Torture: An Expert's Confrontation with an Everyday Evil by Manfred Nowak
Manfred Nowak is one of the world's leading experts on human rights, a wellpublished scholar frequently appointed to high-level advisory and investigative positions. As the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from 2004 to 2010,1 he led factfinding missions to eighteen countries spread across the world's major regions. These visits, alongside observations of his own country of Austria, become the case studies for a book—excellently translated by Roger Kaminker—devoted to answering the questions of why torture persists and how we can end it. Afforded access unavailable to other scholars and practitioners, Nowak provides a gripping and insightful discussion, one that gains authority from his long practical experience, extensive research, keen observation, fine moral sensibility, awareness of context, and collaboration with diverse experts. He addresses the major controversies (including "war on terror" rationalizations of torture)2 with wisdom and authority. This is a magisterial work—a godsend for human rights and required reading for those who work in criminal justice or share responsibility for individuals deprived of their liberty.
On each country visit, the UN rapporteur on torture insists on the right to tour any prison or detention center without prior notification, interview detainees in the absence of state officials, and use photographs and video to document evidence of torture or ill-treatment. He or she typically meets with cabinet ministers, senior judges, and police chiefs, and often with heads of government. Nowak encountered cooperation in some states (Denmark, Georgia, Greece, Papua New Guinea, Paraguay, Togo, and Uruguay), obstruction in others (China, Equatorial Guinea, and Jordan), and artful manipulation in others (Sri Lanka and Kazakhstan). Some states (United States and Russia) demanded unacceptable terms that scuttled previously scheduled visits, while others (Cuba and Zimbabwe) offered what Nowak calls "fictitious invitations,"3 never intending to follow through.4 After each visit, the rapporteur briefs government officials on his or her conclusions and issues a public report. The United Nations Human Rights Council can take action in response to negative findings.
Overcoming official resistance can require dogged persistence, nerves of steel, and the ability to think on one's feet. On several occasions, Nowak's team was obliged to stare down, or outwit, local officials. By means of "cat and mouse" [End Page 254] games,5 the authorities sometimes succeeded in impeding his investigations. Lying was standard practice: Nowak heard "many lies, rarely from detainees but routinely from the police, prison staff, the military, and politicians."6
Whenever possible, Nowak rescued individuals from torture or inhuman conditions of detention. After learning that a Togolese man, tortured into confessing the theft of a chicken, had been detained beyond the maximum forty-eight-hour period,7 Nowak ended up visiting the home of the public prosecutor, who then ordered the man's release. Similar interventions led to the release of some twenty other people and, as word spread, the authorities began freeing other detainees who had been held longer than forty-eight hours in police custody.
In several countries, Nowak's recommendations were promptly adopted, sometimes bringing quick relief to thousands of people. The Uruguayan president ordered the closure of two prison blocs that were shockingly unfit for habitation.8 In Nigeria, after Nowak learned that between 20,000 and 25,000 people had been kept in pre-trial detention longer than the maximum sentence for the crimes of which they had been accused, the president promised their immediate release, and it appears that many were freed shortly thereafter.9 Governments in Georgia, Paraguay, and elsewhere adopted his recommendations to strengthen the criminal prohibition of torture, establish domestic inspections, overhaul police departments, and bolster public defenders. Torture rooms exposed in Nowak's inspections were sometimes closed down. It is likely that the country visits have had an inhibiting effect, in the shortand long-term, in ways unnoticed by Nowak.
