| Handbook links... | website home page | ||
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Table
of Contents
- Search - Part I: Preliminary
Matters - Part II: Documenting Allegations
- Part III: Responding to the Information Collected
- Appendices |
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| I. Preliminary Matters: section links... | |||
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1. Introduction - 2. How to use this Handbook - 3. Setting the Context - Summary of Part I | ||
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This chapter seeks to answer some basic questions which you might have about the process of reporting allegations of torture and other forms of ill-treatment.
Reporting allegations of torture to the international mechanisms can be of benefit both to the general situation in a country and to an individual victim of torture.
Governments whose agents commit human rights abuses prefer to keep such practices out of the public eye, in order to escape condemnation. Reporting allegations to the international mechanisms goes a long way towards preventing this, because it raises awareness of the real situation in a country. The international community is most likely to take action with regard to situations about which it receives a lot of information. The only way to increase the possibility of the rest of the world taking action against human rights violations in a country is to make sure that it knows about the situation.
If the information available supports it, you should try to present evidence of a pattern of violations. Consistent and regular information is evidence of such patterns and will raise more concern with the international community than reports of a few isolated incidents. This is because it shows that the problem is a serious one, and makes it more difficult for a state to argue that it is not involved or unaware of the practices.
Drawing attention to a situation is not just about seeking condemnation or holding a state to account. Even more importantly, it is about seeking constructive and long-term improvements in a country which will contribute to the ultimate elimination of torture. This will often require changes both in the legislative framework and in official attitudes to torture. Many of the international mechanisms make suggestions to states about ways in which they can improve the general situation, for example through the introduction of legal and practical safeguards which give greater protection to detainees. This could involve legislation to reduce the period for which a detainee may be held without access to a lawyer, the introduction of regular medical examinations by independent doctors for all persons in custody, or measures to eliminate impunity (discussed below). Usually, the recommendations of the international bodies are just the beginning of a dialogue with the state in question, the purpose of which is to ensure that the recommendations are implemented.
Bringing torture into the public eye in order to call states to account is one result of reporting torture allegations. On a different level, torture reporting can also help to cast light on the individuals who carry out such practices, to make sure that they cannot continue to engage in such behaviour without consequence. Ideally, this should be done by initiating prosecution within the domestic legal system. However, where prosecution is not or could not be effective, many of the international bodies are quick to condemn official tolerance of torture and to require or recommend that a state take measures to eliminate impunity. As long as perpetrators are able to 'get away with it', and indeed in some cases find that their chances of promotion are increased by using torture to obtain results in investigations, there is no incentive for them to give up practising torture and other forms of ill-treatment.
If a state allows impunity for perpetrators, this also raises an issue of state responsibility under international law. Many states actually have an obligation under a number of conventions, including the UN Convention Against Torture, to make sure that individuals who have carried out torture are held responsible for their actions. If a state does not prosecute individuals which it knows to have been involved in torture, or does not allow another state to do so, it may well be failing in its obligations under international law.
The foregoing objectives may seem somewhat indirect and long-term, and may not appear to provide much of a remedy for individual victims. Apart from the longer-term benefits for the individual of living in a country with an improved human rights record, there are several more immediate or direct remedies which may be obtained by reporting allegations.
Many of the international treaty bodies described are able to pronounce on the question of whether or not torture or a related violation has taken place. This means that they can make an authoritative declaration that the state has breached its obligations under international law in relation to a particular individual. Even if it awards no further remedy to the individual, the effect is that there has been a public finding of the culpability of the state in question, and that the state has been forced to account for its behaviour.
Some of the mechanisms can request or order that an effective investigation be carried out into an allegation of torture, and that the perpetrator be prosecuted for his behaviour. As is the case for eliminating impunity generally, this is important to reassure a victim that a perpetrator is not able to torture without repercussions.
