Fighting impunity

Torture has been consistently prohibited in international human rights and humanitarian law for more than half a century and has been condemned in a number of international conventions. The prohibition is absolute and no exceptions, including situations of public emergency and war, may be evoked to legitimise the use of torture. Despite this, torture and other forms of ill treatment is still a predominant and widespread occurrence and continues to be practiced in over 100 countries.

International law obliges states to investigate allegations of torture and to punish those responsible. It also requires that victims of acts of torture obtain reparation and have an enforceable remedy to fair and adequate compensation, restitution of their rights and as full a rehabilitation as possible. Nevertheless, torturers are seldom brought to court and torture survivors rarely receive any kind of redress as compensation for their suffering.

Climate of impunity

For example, figures from Turkey show that impunity for torturers is the rule rather than the exception. Since 1980, an estimated one million persons have been tortured in Turkey, but only a few thousand perpetrators have been convicted. And in nearly all cases punishment was either postponed or converted into a fine.

In a climate of impunity, crimes of torture can be safely committed without perpetrators having to risk arrest, prosecution or punishment. When torturers are not held responsible, there is a risk that torture will de-generate into a widespread or systematic crime. As such, impunity remains an important impediment for the prevention of torture.

Often, the political will to end the vicious circle of impunity does not exist. This is because States themselves are frequently involved in crimes of torture either directly or indirectly through police or military forces. Repression is often used by non democratic countries as a way to perpetuate their power.

Effective Investigation

One of the major challenges in fighting impunity is to obtain sufficient evidence in cases against alleged perpetrators. Most cases do not lead to justice for the torture survivor because the scars on his or her body have not been appropriately documented by doctors or used by lawyers in the legal proceedings.

A major problem is that it can be very difficult to prove that a person has been tortured. The torture may have taken place many years ago. Or the specific method used has left no visible marks. Many torture methods are designed precisely so as to inflict maximum pain while leaving minimum physical traces.

Effective investigation and documentation of alleged torture is decisive in proving that torture has taken place, bringing perpetrators to court and ensuring reparation and redress for survivors and their families. The official recognition that torture has taken place serves to restore individual and public morale. Moreover, it sends a strong signal to torturers and those authorising the use of torture. Fighting impunity is essential to prevent torture and to fulfil the victims’ rights.

The role of health and legal professionals

Investigation and documentation of torture is a multidisciplinary task in which both health professionals (doctors, psychologists, nurses) and legal professionals (lawyers, prosecutors, judges) have important roles.

Both professions work within particular ethical codes and standards and both have a duty to assist within their capabilities. For example, judges have an ethical duty to ensure that the rights of individuals are protected; prosecutors have a duty to investigate and prosecute cases of torture committed by public officials; and lawyers must promote and protect human rights and fundamental freedoms. Health professionals have an ethical duty to treat victims of torture, ensure clinical independence and, with the consent of the victims, to make the relevant authorities aware of the torture, providing that this does not put the subjects or those close to them at risk.

The specific tasks of health professionals in the investigation and documentation of torture include:

• Gathering relevant, accurate and reliable evidence in connection with alleged torture cases
• Reaching conclusions on the consistency between the allegations and the medical findings
• Producing high-quality medical reports for submission to judicial and administrative bodies

The specific tasks of legal professionals in the investigation and documentation of torture include:

• Obtaining relevant, accurate and reliable statements from torture victims and witnesses
• Recovering and preserving evidence related to the alleged torture
• Determining how, when and where the alleged torture occurred

Documentation of torture and ill treatment, alone, will not end widespread, abusive practices. Torture prevention and accountability requires that a wide range of interrelated problems be addressed, including:

• Inadequate legal prohibitions
• Lack of systematic monitoring of police practices
• Inadequate police investigations
• Inadequate legal investigations
• Inadequate legal defense
• Lack of independence between criminal investigations and prosecutions
• Allowing confessions obtained under torture into judicial proceedings, though illegal
• Corruption of government officials
• Inadequate sanctions against perpetrators

In April 2005, the IRCT organised a parallel meeting at the 61st gathering of the UN Human Rights Commission on the obstacles, challenges and possibilities for investigating, documenting and proving torture. Keynote speakers at the meeting were: Justice Renate Winter, judge at the Appeals Chamber of the Special Court of Sierra Leone and former judge at the Supreme Court of Kosovo; Dr. Frances Lovemore from the AMANI Trust in Zimbabwe, and Dr. Inge Genefke, founder and ambassador of the IRCT. Click here to download a PDF file with the transcript of the meeting.