[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 Rights states: "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.1 At 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,
On the history of the use of torture and of its abolition as a legal method of investigation, see Peters, 1996, Torture. On the development of international standards against torture, see Rodley, 1999, The Treatment of Prisoners under International Law, Chapters 1-2. On the history of the Convention against Torture, see Burgers and Danelius, 1988, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Boulesbaa, 1999, The U.N. Convention on Torture and the Prospects for Enforcement. 1.2 Changing understandings of torture
During the Second World War there were massive abuses of state power, committed against people deprived of their liberty and held by state agents. The international human rights instruments developed in the aftermath of the war were designed to forestall such abuses by stating absolute prohibitions and obligations, instituting safeguards and providing for effective remedies. Amnesty International’s first Campaign for the Abolition of Torture fitted easily into this vision. The victims whose cases were described in the Report on Torture were mainly prisoners held by the state for political reasons; the torture inflicted on them was a method of political repression. The preventive standards adopted in the aftermath of the campaign, such as those in the Declaration against Torture, were mainly for the protection of people in official custody. In pressing for the implementation of these standards, Amnesty International’s second Campaign for the Abolition of Torture followed in the footsteps of the first. The concept of torture and ill-treatment was broader than that, however. Conditions of detention, if sufficiently bad, could amount to cruel, inhuman or degrading treatment. Forced medical or scientific experimentation was recognized under Article 7 of the ICCPR as a form of torture or ill-treatment (see section 3.4 of this manual). Corporal punishment also came under the prohibition, according to the UN Human Rights Committee.9 Although the problem of torture was seen in the 1970s and 1980s mainly as having to do with political prisoners, the prohibition of torture and ill-treatment in the Universal Declaration of Human Rights applies to everyone without distinction. Many entries on individual countries in Torture in the Eighties acknowledged that the torture and ill-treatment of ordinary criminal suspects was widespread, but most of the information which reached Amnesty International concerned political prisoners and the report accordingly focused on them. The 1980s saw a weakening of repressive regimes and the replacement of military dictatorships by elected civilian governments in various countries, followed by the ending of the Cold War. As the use of torture against political prisoners declined, various human rights groups began paying more attention to the torture and ill-treatment of ordinary criminal suspects and members of other groups. Along with this came a recognition of the importance of the links between torture and discrimination - discrimination against women, discrimination against the poor, discrimination against ethnic, racial and other groups, discrimination based on sexual identity - and of the need to provide special protection for the affected groups, including children, who are manifestly easier to hurt and abuse than adults. Along with the end of the Cold War came new reports of the use of torture against civilians in armed conflicts - the rape of women and girls in the former Yugoslavia, cutting off of limbs in Sierra Leone and other atrocities elsewhere. Often the perpetrators were not governmental forces but members of opposition groups or non-state parties to armed conflicts. As seen in the 1970s, torture typically took place in the interrogator’s room, at the secret police headquarters or in police stations, prisons and other officially recognized establishments. But exposure of the practice of "disappearance" showed that people were also being held and tortured in secret places without their detention being acknowledged. The list of settings in which the problem of torture needed to be tackled, including non-custodial settings, was also expanding the work of intergovernmental organizations. The European Convention for the Prevention of Torture provided for the establishment of a Committee (referred to in this manual as the European Committee for the Prevention of Torture, CPT) empowered to visit "any place... where persons are deprived of their liberty by a public authority" (see section 5.8 of this manual), and the CPT soon began visiting and reporting on psychiatric institutions, orphanages and holding centres for immigration detainees as well as prisons and police stations. The Human Rights Committee stated in 1992 that the prohibition of torture and ill-treatment under Article 7 of the ICCPR "protects, in particular, children, pupils and patients in teaching and medical institutions".10 And when members of the public are beaten by police while lying helplessly on the ground, this can also constitute ill-treatment or torture, even if the victims have not formally been taken into custody. A further dimension in the developing understanding of the problem of torture and ill-treatment came through the efforts of the women’s movement to address violence in the community and the family. The perpetrators in such cases were not state agents - they were private individuals - but the state was often negligent in providing protection, bringing perpetrators to justice and affording effective remedies, and the negligence was discriminatory.*(3) The Human Rights Committee referred in 1992 to the duty of states parties to the ICCPR to afford everyone protection against torture or ill-treatment "inflicted by people acting... in a private capacity".11 Measures which governments should take to eliminate violence against women, including torture and ill-treatment, were elaborated in General Recommendation 19 of the UN Committee on the Elimination of Discrimination against Women (CEDAW), adopted in 1992, and in the Declaration on the Elimination of Violence against Women, adopted by the UN General Assembly in 1993 (see section 6.6). Other human rights issues also are closely connected with the problem of torture. Amnesty International has long held that the death penalty is the ultimate cruel, inhuman and degrading punishment and therefore violates Article 5 of the Universal Declaration of Human Rights as well as its Article 3 providing for the right to life - a view that is finding increasing acceptance.12 "Disappearances" have been recognized as violations of the right not to be subjected to torture or ill-treatment, both for the victims and for their families (see section 3.4). Other abuses which have been deemed to constitute torture or ill-treatment include corporal punishment, forcible house destruction, and certain gender-specific abuses including female genital mutilation.