Editor's Note: Marie Wilmet is a research intern in Public
International Law at the Asser Institute. She recently graduated from Leiden
University’s LL.M. in Public International Law. Her main fields of interest
include international criminal law, humanitarian law and human rights law as
well as counterterrorism.
Alliance for Torture-Free Trade was launched
on 18 September 2017, at the 72nd Session of the United Nations (UN)
General Assembly, by a common initiative of Argentina, the European Union (EU)
and Mongolia. It aims
at ending the trade in goods used to carry out the death penalty and torture.
Indeed, even though torture is unlawful under public international law, these
goods are currently available on the open market across the globe. By banning
such tools from global trade, the Alliance hopes to reduce the possible human
rights violations by complicating the perpetrators’ acquisition of the means to
execute and torture people.
initiative is part of a broader agenda both at the UN and EU level. It falls
under the broader umbrella of UN projects such as the UN Guiding
Principles for Business and Human Rights or the UN Global
Compact. Moreover, the EU has tried in the recent years
to strengthen the rule of law by conducting policies where trade
and values are more interrelated. As the EU
Trade Commissioner Cecilia Malmström stated,
“human rights cannot be treated as an afterthought when it comes to trade”.
blog will first retrace the origins of the Alliance by outlining the current
factual and legal framework surrounding torture, the death penalty and related
trade. Then, the Alliance and its ambitions will be analysed, along with the
chances of its effective implementation.
Torture and capital punishment under international law, state of
legality and reality?
use of torture
is prohibited by Article 5 of the Universal
Declaration of Human Rights and by Article 7 of the International
Covenant on Civil and Political Rights (ICCPR).
against Torture and Other Cruel, Inhuman or Degrading Treatment,
outlawing the practice of torture, has been ratified by 158 countries and most
regional human rights treaties equally proscribe it. The prohibition of torture
under international law is so established that it became a peremptory
norm of international law, meaning that it is
absolute and applies to all states, in all circumstances.
contrast, the death penalty is not illegal under international law. Indeed,
Article 6 of the ICCPR permits its use under certain circumstances. Capital
punishment can be applied following a judgment rendered by a Court, for the
most serious crimes and in accordance with the law. The provision nevertheless
provides that –“nothing in this article shall be invoked to delay or to prevent
the abolition of capital punishment”–. The Second
Optional Protocol to the ICCPR, binding on
its 85 state parties, prohibits capital punishment. There is a global trend to
abolish the death penalty, as was recognised by the adoption of several UN
General Assembly resolutions demanding
a moratorium on executions. The resolutions urged states to respect the UN
Economic and Social Council’s Safeguards
guaranteeing the protection of the rights of those facing the death penalty,
as well as to restrict the use of offences punishable by death.
the complete prohibition of torture and the partial prohibition of the death
penalty, the reality is alarming. According to Amnesty
International, torture is still used in 140
states, either in isolated cases or systematically. In a 2014
report, the NGO found that 79 state parties to the
Convention against Torture were still practising it. The death penalty is still
in 25 countries and an estimate of 20,292 people are awaiting execution
worldwide. This figure does not include the application of capital punishment
in China, as the country does not publish official data. Available information
that thousands of people are executed in the country every year. There is
therefore a clear discrepancy between the legal framework surrounding the use
of torture and death penalty and the reality in practice.
Why? A macabre but booming business, barely regulated…
to Amnesty International and the Omega Research Foundation the discrepancy can
be explained by the international trade in torture goods which is currently out
of control. The goods
of torture extend from mechanical restrain
devices, to direct contact electric shock weapons, body worn electric shock
devices, riot control agents, kinetic impact devices as well as pharmaceutical
drugs used in lethal injections. They can be separated in two categories: the
inherently inhumane equipment and the tools which, if used in conformity with
human rights obligations, can have a legitimate use (such as in law
lack of trade regulations on such goods fuels a depressing reality where
torture and execution tools are freely traded, transited and marketed around
the globe. A report
by the Institute for Security Studies (ISS) found for example that Force
Products, a South African company was manufacturing a range of prohibited electric
shock equipment. The company was then trading it with companies in Africa,
America, Asia and Europe, who were subsequently in charge of distributing the
equipment locally. Other companies such as Imperial Armour have exhibited the
abusive equipment at international trade exhibitions in the Middle East and North
Africa region and Europe. In light of those findings, the ISS and the Omega
Research Foundation call
for a prohibition on law-enforcement equipment that has
no other purpose than torture or degrading treatment.
