|
<<previous | index | next>> Initiation Practices and Human RightsFrom the perspective of international human rights law, military recruits are an exceptional group. The special mission of the armed forces may justify restrictions on their rights that far exceed those that may be placed on almost any other group. For example, ordering a prisoner to crawl through the mud for several hours would almost certainly constitute degrading treatment. Such an order from a military commander to conscripts during field training would be a legitimate part of a soldier’s preparation for battlefield conditions, as would temporary deprivation of food or sleep. Analogously, acts of initiation that would constitute degrading or inhuman treatment with respect to prisoners or other categories of persons may not reach that threshold when they occur in the armed forces, provided that they contribute to the specific mission of the armed forces. However, a person’s status of military recruit does not justify the placement of unlimited restrictions on his rights. In its case law, the European Court of Human Rights, the body that enforces implementation of the European Convention on Human Rights,55 has consistently held that, while certain restrictions on the rights of military servicemen may be necessary to ensure the proper functioning of the army, these may not serve to altogether negate a basic right.56 Initiation practices can therefore violate a number of basic human rights norms, including the prohibition against torture, inhuman and degrading treatment and the right to property.57 They can also violate the right to the highest attainable level of health.58 Torture, Inhuman and Degrading TreatmentThe European Convention of Human Rights, to which Russia is a party, holds that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.”59 It does not allow for derogation from this right under any circumstances.60 As suggested by the language of the provision, the Convention differentiates between three distinct types of prohibited treatment or punishment: torture, inhuman treatment or punishment, and degrading treatment or punishment. According to the case law of the European Court of Human Rights, the difference between these three types of treatment is primarily one of gradation in the suffering inflicted, with torture causing the most and degrading treatment the least severe suffering.61 In order for treatment or punishment to be unlawful, it must reach “a minimum level of severity.”62 As there are no abstract or absolute standards for prohibited treatment, the borderline between harsh treatment and prohibited forms of treatment is often hard to establish. Indeed, the European Court of Human Rights has held that “the assessment of this minimum is, in the nature of things, relative” and “depends on all circumstances of the case.”63 The European Commission of Human Rights, a now defunct supervisory body for the convention, has held that “treatment or punishment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his will or conscience.”64 The Court has also held that treatment or punishment that arouses “in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them” constitutes degrading treatment.65 Inhuman treatment covers “at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable”66 and treatment that “was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering.”67 All forms of physical assault associated with dedovshchina clearly reach this minimum threshold. But short of physical assault, it is often not immediately obvious whether a specific treatment or punishment meets the threshold. Treatment may be humiliating but not qualify as inhuman or degrading treatment. Indeed, the Court has held that “the suffering and humiliation involved must…go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.”68 Applied to military recruits, the treatment in the course of initiation can thus reach the threshold of degrading treatment only if it goes beyond suffering and humiliation ordinarily connected with military service. While the threshold may be higher for military recruits than for detainees it can only be marginally so. The Court has repeatedly held that the nature of treatment and its effect on the person undergoing the treatment, rather than the justification for the treatment, is decisive for determining whether a violation has taken place. For example, in Tomasi v France, the Court ruled that “the undeniable difficulties inherent in the fight against terrorism cannot result in limits being placed on the protection by Article 3 to be afforded in respect of the physical integrity of individuals.”69 Although the Court has never in its history ruled on a case related to initiation practices in armed forces, the Tomasi ruling seems to indicate that it may not be receptive to the argument that treatment that would normally be considered to violate Article 3 is acceptable with respect to military recruits because it enhances military effectiveness. Initiation practices can vary greatly from regiment to regiment. As discussed in the previous chapter, they may be one-off rituals that take place at a certain stage of one’s military service and last one evening or night; or can span an extended period of time, sometimes as long as six to twelve months. The rites can consist of a small number of violent, humiliating, or disgusting acts, or can involve less harsh “cold shoulder” treatment over a longer period of time. Recruits may submit to initiation semi-voluntarily because they want to win group acceptance; they may be forced into submission by violence or the threat thereof. All these factors may be relevant in determining whether acts of initiation, individually or cumulatively, violate international human rights standards. The Court’s case law has indicated that it can make such determination only on a case-by-case basis taking into consideration such circumstances