Reparation is about repairing the damage which has been caused to an individual. A number of the international judicial bodies are empowered to order a state to make reparations in cases where they have made a finding of violation. It can be awarded in a number of forms. Traditionally, it has often involved the award of monetary compensation, but it is becoming more common for other types of reparation to be ordered as well. Monetary awards are normally calculated on the basis of actual monetary loss, as well as moral damages, which means estimating the extent of suffering caused to the individual and/or his or her family and giving it a monetary value. Less traditional forms of reparation, which in many ways are a much more appropriate and effective way of addressing the consequences of violations, might include an order to open a school or hospital in a community which has been the subject of violations, requiring the state to inform relatives of disappeared or murdered persons of the location of the bodies of the dead, ordering that the state contribute financially to the rehabilitation of the victim, or even that the state make a public apology for what has taken place.
A number of the mechanisms are prepared to take urgent action to prevent the deportation of individuals to countries where they are believed to be at risk of torture. The individual must be able to show that he or she is personally at risk and that the risk is a continuing one - if this can be established, the body may request that the state from which asylum is being sought does not deport the person, at least until the mechanism in question has had an opportunity to consider the case. Such requests are not necessarily binding on the state, but are often respected.
Deciding whether or not a set of facts amounts to torture can be tricky. There are certain types of treatment which most people will instinctively recognise as being unacceptable. There are others, however, which are less clear-cut, or which may depend on cultural factors. It is important to remember that when you submit an allegation to an international mechanism, you are seeking to show that the facts constitute torture or ill-treatment in a legal sense, not merely in your opinion. This section will examine what this might mean, and what the implications are for someone wishing to submit an allegation.
The basic definition of torture is that contained in the UN Convention Against Torture (1984). According to Article 1(1), the term means :
"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."
From this definition, it is possible to extract three essential elements which constitute torture:
Torture is an emotive word, but one which should not be used lightly. As you can see from the above definition, torture is characterised and distinguished from other forms of ill-treatment by the severe degree of suffering involved. It is therefore important to reserve the term for the most objectively serious forms of ill-treatment.
Cruel treatment, and inhuman or degrading treatment or punishment are also legal terms which refer to ill-treatment causing varying degrees of suffering less severe than in the case of torture. Forms of ill-treatment other than torture do not have to be inflicted for a specific purpose, but there does have to be an intent to expose individuals to the conditions which amount to or result in the ill-treatment. The essential elements which constitute ill-treatment not amounting to torture would therefore be reduced to:
In order for the international bodies to make a distinction between the different forms of ill-treatment and assess the degree of suffering involved, they must take the particular circumstances of the case and the characteristics of the particular victim into account each time. This makes it difficult to identify the exact boundaries between the different forms of ill-treatment, because those circumstances and characteristics will vary, but it does make the law more flexible because it allows it to adapt to the circumstances. The important point to remember is that all forms of ill-treatment are prohibited under international law. This means that even where treatment is not considered severe enough (in legal terms) to amount to torture, the state may well still be found to have violated the prohibition on ill-treatment.
International law gives us two main guidelines to apply in assessing whether or not a set of facts amounts to torture:
You will see from the extract of the UN Convention Against Torture cited above that the legal definition of torture is quite abstract in nature. It does not refer to specific types of ill-treatment or provide a list of prohibited techniques. Instead, it sets out a number of essential elements which are required for an incident to be considered as a possible case of torture in the legal sense. The elements necessary for treatment to amount to ill-treatment other than torture are similarly abstract. These elements may be recalled as follows:
What exactly these elements consist of is left for interpretation by the international monitoring bodies. They have the responsibility of developing consistent interpretations of the definition of torture and other forms of ill-treatment and must make sure that they apply the same standards in each case. This means that you, as an individual or organisation (NGO), do not have to decide whether the ill-treatment inflicted on an individual amounts to torture or something else, but by documenting facts which support the essential elements, you provide evidence for the international bodies to decide.
Torture is distinguished from other, lesser, forms of ill-treatment by the severe degree of suffering involved. This is perhaps the most difficult aspect of torture to assess. The two other essential elements are to a large extent objectively verifiable - it is generally objectively possible to establish that the perpetrator had a link with the state, or that the torture was inflicted for a specific purpose. The nature and degree of suffering experienced by an individual are another matter. They may depend on many personal characteristics of the victim - for example, sex, age, religious or cultural beliefs, health. In other cases, certain forms of ill-treatment or certain aspects of detention which would not constitute torture on their own may do so in combination with each other.
