Document - Combating Torture: a manual for action


COMBATING TORTURE

- A MANUAL FOR ACTION

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Universal Declaration of Human Rights, Article 5



Cover image: © Tim Page/CORBIS



Amnesty International is a worldwide voluntary activist movement working for human rights. It is independent of any government, political persuasion or religious creed. It does not support or oppose any government or political system, nor does it support or oppose the views of those whose rights it seeks to protect. It is concerned solely with the impartial protection of human rights.

Amnesty International's vision is of a world in which every person enjoys all the human rights enshrined in the Universal Declaration of Human Rights and other international human rights standards.

Amnesty International undertakes research and action focused on preventing and ending grave abuses of the rights to physical and mental integrity, freedom of conscience and expression, and freedom from discrimination. In this context, it:

seeks the release of prisoners of conscience: these are people detained for their political, religious or other conscientiously held beliefs or because of their ethnic origin, sex, colour, language, national or social origin, economic status, birth or other status -- who have not used or advocated violence;

  1. works for fair and prompt trials for all political prisoners;

  2. opposes without reservation the death penalty, torture and other cruel, inhuman or degrading treatment or punishment;

  3. campaigns for an end to political killings and "disappearances";

  4. calls on governments to refrain from unlawful killings in armed conflict;

  5. calls on armed political groups to end abuses such as the detention of prisoners of conscience, hostage-taking, torture and unlawful killings;

  6. opposes abuses by non-state actors where the state has failed to fulfil its obligations to provide effective protection;

  7. campaigns for perpetrators of human rights abuses to be brought to justice;

  8. seeks to assist asylum-seekers who are at risk of being returned to a country where they might suffer serious abuses of their human rights;

  9. opposes certain grave abuses of economic, social and cultural rights.

  10. Amnesty International also seeks to:

  11. cooperate with other non-governmental organizations, the United Nations and regional intergovernmental organizations;

  12. ensure control of international military, security and police relations to prevent human rights abuses;

  13. organize human rights education and awareness raising programs.

Amnesty International is a democratic, self-governing movement with more than a million members and supporters in over 140 countries and territories. It is funded largely by its worldwide membership and public donations.



Combating torture

- a manual for action


Amnesty International Publications



Update: The Optional Protocol to the UN Convention against Torture, providing for a global system of inspection visits by international experts to places of detention, working as a complement to national inspection institutions, as a safeguard against torture (see pages 141-142, 205), was adopted by the UN General Assembly voting in plenary session on 18 December 2002. Amnesty International is calling on all states parties to the Convention against Torture to become parties to the Optional Protocol as soon as possible.



First published in 2003 by

Amnesty International Publications

International Secretariat

Peter Benenson House

1 Easton Street

London WC1X 0DW

United Kingdom


www.amnesty.org


© Copyright

Amnesty International Publications 2003

ISBN: 0-86210-323-1

AI Index: ACT 40/001/2003

Original language: English




Printed by:

The Alden Press

Osney Mead

Oxford

United Kingdom


All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording and/or otherwise without the prior permission of the publishers.


The information in this manual covers the period up to 31 December 2001. Some details have been updated to October 2002.


The manual draws from the ideas and experiences of human rights defenders around the world. Amnesty International particularly wishes to thank the following experts for their valuable comments on the manuscript: Federico Andreu Guzman, Roland Bank, Danielle Coquoz, Andrew Coyle, Ralph Crawshaw, Malcolm D. Evans, Rod Morgan, Jelena Pejic, Sir Nigel Rodley and Wilder Tayler.


Please note that readers may find some of the photographs and case histories contained in this report disturbing.




Combating torture

- a manual for action



Contents


List of action examples X

Abbreviations XI

List of cases XIII


Foreword 1



1 The growth of the international response to torture

1.1 The rise of an international movement

1.2 Changing understandings of torture

1.3 Torture and discrimination

1.4 The importance of political will: Amnesty International’s 12-Point Program

1.5 The international system for human rights protection



2 The fight against torture - case studies

2.1 Introduction

2.2 Israeli Occupied Territories: Outlawing "legal" torture

2.3 Peru: Designating torture as a specific crime

2.4 USA: Federal action to combat local abuses

2.5 India: Landmark judgment establishes safeguards

2.6 Austria: Death of deportee triggers human rights reforms

2.7 South Africa: Exposing torture under apartheid


3 International law and the obligations of states

3.1 Introduction

3.2 A conjunction of international standards

3.2.1 General human rights instruments

3.2.2 Specialized instruments on the prohibition and prevention of torture

3.2.3 Other specialized human rights treaties

3.2.4 International humanitarian law

3.2.5 Crimes under international law: war crimes, crimes

against humanity and genocide

3.2.6 General international law

3.2.7 Non-binding standards

3.3 What is prohibited?

3.3.1 Defining torture

3.3.2 Rape as torture

3.4 The expanding understanding of the scope of torture

3.5 When is torture prohibited?

3.6 Relation to other human rights norms

3.7 Obligations of the state: prevention, investigation, punishment, reparation 3.8 Protection against abuses by private individuals


4 Safeguards in custody

4.1 Introduction

4.2 Safeguards at arrest

4.2.1 Grounds and procedures for arrest

4.2.2 Informing prisoners of the reasons for their arrest, and of their rights

4.2.3 Notifying relatives and others

4.2.4 Safeguards during transport to a place of detention

4.2.5 Record-keeping

4.3 No secret detention

4.4 Bringing prisoners before a judicial authority

4.5 Access to the outside world

4.6 Access to legal counsel

4.7 Medical examinations and care

4.8 Habeas corpus and other judicial remedies for protecting prisoners

4.9 Safeguards during interrogation

4.10 Safeguards for particular groups

4.11 Safeguards at release

4.12 Blocking the use of evidence obtained through torture



5 Conditions of detention

5.1 Introduction

5.2 Reducing the use of custody and imprisonment

5.3 Accommodation

5.3.1 Physical conditions

5.3.2 Separation of categories of prisoners

5.3.3 Location

5.3.4 Sanitation, hygiene, clothing and beds

5.4 Other aspects of treatment

5.4.1 Food and drink

5.4.2 Medical care and the role of health professionals

5.4.3 Exercise, recreation and other facilities

5.4.4 Contact with the outside world

5.5 Discipline and security

5.5.1 Searches

5.5.2 Use of force

5.5.3 Restraint techniques and devices

5.5.4 Disciplinary punishments

5.5.5 Solitary confinement

5.5.6 Preventing inter-prisoner violence

5.6 Record-keeping

5.7 Standards for particular groups

5.7.1 Women

5.7.2 Children

5.7.3 Lesbian, gay, bisexual and transgender people

5.7.4 Pre-trial detainees

5.7.5 Asylum-seekers and other immigration detainees

5.8 Visits of inspection

5.9 Ensuring prisoners’ rights

5.9.1 Explaining prisoners’ rights

5.9.2 Complaints

6 Other settings

6.1 Introduction

6.2 Institutional settings

6.2.1 Mental institutions and institutions for people with developmental

difficulties

6.2.2 Corporal punishment in schools

6.2.3 Orphanages

6.2.4 Forced medical treatment to change sexual orientation or gender identity

6.2.5 Ill-treatment in the armed forces

6.3 Use of force in law enforcement

6.3.1 Police weapons

6.4 Judicial and administrative corporal punishment

6.5 Torture in armed conflict

6.6 Violence in the community and the family

7 Overcoming impunity

7.1 Introduction

7.2 Prohibition in law

7.3 Investigation

7.4 Bringing those responsible to justice

7.5 Justice abroad: universal jurisdiction

7.6 International criminal tribunals

7.7 Reparation


8 Building a world without toture

8.1 Introduction

8.2 Action towards other governments

8.3 Protecting people fleeing from torture

8.4 Stopping the torture trade

8.5 Intergovernmental action: the unfinished agenda

8.6 The role of the medical profession

8.7 Towards a world without torture: the role of civil society



Appendices

Appendix 1 Bibliography: Books, articles and manuals


Appendix 2 Bibliography: Amnesty International documents


Appendix 3 Bibliography: United Nations documents and publications


Appendix 4 Cases and judicial rulings


Appendix 5 Checklist of international and regional instruments


Appendix 6 Prohibitions of torture and ill-treatment in international and regional human rights instruments (extracts)


Appendix 7 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Part 1)


Appendix 8 Common Article 3 to the four Geneva Conventions of August 12, 1949 (extract)


Appendix 9 Rome Statute of the International Criminal Court (extracts)


Appendix 10 Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment


Appendix 11 General Comment 20 on Article 7 of the International Covenant on Civil and Political Rights, adopted by the Human Rights Committee


Appendix 12 General Recommendation 19 on violence against women, adopted by the Committee on the Elimination of Discrimination against Women


Appendix 13 Declaration on the Elimination of Violence against Women


Appendix 14 Consolidated recommendations of the Special Rapporteur on torture


Appendix 15 Corporal punishment: Observations of the Special Rapporteur on torture


Appendix 16 Amnesty International’s 12-Point Program for the Prevention of Torture by Agents of the State


Endnotes


List of action examples


Country

Albania: Action by the government and civil society

Bhutan: Gaining access for ICRC visits

Bolivia: Ill-treatment in the armed forces

Brazil: Practical reforms for prisoners

Brazil: Action by public prosecutors

Chile: The Pinochet case - an attempt to exercise universal jurisdiction

China: Exposure by the press

Haiti: Improving the treatment of prisoners

Iran: Action by parliament

Japan: Action for detained asylum-seekers

Jordan: Rejecting evidence obtained under torture

Kenya: Ending corporal punishment in schools

Morocco: Prison visits by national NGOs

Namibia: Ending the use of chains

Rwanda: Urgent action to relieve conditions of detention

Senegal: Action to end torture by the armed forces

Sri Lanka: Torture victims helped by court appearances

Zaire: Victim of torture wins protection



Abbreviations


Abbreviated titles of international and regional instruments and other abbreviations used in this manual are given below, along with their full titles. Further information on international and regional instruments can be found in Appendix 5.


Abbreviation

Full name


Additional Protocol I

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts



Additional Protocol II

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts



Basic Principles on Force and Firearms

(UN) Basic Principles on the Use of Force and Firearms by Law Enforcement Officials



Beijing Rules

United Nations Standard Minimum Rules for the Administration of Juvenile Justice



Body of Principles on Detention

(UN) Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment



CEDAW

(UN) Committee on the Elimination of Discrimination against Women



CINAT

Coalition of International NGOs against Torture



Convention against Torture

(UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment



CPT

(See European Committee for the Prevention of Torture)



Declaration against Torture

(UN) Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment



Declaration on Enforced Disappearance

(UN) Declaration on the Protection of All Persons from Enforced Disappearance



Draft Basic Principles on Reparation

Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Violations of International Human Rights and Humanitarian Law



ECOSOC

UN Economic and Social Council



European Committee for the Prevention of Torture (CPT)

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

d


European Convention for the Prevention of Torture

(European) Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

European Convention on Human Rights

(European) Convention for the Protection of Human Rights and Fundamental Freedoms



First Geneva Convention

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949



(first) Optional Protocol to the ICCPR

Optional Protocol to the International Covenant on Civil and Political Rights



Fourth Geneva Convention

Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949



Geneva Convention

Convention on the Prevention and Punishment of the Crime of Genocide



Genocide Convention

Convention on the Prevention and Punishment of the Crime of Genocide



ICCPR

International Covenant on Civil and Political Rights



ICRC

International Committee of the Red Cross



NGO

non-governmental organization



PRI Handbook

Making Standards Work: An International Handbook on Good Prison Practice, published by Penal Reform International (cited in Appendix 1)



Principles on the Investigation of Torture

(UN) Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment



Refugee Convention

(UN) Convention relating to the Status of Refugees



Rome Statute

Rome Statute of the International Criminal Court



Rwanda Tribunal

International Criminal Tribunal for Rwanda



Second Geneva Convention

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949



Special Rapporteur on violence against women

(UN) Special Rapporteur on violence against women, its causes and consequences



Standard Minimum Rules

(UN) Standard Minimum Rules for the Treatment of Prisoners



Third Geneva Convention

Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949



Tokyo Rules

United Nations Standard Minimum Rules for Non-custodial Measures



UK

United Kingdom



UN

United Nations



UN Charter

Charter of the United Nations



USA

United States of America



Yugoslavia Tribunal

International Criminal Tribunal for the former Yugoslavia





List of cases

Short notes of cases cited in the manual are listed below, with page references. Full case listings are given in Appendix 4.



Case Pages

A v. Australia, 298

A v. UK, 85, 86, 304

Aguado v. Nicaragua, 287

Ahmed v. Austria, 316

Akayesu, Prosecutor v., 186, 187, 280

Aksoy v. Turkey, 308

Al-Adsani v. UK, 276, 278, 314

Alan v. Switzerland, 315

Aleksovski, Prosecutor v., 189

Aloeboetoe and other v. Suriname, 312

Assenov and others v. Bulgaria, 306, 307, 308

Attorney General of Namibia, Ex Parte, In re Corporal Punishment by Organs of State, 303

Ayd2n v. Turkey (23178/94), 75

Ayd2n v. Turkey (28293/95, 29494/95 and 30219/96), 312

Azanian People's Organisation (AZAPO) and others v. President of the Republic of South Africa and others, 273


Barcelona Traction case, 276

Basu v. State of West Bengal, 40, 43, 286

Ben M’Barek v. Tunisia, 307

Blake v. Guatemala, 78, 312, 313

Blanco Abad v. Spain, 306,307

Blaskiæ, Prosecutor v., 188-9, 283


Çakici v. Turkey, 282

Carandirú case (Brazil), 296

Castillo Petruzzi and others v. Peru, 131

Celis Laureano v. Peru, 78, 285

Chahal v. UK, 216

Costello-Roberts v. UK, 300

Cyprus v. Turkey (6780/74 and 6950/75), 294

Cyprus v. Turkey (25781/94), 282


D v. UK, 316

Delaliæ and others, Prosecutor v., 186-8,276, 305, 310

Democratic Republic of the Congo v. Belgium, 309

Dougoz v. Greece, 281

East African Asians v. UK, 79-80, 284

Elmi v. Australia, 277, 316

Espinoza de Polay v. Peru, 297


Filártiga v. Peña-Irala, 313

Fox, Campbell and Hartley v. UK, 286

n Furundzija, Prosecutor v., 186, 188, 276, 277, 280, 305, 311


G.R.B. v. Sweden, 277

Greek Case, 71, 77

Grille Motta v. Uruguay, 312

Güleç v. Turkey, 301, 302


H.L.R. v. France, 316

Habeas Corpus in Emergency Situations, 289

Heredia Miranda v. Bolivia, 284

Hurtado v. Switzerland, 288


Ilhan v. Turkey, 313

Ireland v. UK, 72, 77


Jelisic, Prosecutor v , 189


Kaya, Mahmut, v. Turkey, 278, 285, 304

Keenan v. UK, 131, 278, 295

Kelly and others v. UK, 308

Kelly, Paul, v. Jamaica, 289

Kisoki v. Sweden, 315

Kudla v. Poland, 278

Kunarac and others, Prosecutor v., 187, 188, 277, 279, 280

Kupreskic and others, Prosecutor v., 189

Kurt v. Turkey, 78

Kvoèka and others, Prosecutor v., 189, 227


La Rosa Bustamante v. Peru, 303

López Burgos v. Uruguay, 313


McCann and others v. UK, 302

Mejía v. Peru, 75, 284, 306

Military and Paramilitary Activities in and against Nicaragua, 275

Mukong v. Cameroon, 293

Murray, John, v. UK, 289

Mutombo v. Switzerland, 316


Namunjepo and others v. Commanding Officer, Windhoek Prison and another, 130

Ncube and others v. The State (Zimbabwe), 303

Neira Alegría and others v. Peru, 295-6

Ng v. Canada, 282, 316

O.R., M.M and M.S. v. Argentina, 308


Párkányi v. Hungary, 295

Parot v. Spain, 306

Peers v. Greece, 278, 281

Public Committee against Torture in Israel and others v. The State of Israel and others, 283


Quinteros v. Uruguay, 78

Raninen v. Finland, 278

Ribitsch v. Austria, 282, 284, 301

Rodríguez v. Uruguay, 306

Rojas García v. Colombia, 280, 313


Salman v. Turkey, 278

Satik and others v. Turkey, 295, 301

Selçuk and Asker v. Turkey, 78

Selmouni v. France, 278

Soering v. UK, 79

State v. Williams and others, 303


T.I. v. UK, 316

Tadiæ, Prosecutor v., 186, 187, 275, 310

Tala v. Sweden, 315

Tomasi v. France, 283, 284

Tyrer v. UK, 72, 282, 284


Velásquez Rodríguez v. Honduras, 78, 83, 86, 297, 304, 306

Vuolanne v. Finland, 278


W v. Switzerland, 293

Winterwerp v. The Netherlands, 300


Z and others v. UK, 285, 304, 313


[photo caption]

Drawing by a former prisoner showing an interrogation technique used by the security forces in Casamance, Senegal, in the 1990s. The prisoner is beaten with ropes and clubs while suspended from an iron bar between two tables. (The captions bar de fer, table and position pour interrogatoir mean "iron bar", "table" and "position for interrogation".)

© Private

[end caption]


Foreword



"They started asking me questions from the first moment they put me into the minibus. When I did not answer, they started threatening me in the following manner. ‘You don’t talk now,’ they would say; ‘in a few minutes, when our hands will start roaming in between your legs, you will be singing like a nightingale’...

"[T]hey forced me to take off my skirt and stockings and laid me down on the ground and tied my hands and feet to pegs. A person by the name of Umit Erdal beat the soles of my feet for about half an hour. As he beat my soles he kept on saying, ‘We made everybody talk here, you think we shall not succeed with you?’ and insulting me...

"Umit Erdal attacked me and forced me to the ground. I fell on my face. He stood on my back and with the assistance of somebody else forced a truncheon into my anus. As I struggled to stand he kept on saying ‘You whore! See what else we will do to you. First tell us how many people did you go to bed with? You won’t be able to do it any more. We shall next destroy your womanhood’...

"They attached an electric wire to the small toe of my right foot and another to the end of a truncheon. They tried to penetrate my feminine organ with the truncheon. As I resisted they hit my body and legs with a large axe handle. They soon succeeded in penetrating my sexual organ with the truncheon with the electric wire on, and passed current. I fainted. A little later, the soldiers outside brought in a machine used for pumping air into people and said they would kill me..."


Statement of Ayse Semra Eker, arrested in Turkey in May 1972

This young woman’s harrowing account of her treatment at the hands of the Turkish secret service opened Amnesty International’s first major report on torture, published in 1973.1With minor changes, it could equally well describe a torture session at the beginning of the new millennium. The cruelty, the threats, the beatings, the use of electricity, the sexual attacks, the infliction of agonizing pain, the assault on the inner self in an attempt to attain the victim’s total subjugation - all these techniques of torture are still with us today. Despite the redoubled efforts over the past half century to eliminate it, torture remains rife.

A survey of Amnesty International’s research files from 1997 to mid-2000 found that the organization had received reports of torture or ill-treatment*(1)by agents of the state in over 150 countries during the period. In more than 70 countries the victims included political prisoners,**(2)but ordinary criminals and criminal suspects had reportedly been victims of torture or ill-treatment in over 130 countries. People had reportedly died as a result of torture in over 80 countries. These figures related only to actions by state agents and did not include abuses by armed political groups and private individuals that can be assimilated to the notion of torture or ill-treatment.2

In October 2000 Amnesty International launched a worldwide campaign against torture, the third in the organization’s history. The slogan "Take a step to stamp out torture" was chosen to emphasize that people all over the world have important roles to play in combating torture and ill-treatment. The campaign was meant to rouse world opinion so as to ensure that the fight against torture remains high on the world agenda.

The Universal Declaration of Human Rights states that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. Since its adoption in 1948, much has happened in the fight against torture. The United Nations (UN) and regional intergovernmental organizations3 have adopted detailed safeguards for the prevention of torture and have created mechanisms for tackling the problem. Governments have introduced legal reforms. National courts have adopted important decisions. Non-governmental organizations (NGOs) have been formed to combat torture and assist the victims. Lawyers, doctors and other professionals have acted courageously and expertly. Ordinary citizens have taken part in the effort, putting pressure on governments to act. Much has been accomplished, but the persistence of torture shows that there is still much to be done.

This manual for action is about the fight against torture. It brings together the ideas, the techniques, the achievements, the standards of governmental behaviour and the means of implementing those standards that have emerged from the efforts of anti-torture activists around the world over the past 25 years and more. The hope is that people and organizations around the world concerned about torture will benefit from learning what others have done, thus strengthening the fight against torture.

Chapter 1of the manual outlines the development and principal achievements of the fight against torture since the Second World War. It gives an account of the evolving perceptions of the issue, offers a framework for action against torture based on the notion of political will, and provides brief descriptions of the main international and regional bodies and mechanisms established to combat torture - the UN Committee against Torture, the UN Special Rapporteur on torture and the European Committee for the Prevention of Torture (CPT).

Chapter 2presents case studies illustrating the various routes that have been taken to combat torture in six countries, where achievements have often resulted from a combination of factors. Some factors may be unique to the country concerned, but others are of wider significance.

Chapter 3outlines the evolving international standards that provide a framework for action against torture. It describes the obligations of states under international law to prohibit and prevent torture and to bring those responsible to justice.

Chapters 4 and 5 are concerned with abuses inflicted on people who have been taken into custody by agents of the state. Chapter 4describes the safeguards which have been devised to protect prisoners, especially in the early stages of detention when the risk of torture is often greatest. Chapter 5deals with the conditions under which prisoners are held, some of which, singly or in combination, can constitute torture or ill-treatment.

Chapter 6is on torture in other settings. It covers issues such as torture and ill-treatment in schools and mental institutions, corporal punishment, torture in armed conflict and violence in the community and the family.

Chapter 7deals with prohibiting torture under national law, investigating complaints and reports of torture, bringing those responsible to justice and providing reparation to victims. It includes information on the exercise of universal jurisdiction and the work of the International Criminal Tribunals for the former Yugoslavia and Rwanda.

Chapter 8describes additional measures to be taken by governments concerning the infliction of torture abroad, with recommendations on such matters as stopping the torture trade and preventing people being forcibly returned to a country where they risk being tortured. It also discusses the roles of the medical profession and other parts of civil society in eradicating torture.

Where possible, the manual cites the most important relevant international standards and gives ideas for practical implementation. Some sections are accompanied by action examplesdescribing efforts which have brought results. Torture and ill-treatment may not have ended, but the achievements have all been significant in some way. These examples are not the only ones - many others could have been cited - but they have been chosen because they illustrate a broad variety of approaches to the challenge of fighting torture. Suggestions are also given for further reading.

Amnesty International’s latest worldwide campaign against torture has sought to achieve progress in three interrelated areas - preventing torture, confronting discrimination and overcoming impunity. These three ideas are reflected throughout the manual. In particular, the relation between torture and discrimination is discussed in Chapter 1; preventive safeguards are described in Chapter 4, particularly in relation to people held in custody; and the measures needed to overcome impunity for torture by agents of the state are set out in Chapter 7.

Appended to the report are key texts, website addresses and other information which can help readers to stay abreast of developments. The developments will continue, but the basic information and ideas in this manual can serve to shape an agenda for the world anti-torture effort in the coming years.



[photo caption]

Amnesty International Secretary General Pierre Sané (left) in December 1998 presenting UN Secretary-General Kofi Annan with millions of pledges of support for the Universal Declaration of Human Rights on the 50th anniversary of its adoption. The adoption of the Universal Declaration of Human Rights in 1948 signified a consensus among states that everyone has the right not to be tortured or ill-treated.

[end caption]



Chapter 1: The growth of the international response to torture



1.1 The rise of an international movement

Over the years, the horror of torture has incited people to take action against it. This chapter traces the growth of the anti-torture movement since the Second World War and outlines the changes in the way the issue has been seen.

Article 5 of the Universal Declaration of Human Rightsstates: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The adoption of the Universal Declaration of Human Rights by the UN General Assembly in 1948 signified a consensus among states that everyone has a right not to be tortured or ill-treated. Under the International Covenant on Civil and Political Rights (ICCPR), adopted in 1966, this right must never be curtailed, even "[i]n time of public emergency which threatens the life of the nation" (Article 4). International humanitarian law, commonly referred to as the laws of war, also absolutely prohibits torture and ill-treatment.

Torture and ill-treatment are prohibited at all times and in all circumstances under international law. Most forms of torture and ill-treatment are also prohibited under national constitutions and laws. A public official who commits or tolerates torture is violating the laws which he or she is charged with upholding.

Much of the fight against torture involves establishing the rule of law - the principle which holds that the actions of public officials must be carried out strictly according to the law, and that public officials are not above the law but must be subject to it just like ordinary citizens.1At the international level, the fight against torture can be seen as involving the development of an international rule of law - entailing a capacity to deal on an international basis with breaches by all states, without distinction, of their obligation to respect and ensure the prohibition of torture and ill-treatment, and of a capacity internationally to ensure individual criminal responsibility for torture. Many of the achievements in the fight against torture since the Second World War have been in this realm.

The formation of the United Nations (UN) after the atrocities of the Second World War was a key step in the advancement of human rights. The UN was concerned with human rights from the outset. Article 1 of the Charter of the United Nations (UN Charter), adopted in 1945, establishes that one of the purposes of the UN is "[t]o achieve international co-operation... in promoting and encouraging respect for human rights". As described in a contemporaneous UN publication,

"The promotion and protection of human rights, which was formerly vested in nation states, had been made an international responsibility. Nor was this responsibility limited merely to an international pledge set forth in general language. It became part of an international programme, sponsored by the major organs and agencies of the United Nations and articulated in the working programmes of appropriate commissions, committees, and sub-committees."2

The first major effort of the UN human rights program was the drafting of the Universal Declaration of Human Rights. By adopting it, the governments of the world, represented at the General Assembly, agreed that everyone is entitled to fundamental human rights. These rights apply everywhere, not just in those countries whose governments may choose to respect them. It follows from this principle that all governments must protect the rights of people under their jurisdiction, and that a person whose human rights are violated has a claim against the government which violates them. Furthermore, the fact that governments together adopted the Universal Declaration implies that violations of human rights are of concern to all governments. Freedom from torture and ill-treatment must be upheld everywhere.

The Universal Declaration of Human Rights has been followed over the years by the adoption of many other international and regional human rights instruments- normative texts concerned with human rights which are adopted by the UN or regional intergovernmental organizations such as the African Union (formerly the Organization of African Unity), the Organization of American States and the Council of Europe. These instruments incorporate standardsof governmental behaviour and, indirectly, of private behaviour. The standards oblige governments and their officials to refrain from torturing or ill-treating anyone and to protect people against such abuses when these are carried out by private individuals. Depending on their origin, the standards either are legally binding obligations, or are recommendations, some of which are so strong that they can be considered to constitute obligations. Many of the instruments which set out these standards have been adopted without a vote, a sign of strong agreement in that no member state represented at the body which adopted them wished to go on record as opposing them.

The drafting of human rights instruments is always a matter of intense discussion over what should or should not be included. Non-governmental organizations (NGOs) over the years have often had a strong impact on the out-come of the discussions, even though they do not belong to intergovernmental organizations and cannot vote there. Amnesty International and other NGOs have persistently pressed governments to adopt instruments giving the strongest possible protection against human rights violations.

The Universal Declaration of Human Rights was followed in 1966 by the adoption of the International Covenant on Civil and Political Rights, under whose Article 7 torture and ill-treatment are prohibited.3On becoming a party to the ICCPR, a state is legally bound to respect the prohibition and to ensure to all individuals under its jurisdiction the right not to be subjected to torture or ill-treatment. Torture and ill-treatment are prohibited in similar terms in the general regional human rights treaties adopted since the Second World War - the European Convention for the Protection of Human Rights and Fundamental Freedoms(European Convention on Human Rights), adopted in 1950; the American Convention on Human Rights, adopted in 1969; the African Charter on Human and Peoples’ Rights, adopted in 1981; and the Arab Charter on Human Rights, adopted in 1994 (not yet in force). In international humanitarian law, key treaties adopted since the Second World War - the Geneva Conventions of 1949and the 1977 Protocols Additional to the Geneva Conventions of 1949- also contain prohibitions of torture and ill-treatment.

In the 1960s and early 1970s, as an organization formed to campaign for the release of prisoners of conscience, Amnesty International was becoming increasingly aware of the problem of torture through the information it received from prisoners and other sources in different parts of the world. In 1972, on 10 December, Human Rights Day - a day established by the UN for the annual commemoration of the adoption of the Universal Declaration of Human Rights - Amnesty International launched its first worldwide Campaign for the Abolition of Torture. Its Report on Torture, published the following year, contained information on torture and ill-treatment in over 70 countries and territories in the period from 1970 to mid-1973. It was clear that many governments were flouting the prohibition of torture which they had espoused in 1948.

Exposure led to action. In 1975 the UN General Assembly adopted without a vote the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Declaration against Torture), setting out detailed measures which governments should take to prevent torture. It was followed by the adoption of UN instruments dealing with the prohibition of torture in relation to the police and medical professions.4In 1981 the General Assembly established the United Nations Voluntary Fund for Victims of Torture, an international fund for the provision of humanitarian assistance to torture victims and their families.

In the years following the Amnesty International campaign, new organizations were formed to fight torture, and the work of existing organizations developed. Amnesty International devised an Urgent Action network of members around the world who could launch immediate appeals on behalf of individuals under threat of torture. Among new NGOs, the organization known today as the Association for the Prevention of Torture was formed in 1977, initially to promote the establishment of an international system of visits to places of detention as a safeguard against torture (see section 5.8 of this manual).5The World Organization against Torture was formed in 1986 to facilitate international action by national NGOs. By the early 1980s, centres providing medical and psycho-social care for victims of torture had been established in countries where torture occurred, such as Argentina, Chile and Uruguay, as well as in countries receiving refugees, such as Belgium, Canada, Denmark, France, the Netherlands and Sweden (see section 8.6 of this manual).

