Fifteen Eighty Four

The prohibition of torture is a peremptory norm of international law, while the prohibition of other ill-treatment is at least of a customary law nature. However, although this is clear, the precise parameters of these prohibitions continue to be the subject of some disagreement. The patchy definition of torture in domestic legislation—in fewer than eighty States is the definition of torture close to that outlined in Article 1(1) of the 1984 Convention against Torture—adds to the lack of clarity.

Sir Nigel Rodley’s masterful work, The Treatment of Prisoners under International Law, was the reference work in this area for many years. It articulated clearly how the prohibitions were to be interpreted using precise legal reasoning and the knowledge he had accrued during his decades of experience as both practitioner and academic. His last edition of the book in 2009, written with the assistance of Matt Pollard, maintained this tradition. His sad passing in 2017 deprived us of the possibility of a new volume, leaving a void in scholarship.

The practice of torture continues unabated, however, as events in Syria and Ukraine, among many other countries, have tragically demonstrated. Yet scattered prosecutions and a growing tendency to use universal jurisdiction to hold the perpetrators to account wherever they may be offer the promise of at least some respite. The first trial on State torture in Syria thus opened in Germany in 2020 based on universal jurisdiction. The defendants were two former officials of President al-Assad’s security apparatus – both were convicted at the end of a fair trial, which they denied to their victims. One Syrian man who was tortured in the al-Khatib detention facility in Damascus, a jail known as ‘Hell on Earth’, declared: ‘This process in Germany gives hope, even if everything takes a long time and nothing happens tomorrow, or even the day after tomorrow. The fact that it continues at all gives us as survivors hope for justice.’

There are also individual acts of incredible courage and defiance that merit mention. Every five days or so, Wassim Mukdad would be taken from the tiny cell he shared with more than eighty other Syrian men and fitted with a blindfold. After being marched into a room, Mr Mukdad would lie on a table and assume the position: on his stomach, legs upward, prepared for the strikes. But he always tucked his hands underneath his chest. He said that no one, not even Bashar al-Assad himself, would take away the sense of self his hands represent. ‘I am a musician, but I didn’t tell them so. I told them I am a doctor, which is also true.’ He recalled. ‘I used to put my hands under my chest, to keep them from being hit. And by this, they didn’t know they could be hurting the most valuable part of my body.’

Wassim, who was first detained in 2011 and now lives in Germany, gave evidence to the trial of one of the perpetrators and returned to the court for the verdict. ‘For me, this is the first step in a very long way towards justice’, he told the BBC. But, he said, there were ‘many stories that have not been heard, either because they are still detained now, while we’re talking, they’re suffering torture and horrible situations in the detention centres. Or because they were murdered.’ Today, Wassim plays the Oud—the Arab lute—performing it across musical genres, such as tarab, dance, and medieval. He told the Office of the United Nations High Commissioner for Human Rights: ‘Mine was an act of defiance, resistance. I did it for myself but also for the world, so it would know of the atrocities committed by the regime.’