‘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?”

Smuggling or Trafficking? Defining the Terms in the UN Migration Compact

Dr Kasey McCall-Smith, Chair of the Association of Human Rights Institutes and member of the Global Justice Academy, discusses recent steps towards a UN Global Compact for Migration. This is the first of two blogs from Dr McCall-Smith on the Migration Compact negotiations.

The next steps toward a UN Global Compact for Migration to combat the ever-growing legal and policy issues associated with mass and irregular migration were taken at the UN headquarters in Vienna, Austria, 4-5 September 2017. The Compact aims to deliver a comprehensive approach to human mobility as well as further clarification of and support for existing international frameworks addressing migration, refugees and trafficking, including the Refugee Convention and its Protocol, the UN Convention against Transnational Organized Crime (UNTOC), the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking in Persons Protocol) and the Protocol against the Smuggling of Migrants by Land, Sea and Air (Smuggling of Migrants Protocol), as well as a number of human rights instruments such as the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) the Convention on the Rights of the Child (CRC), among many others.

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Postgraduate Gender Research Network of Scotland Launches

setting-up-tweetThe Global Justice Academy is delighted to support the launch on the Postgraduate Gender Research Network of Scotland (PGRNS). This guest post by co-organiser, Rhian Sutton, reflects on the launch event which took place in October, and plans for the Network over the coming months – including how you can get involved. Rhian is reading for a PhD in History at the University of Edinburgh.

The Postgraduate Gender Research Network of Scotland (PGRNS) was formed in August, 2016. PGRNS aims to provide a platform on which postgraduates engaged in researching gender across Scotland can share their work, advertise events, workshops, and conferences, as well as learn about calls for papers and funding opportunities. Our goal is to facilitate discussion among researchers with common interests across both universities and disciplines in order to allow students to engage with people and ideas that they would not usually encounter through the course of their study.  Ultimately, the network hopes to assist postgraduate students in enriching their research through the discovery of, and engagement with, new perspectives of gender research.

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Myths and Realities – What is the Women, Peace and Security Agenda?

Rosie Ireland is a GJA Student Ambassador for 2015-16, and is reading for an LLM in Human Rights. Rosie co-authored our first student report on international law and peace negotiations with her colleague, Siobhan Cuming. In this report, Rosie reflects on the 2015 Crystal Macmillan Lecture, which was delivered by Madeleine Rees. 

Last semester on the 26 November, the distinguished international lawyer and human rights advocate Madeline Rees, Secretary General of the Women’s International League for Peace and Freedom, delivered the second Chrystal Macmillan Lecture of 2015. The report provides a brief summary and covers some of the key points made during the lecture.

Law has developed since 1948 to address conflicts, promote peace and end war. Addressing the root causes of conflict – such as inequalities between people and nations – is essential to the prevention of future conflict.

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Human Rights and Making Change: Looking Backwards and Moving Forwards from the Northern Ireland High Court Decision on Abortion

This post first appeared on the Centre for Criminal Justice and Human Rights blog from the Faculty of Law at University College Cork.

Dr Catherine O’Rourke is Senior Lecturer in Human Rights and International Law at Ulster University Transitional Justice Institute. She is currently also co-coordinator of the Gender Stream of the DFID-funded Political Settlements Research Programme, where she is investigating how international law norms for gender equality influence domestic power-brokering.

In the aftermath of last week’s High Court judgment declaring Northern Ireland’s prohibition of abortion to be incompatible with UK human rights legislation in specific instances, there has been much valuable consideration of the judgment’s legal and political implications, for this jurisdiction and others.  In this contribution, I reflect on what the litigation and judgment say about human rights advocacy in Northern Ireland.

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Northern Irish Abortion Law Incompatible with the European Convention on Human Rights

This post first appeared on the European Futures Blog.

In this extended article, Jane Rooney analyses the recent Northern Ireland High Court decision that current abortion law is not compatible with the European Convention on Human Rights. She suggests that the judgement could have gone further in testing the compatibility of the legislation with the ECHR, and that possible appeals are unlikely to take the politics of Northern Ireland as closely into account.

On 30 November 2015 in the case of The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96, the High Court of Northern Ireland found that Northern Irish law regulating abortion was incompatible with Article 8 (right to private life) of the European Convention on Human Rights (ECHR). This was an historical judgement made possible through the conjoined efforts of many, including women directly affected by the legislation, the Northern Ireland Human Rights Commission and Amnesty International.

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Serving women in Iraq and Syria: has UNSCR 1325 made a difference?

Rosie Ireland is a student on this year’s LLM in Human Rights at The University of Edinburgh. This is Rosie’s second report as a Global Justice Academy Student Ambassador – from the 2015 Montague Burton Lecture, which was delivered by Frances Guy on 2 November. Frances Guy is the Head of the Middle East region at Christian Aid. Rosie’s report outlines the key points made during the lecture, which was entitled ‘Serving women in Iraq and Syria: has UNSCR 1325 made a difference?’.

It is nearly the fifteenth anniversary of the UNSCR 1325; the first ever resolution aimed to enhance the role of women in peace building. Frances Guy analysed the effectiveness of the resolution in the context of Iraq and Syria in relation to four key areas: participation, protection, prevention, and relief and recovery.

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Pregnancy, Choice, and the Lessons of the Past

Mikki headshotDr Michelle Brock is an Assistant Professor of History at Washington and Lee University, specialising in British History. In this second guest post for the Global Justice Academy, Mikki tackles the current controversy in the US around abortion and the politicisation and policing of women’s bodies – drawing striking parallels with early modern Europe. 

In the United States, the last decade has witnessed a growing cacophony of calls from pro-life advocates seeking to overturn Roe v. Wade, the Supreme Court’s 1973 decision to legalise a woman’s right to an abortion. Every single current Republican candidate for president, fourteen men and one woman, has declared his or her opposition to abortion in most or all cases.

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