While the number of international NGOs grew, national organizations increasingly took on the all-important task of combating torture in their own countries, often under extremely repressive conditions. These organizations carried out activities such as intervening urgently with the authorities when torture was feared; documenting cases; filing petitions in the courts on behalf of torture victims; and sending information to international NGOs and intergovernmental organizations which could take action from outside the country.

Despite the efforts and the achievements, torture persisted. Amnesty International launched its second Campaign for the Abolition of Torture in 1984 with the publication of Torture in the Eighties, documenting or referring to reports of torture and ill-treatment in 98 countries in the period from 1980 to mid-1983. Moving on from exposure and denunciation, the campaign focused on prevention. Amnesty International’s 12-Point Program for the Prevention of Torture publicized the most important measures needed. Connected to this was the idea that stopping torture is primarily a matter of political will.

During the campaign Amnesty International urged governments to adopt a convention against torture and to establish a UN mechanism for intervention in urgent cases of torture. On 10 December 1984 the UN General Assembly adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(Convention against Torture) - an international treaty which obliges states parties to take specific steps to prevent and investigate torture and provides for universal jurisdictionin the prosecution of alleged torturers. The Convention also provides for the establishment of a Committee against Tortureto oversee the implementation of its provisions. In 1985 the UN decided also to appoint a Special Rapporteur on torture, whose work now includes sending urgent appeals to governments in countries where a person is reportedly at risk of torture.

Over the next years the UN adopted many new instruments relating to the prevention of torture and the establishment of humane conditions of detention. One of the most important was the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment(Body of Principles on Detention), adopted by the General Assembly in 1988. Other important developments were the establishment of International Criminal Tribunals for the former Yugoslavia and Rwanda and the adoption in 1998 of the Rome Statute of the International Criminal Court, providing for international criminal trials of people accused of acts constituting war crimes, crimes against humanity or genocide, including torture (see Chapter 7).

At a regional level, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment(European Convention for the Prevention of Torture), adopted by the Council of Europe in 1987, provides for the establishment of a Committee empowered to visit places of detention in Europe, while the Inter-American Convention to Prevent and Punish Torture, adopted by the Organization of American States in 1985, provides for a system of universal jurisdiction in the Americas.

The years following Amnesty International’s second Campaign for the Abolition of Torture saw the creation of more national and international NGOs fighting torture as well as the wider availability of facilities for the treatment and care of victims. Yet the torture continued. In recent years Amnesty International has regularly received reports of torture or ill-treatment in over 100 countries each year.6

In 1993 the UN World Conference on Human Rightsadopted the Vienna Declaration and Programme of Actionstating that "one of the most atrocious violations against human dignity is the act of torture, the result of which destroys the dignity and impairs the capability of victims to continue their lives and their activities". The Conference urged "all States to put an immediate end to the practice of torture and eradicate this evil forever".7

In 1996 Amnesty International convened an International Conference on Torturein Stockholm, bringing together human rights defenders and experts from around the world. One of its tasks was to examine practical means of implementing the agreed standards. An important message emerging from the conference was that since governments had not fulfilled their obligation to stop torture, it was time for NGOs to join forces and hold governments accountable. The conference marked a new militancy and sense of common purpose among NGOs fighting torture.8

Amnesty International’s third worldwide campaign against torture, launched in October 2000, took up this theme. Among other things, the campaign aimed at enhancing collaboration between local and international NGOs in combating torture.

The new campaign also provided an opportunity to look at the problem of torture in fresh ways.



Further reading

On the history of the use of torture and of its abolition as a legal method of investigation, see Peters, 1996, Torture.

On the development of international standards against torture, see Rodley, 1999, The Treatment of Prisoners under International Law, Chapters 1-2. On the history of the Convention against Torture, see Burgers and Danelius, 1988, The United Nations Convention against Torture:A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;Boulesbaa, 1999,The U.N. Convention on Torture and the Prospects for Enforcement.



1.2 Changing understandings of torture

During the Second World War there were massive abuses of state power, committed against people deprived of their liberty and held by state agents. The international human rights instruments developed in the aftermath of the war were designed to forestall such abuses by stating absolute prohibitions and obligations, instituting safeguards and providing for effective remedies.

Amnesty International’s first Campaign for the Abolition of Torture fitted easily into this vision. The victims whose cases were described in the Report on Torturewere mainly prisoners held by the state for political reasons; the torture inflicted on them was a method of political repression. The preventive standards adopted in the aftermath of the campaign, such as those in the Declaration against Torture, were mainly for the protection of people in official custody. In pressing for the implementation of these standards, Amnesty International’s second Campaign for the Abolition of Torture followed in the footsteps of the first.

The concept of torture and ill-treatment was broader than that, however. Conditions of detention, if sufficiently bad, could amount to cruel, inhuman or degrading treatment. Forced medical or scientific experimentationwas recognized under Article 7 of the ICCPR as a form of torture or ill-treatment (see section 3.4 of this manual). Corporal punishmentalso came under the prohibition, according to the UN Human Rights Committee.9

Although the problem of torture was seen in the 1970s and 1980s mainly as having to do with political prisoners, the prohibition of torture and ill-treatment in the Universal Declaration of Human Rights applies to everyone without distinction. Many entries on individual countries in Torture in the Eightiesacknowledged that the torture and ill-treatment of ordinary criminal suspects was widespread, but most of the information which reached Amnesty International concerned political prisoners and the report accordingly focused on them.

The 1980s saw a weakening of repressive regimes and the replacement of military dictatorships by elected civilian governments in various countries, followed by the ending of the Cold War. As the use of torture against political prisoners declined, various human rights groups began paying more attention to the torture and ill-treatment of ordinary criminal suspectsand members of other groups. Along with this came a recognition of the importance of the links between torture and discrimination- discrimination against women, discrimination against the poor, discrimination against ethnic, racial and other groups, discrimination based on sexual identity - and of the need to provide special protection for the affected groups, including children, who are manifestly easier to hurt and abuse than adults.

Along with the end of the Cold War came new reports of the use of torture against civilians in armed conflicts- the rape of women and girls in the former Yugoslavia, cutting off of limbs in Sierra Leone and other atrocities elsewhere. Often the perpetrators were not governmental forces but members of opposition groups or non-state parties to armed conflicts.

As seen in the 1970s, torture typically took place in the interrogator’s room, at the secret police headquarters or in police stations, prisons and other officially recognized establishments. But exposure of the practice of "disappearance" showed that people were also being held and tortured in secret places without their detention being acknowledged. The list of settings in which the problem of torture needed to be tackled, including non-custodial settings, was also expanding the work of intergovernmental organizations. The European Convention for the Prevention of Torture provided for the establishment of a Committee (referred to in this manual as the European Committee for the Prevention of Torture, CPT) empowered to visit "any place... where persons are deprived of their liberty by a public authority" (see section 5.8 of this manual), and the CPT soon began visiting and reporting on psychiatric institutions, orphanages and holding centres for immigration detainees as well as prisons and police stations. The Human Rights Committee stated in 1992 that the prohibition of torture and ill-treatment under Article 7 of the ICCPR "protects, in particular, children, pupils and patients in teaching and medical institutions".10And when members of the public are beaten by police while lying helplessly on the ground, this can also constitute ill-treatment or torture, even if the victims have not formally been taken into custody.

A further dimension in the developing understanding of the problem of torture and ill-treatment came through the efforts of the women’s movement to address violence in the community and the family. The perpetrators in such cases were not state agents - they were private individuals - but the state was often negligent in providing protection, bringing perpetrators to justice and affording effective remedies, and the negligence was discriminatory.*(3) The Human Rights Committee referred in 1992 to the duty of states parties to the ICCPR to afford everyone protection against torture or ill-treatment "inflicted by people acting... in a private capacity".11Measures which governments should take to eliminate violence against women, including torture and ill-treatment, were elaborated in General Recommendation 19 of the UN Committee on the Elimination of Discrimination against Women (CEDAW), adopted in 1992, and in the Declaration on the Elimination of Violence against Women, adopted by the UN General Assembly in 1993 (see section 6.6).

Other human rights issues also are closely connected with the problem of torture. Amnesty International has long held that the death penaltyis the ultimate cruel, inhuman and degrading punishment and therefore violates Article 5 of the Universal Declaration of Human Rights as well as its Article 3 providing for the right to life - a view that is finding increasing acceptance.12"Disappearances" have been recognized as violations of the right not to be subjected to torture or ill-treatment, both for the victims and for their families (see section 3.4). Other abuses which have been deemed to constitute torture or ill-treatment include corporal punishment, forcible house destruction, and certain gender-specific abusesincluding female genital mutilation.**(4)

Much has changed over the years in the fight against torture. The formulation of Article 5 of the Universal Declaration of Human Rights as adopted in 1948 remains valid, but the interpretation and the applicable law have evolved. Torture is still with us, but the problem of torture is clearly vaster and more complex than it was then seen.

Amnesty International’s third worldwide campaign against torture was designed to reflect these new ideas. It has sought to publicize the ways in which abuses by private individuals can constitute torture or ill-treatment and the need for states to exercise due diligence in protecting people against violence in the community and the family.

At the international level, much of the anti-torture effort has gone into the elaboration of standards for the prevention of torture, mainly of people who are held in official custody. There is also a considerable body of standards relating to conditions of detention. Drawing from the experiences of human rights defenders around the world in fighting torture, much of this report focuses on the task of implementing the standards. This effort can help to build a human rights culture in which torture will be universally seen as unacceptable.

A report written while the understanding of a problem is still evolving can only reflect the situation at the moment of writing. A new report published 10 years hence will doubtless convey new visions of the problem of torture, new insights and new solutions.



1.3 Torture and discrimination

One of the themes of Amnesty International’s third campaign against torture has been the link between torture and discrimination, and the use of torture and ill-treatment against particularly vulnerable members of society, such as children.

Discrimination13is an assault on the very notion of human rights. It systematically denies certain people or groups their full human rights because of who they are or what they believe. It is an attack on the fundamental principle underlying the Universal Declaration of Human Rights: that human rights are everyone’s birthright and apply to all without distinction.

Torture feeds on discrimination. Torture involves the dehumanization of the victim, the severing of all bonds of human sympathy between the torturer and the tortured.14This process of dehumanization is made easier if the victim is from a despised social, political or ethnic group. Discrimination paves the way for torture by allowing the victim to be seen not as human but as an object, who can, therefore, be treated inhumanely. As stated by the Committee against Torture, "discrimination of any kind can create a climate in which torture and ill-treatment of the ‘other’ group subjected to intolerance and discriminatory treatment can more easily be accepted, and... discrimination undercuts the realization of equality of all persons before the law".15

Discrimination against certain groups heightens their vulnerability to torture by state officials in a number of ways. Discrimination enshrined in law (for example, where the law criminalizes homosexuality or restricts women’s fundamental freedoms) can act as a licence to torture. Discriminatory enforcement of laws may affect both a person’s chances of coming into contact with the criminal justice system and their treatment once in its hands.

The victim’s identity or status may also affect the nature and consequences of their ill-treatment. For example, children held in custody with adults are particularly vulnerable to rape and sexual violence. Victims from marginalized groups may also have less access to legal remedies. Discrimination reinforces impunity, lessening the likelihood of any official action in cases of torture or ill-treatment.

Discrimination also means that certain groups are denied equal protection of the law against violence inflicted on them in the community and the family, such as violence against women, attacks against street children, racist attacks and homophobic hate crimes. These violent manifestations of prejudice are often facilitated and encouraged by official inaction.


f1 The ICCPR contains a clause stipulating that its provisions are to be observed "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Article 2(1)). Other major international and regional human rights instruments which prohibit torture and ill-treatment contain similar provisions,16as do other instruments covering matters relevant to the prevention of torture, such as conditions of detention and the rights of detainees.17Under Article 1 of the Convention against Torture, the intentional infliction of severe pain or suffering "for any reason based on discrimination of any kind" is recognized as an act of torture. Conversely, international and regional instruments designed to combat discrimination or to protect particular groups contain explicit prohibitions of torture and ill-treatment, as well as prohibitions of the infliction of bodily or mental harm under which various acts of torture or ill-treatment would clearly be prohibited (see section 3.2.3 of this manual).

The Special Rapporteur on torture has discussed the torture of women18, children19and members of sexual minorities20and the links between torture and poverty21in his reports to the UN General Assembly and the UN Commission on Human Rights. The links between torture and gender have been discussed by the UN Special Rapporteur on violence against women, its causes and consequences (Special Rapporteur on violence against women). The links between torture and racism have been discussed by the Committee against Torture.

The analysis of the torture of womenby the Special Rapporteur on torture has focused particularly on rape and sexual abuse (see section 3.3.2). As the Special Rapporteur has pointed out:

"In addition to being an especially traumatic form of torture for the victim, rape may have insidious correlative consequences. In many situations a woman may be reluctant to seek redress by reporting a rape because of the severe social repercussions that may flow therefrom. The stigma attached in many communities to a woman who has been raped may result in particularly dire consequences for the private and public life of the woman. In addition to social stigma, some victims may be subjected to direct reprisals from relatives. In a few countries, where severe legal sanctions have been adopted against adultery and where the evidentiary requirements to demonstrate rape are stringent, a woman reporting a rape may risk holding herself open to prosecution. Consequently, when rape or sexual assault against a woman constitutes a torture method, the chances of the torturer acting with impunity would appear disproportionately higher than with other torture methods."22

The Special Rapporteur has pointed out that "[p]regnant women are particularly vulnerable to torture", risking miscarriage and other health risks as well as damage to the foetus. Also, "women are sometimes tortured as surrogates for the real target, who may be the victim’s spouse or family member or friend", and in some instances on which he received information, "the gender of an individual constituted at least part of the very motive for the torture itself, such as in those [instances] where women were raped allegedly for their participation in political and social activism".23

The Special Rapporteur on violence against women has stated:

"The most particularized element in custodial violence against women is the sexualization of torture. Although the sexual anatomy of men as well as women is targeted in the physical stages of torture, rape and the threat of rape, as well as other forms of sexual violence such as sexual harassment, forced impregnation, virginity testing, forced abortion, forced prostitution and forced miscarriage, are perpetrated more consistently against women detainees."24

The Committee on the Elimination of Discrimination against Women (CEDAW) established under the Convention on the Elimination of All Forms of Discrimination against Women, in its General Recommendation 19, has stated that gender-based violence against women, which may include torture or ill-treatment, constitutes discrimination within the meaning of that Convention (see section 6.6).*(5)

On the torture and ill-treatment of children, concerns raised by the Special Rapporteur on torture have included the conditions and treatment of children in places of detention and non-penal institutions; the targeting of street children for torture and ill-treatment; the torture and ill-treatment of children "in a surrogate capacity, where the intended target is in fact the child’s parents or other relatives or a friend";25the reported "lack of appropriate monitoring and complaints mechanisms for institutions dealing with children";26and the use of torture in armed conflict against child civilians and children recruited into the armed forces.**(6)

In his analysis of the use of torture and ill-treatment against members of sexual minorities, the Special Rapporteur has noted that "they are often subjected to violence of a sexual nature, such as rape or sexual assault in order to ‘punish’ them for transgressing gender barriers or for challenging predominant conceptions of gender roles".27Issues raised by the Special Rapporteur include the forms which such torture and ill-treatment have taken, the effect of discriminatory attitudes on the part of law enforcement officials and the deprivation of means to claim and ensure the enforcement of victims’ rights and to obtain legal remedies such as compensation.

In his discussion of the links between torture and poverty, the Special Rapporteur has written:

"[T]he overwhelming majority of those subjected to torture and ill-treatment are ordinary common criminals from the lowest strata of society. They are the ones who cannot afford good lawyers, or who may have access only to less-than-diligent lawyers provided, in some instances, by the State, or who may not have access to any lawyer at all; whose families do not have the connections to be taken seriously by the police, prosecutors or judges, or even the means of securing life-saving health care that may be obtained outside the place of detention, or of providing food fit to eat when the detaining authorities and institutions fail to make these available; and who do not have any idea of what their rights are, even the right not to be tortured, or how those rights may be secured. Indeed, they are often members of the lowest level of an underclass that is disconnected from all opportunity of leading decent lives as productive economic citizens."28

The Special Rapporteur has also drawn attention to the problem of the availability and use of corporal punishmentas a penal sanction against particular groups - for gender-related crimes, as in the flogging of women for adultery or for the failure to observe strict Islamic dress laws, for conduct related to sexual orientation such as transgendered behaviour and consensual same-sex relationships, and against children reportedly as young as 12.29

Regarding the links between torture and racism, the Committee against Torture has recommended among other things that states "take all necessary steps to ensure that public officials, including law enforcement officers... do not manifest contempt, racial hatred or xenophobia which may lead them to commit acts amounting to torture or ill-treatment" against "ethnic, racial, religious, linguistic or national minorities, asylum-seekers or refugees, or on the basis of any other status". The Committee has emphasized "the vital importance of having transparent and effective official procedures through which individuals can raise complaints of ill-treatment and torture perpetrated on the basis of discrimination, unequal access to justice and related concerns". The Committee has also stated that states "must ensure that racism, racial discrimination, xenophobia or related intolerance do not result in decisions of deportation to another State where there are grounds for believing that the deportee would be in real danger of being subjected to torture".30

Specific standards and safeguards for the protection against torture and ill-treatment of women, children, lesbian, gay, bisexual and transgendered people and other groups are described in the following chapters of this manual. At a more general level, it is important to address underlying factors such as discrimination and poverty which can give rise to torture and ill-treatment. All countries should ratify international and regional treaties which seek to strengthen protection against the torture or ill-treatment of members of particular groups. Governments should bring their laws and policies into line with these treaties and repeal laws which breach the fundamental principle of non-discrimination. Governments must ensure equal treatment before the law and equal access to the mechanisms of justice regardless of such factors as age, gender, race, ethnic or national origin, sexual orientation or economic status.



Further reading

The use of torture and ill-treatment against particular groups and its relation to discrimination are examined in reports published by Amnesty International in 2000 and 2001 in connection with its third worldwide campaign against torture: Broken bodies, shattered minds: Torture and ill-treatment of women;Hidden scandal, secret shame: Torture and ill-treatment of children;Crimes of hate, conspiracy of silence: Torture and ill-treatment based on sexual identity;andRacism and the administration of justice. Reports by other NGOs include Children, Torture and Power: The Torture of Children by States and Armed Opposition Groups, produced by Save the Children (Man, 2000), and reports by Human Rights Watch on torture, ill-treatment and other violence directed against women, children and members of sexual minorities. See also Van Bueren, ed., 1998, Childhood Abused: Protecting Children against Torture, Cruel, Inhuman and Degrading Treatment and Punishment.




1.4 The importance of political will: Amnesty International’s 12-Point Program

Amnesty International’s 12-Point Program for the Prevention of Torture, produced for its second Campaign for the Abolition of Torture, was designed to promote the measures which governments should take to stop torture and ill-treatment. A revised version, prepared for Amnesty International’s third worldwide campaign and entitled 12-Point Program for the Prevention of Torture by Agents of the State, is reproduced in Appendix 16 of this manual.

The 12-Point Program starts by calling on the highest authorities of every country to demonstrate their opposition to torture by condemningit unreservedly whenever it occurs. This point has been placed first to emphasize the importance of the authorities exercising the political willto stop torture.31Condemnation must not be merely symbolic: the authorities should make clear to officials under their command that torture will not be tolerated.32All public officials should know that torture and ill-treatment are forbidden and that they will be punished for such abuses. The prohibition of torture should be conveyed to them through public statements, regulations and instructions, and through the authorities responding appropriately when allegations of torture are made.33

Related to the condemnation of torture, although not explicitly mentioned in the 12-Point Program, is the notion of chain-of-command control. The principle of chain-of-command control is set out in the UN Declaration on the Protection of All Persons from Enforced Disappearance (Declaration on Enforced Disappearance): "Each State shall... ensure strict supervision, including a clear chain of command, of all law enforcement officials responsible for apprehensions, arrests, detentions, custody, transfers and imprisonment, and of other officials authorized by law to use force and firearms" (Article 12(2)).34Chain-of-command control operates through a combination of measures, including issuing clear regulations, setting up clear operating procedures, exercising supervision through being regularly and accurately informed of the activities of those under onecommand, and ensuring that there are effective procedures for investigating and punishing breaches of regulations.35These measures should be used to ensure that officers do not commit torture or ill-treatment.36

Points 2-4 of the 12-Point Program concern prisoners. Secret detention must be prohibited, and the authorities should institute safeguards against torture and ill-treatment, breaking down the isolation in which these abuses occur and establishing institutional responsibility for various aspects of the welfare of prisoners. The program also refers to the need to ensure humane conditions of detention.

Points 5, 6, 7 and 10 refer to the necessary official reaction when torture becomes known, and to the legal framework for its prevention and suppression. Governments must prohibit torture in law, conduct prompt and impartial investigations into complaints and reports of torture, bring those responsible to justice and afford reparation to the victims. Judicial and administrative corporal punishments should be abolished.

Point 8 states that statements and other evidence obtained through torture must not be invoked in any proceedings, except against a person accused of torture. Point 9 underlines the need for training.

Points 11 and 12 refer to governments’ international responsibilities. All governments should ratify without reservations the relevant human rights treaties, including the Convention against Torture. Governments should work for the eradication of torture in other countries. No one should be forcibly returned to a country where he or she risks being tortured.

As stated in Point 5, the prohibition of torture and the essential safeguards for its prevention must not be suspended under any circumstances, including states of war or other public emergency. Essential safeguards for the prevention of torture include the availability at all times of effective judicial remedies to enable relatives and lawyers to find out immediately where a prisoner is held and under what authority, and to ensure the prisoner’s safety (see section 4.8).

While many of the measures set out in the 12-Point Program are simply restatements of existing requirements under international human rights standards, some go beyond the standards on which the community of states has thus far been able to agree. The program serves at once to make the existing standards more understandable; to promote new standards which Amnesty International has found to be important; and as a yardstick of governmental behaviour. Above all, it is meant to be a coherent program of international action against torture, applicable in all countries.37

Although the program is particularly concerned with torture and ill-treatment in detention, the logic of the program (official condemnation, safeguards, repression, international action) can also be applied to other settings, such as torture in armed conflict (see section 6.5). Similarly, although the program is concerned with torture by agents of the state, many of the points can also be applied to the prevention of torture by non-state forces and armed political groups, and to the prevention of violence in the community and the family. Many of the action recommendations in this manual reflect the thinking behind the 12-Point Program.38



1.5 The international system for human rights protection

Over the years, the UN and regional intergovernmental organizations have set up bodies dealing with human rights. Foremost among them is the UN Commission on Human Rights, established under Article 68 of the UN Charter, which has adopted a resolution on "Torture and other cruel, inhuman or degrading treatment or punishment" annually since 1985.39Treaty bodies40have been created under international and regional human rights treaties, and the Commission on Human Rights has set up mechanisms41relating to particular countries or themes. Unlike intergovernmental bodies which consist of representatives of states, the treaty bodies and the mechanisms established by the Commission on Human Rights consist of individuals acting in their personal capacity (normally called "independent experts"). Whereas treaty bodies deal only with states which are parties to their respective treaties, intergovernmental bodies and human rights mechanisms are concerned with all states belonging to the intergovernmental organization in question.

Three treaty bodies and mechanisms are of special importance in the fight against torture.

  1. The Committee against Torture is the Committee established under Article 17 of the Convention against Torture. It consists of 10 individual experts elected at biennial meetings of states parties. Under Article 19 of the Convention, states parties are required to submit reports on "the measures they have taken to give effect to their undertakings under this Convention". An initial report is to be submitted within one year of the Convention entering into force for the state concerned, with supplementary periodic reports every four years.42 Much of the time at the Committee’s regular sessions43 is devoted to the examination of these reports, in the presence of representatives of the governments concerned. After hearing the government representatives and putting questions to them, the Committee prepares conclusions and recommendations which include the Committee’s assessment of the situation of torture and ill-treatment in the country and any recommendations for improvement.

The Committee against Torture can hear complaints against a state party from another state party or from an individual subject to its jurisdiction, if the state or states concerned have made declarations under Articles 2144and 2245respectively, accepting the Committee’s competence to do so.46There is also an inquiry procedure under Article 20 of the Convention which allows the Committee on its own initiative to look into allegations of the "systematic practice"47of torture in a state party, with the possibility of visiting the country, unless that state in the course of becoming a party to the Convention has formally declared that it does not recognize the Committee’s competence to do so.48

  1. The Special Rapporteur on torture is an individual expert who reports annually to the UN Commission on Human Rights.49 Unlike the Committee against Torture, whose work is concerned solely with states parties to the Convention against Torture, the Special Rapporteur can address the government of any state which is a member of the UN or has observer status there. The Special Rapporteur sends urgent appeals to governments concerning individuals feared to be undergoing or at risk of torture, and other messages to governments transmitting allegations of torture or concerning measures needed for its prevention. The Special Rapporteur also carries out visits to countries with the consent of the government concerned and makes detailed recommendations based on the findings of such visits.50

  2. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (European Committee for the Prevention of Torture, CPT) is the Committee established under Article 1 of the European Convention for the Prevention of Torture to visit places where people are deprived of their liberty with a view to strengthening, where necessary, the protection of such people from torture and ill-treatment. It is composed of one expert member from each state party to the Convention.

The CPT makes periodic, scheduled visits to each state party to the Convention as well as ad hoc (unscheduled) visits (see section 5.8). After a visit, the CPT transmits its findings to the state, which is required to respond within a set time limit. The reports are confidential, but in practice most states have eventually agreed to their publication.51Meetings of the CPT are held in private, but its annual General Reports are public.52

Also of great importance is the Human Rights Committee, the committee of experts established under the ICCPR. Its main function is to monitor the implementation of the ICCPR on the basis of periodic reports submitted by states parties. A state party to the ICCPR which also becomes a party to the first Optional Protocolto the ICCPR recognizes the competence of the Committee to consider complaints from individuals that they are victims of a violation by that state of any of the rights set out in the ICCPR, including the prohibition of torture and ill-treatment under Article 7. The Human Rights Committee has made important statements about the obligations of states regarding torture and ill-treatment in the course of its examination of states parties’ reports; in "General Comments", particularly its General Comment 20 on Article 7 of the ICCPR;*(7) and in decisions (officially referred to as "views") on cases brought to it under the first Optional Protocol.

Allegations of torture can also be considered by bodies established under the regional human rights treaties - the African Commission on Human and Peoples’ Rights, the Inter-American Court of Human Rightsand the European Court of Human Rights. These bodies can consider complaints of violations of the human rights set out in the respective treaties.**(8) The Inter-American and European courts have made important rulings in cases involving torture and ill-treatment.

Other human rights bodies which may deal with practices of torture and ill-treatment in the course of their work include the Committee on the Rights of the Childestablished under the Convention on the Rights of the Child; the Committee on the Elimination of Discrimination against Women(CEDAW) established under the Convention on the Elimination of All Forms of Discrimination against Women; and the Committee on the Elimination of Racial Discriminationestablished under the International Convention on the Elimination of All Forms of Racial Discrimination. Like the Human Rights Committee and the Committee against Torture, these three committees examine periodic reports submitted by states parties on the measures they have adopted to give effect to the provisions of the respective treaties. The Committee on the Elimination of Racial Discrimination operates an individual complaints procedure, as does CEDAW under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.53There are also a Special Rapporteur on violence against women, its causes and consequences(Special Rapporteur on violence against women), a Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, and a Working Group on Arbitrary Detention, all of which report annually to the UN Commission on Human Rights. Action against torture has also become an important part of human rights monitoring and promotion in international peace-keeping operations and other field presence of the UN and regional intergovernmental organizations.

NGOs play an important part in the work of human rights treaty bodies and mechanisms by supplying them with information, facilitating the submission of individual complaints, publicizing their findings and recommendations, and pressing for action.


Further reading

UN Human Rights Fact Sheets No. 17, The Committee against Torture, and No. 27, Seventeen frequently asked questions about United Nations Special Rapporteurs, provide concise descriptions of the work of the Committee against Torture and Special Rapporteurs respectively. Detailed information on the international and regional mechanisms dealing with torture can be found in the University of Essex TheTorture Reporting Handbook(Giffard, 2000), with contact addresses and details on the procedures for submitting complaints and other information to them. Information on the Committee on the Elimination of Racial Discrimination and other bodies and mechanisms dealing with racial discrimination can be found in Amnesty International, 2001, Using the international human rights system to combat racial discrimination: A Handbook. On human rights monitoring in international field operations, see the UN Training Manual on Human Rights Monitoring(2001) and the handbook Preventing Torturepublished by the Organization for Security and Co-operation in Europe (1999). The UN publication United Nations Action in the Field of Human Rights(1994) gives details of the origins and work of UN bodies and mechanisms dealing with human rights.

An analysis of the work of the CPT can be found in Morgan and Evans, 2001, Combating Torture in Europe: The work and standards of the European Committee for the Prevention of Torture (CPT). For additional details, see Evans and Morgan, 1998, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.On the development of the work of the Committee against Torture, see Ingelse, 2001, The UN Committee against Torture: An Assessment.

The annual reports and reports on visits to countries by the Committee against Torture, the Special Rapporteur on torture and the CPT contain a wealth of detail and many recommendations which are also applicable to other countries.


