‘No safe haven for torturers’ – The rocky road to the Convention against Torture
The event was a legal milestone that sent a chilling message to human rights violators the world over.
Eight years after being ousted from power, in October 1998, Augusto Pinochet, the ailing Chilean former leader and one of the world’s most notorious dictators, decided to travel to Europe to receive medical treatment.
But as he arrived in London, members of the Chilean diaspora – many of them survivors of torture during Pinochet’s brutal regime – saw a golden opportunity for the former dictator to be investigated, after Chile had systematically refused to do so.
Armed with the International Convention against Torture – a ground-breaking treaty under which governments had agreed that those suspected of committing or ordering torture could be tried by state parties all around the world – lawyers began a fierce battle.
Never before had the Convention been successfully used to prosecute a former head of state suspected of having ordered or committed torture, and the results were astonishing.
A Spanish judge issued an international warrant looking to prosecute Pinochet for his responsibility in the systematic murders, torture and enforced disappearances committed under his government.
Inspired by horrors in Chile
It was true poetic justice.
The thousands of torture testimonies that had emerged from Chile after Pinochet took power by force in 1973 had inspired the creation of the Convention in the first place. A quarter century later, he was the first person to be targeted under the treaty’s principle of universal jurisdiction.
One of the individuals behind the creation of the ground-breaking treaty was Sir Nigel Rodley, a British lawyer and former Amnesty International legal adviser:
“The Pinochet case gave many a sense of vindication. It was a triumph for human rights. He was this swaggering dictator who had thought he was invulnerable and then he was detained for a year in another country.”
Pinochet was eventually allowed to return to Chile a free man in 2000 following the UK’s controversial decision citing the former ruler’s poor health. However, the case proved that the Convention against Torture is a powerful legal tool in the fight for justice.
A landmark Convention
1973 was an eventful year for the fight against torture.
The Pinochet coup in Chile, with its mass arrests followed by detentions in the National Stadium, executions, torture and enforced disappearances, brought home the fact that torture was not an evil of the past but very much alive.
Partly in response to those horrors, Amnesty International launched the first-ever global campaign to stamp out the brutal practice.
That same year, the organization published a weighty 225-page report that analysed, for the first time in history, the extent to which beatings, electrocutions, stress positions and other forms of torture were being used by governments around the world to punish dissidents or extract confessions.
This kick-started an international campaign to persuade authorities to end the brutal practice at home and abroad.
Activists took to the streets to gather signatures and stood in front of TV cameras to talk about the kinds of abuses many ignored. Meanwhile lawyers gathered to seek out legal avenues to end the suffering of hundreds of thousands.
At an international conference of lawmakers organized by Amnesty International in Paris, one lawyer suggested that one way to fight against torture was to have a robust, legally binding international treaty to ban it.
Torture was already illegal in many countries and an international consensus meant that it was globally prohibited and a crime under international law.
A Convention, however, would ensure that states who ratified it were legally obliged to create a specific crime of torture in their laws, investigate all complaints promptly and impartially, punish perpetrators, prohibit “evidence” obtained by torture in courts, refrain from forcibly sending people to where they risk torture and more.
Another key obligation would be for states to ensure that those suspected of torture could be tried in any country which has ratified the Convention.
The timing seemed perfect.
The United Nations General Assembly had already been discussing the need for a resolution on torture. Several years later, at the end of 1977, the Swedish government took the initiative to propose the development of a convention.
Intensive negotiations got under way at the UN in New York and in governments across the globe.
But it proved very difficult to find agreement on clauses that would oblige governments to investigate and prosecute those responsible for carrying out or ordering torture, even abroad.
“Many countries really resisted this aspect. The French didn’t like it at first, the Dutch, who were chairing the working group, didn’t like it at first, quite a lot of others didn’t like it but slowly different countries came around and bought into the idea. The basic idea was that there should be no safe haven for torturers,” Sir Nigel explains.
After long discussions, on 10 December 1984, the UN General Assembly adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Comprised of 33 articles, it defines what torture is and how it should be criminalized, investigated and prosecuted. It sets out clear legal obligations for countries to take action against torture at home and abroad.
‘A new avenue for justice’
While Pinochet ultimately evaded justice, dozens of others have been prosecuted under the premise of universal jurisdiction enshrined in the Convention against Torture.
Sir Rodley believes that the document now serves as a powerful deterrent.
“The Convention means that there is a new avenue for justice; that world leaders responsible for torture think twice before travelling to a country where they might be arrested. It brought a certain degree of uncertainty and fear for high political leaders and it might have inhibited certain amount of torture and that is a very good thing,” he explains.
Sir Rodley now says that even though there is still a lot of work to be done to stamp out torture, things have changed since the Convention was adopted.
“Today, it is universally accepted that torture is prohibited under international law. But in the end, it is not the international community who can stop torture, it is only the countries themselves which can stop it. Part of the problem is that most of the torture takes place against common criminals no one cares about, it is committed by incompetent police officers who are underpaid and pressured to keep the streets safe and, as long as they are not brought to justice for it, it will continue to happen.”
But the success of the Convention is not limited to prosecutions. Over the years, more and more states have criminalized torture, put in place safeguards such as prompt access to lawyers and family following arrest, prohibited incommunicado detention and allowed visits to prisons by independent monitors.
The fight continues
But the fact that torture is still alive and well in many parts of the world means that much work remains to be done.
Thirty years on from the Convention’s entry into force, Amnesty International is still leading the battle against torture. Despite persistent challenges, the organization will continue naming and shaming the perpetrators and the countries where the practice is rife, as part of its ongoing efforts to stamp out torture once and for all.