Certain types of treatment appear objectively to fall into the category of torture - for example, electric shocks to the genitals, or the pulling out of fingernails. Torture is not, however, limited to such familiar examples - it encompasses many forms of suffering, both physical and psychological in nature. It is particularly important not to forget about psychological forms of ill-treatment - very often these can have the most long-lasting consequences for victims, who may recover from physical injuries yet continue to suffer from deep psychological scarring. Forms of ill-treatment which have been found to amount to torture, either alone or in combination with other forms of treatment, include:
There are, however, also many 'grey areas' which do not clearly amount to torture, or about which there is still disagreement, but which are of great concern to the international community. Examples include:
One particularly significant factor which may affect an assessment of the severity of the degree of suffering experienced is that of culture. It is important to be aware that different cultures, and indeed individuals within a particular culture, have different perceptions of what amounts to torture. This can be relevant in two ways - on the one hand, it can mean that behaviour which is thought of as torture by a culture or individual victim, may not normally constitute torture in the eyes of the international bodies. On the other hand, it can mean that treatment which is consistently considered by the international community to amount to torture is not viewed as such by the person who has been subjected to it. For example, in one country, beatings, even severe beatings, may not be considered torture but rather normal practice, whereas tearing a woman's clothing (without more) may be. It may even happen that treatment which is considered unlawful at the international level is actually lawful at the national level. In such cases, you should not be dissuaded from reporting the allegation, because the international bodies will be guided by international law. Remember that even where treatment is not found to amount to torture, it may still amount to another form of prohibited ill-treatment.
In order to make sure that possible cultural variations are taken into account when submitting an allegation of torture, you should:
All of this discussion leads to the question: how can you be sure that the facts in your possession amount to torture or ill-treatment? The answer is quite simple - you cannot be sure, but you do not need to be.
The interpretation of what constitutes torture is constantly evolving. This may appear to complicate matters, but in fact it allows the international bodies to be relatively open-minded when assessing forms of ill-treatment which have not previously been found to amount to torture. For the person wishing to submit an allegation of torture, it means that certainty about whether or not something is torture is not necessary, but this does not mean that there are no minimum criteria. Remember that your task is to try to establish the essential elements.
You must show that:
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As is emphasised in the section describing what is torture, it is necessary that the behaviour in question be carried out by, or with the approval of, a representative of the authority in power. This means that any state official could potentially be involved in torture or ill-treatment. However, considering the common purposes of torture, which may be to obtain information during an interrogation, or, increasingly, to intimidate the population as a whole in the face of insurrection or disturbance, it is unsurprising that the principal perpetrators are those officials involved in the criminal investigation process, and those responsible for the security of the state.
This means that those most likely to be involved in torture and other forms of ill-treatment include :
But could also include :
In addition, torture often occurs in the context of armed conflicts, particularly internal conflicts involving forces in opposition to the authorities in power, and which control sections of the territory. In such circumstances, torture and other forms of ill-treatment may also be inflicted by:
(See Part I, Chapter 3.6 for a discussion of allegations against non-state actors)
Anybody can be a victim of torture - man or woman, young or old, religious or atheist, intellectual or farmer. Very often the determining factor may be membership of a particular political, religious, or ethnic group or minority. However, no-one should be considered immune.
There is a tendency among those who report allegations of torture and other forms of ill-treatment to concentrate on information relating to "political prisoners", those involved in politics and usually in opposition to the authorities in power. However, common criminals, particularly those accused of serious crimes, are very typically the victims of torture, perhaps for the purpose of obtaining information or a confession, or simply for the purpose of extortion or intimidation. Where the purpose is to spread terror among a population, all are equally at risk. It is very important not to give the impression that only "political prisoners" are at risk, by focusing on them to the exclusion of other victims who may also be very much at risk.
The identity of the victim is important because:
Specific examples where the identity of the victim may be of particular relevance include:
A more complete list of the types of characteristics which should be noted will be provided in Part II, Chapter 4.1.
Torture may take place in any location, especially in countries where there is a widespread climate of violence. High-risk locations are those where interrogation is likely to take place, such as police and gendarme stations, and any other place of detention, especially pre-trial detention.