[photo caption]

Former security police officer Jeffrey Benzien demonstrating the "wet bag" torture method on a volunteer at a 1997 hearing of the Amnesty Committee of the Truth and Reconciliation Commission, South Africa, as two committee members look on (see section 2.7).

[end caption]



Chapter 2: The fight against torture - case studies

2.1 Introduction

This chapter presents six case studies of action against torture and ill-treatment. The actions have led to reforms in areas such as the institution of safeguards for arrest and detention; the prohibition of particular interrogation methods and restraint techniques; the designation of torture as a specific crime; the improvement of conditions of detention; the establishment of systems of visits of inspection to places of detention; the prosecution of officials accused of torture; and the uncovering of the truth about torture practised under a former government. The measures have been taken by various branches of government - by the legislature, by the judiciary, or by particular units in the justice ministry. The changes have come in reaction to particular incidents, or against backgrounds of long-standing abuse. The impetus for action has come from various sectors of civil society, from international and regional human rights bodies, and from the pressure of international public opinion.

The six case studies illustrate some of the various paths that may lead to the elimination of torture and ill-treatment, or to a decline in their use.



2.2 Israeli Occupied Territories: Outlawing ‘legal’ torture

From 1967 the Israeli security services have routinely tortured Palestinian political suspects in the Occupied Territories - and from 1987 the use of torture was effectively legal. The effective legalization was possible because the Israeli government and the judiciary, along with the majority of Israeli society, accepted that the methods of physical and psychological pressure used by the General Security Service (GSS, also known as shinbetor shabak) were a legitimate means of combating "terrorism".

There has been a constant struggle with the government over the issue of torture. On one side, victims of torture, human rights lawyers and local and international human rights organizations searched for ways to challenge the system of legalized torture. On the other side, the Israeli government sought to defend and entrench the system.

In general, Israeli public opinion on the treatment of Palestinian detainees did not change. If anything, it hardened between 1993 (when the Oslo Agreement was signed by the Israeli government and the Palestine Liberation Organization, envisaging a gradual transfer of functions to a Palestinian self-governing authority to end in a final settlement within five years) and 1999, a period during which more than 120 civilians were killed in suicide bomb attacks carried out by militant Palestinian organizations Hamasand Islamic Jihad. Palestinians, Lebanese and other non-Israeli nationals were seen as "acceptable" victims of torture - and the torture methods were seen as "acceptable" because, among other things, the harshest methods were not used against Israeli Jews.1

Nevertheless, a powerful campaign against torture was mounted. On the national level, it included court cases and petitions to the Israeli High Court of Justice by human rights lawyers. At the international level, the campaign involved the mobilization of international public opinion. At the same time, the practice of torture was coming under increased scrutiny by UN bodies and mechanisms, including the Committee against Torture and the Human Rights Committee. As a result, pressure increased on the High Court of Justice, which until 1998 had largely accepted the pleas of the security services that certain interrogation methods were a "necessity" in their fight against "terrorism".

In September 1999 the High Court of Justice finally made a judgment banning torture. However, the judgment allowed torture to be used in so-called "ticking bomb" cases. This is among the reasons why torture has continued to be practised in Israel, especially since the beginning of the al-Aqsa intifada(uprising) in 2000.


Torture legalized - the Landau Commission

After the Israeli occupation of the West Bank and Gaza in 1967, Palestinians in those territories could be detained under military orders without access to lawyers and family for up to 90 days. Their detention had to be periodically renewed by military judges, but this was frequently a formality. Their interrogation was the responsibility of the GSS, directly under the control of the Prime Minister.

Political detainees were routinely subjected to methods of interrogation amounting to torture or ill-treatment by the GSS in order to obtain information and confessions that were used to convict them in military courts. At this time, GSS interrogators denied in court that they had used torture to obtain confessions.

The effective legalization of torture was the result of a report by a commission of inquiry headed by former Supreme Court Chief Justice Moshe Landau (the Landau Commission), which was set up in 1987 after a case involving extrajudicial executions by the GSS was exposed. In the public part of its report, published in October 1987 and endorsed by the government the following month, the Commission stated that in the previous two decades some 50 per cent of GSS interrogations led to trials, and that the "overwhelming majority of those tried were convicted on the basis of their confession in court". The Commission also noted that "among almost all those engaged in this subject the prevailing view is that recourse to some measure of physical pressure in the interrogation of HTA [hostile terrorist activity] suspects is unavoidable". GSS interrogators, faced with the "dilemma" of revealing methods of interrogation that could lead a court to reject confessions, or committing perjury in order to ensure the conviction of suspects they ostensibly believed to be guilty on the basis of other, classified, evidence, had routinely lied. The report stated: "False testimony in court soon became an unchallenged norm which was to be the rule for 16 years."

The Landau Commission recommended that the GSS should be authorized to use psychological pressure and "a moderate measure of physical pressure" in their interrogation of "security" detainees. The Commission relied on the concept of "the lesser evil" in stating that "actual torture... would perhaps be justified in order to uncover a bomb about to explode in a building full of people". Although the report stated that "the pressure must not reach the level of physical torture or maltreatment of the suspect or grievous harm to his honour which deprives him of his human dignity", the image of the "ticking bomb" was used repeatedly by the Israeli authorities to justify methods which constituted torture.

Part of the Landau Report was never made public - the part containing the guidelines on what treatment was allowed during interrogation. In the following years, human rights organizations documented a pattern of torture and ill-treatment of detainees during interrogation which included incommunicado detention; hooding; prolonged shabeh(sleep deprivation combined with position abuse, whereby the suspect is kept sitting or standing in a painful position); beating on various parts of the body; confinement to closet-size rooms; continuous exposure to loud music; exposure to extremes of heat or cold; and restrictions on time allowed for eating or going to the toilet.2Other methods used included squatting for prolonged periods like a frog and violent shaking.

The use of these torture methods was accompanied by a system of medical checks, presumably to try to ensure that detainees did not die or develop serious health problems in custody. In May 1993 a "medical fitness form" to be used in interrogation centres was made public by the Davarnewspaper. The form required doctors to certify whether a detainee could withstand methods of interrogation including solitary confinement, tying up, hooding and prolonged standing. After protests, including by local human rights groups, the Israeli Medical Association instructed physicians not to use the form. The Israeli authorities suggested that the form had been a mistake. However, detainees continued to be checked by medical staff on arrival and torture was modified according to the state of their health.

The Landau Commission report recommended that a ministerial committee be set up to regularly review the secret guidelines on the use of "moderate pressure". The committee was established and was headed by the Prime Minister. Its members were normally the Minister of Defence, the Minister of Justice and the Minister of Internal Security.


The ‘shaking’ debate

In October 1994, after a suicide bombing in Dizengoff Street in Tel Aviv which killed 23 Israelis, the ministerial committee gave an "exceptional dispensation" to members of the GSS to use increased physical pressure for a period of three months. After the Beit Lid suicide bombing of January 1995, this dispensation was renewed at three-monthly intervals until the High Court of Justice judgment of 1999.

In April 1995 a death in custody highlighted the dangers of one of the methods - violent shaking - that appeared to have been sanctioned by the secret guidelines allowing "increased physical pressure". ‘Abd al-Samad Harizat, a 30-year-old computer expert from Hebron, was arrested at about midnight on 21 April 1995 and fell into a coma soon after 4pm on 22 April. He died three days later without regaining consciousness. The US organization Physicians for Human Rights sent an expert, Professor Derrick Pounder, to observe the autopsy, carried out by two Israeli forensic pathologists. The autopsy found that ‘Abd al-Samad Harizat had died from "violent shaking" which had caused a sub-dural haemorrhage within the skull. Pressure from the family’s lawyer later obtained information about his interrogation: he had been shaken 12 times between 4.45am and 4.10pm, 10 times by holding his clothes and twice by holding his shoulders.

Although the interrogators who caused death or severe injury as usual escaped punishment3, the death of ‘Abd al-Samad Harizat brought torture and the use of shaking into public debate. The Minister of Justice, David Liba’i, and the Attorney General, Michael Ben Yair, were reported to be opposed to the continued use of shaking.

The Association for Civil Rights in Israel filed a suit with the High Court of Justice seeking an injunction against the practice of shaking. The Public Committee Against Torture in Israel and the Association of Israeli-Palestinian Physicians for Human Rights (now called Physicians for Human Rights - Israel) also sought an injunction against shaking from the High Court of Justice and asked that those officials it regarded as responsible for the death of ’Abd al-Samad Harizat be charged with manslaughter.

The public meanwhile was exposed to official reports suggesting that violent shaking was an effective means of gaining information. The GSS reported to the ministerial committee in August 1995 that 48 attacks had been foiled in the previous six months as a result of special interrogation methods. At the committee meeting later that month the "exceptional dispensation" to use "increased physical pressure" was renewed and shaking was effectively authorized - shaking would no longer be "regular" but would be used with the authorization of the head of the GSS or his deputy in each individual case.


National and international pressure

From the early 1990s Israeli non-governmental organizations (NGOs) and lawyers brought a number of cases to the Israeli Supreme Court, sitting as the High Court of Justice, through which they fought major battles on the meaning and legality of torture. (Under Israeli law, Palestinian lawyers from the Occupied Territories - except East Jerusalem annexed to Israel - do not have the right to make appeals to this court.) For example, in 1994 an Israeli lawyer started seeking injunctions from the High Court of Justice, requiring the GSS to allow his clients under interrogation to have six hours’ sleep. However, this did not change the practice of sleep deprivation as a means of pressure: either the GSS responded by stating that they had completed their interrogation or - if the injunction was granted - the detainees would be granted the six hours’ sleep and the interrogation would then resume.

At the same time, Israeli NGOs and individual lawyers brought petitions to the High Court of Justice to grant injunctions prohibiting the GSS from using "pressure" against individual detainees. However, the success of such injunctions was limited. In cases where the court issued the required injunction and the GSS returned to court to challenge it, the High Court consistently found in favour of the GSS.

For instance, on 24 December 1995 the High Court of Justice issued an injunction preventing the interrogators from using physical force on ‘Abd al-Halim Belbaysi. The GSS ignored the injunction and continued to torture and ill-treat him physically, including by shackling his legs to a chair with his hands behind his back, blindfolding him, depriving him of sleep for three days and violently shaking him. ‘Abd al-Halim Belbaysi then confessed to placing bombs. As a test case, his lawyer went back to the High Court to protest only against the use of violent shaking and asked that it should be forbidden. On 11 January 1996 not only was this request refused but the High Court also rescinded its injunction preventing physical force.

In response to an injunction sought in the case of Khader Mubarak, which came before the High Court of Justice in November 1996, the Court accepted the GSS argument that hooding was carried out in order to prevent the detainee from identifying other detainees and that the use of loud music was to prevent detainees from communicating with each other. They also accepted the "explanations of the Security Service... that the issue is not one of active sleep deprivation, but of periods of time during which the Appellant was held waiting for interrogation without being given a break designed especially for sleep". The Israeli human rights organization B’Tselem, having examined GSS documents on Khader Mubarak’s sleep deprivation periods presented to the court, pointed out:

"The periods of ‘rest’ which exceeded one day invariablyincluded Friday and Saturday, i.e. the Israeli weekend. It seems highly unlikely that four times during three and a half weeks there was a ‘pressing need’ to deprive Mubarak of sleep only during mid-week, while, as the weekend approached, the ‘pressing needs’ mysteriously vanished, only to re-emerge come the next week."4

Criticisms of Israeli methods of interrogation by the UN Human Rights Committee and action by the UN Committee against Torture and the UN Special Rapporteur on torture increased the international pressure on the Israeli government. In 1991 Israel had become a party to three international human rights treaties that prohibit torture - the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and the Convention on the Rights of the Child. None of these treaties was incorporated by statute into Israeli law, although Israel accepted the requirement under these treaties of submitting reports to the respective monitoring bodies (see section 1.5 of this manual).

Israeli, Palestinian and international NGOs had already been making use of UN human rights mechanisms by submitting many individual cases of torture to the Special Rapporteur on torture, and he had referred to them in his annual reports to the UN Commission on Human Rights.

The main answers of the Israeli government to criticisms of its use of torture (for instance, in thousands of letters from Amnesty International members) had been that detainees were "terrorists", that physical pressure saved lives from "terrorist" attacks, and that the interrogation methods used by the GSS did not constitute torture or ill-treatment.

In June 1994, after reviewing Israel’s initial report under the Convention against Torture, the UN Committee against Torture recommended that "interrogation procedures be published in full so that they are both transparent and seen to be consistent with the standards of the Convention" and that "an immediate end be put to current interrogation practices that are in breach of Israel’s obligations under the Convention".5However, the Committee stopped short of explicitly characterizing such practices as torture.

In 1997, however, the Committee took this step. After the High Court of Justice decisions which allowed and legitimized the use of torture in the Belbaysi, Hamdan6and Mubarak cases in 1996, the Committee, in response to an appeal from Amnesty International and B’Tselem, asked Israel to submit "as a matter of urgency" a special report - the first time such a request had been made to any country.7At its May 1997 meeting the Committee examined the special report submitted and, in an important statement, found that interrogation methods used by Israel - "restraining in very painful conditions", "hooding under special conditions", "sounding of loud music for prolonged periods", "sleep deprivation for prolonged periods", "threats, including death threats", "violent shaking", and "using cold air to chill" - constituted torture and should cease immediately. The Committee also emphasized the absolute nature of the prohibition of torture and the unacceptability of making any exceptions to this prohibition.8

In May 1998, after examining Israel’s second periodic report under the Convention against Torture, the Committee against Torture reiterated its conclusions and recommendations of the previous year and expressed concern at "Israel’s apparent failure to implement any of the recommendations of the Committee".9

National and international protests helped avert the threat posed by two bills put forward to parliament in 1995 and 1996. These would have put torture by the GSS on the statute books by permitting the use of "pressure" during interrogations and by offering impunity to GSS interrogators who used force. The proposed Amendment to the Penal Law - Prohibition on Torture 1995 was dropped altogether. It was supposed to bring Israel’s law into conformity with the Convention against Torture, but would have excluded "pain or suffering inherent in interrogation procedures or punishment according to law". The proposed Law of the General Security Service (the "GSS Law"), debated in January 1996, was postponed. It would have accepted the use of "pressure" against those interrogated in certain defined circumstances "to prevent actual danger to the security of the state" and when "no other reasonable way exists to prevent said danger". In 2001 it was reintroduced but without reference to the use of "pressure".

As a result of the international campaigning and the injunctions incessantly sought by NGOs and individual lawyers (the Public Committee Against Torture in Israel alone submitted 67 such petitions between January and September 1999) as well as other local initiatives, the High Court of Justice eventually began to engage seriously with the issue of torture rather than, as before, simply accepting the "security" justifications of the GSS.


The September 1999 judgment

In January 1998 the High Court of Justice scheduled a rare nine-judge hearing to review the legality of GSS interrogation methods under Israeli law. There had at the same time been publicity surrounding the case of ‘Abd al-Rahman Ghanimat, who had been arrested on 13 November 1997 and met his lawyer for the first time six weeks later, on 23 December. The High Court of Justice had three times refused to grant injunctions to stop the use of shabehagainst ‘Abd al-Rahman Ghanimat. In a sworn affidavit he stated that he had been forced for several five-day periods during those six weeks to sit on a small and low slanting chair to which his hands and legs were shackled, with a thick sack over his head. Loud music was played and he was deprived of sleep. His lawyer saw that her client’s wrists were red and swollen because they had been so tightly shackled to the chair. ‘Abd al-Rahman Ghanimat complained of dizziness and pain throughout his body, including his joints and back.

During the January 1998 hearing before the nine judges, the GSS admitted that methods such as hooding, shabehand the playing of loud music were not only used between interrogations but were part of the interrogation. Long-standing petitions challenging torture, including individual petitions and two public petitions submitted by Israeli human rights organizations, were then joined to the case, which continued until final judgment was given in September 1999.

On 6 September 1999, in a unanimous ruling,10the High Court of Justice stated that the Minister of Justice had the authority to allow individuals to interrogate but that methods of interrogation had to be "reasonable". The Court noted that "a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever... Human dignity includes the dignity of the suspect being interrogated." In this respect the judgment cited international human rights treaties ratified by Israel which prohibit torture and cruel, inhuman or degrading treatment.

The Court then considered in turn various methods of interrogation used by the GSS, including shaking; being forced to sit or stand in the shabehposition; being forced to squat on the tips of the toes (the "frog crouch"); excessive tightening of handcuffs; sleep deprivation; covering the head with a hood; and the playing of extremely loud music. The Court ruled that each method was not "reasonable" and should be prohibited.

Some leeway, however, was left for the interrogators. The judges said that prolonged sleep deprivation that was not necessary for the purposes of an investigation would not be reasonable, but they accepted that detainees might need to be interrogated for extended periods. They suggested that, if there was a need to use prohibited interrogation methods to save lives, GSS investigators "may avail themselves of the defence [of necessity]". Finally, they allowed a loophole for the legal reintroduction of torture by suggesting that parliament might legislate to allow "physical means" of interrogation:

"If it will nonetheless be decided that it is appropriate for Israel, in light of its security difficulties, to sanction physical means in interrogation... this is an issue that must be decided by the legislative branch which represents the people."11

After the judgment

The High Court of Justice judgment was observed by the GSS, and the vast majority of reports received from Palestinian detainees in the months immediately after the judgment indicated that they were not being tortured under interrogation. Low chairs were not being used and there were no reports of violent shaking. But reports indicated that severe interrogation typically involved relays of interrogators who would continue the interrogation 20 hours a day.

There were strong protests against the judgment from the GSS and right-wing politicians. Bills were presented in parliament which proposed authorizing the GSS to use physical pressure during interrogation. Lobbying by Israeli, Palestinian and international organizations followed, and draft legislation which would have authorized torture was dropped in February 2000. A draft section allowing special interrogation methods was dropped from the law regulating the activities of the GSS that was adopted by the Knesset(the Israeli parliament) in February 2002. However, no bill has been introduced to fulfil Israel’s obligations to give effect to the provisions of the Convention against Torture.

After the al-Aqsa intifadabegan in September 2000, reports of the use of previous methods of torture began to increase. For example, Jihad Latif Shuman, a United Kingdom (UK) citizen of Lebanese origin, was arrested on 5 January 2001 by the GSS, apparently on suspicion that he had been sent to Israel from Lebanon by Hizbullahto carry out an attack in Israel. During his interrogation, Jihad Shuman was made to sit on a low chair with his feet pulled behind him for hours on end. He was also forced to bend for prolonged periods, slapped until his nose bled and deprived of sleep. He suffered breathing problems following this treatment. According to his lawyer, the torture subsequently stopped and Jihad Shuman’s health improved. The independent doctor who examined him reportedly said that his condition was consistent with his claims of physical maltreatment.

In November 2001, after reviewing Israel’s third periodic report under the Convention against Torture, the UN Committee against Torture voiced regret that the 1999 High Court of Justice judgment did not "contain a definite prohibition of torture"; that it prohibited sleep deprivation for the purpose of breaking the detainee but not if it was merely incidental to the interrogation, whereas in practice "in cases of prolonged interrogation, it will be impossible to distinguish between the two conditions"; and that interrogators who used physical pressure in extreme circumstances might escape criminal liability by pleading the "defence of necessity". The Committee also expressed concern about continuing allegations of interrogation methods against Palestinian detainees that were prohibited by the 1999 judgment.12


Conclusion

The history of the struggle against legalized torture in Israel and the Occupied Territories shows the effectiveness of the campaign launched by Israeli and Palestinian organizations and lawyers, as well as by international NGOs, alongside scrutiny by UN human rights bodies. However, in a society which by and large continues to accept torture as a legitimate weapon against those whom it regards as "terrorists", the fragility of human rights victories at times of confrontation was exposed by the gradual return of torture after the al-Aqsa intifadabegan.

At the time of writing of this manual, many of the methods used in the past had been revived, and the torture of Palestinians held by the GSS was once again widespread. Letters from the State Attorney to the Public Committee Against Torture in Israel in February 2002 stated that in two cases where the committee had raised concerns about torture, there was a "heavy suspicion" that the detainees were "ticking bombs" and the "defence of necessity" therefore applied.

In the face of this challenge, Israeli lawyers and NGOs are continuing to bring petitions against incommunicado detention (increased in April 2002 to 18 days without access to lawyers or a judge, with the possibility of further extension of up to 90 days on a judge’s order) and torture. In addition, coalitions of Israeli, Palestinian and international human rights organizations are continuing to encourage intergovernmental bodies to scrutinize Israel’s interrogation methods and to demand that the practice of torture be stopped.

The continuing use of torture in Israel and the Occupied Territories shows the importance of leaving no loopholes in the law whereby torture can be revived.



2.3 Peru: Designating torture as a specific crime

Torture has been a long-standing problem in Peru. In 2001 the UN Committee against Torture stated that torture in Peru was "systematically" practised (see below). The torture of suspects detained under "anti-terrorism" legislation has diminished in recent years, but the torture of ordinary criminal suspects has remained widespread. Meanwhile, Peru’s use of torture has increasingly come under scrutiny, both from human rights organizations in the country and from UN monitoring bodies - the Committee against Torture and the Human Rights Committee. This section gives an account of one of the government’s recent reforms - the establishment of a specific crime of torture in Peruvian law - and of its initial impact on the punishment of torturers.


The campaign against torture

"Disappearances", extrajudicial executions and torture had been widespread in Peru since the early 1980s, and in 1992 "anti-terrorism" legislation came into effect that created a framework for the detention of prisoners of conscience and effectively made all "terrorism"-related trials unfair. It also allowed up to 10 days of total incommunicado detention, a practice which facilitated torture. Indeed, most of the cases documented by Amnesty International of prisoners detained on "terrorism"-related offences included complaints of torture and ill-treatment.

With the easing of the violent conflict between governmental forces and armed opposition groups in the early 1990s, the incidence of "disappearances" and extrajudicial executions decreased markedly. Until then the main focus of victims and their relatives as well as human rights organizations was on locating the "disappeared", stopping extrajudicial executions, and obtaining the release of people falsely imprisoned for "terrorism"-related offences; complaints of torture and ill-treatment were rarely pursued. However, the decline in "disappearances" and extrajudicial executions created the space for human rights defenders to pay increasing attention to the problem of torture and ill-treatment.

Peru had been a party to the International Covenant on Civil and Political Rights (ICCPR) since 1978, and in 1988 it ratified the Convention against Torture. By so doing, it took on a commitment under international law to fulfil the obligations regarding the prohibition of torture and ill-treatment set out in these two treaties. The treaties also obliged the country to submit periodic reports to the respective monitoring bodies - the Human Rights Committee and the Committee against Torture.

In November 1994 the Committee against Torture reviewed Peru’s initial report under the Convention against Torture. National and international human rights organizations, including Amnesty International, seized the opportunity to ensure that Peru was made to answer for the widespread use of torture and ill-treatment in the country by submitting their own information to the Committee.

Having reviewed Peru’s report, the Committee concluded that the legal and administrative measures adopted by Peru to comply with Article 2(1) of the Convention against Torture were not effective in preventing torture. It also stated that the authorities had failed to comply with Articles 12 and 13 of the Convention, which require prompt and impartial investigations of complaints and reports of torture. The Committee recommended to the Peruvian government a set of measures that included reviewing Peru’s "anti-terrorism" legislation so as to eliminate incommunicado detention. The Committee also recommended "defining torture as an independent offence punishable by a penalty appropriate to its seriousness".13Peruvian law as it then stood contained no specific crime of torture by agents of the state, and torturers, if prosecuted, could be charged under the Penal Code only with "abuse of authority" or causing "injuries", with a maximum penalty of six years’ imprisonment.

Two years later Peru had still not created a specific crime of torture, nor had the other recommendations of the Committee been implemented. In fact, Peru had gone a step backwards by effectively legalizing impunity. In 1995 Congress approved a law granting a general amnesty to all members of the security forces and civilian officials who were the subject of a complaint, investigation, indictment, trial or conviction, or who were serving prison sentences for human rights violations committed between May 1980 and 14 June 1995. This effectively meant that the thousands of cases of "disappearances", extrajudicial executions, torture and ill-treatment committed by the security forces during those 15 years would not be clarified, the perpetrators would not be brought to justice, and that none of the victims or their relatives would receive compensation. A further amnesty law passed at the end of June 1995 entrenched impunity by prohibiting the courts from deciding on the legality or applicability of the first law.

The amnesty laws provoked widespread international concern, and Peru became a focus of renewed international human rights campaigning. In July 1996 the UN Human Rights Committee reviewed Peru’s third periodic report submitted under the ICCPR. The Committee expressed deep concern about the two amnesty laws and the "persistent reports of torture or cruel, inhuman or degrading treatment of persons detained under suspicion of involvement in terrorist activities or other criminal activities". The Committee called for repeal of the amnesty laws to the extent that they violated the right of victims of human rights violations to an effective remedy. It also recommended that "[p]rovisions should be made in the Penal Code to criminalize acts that are committed for the purpose of inflicting pain, without prejudice as to whether those acts result in permanent injury".14However, the Peruvian authorities took no action on most of the Human Rights Committee’s recommendations.

By 1997 the human rights situation in Peru had deteriorated dramatically. A television station owner had been stripped of his Peruvian nationality and forced to flee the country because his station had reported grave human rights violations, including torture. Three judges of the Constitutional Tribunal had been removed from office for declaring that it would be unconstitutional for the then President, Alberto Fujimori, to stand as a presidential candidate for a third term, prompting the Inter-American Commission on Human Rights to express concern.15

By the end of 1997 Peru’s authorities were aware that in May 1998 the Committee against Torture would review the country’s second periodic report under the Convention against Torture. Local human rights organizations were already preparing for a national campaign against torture to be launched in 1999.


The 1998 law

Against this background, in February 1998 Congress approved unanimously a law in which the crimes of genocide, enforced disappearance and torture were incorporated into Peru’s Penal Code. Law No. 26926 modified the Penal Code by introducing and criminalizing torture as a specific crime. The law provides for five to 10 years’ imprisonment for any "civil servant or public official", as well as "any person acting with the consent or acquiescence of a public official", who is found guilty of inflicting torture as defined in the law. The penalty is increased to between eight and 20 years’ imprisonment if the torture results in death.

At the time, a handful of congresspersons had drafted different bills which criminalized torture. Congress consulted several human rights lawyers over which draft bill was the most suitable. The lawyers decided to draft a new text that incorporated the positive aspects of all the draft bills that had already been presented to the Congressional Commission of Justice, and also added other key features that had been overlooked, such as extending the scope of the perpetrators to people who are not public officials but are acting at their behest. The Commission of Justice accepted the resulting draft bill and Congress unanimously passed the law on 18 February 1998 - an event which was welcomed by the Committee against Torture when it reviewed Peru’s second periodic report in May 1998.16

The definition of torture under the new law incorporated elements from the Inter-American Convention to Prevent and Punish Torture, to which Peru was a party, as well as the UN Convention against Torture. The legislation also specifies that civil courts and not military courts should be in charge of investigating and trying cases of torture. Human rights defenders welcomed this, as the use of military courts to try members of the security forces for human rights violations had been seen as one of the main obstacles in the fight against impunity. In addition, the legislation states that forensic doctors have a duty immediately to attend to people who say they have been tortured or ill-treated, and that victims have the right to be seen by an independent doctor of their choice.

A case brought under the new law highlighted the impact of the legislation. In January 1999 an investigation was launched into the death of Pablo Pascual Espinoza Lome. A prisoner in Yanamilla prison, in the town of Ayacucho, Ayacucho department, he had been seized by two prison officers and accused of having consumed alcohol. He was taken to a cell where he was reportedly punched in the abdomen. He subsequently died. The autopsy report revealed that the cause of death was a ruptured spleen.

In August 1999 the High Court in Ayacucho sentenced one of the prison officers to 12 years’ imprisonment and acquitted the other. On appeal, the Supreme Court, using the new legislation, increased the sentence to 15 years’ imprisonment and ordered a new trial to investigate the involvement of the second officer. In August 2000 the criminal court in Ayacucho sentenced the second officer to four years’ imprisonment for the crime of torture.

In November 1999, reviewing Peru’s third periodic report, the Committee against Torture again welcomed the 1998 law but expressed concern over continuing numerous allegations of torture, the continuance of such practices as incommunicado detention and the use of military courts to try civilians, and "[t]he apparent lack of effective investigation and prosecution of those who are accused of having committed acts of torture". It recommended that "[a]mnesty laws should exclude torture from their reach".17

In November 2000, reviewing Peru’s fourth periodic report under the ICCPR, the Human Rights Committee also welcomed the 1998 law but deplored the fact that the Committee’s 1996 recommendation regarding the amnesty laws had not been followed, and again called for their repeal.18

In June 2001 the Committee against Torture published a summary account of an inquiry on Peru under Article 20 of the Convention against Torture (see section 1.5 of this manual). The Committee concluded that "torture is not an occasional occurrence but has been systematically used as a method of investigation". "Anti-terrorism" legislation was still in force, making detainees "particularly vulnerable to torture". The Committee made a series of recommendations for the eradication of torture, including legislative measures for reparation and compensation of the victims.19


Conclusion

The new law was a positive step towards eradicating torture in Peru. Unfortunately, however, torture and ill-treatment remained widespread at the time of writing of this manual.

Since the adoption of Law No. 26926 in February 1998 Amnesty International has documented scores of cases of torture or ill-treatment, and has remained concerned at the lack of effective investigations into complaints of torture under the legislation. For example, despite the law, cases were still being referred to military courts. In other instances, for crimes that appeared to fit the definition of torture, the legislation was not being invoked and lesser charges such as "abuse of authority" were being filed instead. In addition, victims and their relatives were still being intimidated, harassed and threatened and were consequently withdrawing accusations in fear of reprisals. This was reflected in the fact that by the end of 2001 only two cases brought against officials accused of torture under the February 1998 legislation had resulted in convictions.

