THE
TORTURE REPORTING
HANDBOOK
How to document and respond to allegations of torture within the international
system for the protection of human rights
By Camille Giffard
Human Rights Centre, University of Essex
ISBN 1 874635 28 5
Published February 2000
Human Rights Centre
University of Essex
Wivenhoe Park
Colchester CO4 3SQ
UK
Tel: 00 44 1206 872558
Fax: 00 44 1206 873428
email: hrc@ essex. ac. uk
URL: http:// www2. essex. ac. uk/ human_ rights_ centre/
© The Human Rights Centre
All rights reserved. This work may be reproduced, provided that no commercial use is made of it and the
Human Rights Centre, University of Essex, is acknowledged.
PRINCIPAL CONTRIBUTORS
Author and Researcher:
Ms Camille Giffard Research Officer, University of Essex
Project Directors:
Professor Sir Nigel Rodley, KBE UN Special Rapporteur on Torture and Professor of Law, University of
Essex
Professor Geoff Gilbert Professor of Law, University of Essex
Editorial Board:
Dr Silvia Casale Member of the European Committee for the Prevention of Torture
Professor Malcolm Evans Professor of Law, University of Bristol
Professor Françoise Hampson Member of the UN Sub- Commission for the Promotion and Protection of
Human Rights and Professor of Law, University of Essex
Professor Geoff Gilbert
Professor Sir Nigel Rodley
Administrative and Secretarial Support:
Ms Anne Slowgrove
Mrs Heidi Wiggam
Ms Anna Massara ( Working Meeting)
ACKNOWLEDGEMENTS
The author and project directors would, first and foremost, like to thank Dr Silvia Casale, Professor
Malcolm Evans and Professor Françoise Hampson for their sound advice and unflagging dedication,
good will, and professionalism throughout this undertaking. They would also like to extend their
gratitude to the many institutions, organisations and individuals who have contributed to the various
stages of the process. Their response was enthusiastic and supportive without exception, and helped to
keep the project on track. Special thanks are owed to the Foreign and Commonwealth Office of the
United Kingdom, without whose funding and initial interest this project would never have seen the light
of day. Extensive thanks are due also to all those who participated in the Working Meeting held from 1-
3 September 1999, at the University of Essex, helping to transform a rather tentative first draft into a
handbook which it is hoped will be better able to serve its purpose.
Individuals who provided valuable assistance include: Barbara Bernath, Dr Joe Beynon, Mylène
Bidault, Said Boumedouha, Craig Brett, Alessio Bruni, Christina Cerna, Daniela De Vito, Carla
Edelenbos, Caroline Ford, Dr Duncan Forrest, Yuval Ginbar, Sara Guillet, Rogier Huizenda, Maria
Francisca Ize- Charrin, Cecilia Jimenez, Mark Kelly, Johanna MacVeigh, Nathalie Man, Dr Andrew
Mawson, Fiona McKay, Cecilia Moller, Rod Morgan, Ahmed Motala, Patrick Müller, Dr Michael Peel,
Borislav Petranov, Carmen Rosa Rueda Castañon, Eleanor Solo, Eric Sottas, Trevor Stevens, Morris
Tidball, Rick Towle, Agnes Van Steijn, Olga Villarrubia and Jim Welsh.
Institutions and organisations consulted:
Amnesty International, Association pour la Prévention de la Torture, Secretariat of the European
Committee for the Prevention of Torture, Registry of the European Court of Human Rights, Fédération
Internationale des Droits de l’Homme, Executive Secretariat of the Inter- American Commission on
Human Rights, Inter- American Institute of Human Rights, Interights, International Committee of the
Red Cross, Medical Foundation for the Victims of Torture, Organisation Mondiale Contre la Torture,
REDRESS, Save the Children, Office of the United Nations High Commissioner for Human Rights and
Office of the United Nations High Commissioner for Refugees.
TABLE OF CONTENTS
Selected Abbreviations ........................................................................................................................ i
Index of Tables......................................................................................................................... ......... ii
Glossary of Specialised Terms .......................................................................................................... iii
PART I - PRELIMINARY MATTERS 1
1. INTRODUCTION ............................................................................................................................... ...... 3
2. HOW TO USE THIS HANDBOOK.......................................................................................................... 5
2.1. Outline of core chapters...................................................................................................................... 5
2.2. Terminology ............................................................................................................................... ........ 6
2.3. Essential policy issues......................................................................................................................... 7
3. SETTING THE CONTEXT....................................................................................................................... 9
3.1. Introduction................................................................................................................... ..................... 9
3.2. What can you hope to achieve by reporting allegations of torture? .................................................. 9
3.2.1. Draw attention to a situation/ establish a pattern of violations......................................................... 9
3.2.2. Seek positive changes in a general situation.................................................................................. 10
3.2.3. Combat impunity....................................................................................................................... .. 10
3.2.4. Seek a remedy for an individual victim ......................................................................................... 10
3.2.4.1. A finding of violation ............................................................................................................................ 10
3.2.4.2. Holding perpetrators to account ........................................................................................................... 11
3.2.4.3. Reparation..................................................................................................................... ...................... 11
3.2.4.4. Preventing the deportation of an individual to a country where he or she would be at risk of torture ..... 11
3.3. What is torture? ............................................................................................................................... . 11
3.3.1. Introduction................................................................................................................... .............. 11
3.3.2. What does international law say about the meaning of torture? ..................................................... 12
3.3.3. What does this mean in practical terms? ....................................................................................... 13
3.3.3.1. Essential elements....................................................................................................................... ......... 13
3.3.3.2. Degree of suffering ............................................................................................................................... 13
3.3.4. Conclusion: what is torture? ......................................................................................................... 15
3.4. How does torture happen? ................................................................................................................. 15
3.4.1. Who are the perpetrators?............................................................................................................. 15
3.4.2. Who are the victims? .................................................................................................................... 16
3.4.3. Where is torture most likely to occur?........................................................................................... 17
3.4.4. When is torture most likely to occur?............................................................................................ 17
3.5. In what contexts might you receive or obtain allegations of torture? ............................................... 18
3.6. Can allegations be made against non- governmental actors? ............................................................ 21
3.6.1. Can action be taken under human rights law?............................................................................... 21
3.6.2. Do other types of law prohibiting torture apply to non- governmental actors? ................................ 22
3.6.2.1. International law of armed conflict ....................................................................................................... 22
3.6.2.2. Crimes against humanity....................................................................................................................... 22
3.6.2.3. National law ............................................................................................................................... ......... 23
3.6.3. Conclusion: how can you use information alleging torture by non- governmental actors?............... 23
PART II - DOCUMENTING ALLEGATIONS 27
1. INTRODUCTION ............................................................................................................................... ..... 29
2. BASIC PRINCIPLES OF DOCUMENTATION...................................................................................... 30
