Although which demonstrate how playing with the words

Although the legal prohibition of the international crime of torture seems to be absolute, it becomes difficult to accept that its definition in law has been used merely as a tool to escape its aggravated nature and the consequences which follow on the reputation of a country such as the U.K. in the eyes of the world. This essay will focus its discussion on two major cases concerning the U.K and the crime of torture namely, R v Zardad and the case of Baha Mousa which demonstrate how playing with the words can affect the ‘requirements’ needed in order to classify and be prosecuted under the crime of torture. It will start by presenting the legal framework of the crime of torture internationally and in the U.K. and then will move on to the above mentioned cases associated with the critique over the decisions made and finally with reference to films.Article 3 of the ECHR 1950 offers a claim for protection against torture however, strong grounds have to be shown that if returned  individuals would face a real risk of being subject to torture or degrading treatment or punishment.  This article does not offer the definition of torture and this is why it is necessary to refer to CAT 1984 in order to understand how torture is defined within the legal framework. Article 1 of the Convention defines torture as any act by which severe pain and suffering, whether physical or mental, is inflicted upon an individual with intention to obtain information by a public official or someone acting in official capacity. As a result of the ratification the U.K. made torture a specific criminal offense for the first time in English law. The 1975 version of the Convention defined torture differently from the way ECHR did at the time because it placed greater weight on the intention of the individual rather than the level of suffering. The Refugee Convention 1951 on the other hand, does not single out torture although claims can be made for such treatment. Nonetheless, the standard of proof is one of ‘reasonable likelihood’ yet, this is not what occurs in practice. For people claiming protection on grounds of torture the crucial issue is not the law but the evidence. To make a persuasive claim the applicants have to show why would they be tortured, who would torture them and why they cannot seek protection from the state or move elsewhere in the country.  The U.K. has successfully achieved that the principle of ‘non-refoulement’ aka that individuals should not be returned to a country where they would face mistreatment should be limited to ‘substantial’ rather than ‘reasonable’ grounds only. T. Kelly in This Side of Silence offers an excellent example of the role of the evidence and credibility under which many claims against torture fail. Ali Khalili, Iranian national, claims that whilst in Iran, he was beaten, blindfolded, handcuffed for a week, hung from the ceiling, hit, wrapped until pre-suffocating and punched in the head till he bled, by Ettelaat, the Iranian intelligence service before managing to escape to the U.K. His claim failed for not being credible and latter appealed on Art.3 on the prohibition of torture which failed again. This leads to a crucial question of this essay, is the standard of evidence required to succeed in a torture claim so high that it prevents claimants such as Khalil for their voice to be heard? It was only towards the end of the 20th century that torture became a specific field of clinical expertise. An important distinction between legal and clinical views on causation is that clinicians consider that what is known is subject to review whereas lawyers seek for more definitive views to result in definitive decisions. This clinical uncertainty has to be held against forms of certainty required by judges when writing a medicolegal report. There are two issues which come about on these reports: firstly, the extent to which a clinical opinion can come to conclude a certain injury and secondly, whether the causes of these injuries can amount to torture. It is highly important to note that ‘many specific forms of torture do not leave documentable traces’. OHCHR goes further to maintain that the absence of physical evidence should not suggest that torture has not occurred as these acts of violence usually do not leave marks or permanent scars. The Istanbul Protocol adopted by the courts is an attempt through which injuries could be linked to specific causes. It is construed within medico- legal reports and consists of five levels from Not consistent to Typical. A great example to demonstrate how this works is by looking at the report on Mehdi Rustami . He was an Iranian national who claimed to have been tortured and after being examined by the clinician his report was concluded as  Highly Consistent: ‘ the scars are most irregular as would be expected when skin is dragged across a stone surface. Another possible cause might be an injury sustained while working outdoors and kneeling on the ground. However, Mr. Rostami’s occupation had been sedentary and he has lived in an urban area most of his life so I think this explanation less likely’. Nonetheless, the clinician noted that a skilled torturer can leave no marks. Istanbul Protocol explains that individual scars and injuries have to be considered in an overall evaluation by the clinician. However, taking into account the way the Protocol is being used it could be said that it only adds  uncertainty in these cases. Even though, torture has to be defined by judges, clinicians still include the word in their reports to confirm the relationship between the account given by the claimant and the physical scars or psychological symptoms.  