2.4 The Nature Torture and Assault under Police Custody
2.4.1 Torture
Torture is defined as “an act that seeks to annihilate the victim’s personality and [to deny] the inherent dignity of the human being” (United Nations 2002:3). The UN definition of torture focuses on the rationale for torture, and it points out that a suspect “can be intentionally tortured for the purpose of obtaining information or as a form of punishment (The United Nations General Assembly, 1984). Acts of torture are rooted in historical political and power relations.
Cohen (2011) states that torturing regimes tend to be denied as wrongdoing by perpetrators.
Particular patterns of denial are identifiable such as literal denial (‘We don’t torture’);
interpretative denial (‘What we do isn’t torture’); and implicatory denial (‘Torture was the work of rogues’ and/or ‘Our enemies deserve what is done to them’). In the pre-modern era, the use of torture was in some instances acknowledged and corrected. In some countries where widespread torture against political activists had occurred, there was a stated commitment to eradicate torture (Dissel et al., 2009:5), irrespective of whether it was regarded as an effective measure or not.
Various acts, conducts or events may be considered as torture in certain situation. Garcia (2009) argue that there are no single definitions existing under the international law. The Advisory Service on International Humanitarian Law (2014) states that the majority of the international
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bodies defined torture by focusing on four elements of torture that are most found in the international definitions of torture and these elements includes, (1) nature of torture, (2) the intention of the perpetrator, (3) the purpose, and (4) the involvement of public official. Torture include both acts and omissions that intentionally inflicts severe pain and suffering to the victim with the purpose of extracting confessions or for obtaining from the victim or third person information or for punishment or discrimination and the perpetrators is a public official.
However, the question is what elements characterize the practice of torture that renders it a criminal offence by police officials. Schiemann (2012:12) indicates that there is a debate over what exactly constitutes torture. For example, British interrogation techniques that were employed in Northern Ireland are cited. Garcia (2009) states that, according to the European Court of Human Rights (ECHR), five interrogation techniques were sometimes used in combination or individually. These forms of torture are briefly described below.
Wall-standing: Detainees had to remain for lengthy periods in a ‘stress position’, which was a spread-eagled position against a wall, with fingers put high above the head against the wall, the legs spread apart and the feet back, causing the victim to stand on his toes with the weight of the body mainly on the fingers.
Hooding: A black or navy coloured bag was put over the detainee’s head and, at least initially, it was kept there all the time except during interrogation.
Subjection to noise: Pending interrogation, a detainee would be secluded in a room where there was a continuous loud and hissing noise.
Deprivation of sleep: Pending interrogations, a detainee would be deprived of sleep.
Deprivation of food and drink: A detainee would be subjected to a reduced and unpleasant diet pending interrogation.
According to Garcia (2009) the ECHR considered the abovementioned techniques to have violated the European Convention’s prohibition of “inhuman or degrading treatment”, but it found that the interrogation methods “did not constitute torture”.
The second case that is cited are Israeli interrogation techniques employed against Palestinian security detainees. Garcia (2009) reveals that, according to the CAT Committee, these interrogation methods included the following:
restraining in very painful conditions;
hooding under special conditions;
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sounding of loud music for prolonged periods;
sleep deprivation for prolonged periods;
threats, including death threats;
violent shaking; and
using cold air to chill.
The CAT Committee considered these interrogation techniques constituted torture as defined by CAT Article 1 (Garcia, 2009). Even though these two cases share some similar interrogation techniques, there were contradicting views on whether these techniques constituted torture or not.
Recent literature has elucidated a combination of techniques used by the police in interrogating suspects and witnesses. Parry (2003:240-41) lists these methods of torture as follows:
“Being beaten, being given electric shocks, forced to stand, hooded, for long hours, where the victim then fell, broke his/her leg and [was] denied medical treatment for a period of time, having one’s hooded head put into foul water until nearly asphyxiated, having objects forced into one’s anus, enduring a fractured jaw while being kept hanging for hours by the arms, thrown on the floor, rape, [and] threats of physical mutilation.”
Miller (2011) expands on Parry’s (2003) list:
“Torture includes such practices as searing with hot irons, burning at the stake, electric shock treatment to the genitals, cutting out parts of the body e.g., [the] tongue, entrails or genitals, severe beatings, suspending by the legs with arms tied behind [the] back, applying thumbscrews, inserting a needle under the fingernails, drilling through an unanesthetized tooth, making a person crouch for hours in the ’Z’ position, waterboarding (submersion in water or dousing to produce the sensation of drowning), and denying food, water or sleep for days or weeks on end.”
The methods of torture mentioned by Parry (2003) and Miller (2011) have been used for different purposes, which is in line with the UN definition which states that torture is “caused intentionally for a purpose” (The United Nations General Assembly, 1984). Parry (2003:247) asserts that “the impulse to torture may derive from the identification of the torture victim with a larger threat to social order or values”. When the social order is threatened, torture may function as a method of maintaining order. History reveals that among the Greeks and in the Roman Republic, torture was almost entirely confined to slaves. The reason for torturing slaves was that the slave was entirely at the mercy if his master and would naturally testify in accordance with the master’s wishes, unless some stronger incentives to speak the truth were
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brought to bear (Lowell, 1897:220). This reason for torture in history seems to be similar and relevant to motives of torture in the modern age.
According to South Africa (2013:4), torture may be intentionally inflicted on a person for such purposes as to obtain information or a confession from him or her. A Ghanaian police officer summarised this motive as follows: “I tell you…because they seem to know every procedure that goes on in the police station [...] So it's like, if you don't beat them, you will not get the information you need instantly, to move on it” (Beek & Golfert, 2012:492). However, the US Senator John McCain in the study that was conducted by Blakely (2007) said “believe me, they would say anything towards the end, no matter whether they did it or not. Anything”. This suggest that the information that is obtained through intimidation and torture is not guaranteed to be true. Due to fear of being tortured, they provide information that they think the police wants to hear in order to make the pain stop.
South Africa (2013:4), provides that torture “may be inflicted as a form of punishing a suspect for an act he or she or any other person has committed, is suspected of having committed or is planning to commit [and] it is also used to intimidate or coerce him or her or any other person to do, or to refrain from doing, anything; or for any reason based on discrimination of any kind”. In Chan’s (2000: 88) view, the police use violence in the cells as punishment. This is clearly an illegal form of violence, but in reality the distinction between subduing a suspect and punishing him is not clear. Parry (2003) argues that the purpose of torture may be to extract money from the victim or someone has given the police money to thrash him/her, usually in revenge. Torture is also perpetrated as “an [animal-like form] of brutality; because of a desire for revenge; and as a method of individual or collective assertion that creates an illusionary sense of overcoming vulnerability by the thorough domination of others” (Parry, 2003:247).
However, Jefferson (2009:13) argues that the use of violence should not be understood as merely instrumental; it is also born out of genuine moral conviction and, in this researcher’s view, and innate desire to hurt and overpower.