2.1. Why do these principles matter? ....................................................................................................... 30
2.2. What does good quality information consist of?................................................................................ 30
2.3. What can you do to maximise the accuracy and reliability of information? .................................... 31
3. INTERVIEWING THE PERSON ALLEGING TORTURE................................................................... 33
3.1. Introduction................................................................................................................... .................... 33
3.2. General considerations................................................................................................................. ..... 33
3.3. Conducting the interview ................................................................................................................... 34
3.3.1. Before you start ............................................................................................................................ 34
3.3.2. How should you begin the interview?............................................................................................ 34
3.3.3. Should you keep notes of the interview?........................................................................................ 34
3.3.4. By whom should the interview be conducted? ............................................................................... 34
3.3.5. Are there any special considerations to keep in mind when using interpreters? ............................. 35
3.3.6. What can you do to make the interviewee feel more at ease? ......................................................... 35
3.3.7. How can you deal with people who are too afraid to talk? ............................................................. 35
3.3.8. Are there any special considerations to keep in mind when conducting interviews in prisons or
other places of group custody? ................................................................................................................ 36
3.3.9. How can you address the sensitivity of the subject- matter? ............................................................ 36
3.3.10. What can you do to maximise the reliability of information?....................................................... 37
3.3.11. Are there any special gender considerations to take into account when selecting an interviewer or
interview team? ............................................................................................................................... ...... 37
3.3.12. Are there any special considerations to take into account when interviewing children? ............... 37
4. INFORMATION WHICH SHOULD BE RECORDED .......................................................................... 38
4.1. Model information.................................................................................................................... ......... 38
4.1.1. What kind of details do you need in order to answer these basic questions?................................... 38
4.1.2. What can you do to obtain these details without influencing the content of the account? ............... 42
4.2. Specific contexts ............................................................................................................................... . 45
5. EVIDENCE....................................................................................................................... ........................ 47
5.1. Medical evidence....................................................................................................................... ........ 47
5.1.1. Physical evidence....................................................................................................................... .. 48
5.1.2. Psychological evidence ................................................................................................................. 49
5.2. Statement of person making allegation.............................................................................................. 49
5.3. Witness evidence ............................................................................................................................... 50
5.4. Other types of evidence...................................................................................................................... 51
PART III - RESPONDING TO THE INFORMATION COLLECTED 55
1. INTRODUCTION TO POSSIBLE COURSES OF ACTION.................................................................. 57
1.1. Action at the international level......................................................................................................... 57
1.1.1. Range of international procedures................................................................................................. 57
1.1.1.1. Origin of the mechanism ....................................................................................................................... 58
1.1.1.2. Functions of the mechanism .................................................................................................................. 59
1.1.2. How to select an international procedure....................................................................................... 61
1.1.2.1. Availability: which mechanisms are open to you? ................................................................................. 61
1.1.2.2. Suitability: which mechanisms are most suited to your objectives? ........................................................ 62
1.2. Action at the national level ................................................................................................................ 62
1.2.1. Criminal proceedings ................................................................................................................... 62
1.2.2. Civil proceedings.................................................................................................................... ..... 63
1.2.3. Administrative proceedings .......................................................................................................... 63
1.2.4. Disciplinary proceedings .............................................................................................................. 63
1.2.5. Asylum claims......................................................................................................................... .... 63
1.2.6. Exceptional remedies.................................................................................................................... 64
1.2.7. Other procedures .......................................................................................................................... 64
2. WHAT YOU SHOULD KNOW ABOUT INTERNATIONAL REPORTING MECHANISMS AND
HOW TO USE THEM........................................................................................................................... ...... 65
2.1. What kind of general characteristics should your communication have? ........................................ 65
2.1.1. Accessible..................................................................................................................... ............... 66
2.1.2. Balanced and Credible.................................................................................................................. 67
2.1.3. Detailed....................................................................................................................... ................ 67
2.2. Submitting information to a body engaged in monitoring: what should your communication
include? ............................................................................................................................... ..................... 68
2.2.1. Sending general information to a monitoring body ....................................................................... 68
2.2.2. Sending an individual allegation to a monitoring body ................................................................. 69
2.3. Submitting information in the context of the state reporting procedure .......................................... 71
2.3.1. How does the state reporting procedure work? .............................................................................. 71
2.3.2. What can you achieve by submitting information in the context of the state reporting procedure? .71
2.3.3. What should an NGO report in the context of the state reporting procedure contain? .................... 72
2.3.4. Practical tips for submitting information in the context of the state reporting procedure................ 73
2.4. Submitting information to a body engaged in fact- finding ............................................................... 74
2.4.1. Submitting information in advance of a fact- finding visit.............................................................. 74
2.4.2. Submitting information during a fact- finding visit........................................................................ 75
3. WHAT YOU SHOULD KNOW ABOUT INTERNATIONAL COMPLAINT PROCEDURES AND
HOW TO USE THEM........................................................................................................................... ...... 76
3.1. What can you seek to achieve by using individual complaint procedures? ...................................... 76
3.2. What kind of complaints can individual complaint procedures examine? ....................................... 76
3.3. How do individual complaint procedures work?............................................................................... 78