The local and international campaign against torture in Peru helped to provide the legislation to back those trying to expose torturers and hold them to account. Pressure on the Peruvian authorities needs to be maintained, however, to ensure that the law is implemented in full and that the other recommendations of the Committee against Torture and the Human Rights Committee are followed.


2.4 USA: Federal action to combat local abuses

"We saw them shock the [Haitian] detainee on his body with an electric shield, also with an electric gun... The Haitian detainee was shocked about three times. While being shocked, the Haitian detainee was handcuffed, his hands to his legs, laying on his side on the floor..."

This testimony was one of many disturbing allegations of torture or ill-treatment made by people detained by the US Immigration and Naturalization Service (INS) who were held at a local jail, the Jackson County Correctional Facility, in Marianna, Florida between August 1997 and July 1998. The allegations led to an investigation by the US government under the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA). This law allows the federal (national) authorities to investigate and take appropriate action to enforce the constitutional rights of inmates against abuse in state and local detention facilities.

In the USA, most jails are under state or local jurisdiction. Under the US constitutional doctrine of states’ rights, the federal government has only limited powers to intervene. Before the introduction of the CRIPA, the federal authorities could prosecute individuals for violations of federal criminal laws, including state or local officials acting under "color of law" (in their official capacity), but they had no authority to address systematic abuses or poor conditions in state facilities. The CRIPA provided the federal government with an important civil remedy, enabling the US (federal) Department of Justice to seek federal court orders or injunctions to eliminate patterns of abuse or unconstitutional conditions in state and local institutions.

Adopted by the US Congress in 1980, the CRIPA authorizes the Civil Rights Division of the Department of Justice to investigate conditions in state or local public facilities if it receives information that inmates are being systematically deprived of their rights under the US Constitution. The law covers state prisons and local jails as well as other public institutions such as psychiatric hospitals and care homes.


Allegations of abuse at the Jackson County jail

The detainees at the Jackson County Correctional Facility were people from different countries, including asylum-seekers, who were being held by the INS, a federal agency. The INS sends its detainees, including asylum-seekers, to county jails when its own facilities are full. In June 1998 allegations of abuse began reaching the INS. The INS was sufficiently concerned by the allegations that it transferred all 34 of its detainees out of the jail the following month.

Affidavits from 17 of the INS detainees, taken by lawyers at the non-governmental Florida Immigrant Advocacy Center in Miami, described abuses the prisoners said they had suffered in the Jackson County jail between August 1997 and July 1998. The 17 were from the Bahamas, Bangladesh, Cuba and Honduras. The alleged abuses included shocks from electro-shock stun shields (see section 6.3.1 of this manual), including while shackled in four-point restraint to concrete beds; beatings and other physical ill-treatment; denial of medical care; excessive periods of punitive solitary confinement; and verbal - including racist - abuse. According to the inmates, such treatment was meted out arbitrarily or as punishment for intervening in a fight, for example, or for complaining about racist insults by prison personnel.

The Florida Immigrant Advocacy Center sent its findings to the US government for investigation. It also informed Amnesty International of its findings and requested assistance from the organization in bringing attention to them.

In October 1998 Amnesty International wrote to local and federal authorities calling for an investigation into the allegations. A prompt but superficial reply from the head of the jail merely gave general assurances that all inmates in the facility were protected from abuse. In December the Department of Justice wrote to Amnesty International thanking the organization for bringing the concerns to its attention, and stating that the Special Litigation Section of the Civil Rights Division was collecting and reviewing information about the Jackson County jail to determine whether a CRIPA investigation was warranted.

In May 1999, in response to apparent delays in the federal investigation, Amnesty International activists worldwide sent letters of concern to the Department of Justice, copying them to the head of the Jackson County jail. This led to renewed media attention to the jail and the investigations into the alleged abuses.


The investigation

On 30 March 2000 the Department of Justice’s Civil Rights Division issued a "letter of findings" concerning the Jackson County Correctional Facility. These findings largely confirmed, and expanded upon, the sorts of concerns raised in the affidavits obtained by the Florida Immigrant Advocacy Center. Among the numerous findings was that medical treatment in the jail was inadequate, including in the care and supervision of isolated or restrained inmates. The letter of findings cited the case of a prisoner who appeared to have been placed in segregation as punishment for having lodged a complaint about lack of care for a medical problem he was experiencing. He was confined in a medical observation cell for five days, without being evaluated by medical staff, and then returned to the general prison population after apologizing for filing the grievance. The letter also revealed that juvenile inmates had been placed in administrative segregation "for the convenience of the facility", citing the case of a juvenile who had been placed in a medical cell for three months despite not having a medical condition that warranted such placement.

The letter stated that staff at the jail "engage in excessive and unwarranted use of restraints to control inmates, causing serious risk of bodily harm". It expressed particular concern at the frequency and haste with which the jail resorted to four-point restraint of inmates, securing their wrists and ankles to eye-bolts attached to cement-block beds with mattresses removed, sometimes for prolonged periods and without proper monitoring and supervision. On the specific question of electro-shock stun shields, it found that the shield had been

"... overused for inmate control purposes... The facility’s use of force reports indicate that in a number of instances activation of the shield was the first resort after verbal counselling failed to gain compliance. In many of these instances such use of force was unreasonable, as lesser types of force would have achieved compliance."

The Civil Rights Division also found that the jail’s inadequate screening for inmate illness or consideration of other relevant conditions rendered the use of the shield potentially dangerous. In one incident, an electro-shock shield had been "brought into the room for possible use on an inmate who was nine months pregnant". The letter stated, however, that "[t]here appears to have been a decrease in activations of the shield since January 1999", suggesting that the revelations of the Florida Immigrant Advocacy Center and Amnesty International’s actions may have had some effect in reducing the use of this particular type of restraint in the jail.

The letter of findings made a series of recommendations to improve policy and practice in the jail, including a recommendation that the remedial measures, which should be seen as a minimum response to the violations uncovered, be instigated by cooperation rather than through a lawsuit. As of mid-2001, it appeared that the jail’s authorities were cooperating.


The CRIPA experience

The CRIPA has been used extensively in recent years, with more than 300 institutions across the USA and its territories made to improve conditions or under ongoing review. The institutions have included local jails in Alabama, California, Georgia, Mississippi, New York and Virginia, and juvenile correctional facilities in Georgia, Kentucky, Louisiana and the territory of Puerto Rico. In 1999 the states of Arizona and Michigan were forced to institute safeguards in their women’s prisons following lengthy CRIPA investigations into alleged widespread sexual abuse and retaliation against inmates by male guards.

The problems meriting a CRIPA investigation cover a broad range of issues including fire safety, sanitation and health care, abuse by guards and failure to protect inmates from abuses by other inmates. Information leading to an investigation may come from a variety of sources, including individuals, the media, NGOs and advocacy groups. Federal investigators then seek access to the institution to conduct on-site inspections and interview staff and inmates, often using independent expert consultants. This results in a detailed letter of findings from the Department of Justice to the institution, listing any violations found, with recommendations.

The legislation requires that, before filing a lawsuit, the Department of Justice must wait 49 days after issuing a letter of findings to allow the institution an opportunity to make voluntary changes without going to court (the time taken to negotiate a settlement can extend beyond this period). Most cases are eventually settled without full-scale litigation - sometimes informally at an early stage, more often as the result of a court-endorsed agreement between the parties that has the effect of a court order, known as a "consent decree". Once the changes are ordered and accepted, there is usually a period of oversight by the Department of Justice, in which investigators conduct periodic follow-up visits, and the institution is required to issue status reports.

The CRIPA did not create any new rights or standards, but it does enable the Department of Justice to litigate on the basis of previously established constitutional or statutory rights. There are, however, some limitations to the process. Usually, an investigation focuses on an individual facility and settlements do not have a wider application outside that jurisdiction. For example, a ban on the use of a restraint chair in Iberia Parish Jail, Louisiana, following a CRIPA investigation into egregious abuses, did not lead to a ban in other facilities where there were complaints of similar abuse.

The greatest limitation is one of resources: demands for CRIPA investigations far outweigh the capacity of the Department of Justice to respond. However, the Department of Justice attempted to maximize its resources in the 1990s by securing state-wide relief in a number of cases. For example, it conducted investigations into 18 jails in Mississippi in 1993, finding hazardous conditions, squalor and overcrowding as well as grossly deficient medical and suicide prevention care. It ordered four jails to be closed and improvements to be made in others. Similar "cluster" investigations have been conducted into 11 jails in Georgia and all four state-operated mental retardation facilities in Tennessee.

The Department of Justice paid particular attention to addressing abuses in juvenile facilities after being criticized for under-using its resources in this area. During the mid-1990s it addressed state-wide problems in all 13 juvenile treatment facilities in Kentucky and eight juvenile detention facilities in Puerto Rico.

In 1997 the Department of Justice opened a lengthy investigation into a range of juvenile facilities in Georgia, assisted by 10 expert consultants. Its letter of findings in February 1998 documented widespread abuses including inadequate mental health care; overcrowded and unsafe conditions; abusive disciplinary practices, especially in "boot camps" (juvenile prison camps run along military lines); and the abusive use of mechanical and chemical restraints on mentally ill juveniles.

In 2000 the Department of Justice concluded a similar investigation into secure juvenile facilities in Louisiana, including two privately run institutions: the Tallulah Correctional Center for Youth and the Jena Juvenile Justice Center. Their findings included children being subjected to excessive force by staff; prolonged isolation; inadequate health care, education and nutrition; and, in the Jena centre, deprivation of shoes and blankets.

In both Georgia and Louisiana, the Department of Justice stepped in after abuses had been highlighted by NGOs.20Settlements were reached mandating substantial improvements to juvenile detention conditions in all of the above states and Puerto Rico. In Louisiana this resulted in the two privately run facilities being taken under state control.

Litigation is one of the most effective means of securing redress for human rights violations in US prisons and detention facilities - although this does not reduce the need for the authorities to ensure adequate standards of treatment in the first place. Most such litigation is conducted by NGOs or private law firms, often working under difficult conditions. Under the CRIPA the Department of Justice has a vital role to play because of the special authority it has to conduct such litigation, the resources allocated to it by Congress, and its ability to draw upon a wide range of expert and technical advisers.

Under separate legislation introduced in 1994 to deal with police misconduct (the Violent Crime Control and Law Enforcement Act of 1994), the Department of Justice has also obtained consent decrees with respect to several US police agencies, including the Los Angeles Police Department, California, covering such issues as excessive use of force, false arrest and racism. The consent decrees negotiated thus far have mandated a series of measures, including reforms to training, investigation of complaints, and monitoring of the race or ethnicity of people stopped by the police. These have provided useful models for other law enforcement agencies.


Conclusion

Since the CRIPA was passed, the federal authorities have been able to take effective action to stop patterns of torture, ill-treatment and other abuses in a number of state and local facilities. However, there are limitations to the procedure as regards its resources and capacity to respond. Funding for the Special Litigation Section, which handles CRIPA investigations, depends on the political will of the executive and the US Congress. Although the CRIPA is extremely valuable as a mechanism for addressing systematic abuses in state and local facilities, there is still a need for effective ongoing monitoring and oversight bodies for all prisons and detention facilities at the state and local levels.



2.5 India: Landmark judgment establishes safeguards

Torture of ordinary criminal suspects and political prisoners by police has long been widespread in India. Torture and ill-treatment are used to extract confessions, to extort money and to punish detainees. Methods of torture and ill-treatment include electric shocks, suspension from ceilings, severe beating with lathis(long wooden sticks) and kicking. Most torture occurs during periods of illegal detention following arrests that are unrecorded.

Torture persists despite official acknowledgement of the problem and a series of positive judicial and administrative initiatives in recent years.21There is a long tradition of judicial activism in India, with courts liberally interpreting the scope of fundamental rights set out in the Indian Constitution. Access by individuals to claim these rights has been assured through the development of Public Interest Litigation: since the late 1970s individuals and organizations have been permitted under Articles 32 and 226 of the Constitution to approach the Supreme Court and High Courts "in the public interest" on issues of fundamental rights on behalf of those unable to do so themselves.

In September 1996 the Supreme Court of India made a landmark judgment condemning custodial violence and making several recommendations (see below). This allowed the development of practical mechanisms for preventing torture during arrest and detention and has had a significant impact on the manner in which individuals can be arrested and detained. Although levels of custodial violence have continued to be high, the judgment has forced police to rethink their widespread use of illegal detention and torture, and has provided human rights activists with a stronger legal position from which to challenge such practices. Crucially, the Supreme Court has treated custodial violence as an ongoing concern and continues to monitor implementation of its recommended safeguards and to issue further orders to protect detainees.


Background to the 1996 judgment

The origins of the 1996 judgment lie in the state of West Bengal 10 years earlier. On 26 August 1986 the Executive Chairman of the Legal Aid Services, D.K. Basu, wrote to the Chief Justice of the Supreme Court of India highlighting concerns about custodial violence in the state and reported deaths in custody.22He argued that it was vital to examine the issues, develop "custody jurisprudence", formulate steps for awarding compensation to the victims or their relatives, and ensure accountability of police officers found responsible for torture.

The Supreme Court accepted D.K. Basu’s request that his letter be treated as a Public Interest Litigation and asked the respondents - the State of West Bengal - to reply to the charges made in the petition. The state government of West Bengal replied that the police were not covering up deaths in custody and that wherever police personnel were found to be responsible, action was being taken against them.

On 14 August 1987 the Supreme Court stated that there were increasing allegations of custodial violence in almost every state and a rising number of reported deaths in custody. The Court noted that there appeared to be no machinery to deal effectively with such allegations. It issued an order requesting all state governments to provide their response to the allegations, and further requesting the Law Commission of India to make suitable suggestions in relation to the question of custodial violence.

In response to this order, affidavits were filed by several state governments, by the central government and by the Law Commission of India concerning custodial violence. The Court appointed a Supreme Court lawyer, Dr A.M. Singhvi, to act as amicus curiae(friend of the court) to help it gather information on custodial violence.

In 1992 D.K. Basu - by this time a judge with the West Bengal High Court - gave a comprehensive judgment in his court on the issue of custodial violence. He set out in full the processes he thought should be followed to prevent custodial violence, to ensure independent investigations leading to prosecution of those responsible, and to provide compensation for victims.

In the meantime, between 1986 and 1996, newspapers reported cases of torture and deaths in custody, human rights organizations raised such cases and pursued them in the courts, and Amnesty International conducted a major international campaign on human rights violations in India, putting forward detailed recommendations on arrest and custody procedures to combat torture and other abuses of human rights.


The 1996 judgment

In 1996 the Supreme Court finally issued its judgment in the case of Basu v. State of West Bengal.23The judgment expressed the Supreme Court’s concern that "torture is more widespread now than ever before". It stated that "‘[c]ustodial torture’ is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward."

The judgment referred to international human rights standards and to the fact that Article 21 of the Constitution of India protects the right to life, a provision that has been held by the Indian courts to include a guarantee against torture. It also made general recommendations relating to amendments to the law on burden of proof and the need for police training, and put forward arguments against the right to sovereign immunity for agents of the state responsible for torture and in favour of compensation.

The judgment’s most far-reaching legacy is its 11 "requirements" to be followed in all cases of arrest and detention (para. 35). The "requirements" would, the Court hoped, "help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation" (para. 39).

Briefly (and paraphrased), the requirements set out by the Supreme Court are as follows:

1. Police arresting and interrogating suspects should wear "accurate, visible and clear" identification and name tags, and details of interrogating police officers should be recorded in a register.24

2. Police making an arrest should prepare a memo of arrest to be signed by a witness and countersigned by the arrested person, giving the time and date of arrest.

3. Anyone arrested should be entitled to have a friend or relative informed of their arrest and place of detention "as soon as practicable".25

4. If such a friend or relative lives outside the district, the time and place of arrest and place of detention should be notified to them by police through the Legal Aid Organization within eight to 12 hours.

5 Anyone arrested should be informed of their right to inform someone of their arrest and detention "as soon as" they are arrested.

6. Information about the arrest and the details of the person informed of the arrest should be kept in a diary at the place of detention along with names of police officers supervising custody.26

7. On request, anyone arrested should be examined at the time of arrest and any injuries recorded. This "inspection memo" should be signed by the arrested person and the arresting police officer, and a copy given to the arrested person.27

8. Anyone arrested should be medically examined by a doctor every 48 hours during detention.28

9. Copies of all the documents referred to above should be sent to the magistrate.29

10. Anyone arrested should be permitted to meet their lawyer during interrogation "though not throughout the interrogation".

11. A police control room should be established at all district and state headquarters with information regarding details of those arrested and their place of custody displayed on a notice board.

Although the Supreme Court commented that these requirements should be followed until "legal provisions are made in that behalf" (para. 35), it was no doubt aware of previous judicial directions along similar lines which had still not led to amendments in law. The Court could not direct the government to enact legislation, but stated that in its opinion it was clearly desirable that existing legislation should be amended to incorporate the "requirements". This view was supported in November 2000 by the Law Commission of India, which in its Consultation Paper on Law Relating to Arrest recommended incorporation of the "requirements" into law. As of June 2002 the Indian government had not given any commitment that it intended to do so.

To reinforce the "requirements", the judgment stated that "Failure to comply with the requirements herein above-mentioned shall, apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country having territorial jurisdiction over the matter" (para. 36). The judgment further ordered that the requirements be issued to the Director Generals of Police and Home Secretaries of all states who in turn are obliged to circulate them to every police station under their jurisdiction and to have them posted in a conspicuous place in every police station. It also recommended that the requirements be broadcast on radio and television and distributed in pamphlets in local languages "creating awareness... transparency and accountability" (para. 39).


Implementation of the judgment

In a visit to West Bengal in June 1999, Amnesty International delegates were told that arrest memos were issued in the majority of cases. The delegates saw copies of arrest memos and "inspection memos" as well as government orders instructing police to incorporate the guidelines into their working practices. The guidelines had also appeared on websites set up by some state police forces. However, there were continuing concerns about non-implementation of the requirements in many areas of the country where police were failing to issue arrest or inspection memos or to publicize the requirements, or were failing to implement the requirements, in full.

For example, human rights activists in West Bengal told Amnesty International that arrest memos rarely had the signature of witnesses to the arrest or, where witnesses were specified, police were accused of inserting the names of individuals well known to them as "stock" witnesses. Moreover, the use of inspection memos had not become widespread.

Although acknowledging that the documents specified by the requirements would provide additional evidence in cases of illegal detention, human rights activists have pointed out that it is still possible for police to manipulate the memo of arrest (as above). Given that the detainee is not required to be provided with a copy of the memo of arrest, if information is filled in falsely there is no opportunity to challenge it or for the magistrate to verify its accuracy. Human rights activists have also pointed out that magistrates often fail to challenge police when the custody records are incomplete. These issues highlight the need for extreme vigilance within the judiciary to ensure proper implementation of the safeguards.

The requirement to give detainees a medical examination every 48 hours was not being fulfilled; there was no established system for doctors to visit police stations to medically examine or treat detainees, who therefore remained at the mercy of police officers to take them to hospital for treatment.

There were also problems with the implementation of the requirement allowing detainees to have their lawyer with them during interrogation. The Supreme Court had previously interpreted the right of detainees to legal counsel (provided by Article 21 of the Constitution) to mean that detainees had a right to consult a lawyer of their choice and a right to the presence of a lawyer during interrogation. However, this right was rarely being granted in India even after the Supreme Court’s 1996 judgment. A list of "Rights regarding arrest" on the website of the Uttar Pradesh police, reflecting the 11 requirements of the Supreme Court, stated: "As per provisions of law, persons under detention have the right to have the services of an advocate. However, during interrogation the advocate is not allowed to be present."

Implementation of the court’s directions nationwide has been monitored by the Supreme Court through its amicus curiae. Almost every six weeks the Supreme Court hears the amicus curiaeon the progress of states in achieving implementation of its order - in relation to the 11 requirements and its general directions on investigation, prosecution and granting of compensation in cases of death in custody. As of June 2001, Amnesty International understood that the Supreme Court had received affidavits from every state government asserting that they were complying with the 11 requirements. The fact that such affidavits were on record ensures that evidence of non-compliance can promptly lead to contempt proceedings.

The amicus curiaecan highlight major violations and individual grievances, and in this role Dr Singhvi filed several applications recommending that the court issue further directions concerning custodial violence. On the basis of such applications, the Supreme Court in 1998 expressed concern about "deficient" information furnished by states on compliance with its 1996 judgment. It ordered all states to file affidavits indicating the status of all inquiries into custodial deaths and provide copies of all reports of inquiries.

Dr Singhvi also made an application in which he urged the Supreme Court to issue a range of further directions relating to inquiries and post-mortems in particular. The application pointed to continuing failures to carry out impartial investigations into deaths in custody and drew on findings by the National Human Rights Commission on torture. In response, in January 2001 the Supreme Court issued a further notice to the central and state governments asking them to demonstrate why the Court should not issue further directions for adopting measures to prevent custodial deaths.


Conclusion

In following up its original order in this way, the Supreme Court has indicated its continuing concern and willingness to tackle the problem of custodial violence. However, there is still much work to be done to raise awareness of the Supreme Court’s guidelines among police and judicial officers as well as the public at large, and to monitor implementation of the 11 "requirements". Nevertheless, the fact that the guidelines exist and that their non-implementation can lead to contempt proceedings and departmental action has strengthened the hand of human rights activists. Numerous petitions have been filed by lawyers and human rights activists challenging incidents of illegal detention, which carefully cite violations by police of the Supreme Court’s orders in the case of Basu v. State of West Bengal. Growing awareness among the public of their rights under this judgment through legal literacy training has been encouraged by human rights activists and judicial officers. Although torture and ill-treatment remain widespread in India, the Supreme Court’s 1996 judgment and the efforts being made to implement it are encouraging signs that serious attempts are being made to get to the heart of the problem.


2.6 Austria: Death of deportee triggers human rights reforms

Long-standing calls for an independent watchdog of police activities and human rights in Austria were finally acted upon in 1999 after the death of a gagged deportee sparked widespread outrage. The section below looks at the tragedy that was the catalyst for the creation of the Human Rights Advisory Council, and assesses the functions and early record of the Council.


Death of Marcus Omofuma

On 1 May 1999 Marcus Omofuma died while being forcibly deported on a flight from Vienna Schwechat airport to Nigeria via Sofia, Bulgaria. At the time of his forced deportation, the 25-year-old Nigerian national was gagged and his hands and feet were bound. He had resisted the attempt to deport him and as a result police officers reportedly took the decision to restrain him.

On the aircraft he was put in an empty row of seats at the back. Witnesses stated that police officers had already gagged him with several pieces of adhesive tape before bringing him onto the aircraft, and then strapped him to the seat using adhesive tape. One witness stated: "He was like a slaughtered animal with his hands and feet bound." Another reportedly said: "They wrapped the entire upper part of his body and arms with adhesive tape like a mummy stuck to the seat." When Marcus Omofuma continued to protest, the police officers allegedly applied more adhesive tape to his chin and used a plastic belt to further secure him to the seat. A crewman on the flight was quoted in an Austrian weekly magazine to have said: "The black man was thrashing around wildly and trying over and over to get air. But the officials did nothing... The man appeared to be really fighting for his life."

Witnesses said that some time into the two-and-a-half-hour journey to Sofia, Marcus Omofuma calmed down. When the officers untied him and removed the adhesive tape from his mouth, they reportedly realized that he had lost consciousness. By the time a doctor arrived, Marcus Omofuma was dead.

There was some controversy about the exact cause of death. An autopsy conducted in Bulgaria shortly after the incident pointed to death by asphyxia. However, an autopsy concluded in November 1999 in Austria suggested that an undetected respiratory-related heart defect meant that it could not be said with the required certainty that there was a causative link between the gagging of Marcus Omofuma and his death. A third autopsy conducted by a German specialist and made public in early May 2001 appeared to reinforce the findings of the first autopsy - that Marcus Omofuma had indeed died of asphyxia.

Three police officers were charged in the case with ill-treating a detainee resulting in death. On 15 April 2002 Korneuburg Regional Court found them guilty of the lesser charge of "negligent manslaughter in particularly dangerous conditions" and sentenced them to eight months’ imprisonment, which was suspended. At the time of writing, the police officers were appealing against the sentences.

Marcus Omofuma’s death was a catalyst for two positive developments concerning the protection of human rights in Austria - the explicit banning of the use of gags during deportations, and the creation of an independent human rights advisory body.


Legacy of Marcus Omofuma’s death

The death of Marcus Omofuma caused a major political scandal in Austria. It was reportedly the first death in police custody in the recent history of the Republic of Austria and to many observers it was brutal and could have been avoided. There were calls for the resignation of the government figures deemed responsible for the tragedy, and peaceful demonstrations were held in Vienna to express concern about the treatment of Marcus Omofuma.

An immediate consequence of such pressure was that, despite the disputed findings of the autopsies, the use of gags during deportations was explicitly banned on 28 May 1999 with the introduction of guidelines regulating deportations. In a letter dated 30 August 1999, the then Minister of the Interior, Karl Schlögl, informed Amnesty International: "I prohibited without exception the use of adhesive tapes or similar materials." Prior to these swift changes no guidelines existed regulating deportations and police officers received no special training in this respect.

The inquiry into Marcus Omofuma’s death revealed a considerable degree of ambiguity about whether gags could have been permissibly used during the expulsion of a deportee. At a press conference on 16 August 1999, Karl Schlögl stated: "Gagging of the mouth was neither permitted nor prohibited, it was a failure in the system." He and several senior police officials maintained they knew nothing of the practice of gagging during forced expulsions. It also emerged that the Head of Vienna’s Alien Police Branch, Stefan Stortetcky, had banned the use of gagging in September 1998 after the death of Nigerian national Semira Adamu by asphyxia during her forced deportation from Belgium. He told subordinates during a meeting in September 1998: "... deportees are to be returned to the police jail if expulsion is only possible through the gagging of the mouth". However, the position of these senior officials directly contradicted statements made by the police officers involved in the deportation of Marcus Omofuma. On 7 May 1999 one of the accused officers reportedly stated before a court in Korneuburg: "I take the position that everyone at our department knew about these practices."

The second positive development was the establishment on 5 July 1999 of the Human Rights Advisory Council (HRAC) which, according to a member of the Council, "would never have happened without the death of Marcus Omofuma". This sentiment is echoed by the HRAC’s official website: "After the death of the Nigerian deportee Marcus Omofuma... efforts to create an advisory council of this type were intensified." It was also no coincidence that the first report and recommendations issued by the HRAC dealt with human rights issues related to "problematic deportations".

The formation of an independent human rights body concerned with police practices had originally been recommended by the European Committee for the Prevention of Torture (CPT) in its initial and second periodic reports on Austria. In the initial report, after a visit to Austria in 1990, the CPT recommended that the Austrian authorities "explore the possibility of empowering an independent body to inspect on a regular basis the conditions of detention in police jails".30In the second report, based on a 1994 visit, the CPT repeated this recommendation. Responding to the second report, the Austrian government stated: "In principle, creating such a body appears worth considering, but the idea requires closer examination. It is safe to say from the outset that any such institution must be possessed of the necessary legal and practical instruments if it is able to work efficiently. Such a project will require some long-term planning before it can be launched."31However, while there were tentative discussions in Austria’s parliament, the Nationalrat, on the possibility of establishing such a body, no concrete steps were taken until Marcus Omofuma’s death rocked the political establishment.


The Human Rights Advisory Council

The legislative basis of the HRAC is found in Article 15 of the Security Police Law (Sicherheitspolizeigesetz). The provisions of this law outline the Council’s composition, functions and powers, and are supplemented by regulations found in several accompanying ordinances.

The HRAC comprises 11 members who are appointed for three-year periods of service by the Minister of the Interior. The chairperson is nominated by the President of the Constitutional Court, five of the members are nominated by Austrian NGOs, two are nominated by the Federal Ministry of Justice and Chancellor’s Office, and three are staff of the Federal Ministry of the Interior. In addition, 11 substitute members are nominated who stand in for permanent members when the latter are unavailable.32

The HRAC has two broad functions. First, it can examine all aspects of human rights relating to activities of the Ministry of the Interior and on this basis offer advice to the Minister of the Interior. A main focus of the HRAC’s activities is to reveal possible structural shortcomings that give rise to human rights violations and suggest improvements to facilitate greater future protection.

Secondly, the HRAC, like the CPT, may actively check police activities, such as by visiting places of detention under the jurisdiction of the Ministry of the Interior or observing the policing of demonstrations. For this purpose, six human rights commissions were created in July 2000 to act as "the eyes and ears of the Human Rights Advisory Council on the ground", as described by a member of the HRAC. The same HRAC member told Amnesty International that the decision to create a system of visits, whereby empirical research could be conducted, was a serious breakthrough to avoid the "debating club syndrome".


Working groups and reports of the HRAC

Since its inception the HRAC has embraced a number of different human rights topics and in some instances has produced reports for public use. Topics are usually discussed and adopted during the meetings of the HRAC, which take place every six weeks. Initially, the adoption of new topics reportedly took place on an ad hoc basis, although a working group on planning was formed in the latter part of 2001 to select criteria for the adoption of future topics. This working group acts as a kind of steering group for the HRAC.

When embarking upon a human rights topic, a working group is usually formed from the members of the HRAC and its commissions, NGOs and experts from the ministries to discuss how the research will be conducted and written up. The working group then presents the HRAC with a draft report which is commented on by the HRAC’s members. After any necessary amendments have been made, the report is officially adopted by the HRAC for presentation to the Minister of the Interior. According to the regulations, adoption is by majority vote, but to date consensus has reportedly been reached through discussion. Obtaining the consensus of the members nominated by the ministries of justice and interior is said to make a report "stronger" and increases the likelihood that the recommendations will be implemented.

