Chapter 2: Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment

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2.1 Introduction

There can be little doubt that instances of torture, and other cruel, inhuman and degrading treatment or punishment, continue to occur around the world.  However the practice of torture is most widespread, severe and blatant, in those States which are under an oppressive military regime, such as exists in Burma.

International law provides clear prohibitions on the use of torture, as well as other, potentially less severe, forms of cruel, inhuman or degrading treatment.  Article 5 of the Universal Declaration of Human Rights (UDHR) provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”  This prohibition was repeated in the 1966 International Covenant on Civil and Political Rights (ICCPR) Article 7, in much the same terms.  However, neither the UDHR nor the ICCPR provided any definition of “torture, cruel, inhuman or degrading treatment”.  In 1984 the UN adopted the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  This convention went some way to providing a definition of torture. Article 1(1) defines torture as:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

When a person is arrested on suspicion of political dissent they are often hooded, handcuffed and brought to one of Burma’s many interrogation centres where they are questioned and often brutally tortured.  [Photo: AAPPB]

Burma is a signatory to the UDHR, however the State has neither ratified the ICCPR nor the 1984 CAT.   Nevertheless, torture and other cruel, inhuman and degrading treatment or punishment, when practiced as state policy, is in violation of customary international law. The practice of torture is widely regarded as extreme contempt/disdain of the human being. Protection from torture is hence considered a fundamental human right, and has as such obtained the status of Jus Cogens in international human rights law.  Thus despite not being a party to either the ICCPR or CAT, Burma is bound by international law and liable for any incidents of torture or other cruel, inhuman or degrading treatment within its borders which are inflicted by or with the consent or acquiescence of a public official.

It also seems apparent that the many incidents of torture inflicted by the SPDC are in violation of Burma’s domestic legislation.  Although not explicitly prohibiting ‘torture’, the 1861 Burmese Penal Code (1957 edition) Articles 330 and 331 prohibits “hurt” and “grievous hurt” during interrogation for the purposes of obtaining a confession or information. Articles 323 and 325 also prohibit the “hurt” or “grievous hurt” of detainees generally. In addition to these Articles regarding detainees, Article 166 prohibits public servants from unlawfully injuring anyone while discharging their duties.

Despite these legal prohibitions, the use of torture throughout Burma remains widespread.  Reports from 2007 reveal almost daily incidents of torture or other cruel, inhuman and degrading treatment against the Burmese population by various branches of the SPDC military regime. Torture is particularly being inflicted on persons who have been detained on suspicion of anti-government activities, including political prisoners and villagers living in areas where there is ongoing armed conflict. 

As such, the pro-democracy ‘Saffron revolution’ of 2007 brought a brutal response from the junta, and in the wake of the demonstrations many more incidents of torture were reported.  These gross human rights violations were inflicted on all types of supporters of the pro-democracy movement, even on Buddhist monks. Despite their revered status in Burmese society, monks were subject to cruel, inhuman and degrading treatment both on the streets and in detention. (For more information, see Chapter 11: The Saffron Revolution – The 2007 Pro-Democracy Movement).

A bird's eye view of Insein Prison.  [Photo: Nic Dunlop]