present, no global binding legal instrument regulates the torture trade. The UN
General Assembly has called for a ban on the production and trade of torture
tools in resolutions 67/161
in respectively 2013 and 2016. The UN Special Rapporteur on Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment has repeatedly pushed
for the introduction of controls in that trade area.
the regional level, however, more initiatives have already been taken. The
African Union agreed in 2002 to prescribe, in the Robben
Island Guidelines, the –“use, production and trade of
equipment or substance designed to inflict torture and the abuse of any other
equipment or substance to these ends”–. The Guidelines, however, are not
binding on the member states and have only a supporting role in the interpretation
of the African Charter on Human and People’s Rights. The EU, on the other hand,
has established a unique binding system of multilateral trade controls to
outlaw the international trade in torture and capital punishment equipment.
The only example in the world of a binding system: the EU Council
Regulation 1236/2005 and following amendments
EU Council Regulation No.
its evolution through the 2011 and 2014 amendments culminating into Regulation No.
2016/2134, forms the most comprehensive trade control
regime on tools used for capital punishment and torture. Under EU law, regulations
are directly applicable in, and legally binding on, all the member states of the
Union. As such, it constitutes a unique example of a binding system regulating the
2005 Regulation banned the import and export of two types of torture goods: the
prohibited and the controlled goods. The first category of goods, subject to a
complete ban, are those which can only be used for torture or applying the
death penalty. The second category concerned goods that could be used for such
purposes, but which have been designed for other reasons, such as law
enforcement or medicinal use. Those goods were subject to trade control which
required a specific authorisation by national authorities on a case-by-case
basis. In 2011, the list of products covered by the Regulation was extended to
include an export
ban on drugs which could be used in lethal
injections, such as the anaesthetic sodium thiopenthal. In 2014, the European
the Commission Implementing Regulation No. 775/2014, which further expanded the
list of goods falling within the scope of the regulation. Tools deemed unsuitable
for use by law enforcement, for instance abusive restraint equipment, were also
included in the trade ban.
these changes, the 2005 regulation was highly
criticised for the legal loopholes it
contained and civil societies organisations highlighted several
issues with the trade control system. First, even if
the torture trade was forbidden in the EU, the equipment was nevertheless
promoted in arms trade fairs and exhibitions in France, Germany or the UK.
Second, companies in the Czech Republic, France, Germany, Poland and Slovenia
were promoting new goods, completely unfit for use by law enforcement agencies,
but which were not forbidden under the regulation. Third, there was a lack of
control on brokering services regarding such goods and on the transit of goods
within the Union. Indeed, the regulation did not expressly forbid the transit
of goods coming from non-EU countries to a destination in a third country,
leading to prohibited goods passing through EU ports and airports.
in 2016 the EU Parliament adopted
amendments to the 2005 regime in Regulation No. 2016/2134 in order to
strengthen the existing system. The new legislation bans the transit of
prohibited products within the EU, prohibits the display at EU fairs and forbids
general promotion of torture and capital punishment equipment. It also outlaws
the provision of brokering services, such as technical assistance for
installation, repair and maintenance of the prohibited equipment. Finally, the
2016 amendments introduces a fast-track procedure to add new goods on the list,
in order to face the technological evolution in the torture trade.
current system with its established modifications has yielded positive
results and has led to the decrease of the trade of
goods used for torture and capital punishment within the EU. The EU ban on
torture trade is part of its broader
commitment to advocate the global end of
torture and capital punishment in the framework of its Common Foreign and
Security Policy. Given the success of the EU ban, the EU Trade Commissioner
decided to take the initiative to the international fora.
The need for a global Alliance and the four step approach
The Alliance for Torture-Free Trade
by Argentina, the EU and Mongolia. Argentina has ratified
the ICCPR 2nd Optional Protocol in 2008 and has, ever since, been
very active internationally by mobilising support to abolish the death penalty
worldwide. It has, among others, drafted the 6th UN General Assembly
resolution on a moratorium on the use of the death penalty with Mongolia. The
the death penalty in 2015 and is leading by example in a region where torture
and executions are common practice. Together, they joined the EU around the
idea that trade is positive but that it has to be based on values.
