Archive for June, 2009

Torture and Islamic Law

Sadiq Reza of the New York Law School published a paper in 2007 titled, “Torture and Islamic Law.” It was published in the Chicago Journal of International Law, Vol. 8, No. 1. I just came across the paper and have not read it yet but will do so soon.
The abstract reads,
“This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today’s Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves “Islamic states.”
The status of investigative torture in Islamic law has long been unsettled: most early classical jurists forbade it, but some later classical jurists permitted it in at least certain circumstances. The permission some jurists gave the practice in Islamic jurisprudence (fiqh) was matched and augmented by a broader license jurists gave executive actors in the realm of governance or administration (siyasa), a realm seen as necessarily less constrained by jurisprudential limitations.
Historical evidence indicates that investigative torture was indeed practiced by executive actors at various periods and places of the pre-modern Muslim world. Nevertheless, statistical analysis indicates little or no correlation between the absence or practice of torture in today’s Muslim-majority countries and the degree of commitment these countries profess to Islamic law. Instead, this article concludes, the absence or practice of torture in a given Muslim-majority country today (and the willingness of Muslim-majority countries to join international covenants that ban torture) correlates with the same factor with which it correlates in a given non-Muslim-majority country: the presence or absence of democratic government.”
The article (at least based on the abstract) makes some interesting points. First, that the classical Muslim jurists (whose opinions are widely considered to be the foundation of Islamic law) forbade torture. Very interesting! Second, that the widely held notion that countries that govern based on Shari’ah are more willing to torture (it is commonly held that the practice of Shari’ah iteself entails torture), is a misconception. The presence or absence of torture in a Muslim country has to do with the presence or absence of democracy.
The flaw, however, is in overlooking the fact that while democratic nations are generally reluctant to torture their own citizens, they have no problem torturing the citizens of other countries. For proof of this, one merely has to review the actions of the French in Algeria and Vietnam, or the Americans in Afghanistan, Abu Ghraib and Guantanamo. Not to mention the infamous School of the Americas in Fort Benning, Georgia, that trained aspiring Latin American dictators and death squads in the most efficient forms of assassination, terrorism and torture. Then there are all those secret CIA torture camps whose existence is widely acknowledged but officially denied.
It would be nice to believe that democracy brings an end to torture. But it does not.
"...if anyone saves a life, it will be as if he had saved the life of all humankind." - Holy Quran

"...if anyone saves a life, it will be as if he had saved the life of all humankind." - Holy Quran

Sadiq Reza of the New York Law School published a paper in 2007 titled, “Torture and Islamic Law.” It was published in the Chicago Journal of International Law, Vol. 8, No. 1. I just came across the paper and have not read it yet but will do so soon.

The abstract reads,

“This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today’s Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves “Islamic states.”

The status of investigative torture in Islamic law has long been unsettled: most early classical jurists forbade it, but some later classical jurists permitted it in at least certain circumstances. The permission some jurists gave the practice in Islamic jurisprudence (fiqh) was matched and augmented by a broader license jurists gave executive actors in the realm of governance or administration (siyasa), a realm seen as necessarily less constrained by jurisprudential limitations.

Historical evidence indicates that investigative torture was indeed practiced by executive actors at various periods and places of the pre-modern Muslim world. Nevertheless, statistical analysis indicates little or no correlation between the absence or practice of torture in today’s Muslim-majority countries and the degree of commitment these countries profess to Islamic law. Instead, this article concludes, the absence or practice of torture in a given Muslim-majority country today (and the willingness of Muslim-majority countries to join international covenants that ban torture) correlates with the same factor with which it correlates in a given non-Muslim-majority country: the presence or absence of democratic government.”

The article (at least based on the abstract) makes some interesting points. First, that the classical Muslim jurists (whose opinions are widely considered to be the foundation of Islamic law) forbade torture. Very interesting! Second, that the widely held notion that countries that govern based on Shari’ah are more willing to torture (it is commonly held that the practice of Shari’ah iteself entails torture), is a misconception. The presence or absence of torture in a Muslim country has to do with the presence or absence of democracy.

The flaw, however, is in overlooking the fact that while democratic nations are generally reluctant to torture their own citizens, they have no problem torturing the citizens of other countries. For proof of this, one merely has to review the actions of the French in Algeria and Vietnam, or the Americans in Afghanistan, Abu Ghraib and Guantanamo. Not to mention the infamous School of the Americas in Fort Benning, Georgia, that trained aspiring Latin American dictators and death squads in the most efficient forms of assassination, terrorism and torture. Then there are all those secret CIA torture camps whose existence is widely acknowledged but officially denied.

It would be nice to believe that democracy brings an end to torture. But it does not.

I don’t mean to sound hopeless. The fact that 20th century democracies have largely ceased torturing their own citizens is quite inspiring. It tells us that governments are capable of stopping torture when they choose, and that what is required is a change of mentality. We must stop thinking of the citizens of other nations, or the members of other religions or ethnic groups, as “the other”. We have to extend our concept of citizenship to include all of humanity. We absolutely have to recognize the brotherhood and sisterhood of all humanity.

I know that may sound like an impossible task – after all, I’m talking about wiping out racism and nationalism, two of the most doggedly pervasive sicknesses in all human history – but if you look at it another way, it is one of the few challenges we face that is actually achievable. Why? Because it requires no resources to achieve, or at least none beyond education. We don’t have to spend trillions of dollars, we don’t have to find a new vaccine or figure out how to distribute a vanishing resource. All we have to do is change the way people think.

Simple, huh?

