War on terror: Shifting the torture debate

M. Ajisatria Suleiman , Jakarta | Wed, 06/18/2008 10:44 AM | Opinion

The current international discourse on torture, triggered by the U.S.-led "War on Terror", has diverted global attention to questions irrelevant to its prevention in the context of many countries, including Indonesia.

Leaks concerning incidents at Abu Ghraib or Guantanamo may have driven the issue of torture to the top of the human rights agenda but, regrettably, the global discourse over the past few years has been dominated by criticisms of the United States.

Meanwhile, the issues many countries including Indonesia are facing have been underreported.

A relatively old debate has again emerged, surrounding the attempts to combat international terrorism following the 9/11 tragedy: May states torture suspects to save the lives of many innocents? Is the use of force amounting to torture in the interrogation of suspected terrorists compatible with the law, and if so, under what conditions?

This worrying debate is usually supported with the so-called "ticking-bomb scenario", wherein a hypothetical captured terrorist with knowledge of the whereabouts of a time bomb (which could kill many people) may reveal its location under torture. The question arises; In those circumstances, can we use torture?

Under one view, torture cannot be justified or excused to prevent the death of innocent persons, because human dignity is inviolable under any circumstances, and torture is the most severe violation of it. The inviolability of human dignity leaves no room for balancing opposing interests.

This absolute prohibition establishes the foundation for banning torture under any circumstances in criminal law. Any exception to this position would implicate a risk of abuse and open the door to a dangerously slippery road.

According to the opposing view, the application of "preventive torture" may be justified or excused if it is the last resort to prevent the death of innocents. This opinion is based mainly on the assumption that not using torture in some situations would infringe on the human dignity of hostages or victims of a terrorist attack.

It was submitted that not only does torture itself violate the human dignity of the kidnapper, but the omission of torture also infringes on the human dignity of the hostages. According to this view, the conflict between the dignity of the kidnapper and the dignity of the hostage had to be resolved in favor of the latter.

As interesting as this discussion may be, whether or not torture can be justified under certain circumstances draws necessary attention away from the high frequency of torture occurring in the Indonesian criminal justice system as a result of poor state policy, systemic lack of control and inadequate forms of redress combined.

The fact is, torture happens every day in Indonesia. Indeed, the use of torture by political and military leaders is a long and sad history of barbarity, especially during the New Order regime.

While the government has never admitted its interrogation methods amount to torture as defined by international law, many Indonesians have been subjected to it, often resulting in permanent physical and psychological damage -- and even death.

What should be noted in Indonesia is that the vast majority of torture victims have had no connection with terrorism or political crime. Almost all "ordinary" people (who do not have political or economic backgrounds) who are arrested for criminal offenses can expect, at the very least, serious maltreatment. Failure to confess could result in torture.

Yet most public discourse on human rights does not concern the use of torture to extract information or confessions from suspected burglars or murderers -- in other words, in the context of "ordinary" crime -- where torture is almost invariably used.

Thus, as using torture is likely to be considered the norm, it would not be an overstatement to suggest that torture in Indonesia has become the most serious "forgotten crime".

The first and foremost action to be undertaken to prevent torture in Indonesia is to raise public awareness, especially in the legal community, of the grave nature of torture.

Many people, including police officers, lawyers, legal scholars and even human rights activists, still get confused in distinguishing between "torture" and "maltreatment".

Ironically, these are the very people who should legislate and enforce the law, and empower the community to combat torture.

According to the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Punishment (CAT), there are several main elements of torture, which are; (a) acts which intentionally inflict severe physical or mental pain or suffering; (b) for an illicit purpose; (c) committed, consented or acquiesced to by a public official; (d) not arising only from, inherent in, or incidental to lawful sanctions.

These elements are different from maltreatment, as it appears in the Indonesian Penal Code, which can be committed regardless of purpose and perpetrators (whether they be state officials or civilians). The inability to differentiate between torture and maltreatment could result in eliminating the "special characteristic" of torture as governed by international law, by which this crime has received the Hostis Humanis Generis (enemy of all mankind) status.

The 1945 Constitution actually prohibits the act of torture. Torture is regarded as one of the "non-derogable rights" which are a set of human rights which a state cannot derogate its obligation to protect, respect and fulfill -- regardless of the situation.

Again, a lack of understanding and ignorance of torture have resulted in a failure to formulate this provision into legislation, policy or the conduct of state officials.

These are the issues facing Indonesia, not a philosophical discourse between a deontologist and a utilitarian view about the conditional necessity of torture.

Indonesia does not need to be reminded, as Nietzsche said in his book, that throughout most of human history there has been no taboo on torture and so there is no need to limit the cruelty that nature gave us.

The writer is a researcher at the Community Legal Aid. He can be reached at aji_suleiman@hotmail.com

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