**(4) Much has changed over the years in the fight against torture. The formulation of Article 5 of the Universal Declaration of Human Rights as adopted in 1948 remains valid, but the interpretation and the applicable law have evolved. Torture is still with us, but the problem of torture is clearly vaster and more complex than it was then seen. Amnesty International’s third worldwide campaign against torture was designed to reflect these new ideas. It has sought to publicize the ways in which abuses by private individuals can constitute torture or ill-treatment and the need for states to exercise due diligence in protecting people against violence in the community and the family. At the international level, much of the anti-torture effort has gone into the elaboration of standards for the prevention of torture, mainly of people who are held in official custody. There is also a considerable body of standards relating to conditions of detention. Drawing from the experiences of human rights defenders around the world in fighting torture, much of this report focuses on the task of implementing the standards. This effort can help to build a human rights culture in which torture will be universally seen as unacceptable. A report written while the understanding of a problem is still evolving can only reflect the situation at the moment of writing. A new report published 10 years hence will doubtless convey new visions of the problem of torture, new insights and new solutions.
1.3 Torture and discrimination
One of the themes of Amnesty International’s third campaign against torture has been the link between torture and discrimination, and the use of torture and ill-treatment against particularly vulnerable members of society, such as children. Discrimination13 is an assault on the very notion of human rights. It systematically denies certain people or groups their full human rights because of who they are or what they believe. It is an attack on the fundamental principle underlying the Universal Declaration of Human Rights: that human rights are everyone’s birthright and apply to all without distinction. Torture feeds on discrimination. Torture involves the dehumanization of the victim, the severing of all bonds of human sympathy between the torturer and the tortured.14 This process of dehumanization is made easier if the victim is from a despised social, political or ethnic group. Discrimination paves the way for torture by allowing the victim to be seen not as human but as an object, who can, therefore, be treated inhumanely. As stated by the Committee against Torture, "discrimination of any kind can create a climate in which torture and ill-treatment of the ‘other’ group subjected to intolerance and discriminatory treatment can more easily be accepted, and... discrimination undercuts the realization of equality of all persons before the law".15 Discrimination against certain groups heightens their vulnerability to torture by state officials in a number of ways. Discrimination enshrined in law (for example, where the law criminalizes homosexuality or restricts women’s fundamental freedoms) can act as a licence to torture. Discriminatory enforcement of laws may affect both a person’s chances of coming into contact with the criminal justice system and their treatment once in its hands. The victim’s identity or status may also affect the nature and consequences of their ill-treatment. For example, children held in custody with adults are particularly vulnerable to rape and sexual violence. Victims from marginalized groups may also have less access to legal remedies. Discrimination reinforces impunity, lessening the likelihood of any official action in cases of torture or ill-treatment. Discrimination also means that certain groups are denied equal protection of the law against violence inflicted on them in the community and the family, such as violence against women, attacks against street children, racist attacks and homophobic hate crimes. These violent manifestations of prejudice are often facilitated and encouraged by official inaction. The ICCPR contains a clause stipulating that its provisions are to be observed "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Article 2(1)). Other major international and regional human rights instruments which prohibit torture and ill-treatment contain similar provisions,16 as do other instruments covering matters relevant to the prevention of torture, such as conditions of detention and the rights of detainees.17 Under Article 1 of the Convention against Torture, the intentional infliction of severe pain or suffering "for any reason based on discrimination of any kind" is recognized as an act of torture. Conversely, international and regional instruments designed to combat discrimination or to protect particular groups contain explicit prohibitions of torture and ill-treatment, as well as prohibitions of the infliction of bodily or mental harm under which various acts of torture or ill-treatment would clearly be prohibited (see section 3.2.3 of this manual). The Special Rapporteur on torture has discussed the torture of women18, children19 and members of sexual minorities20 and the links between torture and poverty21 in his reports to the UN General Assembly and the UN Commission on Human Rights. The links between torture and gender have been discussed by the UN Special Rapporteur on violence against women, its causes and consequences (Special Rapporteur on violence against women). The links between torture and racism have been discussed by the Committee against Torture. The analysis of the torture of women by the Special Rapporteur on torture has focused particularly on rape and sexual abuse (see section 3.3.2). As the Special Rapporteur has pointed out:
1.4 The importance of political will: Amnesty International’s 12-Point Program