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12-Point Plan to Stop Torture

Amnesty International's 12-Point program against torture

Amnesty International's 12-Point program against torture

I’d like to come up with a special program or plan to eliminate torture that will speak to Muslims in particular, with points referencing the Quran and Sunnah as needed. If anyone can help with this your input is very welcome.

Here is Amnesty International’s 12-point program to stop torture:

Amnesty International’s 12-Point Program for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by Agents of the State

Torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment) are violations of human rights, condemned by the international community as an offence to human dignity and prohibited in all circumstances under international law. Yet they happen daily and across the globe. Immediate steps are needed to confront these abuses wherever they occur and to eradicate them. Amnesty International calls on all governments to implement the following 12-point program and invites concerned individuals and organizations to ensure that they do so. Amnesty International believes that the implementation of these measures is a positive indication of a government’s commitment to end torture and other ill-treatment and to work for their eradication worldwide.

1. Condemn torture and other ill-treatment
The highest authorities of every country should demonstrate their total opposition to torture and other ill-treatment. They should condemn these practices unreservedly whenever they occur. They should make clear to all members of the police, military and other security forces that torture and other ill-treatment will never be tolerated.

2. Ensure access to prisoners
Torture and other ill-treatment often take place while prisoners are held incommunicado – unable to contact people outside who could help them or find out what is happening to them. The practice of incommunicado detention should be ended. Governments should ensure that all prisoners are brought before an independent judicial authority without delay after being taken into custody. Prisoners should have access to relatives, lawyers and doctors without delay and regularly thereafter.

3. No secret detention
In some countries torture and other ill-treatment take place in secret locations, often after the victims are made to “disappear”. Governments should ensure that prisoners are held only in officially recognized places of detention and that accurate information about their arrest and whereabouts is made available immediately to relatives, lawyers, the courts, and others with a legitimate interest, such as the International Committee of the Red Cross (ICRC). Effective judicial remedies should be available at all times to enable relatives and lawyers to find out immediately where a prisoner is held and under what authority, and to ensure the prisoner’s safety.

4. Provide safeguards during detention and interrogation
All prisoners should be immediately informed of their rights. These include the right to lodge complaints about their treatment and to have a judge rule without delay on the lawfulness of their detention. Judges should investigate any evidence of torture or other ill-treatment and order release if the detention is unlawful. A lawyer should be present during interrogations. Governments should ensure that conditions of detention conform to international standards for the treatment of prisoners and take into account the needs of members of particularly vulnerable groups. The authorities responsible for detention should be separate from those in charge of interrogation. There should be regular, independent, unannounced and unrestricted visits of inspection to all places of detention.

5. Prohibit torture and other ill-treatment in law
Governments should adopt laws for the prohibition and prevention of torture and other ill-treatment incorporating the main elements of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) and other relevant international standards. All judicial and administrative corporal punishments should be abolished. The prohibition of torture and other ill-treatment and the essential safeguards for their prevention must not be suspended under any circumstances, including states of war or other public emergency.

6. Investigate
All complaints and reports of torture or other ill-treatment should be promptly, impartially and effectively investigated by a body independent of the alleged perpetrators. The scope, methods and findings of such investigations should be made public. Officials suspected of committing torture or other ill-treatment should be suspended from active duty during the investigation. Complainants, witnesses and others at risk should be protected from intimidation and reprisals.

7. Prosecute
Those responsible for torture or other ill-treatment should be brought to justice. This principle applies wherever those suspected of these crimes happen to be, whatever their nationality or position, regardless of where the crime was committed and the nationality of the victims, and no matter how much time has elapsed since the commission of the crime. Governments should exercise universal jurisdiction over those suspected of these crimes, extradite them, or surrender them to an international criminal court, and cooperate in such criminal proceedings. Trials should be fair. An order from a superior officer should never be accepted as a justification for torture or ill-treatment.

8. No use of statements extracted under torture or other ill-treatment
Governments should ensure that statements and other evidence obtained through torture or other ill-treatment may not be invoked in any proceedings, except against a person accused of torture or other ill-treatment.

9. Provide effective training
It should be made clear during the training of all officials involved in the custody, interrogation or medical care of prisoners that torture and other ill-treatment are criminal acts. Officials should be instructed that they have the right and duty to refuse to obey any order to torture or carry out other ill-treatment.

10. Provide reparation
Victims of torture or other ill-treatment and their dependants should be entitled to obtain prompt reparation from the state including restitution, fair and adequate financial compensation and appropriate medical care and rehabilitation.

11. Ratify international treaties
All governments should ratify without reservations international treaties containing safeguards against torture and other ill-treatment, including the International Covenant on Civil and Political Rights and its first Optional Protocol; and the UN Convention against Torture, with declarations providing for individual and inter-state complaints, and its Optional Protocol. Governments should comply with the recommendations of international bodies and experts on the prevention of torture and other ill-treatment.

12. Exercise international responsibility
Governments should use all available channels to intercede with the governments of countries where torture or other ill-treatment are reported. They should ensure that transfers of training and equipment for military, security or police use do not facilitate torture or other ill-treatment. Governments must not forcibly return or transfer a person to a country where he or she would be at risk of torture or other ill-treatment.
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This 12-point program sets out measures to prevent the torture and other ill-treatment of people who are in governmental custody or otherwise in the hands of agents of the state. It was first adopted by Amnesty International in 1984, revised in October 2000 and again in April 2005. Amnesty International holds governments to their international obligations to prevent and punish torture and other ill-treatment, whether committed by agents of the state or by other individuals. Amnesty International also opposes torture and other ill-treatment by armed political groups.

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