3.3.1. Basic chronology .......................................................................................................................... 78
3.3.2. Admissibility ............................................................................................................................... 78
3.3.2.1. What is admissibility?................................................................................................................. ......... 78
3.3.2.2. Why might a complaint be declared inadmissible?................................................................................. 79
3.3.3. Amicus curiae briefs/ Third party interventions ............................................................................. 81
3.3.4. Provisional measures .................................................................................................................... 82
3.4. What should an application under an individual complaint procedure contain?............................. 82
3.5. Practical tips for using individual complaint procedures.................................................................. 83
4. THE MECHANISMS AND PROCEDURES: UNITED NATIONS ........................................................ 84
4.1. Introduction to the United Nations system ........................................................................................ 84
4.2. Reporting mechanisms within the United Nations system ................................................................ 84
4.2.1. The United Nations Non- Treaty Procedures .................................................................................. 84
4.2.1.1. The 1503 Procedure...................................................................................................................... ....... 85
4.2.1.1.1. How does the 1503 Procedure work? ............................................................................................. 85
4.2.1.1.2. What can you achieve by submitting information to the 1503 Procedure?....................................... 87
4.2.1.1.3. What should a communication to the 1503 Procedure contain?....................................................... 88
4.2.1.1.4. Specific tips ............................................................................................................................... .. 89
4.2.1.2. The Special Procedures of the UN Commission on Human Rights.......................................................... 89
4.2.1.2.1. Thematic Rapporteurs and Working Groups .................................................................................. 90
4.2.1.2.2. Special Rapporteur on Torture....................................................................................................... 92
4.2.1.2.3. Country Rapporteurs ..................................................................................................................... 95
4.2.2. The United Nations Treaty Bodies ................................................................................................ 95
4.2.2.1. Committee Against Torture ................................................................................................................... 96
4.2.2.1.1. How does the Committee Against Torture work? ........................................................................... 96
4.2.2.1.2. What can you achieve by submitting information to the Committee Against Torture?..................... 97
4.2.2.1.3. What should a communication to the Committee Against Torture contain?..................................... 97
4.2.2.1.4. Specific tips ............................................................................................................................... .. 98
4.2.2.2. Human Rights Committee...................................................................................................................... 99
4.2.2.2.1. How does the Human Rights Committee work? ............................................................................. 99
4.2.2.2.2. Specific tips ............................................................................................................................... 100
4.2.2.3. Other Committees ............................................................................................................................... 100
4.2.2.3.1. Specific tips ............................................................................................................................... 101
4.3. Complaint procedures within the United Nations system ............................................................... 102
4.3.1. The Committee Against Torture ................................................................................................. 102
4.3.1.1. What kind of complaints can it examine?............................................................................................. 103
4.3.1.2. What are the admissibility requirements? ............................................................................................ 103
4.3.1.3. Specific tips ............................................................................................................................... ........ 103
4.3.2. Human Rights Committee........................................................................................................... 104
4.3.2.1. What are the admissibility requirements? ............................................................................................ 105
4.3.2.2. Specific tips ............................................................................................................................... ........ 105
4.3.3. Other Committees..................................................................................................................... . 106
4.3.3.1. What are the admissibility requirements? ............................................................................................ 106
4.3.3.2. Specific tips ............................................................................................................................... ........ 106
5. THE MECHANISMS AND PROCEDURES: REGIONAL................................................................... 108
5.1. The European System ...................................................................................................................... 108
5.1.1. Reporting Mechanism: The European Committee for the Prevention of Torture.......................... 108
5.1.1.1. How does the European Committee for the Prevention of Torture work?.............................................. 108
5.1.1.2. What can you achieve by submitting information to the Committee for the Prevention of Torture?....... 110
5.1.1.3. What should a communication to the Committee for the Prevention of Torture contain? ...................... 111
5.1.1.4. Specific tips ............................................................................................................................... ........ 112
5.1.2. Complaint Procedure: The European Convention on Human Rights ........................................... 113
5.1.2.1. What are the admissibility requirements? ............................................................................................ 113
5.1.2.2. What should your application contain? ............................................................................................... 113
5.1.2.3. Specific tips ............................................................................................................................... ........ 115
5.2. The Inter- American System............................................................................................................. 116
5.2.1. Reporting Mechanism: The Inter- American Commission on Human Rights ............................... 117
5.2.1.1. How does the Inter- American Commission on Human Rights work? .................................................... 117
5.2.1.2. What can you achieve by submitting information to the Inter- American Commission on Human Rights? 118
5.2.1.3. What should a communication to the Inter- American Commission on Human Rights contain?............. 118
5.2.2. Complaint Procedure: the Inter- American Commission and Court of Human Rights................... 118
5.2.2.1. What can you achieve by using this procedure?................................................................................... 120
5.2.2.2. What kind of complaints can be examined? ......................................................................................... 120
5.2.2.3. What are the admissibility requirements? ............................................................................................ 121
5.2.2.4. Specific tips ............................................................................................................................... ........ 121
5.3. The African System......................................................................................................................... 122
5.3.1. Reporting Mechanisms ............................................................................................................... 122
5.3.1.1. African Commission on Human and Peoples’ Rights ........................................................................... 122
5.3.1.1.1. Functions ............................................................................................................................... .... 122
5.3.1.1.2. Specific tips ............................................................................................................................... 123
5.3.1.2. Special Rapporteur on Prisons and Conditions of Detention in Africa................................................. 123