In its short history the HRAC has looked at a wide range of human rights topics, the findings of several of which have been published as official reports. The first report, Problematical Deportations, adopted in October 1999, contained 32 recommendations about how such deportations can be facilitated while safeguarding human rights. Other issues studied include: minors in pre-deportation detention; the medical and psychological treatment of people in police detention or prior to their deportation; women in detention; information given to detainees; and the use of discriminatory language by police officers. An annual report of the activities of the HRAC and its commissions is published.

One challenge facing the HRAC is to see whether its recommendations are implemented. A working group was set up to examine the action taken by the Ministry of the Interior in response to the first report on problematic deportations. In the future, this process of evaluation will reportedly be conducted by a working group after the Minister of the Interior has been presented with the HRAC’s recommendations.


Visits of the commissions

The HRAC’s "eyes and ears on the ground" - the commissions - comprise a wide range of individuals, including lawyers, academics, organizational consultants, doctors, psychologists, social workers, a theologian and a journalist. The leader of each commission is directly appointed by the HRAC on the strength of his or her human rights expertise, while the remaining members are chosen by the leader of the commission and approved by the HRAC. Three of the commissions cover the regions in and around Vienna; the other three are responsible for the rest of Austria and are based in the cities of Graz, Innsbruck and Linz. These locations coincide with the seats of Austria’s high courts.

The six commissions - which each consist of six members - have access to any police establishment under the jurisdiction of the Ministry of the Interior in their respective regions. The police authorities in such establishments are obliged to cooperate with the commission members, support their activities and permit them access to both police buildings and documents. Commission members also have the right to meet detainees in private in the absence of third parties, namely the police. Visits can be conducted in a routine manner or according to the dictates of circumstances, and do not have to be announced.

The main task of the commissions is to oversee the conditions of detention under the jurisdiction of the Ministry of the Interior and the exercise of force by the police authorities. When visiting places of detention the commissions use a checklist of standards to determine whether basic safeguards are in place. Their findings are passed on to the HRAC, which decides how the information should be used. The sheer number of reports and the need to attain greater uniformity between the reports of the different commissions has not always made this task straightforward. In the first year of their existence, the six commissions conducted around 120 visits. At the time of writing, the HRAC was in the process of enhancing the training of the commissions’ members in order to attain greater uniformity and consistency in their work.


Successes and limitations of the HRAC

A major success of the HRAC is the breadth of its mandate, which allows it to take up any human rights issue relating to the activities of the Ministry of the Interior in Austria. This is reflected in the relatively diverse topics on which the HRAC has created working groups to conduct research.

A further success has been the cooperation experienced by the HRAC and the commissions when visiting institutions under the jurisdiction of the Ministry of the Interior. Amnesty International has been informed that there exists a high degree of awareness among police officers about the work of the HRAC and its right of access to a wide range of establishments. Moreover, members of the HRAC and the commissions have reportedly been cordially received by police officials during their visits. This positive picture stands in contrast to the experiences of the CPT during its initial visit to Austria in 1990, which referred in its report to the "reticence on the part of authorities" at the establishments it visited. The CPT believed that this reaction might have been explained to some extent "by a lack of information on the part of officials directly concerned, especially in the case of the police, who were only vaguely, or not at all, aware of the CPT’s visit and its role".33

One of the main limitations on the investigatory powers currently bestowed on the HRAC is that its powers of investigation relate only to the institutions under the jurisdiction of the Ministry of the Interior. Prisons are therefore beyond its scope as they fall under the jurisdiction of the Ministry of Justice. Consequently, there is no independent body in Austria that oversees conditions of detention in penal institutions. It remains to be seen whether the HRAC can expand its mandate in the coming phases of its development.

The inability of the HRAC to oversee investigations into allegations of police ill-treatment of detainees might also be regarded as a major limitation. Such a supervisory function might have acted as a powerful deterrent against police ill-treatment, particularly in the light of Amnesty International’s concerns about investigations into alleged police ill-treatment in Austria. In recent years Amnesty International has expressed concern about the impartiality and thoroughness of such investigations, a concern that has been echoed by human rights lawyers within Austria. The CPT has also expressed concern about such investigations in the past. Following its 1990 visit to Austria, the CPT said the question should be addressed of whether an independent person should take part in the disciplinary procedure relating to allegations of police ill-treatment in order to improve the intrinsic quality of the procedure and enhance public confidence in its fairness.34In its second periodic report, the CPT asked for comments from the authorities on the apparently lenient attitude of the Ministry of the Interior with regard to disciplining police officers for behaviour which constituted a serious infringement of a person’s fundamental rights and - in the light of these concerns - on the desirability of having complaints of police ill-treatment investigated by people with appropriate qualifications and skills from outside the police service.35


Conclusion

The death of Marcus Omofuma and the subsequent creation of the HRAC have contributed to an increased awareness and protection of human rights in Austria. Although practical difficulties and a restricted mandate limited the HRAC’s effectiveness in its first year or so, there were nevertheless many encouraging signs that the HRAC will make a considerable impact on the protection of human rights in relation to police activities. The CPT also expressed its satisfaction about the creation of the HRAC, stating in its report on its third periodic visit to Austria: "If it works effectively, the Human Rights Advisory Council will represent an important guarantee against ill-treatment".36However, the key questions - whether and how the government will implement the recommendations of the HRAC and its commissions - have yet to be answered.



2.7 South Africa: Exposing torture under apartheid

"Peter Jacobs [torture victim]: [Y]ou would undress me, tie my blue belt around my feet, throw me on the ground... at some point, I think it is about the fourth time, when I thought I am dying, you woke me up and said, ‘Peter, I will take you to the verge [of] death as many times as I want to. But here you are going to talk and if it means that then you will die, that is okay.’ Do you remember that?

"Jeffrey Benzien [former member of the Terrorist Tracing Unit]: I concede that I may have said that, Sir.

"Peter Jacobs: I want to know, I want you to tell me, because this is important for me. The Truth Commission can amnesty, but this is important for me, did you say that?

"Jeffrey Benzien: Yes, I did say that.

. . .

"Jeffrey Benzien: [T]hese orders would not be for a specific person, go in now and torture that person... This was the order of the day, when interrogating a terrorist, you got your information as soon as possible, by using any methods [at] your disposal. And in my case, it was torture... we [had] been giving evidence in numerous trials and... especially when it came to things like torture... you lied about it, you did not concede.

"Gary Kruser [torture victim]: [U]nder whose orders did you lie? You said you were given instructions to lie, so under whose orders did you lie?

"Jeffrey Benzien: I could say it was under the orders of Lieutenant Liebenberg [his commander]... It was a known fact, under certain circumstances you had to lie, and under those circumstances when it was my testimony that could put a bad light on the Security Branch, I lied. It was an accepted method."37

These remarkable exchanges took place in Cape Town, South Africa, in July 1997 at a public hearing by the autonomous Amnesty Committee of the Truth and Reconciliation Commission.


The Truth and Reconciliation Commission

The Truth and Reconciliation Commission was established in South Africa by the Promotion of National Unity and Reconciliation Act No. 34 of 1995. It had extensive and unusual powers in comparison to "truth commissions" set up to examine past human rights violations in other countries.38Reflecting the delicate political and power balance at the time of the country’s transition from white minority (apartheid) rule in 1994, the legislation establishing the Commission equipped it with:

  1. investigation and subpoena powers;

  2. a wide mandate to inquire into patterns of human rights abuses by public officials and members of opposition organizations over a 34-year period;

  3. the power to make recommendations, including for reparations for victims of abuses; and

  4. the quasi-judicial power to grant amnesty, under certain conditions, to perpetrators of human rights abuses.39

Adopted during the period of the Government of National Unity, which included members of the former government, the legislation had been intensely debated in the Cabinet, in the national parliament and among NGOs. The roots of the decision to include the power to grant amnesties lay in the difficult political negotiations leading to the agreement on an interim Constitution in 1993 and the holding of universal franchise elections in 1994. Members of the then government, and possibly members of opposition organizations, feared the possibility of criminal prosecutions and civil liability for crimes that had been committed in the name of apartheid or in opposition to it.40During the negotiations, opposition parties resisted the government’s push for a blanket amnesty. The compromise reached was reflected in a postscript to the interim Constitution, referred to as the post-amble, which stated that there would be amnesty for politically motivated offences and that future legislation would provide the criteria and procedures to regulate the process.41On this basis the new government under President Nelson Mandela drafted legislation for a wide-ranging commission of inquiry, with powers to grant amnesties.

During the drafting there were fears that Cabinet-level compromises would lead to a decision that the proposed inquiry body could only consider applications for amnesty behind closed doors. However, the pressures within the Cabinet were counter-balanced by open debate in parliament and intense lobbying by NGOs.42The final outcome was a provision in Section 20 of the 1995 Promotion of National Unity and Reconciliation Act that where "gross human rights violations" were acknowledged by a perpetrator in an application for amnesty there had to be an open hearing. The victim or relative had to be informed about the date and location of the hearing and would have the right to "testify, adduce evidence and submit any article to be taken into consideration". An applicant had to make "full disclosure of all relevant facts" and demonstrate that the act for which amnesty was sought "was an act associated with a political objective committed in the course of the conflicts of the past".

The result was likely to be drastic from the point of view of the rights of the victims, as a successful applicant would be permanently protected from any criminal or civil liability in relation to the offence acknowledged. There was no requirement in the Act that the perpetrator should show remorse or make individual reparations to the survivor or their family. Relatives of some prominent anti-apartheid activists who were victims of police brutality challenged these provisions in the Constitutional Court. The Court, while acknowledging that the provisions had an impact on fundamental rights protected under the new Constitution, ruled that the post-amble effectively limited those rights and that victims would have to look to a broader state program of post-apartheid reparations to obtain compensation.43In sum, it was a balancing act between the perceived "national interest" and the claims of victims. Only time would tell if the fruits of "full disclosure" from the amnesty process, implemented by the Truth and Reconciliation Commission’s Amnesty Committee (see below), and the reconciliation that it was assumed to evoke would satisfy the needs and claims of victims and the country’s international human rights obligations.44

Under the apartheid state victims of human rights violations, including torture, or their relatives had faced years of denial from officials that the violations had taken place. The evidence of widespread and routine torture and ill-treatment accumulated by health and legal practitioners and human rights monitoring organizations was simply denied. The statements of victims brought to trial after months of often incommunicado detention about their treatment at the hands of the security police were mostly ignored by the courts. At best, victims might receive an out-of-court settlement in a civil case, but with police denying any liability. The Truth and Reconciliation Commission and the public hearings held in particular by one of its three sub-committees, the Human Rights Violations Committee, finally gave survivors or their relatives an opportunity to tell publicly their painful accounts.


The hearings

The Human Rights Violations Committee held a number of public hearings around the country to investigate and make findings on the claims of victims. These hearings gave some survivors or their family members an opportunity to describe what happened to them and to tell the committee what they hoped would come out of its work on their case. The hearings were held in major urban centres, small towns and rural areas and were attended by members of local communities. Often highly emotionally charged, and sometimes dogged by legal complexities owing to court rulings constraining the naming of alleged perpetrators without prior notice to them,45the hearings were broadcast nationally on television and radio and widely reported in the print media.

Among the numerous testimonies heard, Gladys Ntsizakalo from the Northern Karoo town of Noupoort told the Human Rights Violations Committee that her 15-year-old son, Siphiwo Ntsizakalo, became mentally disturbed after his detention and torture in the 1980s. She had been denied access to her son for up to three months. She testified that when she was finally given access to him at the police station,

"[I found him] alone in the cell. Both his hands and his legs were tied. When I looked at him as a parent, I realised that he was mentally disturbed. When he saw me, he just cried. I could see that my son had changed. When I asked, he said that they kept on beating him up... that is why he was deranged. They would take a sack - a wet sack - and then they would cover him with that sack. They would put him in the boot [of a car], drive him to a place that he did not know, and then... they would beat him up... Now he cannot do anything for himself."46

Over the 18-month period of these public hearings, hundreds of witnesses gave searing accounts of torture and ill-treatment by police and other agents of the apartheid state.47There were some accounts also of torture and ill-treatment inflicted by opposition organizations, including the African National Congress (ANC) in exile in camps they controlled outside South Africa. The Truth and Reconciliation Commission regarded these hearings as vital to achieve one of its statutory objectives - "restoring the human and civil dignity of such victims by granting them an opportunity to relate their own accounts of the violations of which they are the victims". It also stated that "they revealed the extent of gross violations of human rights and made it impossible for South Africans ever again to deny that such violations had indeed taken place".48

In a severely divided society in which many beneficiaries of the apartheid system had ignored widespread and systematic human rights violations, it was the chilling testimony of the perpetrators that breached the wall of denial. The Commission concluded: "[I]n reviewing its efforts to uncover the deeper truth behind the violations of the apartheid era, [it] frankly acknowledges that much of its success is due to the fact that large numbers of security police members grasped at the possibility of amnesty in exchange for full disclosure." It also acknowledged that what drove these security officials to speak was the extent of the disclosures made by one of them, Eugene de Kock, "who broke the code of silence".49This former head of a covert police unit based at Vlakplaas had been prosecuted in the Pretoria High Court for multiple counts of murder and other crimes. Availing himself of the provisions of the 1995 Act, he launched an application for amnesty from C-MAX maximum security prison in Pretoria where he had been serving multiple life sentences. The hearings on his lengthy application threatened to expose the role of others in his crimes. It was in part the fear of likely prosecution that drove other members of the security police to apply for amnesty. Perpetrators from other sectors, such as the military, did not feel similarly threatened and were conspicuously absent as applicants for amnesty.50


Amnesties

The Truth and Reconciliation Commission received just over 7,000 applications for amnesty, the majority of them from prisoners serving sentences. Another of the Commission’s sub-committees - the autonomous Amnesty Committee, which was chaired by a High Court judge - was responsible for considering and deciding on these applications. Many of them were disposed of, on the basis of papers submitted, without a hearing. However, in at least 1,000 cases the decisions on the applications were reached after public hearings before the Amnesty Committee. Of these, some 50 cases involved applicants who disclosed that they or other police officers had used torture or other severe ill-treatment against detainees, or against individuals whom they had abducted and later murdered.

The record of the hearings indicate that in a number of cases survivors of torture, their relatives or their legal representatives were present to challenge the versions presented by the applicants. In the majority of the 50 cases, the Amnesty Committee granted amnesty on the grounds that the applicant had complied with the requirements of Section 20 of the Act, in that he had made "full disclosure of all the relevant facts"; that the act disclosed was "associated with a political objective committed in the course of the conflicts of the past", and had been committed, ordered or planned by an employee of the state acting within the course and scope of his duties, or by a member or supporter of a publicly known political organization or liberation movement in furtherance of that organization’s objectives.

Gerhardus Johannes Nieuwoudt,51who had been one of the most notorious members of the police Security Branch in Port Elizabeth, sought amnesty in relation to a number of prominent cases, including the assault of political activist Mkhuseli Jack in August 1985. Gerhardus Johannes Nieuwoudt claimed in his testimony that under the terms of the then State of Emergency law he was obliged in the "national interest" and was under pressure from the highest political authorities to stabilize "the unrest". This included detaining and interrogating Mkhuseli Jack in a bid to break a consumer boycott of local businesses. Gerhardus Johannes Nieuwoudt claimed that when the detainee proved "very hard-headed", he "took a black plastic sjambok[whip] and... gave him several lashes over his body and legs... It was one way to diminish his resistance." He stated that he took advantage of the emergency regulations which "gave [him] wide protection... against prosecution and civil claims". He said that if a case had emerged against him or other members of the Security Branch, "we would have tried to cover it up whatever the case may be to ensure that we would not get to court".

His carefully phrased admissions, however, were taken apart during the public hearing in September 1997 by Mkhuseli Jack and his lawyer. The lawyer challenged Gerhardus Johannes Nieuwoudt, alleging that he had not just assaulted the detainee with a sjambokbut had actively along with other police officers inflicted the "so-called helicopter torture" on him.

Gerhardus Johannes Nieuwoudt denied this. Mkhuseli Jack, who was at the hearing, was able to confront him:

"I’m going to read from an affidavit which was the basis for the civil claims which... [the police had] settled on the basis of the information that is in this document...

"[Warrant-Officer Coetzee] took out a towel and tied it nicely around each of my wrists and placed the handcuffs over the towelling. He screwed the handcuffs tight. I was told to sit on the floor and place my handcuffed arms over my legs. A stick was then inserted below my knees and above my forearms, locking me into a permanent crouch. Nieuwoudt entered the room... Both men then lifted me up by means of the stick and suspended me between two tables...

"About 60 other applicants who were the basis of the civil claim... were subjected to that. On 80 per cent of them, he [Nieuwoudt] was involved... I am not going into the discomfort, because everybody knows what this thing [helicopter torture] is about... I find it strange that he doesn’t remember this, because he [then] was bragging about how he has assaulted all the other people... How... Nieuwoudt can deny this, I really don’t understand. How does he hope to get amnesty? [T]his platform of amnesty should be used with the dignity it deserve[s] and mustn’t be turned into a mockery with the aim of insulting the families... [my] family and myself and the families of many other people who would not be having an opportunity to come and speak in front of this [committee]..."

Gerhardus Johannes Nieuwoudt’s lawyer replied that it was highly unlikely that he would have commented about his responsibility for assaults "to a person who would eventually one day be able to give evidence against him". Mkhuseli Jack replied: "[Nieuwoudt] never believed that he [would] be facing these people here and sitting here... [He] feared no claims from detainees." Indeed, in the end it was the long-practised arrogance of the Security Branch, reflected in Gerhardus Johannes Nieuwoudt’s testimony, which undermined his application. The Amnesty Committee rejected his application on the grounds that he had failed to make a "full disclosure" and that the limited assault he had admitted to was not an act associ-ated with a political objective.

In another case the Amnesty Committee’s decision to grant amnesty to a former Durban Security Branch officer, Christo Nel,52for his role in the torture of a detainee, Yunis Shaik, in July 1985 was supported by the victim. Christo Nel testified that he had held down the detainee while he was being tortured by other police officers. He said that one of the torturers was a medical doctor, who had in fact "administered" the "very unusual" method of (anal) torture on Yunis Shaik. The victim, who had been held in solitary confinement for 11 months, told the Amnesty Committee that he substantially agreed with the version given by the applicant. He said, "[A]s I’ve listened... it’s almost as if... I was reliving a rather traumatic memory." He went on to state, generously, that Christo Nel’s disclosures had provided "an opportunity for [Yunis] and [his] family to bring closure" on a period when his father and three brothers had also been detained and his mother had suffered a heart attack and died. He himself had suffered an enormous amount of rage after his release. He reflected that the applicant had shown some courage in presenting himself before the Committee, when "many other police officers" had failed to do so.

In contrast, the hearing on the application of Jeffrey Benzien,53a former member of the police Security Branch, revealed a profound ambivalence on the part of his former victims, who ultimately doubted the extent to which he had fully disclosed the relevant information in defence of his claim to amnesty. At one level Jeffrey Benzien’s statements to the Amnesty Committee represented an astonishingly frank acknowledgment of his routine infliction of torture on anyone suspected of "terrorist" activities on behalf of the ANC in the late 1980s. His testimony and that of his supporting witness, retired Major General Johannes Griebenauw, a former senior officer of the police Security Branch, confirmed that this conduct was condoned at the highest level politically. At one stage in the hearing, on the request of one of his former victims, Tony Yengeni, Jeffrey Benzien demonstrated on a volunteer in front of the panel, the audience and television cameras his notorious "wet bag" method of suffocation torture, which observers saw as a form of "public shaming". Despite this, his victims’ persistent questioning in the hearing frequently exposed his failure to admit to other forms of ill-treatment and to name other police officers who participated in the torture sessions.

In reaching its decision on Jeffrey Benzien’s application, the Amnesty Committee did not, as it did routinely in other rulings, reflect on the extent to which the applicant had made a full disclosure. Nonetheless, he was granted amnesty for assault with intent to inflict grievous bodily harm on seven named detainees. The Committee simply commented that on the evidence before them, "the offences for which the applicant seeks amnesty were committed during and arose out of the conflicts of the past between the State and Liberation Movement".

In the case of Stanza Bopape, whose "disappearance" in June 1988 had been vigorously investigated by his family, the Amnesty Committee accepted, with some uneasiness, the claims of 10 former Security Branch officers, including the then head of the Security Branch, that they had unlawfully killed him (as a result of inflicting electric shocks), disposed of the body and concocted an elaborate cover-up to conceal the crime. In a worrying reflection on the issue of "proportionality", the Committee commented that

"The methods used in the interrogation of the Deceased were both odious and unlawful. We are, however, after careful consideration, of the view that their use of the electric shock device in the interrogation was not disproportionate to the objective they were pursuing. According to them the use of electric shock devices in interrogation was common practice... They perceived it as being an effective and convenient method of forcing the victim to co-operate and they did not anticipate or suspect that its use would have fatal consequences."54

The Amnesty Committee completed its hearings and delivered its final rulings by June 2001. The remaining task for the Truth and Reconciliation Commission was to compile its concluding report, which would incorporate the factual findings of the Amnesty Committee into the Commission’s earlier findings published in October 1998 and make additional recommendations on reparations for victims of human rights violations who had been identified by the Amnesty Committee. That report, which has to be handed to the President of South Africa, was still pending in early 2002.


Conclusion

The work of the Truth and Reconciliation Commission ended years of denial by state officials and political parties that torture occurred systematically and with impunity during the period of apartheid rule. It also gave many victims the opportunity to recount their experiences in public hearings and gave some the chance to challenge their torturers face to face.

However, not all were comfortable with the results of the Commission, and the price they paid in the name of the perceived national interest has been underlined by the government’s failure to implement swiftly or with any grace the recommended reparations for named victims. Moreover, little interest has been displayed by the government and other political parties in parliament in considering the Commission’s recommendations, made in its 1998 report, for preventing a repetition of the kinds of human rights violations it had helped to expose.

Since 1996, when the Commission began its work, the political mood in the country has changed considerably. Attention has shifted away from the rights and claims of the victims of torture and other human rights violations under apartheid to the rights of victims of violent crime, the levels of which are causing increasing public concern.

South Africa is still a country where torture occurs, primarily in the context of the "war against crime".55Despite the achievements of the Truth and Reconciliation Commission, the justifications given by the torturers who applied for amnesty and the acceptance of these by the Amnesty Committee under the terms of the Act may prove to be a dangerous legacy in terms of the continuing fight to end torture.



[photo caption]

Nazli Top, one of several defendants on trial in Turkey for "insulting" the army and police after denouncing sexual torture at a conference in 2000. Nazli Top was allegedly raped with a truncheon in 1992 while pregnant, but seven police officers accused of torturing her were acquitted in 1994. Amnesty International believes that the rape of a prisoner by a prison, security or military official always constitutes torture. © AP

[end caption]



Chapter 3: International law and the obligations of states

3.1 Introduction

The prohibition of torture and ill-treatment was proclaimed in 1948 in the Universal Declaration of Human Rights. As shown in Chapter 1, developments since then have included:

  1. the incorporation of the prohibition in binding international and regional treaties, other international and regional human rights instruments*(9) and many national constitutions;

  2. the designation of the prohibition in leading international and regional treaties as a non-derogable right - a right which must never be suspended, even in time of public emergency;

  3. the recognition of the prohibition of torture and other ill-treatment as a rule of customary international law, and the recognition of the prohibition of torture as a peremptory norm of general international law, binding on all states whether or not they are parties to treaties which contain the prohibition (see section 3.2.6 below);

  4. the elaboration of standards on the prevention of torture and ill-treatment, on their investigation, on bringing perpetrators to justice and affording reparation to victims;

  5. 0 the progressive recognition of these standards as constituting not merely recommendations, but obligations of states;

  6. the development of international standards and practice relating to individual criminal responsibility for torture and ill-treatment;

  7. the expansion of the forms of abuse which are recognized as included in the prohibition (see section 3.4);

  8. an increasing awareness of the obligation of states to protect people from abuses by private individuals which are contrary to the prohibition of torture and ill-treatment.

These developments have come about by various means, including:

  1. the adoption of human rights treaties and other standards by international and regional intergovernmental organizations;

  2. judgments, decisions and statements by the regional human rights courts and commissions, other international human rights bodies and mechanisms, and the International Criminal Tribunals for the former Yugoslavia and Rwanda;

  3. the efforts of non-governmental organizations (NGOs) to ensure that governments honour their international human rights obligations.

This chapter sets out the relevant international standards and examines how the prohibition of torture and ill-treatment is currently treated under international law.*(10)



3.2 A conjunction of international standards

Torture and ill-treatment are prohibited under international human rights law, under the laws of war (international humanitarian law) and under general international law. In addition, individual acts of torture or ill-treatment are proscribed as crimes under international law if committed as war crimes, as crimes against humanity or as genocide. International human rights standards also prescribe measures which governments should take to prevent torture and ill-treatment, to investigate alleged cases, to bring to justice those responsible and to afford reparation to victims.1


3.2.1 General human rights instruments**(11)

The Universal Declaration of Human Rightsis a highly authoritative instrument which applies to all states. Article 5 states:

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The International Covenant on Civil and Political Rights (ICCPR) is the pre-eminent worldwide treaty on civil and political rights. It is binding on states parties, of which there were 148 as of 1 October 2002.*(12)Article 7 states:

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."**(13)

Other articles of the ICCPR which are relevant to the elimination of torture include Article 2 on the obligation to respect and ensure human rights, Article 6 on the right to life, Article 9 on the right to liberty and security of person, Article 10 on the right of persons deprived of liberty to be treated with humanity and respect for human dignity, and Article 14 on the right to a fair trial.

Torture and ill-treatment are also prohibited under the four general regional human rights treaties adopted to date - the African Charter on Human and Peoples’ Rights(Article 5), the American Convention on Human Rights(Article 5), the European Convention on Human Rights(Article 3) and the Arab Charter on Human Rights(not yet in force, Article 13).2


3.2.2 Specialized instruments on the prohibition and prevention of torture

The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(Convention against Torture) is binding on states parties, of which there were 130 as of 30 June 2002. It sets out a series of measures regarding prevention, investigation, bringing those responsible to justice both domestically and across borders, and affording reparation to victims. Certain provisions of the Convention apply to both torture and other ill-treatment, while others, such as those referring to criminalization, prosecution and the exercise of universal jurisdiction, apply only to torture.***(14)

The UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Declaration against Torture) is an older instrument, many of whose provisions are similar to those in the Convention against Torture. The application of its provisions to ill-treatment other than torture is generally wider than in the Convention. It is a non-binding but authoritative set of standards which applies to all states.3

There are also two regional treaties concerned specifically with torture:

  1. The Inter-American Convention to Prevent and Punish Torture provides for universal jurisdiction over torture among states parties in the Americas region and sets out other measures regarding prevention, investigation, bringing those responsible to justice and affording reparation. Sixteen states were parties as of 1 October 2002.4

  2. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (European Convention for the Prevention of Torture) provides for the establishment of a Committee (European Committee for the Prevention of Torture, CPT) empowered to visit places where people are deprived of their liberty in states parties, of which there were 44 as of 1 October 2002.5 Under Protocol No. 1 to the Convention, there is a possibility for non-member states of the Council of Europe to be invited to become parties.


3.2.3 Other specialized human rights treaties

Torture and ill-treatment are explicitly prohibited under a number of specialized human rights treaties which apply to specific groups of people or in specific circumstances. Thus, Article 37 of the Convention on the Rights of the Childstates: "No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment." As of 1 October 2002, 191 states were parties to the Convention on the Rights of the Child. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families(not yet in force) and the African Charter on the Rights and Welfare of the Childalso contain explicit prohibitions of torture and ill-treatment.6

International and regional instruments designed to combat discriminationcontain explicit prohibitions of torture and ill-treatment or prohibitions of the infliction of bodily or mental harm under which various acts of torture or ill-treatment would clearly be prohibited. Article 5 of the International Convention on the Elimination of All Forms of Racial Discriminationobliges states parties "to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution". Article 4 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Womenstates: "Every woman has the right to the recognition, enjoyment, exercise and protection of all human rights and freedoms embodied in regional and international human rights instruments", including "[t]he right not to be subjected to torture". Also, the Committee on the Elimination of Discrimination against Women (CEDAW) established under the Convention on the Elimination of All Forms of Discrimination against Women, in its General Recommendation 19 on violence against women, has enumerated the right not to be subjected to torture or ill-treatment among the rights impaired or nullified by gender-based violence, constituting discrimination within the meaning of that Convention (see section 6.6).

Other international treaties also contain similar prohibitions. Article II of the Convention on the Prevention and Punishment of the Crime of Genocide(Genocide Convention) prohibits "[c]ausing serious bodily or mental harm" to members of a national, ethnical, racial or religious group with intent to destroy the group as such in whole or in part. Article 5 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slaveryprohibits "mutilating, branding or otherwise marking a slave or a person of servile status" in countries where slavery still exists. Torture or ill-treatment is also included as a component of the crime of apartheid in Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid.


