Tuesday, August 3, 2010

The torture ban & cultural relativism

At the XVIIIth International Congress of Comparative Law held here in Washington, D.C., last week (about which others have blogged here and here), I was asked to participate in a plenary session.
The session was entitled The Prohibition Against Torture and Cultural Relativism. Specifically, I was asked to speak about this issue from an international criminal law perspective, addressing in particular whether different notions of how to evaluate allegations of torture emerge in the jurisprudence of the ad hoc international criminal tribunals. Interestingly, I found that the way in which the tribunals dealt with this question had a gender dimension.
A summary of my thoughts follows.
Consistent with human rights law, torture under the jurisprudence of the international criminal tribunals consists of an act or omission giving rise to severe physical or mental pain or suffering. Notably, the tribunals have held that permanent injury is not a requirement for torture; moreover, evidence of the suffering need not even be visible after the commission of the crime.
Nevertheless, in some cases, the tribunals have highlighted that certain forms of torture have long-lasting effects on the victim, particularly in cases involving sexual violence.
In those cases, it appears that social and cultural context may be relevant to an assessment of whether the pain is severe enough to constitute torture. For instance, while the tribunals have recognized that rape qualifies as torture because it causes severe pain and suffering, both physical and psychological, an early judgment of the International Criminal Tribunal for the former Yugoslavia -- Prosecutor v. Delalic, Mucic, Delic and Landzo (the Celibici Case) (1998)-- explicitly pointed out:
The psychological suffering of persons upon whom rape has been inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long-lasting.
A later judgment, Prosecutor v. Limaj (2005), agreed with this finding, noting that
in certain circumstances the suffering can be exacerbated by social and cultural conditions [and that] the evaluation should[, therefore,] take into account the specific social, cultural and religious background of the victims when assessing the severity of the alleged conduct.
Curiously, this later judgment highlighted the fact that this finding was