5.3.2. Complaint Procedure: The African Commission on Human and Peoples’ Rights ........................ 124
5.3.2.1. What are the admissibility requirements? ............................................................................................ 125
5.3.2.2. Specific tips ............................................................................................................................... ........ 125
5.4. Other Regions........................................................................................................................ .......... 126
6. COMPARATIVE EVALUATION TABLES OF THE INTERNATIONAL PROCEDURES.............. 127
7. WHERE MIGHT YOU SEEK FURTHER HELP?............................................................................... 132
7.1. Why might you wish to seek further help?...................................................................................... 132
7.2. Some specific sources of help ........................................................................................................... 133
7.2.1. International Committee of the Red Cross................................................................................... 133
7.2.2. UN High Commissioner for Refugees ......................................................................................... 133
7.2.3. Field missions and visits............................................................................................................. 134
7.2.4. International and national or local NGOs, and other support organisations................................. 134
7.2.5. UN Voluntary Fund for the Victims of Torture ........................................................................... 134
7.2.6. Lobbying ............................................................................................................................... .... 134
APPENDICES 137
1. APPENDIX I - LIST OF RELEVANT INSTRUMENTS....................................................................... 139
2. APPENDIX II - CONTACT DETAILS AND OBTAINING FURTHER INFORMATION................. 142
3. APPENDIX III - STANDARD APPLICATION FORMS ...................................................................... 150
4. APPENDIX IV - BODY DIAGRAMS .................................................................................................... 153
Index.......................................................................................................................... .................... 157
i
SELECTED ABBREVIATIONS
ACHPR: African Charter on Human and Peoples’ Rights
ACHR: American Convention on Human Rights
ACNHR African Commission on Human and Peoples’ Rights
CAT: Committee Against Torture
CEDAW: Committee on the Elimination of Discrimination Against Women
CERD: Committee on the Elimination of Racial Discrimination
CPT: European Committee for the Prevention of Torture
CRC: Committee on the Rights of the Child
ECHR: European Convention on Human Rights
ECTHR: European Court of Human Rights
IACN: Inter- American Commission on Human Rights
IACT Inter- American Court of Human Rights
ICC: International Criminal Court
ICCPR: International Covenant on Civil and Political Rights
ICRC: International Committee of the Red Cross
IDPs: Internally- displaced persons
ILAC: International Law of Armed Conflict
NGO: Non- governmental organisation
OAS: Organisation of American States
OAU: Organisation of African Unity
OHCHR Office of the UN High Commissioner for Human Rights
OSCE Organisation on Security and Co- operation in Europe
SRP: Special Rapporteur on Prisons and Conditions of Detention in Africa
SRT: United Nations Special Rapporteur on Torture
UN: United Nations
UNCAT: UN Convention Against Torture
UNCEDAW: UN Convention on the Elimination of Discrimination Against Women
UNCERD: UN Convention on the Elimination of Racial Discrimination
UNCHR: UN Commission on Human Rights
UNCRC: UN Convention on the Rights of the Child
UNHCR: UN High Commissioner for Refugees
ii
INDEX OF TABLES
COMPARATIVE TABLES:
Table 1: Summary of International Mechanisms - By Origin and Function...................................................... 60
Table 33: Comparative Evaluation I - CAT, HRC and CERD ( General) ........................................................ 127
Table 34: Comparative Evaluation II - CRC, CEDAW, SR- CHR and 1503 ( General) .................................... 128
Table 35: Comparative Evaluation III - CPT, IACN and IACT ( General) ...................................................... 129
Table 36: Comparative Evaluation IV - ACNHR and SRP ( General) ............................................................. 130
Table 37: Comparative Evaluation IV - CAT, HRC and CERD ( Individual Complaint Procedure) ................ 131
Table 38: Comparative Evaluation V - ECTHR, IACN, IACT and ACNHR ( Individual Complaint Procedure) 131
INTERNATIONAL MECHANISMS - BASIC FACTS:
Table 5: Basic Facts: UN Commission on Human Rights ................................................................................ 85
Table 6: Basic Facts: UN Sub- Commission on the Promotion and Protection of Human Rights....................... 85
Table 8: Basic Facts: 1503 Procedure............................................................................................................. 87
Table 10: Basic Facts: UN Special Rapporteur on Torture.............................................................................. 92
Table 12: Basic Facts: Committee Against Torture ......................................................................................... 96
Table 13: Basic Facts: Human Rights Committee............................................................................................ 99
Table 14: Basic Facts: Committee on the Rights of the Child ........................................................................ 100
Table 15: Basic Facts : Committee on the Elimination of Discrimination against Women ............................. 100
Table 16: Basic Facts: Committee on the Elimination of Racial Discrimination............................................ 101
Table 21: Basic Facts: European Committee for the Prevention of Torture ................................................... 108
Table 22: Basic Facts: European Court of Human Rights ............................................................................. 113
Table 25: Basic Facts: Inter- American Court of Human Rights..................................................................... 116
Table 26: Basic Facts: Inter- American Commission on Human Rights .......................................................... 117
Table 29: Basic Facts: African Commission on Human and Peoples’ Rights ................................................. 122
Table 30: Basic Facts: Special Rapporteur on Prisons and Conditions of Detention in Africa....................... 123
INDIVIDUAL COMPLAINT PROCEDURES - PRACTICALITIES OF USE:
Table 18: Practicalities of Using Individual Complaint Procedure: CAT....................................................... 104
Table 19: Practicalities of Using Individual Complaint Procedure: Optional Protocol to the ICCPR............ 105
Table 20: Practicalities of Using Individual Complaint Procedure: CERD.................................................... 107
Table 24: Practicalities of Using Individual Complaint Procedure: ECHR.................................................... 115
Table 28: Practicalities of Using Individual Complaint Procedure: Inter- American System .......................... 121
Table 32: Practicalities of Using Individual Complaint Procedure: ACHPR ................................................. 125
PROCEDURES - BASIC CHRONOLOGY:
Table 7: Basic Chronology: 1503 Procedure................................................................................................... 86
Table 17: Basic Chronology of Individual Complaint Procedure: CAT.......................................................... 102
Table 23: Basic Chronology of Individual Complaint Procedure: ECHR....................................................... 114
Table 27: Basic Chronology of Individual Complaint Procedure: Inter- American System ............................. 119
Table 31: Basic Chronology of Individual Complaint Procedure: ACHPR .................................................... 124
MISCELLANEOUS OTHER TABLES:
Table 2: Suitability of Types of Mechanisms to Possible Objectives................................................................. 62
Table 3: Checklist For Submitting General Information To A Reporting Mechanism....................................... 69
Table 4: Checklist For Submitting An Individual Allegation To A Reporting Mechanism ................................ 71
Table 9: Relevant Thematic Procedures of the UN Commission on Human Rights........................................... 91
Table 11: Country Rapporteurs of the UN Commission on Human Rights ( 1999) ............................................ 95
Table 39: Possible Sources of Help ............................................................................................................... 132
iii
GLOSSARY OF SPECIALISED TERMS
Admissibility The stage of an individual complaint procedure at which the judicial or quasi- judicial
body decides if the right conditions are present for it to be able to examine a
complaint. If a complaint is inadmissible, it cannot be examined any further.
Allegation ( of torture) A claim ( as yet neither proved nor disproved) that an incident of torture has occurred.
Amicus curiae brief A submission by a non- party to judicial proceedings which is designed to inform the
judicial body about a specific matter relating to the proceedings.