3.2.4 International humanitarian law

Torture and ill-treatment are prohibited in all circumstances underinternational humanitarian law- the body of international law which regulates the behaviour of parties to armed conflicts, also known as the laws of war. The four Geneva Conventions of August 12, 19497prohibit the "torture or inhuman treatment, including biological experiments" and "wilfully causing great suffering or serious injury to body or health" of persons protected by these Conventions; they identify such acts as "grave breaches" of the Conventions if committed against "protected persons "*(15) and provide for universal jurisdiction over grave breaches (see section 7.5). Rape of women is also proscribed under Article 27 of the Fourth Geneva Convention. These provisions are applicable to international armed conflicts - wars between states. In addition, Article 3, a text common to all four Conventions, extends to "armed conflict not of an international character"8a list of fundamental rules for the protection of persons who have not taken, or are no longer taking, "active part in the hostilities", which each party to the conflict is "bound to apply, as a minimum". Under common Article 3, "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment" "are and shall remain prohibited at any time and in any place whatsoever" with respect to these persons.**(16)

The two Protocols Additional to the Geneva Conventions of 1949, adopted in 1977, expand the list of specific prohibited acts. Additional Protocol I, relating to international armed conflicts, expands the list of grave breaches (Articles 11, 85). It reaffirms the prohibition of "violence to the life, health, or physical or mental well-being of persons", in particular "torture of all kinds, whether physical or mental", corporal punishment and mutilation, and "enforced prostitution and any form of indecent assault", committed against "persons who are in the power of a Party to the conflict" (Article 75); it also requires the protection of women against rape, forced prostitution and any other form of indecent assault (Article 76) and of children against indecent assault (Article 77). Additional Protocol II, relating to non-international armed conflicts, prohibits "violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment" and "rape, enforced prostitution and any form of indecent assault" committed against "persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted" (Article 4). The Geneva Conventions and the Additional Protocols also establish safeguards (Article 4) and standards for detention9and measures for the protection of women and children,10many of which are similar to those found in international human rights standards.

The obligations set out in the Geneva Conventions and the Additional Protocols are binding on states parties to these instruments. Virtually all states are parties to the Geneva Conventions, and the majority are parties to the Additional Protocols. Furthermore, not only states but other parties to an armed conflict are bound to apply the provisions of common Article 3 and, where applicable, of Additional Protocol II.11

The International Court of Justice has held that under the "fundamental general principles of international humanitarian law", the rules set out in common Article 3 constitute a "minimum yardstick" which applies to international as well as non-international armed conflicts.12In accordance with this ruling, torture and other ill-treatment prohibited under common Article 3 would, if inflicted in any armed conflict, be a violation of general international law. Rules of general international law apply to all states, whether or not they are parties to a treaty expressly containing the rule (see section 3.2.6 below).


3.2.5 Crimes under international law: war crimes, crimes against humanity and genocide

Crimes under international law are crimes by individuals which are defined by international law itself and which international law permits or requires states to punish. The notion that certain especially serious crimes by public officials constitute crimes under international law was first put into practice with the International Military Tribunal (the Nuremberg Tribunal) which convicted political and military Nazi leaders in Germany for grave crimes committed during the Second World War. The Charter of the Nuremberg Tribunal gave the Tribunal jurisdiction over crimes against peace, over war crimes (described as "violations of the laws or customs of war", including "ill-treatment" of prisoners of war and civilian populations in occupied territories) and overcrimes against humanity (including "inhumane acts" against a civilian population).13Article 7 of the Charter provided that "[t]he official position of defendants, whether as Heads of States or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment". The Charter also provided that there was to be no defence of superior orders.14

The Nuremberg Principles, a formulation adopted by the International Law Commission15of the principles of international law recognized in the Charter and the Judgment of the Nuremberg Tribunal, state that war crimes and crimes against humanity are punishable as crimes under international law. Under the Nuremberg Principles, "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment", even if the crime is not punishable under national law.16

As noted above, the Geneva Conventions of 1949 specify certain acts as "grave breaches" of the Conventions if committed against "protected persons". The rules set out in the Geneva Conventions entail individual criminal responsibility for grave breaches of the Conventions, including torture and inhuman treatment, and provide for mandatory universal jurisdiction over these crimes among states parties to the Conventions (see section 7.5 of this manual). Grave breaches of the Geneva Conventions or of Additional Protocol I are war crimes.17According to a ruling of the International Criminal Tribunal for the former Yugoslavia, customary international law also imposes criminal liability for serious violations of common Article 3 to the Geneva Conventions, and such acts can constitute war crimes regardless of whether they are committed in an international or a non-international armed conflict.18

Other developments since the Second World War have included the recognition of genocideas a crime under international law and the adoption of a convention on that crime, and the adoption by the UN General Assembly of instruments which preclude the application of statutes of limitations to war crimes, crimes against humanity and genocide and provide for international cooperation in bringing to justice perpetrators of war crimes and crimes against humanity.19Under the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (Article I), war crimes include those defined as such in the Charter of the Nuremberg Tribunal and grave breaches of the Geneva Conventions. Genocide is defined in Article II of the Genocide Convention as any of a series of specified acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". As mentioned above (section 3.2.3), the specified acts include "causing serious bodily or mental harm to members of the group".

One of the most important recent developments has been the establishment of ad hocInternational Criminal Tribunals to try people accused of extremely serious crimes in connection with specific events. Two such tribunals are currently in existence: the International Criminal Tribunal for the former Yugoslavia (Yugoslavia Tribunal), established by the UN Security Council in 1993 in connection with the armed conflicts which began in the former Yugoslavia in 1991,20 and the International Criminal Tribunal for Rwanda (Rwanda Tribunal), established by the Security Council in 1994 in connection with the genocide which began in April of the same year.21

The crimes set out in the Statutes of the two Tribunals are drawn from the provisions of the Geneva Conventions and other instruments cited above.

  1. The Yugoslavia Tribunal has jurisdiction over the following crimes committed in the territory of the former Yugoslavia since 1 January 1991: grave breaches of the Geneva Conventions of 1949, including "wilful killing", "torture or inhuman treatment" and "wilfully causing great suffering or serious injury to body or health"; violations of the laws or customs of war;22 crimes against humanity, with "torture", "enslavement", "rape" and "other inhumane acts" included among the possible constituent crimes, committed in armed conflict and "directed against any civilian population"; and genocide, with "causing serious bodily or mental harm to members of the group" as a possible constituent crime.23

  2. The Rwanda Tribunal has jurisdiction over the following crimes committed in Rwanda, or committed by Rwandan citizens in neighbouring states, during 1994: violations of common Article 3 to the Geneva Conventions of 1949; violations of Additional Protocol II of 1977 to the Geneva Conventions; crimes against humanity, with "torture", "enslavement", "rape" and "other inhumane acts" included among the possible constituent crimes, committed as "part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds"; and genocide, with "causing serious bodily or mental harm to members of the group" as a possible constituent crime.24

As noted in section 7.6, torture, rape (both as a form of torture and as a separate crime) and other ill-treatment have been among the acts for which defendants have been convicted by the Yugoslavia and Rwanda Tribunals under the headings of one or another of the crimes listed above.

A further key step was taken in 1998 with the adoption of the Rome Statute of the International Criminal Court (Rome Statute), a treaty providing for the establishment of a permanent international court to try war crimes, crimes against humanity, genocide and the crime of aggression.25The Court is able to try cases of people accused of these crimes committed on or after 1 July 2002, the date of entry into force of the Rome Statute, if the conditions for the exercise of its jurisdiction set out in Articles 12 and 13 of the Rome Statute have been met.26

Under the Rome Statute, the jurisdiction of the Court extends to the following crimes, many of which may involve torture or ill-treatment.*(17)

  1. War crimes under the Rome Statute (Article 8) include torture, "inhuman treatment" as a grave breach of the Geneva Conventions, "cruel treatment" as a violation of common Article 3 to the Geneva Conventions, "wilfully causing great suffering, or serious injury to body or health", mutilation, "outrages upon personal dignity, in particular humiliating and degrading treatment", rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and "any other form of sexual violence".

  2. Crimes against humanity are defined as any of a series of acts specified in Article 7(1) of the Rome Statute "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".27 The acts specified in Article 7(1) include torture, enslavement, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, "any other form of sexual violence of comparable gravity" and "other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health".

  3. Genocide is defined in Article 6 as any of a series of specified acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". As in the Genocide Convention, the list of specified acts includes "causing serious bodily or mental harm to members of the group".28

An act of torture or ill-treatment conforming to the list of prohibited acts in Article 8 of the Rome Statute could be tried by the International Criminal Court as a war crime if committed in an international or non-international armed conflict. An act of torture or ill-treatment conforming to the list of acts specified in Article 7 could be tried as a crime against humanity if "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". Acts of torture or ill-treatment causing "serious bodily or mental harm" to members of a "national, ethnical, racial or religious group" could be tried as genocide if "committed with intent to destroy" the group "in whole or in part".

Criminal responsibility extends to a person who commits or attempts to commit a crime within the jurisdiction of the Court or who orders, solicits or induces, aids, abets or otherwise assists in or contributes to the commission or attempted commission of such a crime (Article 25). The Rome Statute also has provisions concerning the non-admissibility of the defence of superior orders (Article 33), the criminal responsibility of commanders and other superiors for acts committed by subordinates or people under their command (Article 28) and the lack of exemption of a person from criminal responsibility on grounds of official capacity even if the person has immunity under national law (Article 27). No crime within the jurisdiction of the Court is subject to any statute of limitations (Article 29). The death penalty is excluded from the penalties which the Court may impose (Article 77).

There were 81 states parties to the Rome Statute as of 1 October 2002.


3.2.6 General international law

The agreements between states formalized in international treaties are not the only sources of international law. Under Article 38 of the Statute of the International Court of Justice,29that Court, whose function is "to decide in accordance with international law such disputes as are submitted to it", shall apply, in addition to international treaties, "international custom, as evidence of a general practice accepted as law" (customary international law) and "the general principles of law recognized by civilized nations", with "judicial decisions and the teachings of the most highly qualified publicists of the various nations" as subsidiary sources. The term general international lawrefers to the law which may be derived from the non-treaty sources specified in Article 38: customary international law and "general principles of law", with judicial decisions and the writings of eminent international lawyers as additional sources of clarification. Rules of general international law apply to all states, whether or not they are parties to a treaty expressly containing the rule.

Customary international law(also known as "customary law"), the principal source of general international law, comprises international rules derived from state practice and regarded as law (opinio juris).30

Certain rules of general international law are of such importance that they are accepted as "peremptory norms" from which states may not derogate - they may not withdraw from their obligation to respect them under any circumstances. A peremptory norm of general international law,also known as a norm of jus cogens, is defined in the Vienna Convention on the Law of Treaties (Article 53) as "a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character".

The UN Human Rights Committee has stated that the obligation not to subject people to torture or ill-treatment is a rule of customary international law and that the prohibition of torture is a peremptory norm.31These points can be considered to be firmly established: they have never been seriously challenged, and they are supported by important judicial decisions.32

The International Court of Justice has identified certain international obligations as obligations erga omnes,that is, obligations which a state has towards the international community as a whole and in the fulfilment of which every state has a legal interest. Such obligations derive from, among other things, "the principles and rules concerning the basic rights of the human person".33According to the UN Special Rapporteur on torture, the right not to be subjected to torture belongs to these basic rights "beyond any doubt"; the obligation to respect this right is an obligation erga omnes.34

The prohibition of torture and ill-treatment under customary international law, the prohibition of torture as a peremptory norm and the obligation erga omnes to prohibit torture have important consequences regarding the obligations of states.

  1. All states are bound to respect the prohibition of torture and ill-treatment as a matter of customary international law, whether or not they are parties to treaties which expressly contain the prohibition.

  2. All states are obliged to prevent torture and to punish acts of torture, whether or not they are parties to treaties which expressly require them to do so.35

  3. As stated by the Yugoslavia Tribunal, the prohibition of torture as a peremptory norm implies that any state is entitled to "investigate, prosecute and punish or extradite" an alleged torturer who is present in a territory under its jurisdiction.36 Its prohibition as a peremptory norm also suggests that there should be no statute of limitations for the crime of torture.37

  4. The obligation erga omnes implies that the failure by a state to respect the prohibition of torture is not merely a matter of domestic law: it is a breach of the state’s obligations towards all other states. Other states are entitled to become involved in the matter and to demand satisfaction. One way for states to enforce the obligation could be through the exercise of universal jurisdiction over alleged torturers found in territory under their jurisdiction.


3.2.7 Non-binding standards

There are also a great many non-binding international instruments which are relevant to the prohibition of torture. Some contain explicit prohibitions of torture and ill-treatment;38others set out standards, safeguards and other measures contributing to prevention.

Most of the instruments are in the form of resolutions adopted by the UN General Assembly or other UN bodies. Although not binding under international law, these "soft law" instruments should not be regarded as mere sets of recommendations which governments are free to follow or not as they choose. The adoption of these instruments has often involved a scrutiny as intense as that applied to the drafting of treaties. Many of them have been adopted without a vote, a sign of strong agreement by states that the standards set out in them should be implemented. These "soft law" standards may subsequently be adopted as legally binding obligations, as happened when various provisions of the Declaration against Torture were incorporated in the Convention against Torture. Some "soft law" standards may reflect actual or emergent rules of general international law. The standards may be used by national and international judicial bodies to elaborate the scope of established rules of law and to interpret and develop the rules set out in international human rights treaties.39

Two of the most important instruments are the UNBody of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles on Detention) and the UN Standard Minimum Rules for the Treatment of Prisoners(Standard Minimum Rules). These and other instruments are cited frequently in this manual.

At the regional level, several European intergovernmental organizations have adopted non-binding instruments relevant to the prohibition of torture, in addition to the treaties cited above. Thus, the Council of Europehas adopted a number of instruments,40while the Organization for Security and Co-operation in Europe(formerly the Conference on Security and Co-operation in Europe) has reaffirmed the prohibition of torture and the need to eliminate it.41The European Union(EU) has adopted guidelines for a policy to promote the elimination of torture outside the EU (see section 8.2).



3.3 What is prohibited?

The prohibition of torture and ill-treatment appears in Article 5 of the Universal Declaration of Human Rights as follows:

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

"Torture" and "cruel, inhuman or degrading treatment or punishment" should not be seen as separate categories in this formulation. It should, rather, be understood that certain acts of cruel, inhuman or degrading treatment or punishment can constitute torture. This relationship has been underlined by the use of the word "other" in the full title of the Convention against Torture ("Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment") and elsewhere.42

Since its adoption in 1948, the Universal Declaration of Human Rights has served as an inspiration and a model for other human rights instruments. The prohibition of torture and ill-treatment and its expression with the aid of the terms "cruel", "inhuman", "degrading", "treatment" and "punishment" have been incorporated in international and regional instruments and in many national constitutions. All these elements of the formula in the Universal Declaration of Human Rights have been carried over into the ICCPR and the regional human rights treaties with the exception of the European Convention on Human Rights, where the word "cruel" is omitted - an omission of little significance.43

Article 7 of the ICCPR states:

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

The formulations in Article 5 of the Universal Declaration of Human Rights and Article 7 of the ICCPR can be seen as encompassing a class of prohibited behaviour. Often it is not necessary to distinguish among the different elements of the formulation, since the entire class of behaviour - torture and other ill-treatment - is prohibited. All the obligations of states parties with regard to Article 7 of the ICCPR apply to all of the behaviour described in Article 7, and all of these obligations are absolute, non-derogable and unqualified. (Under the Convention against Torture and the Inter-American Convention to Prevent and Punish Torture, however, certain obligations apply only to torture, as noted in section 3.2.2.)

At face value, the formulation in the first sentence of Article 7 of the ICCPR would appear to comprise as many as seven modes of prohibited behaviour: torture, cruel treatment or punishment, inhuman treatment or punishment, degrading treatment or punishment. Indeed some of these will sometimes need to be distinguished from others, but they cannot and should not be thought of as seven distinct subclasses of the prohibition. Some may overlap with others: torture is a form of ill-treatment; treatment which is "cruel" may also be "degrading"; a "punishment" may also be thought of as a form of "treatment". Assessments of allegations of prohibited behaviour will usually have to be made on a case-by-case basis, and the details of cases can vary enormously. The obligation to prevent torture and ill-treatment applies to everything described in Article 7. Moreover, an attempt to establish rigid definitions of each of the elements of Article 7 could preclude later developments which might enlarge or enrich the understanding of what it includes, in line with evolving notions of human rights.

In applying the prohibition of torture and ill-treatment to cases brought before it under the first Optional Protocol to the ICCPR, the Human Rights Committee has sometimes stated that the abuses inflicted on the complainant amounted to "torture" or to other elements of the formulation such as "degrading" treatment; in other cases it has not referred to particular elements of the formulation but has simply stated that there has been a violation of Article 7, engaging responsibility on the part of the state.44In its General Comment 20 on Article 7 of the ICCPR (para. 4), the Human Rights Committee has stated: "The Covenant does not contain any definition of the concepts covered by article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied." The European Commission and Court of Human Rights, however, have gone further in ascribing specific meanings to the terms "torture" and "inhuman" or "degrading" treatment or punishment (see below).

Like the ICCPR, most other international and regional instruments which prohibit torture and ill-treatment do not define these abuses. The seeming lack of precision in the absence of a definition has not impeded the work done by intergovernmental bodies and human rights defenders under the standards set out in these instruments; on the contrary, the very lack of a definition may have helped the work to develop.45

There are, however, several international definitions of "torture".


3.3.1 Defining torture


The Convention against Torture

Article 1 of the Convention against Torture states:

"1. For the purposes of this Convention, the term ‘torture’ 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.

"2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application."

Article 4 requires each state party to the Convention to ensure that "all acts of torture are offences under its criminal law". Article 8 requires states parties to deem offences of torture to be extraditable offences between them, while Articles 5-7 deal with the application of the criminal justice system and the exercise of universal jurisdiction over torture. In relation to these articles, Article 1 serves to define the elements of the crime of torture for the purpose of bringing torturers to justice in accordance with the provisions of the Convention.

The definition in Article 1 has assumed ever greater importance with the increasing number of states parties to the Convention, the increasing number of states which incorporate the elements of the definition in national laws prohibiting torture (see section 7.2), the increasing tendency of the regional human rights courts and the Yugoslavia and Rwanda Tribunals to draw from it in making findings of torture, and authoritative references to key elements of the definition as matters of customary international law.46

The definition in Article 1 has five elements:

Torture involves the infliction of "pain or suffering, whether physical or mental". The inclusion of the notion of "mental" suffering is important: torture is not restricted to the infliction of physical pain.

The pain or suffering is "severe". If it is not, the act does not amount to torture under the Convention, although it may constitute ill-treatment.*(18)

It is inflicted intentionally. Pain or suffering inflicted accidentally cannot constitute torture.

It is inflicted for a purposesuch as those listed in Article 1, or "for any reason based on discrimination of any kind".

It is inflicted "by or at the instigation of or with the consent or acquiescence of a public officialor other person acting in an official capacity".47[Emphases added]

The second sentence of Article 1 states that the definition does not include "pain or suffering arising only from, inherent in or incidental to lawful sanctions". The Special Rapporteur on torture has stated that this exclusion (commonly known as the "lawful sanctions" exclusion) "must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community, such as deprivation of liberty through imprisonment, which is common to almost all penal systems". With reference to judicial corporal punishments (see section 6.4), he has pointed out that "cruel, inhuman or degrading punishments are... by definition unlawful; so they can hardly qualify as ‘lawful sanctions’ within the meaning of Article 1 of the Convention against Torture".48


The Inter-American Convention to Prevent and Punish Torture

Article 2 of the Inter-American Convention to Prevent and Punish Torture states:

"For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

"The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article."

Unlike the definition in Article 1 of the UN Convention against Torture, this definition does not mention the perpetrator. However, Article 3 states:

"The following shall be held guilty of the crime of torture:

"a. A public servant or employee who acting in that capacity orders, instigates or induces the use of torture, or who directly commits it or who, being able to prevent it, fails to do so.

"b. A person who at the instigation of a public servant or employee mentioned in subparagraph (a) orders, instigates or induces the use of torture, directly commits it or is an accomplice thereto."

As with the UN Convention against Torture, the definition in the Inter-American Convention serves mainly to establish the elements of the crime of torture for the purpose of addressing criminal acts, where necessary through the exercise of extradition or universal jurisdiction. It differs from the definition in the UN Convention against Torture in the specific purposes cited, in the inclusion of "any other purpose" and in the reference to torture "intended to obliterate the personality of the victim or to diminish his physical or mental capacities".

As of 1 October 2002, 14 states parties to the UN Convention against Torture were also parties to the Inter-American Convention and had thus accepted the definitions of torture in both instruments.


Judgments of the European Court of Human Rights

The European Convention on Human Rights, as amended by its Protocol No. 11, provides a possibility for individuals to submit formal complaints that their rights under that Convention have been violated.49Until November 1998, complaints were submitted to the European Commission of Human Rights; the Commission could not issue binding judgments, but its "opinions" could be referred to the European Court of Human Rights, which makes rulings that are binding on states parties.50Since November 1998, complaints have gone directly to the Court.51The opinions of the Commission and the rulings of the Court have considerably developed the meaning and application of the prohibition of torture and inhuman or degrading treatment or punishment under Article 3 of the European Convention on Human Rights.

The first important set of findings, in the Greek Case0 , concerned political prisoners held in Greece after the military coup of April 1967.52After examining the findings of its Sub-Commission which had travelled to Greece to investigate allegations of torture and ill-treatment, and materials including statements by witnesses and alleged victims, medical reports, reports by members of foreign parliaments, journalists and private investigators and documents furnished by the Greek government,53the European Commission of Human Rights found that there had been "a practice of torture and ill-treatment" by the Athens Security Police, consisting most often of the application of falanga(beatings on the soles of the feet) or other severe beatings for the purpose of extracting confessions and other information.54In its report on the Greek Case, the Commission examined the terms tortureand inhumanor degradingtreatment or punishment*(19)and stated: "It is plain that there may be treatment to which all these descriptions apply, for all torture must be inhuman and degrading treatment, and inhuman treatment also degrading."55

In subsequent judgments, the European Court of Human Rights has continued to attach specific meanings to the terms "torture", "inhuman" and "degrading" treatment under the European Convention on Human Rights and has developed the notion of thresholds of severity**(20)and other criteria for passing from one category to another, or from acts which are not prohibited as torture or ill-treatment to those which are.

  1. In the case of Ireland v. UK, the Court introduced the notion that "torture" involves the infliction of "very serious and cruel suffering".56 In a 1977 ruling, which has been criticized by one authority as involving "unsatisfactory reasoning from an authoritative judicial body",57 the Court held that five techniques of sensory deprivation, applied together in the interrogation of prisoners held under emergency legislation in Northern Ireland, amounted to inhuman and degrading treatment but "did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood".58 But in the case of Selmouni v. France, in which the victim was subjected to humiliation, threats, sexual abuse and repeated beatings over several days of questioning in police custody, the Court held in 1999 that the violence against the victim "caused ‘severe’ pain and suffering" under the terms of the UN Convention against Torture and constituted torture.59 Citing its established doctrine that the European Convention is a "living instrument which must be interpreted in the light of present-day conditions",60 the Court stated that "certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future... the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies".61

  2. In the case of Tyrer v. UK, which involved the infliction of judicial corporal punishment on a 15-year-old schoolboy, the Court found in 1978 that "the applicant was subjected to a punishment in which the element of humiliation attained the level inherent in the notion of ‘degrading punishment’" under Article 3 of the Convention.62 The Court held that "in order for a punishment to be ‘degrading’ and in breach of Article 3, the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation" in judicial punishments.63

The current approach of the European Court of Human Rights to the definition of torture and ill-treatment under Article 3 of the European Convention on Human Rights may be summarized as follows:*(21)

"The Court recalls that ill-treatment must attain a minimum level of severityif it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim".64

Tortureinvolves "deliberate inhuman treatment causing very serious and cruel suffering".65Under the UN Convention against Torture, as the Court has noted, torture involves the infliction of "severe" physical or mental pain or suffering. "The Court considers that this ‘severity’ is, like the ‘minimum severity’ required for the application of Article 3 of the European Convention, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc."66The Court has also stated that "[i]n addition to the severity of the treatment, there is a purposiveelement" as recognized in the UN Convention against Torture.67

"The Court has considered treatment to be ‘inhuman’ because, inter alia,it was premeditated,was applied for hours at a stretchand caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be ‘degrading’ because it was such as to arouse in the victims feelings of fear, anguish and inferioritycapable of humiliatingand debasingthem. On the other hand, the Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliationconnected with a given form of legitimate treatment or punishment".68

"In considering whether a punishment or treatment is ‘degrading’ within the meaning of Article 3, the Court will also have regard to whether its objectis to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3".69However, the absence of a positive intention of humiliating or debasing the victim "cannot conclusively rule out a finding of violation of Article 3" in relation to conditions of detention.70The "public natureof the punishment or treatment may be a relevant factor", but "the absence of publicity will not necessarily prevent a given treatment from falling into that category: it may well suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others".71

Severity of suffering is a significant consideration, but "there are circumstances where proof of the actual effect on the personmay not be a major factor".72

While the judgments of the European Court of Human Rights have developed the notion of torture and ill-treatment as prohibited under human rights law, the approach taken and the criteria developed in them will not necessarily be the most appropriate ones for the work of other bodies where these are dealing with different legal aspects of the general prohibition of torture, such as the prevention of torture or the application of criminal law. Certain criteria will be needed if torture is to be defined as a crime, as in the Convention against Torture, but it is not necessary to ascribe specific meanings to the various elements of the phrase "torture or cruel, inhuman or degrading treatment or punishment" or to establish overlapping categories among the elements in order to make findings of violations of the right not to be subjected to torture or ill-treatment for the purpose of establishing state responsibility or individual civil responsibility.73


Torture as a war crime

Torture is a war crime under international humanitarian law and is designated as a war crime in the Rome Statute of the International Criminal Court (see section 3.2.5 above).

The Preparatory Commission for the International Criminal Court has drawn up draft Elements of Crimes which under Article 9 of the Rome Statute are to assist the Court in the interpretation and application of the articles of that Statute defining war crimes, crimes against humanity and genocide.74The draft Elements of Crimes will be submitted for adoption to the first session of the Assembly of States Parties to the Rome Statute in September 2002.

Under the draft Elements of Crimes, the war crime of torture under the Rome Statute must include the following elements:

"1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

"2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind."

Other required elements of the crime include the protected status of the victim,75the connection of the act of torture to an international or non-international armed conflict and the perpetrator’s knowledge of these factors.76

The draft Elements of Crimes also provides definitions of a number of other acts of ill-treatment as war crimes.77


Torture as a crime against humanity

For the purpose of the definition of crimes against humanityunder the Rome Statute, Article 7(2)(e) of the Statute states:

"‘Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions."

In contrast to the definition in the Convention against Torture, this definition of torture as a crime against humanity does not include a specific purposive element: as noted in the draft Elements of Crimes for the International Criminal Court, "[i]t is understood that no specific purpose need be proved for this crime". However, under the Rome Statute torture as a crime against humanity must be committed "as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack", and the draft Elements of Crimes stipulates that the perpetrator "knew that the conduct was part of or intended the conduct to be part of" such an attack.


3.3.2 Rape as torture

Amnesty International believes that the rape of a prisoner by a prison, security or military official always constitutes torture. Other sexual abuse of prisoners by such officials always constitutes torture or ill-treatment.78Inter-prisoner sexual violence may also constitute torture or ill-treatment if the authorities have failed to ensure compliance with rules such as those requiring the separation of male and female prisoners or otherwise failed to take appropriate action (see sections 1.3, 5.7.1).

Under the draft Elements of Crimes for the International Criminal Court, the war crime of rape under the Rome Statute and the crime of rape as a crime against humanity under the same Statute include the following elements:79

"1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.80

"2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent."81

The draft Elements of Crimes also provide definitions of a number of other sex-related acts as war crimes or crimes against humanity.82

As the Special Rapporteur on torture has stated, rape is "an especially traumatic form of torture" and it "may have insidious correlative consequences". Women may be reluctant to seek reparation by reporting a rape because of the severe social repercussions which may ensue. There may be "dire consequences for the private and public life of the woman".83The Special Rapporteur on torture has stated that "[s]ince it was clear that rape or other forms of sexual assault against women in detention were a particularly ignominious violation of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture".84

In the case of Mejía v. Peru, the Inter-American Commission on Human Rights found that the rape of the victim by a member of the security forces constituted torture in violation of Article 5 of the American Convention on Human Rights.85In the case of Aydn v. Turkey, the European Court of Human Rights ruled that the rape and other physical and mental violence inflicted on a 17-year-old girl detained by the Turkish security forces amounted to torture.86

As noted in section 7.6 below, the Yugoslavia Tribunal has convicted several defendants of torture as a war crime for the rape of women who were under interrogation.87The Yugoslavia and Rwanda Tribunals have convicted defendants of rape as a war crime,88as a crime against humanity and as genocide.89

As noted by the Yugoslavia Tribunal, there is "a momentum towards addressing, through legal process, the use of rape in the course of detention and interrogation as a means of torture and, therefore, as a violation of international law";90but "[d]epending upon the circumstances, under international criminal law rape may acquire the status of a crime distinct from torture".91 Thus, both torture and rape are proscribed under international humanitarian law, and both are explicitly proscribed as crimes against humanity under the Statutes of the Yugoslavia and Rwanda Tribunals and as war crimes and crimes against humanity under the Rome Statute of the International Criminal Court (see sections 3.2.4, 3.2.5).

Amnesty International further considers that rape of women by private individuals constitutes torture for which the state may be held responsible when the state has failed to act with due diligence to prevent, punish or redress the crime. For example, laws governing rape are often inadequate and many countries do not recognize and prohibit marital rape. In some countries a woman who alleges that she has been raped may herself be prosecuted for illicit sexual relations. Frequently, the rules of evidence make it very difficult for a woman to raise her complaint appropriately and fairly in court as the rules specify that the testimony of a woman who alleges she has been raped is inherently unreliable. Restrictions on women’s movement and legal rights may further hamper access to justice. In many parts of the world, the police routinely fail to investigate abuses reported by women and the courts appear biased against women victims.