Varying socio-political contexts create alternate pathways to torture and ill-treatment. In China,10 a ruthless police state is determined to catch, punish, and eradicate dissent, using torture and pitiless brainwashing among its methods. In Jamaica,11 drug trafficking gives rise to a pervasive culture of violence and corruption; a virtual state of war between security forces and gangs, and between gangs themselves, is continued inside prison walls. Counter-insurgency and counter-terrorist operations are the setting for extreme torture in Nepal,12 Sri Lanka,13 and Jordan.14 Human trafficking exposes Moldovan women to the danger of sex slavery and prolonged brutality.15 Accusations of sorcery lead to lynchings in Papua New Guinea.16 In Mongolia,17 some prisoners are sentenced to solitary confinement as part of their punishment. Anti-immigrant sentiment is linked to rare but shocking cases of police torture in Austria18 and appalling ill-treatment of migrants in Greece.19 During his 2010 [End Page 255] mission to Greece (before the start of the Arab Spring), Nowak observed hundreds of migrants crammed into filthy, overcrowded, and dehumanizing holding centers. Readers will be reminded of the Trump administration's border camps, though Nowak does not report any deaths or family separations. Conditions were so bad that, in 2011, the European Court of Human Rights ruled that repatriation of migrants to Greece from elsewhere in Europe was a violation of the European Convention on Human Rights.20
Torture is not a faraway occurrence but a widespread practice—in Nowak's apt term, an "everyday evil." He documents its use in seventeen of the eighteen countries he visited (Denmark, including Greenland, is the honorable exception).21 In a police station in Nigeria's largest city, officers calmly wrote their reports in the knowledge that torture was being administered in the next room, and "apparently it never occurred to anyone that something was not right."22 Contemporary torture methods include beatings, rape, solitary confinement, suspension (in various horrifying forms), stress positions, suffocation, electric shock, burning, water torture, and shooting limbs of captive prisoners then leaving their wounds untreated. Nowak's team verified bodily signs of torture, photographed torture equipment, located torture rooms, and in some cases (Indonesia)23 interrupted torture sessions in process.
Though torture is used in the repression of dissent and interrogation of suspected terrorists, its most frequent purpose is to force confessions from criminal suspects; over 90 percent of the victims interviewed by Nowak were tortured for this reason.24 Nowak summarizes his findings:
The overwhelming majority of victims are ordinary and for the most part poor people, the homeless, arrested by the police on suspicion of having committed a crime or a minor offense but often arbitrarily or for purely discriminatory reasons, and beaten and tortured until they have confessed to having committed the offense.25
The risk of torture is highest in police custody, in the hours immediately following arrest.
Many detainees told Nowak that their torture, however awful, was better than the months or years they spent in inhuman conditions of confinement. "[D]etention conditions in the majority of states are far more dreadful than most people can imagine."26 In Africa, Latin America, and Greece, detainees often live in hot, dark, crowded, filthy, violent blocs, without adequate food or health care, amid the overpowering stench of urine and feces (often, there are no functioning toilets, and detainees must deposit their human waste in plastic bags and bottles, if available). In China, Mongolia, and some post-Soviet states, conditions are less dirty and chaotic but are arguably more inhumane because of enforced isolation and inactivity, "reeducation" practices, and over-medication in psychiatric wards.27 While casting a spotlight on the horrors of inhuman detention, Nowak usually distinguishes [End Page 256] it from torture, which he associates with the "intentional infliction of severe pain or suffering for a specific purpose."28 However, in some cases (e.g., Jamaica), inhuman prison conditions appear to manifest a degree of intentionality that may cross the line into torture.
In many parts of the world, torture and ill-treatment persist because criminal justice institutions are not guided by their ostensible mission. Officials do not seek to determine guilt or innocence in accordance with due process of law but rather to find suspects in marginal populations and keep them locked up without the burden of providing a fair trial. Arrest is often a de facto guilty conviction, carrying a de facto sentence of torture and inhuman conditions of detention. In such circumstances, the police wield their authority to pursue the most defenseless members of society. In many countries, Nowak's team
met detainees who did not even know whether or not they had been convicted. Some thought the police had already convicted them. They had never been brought before a judge and had simply been forgotten in police custody because they did not have any money to bribe their way out.29
Why is so much cruelty allowed to persist? One reason is that torture and illtreatment are a "privilege of the poor."30 The wealthy and educated are largely spared because they can afford lawyers, pay bribes, or post bail, and they are less likely to be targeted by police. This perpetuates a cycle of ignorance and indifference among those who, if they wanted, could bring about change. Another reason is that, especially under authoritarian regimes, fear creates silence. Torture produces its own impunity, a wall of secrecy that enables its continued use. Some Chinese dissidents refused to discuss their torture with Nowak, in fear that their sentences would be prolonged.31 In Equatorial Guinea, Nowak had difficulty finding someone to drive his team to the house of a human rights campaigner who doubled as the lone opposition member of parliament. "The stories of torture victim interviewees that we listened to that evening, by candlelight in a remote hut, were some of the worst I ever heard. However, I could include none of that in my report, because these people made me swear to secrecy in the strongest degree."32 It is a good rule of thumb to assume that repression under dictatorships is much crueler and more extensive than available information reveals.