Drawing from the effectiveness of
the EU ban, the three actors realised that such a global problem was calling
for a global response. Indeed, those who produce and trade torture goods are
constantly modifying their routes to circumvent domestic laws. The Alliance for
Torture-Free Trade was thus created and opened to any state who has ratified
the 2nd Protocol to the ICCPR. On 18 September 2017, 58
states signed the political declaration and joined the Alliance.
By signing the declaration,
states agree to follow a four-step approach in order to ban the torture trade.
First, the states consent to taking measures to control and restrict the
exports of these goods. Second, they commit themselves to provide the custom
authorities with the appropriate tools to fight those perpetrating the trade.
Third, the participating states agree to give assistance to countries in need
of help to set up and implement the laws banning the trade. Finally, the states
will exchange best practices for control and enforcement system. Additionally,
a platform will be created in order to share information, monitor trade flows,
and identify new objects appearing on the market.
The Alliance for Torture-Free Trade’s
is to first bring like-minded countries together by signing a political
commitment to banning the trade in goods that can be used for torture or
capital punishment. Then, it is aimed at fostering a global effort to help
local customs identify and track the torture trade transit. Eventually, the
ultimate goal of the Alliance is to see the creation of a legally binding treaty
under the auspices of the UN. In the absence of such a legally binding
commitment, however, one could wonder if the Alliance is currently more than
merely a token exercise.
The Alliance on Torture-Free Trade: a
token exercise or an ambitious promise?
political character of the Alliance and of the declaration can cast doubts on
its effective implementation and potential success. Indeed, its efficiency
heavily relies on the goodwill of the participating states. Even though the
commitments are not legally binding, several means have been identified to
ensure that individuals, companies and governments align with the Alliance in
the state concerned.
to Member of the European Parliament Marietje
Schaake, one of the crucial steps to ensure the success
of the Alliance is to establish individual accountability mechanisms for breaches
of the ban. Article
17 of the 2005 Regulation required member states to put
in place –“effective, proportionate and dissuasive penalties”– for violations
of its provisions. Similarly, states who have joined the Alliance should
introduce such provisions in their domestic legal system in order to deter
possible infringement and ensure the decrease of the torture trade within their
borders. By adopting a legal deterrent for those who engage in the torture
trade, individuals and companies are more likely to increase their cooperation
with the Alliance.
legal deterrents can, in turn, affect states which have not accepted the
declaration by reducing their material capacity to use torture or capital
punishment. There are signs, for example, that the EU 2011 export ban on sodium
thiopenthal has been effective in diminishing
the number of US executions. In the US, lethal injection is the prevailing
method for the death penalty and requires the use of sodium thiopenthal. The EU
ban on the drug has created a shortage in the US, leading to a clear decrease
in the number of executions.
UN Assistant Secretary General also believes
that the financial and reputational risks can encourage states and corporations
to comply with restrictions promoted by the Alliance. This claim seems to be
corroborated by the actions of the pharmaceutical industry worldwide. Since the
EU ban on sodium thiopenthal, the US main pharmaceutical companies have decided
producing the drug, because of the tarnished image it engendered.
The Indian company Kayem Pharmaceuticals also refrained
from selling the drug to the US because of its misuse in lethal injections,
inconsistent with the firm’s Hinduist values.
foreign ministries promoting national companies that do not respect the ban on
torture and death penalty goods would also see their reputation damaged. If
this reputational incentive holds, Members of the Alliance will be likely to
apply the four guidelines, establish the relevant laws domestically and share
information with other members. By expanding the geographical reach of the ban
on torture and capital punishment tools, the Alliance could therefore reduce
their trade on the global level. It is too early to say whether this soft
implementation of the Alliance’s goals and proposals will lead to encouraging
results. In light of the European success story, one can nevertheless be
hopeful about the possibilities of reducing this despicable trade.
Alliance for Torture-Free Trade offers a softer perspective on the fulfillment
of -international human rights law obligations,
by directly- addressing the trade which enables abuses to be perpetrated. The
creation of a global comprehensive trade control regime
on tools used for capital punishment and torture, such as the currently
effective EU one, could lead to the decrease of such abusive practices
worldwide. The ultimate solution seems to be the creation of a binding
treaty prohibiting the torture trade under the auspices of the UN, which would
compel states and private actors to respect human rights while engaging in
business relations. Until then, only time will reveal the success of the
political Alliance and whether, as Cecilia Malmström put forward,
political commitments can indeed “be a way to strengthen human rights around