Amnesty International’s 12-Point Program for the Prevention of Torture, produced for its second Campaign for the Abolition of Torture, was designed to promote the measures which governments should take to stop torture and ill-treatment. A revised version, prepared for Amnesty International’s third worldwide campaign and entitled 12-Point Program for the Prevention of Torture by Agents of the State, is reproduced in Appendix 16 of this manual. The 12-Point Program starts by calling on the highest authorities of every country to demonstrate their opposition to torture by condemning it unreservedly whenever it occurs. This point has been placed first to emphasize the importance of the authorities exercising the political will to stop torture.31 Condemnation must not be merely symbolic: the authorities should make clear to officials under their command that torture will not be tolerated.32 All public officials should know that torture and ill-treatment are forbidden and that they will be punished for such abuses. The prohibition of torture should be conveyed to them through public statements, regulations and instructions, and through the authorities responding appropriately when allegations of torture are made.33 Related to the condemnation of torture, although not explicitly mentioned in the 12-Point Program, is the notion of chain-of-command control. The principle of chain-of-command control is set out in the UN Declaration on the Protection of All Persons from Enforced Disappearance (Declaration on Enforced Disappearance): "Each State shall... ensure strict supervision, including a clear chain of command, of all law enforcement officials responsible for apprehensions, arrests, detentions, custody, transfers and imprisonment, and of other officials authorized by law to use force and firearms" (Article 12(2)).34 Chain-of-command control operates through a combination of measures, including issuing clear regulations, setting up clear operating procedures, exercising supervision through being regularly and accurately informed of the activities of those under onecommand, and ensuring that there are effective procedures for investigating and punishing breaches of regulations.35 These measures should be used to ensure that officers do not commit torture or ill-treatment.36 Points 2-4 of the 12-Point Program concern prisoners. Secret detention must be prohibited, and the authorities should institute safeguards against torture and ill-treatment, breaking down the isolation in which these abuses occur and establishing institutional responsibility for various aspects of the welfare of prisoners. The program also refers to the need to ensure humane conditions of detention. Points 5, 6, 7 and 10 refer to the necessary official reaction when torture becomes known, and to the legal framework for its prevention and suppression. Governments must prohibit torture in law, conduct prompt and impartial investigations into complaints and reports of torture, bring those responsible to justice and afford reparation to the victims. Judicial and administrative corporal punishments should be abolished. Point 8 states that statements and other evidence obtained through torture must not be invoked in any proceedings, except against a person accused of torture. Point 9 underlines the need for training. Points 11 and 12 refer to governments’ international responsibilities. All governments should ratify without reservations the relevant human rights treaties, including the Convention against Torture. Governments should work for the eradication of torture in other countries. No one should be forcibly returned to a country where he or she risks being tortured. As stated in Point 5, the prohibition of torture and the essential safeguards for its prevention must not be suspended under any circumstances, including states of war or other public emergency. Essential safeguards for the prevention of torture include the availability at all times of effective judicial remedies to enable relatives and lawyers to find out immediately where a prisoner is held and under what authority, and to ensure the prisoner’s safety (see section 4.8). While many of the measures set out in the 12-Point Program are simply restatements of existing requirements under international human rights standards, some go beyond the standards on which the community of states has thus far been able to agree. The program serves at once to make the existing standards more understandable; to promote new standards which Amnesty International has found to be important; and as a yardstick of governmental behaviour. Above all, it is meant to be a coherent program of international action against torture, applicable in all countries.37 Although the program is particularly concerned with torture and ill-treatment in detention, the logic of the program (official condemnation, safeguards, repression, international action) can also be applied to other settings, such as torture in armed conflict (see section 6.5). Similarly, although the program is concerned with torture by agents of the state, many of the points can also be applied to the prevention of torture by non-state forces and armed political groups, and to the prevention of violence in the community and the family. Many of the action recommendations in this manual reflect the thinking behind the 12-Point Program.38 1.5 The international system for human rights protection
Over the years, the UN and regional intergovernmental organizations have set up bodies dealing with human rights. Foremost among them is the UN Commission on Human Rights, established under Article 68 of the UN Charter, which has adopted a resolution on "Torture and other cruel, inhuman or degrading treatment or punishment" annually since 1985.39 Treaty bodies40 have been created under international and regional human rights treaties, and the Commission on Human Rights has set up mechanisms41 relating to particular countries or themes. Unlike intergovernmental bodies which consist of representatives of states, the treaty bodies and the mechanisms established by the Commission on Human Rights consist of individuals acting in their personal capacity (normally called "independent experts"). Whereas treaty bodies deal only with states which are parties to their respective treaties, intergovernmental bodies and human rights mechanisms are concerned with all states belonging to the intergovernmental organization in question. Three treaty bodies and mechanisms are of special importance in the fight against torture.
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 The Torture 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 Torture published 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).
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 shinbet or 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 Hamas and 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.2 Other 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 Davar newspaper. 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:
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".13 Peruvian 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 lega