Amnesty International holds states responsible when they fail to take measures to protect and ensure enjoyment of the fundamental human rights of women. States have a duty under international law to take positive measures to prohibit and prevent rape and sexual assault and to respond adequately to these crimes, regardless of where they take place and whether the perpetrator is an agent of the state, a violent husband or a total stranger.

Rape and sexual abuse are inflicted on men as well as women,92on children as well as adults.93 Appropriate measures of protection are needed for both sexes and all ages.



3.4 The expanding understanding of the scope of torture

The general understanding of the scope of torture and ill-treatment has expanded greatly since the adoption of the Universal Declaration of Human Rights in 1948. This section gives examples of forms of abuse that have been deemed to constitute torture or ill-treatment by international human rights bodies and mechanisms, regional human rights courts and commissions, and the Yugoslavia and Rwanda Tribunals, in addition to the "classic" use of torture as a method of interrogation.

  1. Intimidation: As noted in section 3.3.1, the notion of mental suffering is a component of the definition of torture under Article 1 of the Convention against Torture and other international definitions, and intimidation is one of the possible purposes of torture under that Convention.94 The Special Rapporteur on torture has pointed out that "the fear of physical torture may itself constitute mental torture".95 He has noted that "the absence of marks on the body that would be consistent with allegation[s] of torture should not necessarily be treated by prosecutors and judges as proof that such allegations are false" and has called for "the judiciary to be made more aware of other forms of torture, such as intimidation and other threats".96 The UN General Assembly also has referred to intimidation as a means of torture.97 The UN Commission on Human Rights has stated that "intimidation and coercion, as described in article 1 of the Convention [against Torture], including serious and credible threats, as well as death threats, to the physical integrity of the victim or of a third person, can amount to cruel, inhuman or degrading treatment or to torture".98

  2. Sensory deprivation: As noted in section 3.3.1, the European Court of Human Rights in the case of Ireland v. UK held that five techniques of sensory deprivation, applied together in the interrogation of prisoners held under emergency legislation in Northern Ireland, amounted to inhuman and degrading treatment; earlier, the European Commission of Human Rights had found that they amounted to torture.99 More recently, the Committee against Torture found that the regime of sensory deprivation and "almost total prohibition of communication" under which prisoners at a maximum security detention centre in Peru were held caused "persistent and unjustified suffering which amounts to torture".100

  3. Conditions of detention: In the Greek Case (see section 3.3.1), citing "gross overcrowding" and other factors, the European Commission of Human Rights found conditions in several places of detention to amount to inhuman or degrading treatment in violation of the European Convention on Human Rights.101 The European Court of Human Rights also has found conditions of detention to amount to inhuman or degrading treatment in several recent cases.102 The Committee against Torture has found certain conditions of detention to amount to "inhuman and degrading treatment" and some conditions to amount to torture.103 The Human Rights Committee has found violations of Article 7 or Article 10 of the ICCPR in a number of cases involving conditions of detention.104 The Special Rapporteur on torture has referred to conditions of detention as cruel, inhuman or degrading105 and - in one instance - as "torturous".106 The CPT has found inhuman or degrading conditions of detention in a number of European countries.107 The Yugoslavia Tribunal has convicted defendants of "wilfully causing great suffering or serious injury to body or health" for subjecting inmates of a prison camp to inhumane conditions of detention (see section 7.6).108

Specific aspects of the treatment of prisoners, such as overcrowding, lack of access to food and water, lack of medical attention, lack of provision of basic hygiene needs for women, and prolonged solitary confinement have also been the subject of findings of ill-treatment or have been characterized as possibly constituting ill-treatment by international human rights bodies and mechanisms and regional human rights courts (see sections 5.3.1, 5.4.1, 5.4.2, 5.5.5).


  1. "Disappearances":109 As stated in Article 1 of the UN Declaration on the Protection of All Persons from Enforced Disappearance (Declaration on Enforced Disappearance),

"Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia,the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life."

In the case of Celis Laureano v. Peru,concerning a 17-year-old girl who had "disappeared" after being abducted by the security forces, the Human Rights Committee concluded that "the abduction and disappearance of the victim and prevention of contact with her family and with the outside world constitute cruel and inhuman treatment", in violation of Article 7 read together with Article 2(1) of the ICCPR.110Similarly, in the case of Velásquez Rodríguez v. Honduras, concerning a student who "disappeared" after being abducted by men connected with the armed forces, the Inter-American Court of Human Rights held that "the mere subjection of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment" in violation of Article 5 of the American Convention on Human Rights.111The Special Rapporteur on torture has stated that "prolonged incommunicado detention in a secret place may amount to torture as described in article 1 of the Convention against Torture".112

The suffering of relatives of the "disappeared" has also been held to amount to torture or ill-treatment. In the case of Quinteros v. Uruguay, the Human Rights Committee, noting "the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts", found that the mother of a woman who "disappeared" after being arrested by the security services was herself a victim of a violation of Article 7 of the ICCPR.113In the case of Kurt v. Turkey, the European Court of Human Rights held that a woman who had witnessed her son’s detention and was thereafter denied any official information on his fate was "herself the victim of the authorities’ complacency in the face of her anguish and distress" and had suffered a violation of Article 3 of the European Convention on Human Rights.114The Inter-American Court of Human Rights has made a similar ruling in the case of Blake v. Guatemala.115

  1. Forcible house destruction: In the case of Selçuk and Asker v. Turkey, where the security forces had deliberately burned the homes and most of the property of two villagers, depriving them of their livelihoods and forcing them to leave their village, the European Court of Human Rights held that the two victims "must have been caused suffering of sufficient severity for the acts of the security forces to be categorised as inhuman treatment within the meaning of Article 3 [of the European Convention on Human Rights]".116 The Committee against Torture has stated that Israeli policies on house demolition and "closures" "may, in certain instances, amount to cruel, inhuman or degrading treatment or punishment".117

  2. Non-consensual medical or scientific experiments: Article 7 of the ICCPR states that "no one shall be subjected without his free consent to medical or scientific experimentation". The inclusion of a specific reference to this form of torture or ill-treatment was a reaction to atrocities perpetrated by Germany under Nazi rule, where prisoners had been subjected to infection, surgical operations, anatomical research and other experiments, usually ending in death.118 In keeping with this notion, "biological experiments" are specified as a form of torture or inhuman treatment in the four Geneva Conventions of 1949, punishable as grave breaches of those Conventions, and unwarranted medical or scientific experiments are also prohibited.119

  3. Corporal punishment: The Human Rights Committee has stated that the prohibition of torture and ill-treatment under Article 7 of the ICCPR "must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure" and, in this regard, that "article 7 protects, in particular, children, pupils and patients in teaching and medical institutions".120 The European Court of Human Rights has found specific instances of judicial corporal punishment and corporal punishment in the home to constitute degrading punishment contrary to Article 3 of the European Convention on Human Rights.121 (For additional references, see section 6.4.)

  4. Excessive use of force in law enforcement: The European Court of Human Rights has held that "in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the [European] Convention [on Human Rights]".122 (See section 6.3.)

  5. Use of the death penalty: In the case of Soering v. UK, the European Court of Human Rights held that "The manner in which it [a death sentence] is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 [of the European Convention on Human Rights]".123 The Committee against Torture, in examining the reports of states parties to the Convention against Torture, has referred to the continuing use of the death penalty as a subject of concern124 and has stated that the uncertainty of many people under sentence of death amounts to "cruel and inhuman treatment in breach of article 16 of the Convention" and that the death penalty should therefore be abolished as soon as possible.125 (As stated in section 1.2, Amnesty International regards the death penalty as the ultimate cruel, inhuman and degrading punishment.)

  6. Racial discrimination: In the case of East African Asians v. UK, the European Commission of Human Rights held in 1973 that "discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the [European] Convention [on Human Rights]".126 In a more recent case, the European Court of Human Rights found in view of their living conditions that Greek Cypriots living in the Turkish Cypriot-administered area of northern Cyprus had been subjected to "discrimination amounting to degrading treatment".127

  7. Abuses in armed conflict: The Yugoslavia Tribunal has convicted a defendant of "inhuman treatment" and "cruel treatment" for his responsibility in using civilians as "human shields" and forcing civilians to dig trenches under dangerous conditions at the battlefront.128

  8. Gender-specific forms of torture or ill-treatment: The Special Rapporteur on torture has referred to acts of rape, sexual abuse and harassment, virginity testing, forced abortion and forced miscarriage as "gender-specific forms of torture".129 The UN Special Rapporteur on violence against women, its causes and consequences (Special Rapporteur on violence against women) has referred to cultural practices such as female genital mutilation130, honour killings, bride-burning and "any other form of cultural practice that brutalizes the female body" as practices which "involve ‘severe pain and suffering’ and may be considered ‘torture like’ in their manifestation".131 The Human Rights Committee has implied that forced abortion, forced sterilization, female genital mutilation, domestic violence against women and a lack of access to safe abortion for women who have become pregnant as a result of rape can give rise to violations of the right not to be subjected to torture or ill-treatment under Article 7 of the ICCPR.132 In addition to convictions for rape, male defendants who raped women have been convicted of torture as a war crime and a crime against humanity by the Yugoslavia Tribunal, while a defendant who committed acts of sexual violence against women was convicted by the Rwanda Tribunal of "inhumane acts" as crimes against humanity and of "causing serious bodily or mental harm to members of the group" as acts of genocide (see sections 3.3.2, 7.6).



3.5 When is torture prohibited?

Torture and ill-treatment are prohibited at all times, in all circumstances. Attempts to justify the use of torture in certain situations cannot be accepted.

The prohibition of torture and ill-treatment in Article 7 of the ICCPR is formulated in absolute terms, envisaging no exception to the rule. Furthermore, under the ICCPR freedom from torture and ill-treatment is a non-derogable right- a right entailing obligations from which no derogation is permitted. Article 4(1) of the ICCPR permits states parties to derogate from some of their obligations "[i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed", but under Article 4(2) no derogation is permitted from Article 7. Other treaties which permit derogation from some of their provisions in time of public emergency likewise make no such allowance for the prohibition of torture and ill-treatment.133

Under Article 2(2) of the Convention against Torture, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." Article 3 of the Declaration against Torture contains the same principle with regard to torture and ill-treatment, as does Article 5 of the UN Code of Conduct for Law Enforcement Officials. The Inter-American Convention to Prevent and Punish Torture (Article 5) precludes invoking exceptional circumstances as a justification for torture. Under the Rome Statute, there are also no exceptions to the prohibition of torture as a war crime or a crime against humanity. The UN Commission on Human Rights has condemned "all forms of torture and other cruel, inhuman or degrading treatment or punishment, which are and shall remain prohibited at any time and in any place whatsoever and can thus never be justified".134

In a case in which the government tried to justify the police officers’ physical assault of a prisoner by citing "the fact that he had been suspected of participating in a terrorist attack which had resulted in the death of one man and grave injuries to another", the European Court of Human Rights stated: "The requirements of the investigation and the undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism, cannot result in limits being placed on the protection to be afforded in respect of the physical integrity of individuals." The Court found that the prisoner had been subjected to inhuman and degrading treatment in violation of the European Convention on Human Rights.135

The universal character of the prohibition of torture and ill-treatment is reinforced by the prohibition of torture in the laws of war and reflected by the status of the prohibition as a rule of customary international law.

The argument is sometimes advanced that torture should be used as a method of interrogation in certain circumstances in the interest of some "greater good".136Such arguments must be rejected. Under international law, there are no circumstances in which torture can legally be inflicted.



Further reading

On the arguments sometimes advanced in favour of torture, see Rodley, 1999, The Treatment of Prisoners under International Law, pp. 78-84, "Justifiability?"; and Amnesty International, 1975, Report on Torture(2nd edition), pp. 23-27; 1984, Torture in the Eighties, pp. 6-8, "The moral argument"; 1996, Report of the Stockholm Conference on Torture, pp. 33-34, "General moral rejection" and "Effectiveness".



3.6 Relation to other human rights norms

The Human Rights Committee has stated that the aim of the prohibition of torture and ill-treatment under Article 7 of the ICCPR "is to protect both the dignity and the physical and mental integrity of the individual".137The Human Rights Committee has thus linked the prohibition of torture and ill-treatment to two important human rights norms: the principle of human dignityand the right to physical and mental integrity.

  1. The principle of human dignity is cited in the preamble of the Charter of the United Nations and the preamble of the Universal Declaration of Human Rights. Article 1 of the Universal Declaration of Human Rights states that all human beings are born "equal in dignity and rights". The preambles of the ICCPR and the International Covenant on Economic, Social and Cultural Rights state, in identical language, that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world" and that "these rights derive from the inherent dignity of the human person". A similar statement appears in the preamble of the Convention against Torture.138

The UN General Assembly has stated: "Any act of torture or other cruel, inhuman or degrading treatment or punishment is an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights."139

In the African Charter on Human and Peoples’ Rights, the prohibition of torture and ill-treatment is contained in Article 5. Article 5 begins: "Every individual shall have the right to the respect of the dignity inherent in a human being..."

Under Article 10 of the ICCPR, all persons deprived of their liberty must be treated "with humanity and with respect for the inherent dignity of the human person" (see section 5.1).

The right to physical, mental and moral integrityis explicitly recognized in the American Convention on Human Rights under Article 5, "Right to Humane Treatment". Article 5, in paragraphs 1 and 2, states:

"1. Every person has the right to have his physical, mental, and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person."140

Additional Protocol I to the Geneva Conventions of 1949 (Article 11) qualifies certain acts which seriously endanger the "physical or mental health or integrity" of persons in the hands of a foreign power in an international armed conflict as grave breaches of the Protocol, punishable as war crimes.

In finding that complainants have been subjected to torture or cruel, inhuman or degrading treatment or punishment, the regional human rights courts and commissions have stated on several occasions that the victims’ dignity141and/or physical or mental integrity was violated.142

The Inter-American Commission on Human Rights has also treated torture as a violation of the right to security of personunder Article 1 of the American Declaration on the Rights and Duties of Man.143

Other human rights also may be violated in cases of torture and ill-treatment:

  1. The right to freedom from discrimination, if torture or ill-treatment is inflicted in a discriminatory way or for a discriminatory purpose, for example in gender-based torture.144

  2. The right to personal liberty, if the victim has been arbitrarily detained.

  3. The right to a fair trial, if torture or ill-treatment is used to extract information or a confession which is used in the course of a judicial procedure.

  4. The right to life, if torture or ill-treatment leads to the victim’s death.

Torture is also frequent in cases of "disappearance". Torture, "disappearances" and extrajudicial executions often go hand in hand.



3.7 Obligations of the state: prevention, investigation, punishment, reparation

International law establishes the right of everyone not to be subjected to torture or cruel, inhuman or degrading treatment or punishment. What are the consequent obligations of states?

Article 2 of the ICCPR sets out the basic obligations of states concerning the human rights recognized therein, including the right not to be subjected to torture or ill-treatment. Under Article 2, each state party undertakes "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant". There are similar provisions in the African Charter on Human and Peoples’ Rights (Article 1), the American Convention on Human Rights (Article 1), the European Convention on Human Rights (Article 1) and the Arab Charter on Human Rights (Article 2).

In its judgment in the case of Velásquez Rodríguez v. Honduras, the Inter-American Court of Human Rights has interpreted the responsibility of states parties under Article 1 of the American Convention on Human Rights to "respect" and "ensure" the rights set out in that Convention. According to the Court, the obligation to respecthuman rights implies that officials must not violate them, while the obligation to ensurehuman rights implies duties of prevention, investigation, punishment and reparation. "Whenever a State organ, official or public entity violates one of those rights, this constitutes a failure of the duty to respect the rights and freedoms set forth in the Convention."145And as a consequence of the obligation to ensure the free and full exercise of human rights, "the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation".146

Article 2(2) of the ICCPR obliges states parties "to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant". Article 2(3) obliges states parties to ensure that people whose rights are violated have an effective remedy.

In its General Comment 20 on Article 7 of the ICCPR, the Human Rights Committee has stated that "it is not sufficient for the implementation of article 7 to prohibit such treatment or punishment or to make it a crime" (para. 8). The General Comment refers to the need for prevention, investigation, punishment and reparation (see Appendix 11 of this manual).

The Convention against Torture requires states parties to take "effective legislative, administrative, judicial or other measures" to prevent acts of torture or ill-treatment in any territory under their jurisdiction (Articles 2, 16). The Convention specifies preventive measures regarding training public officials (Articles 10, 16) and keeping arrangements for interrogation and custody under systematic review (Articles 11, 16). States parties must conduct prompt and impartial investigations into all complaints and credible reports of torture or ill-treatment (Articles 12, 13, 16). These obligations apply both to torture and to other acts of cruel, inhuman or degrading treatment or punishment. States parties must also ensure that all acts of torture are offences under their criminal law (Article 4) and that those alleged to have committed offences of torture are brought before the courts, where necessary through the exercise of extradition or universal jurisdiction (Articles 5-9). Victims of torture must have an enforceable right to compensation (Article 14). Statements made as a result of torture must not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made (Article 15). States parties must not forcibly return a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture (Article 3).

The Inter-American Convention to Prevent and Punish Torture contains obligations regarding torture similar to those in Articles 4-10 and 12-15 of the Convention against Torture as well as a general obligation to prevent other cruel, inhuman or degrading treatment or punishment (Article 7).

In so far as these bodies are applying norms that are grounded in general international law, it can be concluded that the above obligations are not limited to states parties to the Convention against Torture or the Inter-American Convention to Prevent and Punish Torture. The Human Rights Committee and the regional human rights courts and commissions have issued opinions and judgments setting out specific obligations under the prohibition of torture and ill-treatment in the respective regional treaties, particularly the obligation to investigate complaints and reports of torture or ill-treatment (see section 7.3). Similar findings have been made by the Human Rights Committee in cases brought under the first Optional Protocol to the ICCPR. The European Court of Human Rights has also held that the prohibition of torture and ill-treatment under the European Convention on Human Rights entails an obligation not to extradite or expel a person to a country where they would be at risk of torture or ill-treatment (see section 8.3).

These obligations of states are discussed in greater detail in the following chapters.



3.8 Protection against abuses by private individuals

The prohibition of torture and other fundamental human rights provisions in the Universal Declaration of Human Rights and the ICCPR were conceived as bulwarks to protect human beings against egregious violent abuses of state power of the sort seen under the Nazi regime in Germany.147But in human rights discussions in recent years, especially in the fields of women’s and children’s rights, much attention has been focused on the need to protect people also against abuses by private individuals. To what extent do such abuses come under the prohibition of torture and ill-treatment? What are the attendant obligations of states?148

The Human Rights Committee has linked the right not to be subjected to torture or ill-treatment under Article 7 of the ICCPR to an obligation to provide protection, through "legislative and other measures", against torture or ill-treatment inflicted by private individuals:

"The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity."149

In the case of A v. UK, the European Court of Human Rights considered a complaint concerning a nine-year-old boy whose stepfather had repeatedly beaten him with a garden cane as a punishment. The stepfather had been brought to trial but was acquitted under the defence of "moderate and reasonable chastisement" as provided under English law. The Court, referring to the beatings, found that "treatment of this kind reaches the level of severity prohibited by Article 3" of the European Convention on Human Rights.150 It considered that "the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals".151In this case, however, "the law did not provide adequate protection to the applicant against treatment or punishment contrary to Article 3... In the circumstances of the present case, the failure to provide adequate protection constitutes a violation of Article 3 of the Convention."152

In subsequent decisions, the European Court of Human Rights has distinguished two types of measures to be taken to protect people against torture or ill-treatment by private individuals: protection through the "framework of the law", which the Court had found lacking in the case of A v. UK,153and practical measures of protection to be taken in the face of a risk of ill-treatment. As stated by the Court, "State responsibility may... be engaged where the framework of law fails to provide adequate protection... or where the authorities fail to take reasonable steps to avoid a risk of ill-treatment which they knew or ought to have known".154

In the case of Velásquez Rodríguez v. Hondurascited above (section 3.7), which involved among other things the right not to be subjected to torture or ill-treatment, the Inter-American Court of Human Rights held that the obligation of states parties to the American Convention on Human Rights to ensure the exercise of rights recognized by that Convention "implies the duty of States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights" and that "[a]n illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention".155

The approaches of the Human Rights Committee and the European and Inter-American Courts of Human Rights have several implications:

  1. An act committed by a private individual can constitute torture or ill-treatment within the meaning of international and regional human rights standards.

  2. The criteria by which particular acts by private individuals are deemed to constitute torture or ill-treatment may include their having attained a particular "level of severity" as in the usage of the European Court of Human Rights.

  3. Inasmuch as the prohibition of torture and ill-treatment is conceived as a human right ("no one shall be subjected to..."),156 and inasmuch as human rights are seen as "inherent" and "inalienable",157 it can be said that everyone has a right not to be subjected to torture or ill-treatment whether at the hands of a public official or of a private individual.

  4. The obligation of states parties to international human rights treaties to respect and ensure (under the European Convention on Human Rights, to "secure") the prohibition of torture and ill-treatment entails not only an obligation to prevent the commission of torture or ill-treatment by public officials, but an obligation to take measures to protect people under their jurisdiction against acts of torture or ill-treatment committed by private individuals. These measures include ensuring that the framework of the law provides adequate protection, and taking reasonable steps to avoid a risk of torture or ill-treatment of which the authorities know or should know.

  5. The right of any person under international human rights law not to be subjected to torture or ill-treatment can be violated if he or she becomes the victim of an act of torture or ill-treatment committed by a private individual and the state has failed to fulfil its obligations as described above.*

  6. As a result of such a violation, the state may be required to provide reparation to the victim.

Amnesty International considers that acts of violence by private individuals can constitute torture or

ill-treatment when they are of the nature and severity envisaged by the concept of torture or cruel

, inhuman or degrading treatment or punishment in international standards and when the state has failed

to fulfil its obligation to provide effective protection.

This reasoning opens the way to addressing various forms of violence in the family and the community as

forms of torture or ill-treatment. How this can be done is discussed in section 6.6.




[photo caption]

Captured fighter John Walker Lindh in US custody, bound naked in a metal shipping container at Camp Rhino, near Kandahar, Afghanistan, December 2001. John Walker Lindh later alleged that he had been held in this way without light or heating for two or three days and that he was threatened with death and torture during transport to the military camp (see Amnesty International, 2002, "Memorandum on the rights of people in US custody in Afghanistan and Guantanamo Bay", p. 4). Safeguards are needed at all stages of arrest and custody to ensure that prisoners are treated humanely (see Chapter 4). © Consolidated News Photos/Rex Features

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Chapter 4: Safeguards in custody



4.1 Introduction

Most of the torture and ill-treatment recorded by human rights organizations is inflicted on people who have been taken into custody by agents of the state. The safeguards set out in this chapter are meant to protect the potential victims, reducing to a minimum the opportunities for torture.

Law enforcement officials are endowed by the state with coercive powers. A person taken into custody is vulnerable to the risk of abuse of these powers through violent and unlawful behaviour. Isolation from the outside increases the risk.

The safeguards described below are meant to reduce the isolation of prisoners, maximizing the opportunities to monitor the actions of state agents and intervene if torture is threatened. The safeguards also aim to preserve the evidence of torture so that a proper investigation can be made and sanctions imposed on the perpetrators. If state agents know that they are watched and will be punished if caught, the incidence of torture should decline.

Many of the safeguards consist of establishing proper procedures concerning arrest and detention and ensuring that these procedures are followed. The task of ensuring that they are followed should be assigned to the law enforcement agencies and to other state institutions, including the judiciary. Clearly, there is sometimes a wilful failure to follow proper procedures on the part of the agencies in question, countenanced by higher authorities. Other individuals and organs of civil society therefore need to be vigilant, pressing for the safeguards to be observed.

If the authorities are prepared to commit such a serious crime as torture, there is a risk that they will resort to further abuses to keep their deeds secret: arbitrary arrests, secret detention, "disappearances" or extrajudicial executions. These practices increase the risk to prisoners by depriving them of the protection of the law and making it difficult or impossible for relatives and others to intervene on their behalf. Many of the safeguards against torture are also safeguards against these abuses.1

The obligation of states under international law to respect the prohibition of torture and ill-treatment entails an obligation to prevent their agents from inflicting torture or ill-treatment (see section 3.7 of this manual). The UN Human Rights Committee has set out a series of custodial safeguards and other measures to be taken to this end.2Detailed safeguards have been set out in UN human rights instruments, notably the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment(Body of Principles on Detention), the Standard Minimum Rules for the Treatment of Prisoners(Standard Minimum Rules) and the Declaration on the Protection of All Persons from Enforced Disappearance(Declaration on Enforced Disappearance).3Other important findings and recommendations have been made by the UN Committee against Torture, by the UN Special Rapporteur on torture*(22)and in judgments of the Inter-American Court of Human Rights and the European Court of Human Rights.

The European Committee for the Prevention of Torture (CPT) has developed three "fundamental safeguards" against ill-treatment which it regularly includes in its recommendations to states. They have been formulated as follows:

"The CPT wishes to recall the particular importance which it attaches to three rights for persons detained by the police:

the right of those concerned to have the fact of their detention notified to a close relative or third party of their choice,

the right of access to a lawyer,

the right to a medical examination by a doctor of their choice (in addition to any medical examination carried out by a doctor called by the police authorities).

"The CPT considers that these three rights are fundamental safeguards against the ill-treatment of persons in detention, which should apply from the very outset of custody (i.e. from the moment when those concerned are obliged to remain with the police).

"Moreover, it considers it equally fundamental that detained persons be informed without delay of all their rights, including those mentioned above."4

Because torture and ill-treatment can begin very quickly after arrest, or even while an arrest is being effected, it is important that the key safeguards take effect as soon as possible. The phrase "without delay" is used in certain international standards to express this notion. What it means is that if the act in question cannot be done immediately, there must be no unreasonable cause for delay. If there is a delay, it is important that other safeguards are in operation to protect detainees against any risks occasioned by the delay. It is also very important that - like the prohibition of torture itself - the essential safeguards for the prevention of torture, including the availability of habeas corpus or other key judicial remedies for protecting prisoners, are never suspended, even in time of emergency.

Articles 11 and 16 of the Convention against Torture provide that each state party to the Convention "shall keep under systematic review... arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction" with a view to preventing any cases of torture or ill-treatment. Article 6 of the UN Declaration against Torture, a non-binding instrument which applies to all states, contains a similar provision. Citing these provisions, individuals and organizations can press their governments to disclose what arrangements are in place and what is being done to keep them under systematic review.5

One important aspect of a systematic review is to monitor incidents of torture, deaths in custody and other violent incidents and to make statistics and other information on them publicly available.6Surprise checks and "early warning systems" to alert the authorities to emerging patterns of impermissible behaviour should be features of a system of review.

Article 10(1) of the International Covenant on Civil and Political Rights (ICCPR) states: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." This provision must be observed as soon as a person is arrested or otherwise deprived of their liberty. Similarly, the measures concerning conditions of detention set out in Chapter 5 of this manual, which are designed to prevent conditions or practices amounting to torture or ill-treatment, apply to the custodial situations discussed in this chapter. Particularly important are measures relating to the separation of categories of prisoners(see section 5.3.2), accommodation and basic needs(sections 5.3, 5.4), and for proper recordsto be kept and made available to prisoners and their lawyers (see sections 4.2.5, 4.9, 4.11, 5.6). Also, international standards on the use of forceand instruments of restraint(sections 5.5, 6.3) must be observed both during arrest and in custody.







Further reading

The UN manual Human Rights and Pre-trial Detention(1994) provides a compendium of international standards relating to arrest and detention. The UN manual Human Rights and Law Enforcement(1997) and the police training manual published by the International Committee of the Red Cross (ICRC), To Serve and to Protect: Human Rights and Humanitarian Law for Police and Security Forces(de Rover, 1998), describe the international standards on arrest and detention from a law enforcement official’s point of view. International safeguards relating to arrest and detention are discussed in Rodley, 1999, Chapter 11. Standards developed by the CPT are analysed in Morgan and Evans, 2001, Chapter 4 and Evans and Morgan, 1998, Chapter 7. Additional detailed references to safeguards can be found in Amnesty International’s Fair Trials Manual(1998).



4.2 Safeguards at arrest


4.2.1 Grounds and procedures for arrest

Arbitrary arrest*(23)- deprivation of liberty on improper grounds or with improper procedures - opens the way to torture, "disappearances" and other abuses. An important means of preventing these abuses is to ensure that proper groundsand proceduresfor arrest are adhered to.

The Universal Declaration of Human Rights provides for the right to liberty and prohibits arbitrary arrest and detention (Articles 3, 9). There are similar provisions in other major international and regional human rights instruments and in many national constitutions.

Article 9(1) of the ICCPR states:

"Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."7

The Human Rights Committee has stated that Article 9(1) of the ICCPR "is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc."8

Principle 2 of the Body of Principles on Detention states: "Arrest, detention or imprisonment shall only be carried out strictly in accordance with the provisions of the law and by competent officials or persons authorized for that purpose." Article 12 of the Declaration on Enforced Disappearance provides that states shall establish rules under their national law "indicating those officials authorized to order deprivation of liberty" and "establishing the conditions under which such orders may be given". It also provides that states shall "ensure strict supervision, including a clear chain of command, of all law enforcement officials responsible for apprehensions, arrests, detentions, custody, transfers and imprisonment".

Under Article 37(b) of the Convention on the Rights of the Child, "The arrest, detention or imprisonment of a child... shall be used only as a matter of last resort and for the shortest appropriate period of time." The detention of asylum-seekers and refugees also is to be avoided (see sections 5.2, 5.7 of this manual).

