Documento - Contra la tortura: Manual de acción

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;

works for fair and prompt trials for all political prisoners;
opposes without reservation the death penalty, torture and other cruel, inhuman or degrading treatment or punishment;
campaigns for an end to political killings and "disappearances";
calls on governments to refrain from unlawful killings in armed conflict;
calls on armed political groups to end abuses such as the detention of prisoners of conscience, hostage-taking, torture and unlawful killings;
opposes abuses by non-state actors where the state has failed to fulfil its obligations to provide effective protection;
campaigns for perpetrators of human rights abuses to be brought to justice;
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;
opposes certain grave abuses of economic, social and cultural rights.
Amnesty International also seeks to:
cooperate with other non-governmental organizations, the United Nations and regional intergovernmental organizations;
ensure control of international military, security and police relations to prevent human rights abuses;
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

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

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

United Kingdom

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".)

[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

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.