It would serve the aim of certainty if I was to compare the case of Mr. Rostami with Thirty Dark Zero feature film and then move on onto an important comparison of the cases mentioned in the introduction of this essay.This is a film directed and produced by Kathryn Bigelow in which the main character is Jessica Chastain in the role of Maya, a central figure in the operation aiming  to find Osama Bin Laden, the central figure in Al-Qaeda. Although she cannot morally bear the abuse in the form of torture made to the detaineed she agrees in that it is part of the interrogation and the ‘best’ way of collecting information. The characters are the narrators of the film and especially Maya. As an audience we are placed along her journey of determination to find Osama Bin Laden. Cameras are placed in such a position which keeps the film alive or in a subconscious way keeping Maya alive. In a review made by The Guardian, she is described as ‘convincing and determined’. ‘Her combination of persistence, intuition, psychological insight and intellectual brilliance is rewarded when she finds vital links that lead her to OBL’s Pakistani fastness’ . An important aspect for the purpose of this essay is the presentation of torture in this film.  In another critique The Guardian assessment of torture seems to be controversial with the director’s point of view. Tunzelmann A. writes that the use of the ‘enhanced interrogation techniques’ used by the CIA such are waterboarding, sleep deprivation, and forcing detainees into tiny boxes, may not be accurate in terms of their context in the film. Furthermore, he writes that torture is not part of the history in finding Osama Bin Laden. However, Bigelow K. in an interview with Travers P. in ABC News states that : ” torture that’s part of the story and to have eliminated it would have meant we would have been whitewashing that story. That’s part of the story as our research shows’. By a careful assessment it can be noted these techniques would hardly leave any marks, yet they constitute torture in the eyes of many of us, the senators who rapidly critiqued the truthfulness of the film by saying that it was not what happened in reality and of the survivors. They were used by people with official capacity, with the intention of inflicting pain and suffering to collect information about the whereabouts of Osama Bin Laden. The shift of these acts and border line between constituting torture or merely ill-treatment is so thin especially when it comes down to prosecuting people of your own country for such treatment. The law is ‘conducted’ as such to place greater weight on people of other places like Afghanistan or Iraq to be accused of torture and British citizens be responsible for less severe crimes.In the case of R v Zardad, Faryadi Sarwor Zardad, Afghan national, was found guilty of torture crimes which had happened in Afghanistan during the mid-1990s and the first to be prosecuted in the U.K. The basis of his persecution was that torture was so ‘heinous’ as a crime that perpetrators should be prosecuted no matter who they violate and where they are which leads to the extension of English criminal law jurisdiction outside borders. Zardad was being considered under the CJA 1988 and thus three requirements had to be met for him ‘to be fit’ under torture. Firstly, it must be intended to cause pain and suffering and this was the subject matter running through the witness testimonies. They witnessed that Zardad used such great violence as many of the victims had died. Secondly, it had to be carried out by a public official. There was a debate whether Zardad could classify as a commander of his military and thus hold such public authority underlined by the existence of two checkpoints which the latter were denied by Zardad to have ever existed. Thirdly, there has to be proven intent in causing pain and suffering. This constitutes the mens rea of a criminal act. His defense was that there was no torture and even if there was he was not responsible for it. However, under the Act, intent does not comprise only of direct intent in causing pain and suffering, assisting or stimulating these acts does too. Zardad was charged with conspiracy for torture to be carried out. One of the lawyers told Kelly T. that the real charge was mass murder however, they could not charge him with that as it was not included in their jurisdiction. There were only a restricted number of offenses that Zardad could be charged with namely, torture, hostage taking, both or none. He was convicted of 20 years in prison and deportation afterwards. The U.K. was applauded around the world for the decision reached as convicting the man