‘Cybertorture’ – A New Frontier in Human Rights Application?

This blog is by Daniel Erhardt Nielsen, LLM Candidate in Human Rights at Edinburgh Law School. It presents some of the issues he examined during his work-based placement with DIGNITY (Danish Institute against Torture) over summer 2020.

 

New technologies and the online space are a double-edged sword for human rights. On the occasion of the UN’s 75th anniversary this year, the UN Secretary-General remarked that, while digital technologies help us advocate, defend, and exercise our rights, they are too often used to violate them. Such pronouncements invite us all – not least human rights scholars and practitioners – to explore these “new frontiers” and critically interrogate the meaning of terms like “cyber” within our fields of work and expertise.

Serious gaps remain in our understanding of what may be at stake in our increasingly digital world. This blog seeks to tease out some preliminary thoughts on what can be considered one such gap: How does the prohibition of torture and ill-treatment relate to violence committed using cyber-technologies?

Calls for Attention on Malicious Uses of New Technologies.

The idea that cyber-technologies could be used to violate human rights is nothing new. The problem has been deliberated among international political and judicial bodies for over a decade, and there is an ongoing effort by human rights practitioners and scholars to understand how international human rights law (IHRL) may protect against such violations.

Much of this work, however, has focused on how cyber technologies relate to the right to information, and freedom of opinion, expression, association, privacy, speech, and thought. Thus, only a narrow slice of the full spectrum of our rights and freedoms potentially affected by cyber-technologies has thoroughly been considered.

What is new is the idea that cyber-technologies may be used to inflict harm – commit acts of violence – severe enough to be inconsistent with instruments of IHRL. Only recently has the cyber-area been explicitly discussed in relation to the prohibition against torture under a UN mandate. In March, the Special Rapporteur on Torture (SRT) Nils Melzer highlighted “cybertorture” in the final section of his annual report to the Human Rights Council (HRC). He used the term to refer to the use of cybertechnology for the purposes of torture. As of today, this specific problem has been considered by remarkably few scholars.

What is Meant by the “Cyber-dimension?”

Inconsistent terminology is one of the major challenges to assessing how cyber-technologies can be used to commit harmful or violent acts. It is unsurprisingly difficult to try and comprehend any definite legal distinctions between terms like cyber-abuse, cyber-harassment, cyber-harm, cyber-ill-treatment, cyber-bullying, cyber-violence, cyber-crime, and cyber-torture.

UN Photo/Jean-Marc Ferre

First and foremost, we should distinguish between violence that is committed through cyber-technologies and violence that is enabled by cyber-technologies. It is the difference between sending death threats on social media, versus locating a person via a mobile application only to then verbally deliver the threats in person. In the latter instance, it seems as though technology is not inherent to the act itself. Hence, what is of interest here is the former – acts of violence through cyber-technologies. Could the orchestration of a continuous, targeted, personal defamation campaign across the internet resulting in social exclusion and mental suffering for the victim be considered torture or ill-treatment?

Torture is among the gravest of crimes, and the process of determining whether a specific act or pattern of violence is inconsistent with the prohibition of torture is a careful case-by-case assessment. As such, “cyber-violence” seems more appropriate for describing the phenomenon at hand than “cyber-crime” or “cyber-torture,” since it avoids prematurely qualifying a specific instance of online activity as a criminal act or as an act of torture or ill-treatment. It also seems more helpful to talk about a “cyber-dimension” to torture as opposed to “cyber-torture,” as the latter seems to indicate the existence of a new separate form of torture rather than a new means of committing torture.

Several areas of violence can in this way be said to have a strong cyber-dimension – violence against women and girls (VAWG), child sexual exploitation (CSE), racism and xenophobia, homophobia, harassment and bullying, shaming and defamation, etc.

The UN on Human Rights & Cyber Technologies

Both the HRC and General Assembly (GA) have repeatedly stated that “the same rights that people have offline must also be protected online.” Over the years, the GA has convened six Groups of Governmental Experts and an Open-ended Working Group, which have only made general statements on IHRL regarding cyber-technologies. Beyond the SRT, the Special Rapporteurs on the Sale of Children and Child Pornography and Violence against Women have also addressed acts of severe violence committed through the internet.

Legal Standards & Jurisprudence

There are no legal standards nor any case law directly addressing acts of torture or ill-treatment through cyber-technologies. The question of how the prohibition of torture and ill-treatment may apply in relation to cyber technologies is an entirely new area of IHRL application. Any attempt to provide and answer will therefore necessitate a great deal of fact-finding and legal interpretation.

A few tentative statements can be made about the phenomenon to focus the scope of future jurisprudential analyses. First, instances of cyber-violence are likely to be perpetrated by non-state actors. Second, they are committed remotely and non-physically. Third, they seem to disproportionately affect women and minorities. Therefore, relevant jurisprudence should especially address the positive State obligations related to torture and ill-treatment, acts of violence committed through non-physical means, and areas of violence associated with specific vulnerable groups, such as VAWG, CSE, racism and xenophobia, homophobia, etc.

The Way Forward

Explorations into cyber-violence as a new area of IHRL application must engage in comparative legal interpretation – mapping exercises that take established rules and principles and lets them inform us about this largely unaddressed phenomenon. Judicial bodies qualify an act as torture through case-by-case assessment in accordance with definitional criteria set out in the UN Convention against Torture or other applicable national legislation. A specific instance of cyber-violence should be treated similarly.

