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Re-defining torture at the UN

Linda MacDonald and Jeanne Sarson present brief to UN. Image: Bill Casey, Member of Parliament for Cumberland—Colchester, Nova Scotia

When California authorities raided David and Louise Turpin's family property last January, they found thirteen stunted, emaciated children, some shackled to their beds, living in filthy conditions. "The parents are charged with torture and child endangerment," CNN reported.

"California is a state that has a torture law," noted anti-torture crusader Linda MacDonald in her Facebook post, meaning that if convicted, the Turpin parents face extra penalties beyond those provided for, say, unlawful confinement.

Linda and her campaign partner Jeanne Sarson have been lobbying for recognition of non-state torture (NST) since 1993, five years after the UN Committee on Torture began its work in 1988.

In March, their paper on NST (with Jackie Jones) was part of a groundbreaking publication, Gender and Torture. With papers by more than 25 experts, the anthology expands on former United Nations Special Rapporteur on Torture Juan E. Mendez's 2016 report on gender perspectives on torture -- which turned existing law on its head by suggesting states should look at the act committed, rather than who committed the act and why. 

"International human rights law, traditionally, has not protected women from the harms they have suffered as a result of being women," wrote the anthology's editor, Macarena Sáez, of the Center for Human Rights & Humanitarian Law at the American University Washington College of Law. In response, feminist analysis rewrites the definition of "torture" so it focuses on the harms inflicted rather than on the tormentor's purposes, usually expected to be interrogation.

Currently, Article 1 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment lists the four elements of torture, and they are mostly oriented towards intelligence or police maltreatment of male prisoners of war. The last point, State involvement, is a key point for discussion:

  1. Severe pain or suffering, mental or physical;
  2. Intentionally inflicted;
  3. For purposes including punishment, coercion, to threaten, or for any reason based on discrimination of any kind;
  4. Carried out with state involvement or acquiescence of a representative of the State.  

On the other hand, MacDonald and Sarson's presentation is part of continuing pressure facing the UN Committee on Torture to recognize that sexualized violence is also a form of torture -- violent forms of control that could never be inflicted on men, such as repeated gang rapes during war, or requiring incarcerated prisoners to wear shackles as they are giving birth.  

MacDonald and Sarson called for "A new Convention to Eliminate All Forms of Violence against Women and Girls (CEVAWG) that names  and addresses non-State torture, as well as other forms of violence." For instance, women are more likely than men to be subjected to frequent sadistic attacks at home by their intimate partners -- and to be murdered by them.

As well, some of the techniques used in human trafficking could be considered torture, such as unlawful confinement or drugging without consent, not to mention physical abuse. The Human Trafficking Center reports that between 20 and 37 million persons are trafficked each year. Trafficking generates revenues of $150 billion in annual illegal profits, with two-thirds coming from sexual exploitation -- mainly of women.

In the Foreword to Gender and Torture, Dr. Dubravka Šimonović noted that, "Women who are active in political and public spheres are often the targets of violence. As they exercise their citizenship, these women confront verbal abuse, threats, sexual harassment, rape, and in extreme cases are murdered for their commitment to political and public life..." She called for every nation to create a "Femicide Watch" bureau, to collect statistics and research ways to decrease violent sexist incidents that lead to men killing women.

Šimonović also wrote,

"Cases of rape, domestic violence, harmful practices, forced sterilization, forced abortion, forced pregnancy, criminalization of abortion, denial or delay of safe abortion and/or post-abortion care, forced continuation of pregnancy, and abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are all forms of gender-based violence that, according to CEDAW General recommendation No. 35, may amount, depending on the circumstances, to torture or cruel, inhuman or degrading treatment..."

Finally, she said, consider customs like "honour killings." Some women face lifelong mutilation or death because of cultural customs such as Female Genital Mutilation, (which can cause difficulty with defecating and may cause major complications with childbirth.)  

"Connecting violence against women with torture, a rights violation that is more uniformly rejected," she suggested, "will help to eradicate violence against women across the health, law enforcement, social services and other sectors within which it permeates."  

Justice Minister Jody Raybould-Wilson has declined to support any changes to the Convention on Torture. She wrote to MacDonald, "[T]he existing specific offence of torture is meant to deter the infliction of pain and suffering by persons acting on behalf of a state for state purposes such as obtaining information or a confession. . . . "

Without assuming guilt in any specific case, let's consider how families such as David and Louise Turpins meet the criteria for torture. Inflict severe mental and physical pain? Their children were starved, isolated, and harshly punished. Intent? Their children, some of whom were adults, were completely under their control. Purpose? Money that did not nurture the children, went to maintaining their own lifestyle.  

The only element missing is the State, in its most formal manifestation, as government. Mind you, it's not hard to read "State acquiescence" behind a system that reinforces (white) male privileges and is sustained in part by high femicide rates, and permitting practices like child brides, and birth control restrictions.

Meanwhile, as Jeanne Sarson said on a panel at the launch of Gender and Torture, "Women and girls are not considered to own the human right of Article 5 of the Universal Declaration of Human Rights that says -- no one shall be subjected to torture."      

Gender and Torture is available as a free download.

Image: Bill Casey, Member of Parliament, Cumberland—Colchester, Nova Scotia

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