Applicant Person making an application under an individual complaint procedure.
Application Letter or other form of submission asking a judicial body to consider a case under an
individual complaint procedure.
Asylum Asylum is sought by individuals who do not wish to return to a country, usually their
own, where they are at risk. If granted, it means being allowed to remain in a country
which is not their own. It may be temporary or permanent.
Breach ( of obligations) See VIOLATION
Charter See TREATY
Communication Letter or other form of submission transmitting information to an international body.
The term is often used within the UN to refer to applications under an individual
complaint procedure. The person who writes a communication is often referred to as
the author of the communication.
Competence See JURISDICTION ( of a judicial body)
Complainant Person making a complaint under an individual complaint procedure.
Consultative status NGOs can apply to the UN for consultative status - this means that they are officially
registered as an organisation which the UN can consult. NGOs with consultative
status have certain privileges over other NGOs, such as being allowed to attend
sessions of the UN Commission on Human Rights.
Convention See TREATY
Corroboration Evidence which supports or confirms the truth of an allegation.
Court judgment Legally- binding decision in which a court expresses its conclusions in a case.
Covenant See TREATY
Declaration International law document which is not legally- binding, but sets out standards which
states undertake to respect.
Deportation Expulsion from a country.
Domestic law or legal system National law or legal system; law or legal system which is specific to a particular
country.
Enforcement ( of obligations) Making the obligations effective; ensuring that they are respected.
Entry into force ( of a treaty) The moment at which treaty obligations begin to apply.
Extra- judicial ( e. g. execution) Not imposed by a judge or following a legal process.
Fact- finding Carrying out an investigation to discover the facts.
Gross violations of human rights Particularly serious violations of human rights, such as torture or extra- judicial
killing.
Implementation ( of obligations) The way in which obligations are carried out or respected, or measures aimed at
achieving this.
Impunity Being able to avoid punishment for illegal or undesirable behaviour.
iv
Incommunicado detention Being held by the authorities without being allowed any contact with the outside
world, and/ or without the detention being acknowledged.
Individual complaint A complaint relating to a specific set of facts affecting an individual or individuals.
Instrument A general term to refer to international law documents, whether legally binding or
not.
Inter- governmental body A body or organisation composed of the governmental representatives of more than
one country.
Judicial procedure A procedure before a judicial body.
Jurisdiction ( of a state) Area or persons over which a state exercises its authority.
Jurisdiction ( of a judicial body) Matters which fall within the jurisdiction of a judicial or quasi- judicial body are
those which it is has the power to examine. This may also be referred to as being
competent to examine a matter.
Leave ( e. g. seeking leave to submit
an amicus curiae brief)
Permission.
Legally- binding If something is legally- binding on a state, this means that the state is obliged to act in
accordance with it, and there may be legal consequences if it does not do so. e. g. the
state can be brought before an international court and ordered to pay compensation to
a victim.
Litigation The process of bringing and conducting a case before a court.
Lodging a complaint Registering a complaint.
Mandate The source of the powers of a mechanism - the document which explains what the
mechanism is authorised to do.
Merits The stage of an individual complaint procedure at which the judicial body examines
the facts of a case and decides if a violation has occurred.
Monitoring Seeking and receiving information for the purpose of reporting on a subject or
situation.
Non- governmental actors Private persons acting independently of the authorities.
Observations Comments, assessment.
Perpetrator The person who has carried out an act.
Petition Request for action, e. g. request for a matter to be investigated.
Provisional measures Temporary measures which can be requested by a judicial or quasi- judicial body
before having completed its consideration of a case, in order to avoid irreparable
damage.
Quasi- judicial procedure A procedure before a body which considers cases in a similar way to a judicial body,
but which is not composed of judges and the decisions of which are not legally-binding.
Ratification The process through which a state agrees to be bound by a treaty.
Recommendation A suggested course of action. Recommendations are not legally- binding.
Reparation Measures to repair damage caused.
Reservation At the time of agreeing to be bound by a treaty, a state can register a reservation: a
statement which modifies its obligations under the treaty in some way.
Resolution Official decision of an international body, often adopted through a vote. It is usually a
recommendation and therefore not legally binding.
Rules of procedure The detailed rules which a judicial or quasi- judicial body adopts, setting out the way
in which proceedings before it should be carried out.
Sanction A penalty imposed for a state’s failure to respect its legal obligations.
State responsibility Holding a state accountable under international law.
v
State Party ( to a treaty) State which has agreed to be bound a treaty.
Submission See COMMUNICATION/ APPLICATION
Supervisory body A body set up to supervise the ways in which states implement their obligations
under a treaty.
Third party intervention See AMICUS CURIAE BRIEF
Transmission ( of an allegation) Sending the allegation, e. g. to the state concerned.
Treaty International law document which sets out legally- binding obligations for states.
Treaty article The term used to refer to individual sections of a treaty.
Treaty body A body set up by a treaty.
Violation ( of obligations) Failure by a state to respect its obligations under international law.
PART I - PRELIMINARY MATTERS
1
PART I - PRELIMINARY MATTERS
1. Introduction
2. How To Use This Handbook
2.1. Outline of core chapters
2.2. Terminology
2.3. Essential policy issues
3. Setting the Context
3.1. Introduction
3.2. What can you hope to achieve by reporting allegations of torture?
3.3. What is torture?
3.4. How does torture happen?
3.5. In what contexts might you receive or obtain allegations of torture?
3.6. Can allegations be made against non- governmental actors?
PART I - PRELIMINARY MATTERS
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1. INTRODUCTION
The mention of torture will, to most people, conjure up images of some of the most cruel forms of
physical and psychological suffering - the pulling out of fingernails, electric shocks, mock executions,
being forced to watch the torture of parents or children, rape. Such images produce feelings of intense
revulsion in the average individual, for few can remain unmoved by the infliction of such suffering on
a human being. Publicly, torture has been widely condemned, and indeed is absolutely prohibited by
every relevant human rights instrument since the Universal Declaration of Human Rights of 1948.