While the majority of such places will be familiar to those in the local area and are official places of detention, it is fairly common for other, unacknowledged places of detention to exist also. These could range from installations which are regularly used for such purposes, (e.g. a disused factory or Government buildings), to those which are used in a particular case because they are convenient on that occasion. (e.g. a school building used as a holding area, or even open land).
Remember that torture does not have to be confined to a place of detention and may occur in the victim's own home or during transportation to an official place of detention.
Rather than focusing too firmly on locations as such, it is probably more useful to think in terms of the stage of the process of arrest and detention at which detainees are most at risk.
Allegations of torture and other forms of ill-treatment may be received in a wide range of contexts and places. In general, they are unlikely to be received in the place where the torture has occurred, but rather in the very next place where the torture victim feels able to speak freely. This could be upon transfer to prison if he has been tortured while in police custody, in court, upon release and return to the community, or even upon leaving the country.
General contexts in which you may receive or obtain allegations could include:
Specific contexts in which you may receive or obtain allegations could include:
Most of these contexts are self-evident. However, information can also sometimes be found in unusual places of which one might not immediately think, and it pays to be resourceful. This is particularly true of information which is able to support or provide evidence of an allegation which has been made orally in an interview or elsewhere. Possible places to look or people to talk to include:
The typical contexts in which torture allegations may be received need little elaboration. However, there are some settings in which it would be useful to be aware of certain specific factors.
Detainees are understandably less willing to make allegations of ill-treatment while still in the custody of the investigating forces (pre-trial detention), and in such settings you should be especially aware of the security of the individual. As a general rule, detainees are more willing to discuss their experiences at the hands of the investigating authorities once they have been convicted and are held in a regular prison.
The distinction between the two categories of places of detention and their respective sense of safety can be blurred, however, by several factors: in some countries, both pre-trial and convicted prisoners may be held in the same institution; in others, the staff of one or both types of institutions may originate from the very same authority as is responsible for the investigation, such as the police. In such cases, you should be aware that being transferred to another place of detention does not necessarily mean being transferred out of reach of the investigating authorities.
Access to custodial institutions is difficult, but certain NGOs may have privileged access by agreement with the authorities, usually to convicted prisoners only, to provide health care, food or as part of a system of prison visiting. In such cases, however, it should be borne in mind that confidentiality may be a condition of access (see in particular the activities of the International Committee of the Red Cross, Part III, Chapter 7.2). Other persons who may have access to prisons include lawyers and healthcare professionals.
In such circumstances, three broad categories of allegations may be received.
First, particularly in the case of new arrivals, allegations may be received about treatment experienced prior to arrival at the institution, whilst in the hands of the investigating authorities.
Second, allegations may be received about individual incidents which have occurred within the institution, such as abuse of an individual by a guard or by other inmates with the approval or encouragement of guards, a specific event such as a riot in which named individuals were attacked by guards, a particularly extreme case of solitary confinement, or the case of an individual who has been refused adequate medical treatment for a serious condition.
Lastly, information can be obtained about general conditions in the institution, such as the living space, hygiene, a particularly distressing aspect of the institutional regime, unacceptable methods of punishment such as the use of chains or fetters, or prolonged isolation. Where possible, interviewing prisoners individually, rather than in groups, allows allegations about the institution to be better corroborated. It is worth bearing in mind that prisoners who have been in the institution for a long time will be more familiar with the general conditions than those who have just arrived.
A talk with the doctor at the institution can be very informative, particularly if he is willing to show you the medical files of prisoners. Of course, such access to medical files should be consistent with the need to protect the identity of individuals where confidentiality is expected (see note on confidentiality in Part I, Chapter 2 above). Where medical examinations are carried out upon arrival at a prison, it is particularly useful to ask to see the medical report of this first examination, as it may provide evidence of injuries received while in police custody, or show that the individual was in good health on arrival and may have received injuries or become ill subsequently. Doctors may be more inclined to show you evidence of events which occurred outside of their institution as this is less likely to have implications for them.