made specifically in the context of rape.
Perhaps this is not surprising, since harm from sexual violence is often long-lasting, in part because of the cultural and social norms prevalent in many of the victims’ communities.
Indeed, as commentators have noted, women and girls continue to suffer from the consequences of sexual violence long after a conflict or attack against the civilian population has ended, often because of the social and cultural values of the community to which the victim belongs. For instance,
the birth of children from rape [by a member of a group to which the victim does not belong] ... is likely to cause significant [and long-term] ... mental harm, especially in patriarchal societies where the ethnicity of the child is [considered to be] that of the father, thus the rapist.
(See the 2005 book by Professor Anne-Marie L.M. de Brouwer (left), Tilburg Law School, the Netherlands, entitled Supranational Criminal Prosecution of Sexual Violence: the ICC and the Practice of the ICTY and ICTR.) Similarly, long-term consequences such as isolation and ostracism are particularly common in social, cultural , or religious communities which attach stigma to the victim rather than the perpetrator of rape; indeed, victims of rape in these communities are sometimes cast as “unmarriageable” or abandoned by their spouse and/or family members.
Interestingly, the idea that cultural conditions should be considered in the analysis of whether particular conduct rises to the level of torture does not seem to appear in the discussion of other types of acts alleged to constitute torture.
In fact, acts such as:
► being forced to watch severe mistreatment inflicted on a relative;
► falsely informing a victim that his parent has been killed; and
► forcing victims to collect the dead bodies of other members of their ethnic group
have all been recognized as amounting to torture by the ad hoc tribunals without recourse to an analysis of the victims’ cultural or social background.
Consistent with this, consideration of cultural or social conditions is absent from the elements of torture, as enumerated in the Elements of Crimes that the Assembly of States Parties adopted to assist the judges of the International Criminal Court in interpreting the crimes within the jurisdiction of the Court. In fact, consideration of such factors is absent from the elements of all other crimes subject to the jurisdiction of the ICC, save one: the war crime, set forth in Article 8(b)(xxi) of the Rome Statute of the ICC, of commission of outrages upon personal dignity.
This crime requires that the
perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons [to a] degree ... generally recognized as an outrage upon personal dignity.
A footnote to the definition states that it “takes into account relevant aspects of the cultural background of the victim.”
It may, perhaps, be appropriate to consider the broader circumstances in which the accused’s conduct occurred – including the cultural background of the victim – when assessing whether that conduct “humiliated, degraded or otherwise violated the dignity of” the victim, as what is considered to violate one’s dignity is often culturally dependent. Curiously, however, there is little discussion of victims’ cultural backgrounds in the jurisprudence of the ad hocs dealing with the war crime of outrages upon personal dignity. Indeed, while the tribunals have found, for instance, that:
► the use of detainees as human shields or trench-diggers;
► inappropriate conditions of confinement;
► performing subservient acts;
► being forced to relieve bodily functions in one’s clothing; or
► enduring the constant fear of being subjected to physical, mental or sexual violence
all qualify as outrages upon personal dignity, none of these findings were contingent upon an analysis of the victims’ social or cultural circumstances.
Thus, even in the context of assessing whether a person’s dignity has been violated – where the social, cultural or religious context may be relevant to understanding how a perpetrator’s conduct would be experienced by the victim as violating his or her dignity – a victim’s cultural heritage seems to have had little bearing on the tribunal’s analyses.
The tribunals’ lack of attention to cultural context may, perhaps, be explained by a shift in their jurisprudence with respect to how long the victim must have suffered as a result of the accused’s humiliating or degrading conduct – a factor that, as the ICTY indicated in its discussion of rape as torture, can be exacerbated by the social and cultural values of the community to which the victim belongs.
While an early case, Prosecutor v. Aleksovski (1999), suggested that the humiliating or degrading treatment must have caused “lasting suffering” to the victim, the trial chamber decision in a later case, Prosecutor v. Kunarac et al. (2001), found:
So long as the humilitation or degradation is real and serious, the Trial Chamber can see no reason why it would also have to be "lasting" .... Obviously, if the humiliation and suffering caused is only fleeting in nature, it may be difficult to accept that it is real and serious. However this does not suggest that any sort of minimum temporal requirement of the effects of an outrage upon personal dignity is an element of the offence.
I would submit that this is probably the right approach, not only in the context of prosecuting sexual violence as an outrage upon personal dignity, but also when prosecuting it as the war crime or crime against humanity of torture.
Indeed, not all women who suffered sexual violence in conflict situations are permanently shamed, ostracized, or rejected by their communities. In fact, one commentator writing on wartime rape in Bosnia-Herzegovina notes that when one rape survivor was asked whether she felt shame or guilt because of what happened to her, she responded:
'The shame is theirs, not mine.'
(See Feminism and its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, a 2005 article by Karen L. Engle (right), Cecil D. Redford Professor in Law and Director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law.)
Opening the door to consideration of social and cultural conditions in assessing whether conduct was severe or serious enough to warrant characterization as an outrage upon personal dignity or an act of torture may lead to overlooking conduct that might not result in long-lasting suffering but would otherwise qualify as humiliating or degrading, or even as an act of torture.
More significantly, it may tempt the court to evaluate the circumstances of a case by reference to the judges’ own social or cultural norms.
The Sentencing Judgement in Prosecutor v. Zelenović case illustrates this point. The judgment in that case was confined to sentencing, as the accused there pleaded guilty to torture and rape as crimes against humanity. Noting that
[t]he gravity of the offences is the primary consideration in imposing a sentence,
the trial chamber first emphasized that
torture by means of rape is a particularly grave form of torture.
It then went on to point out that what makes rape a particularly serious crimes is
[t]he violation of the moral and physical integrity of the victims.
Although the accused’s conduct no doubt caused physical, and perhaps psychological, harm to the victims, it is unclear what the Chamber meant by stating that the rape also violated the victims’ “moral integrity.” The point here is that the Chamber’s use of the term “moral” seems to imply a value judgment about the nature of sexual violence which the victims may or may not have shared.
Notably, the ICTY Appeals Chamber's 2002 decision in Kunarac took an arguably more objective approach in analyzing the question of whether rape amounts to torture. Rather than considering the victims’ social or cultural background in assessing whether the harm was severe enough to qualify as torture, the Appeals Chamber held:
Generally speaking, some acts establish per se the suffering of those upon whom they were inflicted. Rape is obviously such an act .... Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.
In light of the circumstances in which victims find themselves in these cases – that is, in the midst of an armed conflict or a widespread or systematic attack against a civilian population – it is perhaps understandable that cultural conditions need not be considered when evaluating whether the harm suffered was serious or severe enough to qualify as torture. Indeed, as explained by the ICTY in Prosecutor v. Kvocka et al. (2001):
In considering whether severe pain and suffering was also inflicted upon the other victims of sexual violence, the Trial Chamber takes into consideration the extraordinary vulnerability of the victims [in this context] and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radic [the accused] held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radic. Under these circumstances, the Trial Chamber finds that threat of rape or other forms of sexual violence undoubtedly caused severe pain and suffering to [the witnesses] and thus, the elements of torture are also satisfied in relation to these survivors.
In sum, I think that in this context there is little room for a cultural relativism approach.

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