Violation of this prohibition is considered so serious that no legal justification may ever be found, even
in times of emergency or conflict. Yet a glance at any of the reports of the UN Special Rapporteur on
Torture, or of the European Committee for the Prevention of Torture, or indeed many a newspaper,
makes it quite clear that torture is not a phenomenon of the past. Whilst any public defence of torture
by a state official is unacceptable nowadays, it is undeniable that torture, and its close cousins, cruel,
inhuman and degrading treatment and punishment, have quietly shut the door behind themselves to
continue their thriving business in private.
The key to this door, however, is within reach of every individual who has ever experienced, witnessed
or been told of an incident of torture. It is information. Only by bringing such incidents to the attention
of the international community can eradication stand any chance of success. A variety of bodies exist
precisely with the aim of making sure that torture becomes a thing of the past. Yet without information
their hands are tied. It is rare for them to be able to examine a situation with their own eyes - their
powers of first- hand investigation are, for the most part, extremely constrained. How then can the UN
Special Rapporteur on Torture report on the scope of the problem world- wide, or in a particular
country, if no- one sends him information about it? How can the European Committee for the
Prevention of Torture know which categories of detainees are most at risk in any particular country if
it receives no reports? The answer to each of these questions is the same, and it is very simple: they
cannot.
If information is the key, then it is fair to say that non- governmental organisations ( NGOs) are the key-bearers.
The dependence of the international bodies on them is such that an absence of unhindered
NGO activity in a particular country may very well mean that the attention of the international
community will not be drawn to the situation in that country, even where the human rights violations
which take place there would merit it. This is because it is easier to focus attention and resources on
those states about which information is plentiful. The only way to pry open the eyes of the
international community to lesser known situations is to ensure that reliable information reaches it. In
this context, it is impossible to overestimate the importance of the role of NGOs in the battle for the
eradication of torture. While a few specialised NGOs have adopted excellent methods of reporting,
many less experienced NGOs are either unaware of the importance of the information they provide, or
have never had the opportunity to learn how best to present it. In the specific context of torture
allegations, it is unfortunately the case that a significant portion of the information received from such
NGOs is wasted, not because the allegations are unfounded, but simply because important facts are
omitted, because the allegation is worded in excessively political language or because it is submitted in
a language which the person receiving the allegation does not understand and does not possess the
resources to have translated. In other cases, perhaps because of a lack of familiarity with the different
functions, and often parallel roles, of the various international bodies, NGOs address their information
only to an authority which is not empowered to produce the result they would like - for example, the
UN Special Rapporteur on Torture cannot order a state to pay compensation to an individual victim of
torture, but the European Court of Human Rights can.
PART I - PRELIMINARY MATTERS
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This handbook is aimed primarily at less experienced NGOs, particular smaller NGOs working at a
national and community level, who wish to develop and become more involved in torture reporting. It
does not attempt to provide technical medical or legal instruction, but focuses rather on the process of
reporting itself. In this way, it seeks to enable such NGOs to produce high- quality information on both
individual incidents and patterns of torture, with a view to maximising the utility of the information to
the international bodies, as well as assisting those NGOs to select the most appropriate procedure or
procedures to which to address the information in light of their own desired result. The focus of the
handbook is torture, but much of what is said here would be equally relevant in the context of other
human rights violations. Even where an allegation may not amount to a violation of the prohibition of
torture, it could still be a violation of another human rights norm, such as the right to liberty and
security of person, or the right to a fair trial. Although such violations are not the object of this
handbook, readers should be aware that remedies also exist for violations of human rights other than
torture.
It should be borne in mind that following the guidelines set out in this handbook is not a guarantee of
obtaining a particular result from a particular international body, and that it will often seem as if little
has been achieved in a particular case. While frustration and disappointment is inevitable on such
occasions, it should be remembered at all costs that the struggle for the eradication of torture is a long,
slow process, and should not be measured in terms of individual results only. Each piece of reliable
information meticulously collected is a weapon in that struggle, and every door thrown open is one less
door for the torturers to hide behind.
PART I - PRELIMINARY MATTERS
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2. HOW TO USE THIS HANDBOOK
IMPORTANT:
Do not be intimidated by the size of this handbook - You do not have to read all
of the book in order to benefit from it and you do not have to be an expert to
use it.
If you become aware of information indicating that ill- treatment may have
occurred, but cannot or do not wish to take action yourself, pass it on to
someone else who can.
In order to acquire a good understanding of the overall process of preparing and submitting a torture
allegation, it will be necessary to read the volume in its entirety. However, each section may be read
independently of each other, and they do not necessarily need to be read in sequence. This means that it
should be possible to dip into the handbook as appropriate according to the particular need of the
reader. It is recommended, however, that anyone who is serious about submitting allegations of torture
should read each section carefully before too long.
As you will see as you leaf through this handbook, it aims to be as practical as possible. This means
that it has avoided exploring the academic or theoretical nature of concepts in too much detail. A large
amount of academic writing exists on the subject of torture and associated themes, and it was felt that
there was a need for a handbook of a much more practical nature for those who would like to know how
to report allegations of torture without feeling as if they need to complete lengthy legal and medical
studies to even begin to understand the subject. In addition, for such a handbook to be of practical utility
in the field, it needs to be of manageable size, with easy access to each piece of information sought
without having to extract it from lengthy passages of dense text. This means that it has proved
necessary to be extremely selective in choosing the content of this handbook. There are many areas
which those with an interest in learning more about the subject may wish to pursue. A selection of
contacts and references has been provided in Appendix 2 for those organisations or individuals who may
wish to seek further information or assistance.
Do not forget that, with the exception of the torture- specific procedures, many of the mechanisms
described may also receive complaints and allegations concerning a large range of human rights
violations other than torture. Much of what is said here would be equally applicable to such complaints.
As the focus of this handbook is torture reporting, the discussion will emphasise the requirements for
submitting torture- related information, but where such requirements are not fulfilled, it may still be
relevant to make a complaint on the basis of another right.
