that pleased the US, like convicting Bashir of Sudan. The court could do something to upset the US, too, like looking at the situation in Palestine.

    Q. What else can the court do to prove its worthiness to the US?

    JW: It can demonstrate that it tries someone with fair procedures, that it’s a high-quality outfit.  The court’s judges are able and very qualified, not biased against the US. It isn’t a symbol, it’s a true court. This is what we try to bring home over and over again in our advocacy: that it is not a strange international organization but a true criminal court that tries classes of people for classes of crimes.

    Q. Why does the court want the US to join?

    JW: To give more credibility to the permanence of the court, to help carry the financial burden.

    Additional resources

    New Judges and a Presidential Vote at The Hague

    The International Court’s New Prosecutor

    Quietly, New US Policies Align With the UN

     

    About

    Dulcie Leimbach is a fellow of the Ralph Bunche Institute for International Studies at the Graduate Center of CUNY and an editor for the Coalition for the UN Convention against Corruption. From 2008 to 2011, she was the publications director at the United Nations Association of the USA, where she edited its flagship magazine, The InterDependent, and migrated it online in 2010. She was also the senior editor of UNA's annual book, "A Global Agenda: Issues Before the UN." Before UNA, Leimbach was an editor at The New York Times for more than 20 years, where she edited and wrote for most sections of the paper, including the Magazine, Book Review, Op-Ed and Arts & Leisure. She has been a fellow at Yaddo, the artists' colony in Saratoga Springs, N.Y., and taught news reporting at Hofstra University. She lives with her family in Brooklyn, N.Y.

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