as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age, and state of health of the victim.70 As noted above, all forms of physical assault, whether as punishment or otherwise, fall within the scope of the prohibition of torture, inhuman, or degrading treatment or punishment. In contrast, many other forms of treatment associated with initiation practices do not in and of themselves qualify as degrading or inhuman treatment or punishment, but Human Rights Watch believes that their excessive or protracted nature, or their combination with the constant threat of violence, may push them over the threshold. This is the case in the following situations: Right to the Highest Attainable Standard of HealthThe International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for the right to the highest attainable standard of physical and mental health.71 Under it, states are required to “refrain from interfering directly or indirectly with the enjoyment of the right to health” and to protect persons within its jurisdiction against interference with the right by third parties.72 The Committee on Economic, Social and Cultural Rights, the body that monitors states parties’ compliance with the covenant, has noted that states have a special obligation with respect to groups, like persons living in state custody, that cannot, for reasons beyond their control, realize that right themselves.73 Conscripts live in a custodial situation as they are not allowed to leave their base without prior permission from their commander and may be administratively or criminally punished should they do so. The ICESCR allows for restrictions on the right to health “as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”74 Such limitations must be “proportional, i.e. the least restrictive alternative must be adopted…”75 With respect to military recruits, certain restrictions may be placed on the right to health for reasons of national security. For example, temporary deprivation of food or sleep as part of training exercises for battlefield conditions may be legitimate because of the special mission of the armed forces. Yet, the impact of such deprivation on the health of recruits must be proportional to the benefits to national security. The fact that hazing practices are not officially organized or sanctioned does not absolve the state from its obligation to protect the right to health of recruits. Right to the Peaceful Enjoyment of One’s PossessionsDedovshchina almost invariably involves depriving new recruits their money and personal belongings. The European Convention on Human Rights stipulates that “every natural or legal person is entitled to the peaceful enjoyment of his possessions.”76 A person can be deprived of his possessions only “in the public interest and subject to the conditions provided for by law and by the general principles of international law.” As Russian law does not provide for the type of deprivation of property practiced as part of dedovshchina, these practices also violate the European Convention on Human Rights. Government’s Responsibility to InvestigateRussia has an obligation to investigate any incidents of torture, inhuman, or degrading treatment or punishment that come to their attention under the European Convention on Human Rights and the Convention against Torture. The European Convention requires that states establish “an effective remedy before a national authority” for anyone whose rights and freedoms as set out in the convention have been violated.77 In addition, the European Court of Human Rights has ruled that the Convention requires an effective investigation of ill-treatment complaints whenever the applicant has an “arguable claim.”78 The Convention against Torture obliges states parties to initiate a prompt and impartial investigation of torture complaints whenever circumstances give “reasonable ground to believe that an act of torture has been committed.”79 The same applies to incidents of cruel, inhuman, or degrading treatment or punishment.80 [55] Russia became a party to this convention on May 5, 1998, and has accepted the jurisdiction of the European Court of Human Rights over its territory. [56] In Engel and others v. the Netherlands case (Judgment of June 8, 1976), the European Court of Human Rights laid down a general rule on the applicability of the European Convention on Human Rights to military servicemen. It held that: The Convention applies in principle to members of the armed forces and not only to civilians. It specifies in Articles 1 and 14 (art. 1, art. 14) that "everyone within (the) jurisdiction" of the Contracting States is to enjoy "without discrimination" the rights and freedoms set out in Section I. Article 4 para. 3 (b) (art. 4-3-b), which exempts military service from the prohibition against forced or compulsory labour, further confirms that as a general rule the guarantees of the Convention extend to servicemen. The same is true of Article 11 para. 2 (art. 11-2) in fine, which permits the States to introduce special restrictions on the exercise of the freedoms of assembly and association by members of the armed forces. Nevertheless, when interpreting and applying the rules of the Convention in the present case, the Court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces (para. 54). Applying this general rule to the concrete circumstances of the Engel case, in which the applicants alleged that the measures of military discipline they were subjected to violated their right to liberty, the Court held that “the bounds that Article 5 (art. 5) requires the State not to exceed are not identical for servicemen and civilians. A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this character when imposed upon a serviceman. Nevertheless, such penalty or measure does not escape the terms of Article 5 (art. 5) when it takes the form of restrictions that clearly deviate from the normal conditions of life within the armed forces of the Contracting State” (para. 59). The Court has also ruled that a state’s authority to impose restrictions on the rights to respect for the private life and freedom of expression of servicemen due to the particular characteristics of military life is not unlimited. In the Lustig-Prean case (Judgment of September 27, 1999), the applicants complained that the authorities had investigated their sexual orientation and dismissed them from the armed forces on account of their homosexuality. They alleged that both the investigation and the dismissal violated their right to respect for their private lives. The Court held that “it is open to the State to impose restrictions on an individual’s right to respect for his private life where there is a real threat to the armed forces’ operational effectiveness, as the proper functioning of an army is hardly imaginable without legal rules designed to prevent service personnel from undermining it. However, the national authorities cannot rely on such rules to frustrate the exercise by individual members of the armed forces of their right to respect for their private lives, which right applies to service personnel as it does to others within the jurisdiction of the State” (para. 82). In the Vereinigung Demokratischer Soldaten Österreichs und Gubi v Austria case (Judgment of December 19, 1994), the applicants alleged that the decision by the Austrian Ministry of Defense not to distribute a magazine about the armed forces to servicemen while distributing all (other such magazines constituted a violation of freedom of expression. The government argued that the magazine presented a “threat to discipline and to the effectiveness of the army” and this justified its decision not to distribute it. The Court held that “none of the issues of der Igel [name of the publication] submitted in evidence recommend disobedience or violence, or even question the usefulness of the army. Admittedly, most of the issues set out complaints, put forward proposals for reforms or encourage readers to institute legal complaints or appeals proceedings. However, despite their often polemical tenor, it does not appear that they overstepped the bounds of what is permissible in the context of a mere discussion of ideas, which must be tolerated in the army of a democratic State just as it must be in the society that such an army serves” (para. 38). [57] Article 3 of the European Convention on Human Rights prohibits torture, inhuman and degrading treatment or punishment. Article 1 of Protocol 1 to the convention provides for the right to the peaceful enjoyment of one’s possessions. [58] Article 12 of the International Covenant on Economic, Social and Cultural Rights provides for the right to the highest attainable standard of health. See: G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976. Russia, then the Soviet Union, ratified the covenant in 1973. [59] Article 3. The International Covenant on Civil and Political Rights contains a similar provision in article 7. The Soviet Union, to which Russia is the successor state, ratified the covenant in 1976. Russia is also a party to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. [60] Article 15(2). [61] Ireland v United Kingdom case (Judgment of January 18, 1978), para. 167. [62] Kudla v. Poland case (Judgment of October 26, 2000), para. 91. [63] Kudla v. Poland case (Judgment of October 26, 2000), para. 91. [64] Report of November 5, 1969, Greek Case, Yearbook XII (1969), p. 186. Although the European Commission on Human Rights is now defunct, its case-law remains relevant. [65] Kudla v. Poland case (Judgment of October 26, 2000), para. 92. [66] Report of November 5, 1969, Greek Case, Yearbook XII (1969), p. 186. Although the European Commission on Human Rights is now defunct, its case-law remains relevant. [67] Kudla v. Poland case (Judgment of October 26, 2000), para. 92. [68] Ibid. [69] Tomasi v France case (Judgment of August 27, 1992), para. 115. [70] Kudla v. Poland case (Judgment of October 26, 2000), para. 91. It is unclear how the Court will look at the issue of consent, as it has, to date, considered this issue in cases regarding medical treatment for mental patients or mentally deranged prisoners (see: P. van Dijk and G.J.H. van Hoof, “Theory and Practice of the European Convention on Human Rights, The Hague, 1998, p. 317). Also, the Court has repeatedly stated that it takes into consideration prevalent views at the time of the treatment, as it considers the European Convention to be “a living instrument which…must be interpreted in the light of present-day conditions.” (Tyrer v UK case, Judgment of April 25, 1978, para. 31) In this respect, moves in recent decades in many Council of Europe countries, as well as in the United States, Canada and Australia, to ban harsh initiation practices are important. [71] Article 12. [72] General Comment 14. The Right to the Highest Attainable Standard of Health, Committee on Economic, Social and Cultural Rights, 22nd sess., 2000, para. 33 [online], http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4,+CESCR+General+comment+14.En?OpenDocument (retrieved October 24, 2003). [73] Ibid., para. 37. [74] Article 4. [75] General Comment 14. The Right to the Highest Attainable Standard of Health, Committee on Economic, Social and Cultural Rights, 22nd sess., 2000, para. 29. [76] Article 1 of Protocol 1 to the European Convention on Human Rights. [77] Article 13. [78] For example, in the case of Assenov and others v. Bulgaria (Judgment of October 28, 1998) it stated: The Court considers that, in these circumstances, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms in [the] Convention,” requires by implication that there should be an effective official investigation [of alleged violations of the rights set forth in the Convention.] This obligation...should be capable of leading to the identification and punishment of those responsible. [79] Article 12. [80] Article 16.
|