Combating Torture
A Manual for Judges and Prosecutors
By Conor Foley
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Combating TortureA Manual for Judges and ProsecutorsBy Conor Foley |
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| Table of Contents - Search - Introduction - 1: The Prohibition of Torture in International Law - 2: Safeguards Against Torture - 3: The Role of Judges and Prosecutors - 4: Conducting Investigations and Inquiries - 5: Prosecuting Suspected Torturers and Providing Redress - Appendices | |
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Despite its absolute prohibition under both international law and the laws of most, if not all, national jurisdictions, the use of torture persists. Although publicly condemned it is practised clandestinely in many states throughout the world. Indeed torture is typically perpetrated by the same state officials who are responsible for upholding and enforcing the law.
Judges and prosecutors have a crucial role to play in combating torture. First, they are pivotal in maintaining any rule of law. Nothing is so corrosive of the rule of law than official lawlessness, especially official criminality. Second, when a state engages in and fails to prevent torture, it is in breach of its obligations under international law. Those responsible for the administration of justice need to be alert to their role in avoiding placing the state in that position. Third, whereas the executed and legislated branches of government may be tempted to ignore the rule of law and human rights in response to public pressures for increased security from common criminality and, especially since the atrocities of 11 September 2001, transnational terrorism, the judicial branch is better placed to save society from the trap of allowing short-term expedience to trump the long-term institutional stability and fundamental values of society.
Combating torture requires judges and prosecutors to wield both the shield and the sword of the law. The shield they must provide involves respecting national and international safeguards to protect those in the hands of law enforcement from being subjected to torture and similar prohibited ill-treatment. The sword they must brandish involves holding the perpetrators of such treatment accountable for their own law breaking.
This manual outlines the duties and responsibilities of judges and prosecutors to prevent and investigate acts of torture, and other forms of ill-treatment, to ensure that those who perpetrate such acts are brought to justice and that their victims receive redress. It also provides practical advice, drawn from best practice, about how torture can be combated at a procedural level.
Although primarily aimed at judges and prosecutors, the manual can also be used as a resource by defence lawyers who play a vital role in criminal trials and who represent one of the most important bulwarks against torture, and other forms of ill-treatment, for those who have been deprived of their liberty. A well-informed and sensitised legal profession has a vital role to play in eradicating torture and this manual is also aimed at helping its members to fulfil that professional function.
The manual should be seen as complementary to the University of Essex Human Rights Centre's The Torture Reporting Handbook by Camille Giffard. Like that handbook, the present manual is the result of a project supported and financed by the United Kingdom Government's Foreign and Commonwealth Office within the framework of an anti-torture programme first launched by the UK Government in 1998. As director of the project and on behalf of the University of Essex, its Human Rights Centre and all who have contributed to the project, I gratefully acknowledge that support.
Professor Sir Nigel Rodley KBE
Human Rights Centre, University of Essex, March 2003
