South Asian states continue to use torture to control and punish dissent, fail to pass laws to criminalise the practice and where laws exist, do not use them in good faith, concluded a recent regional meeting in Kathmandu.
Organised by the International Commission of Jurists (ICJ), the meeting last week brought together lawyers, human rights experts and activists from Bangladesh, India, Nepal, Pakistan and Sri Lanka, ahead of global Human Rights Day (10 December).
‘Torture and other ill treatment are prevalent in South Asia, and in some countries widespread and systematic, with perpetrators enjoying impunity for the crime,’ said ICJ in a press release.
The trend is supported by ‘a mistrust of the justice system’, as shown by an incident last week in India, where police who killed four men accused of raping and murdering a woman were celebrated by crowds as heroes, said Reema Omer, ICJ International Legal Adviser for South Asia.
“More troublingly, however, the perpetrators of such human rights violations — be it extrajudicial killings, enforced disappearances or torture — are rarely held accountable but instead, are often protected and even celebrated by the state,” added Omer in an email interview.
“This has to be distinguished from the response of the general population as regardless of how ‘popular’ such conduct is, the state still has a duty to ensure an effective and impartial investigation leading to the prosecution of the perpetrators. Unless there is accountability, such violations will persist,” she added.
She said that torture and ill treatment are used in similar ways across the region, one major difference being in areas of conflict, such as Kashmir or the former federally administered tribal areas in Pakistan. There, “torture is also used as a means of control and as a reprisal against dissenters and those who go against the state’s policies,” she noted.
“There are also some differences in who the vulnerable populations are in each country, who are disproportionately subjected to torture and other ill treatment.”
One positive development is the new penal code in Nepal, which came into force in 2018 and recognises torture as a distinct crime. Other countries in the region have standalone laws on torture while India and Pakistan do not.
Even when officials are held accountable, they are often charged with lesser crimes than torture, such as assault, battery, coercion or abuse of office, which carry relatively low punishments. Lower or middle-ranking public officials are often targeted rather than their superiors.
When torture charges are laid, they frequently fail because of the difficulties in proving the crime, which include finding witnesses who will testify, inadequate or conflicting medical evidence and threats of reprisals against victims and witnesses.If those barriers are overcome, immunities that protect public officials from prosecution can allow perpetrators to escape accountability.
Military and intelligence agencies, in particular, ‘have extensive and unaccountable powers, including for arrest and detention, which facilitate the practice of torture and other ill treatment’, said the statement.
The conference looked at possible models for reform in the region, such as laws in Ireland and the Ukraine. Omer said they could potentially be used to guide the ways lawyers and activists approach the investigation and prosecution of torture in their own countries.
Under international law, states must ensure protection against torture and other cruel, inhuman or degrading treatment or punishment. The ICJ said when there are reasonable grounds to believe such a crime has been committed, states must investigate allegations competently, impartially, independently, promptly and thoroughly.