2.1. Outline of core chapters
Submitting a torture allegation is not just about writing a letter to an international body. It is about
knowing where to look and what to look for, and it starts with the very first word of the very first
interview with the person alleging torture. This is because the quality and consequent credibility of the
allegation will depend almost entirely on the information recorded about it. This means knowing which
questions to ask, and paying great attention to detail when keeping notes of the interview, because you
will not often get a second chance to fill in the gaps. It also requires a certain familiarity with both the
PART I - PRELIMINARY MATTERS
6
legal and practical contexts of torture, and an understanding of the objectives and likely results of
submitting the allegation. The three core sections which address the various stages of the process are the
following:
Part I, Chapter 3 - Setting the Context - This chapter provides a background for reporting
allegations: it discusses what might be achieved by reporting allegations of torture, explains briefly the
concept of torture and other forms of ill- treatment, identifies those places and situations where torture is
most likely to take place, and highlights the circumstances in which allegations are most likely to be
received. Finally, it addresses the thorny problem of the actions of non- governmental actors, and asks
what can be done with allegations concerning them.
Part II - Documenting Allegations - The objective of this part is to offer some guidelines on how to go
about collecting information about incidents of torture and other forms of ill- treatment. It highlights
those pieces of information which are essential to any allegation, provides some pointers on how to
carry out an interview with a victim or witness, and identifies the kind of supporting evidence which
should be collected in order to strengthen an allegation or make prosecution possible.
Part III - Responding to the Information Collected - This part introduces the various mechanisms
available for reporting allegations of torture and other forms of ill- treatment, particularly at the
international level, provides guidance on how to choose between them, and explains how best to prepare
and tailor your submission to the particular type of mechanism selected. It also acknowledges that there
may be situations where you do not wish to pursue an allegation in person, where you might need
support or advice on how to proceed, or where you might wish to seek political as well as legal action. It
makes some suggestions on where to turn for help in such cases.
2.2. Terminology
· He/ She: As a general rule, efforts have been made to use neutral rather than gender- specific
terminology throughout the text, unless it was felt that greater precision was necessary in a
particular context. In such cases, neutral terminology has usually been replaced by the term ‘ he or
she’. Exceptional references to ‘ he’ or ‘ she’ only ( in a non- gender specific context) should be
understood to encompass reference to both male and female.
· Torture/ Ill- treatment: As you will see in Chapter 3, the word ‘ torture’ has a very specific meaning in
human rights law, as a particularly severe form of ill- treatment. The use of the term ‘ torture’
throughout the text is not generally intended to be understood in the legal sense unless it is clear from
the context that this is the case. Unless otherwise specified in the text, considerations described as
applying to torture will apply equally to other forms of ill- treatment.
· Specialised terms: Readers should be aware that certain terms may have specialised or legal
meanings in their country, but may mean something different in another national system. The
terminology used throughout this handbook is not intended to have any legal implications, and should
be interpreted in a general sense - for example, the use of the word arrest is not intended to signify a
formal arrest, which might require charging the individual with an offence, but merely the
deprivation of liberty or holding of an individual by the police, including for informal questioning.
Similarly, the names used for certain types of custodial institutions, such as prisons, may refer to a
very distinct type of institution in one country, but be used in a more general way in another.
PART I - PRELIMINARY MATTERS
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2.3. Essential policy issues
Readers should be aware that there are a number of points which it is impossible to adequately address
in a handbook of this nature and size, but which should nonetheless be kept uppermost in their mind as
they work their way through it, due to their important implications. It is recommended that some time be
spent thinking about these points and if necessary, in the case of organisations, adopting appropriate
policies to follow.
· Security: Interviewers should exercise great care not to create unnecessary risk for anyone, be it
themselves, other members of their organisation, or the persons they are interviewing. It may be
stating the obvious to note that there are certain dangers inherent to human rights work, particularly
for local NGO staff, but it is important for human rights workers and fact- finders coming either from
outside the country or from other regions of the same country not to forget that there may be
consequences for those they leave behind. No- one should be placed at risk on account of an over-enthusiastic
individual. It is rare to be in a position to offer protection to those persons whose
allegations are being recorded, yet those who are not too afraid to come forward often believe that
speaking to persons coming from the outside offers some kind of protection. You should make sure
that they have an opportunity to give their informed consent ( see below) to the interview and to the
potential use of the information recorded.
· Professional ethics: A great deal has been written about the conflicts between duties towards the
greater community and the relationship between professionals, be it doctors or lawyers, and their
clients. In cases involving ill- treatment, these duties can find themselves in opposition, because while
the duty towards the community at large might suggest that all violations be made public for
purposes of the greater good, professional ethics generally dictate that confidentiality between
lawyers or doctors and their clients be respected in the best interests of the individual. This is a
dilemma which is most likely to concern doctors, and a number of ethical codes and declarations
exist for the medical profession, but it is present in any professional relationship, including that of a
human rights worker and an interviewee.
Doctors and other healthcare professionals who wish to seek advice on how to deal with such ethical
conflicts should contact a medical organisation, either national or international, which should be able
to provide support and guidance on the best way to proceed. Other professional organisations should
be able to provide similar assistance to their members, as should less formal professional support
networks or specialised NGOs.
· Informed consent: This involves making sure that when someone consents to something, like giving
an interview or submitting an allegation, they are fully informed of both the potential benefits and
negative consequences of the proposed course of action. The question is, what does fully informed
mean? This is a matter in which it is not advisable to adopt a systematic approach, but to assess each
particular situation individually.
There needs to be a balance between making sure that the interviewee is aware of any potential risks
involved in providing information and obtaining as much useful information as possible ( because
that, after all, is the primary purpose of the interview unless it is being carried out for therapeutic
reasons). Emphasising the potential risks may discourage the interviewee from talking, but it would
be unacceptable to prioritise information over an individual for whom there is a real risk. One
approach could be to decide this on the basis of the purpose for which you would like to use the
information. The golden rule must be that no- one should ever be named or identified as a source
unless they have given their express consent - if your intention is to name an individual, you must
obtain his or her consent to that course of action and all its implications, both positive and negative.
However, if your purpose is, for example, to have an informal interview with someone you do not
PART I - PRELIMINARY MATTERS
8
need to identify, perhaps because you are merely seeking corroboration in your own mind of a
statement by a previous interviewee or of general information, it may be counterproductive and
unnecessary to emphasise the potential risks. Genuine risks should never be concealed, but it is
important to assess what that actual risk is in each case rather than overestimating it and
unnecessarily reducing the value of the interview.
Do not forget that consent should be not only informed, but also freely given. Individuals should not be
pressured into giving their consent where it is clear that they do not wish to after having been fully
informed of the implications.
· Support and rehabilitation of the victim: For the human rights worker, there is an inevitable sense of
excitement involved in fact- finding and collecting allegations, and upon the discovery of evidence.
For the victim, however, talking about such personal and often horrific suffering may cause very
different responses. In certain ways it may be therapeutic, but it can also reopen very deep wounds
and cause profound psychological or even physical stress. It is imperative to offer as much genuine
and effective support as possible to the victim, both during and after the interview. In the case of
interviews with persons still in detention, this may be difficult, but you can at least take steps to
conduct the interview in a sensitive manner ( see Part II, Chapter 3.2). In the case of victims
interviewed outside a detention context, efforts should be made to provide them with support and
rehabilitation. This could mean making available professional counselling, or it could merely involve
letting the victim know that the door is always open. Organisations are encouraged to pursue this
question further with the specialised agencies listed in Appendix 2. Rehabilitation must be seen as an
integral part of working with torture victims. They are sharing something profoundly personal and
painful with you, and although you may see it as contributing to positive change, or furthering a
cause, it may create suffering for them - in return, your obligation is to make sure that they are
offered the support they need to deal with their suffering and to turn the process into a healing one.
PART I - PRELIMINARY MATTERS
9
3. SETTING THE CONTEXT
3.1. Introduction
This chapter seeks to answer some basic questions which you might have about the process of reporting
allegations of torture and other forms of ill- treatment.
· First and foremost, what is the point of the process? Can anything be achieved by using the
procedures and mechanisms explained in this handbook? [ Part I, Chapter 3.2]
· Next is to ask what we mean by ‘ allegations of torture’. What exactly is torture? Is there a formula
that tells you what it is? How can you be sure that the information you collect shows that torture has
occurred? Do you need to know this? [ Part I, Chapter 3.3]
· How does torture happen? In order to answer this, we ask who the perpetrators are, where and when
they are most likely to act and who are their most likely victims. [ Part I, Chapter 3.4]
· Are there any typical situations where information concerning incidents of ill- treatment might be
obtained? Are there any particular factors you should be aware of in such situations? What about
more unusual sources of information? [ Part I, Chapter 3.5]
· What happens where abuses are carried out by persons who do not have a connection to the state
authorities, for example, rebel forces in an internal conflict? Can allegations be made against them as
well? [ Part I, Chapter 3.6]
3.2. What can you hope to achieve by reporting allegations of torture?
Reporting allegations of torture to the international mechanisms can be of benefit both to the general
situation in a country and to an individual victim of torture.
3.2.1. Draw attention to a situation/ establish a pattern of violations
Governments whose agents commit human rights abuses prefer to keep such practices out of the public
eye, in order to escape condemnation. Reporting allegations to the international mechanisms goes a long
way towards preventing this, because it raises awareness of the real situation in a country. The
international community is most likely to take action with regard to situations about which it receives a
lot of information. The only way to increase the possibility of the rest of the world taking action against
human rights violations in a country is to make sure that it knows about the situation.
If the information available supports it, you should try to present evidence of a pattern of violations.
Consistent and regular information is evidence of such patterns and will raise more concern with the
international community than reports of a few isolated incidents. This is because it shows that the
problem is a serious one, and makes it more difficult for a state to argue that it is not involved or
unaware of the practices.
PART I - PRELIMINARY MATTERS
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3.2.2. Seek positive changes in a general situation
Drawing attention to a situation is not just about seeking condemnation or holding a state to account.
Even more importantly, it is about seeking constructive and long- term improvements in a country which
will contribute to the ultimate elimination of torture. This will often require changes both in the
legislative framework and in official attitudes to torture. Many of the international mechanisms make
suggestions to states about ways in which they can improve the general situation, for example through
the introduction of legal and practical safeguards which give greater protection to detainees. This could
involve legislation to reduce the period for which a detainee may be held without access to a lawyer, the
introduction of regular medical examinations by independent doctors for all persons in custody, or
measures to eliminate impunity ( discussed below). Usually, the recommendations of the international
bodies are just the beginning of a dialogue with the state in question, the purpose of which is to ensure
that the recommendations are implemented.
3.2.3. Combat impunity
Bringing torture into the public eye in order to call states to account is one result of reporting torture
allegations. On a different level, torture reporting can also help to cast light on the individuals who
carry out such practices, to make sure that they cannot continue to engage in such behaviour without
consequence. Ideally, this should be done by initiating prosecution within the domestic legal system.
However, where prosecution is not or could not be effective, many of the international bodies are quick
to condemn official tolerance of torture and to require or recommend that a state take measures to
eliminate impunity. As long as perpetrators are able to ‘ get away with it’, and indeed in some cases find
that their chances of promotion are increased by using torture to obtain results in investigations, there is
no incentive for them to give up practising torture and other forms of ill- treatment.
If a state allows impunity for perpetrators, this also raises an issue of state responsibility under
international law. Many states actually have an obligation under a number of conventions, including the
UN Convention Against Torture, to make sure that individuals who have carried out torture are held
responsible for their actions. If a state does not prosecute individuals which it knows to have been
involved in torture, or does not allow another state to do so, it may well be failing in its obligations
under international law.
3.2.4. Seek a remedy for an individual victim
The foregoing objectives may seem somewhat indirect and long- term, and may not appear to provide
much of a remedy for individual victims. Apart from the longer- term benefits for the individual of living
in a country with an improved human rights record, there are several more immediate or direct remedies
which may be obtained by reporting allegations.
3.2.4.1. A finding of violation
Many of the international treaty bodies described are able to pronounce on the question of whether or
not torture or a related violation has taken place. This means that they can make an authoritative
declaration that the state has breached its obligations under international law in relation to a particular
individual. Even if it awards no further remedy to the individual, the effect is that there has been a
public finding of the culpability of the state in question, and that the state has been forced to account for
its behaviour.
PART I - PRELIMINARY MATTERS
11
3.2.4.2. Holding perpetrators to account
Some of the mechanisms can request or order that an effective investigation be carried out into an
allegation of torture, and that the perpetrator be prosecuted for his behaviour. As is the case for
eliminating impunity generally, this is important to reassure a victim that a perpetrator is not able to
torture without repercussions.
3.2.4.3. