Tortura no contexto da guerra contra o terrorismo

4 de Abril, 2008

I would like to welcome you all to the European Parliament, where I'm hosting this Conference on Reporting on torture in the context of the war on terrorism, organised by the International Rehabilitation Council for Torture Victims (IRCT) in collaboration with the Fédération Internationale des Ligues des Droits de l'Homme (FIDH). We'll have a half day of presentations and debate on the changing nature of torture in democratic societies and the challenges posed to journalists reporting on human rights violations.


 It is very important the role that you - journalists - might have in this context and how essential is the existence of a complicity between the journalists and this Parliament



1. A positive complicity between the Parliament and Journalists


Without putting in stake the role that each of them should have (it can happen that) sometimes the final goal is exactly the same. In this concrete case, it was to find out the real true behind all rumours and for that was necessary to take advantage of all possible synergies.



2. I had to make use of the pressure of the public opinion


I had to make use of the media in order to have the "legal" power that in fact I didn't really own. Actually, I was not the Chairman of an Inquiry Committee which has the power to request the presence of someone in order to hear that person's testimony that should have the same rights and obligations as if he/she would have testifying before a court.


In fact, I was the Chairman of a Temporary Committee (legally we could not have an Inquiry Committee in areas outside the community law) which doesn't have the same powers. The only thing that we could do was to invite that person and to count with the power of the media and to rely on "blame and shame" strategy. We thought this would give us some positive answers from them, once they would do everything to avoid to be mentioned by the public opinion as non-cooperative or even an obstacle to the inquiry.


The media were essential not only to ensure a good level of awareness, but also to make pressure on individuals and institutions in order to them to cooperate.



3. Changing the nature of torture


The International law is growing weaker, perhaps with a parallel enfeeblement of the United Nations role, which in reality is being put in stake. There are several pertinent International Law instruments on this issue, such as the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the International Covenant on Civil and Political Rights and its Protocol nº 1 (1966),  the Geneva Conventions on armed conflicts (1949) and the Convention relating to the Status of Refugees (1951). Moreover, EU Member States are also bound by conventions adopted within the framework of the Council of Europe, in particular the European Convention on Human Rights (1950) and the European Convention for the Prevention of Torture (1987).


Nevertheless, the level of awareness of these international conventions is very low and several times (as we all know) they are not even respected. In terms of monitoring mechanisms effectiveness, it can be seen that in the framework of the United Nations, the lack of a legal body empowered by the necessity of hearing individual complaints and other charges in cases of violations, appears to limit the Convention's result in fighting Torture and its prohibition found in the international Covenant on Civil and Political Rights.


There are also opinions putting in question if these are the most adequate legal instruments to fight against the new forms of terrorism. My position is clear: if the present legislation doesn't give the necessary answers to these new demands, than we have to change it: rethink, debate and approve new laws. But, until than, we have to respect the existing laws. No democratic civilization can be built over the violation of the law. Anyway I cannot support any laws that intend to fight against terrorism that don't respect human rights and fundamental freedoms.



4. Its frightening the growing increase of the grey area


Probably like most of you, I always lived with the idea that a black or white reaction to fundamental rights questions should exist. To the question if torture is acceptable or not - there was never been place for grey areas - the answer was undoubtedly a negative one. From the moment that Alberto Gonzalez (former American Attorney General) made a restrictive legal interpretation, of what was considered as torture for the United States Administration, we entered into a swampy area. What used to be so simple became very complicated. According to George Bush's Administration there are interrogatories made with the use of force that cannot be considered as torture. It seems, they can be considered as an almost-torture, almost-infliction of physical and moral harm to human beings and almost- degrading treatment. When we face the situation where "waterboarding" is not considered as torture in the United States, but it is, undoubtedly, in the framework of the European Union, than I have one more reason to feel proud of being European!


5. The aims don't justify the means


Even the most noble aim doesn't justify the use of means that might put in risk or even violate the basic principles in which our societies are based on. One of the main principles in the European legislation is the principle of proportionality - any actions taken to reinforce security must be proportional to the risk that might bring in terms of violating any fundamental rights.


Even if we could accept the idea that "the aims justify the means", they should recognise that those means are not useful. As it was explained, for instance by Senator McCain at the American Senate and by the ex-CIA' high official - Vincent Cannistraro, when we met in Washington, the use of torture is not an effective measure. In their opinion, when an individual is subject to torture in most cases he/she never says the true, but instead of that he/she tries to say what he/she thinks that the person that is inflicting the pain wants to hear, in order to put an end to the suffering.


6. Out-sourcing of torture


Today is clear that out-sourcing of torture existed, in violation of international legislation. The Convention against torture prohibits the use of any information gotten through torture. That kind of information cannot be used in Court, except in order to prove that torture has been inflicted and to held the perpetrator criminally responsible. Besides this exception, no other use is possible.

Thus, like the old British ambassador - Murray - revealed to my Committee, Sir Michael Wood (legal adviser of the Foreign Affairs Ministry) has subscribed a shameful legal opinion stating that the British authorities can receive and make use of any information obtained through the use of torture, as long as they were not responsible by inflicting or instigating that treatment. To accept this interpretation is to destroy the efficiency of the United Nations Convention, or the European Convention as well. Moreover, there are serious allegations that secret agents from European countries have been present or even took part in this kind of interrogatories made in CIA's secret detention centres.



7. Diplomatic guarantees are not accepted


It is neither acceptable the argument of Mrs. Condolezza Rice that some "renditions" only have been approved after having received diplomatic guarantees that torture would not be used. Besides the fact, that recent experiences have shown that diplomatic guarantees are not reliable, in this case they are absurd, because if we can accept diplomatic guarantees regarding death penalty (namely the guarantee from the country where the prisoner is supposed to be transferred to, that the maximum penalty - death - is not going to be applied), in this case to guarantee that the prisoner to be transferred shall not be subject to any kind of torture is the same as a shameless confession that this country imposes this kind of treatments in other prisoners. Than, it is clear that this country incurs in obvious violation of the Convention and, in any circumstances, should be considered as a possibility to have that rendition.


8. Putting pressure on Member States


In February 2007, a resolution of the European Parliament not only underlined real facts but also approved a large set of recommendations that made more difficult these events to happen again in the future. Now, it is our responsibility to evaluate how other European Institutions and Member States' Governments have implemented these recommendations. Therefore, Civil Liberties, Justice and Home Affairs Commission has decided to constitute a working group coordinated by myself and MEP Claudio Fava, with the purpose of attaining conclusions on this evaluation.


I believe that are questions that must be answered by the European Commission, with whom we have had a fruitful cooperation. There are also some questions to be fulfilled by the European Council, from which, at a certain moment, we have noticed lack of cooperation and even obstruction, facts that we pointed out and criticized. Nonetheless, I have no doubts that most relevant answers must come from the Member States and that's why we must put pressure on them.