As scholars and courts have begun recognizing non-physical forms of torture and ill-treatment, have cyber-technologies facilitated yet another adaptation in the techniques of torture? Is it the latest in a long line of so-called “stealth torture techniques?”

‘We Need to Talk About an Injustice’: Bryan Stevenson delivers Ruth Adler Lecture at University of Edinburgh

Law PhD Candidate, Vivek Bhatt

In this guest post, Law PhD Candidate, Vivek Bhatt, reflects on Bryan Stevenson’s visit to Edinburgh Law School to give the 2019 Ruth Adler Memorial Lecture, and to receive an honorary doctorate as part of the School’s summer graduation ceremony.

Bryan Stevenson (c) Nick Frontiero Photography 2019

 

 

 

On 8 July 2019, the Global Justice Academy hosted a lecture by Bryan Stevenson, recipient of an honorary doctorate at the Edinburgh Law School.  Stevenson is founder of the Equal Justice Institute (EJI) in Montgomery, Alabama, and a clinical professor at the NYU School of Law. Stevenson works as a legal representative for disadvantaged and marginalised individuals, particularly young and poor people who are on death row or serving life sentences. He and his colleagues at the EJI have achieved the exoneration or release of over 125 individuals on death row. Stevenson is also the author of Just Mercy: A Story of Justice and Redemption,[1]  which was a New York Times bestseller and won the Carnegie Medal for the best nonfiction book of 2014.

Stevenson’s lecture circulated around a question that is as succinct as it is complex: how do we, as human rights advocates, address injustice? Firstly, he said, we must create justice by becoming proximate to those suffering inequality and injustice. Recounting his relationship with his grandmother, who wished that Stevenson would always be able to feel her embracing him, the skilful orator argued that we must know and seek to understand those who suffer injustice in order to affirm their humanity and dignity. Thus, human rights practice is not about the deployment of legal arguments from afar, but rather about stepping away from one’s legal expertise and embracing those who suffer violations of dignity.

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Report from an IIF Event – Academic Freedom: “national security” threats in Turkey, India and the UK

Can the university be a space where academic freedom reigns while restrictions are increasingly threatening voices and lives outside its gates? Or must spaces for politics be opened up on and off campus in order to address the invasion of national security (and capitalist) logics into the realms of open enquiry? On 27 October 2016, scholars and activists engaged these questions with a focus on the variable effects of the securitisation of university space in Turkey, India and the UK.

A panel on Turkey included academics and students who have lost their jobs as a result of the broader crackdown on dissent following the failed coup in July. They highlighted the connections between increasing violence in the Kurdish regions of Turkey—which precipitated the “Academics for peace” petition that has been used as a pretext for dismissing many signatories from their posts—and the attempts of the state to impose controls on its critics. They asked if the focus on the plight of academics may mean that this violence recedes from the view of international publics. Efforts to maintain solidarity among those now outside the academy and those still within it, as well as initiatives to take the university outside spaces the government controls, provide hope for continued resistance in fearful times and carve out a more universal idea of the University as institution and spirit that always has had to be fought for and salvaged from strategies of subjection from various quarters, not only outside the University. In this way, this panel was inspiring for all university struggles, not just those related to Turkey.

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Counter-Terrorism, Radicalisation, and the University: Debating the Prevent Strategy

On Friday 15 January 2016, the Global Justice Academy and the Centre for Security Research at The University of Edinburgh hosted a panel discussion on the Prevent Strategy obligations that have been placed on higher education institutions. GJA Student Ambassador, Rebecca Smyth, went along to the debate and outlines the debated arguments as well as her thoughts on this contentious issue in this guest post.

A thing of nothing or something more sinister?  Under section 26 of the 2015 Counter-Terrorism and Security Act universities must “have due regard to the need to prevent people being drawn into terrorism.”  The origins of this ‘Prevent’ duty, and its potential implications for staff and students, were considered at a panel discussion organised by the Global Justice Academy and Centre for Security Research last Friday.  Chaired by Akwugo Emejulu, the panel comprised Gavin Douglas, Deputy Secretary of Student Experience here at the University of Edinburgh; Richard Jones of the School of Law; Genevieve Lennon of the University of Strathclyde Law School; Urte Macikene, EUSA Vice President of Services; and Andrew Neal of the Politics and International Relations department.

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Why We Blame the Victim, and Why We Have To Stop: a Perspective from a Historian

Mikki headshot

Dr Michelle Brock is an Assistant Professor of History at Washington and Lee University, specialising in British History. In this guest post, Mikki examines the culture of ‘victim blaming’ that has been reinvigorated in the United States over the past six months, from the perspective of an early-modernist who researches belief and the Devil.

From the decisions not to indict the officers who killed Michael Brown and Eric Garner to the disturbing Rolling Stone article on a brutal gang rape at UVA, this country has produced a harrowing month of news. The reaction of much of the American public to these stories has been as distressing as their content. Many have turned not to self-searching or activism, but to stereotype and judgement. They rush to point out that Brown and Garner had, after all, committed crimes, drawing on centuries-old racial tropes to point out their size or comment that they were acting like “thugs” with “bad attitudes.” When they hear about the epidemic of sexual assaults on college campuses across the country, they question the victim’s dress, behaviour, and alcohol consumption, wondering if not explicitly saying that she might have been “asking for it.” In short, we are a country that blames the victims.

Wolfram Burner (Flickr)

Wolfram Burner (Flickr)

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