Torture, though pervasive, is in no way inevitable. "We know precisely what needs to be done in order to eradicate torture."33 Every arrest must be documented, and every detainee must have immediate access to family members, a lawyer, and a doctor. Police custody must be as brief as possible and never longer than forty-eight hours. Police interrogations must be video-recorded with a lawyer present. Detainees must be brought promptly before a judge. They must have the right to report torture or ill-treatment at any time, and non-frivolous complaints must be investigated. Detainees should be released before trial, except when a court can legitimately rule that they pose a serious risk of "re-offending, collusion, [End Page 257] or flight."34 After appearing before a judge, detainees must never be returned to police custody.
Countries must empower both domestic and international inspection committees to carry out unannounced visits—procedures authorized under the Optional Protocol to the Torture Convention,35 which all countries should ratify. Torture must be defined as a stand-alone crime with significant penalties. Governments must create separate units to investigate torture, ill-treatment, and other violent crimes committed by security services, with the necessary independence to conduct such investigations effectively (the creation of anti-corruption units in several countries shows that this is a feasible undertaking).
Torture is interwoven with the violation of other human rights, including rights to due process, legal representation, fair trial, political participation, freedom of expression, and freedom from cruel or degrading punishment. Nowak calls torture "the de facto dehumanization of humans."36 It belongs to broader patterns of abuse and humiliation that arise when governments treat freedom of thought and expression as a threat to social order; when societies marginalize or stigmatize certain groups by virtue of their economic, racial, or ethnic status; and when countries adopt retribution and revenge as the guiding principles of criminal justice. Inhuman treatment is predictable when penal systems are not oriented to rehabilitation (contrary to Article 10 of the International Covenant on Civil and Political Rights).37 There is no reason why other countries cannot follow the example of Denmark, which has prevented torture because it insists that all detainees must be treated with respect and should be allowed, insofar as possible, to lead lives in prison that resemble life on the outside.38 To end torture, we must build a culture of equality and human rights, one that brings prisoners and accused criminals into our circle of moral concern. In his remarkable book, Manfred Nowak has given us a map of contemporary torture and has shown us how we can leave torture behind. [End Page 258]
Jamie Mayerfeld is Professor of Political Science at the University of Washington, and author of The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law. He is current president of the Western Political Science Association.
1. Manfred Nowak, Torture: An Expert's Confrontation with an Everyday Evil 5 (2018)
2. Id. at 54–61.
3. Id. at 17.
4. I assume that missions to some of the world's most brutal regimes were not a realistic possibility.
5. Nowak, supra note 1, at 16.
6. Id. at 15.
7. Id. at 114.
8. Id. at 147.
9. Id. at 110.
10. Id. at 82–86.
11. Id. at 154–59.
12. Id. at 78–81.
13. Id. at 117–20.
14. Id. at 87–91.
15. Id. at 132–36.
16. Id. at 160–66.
17. Id. at 75–77.
18. Id. at 92–102.
19. Id. at 167–77.
20. Id. at 177.
21. Id. at 178.
22. Id. at 109.
23. Id. at 122.
24. Id. at 51.
25. Id. at 179.
26. Id. at 30.
27. Id. at 35–36.
28. Id. at 155.
29. Id. at 33.
30. Id. at 52.
31. Id. at 83.
32. Id. at 140.
33. Id. at 181.
34. Id. at 182.
36. Id. at 4.
37. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., art. 10, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976).
38. Nowak, supra note 1, at 185–86.