Convention Against Torture and lessons from Kashmir, Palestine and Syria

From the dark and dank cells of Syria’s notorious Sednaya slaughterhouse prison on the outskirts of Damascus, harrowing tales of survivors are emerging; horrors that defy human comprehension: systematic torture, extrajudicial executions and starvation as a weapon of war.

Once a symbol of Bashar al Assad's authoritarian rule, Sednaya prison now stands as an enduring indictment of international law's reluctance to confront normalised ‘crimes against humanity’.

Read Saleh, head of the volunteer rescue organisation White Helmet, described the prison as “hell on earth” and said he had helped 20,000 to 25,000 prisoners in the rescue operations.

Stretching over more than 50 years, the Assad dynasty rule carried out these international crimes with impunity, unchecked by the international legal system meant to prevent such atrocities.

However, war-trampled Syria is not an anomaly.

Across the Global South—spanning South Asia, the Middle East, Africa and beyond—prisons, torture chambers, and state-sanctioned brutality reflect the profound structural legacies of colonialism.

This phenomenon is rooted in the colonial histories of Global South countries, where practices of institutionalised violence were not only inherited from European colonial powers but often embedded into post-colonial governance, police forces and judicial systems—originally designed to suppress colonial subjects.

While the international community professes zero tolerance for torture, its inconsistencies to these regions to distinguish the intensity or severity of pain or suffering warranting the label of ‘torture’ has been opaque in the jurisprudence for the Global South.

The so-called universality of international law has been reduced to geographical outreach. Prohibition and accountability serve imperial and neocolonial agendas, subtly reinforcing Western hegemony.

Legacy of colonial violence

Contemporary international law repeatedly overlooks the inherited nature of institutional violence in post-colonial states.

Across global southern countries, the state apparatus, established initially to enforce colonial order, was largely retained with minimal reform after decolonisation.

In Africa, the scourge of police brutality and torture persists, with Nigeria and Kenya proving to be classic cases of these issues. In Nigeria, the Special Anti-Robbery Squad (SARS) has been at the centre of global condemnation for its egregious human rights violations, including extrajudicial killings and torture.

Despite anti-torture legislation enacted in 2017, SARS officers continue to operate with impunity, committing widespread abuses such as extortion, torture, and ill-treatment, with no officer held accountable for these horrendous crimes.

Similarly, the British counterinsurgency operation in Kenya during the Mau Mau uprising normalised torture as a state-sanctioned mechanism of control. This was later reflected in the case Mutua v. Foreign and Commonwealth Office (2011), in which the British Empire's deployment of weaponised emergency regulations served as a legal justification for the use of violence.

This colonial inheritance is not confined to Africa. The police forces in South Asia, particularly in India, Pakistan, and Bangladesh, were established by the British under the Police Act of 1861.

This colonial legacy continues to influence contemporary policing practices, with minimal structural reforms over the years. The retention of these colonial-era policing models has led to persistent issues such as custodial torture, arbitrary detention, and extrajudicial killings, which were initially used to suppress anti-colonial movements.

In Middle Eastern countries, particularly Syria, the treatment of detainees bears noticeable similarities to British counterinsurgency methods used during the Mandate period, underscoring the enduring influence of colonial violence.

Flawed enforcement mechanism

On December 10, 2024, as families of the disappeared in Syria desperately searched for their loved ones in the Assad regime’s torture centres, the UN Human Rights Office in Geneva and other Human Rights groups on International Human Rights Day commemorated the 40th anniversary of the Convention Against Torture (CAT).

This treaty, applicable in peacetime and armed conflict, mandates legal measures to prevent and punish torture in any territory under their jurisdiction.

Additionally, the 2002 Optional Protocol established stronger monitoring mechanisms to enforce global accountability. Yet, four decades later, CAT’s limitations expose serious questions about its efficacy in ensuring accountability for ‘crimes against humanity’.

In occupied territories like Palestine, reports of detainees—many of them children—being tortured by Israeli occupying authorities surface regularly.

Still, these international legal conventions remain inert in holding perpetrators accountable.

Similarly, in Delhi-administered Kashmir, over 432 cases of custodial torture by Indian forces and police have been reported in the past decade. A UN report detailed extreme physical abuse, leaving victims with lifelong disabilities, while whistleblowers have exposed widespread psychological trauma and diseases among survivors.

Humanitarian institution: Neutrality or complicit?

Even institutions with deep roots in international humanitarian law, like the International Committee of the Red Cross (ICRC), face scrutiny for their limitations.

Established during the 1863 Battle of Solferino, the ICRC is mandated under the Geneva Conventions to protect victims of armed conflict.

However, its neutrality—often framed as a cornerstone of its humanitarian principles—has usually translated into silence and complicity.

To preserve neutrality, the ICRC traditionally reports only to governments and under strict confidentiality. This approach allows the organisation to maintain trust with national military leaders but limits its ability to hold perpetrators publicly accountable.

In Syria, while the ICRC has access to detention facilities, its cautious diplomacy prioritises behind-the-scenes engagement with the Assad regime over public condemnation of systemic torture.

Similarly, in Palestine, the ICRC faces restricted access to Israeli detention centres, inhibiting its ability to respond to well-documented cases of inhumane treatment and torture, including that of children.

In India-administered Kashmir, despite verified reports of custodial deaths, widespread torture, and chronic illnesses among detainees—exposed by documents such as WikiLeaks—the ICRC ceased its operations and closed its offices in the region, effectively withdrawing from one of the world’s densely militarised territory.

Limitation of international law

International law catastrophically falters when it reinforces existing power structures rather than dismantling them.

By allowing powerful states to wield influence over the interpretation and application of treaties, the system perpetuates a legal framework that is both selective and complicit.

Richard Falk, former UN Special Rapporteur and leading critical legal scholar, argued that international law, while founded on universal principles, often operates as a tool for advancing geopolitical interests at the expense of human dignity.

The issue lies not in the absence of legal frameworks but in its neo-colonial interpretation and its applications to the global south, mystifying neo-colonial violence.

The prohibition on torture is widely recognised as a peremptory norm of international law (jus cogens). The International Covenant on Civil and Political Rights asserts that "[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” Even in emergencies, the right to be free from torture is non-derogable.

The Convention Against Torture (CAT) explicitly states that "no exceptional circumstances whatsoever—whether a state of war, internal instability, or public emergency—may be invoked as a justification for torture."

States are obligated to prevent acts that fall short of torture but still constitute cruel, inhuman, or degrading treatment.

However, its application to marginalised communities in the Global South reveals a dichotomy between universal principles and enforcement realities.

Two-tiered justice system

While these ‘atrocity crimes’ in the Global South are often met with silence or selective enforcement, atrocities in the Global North most often trigger immediate outrage and legal accountability due to their more significant responses and influence.

This disparity reveals a two-tiered structural inequality in the justice system: one that prioritises the legal narratives of powerful states and their allies while relegating Global South victims to obscurity.

This is not a failure of principles but of politics. International legal institutions—bound by treaties but governed by states—are too often complicit in the systems they were designed to oppose.

David Kennedy, the war lawyer, argues that international law is inherently flawed in its current form, as it often serves the interests of powerful states rather than upholding universal human rights principles.

The Global South does not merely require periodic condemnations or symbolic gestures from UN working group members.

It demands an international legal system that prioritises justice over geopolitics and defends human dignity universally, not selectively.

The lessons from Syria, Palestine, and Kashmir are stark: Without accountability, contemporary international law risks becoming a legacy of failure, haunting the framers who once aspired to be its moral architects.