IMPORTANT : You should be aware that there may be repercussions for the doctor depending on how you intend to use this medical information. If possible, this should be discussed with the doctor or other health staff, and consent obtained if names of either the staff or the victim are to be used (see note on informed consent in Part I, Chapter 2 above).
In countries where torture is a regular occurrence, doctors are sometimes early witnesses, when they are called to treat the resulting injuries or psychological trauma of ill-treatment. In some countries there is an area of medicine, known as forensic medicine, in which the doctors have specialised knowledge of types and probable causes of injuries or disease. For legal reasons the forensic doctor is often asked by the police or courts to examine victims of violence and should keep detailed records. While doctors may be too afraid to report cases themselves, requesting a medical file, either from the forensic doctor, the family doctor, hospital or prison doctor, if this is possible, could yield valuable information. Again the issues of consent and confidentiality should be discussed (see Part I, Chapter 2).
Professional ethics requires doctors to make accurate reports, and yet in some cases there may be strong pressure to omit findings or even falsify reports. One of the difficulties of medical reports may be that injuries are often described without listing a probable cause. In such a case, it may be possible to ask an independent expert to interpret the findings to see if they are consistent with allegations of torture.
Camps and centres for forcibly displaced persons, whether within or outside their own country, particularly in conflict zones, are inevitably home to many deeply traumatised persons who have both experienced and witnessed torture, and who may wish to make allegations of such. If information is sought in connection with a specific incident or series of events, these camps will often contain persons originating from the same region or village who can provide corroboration. Some caution will nonetheless need to be exercised in consequence, first because there may be a possibility of obtaining an unbalanced account of events if the population of the camp consists mainly of one group, and secondly because perpetrators may also have concealed themselves in the camp and may give misleading information. Where information obtained from refugees appears to indicate that widespread torture is one of the causes of the refugee flow, you should consider passing on the information to the UN High Commissioner for Refugees - see Part III, Chapter 7.2.
Many human rights abuses, including torture, occur in the context of political unrest, tensions and conflict. In such circumstances, it is often the case that the perpetrators of torture are not only state officials, but also private persons with no connection to the state (usually referred to as non-governmental or non-state actors). This is a very difficult and very real problem from many angles, but for the purposes of this handbook, the question is: Can any action be taken in response to allegations of torture by non-governmental actors?
You will have seen earlier in this chapter that the basic definition of torture contained in the UN Convention Against Torture makes reference to the actions of 'a public official or other person acting in an official capacity'. Does this mean that international human rights law considers private acts of cruelty to be acceptable? No - the definition is limited to persons acting in an official capacity because states are expected to deal with the actions of private persons themselves through their own domestic law.
Human rights law does foresee the possibility that states might not do this, however - consequently, a state can be held responsible not only for its actions (the deliberate practice of torture), but also for its omissions (failure to take effective measures to prevent torture from occurring/ failure to prosecute perpetrators/failure to investigate allegations).
What consequences does this have for the possibility of taking action in response to allegations of torture by non-governmental actors? It means that:
The international law of armed conflict (ILAC) is a type of law which applies only in situations of armed conflict, both international (where the conflict involves two or more states) and non-international (where the conflict takes place within the territory of a single state, and may involve governmental forces and one or more opposition forces, or only non-governmental forces divided into opposing factions).
ILAC prohibits the torture, cruel, inhuman or degrading treatment of any person in the power of the other party including, in the case of non-international armed conflict, where that party is non-governmental in nature. (Common Article 3 of the Geneva Conventions of 1949)
This appears promising - here is a legal obligation binding on non-governmental actors not to practise torture. Unfortunately, there are difficulties in implementing this obligation, because ILAC relies mainly on domestic criminal law for its enforcement, which means that either perpetrators have to be captured and tried by the governmental party, or the non-governmental forces need to have their own legal system incorporating such obligations.
Certain particularly grave violations of ILAC are considered so serious that it is also possible for any state to try a perpetrator in its domestic courts (universal jurisdiction), but only if its domestic legislation allows this. Few states are as yet willing to do this, but this may change in the future. In recent years, it has proved possible to establish international tribunals on two occasions specifically to examine possible violations of ILAC - in the case of the Former Yugoslavia and that of Rwanda. However, they can only examine matters arising from those particular conflicts. An even newer development is the creation of a permanent International Criminal Court (ICC) which will be able to examine, among other things, matters relating to violations of ILAC. However, the ICC has not yet begun to function and it is not yet clear what role, if any, NGOs will have in the process.
