Customary International Law and Torture: The Case of India

I. INTRODUCTION This paper examines the contradiction between statements from well-respected sources regarding customary international law as it bears on torture and the actual behavior of states as to torture. It does so by focusing on one state, India. The purpose of the paper is both to make clear the conflict between state behavior and rules that are supposed to be law and to reflect on some of the implications of and conundrums raised by this situation. This paper will discuss the claim that prohibitions against torture and violations of human rights are a part of customary international law, suggesting that they are not, nor should they be. II. THE VIEWS OF THE AUTHORITIES In his inaugural report as the first Special Rapporteur on Torture for the UN Commission on Human Rights ("Commission") Pieter Kooijmans wrote: Torture is now absolutely and without any reservation prohibited under international law whether in time of peace or of war. . . . (The prohibition of torture can be considered to belong to the rules of jus cogens. If ever a phenomenon was outlawed unreservedly and unequivocally it is torture .... If there was some disagreement [in the General Assembly] in respect to (the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment], it had to do with the methods of control and implementation. There was no disagreement whatsoever on the fact that torture is absolutely forbidden. Clearly, Kooijmans saw torture as a violation of international law. He did not, however, purport to ground this conclusion on the language of any particular international agreement. Rather, he referred without specificity to various international instruments, to a draft document from the International Law Commission, to a declaration (necessarily non-binding) by the General Assembly, and to a treaty to which even to this day-fourteen years after Kooijmans wrote-slightly more than one third of the members of the United Nations are not parties. Conspicuous by its absence was any reference to the actual practice of states regarding torture.3 Nor is Kooijmans' approach idiosyncratic. The American Law Institute's Restatement (Third) of the Foreign Relations Law of the United States ("Restatement") also labels torture as a violation of customary international law, citing in support the language of certain treaties and international instruments, provisions of the domestic laws of certain states, and international and domestic court decisions.5 Since Kooijmans's legal conclusions were not grounded on any particular treaty language, presumably his statement reflected his view of non-treaty international law, that is, customary international law. Certainly that is true of the Restatement. Customary international law, however, is defined as the general practice of states accepted as law.6 It is therefore striking that both of these arguments for the illegality of torture depend entirely on references to what might be called rhetorical evidence of law rather than on a demonstration of the actual behavior of states with regard to torture. In fact, it would not be accurate to assert that it is the general practice of states to refrain from torture. On the contrary, Amnesty International has received reports indicating that, as of the year 2000, torture is "widespread or persistent" in approximately seventy states.7 Well-respected authorities thus insist that the rule regarding torture established by international law is different from that which one would infer from state practice. This paper explores some of the difficulties raised by that approach through a focus on India. III. INDIA AND TORTURE: THE SITUATION ON THE GROUND The most recent report of the current Special Rapporteur on Torture for the Commission on Human Rights includes the following paragraph relating to India: By letter dated 19 November 1999, the Special Rapporteur advised the Government that he had received information alleging routine torture in detention facilities throughout the country. …