To prevent arbitrary arrests and "disappearances", Amnesty International regularly recommends to governments that officials carrying out an arrest should identify themselves to the person arrested and, on demand, to others witnessing the event. Police officers and other officials who make arrests should wear name tags or numbers so that they can be clearly identified. Other identifying markings such as the insignia of soldiers’ battalions or detachments are also to be recommended. Police and military vehicles should be clearly identified as such. They should carry number plates at all times.9

Proper arrest procedures need to be backed up by proper record-keeping. Records should include the reasons for the arrest, the time of the arrest and the identity of the law enforcement officials concerned.


4.2.2 Informing prisoners of the reasons for their arrest, and of their rights

Article 9(2) of the ICCPR states:

"Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him."10

Principle 10 of the Body of Principles on Detention contains the same provision. Principle 13 requires that information also be given on prisoners’ rights:

"Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively with information on and an explanation of his rights and how to avail himself of such rights."11

Principle 14 of the Body of Principles on Detention states that a person who does not adequately understand the language used by the authorities is entitled to receive the information referred to in Principles 10 and 13 in a language which he or she understands "and to have the assistance, free of charge, if necessary, of an interpreter in connection with legal proceedings subsequent to his arrest".12

As implied in Principle 13, it may not be possible to give a comprehensive explanationof prisoners’ rights at the moment of arrest (see section 5.9.1), but arrested people do need to be informedwithout delay in simple, non-technical language of the rights which are of immediate operational importance, including the key safeguards protecting them against torture or ill-treatment. These include the right to notify relatives and others of their arrest, the right to legal counsel, provisions for bringing prisoners before a judicial authority without delay and the right to medical assistance. To forestall attempts to coerce statements under torture or ill-treatment, it is also important to inform them of their rights under interrogation (see section 4.9), as such attempts can begin very shortly after arrest.

Information on prisoners’ rights should also be made available to the public.13


4.2.3 Notifying relatives and others

Principle 16(1) of the Body of Principles on Detention states:

"Promptly after arrest and after each transfer from one place of detention or imprisonment to another, a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody."14

Other standards, monitoring bodies and mechanisms have stated that relatives should be notified immediately or very quickly. The Human Rights Committee has stated that people arrested or detained on a criminal charge must be permitted to contact their families "from the moment of apprehension"15and has called for "the mandatory notification of relatives of detainees without delay".16Similarly, Rule 92 of the Standard Minimum Rules states that "[a]n untried prisoner shall be allowed to inform immediately his family of his detention". The CPT has stated that the right of people detained by the police "to have the fact of their detention notified to a close relative or third party of their choice" is one of the "fundamental safeguards" against ill-treatment which "should apply from the very outset of custody (i.e. from the moment when those concerned are obliged to remain with the police)" (see section 4.1).17The Special Rapporteur on torture has in some instances called for immediate notification of relatives18and has stated: "In all circumstances, a relative of the detainee should be informed of the arrest and place of detention within 18 hours."19

The right of prisoners to notify relatives of their detention is complemented by the right of people outside to obtain information about them. Article 10 of the Declaration on Enforced Disappearance provides that accurate information on the detention of all persons deprived of liberty "and their place or places of detention, including transfers, shall be made promptly available to their family members, their counsel or to any other persons having a legitimate interest in the information unless a wish to the contrary has been manifested by the persons concerned". This safeguard is particularly important for the prevention of "disappearances" and other unacknowledged detentions, during which those detained are often tortured or ill-treated.

Additional safeguards apply to the notification of relatives of detained children and to the right of foreign prisoners to communicate with their country’s consular representatives (see section 4.10).


4.2.4 Safeguards during transport to a place of detention

Prisoners are often ill-treated or tortured while in transit to an initial place of detention or during subsequent transfers. Often the victims are beaten or otherwise ill-treated in a police vehicle; sometimes they are taken to a lonely place and tortured there. While such practices are forbidden under the general prohibition of torture and ill-treatment, there is no international standard which addresses the problem of torture in transit specifically.

To prevent torture in transit, the authorities should:

Ensure that prisoners are taken directly to the initial place of detention without delay.

Require the authorities responsible for the place of detention to certify that the prisoners arrived in good condition.

Institute proper means of surveillance and supervision of the actions of officials during transport.

Ensure that prisoners are not transported under dangerous or life-threatening conditions, for instance in overcrowded or dangerous vehicles. Rule 45(2) of the Standard Minimum Rules states: "The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited."

Ensure that procedures for the safe transport of prisoners are backed up by proper record-keeping, including records of the time of arrest and the subsequent time of arrival at a place of detention.

Similar precautions should be taken to avoid ill-treatment during transfers from one place of detention to another, or between a place of detention and the court.

A further safeguard is for transfers from one detaining agency to another to be the subject of a judicial order. In Pakistan, where the Special Rapporteur on torture found that the use of torture was facilitated by detainees being transferred from agency to agency and from place to place, some of which were not officially recognized places of detention, the Special Rapporteur recommended: "It should not be possible for persons to be handed over from one police or security agency to another police or security agency without a judicial order. Where this happens, the officials responsible for the transfers should be held accountable under the criminal law."20


4.2.5 Record-keeping

Accurate record-keeping is an essential element of the conduct of law enforcement functions, including arrest and detention. The existence of official records that are open to review helps to ensure that proper procedures are followed and that law enforcement officials engaged in their functions can be held accountable for their actions. (See also section 5.6.)

Principle 12 of the Body of Principles on Detention states:

"1. There shall be duly recorded:

(a) The reasons for the arrest;

(b) The time of the arrest and the taking of the arrested person to a place of custody as well as that of his first appearance before a judicial or other authority;

(c) The identity of the law enforcement officials concerned;

(d) Precise information concerning the place of custody.

"2. Such records shall be communicated to the detained person, or his counsel, if any, in the form prescribed by law."

The CPT has proposed that details relating to arrest be included in a single comprehensive custody record which should be kept for each prisoner:

"The CPT considers that the fundamental safeguards granted to persons in police custody would be reinforced (and the work of police officers quite possibly facilitated) if a single and comprehensive custody record were to exist for each person detained, on which would be recorded all aspects of his custody and action taken regarding them (when deprived of liberty and reasons for that measure; when told of rights; signs of injury, mental illness, etc; when next of kin/consulate and lawyer contacted and when visited by them; when offered food; when interrogated; when transferred or released, etc.). For various matters (for example, items in the person’s possession, the fact of being told of one’s rights and of invoking or waiving them), the signature of the detainee should be obtained and, if necessary, the absence of a signature explained. Further, the detainee’s lawyer should have access to such a custody record."21

The requirement of keeping and preserving accurate and complete records of arrest and custody and making the information available when required should be incorporated in national laws and regulations. Any breach of these requirements should be punished by appropriate sanctions.



4.3 No secret detention

In some countries the practice of torture is accompanied by a practice of holding prisoners secretly in private homes or apartments, military camps or other locations which are not officially recognized as places of detention, where they can be tortured at will. Secret detention also facilitates "disappearances" by enabling the authorities to conceal the whereabouts of the victims. Secret detention should be absolutely prohibited.

Article 10 of the Declaration on Enforced Disappearance states: "Any person deprived of liberty shall be held in an officially recognized place of detention". Similarly, the Human Rights Committee has stated that "provisions should be made for detainees to be held in places officially recognized as places of detention".22

The Special Rapporteur on torture has stated:

"[T]he maintenance of secret places of detention should be abolished under law. It should be a punishable offence for any official to hold a person in a secret and/or unofficial place of detention. Any evidence obtained from a detainee in an unofficial place of detention and not confirmed by the detainee during interrogation at official locations should not be admitted as evidence in court."23

Up-to-date lists of all officially recognized places of detention should be published in a form that is readily accessible to lawyers and members of the public.



4.4 Bringing prisoners before a judicial authority

The requirement to bring detainees before a judicial or other competent authority after arrest is a key safeguard for the human rights of prisoners. It is a means of ensuring that detentions are lawful and necessary. It is a safeguard against torture: a judge can see if there are any noticeable signs of ill-treatment and can hear any allegations by the prisoner. It is a means of providing supervision of detention through judicial control, removing the absolute power over a prisoner which officials might otherwise wield.

Article 9(3) of the ICCPR states:

"Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release."

Under Article 10 of the Declaration on Enforced Disappearance, the requirement to bring prisoners before a judicial authority covers not just those detained on criminal charges but anyone deprived of their liberty. Article 10(1) states: "Any person deprived of liberty shall... in conformity with national law, be brought before a judicial authority promptly after detention." Similarly, Principle 11 of the Body of Principles on Detention states:

"1. A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law...

"3. A judicial or other authority shall be empowered to review as appropriate the continuance of detention."

Principle 37 of the Body of Principles on Detention states:

"A person detained on a criminal charge shall be brought before a judicial or other authority provided by law promptly after his arrest. Such authority shall decide without delay upon the lawfulness and necessity of detention. No person may be kept under detention pending investigation or trial except upon the written order of such an authority. A detained person shall, when brought before such an authority, have the right to make a statement on the treatment received by him while in custody."

Amnesty International holds that detainees should be brought before a judicial or other competent authority without delay,24and preferably before a judge. Any "other authority" exercising this function should be one who exercises judicial power established by law and should be equivalent to a judge in independence, powers and professional competence.

Principle 37 of the Body of Principles on Detention specifies two roles for a judicial or other authority when a person is brought before them after arrest:

to decide on the lawfulness and necessity of the detention, and

to hear any statement from the detainee on his or her treatment while in custody.

Although Principle 37 refers only to people detained on criminal charges, these two judicial roles should apply, as a safeguard against torture, to anyone deprived of their liberty. The prisoner should be brought before the judge in person; the judge should not decide on the lawfulness and necessity of the detention without having seen and heard the prisoner. The prisoner should be able to address the judge in an atmosphere free from intimidation. If there is any sign of torture or ill-treatment, the judge should inquire into it without delay, even if the prisoner has not volunteered any statement.25If the inquiry, or the prisoner’s own statement, gives reason to believe that torture or ill-treatment was committed, the judge should initiate an investigation and take effective steps to protect the prisoner against any further ill-treatment, and, if the detention is unlawful or unnecessary, order the prisoner’s immediate release under safe conditions.26



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Sri Lanka: Torture victim helped by court appearances

For several years in Vavuniya district, Sri Lanka, there had been frequent reports of torture, particularly by officers of the Counter Subversive Unit (CSU) of the police. But when detainees brought before a judge were asked whether they had any complaints, they were almost always afraid to say they had been tortured, especially because the security legislation under which they were held did not give the judge the power to release detainees, so they were inevitably returned to the custody of CSU officers.

In early 2000 a newly-appointed district judge began asking detainees who were brought to court to take off their shirt and lift up their trousers or sarong above their knees. If there were marks on their bodies, the judge required the detainees to explain them; encouraged by their lawyers, they were more willing to respond to the judge’s specific questions than to provide information on their own initiative.

Following the introduction of this practice there was a marked decline in the frequency of reports of torture by CSU officers in Vavuniya district and in the severity of the abuses they were alleged to have committed. The new practice also helped victims of torture to obtain compensation and gain release from custody through fundamental rights petitions to the Supreme Court, which accepted as corroborating evidence the judge’s detailed notes of the injuries he had observed. During 2000, 32 suspects detained in Vavuniya district and tortured were released on the order of the Supreme Court after the Court found that reports by judicial medical doctors who had examined the victim were consistent with notes taken earlier by the district judge.

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4.5 Access to the outside world

Access of prisoners to the outside world and access from the outside to them is a key safeguard against torture and ill-treatment. Alongside the other measures described in this chapter, it helps to break down the isolation in which the abuses are committed. By visiting prisoners, relatives and others concerned about their well-being can see where they are held and learn about their condition so as to be able to intervene on their behalf if there is reason to believe they are being ill-treated. It is also a safeguard against "disappearances" and extrajudicial executions: once a prisoner is seen by concerned people from outside, there is less chance that he or she will "disappear" or be killed.

The Human Rights Committee has stated: "The protection of the detainee... requires that prompt and regular access be given to doctors and lawyers and, under appropriate supervision when the investigation so requires, to family members."27 The Committee against Torture has stated that "[c]ounsel, family members and the doctor of their own choice must be guaranteed immediate access to persons deprived of liberty"28and has recommended "the free access of a person deprived of his liberty to a lawyer and to a doctor of his choice and to his relatives at all stages of detention".29

Because of its urgency as a safeguard against torture, Amnesty International holds that relatives, lawyers and doctors should have access to prisoners without delayand regularly thereafter. Specific safeguards on access to lawyers and doctors are described in the next two sections. Access by others such as representatives of human rights organizations and (in armed conflicts and other applicable situations) the ICRC is also of great importance.

Sometimes prisoners are held for days, weeks or months without contact with the outside world. This incommunicado detentionfacilitates torture.

The UN Commission on Human Rights has stated that "prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment" or even torture.30

The Human Rights Committee has stated: "Provisions should... be made against incommunicado detention."31The Committee against Torture has called for the elimination of incommunicado detention32 and has criticized its prolonged use in particular countries.33

The Inter-American Commission on Human Rights has held that the use of a confession obtained while the accused was detained incommunicado and without access to counsel violated the accused’s right against self-incrimination under Article 8 of the American Convention on Human Rights and the provision in that article that a confession of guilt shall be valid only if made without coercion of any kind.34

The Special Rapporteur on torture has stated:

"Torture is most frequently practised during incommunicado detention. Incommunicado detention should be made illegal, and persons held incommunicado should be released without delay."35



4.6 Access to legal counsel

Principle 17 of the Body of Principles on Detention states:

"A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it."

The Human Rights Committee has stated that detained persons should have "immediate access to counsel and contact with their families".36The Committee against Torture has recommended "unrestricted access to counsel immediately after arrest".37

The CPT has stated that the right of access to a lawyer is a "fundamental safeguard" against ill-treatment and that this right should apply from the outset of custody (see section 4.1).38

The Special Rapporteur on torture has stated:

"Legal provisions should ensure that detainees are given access to legal counsel within 24 hours of detention. Security personnel who do not honour such provisions should be punished. In exceptional circumstances, under which it is contended that prompt contact with a detainee’s lawyer might raise genuine security concerns and where restriction of such contact is judicially approved, it should at least be possible to allow a meeting with an independent lawyer, such as one recommended by a bar association."39

The UN Commission on Human Rights has stressed the recommendation of the Special Rapporteur on torture "[t]hat the right to have access to a lawyer is one of the basic rights of a person who is deprived of his liberty and that restrictions on this right should therefore be exceptional and always subject to judicial control".40

The right to legal counsel is one of the key norms for a fair trial under international human rights standards. Under Article 14(3) of the ICCPR, it includes the right of accused people to defend themselves through counsel of their own choosing, the right of an accused person "[t]o have adequate time and facilities... to communicate with counsel of his own choosing", the right to confidential communication with counsel41and the right to free legal assistance for those who lack the means to pay for it. There are similar provisions in other international and regional instruments.



4.7 Medical examinations and care

The Standard Minimum Rules (Rule 24) and the Body of Principles on Detention (Principle 24) call for prisoners to be given or offered a medical examination as promptly as possible after admission to a place of detention (see section 5.4.2 of this manual). International human rights bodies and mechanisms have gone further by developing the notion of a medical examination as a safeguard against torture and stating that the examination should be independent. Thus, the Human Rights Committee has emphasized the need "to have suspects examined by an independent doctor as soon as they are arrested, after each period of questioning and before they are brought before the examining magistrate or released".42Furthermore, prisoners should have a right to be examined by a doctor of their own choice.

The Special Rapporteur on torture has stated: "At the time of arrest, a person should undergo a medical inspection, and medical inspections should be repeated regularly and should be compulsory upon transfer to another place of detention."43He has proposed detailed safeguards to ensure that medical personnel making such examinations can operate independently and that the findings of doctors chosen by the prisoners themselves are given due weight as evidence.44

The CPT has identified the right to a medical examination by a doctor of one’s choice as a "fundamental safeguard" against ill-treatment which should apply from the outset of police custody (see section 4.1). The CPT’s recommendations on access to a doctor have been formulated as follows:

"The CPT recommends that specific legal provisions be adopted on the subject of the right of persons in police custody to have access to a doctor. Those provisions should stipulate inter aliathat:

a person taken into police custody has the right to be examined, if he so wishes, by a doctor of his own choice, in addition to any medical examination carried out by a doctor called by the police authorities;45

all medical examinations of persons in custody are to be conducted out of the hearing and - unless the doctor concerned expressly requests otherwise in a given case - out of the sight of police officers;

the results of every examination, as well as any relevant statements by the person in custody and the doctor’s conclusions, are to be recorded in writing by the doctor and made available to the person in custody and his lawyer;

the confidentiality of medical data is to be strictly observed."46

Steps should be taken to ensure the ability of doctors employed by the state to act independently in recording and reporting signs of ill-treatment in accordance with medical ethics.

When there is reason to believe that a prisoner has been ill-treated, the prisoner should be given an immediate medical examination by a doctor who is able to make an accurate report without interference from the authorities.47

Medical personnel who see signs of ill-treatment should take steps to protect the prisoner against further ill-treatment. Such steps could include approaching the person responsible for medical care in the place of detention.

International standards also call for medical assistance to be given to prisoners when necessary (see section 5.4.2). In particular, Article 6 of the UN Code of Conduct for Law Enforcement Officials states: "Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required." A person injured in the course of arrest should be given medical assistance immediately. In a case in which a person injured during arrest was seen by a medical doctor only eight days later, the European Commission of Human Rights held that the failure by the authorities to provide adequate medical treatment constituted inhuman treatment in violation of Article 3 of the European Convention on Human Rights.48

Where it becomes evident that a prisoner has an underlying medical problem or displays signs of serious mental illness, appropriate medical care should be organized in a manner reflecting the urgency of the problem, including where necessary transfer to a specialist clinic.

Doctors, whether working permanently within the prison system or carrying out regular or occasional sessions with prisoners, must be guaranteed clinical freedom and, in particular, not be subjected to pressure to modify their findings to conform to the wishes of the police or prison officials. Professional associations should make efforts to ensure that the interests of prison medical staff are adequately represented.49



4.8 Habeas corpus and other judicial remedies for protecting prisoners

A key safeguard against torture is for prisoners or others acting on their behalf to be able to invoke the power of the courts to challenge the legality of the detention and otherwise ensure the prisoner’s safety. It can also serve as a safeguard against "disappearances" by invoking the courts to locate a person who has "disappeared".

This safeguard is derived from the ancient legal notion of habeas corpus. Habeas corpus (literally, "that you have the body") is a remedy in national law under which a person can petition a court to determine whether a detention is legal and order the person’s release if it proves not to be. Although its purpose is to test the legality of a detention, habeas corpus can also serve to ensure the prisoner’s safety: as stated by the Inter-American Commission on Human Rights, "the immediate aim of this remedy is to bring the detainee before a judge, thus enabling the latter to verify whether the detainee is still alive and whether or not he or she has been subjected to torture or physical or psychological abuse".50

Another relevant legal device is amparo(protection), provided under the laws of many Latin American countries. Its scope is broader than that of habeas corpus, as it affords protection not only of the right to liberty but also of other constitutional rights such as the prohibition of torture and ill-treatment.

The right of habeas corpus is set out in Article 9(4) of the ICCPR: "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."51The European Convention on Human Rights (Article 5) contains a similar provision, as does the Body of Principles on Detention (Principle 32), while the American Convention on Human Rights provides for both habeas corpus (Article 7) and amparo(Article 25(1)).

The Inter-American Court of Human Rights has ruled that because they are judicial guarantees essential for the protection of rights (including the right not to be tortured or ill-treated) which themselves cannot be suspended under the provisions for derogation in the American Convention on Human Rights, the rights of habeas corpus and amparounder the Convention also can never be suspended.52Similarly, the Human Rights Committee has stated that the right of habeas corpus is a non-derogable guarantee under the ICCPR.53The Declaration on Enforced Disappearance also sets out the right to a judicial remedy to protect prisoners and states that this right must never be suspended.54

The role of the judge in responding to petitions intended to protect prisoners from ill-treatment should be as wide as possible. The Special Rapporteur on torture has stated: "Judges should make full use of the possibilities provided for in the law regarding the proceedings of habeas corpus (procedimiento de amparo). They should, in particular, seek access to the detainee and verify his/her physical condition."55

Relatives and others acting on behalf of prisoners need to be genuinely able to use judicial remedies for protecting prisoners, especially when prisoners themselves are unable to do so.56They must have easy access to the courts, where they must be able to file petitions quickly and without intimidation or undue or prohibitive expense. The process of applying for the remedy should be as simple as possible. Relatives and others should be able to apply directly to the courts without having to use the services of a lawyer.57

Because of the serious risk to prisoners’ lives and well-being, the courts should act immediately on receiving a petition.58Moreover, if the courts themselves learn that a person may be undergoing torture or ill-treatment, they must be able to act even if they have not received a petition on the prisoner’s behalf.



4.9 Safeguards during interrogation

One of the common purposes of torture is to force people to "confess" or to give information, and interrogation remains one of the commonest settings in which torture is inflicted. A series of standards and safeguards have been developed to combat this use of torture.

Principle 21 of the Body of Principles on Detention states:

"1. It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person.

"2. No detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or his judgement."

As stated in section 4.2.2, prisoners should be informed at the time of their arrest of the reasons for their arrest, and of their rights. Before being interrogated, prisoners should also be informed of their rights during interrogation, including the rights set out in Principle 21 of the Body of Principles on Detention, quoted above, as well as the right against self-incrimination59and the right to remain silent.60

Other safeguards during interrogation include:

Separation of the authorities responsible for detention from those in charge of interrogation.The Special Rapporteur on torture has stated: "Those legally arrested should not be held in facilities under the control of their interrogators or investigators for more than the time required by law to obtain a judicial warrant of pre-trial detention which, in any case, should not exceed a period of 48 hours. They should accordingly be transferred to a pre-trial facility under a different authority at once, after which no further unsupervised contact with the interrogators or investigators should be permitted".61The Committee against Torture has stated that it "expects that the detention and interrogation functions will be separated".62

Presence of a lawyerduring interrogation. The Committee against Torture has recommended "that counsel be permitted to be present during interrogation, especially since such presence would be in furtherance of the implementation of article 15 of the Convention [against Torture]".63The CPT has stated: "Access to a lawyer for persons in police custody should include... in principle, the right for the person concerned to have the lawyer present during interrogation."64The right to have counsel present during questioning is stipulated in the rules of procedure of the international criminal tribunals for the former Yugoslavia and Rwanda and in the Rome Statute of the International Criminal Court (Rome Statute).65The Special Rapporteur on torture has stated: "No statement or confession made by a person deprived of liberty, other than one made in [the] presence of a judge or a lawyer, should have a probative value in court, except as evidence against those who are accused of having obtained the confession by unlawful means."66

Right to an interpreter. Principle 14 of the Body of Principles on Detention sets out the right of a detainee to an interpreter "in connection with legal proceedings subsequent to his arrest", a phrase which encompasses interrogation. Article 55(1)(c) of the Rome Statute states with respect to an investigation under the Statute that a person "[s]hall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness".

Identification of everyone present during interrogations. The Special Rapporteur on torture has stated: "Each interrogation should be initiated with the identification of all persons present."67

Prohibition of blindfolding and hooding. The Special Rapporteur on torture has stated: "The practice of blindfolding and hooding often makes the prosecution of torture virtually impossible, as victims are rendered incapable of identifying their torturers. Thus, blindfolding or hooding should be forbidden".68The Committee against Torture has made a similar recommendation.69Amnesty International has recommended that the practice of blindfolding in police custody be outlawed and that officers who engage in the practice be prosecuted.70

Medical examinations.The Human Rights Committee has recommended having "suspects examined by an independent doctor... after each period of questioning".71

Proper recordsof all interrogations must be kept, and the audio or video recording of interrogations is an additional valuable safeguard. Principle 23 of the Body of Principles on Detention states:

"1. The duration of any interrogation of a detained or imprisoned person and of the intervals between interrogations as well as the identity of the officials who conducted the interrogations and other persons present shall be recorded and certified in such form as may be prescribed by law.

"2. A detained or imprisoned person, or his counsel when provided by law, shall have access to the information described in paragraph 1 of the present principle."

The Special Rapporteur on torture has stated: "All interrogation sessions should be recorded and preferably video-recorded, and the identity of all persons present should be included in the records. Evidence from non-recorded interrogations should be excluded from court proceedings."72

Articles 11 and 16 of the Convention against Torture oblige states parties to "keep under systematic review interrogation rules, instructions, methods and practices" with a view to preventing torture and ill-treatment. The same requirement is stated in the Declaration against Torture (Article 6) and has been referred to by the Human Rights Committee as an effective means of preventing torture or ill-treatment.73Citing these provisions, individuals and organizations should press their governments to disclose what rules, instructions, methods and practices of interrogation are in effect and what is being done to keep them under regular review.74

An excuse sometimes offered for torture during interrogation is that a country’s police forces are poorly trained and lacking in resources. It is important that law enforcement agencies have the scientific and technical equipment necessary to investigate crimes effectively and lawfully. While the extent to which they are provided with these means is frequently dependent on the material resources available to governments, a lack of resources is not a justification for torture or other unprofessional behaviour. Law enforcement officials should be trained and encouraged to operate as effectively as they can within the resources available to them without breaching legal, ethical or professional standards.

In particular, law enforcement officials should be trained in the skills of interviewing victims, witnesses and those suspected of crime. In relation to suspects, these skills include the abilities to:

gather all available evidence in a case before interviewing a suspect;

plan an interview based on that evidence so that an effective interview can be conducted;

treat an interview as a means of gathering more information or evidence rather than as a means of securing a confession;

conduct an interview in a manner that respects the suspect’s rights;

analyse information obtained during the interview, and carry out any further investigation into the case suggested by that analysis;

check any admission or confession made by the suspect against available evidence; and

evaluate each interview with a view to learning from each experience and developing interviewing and investigative skills further.



4.10 Safeguards for particular groups

As discussed in section 5.7 below, the Standard Minimum Rules and other international standards contain special provisions relating to the treatment of particular groups of imprisoned people. Certain provisions are especially important in preventing torture and ill-treatment in the initial stages of custody and during interrogation, when (for example) there may be a risk of womensuffering rape and sexual abuse by male security agents, or childrenbeing subjected to abuse because of their inability to defend themselves in comparison with older prisoners. Thus:

International standards relating to the separation of prisoners should be observed from the outset of custody. Female prisoners should be separated from male prisoners and should only be attended and supervised by female guards. There should be no contact between male guards and female prisoners without the presence of a female guard.

Detained children should be separated from detained adults, and untried prisoners from convicted prisoners (see section 5.3.2). Other groups of prisoners also may need to be segregated if there is a risk of violence between groups.

The CPT has emphasized "that persons deprived of their liberty should only be searched by staff of the same gender and that any search which requires an inmate to undress should be conducted out of the sight of custodial staff of the opposite gender."75

The police training manual, To Serve and to Protect, published by the ICRC, recommends "ensuring that the arrest of a woman is carried out by a female official (whenever practicable)".76

Law enforcement officials should be clearly informed of the prohibition of rape and other sexual abuse and of the penalties that will be imposed on any public official who commits them. Any female prisoner who alleges that she has been raped or sexually assaulted should be given an immediate medical examination, preferably by a female doctor, or at least in the presence of female personnel.*(24)

Amnesty International believes that practices such as allowing male staff to search women prisoners, or allowing male staff to patrol areas where women may be viewed in their cells while dressing, washing or taking showers, constitute inhuman and degrading treatment.

International standards relating to the arrest and custody of childrenset out special requirements in addition to those which apply to adults. Thus, alongside the right of prisoners to notify family members of their arrest, detention, imprisonment and transfer from one place of custody to another, set out in Principle 16(1) of the Body of Principles on Detention, Principle 16(3) states:

"If a detained or imprisoned person is a juvenile or is incapable of understanding his entitlement, the competent authority shall on its own initiativeundertake the notification referred to in the present principle. Special attention shall be given to notifying parents or guardians."77(Emphasis added)

Rule 10.1 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) requires the immediatenotification of family members: "Upon the apprehension of a juvenile, her or his parents or guardian shall be immediately notified of such apprehension, and, where such immediate notification is not possible, the parents or guardian shall be notified within the shortest possible time thereafter." Rule 10.2 states: "A judge or other competent official or body shall, without delay, consider the issue of release [of an apprehended juvenile]."78(Emphasis added)

In a similar vein, the CPT has noted that:

"[C]ertain jurisdictions recognise that the inherent vulnerability of juveniles requires that additional precautions be taken. These include placing police officers under a formal obligation themselves to ensure that an appropriate person is notified of the fact that a juvenile has been detained (regardless of whether the juvenile requests that this be done). It may also be the case that police officers are not entitled to interview a juvenile unless such an appropriate person and/or a lawyer is present. The CPT welcomes this approach."79

As regards lain foreign prisoners,Article 36(1)(b) of the Vienna Convention on Consular Relations provides that "if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph."

Principle 16(2) of the Body of Principles on Detention provides for a foreign prisoner to be informed promptly of their right to communicate with their country’s diplomatic representatives or "with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization".80The CPT has stated that "foreign nationals should be provided with the address and telephone number of the consular authorities of their country".81

As the Body of Principles on Detention applies to everyone under any form of detention or imprisonment,82the safeguards set out in that instrument must be afforded to asylum-seekers and other foreign prisoners.83

As noted in section 4.2.2, international standards require that prisoners be informed of the reasons for their arrest and of their rights in a language which they understand. Interpretation and translation facilities should be provided for prisoners throughout the period of detention and imprisonment.84

The Third Geneva Convention of 1949 deals with the treatment of prisoners of warin international armed conflicts. It contains detailed provisions relating t