Crimes against humanity are particularly grave violations of human rights committed on a large scale. They are generally considered to include torture and other inhuman treatment, when committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack. They do not have to be committed in the context of an armed conflict and the policy to commit the attack can be carried out by a non-governmental group. This means that it may be possible to hold non-governmental actors responsible for acts of torture committed in the context of a wider policy.
As with ILAC, there are difficulties with the enforcement of crimes against humanity. It will be possible for the ICC to examine allegations of such crimes when it begins to function, but it is difficult to predict how this will work. This entire category of crimes is considered so serious that it is also possible for states to exercise universal jurisdiction over them, but only where their national law allows this, as with grave violations of ILAC. A further consequence of their seriousness is that there is no time limit for the prosecution of perpetrators - with some crimes, prosecutions must be started within a certain amount of time, e.g. 10 years after the incident, but such limits do not apply to crimes against humanity.
Like public officials, non-governmental perpetrators of torture and other forms of ill-treatment can be prosecuted under the national law of the country where the torture or ill-treatment occurred. The exact law under which this may be done will vary from one country to the other, and could include legislation implementing ILAC or crimes against humanity as previously mentioned. More commonly it could take the form of, for example, a prosecution for assault, causing grievous bodily harm or rape.
This will depend on what you hope to achieve with the information. Possible courses of action are far more limited than where your allegation concerns official action, and you should be aware that the likelihood of obtaining concrete results is low. Nonetheless, if you present your information the right way, you may be able to increase the possibility of achieving something.
You should start by seeking a remedy under the domestic law of the state in which the torture took place (as you will see in Part III, this is the usual first step to seeking an individual remedy). Remember to check if there is any implementing legislation which allows prosecution on the basis of ILAC or crimes against humanity.
If this is unsuccessful, you may be able to apply to an international body. Under human rights law, it is not possible to hold non-governmental actors directly accountable, so you should proceed against the state as you would with a regular allegation, but you will need to base your submission on an argument that the state has failed in its obligations by omission - that it has failed to take steps to prevent torture, to investigate the allegation adequately or to prosecute the perpetrator.
It is also possible to apply to an international body to prevent the expulsion of a person to a country where he or she is believed to be at risk of torture, even if this risk is at the hands of non-governmental actors. This has been confirmed only quite recently, and has been applied by both the Committee Against Torture and the European Court of Human Rights in the case of proposed expulsions to Somalia. It is possible that this will prove to be a special case because of the complete absence of central governmental authority in that country, such that the non-governmental actors could be considered to be carrying out the functions of a Government and thus "acting in an official capacity". However, these are encouraging precedents suggesting that the important factor is the risk itself rather than the origin of the risk.
As with those which receive individual cases, international bodies examining a state's general human rights situation are not really in a position to take concrete action in relation to violations by non-governmental actors, but it is very important for them to be informed of the role of non-governmental actors in that general situation. This helps them to understand the context and to know what the Government should in fact be held responsible for. Very often, governments will try to argue that any abuses which occur are perpetrated by opposition forces - if you can provide accurate information about what those forces do and do not do, the international body will be better equipped to respond to such arguments.
Ultimately, it may be that the most effective course of action is to make sure that the actions of the non-governmental actors are public knowledge - both by sending the information to the international bodies for context-setting purposes, and through active lobbying (see Part III, Chapter 7 for suggestions regarding lobbying). Where international human rights law cannot provide a great deal of assistance in cases involving non-governmental actors, public pressure may still do so.
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| I. Preliminary Matters: section links... | |||
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1. Introduction - 2. How to use this Handbook - 3. Setting the Context - Summary of Part I | ||
| Handbook links... | website home page | ||
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Table
of Contents
- Search - Part I: Preliminary
Matters - Part II: Documenting Allegations
- Part III: Responding to the Information Collected
- Appendices |
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