who tortured the Afghan nationals. The question therefore arises as, is this the same standard a British national would be prosecuted?In the case of British troops in Iraq, concerns arose after a detainee named Baha Mousa died on the their hands. Donald Payne and Jorge Mendonca were prosecuted  under the ICCA 2001 for his death and the ‘ill-treatment’ of the rest of the detainees. They were charged of assault, inhuman treatment and negligence. The detainees were kicked, punched, hooded, maintained in stress positions for long periods of time and deprived of sleep in temperatures arising 60 degrees. They were denied of food and threatened for their life. Yet, apparently in the eyes of the court these acts did not constitute torture as they found Payne guilty of inhuman treatment and manslaughter for the death of Mousa, the first British soldier to be convicted of war crimes. Mendonca was found guilty of negligence. The ICCA was considered to be the suitable legislation for this case. It is very important to note that under the Act the difference between inhuman treatment and torture is intent. The army lawyers maintained Payne was inflicting pain for personal enjoyment. However, had the soldiers been prosecuted under the CJA there was no requirement of intent other than it be deliberate. ‘Pain inflicted for enjoyment can still be torture’. The conviction of the above soldiers was considered a ‘victory’ for the death of Baha Mousa who died as a result of 93 injuries inflicted by British Soldier over a period of 36 hours. It represents an important illustration for accountability for war crimes at national level. The techniques used in conditioning  the prisoners constitute in themselves torture. According to Rasiah N., ICC confirms that the distinction between inhuman treatment and torture is that of intent. Torture requires pain to be inflicted for purposes of obtaining information. He adds that at Camp Breadbasket, conditioning was part of the interrogation. Another issue is the photographs taken of Mousa before he died which raises considerations. ‘His image continues to produce an official search for accountability in relation to his death and more widely legal and political factors which contributed to the abuse, death and torture of Iraqi detainees.’ The key point in the representation of violence in those images is the way they should be characterised. Soldiers maintained that it was the ‘standard operating procedure’ taught in the training. However, the interpretation of those images is shaped by legal definition. The Treasury Solicitors while accusing the lawyers of the victim’s family for blurring the distinction between conditioning and conventional violence, maintain that torture is the worst of cruelty at the hands of the state. ‘The treatment of the detainees over the 36 hour period did amount to torture in the sense of constituting severe pain and suffering intentionally carried out by state agents for the purposes of obtaining information and inflicting punishment’. In a report made for The Guardian Taylor R. and Bowcott O. criticise British soldiers for acting ‘cowardly and violent’. Gage, a retired appeal court judge, stated that the acts were of serious and great violence which represent a serious breach by members of 1QLR.’The standard operating procedure’ noted in the Baha Mousa case is exemplified in The Standard Operating Procedure documentary of Errol Morris. This documentary demonstrates through pictures, videos and interviews from former officers the degrading treatment, ‘aggravated interrogation techniques’ and infliction of severe pain upon the Iraqi detainees in Abu Ghraib.  Bradshaw P. in a review made for The Guardian writes that the tricks that the directors uses in the film are intrusive. He continues to write that shifting the talking heads in different positions in the frame is maybe to offer different points of view. The emotional music from Danny Elfman  is absorbed within the talk. A feature of Morris’s style is to never challenge his interviewees directly but rather letting them talk and letting us decide and this shows in this documentary. ‘This effect encourages the viewer to mistake direct eye contact for direct access to the truth’.The narration is given through the officers’ testimonies who talk us through the story and what really happened back in 2003. They recognize the inhuman treatment inflicted upon the detainees but fail to take any responsibility from indirectly participating in that horror or at least to be able to show some remorse for what had happened. Roman Krol a Military Intelligence Interrogator states in the documentary that ‘this torturing was not about interrogating…just to show people what would happen to them if they break the rules’. This does not mean that torture had not been inflicted. The detainees were handcuffed, held in stress positions for hours, hooded, poured water on them, kicked and beaten, a teenager was raped and they were sexually humiliated. One of the detainees as shown in the pictures died as a result of continuous torture. Yet, the issue remains whether these constituted torture or merely an ill-treatment for which some other officers were convicted.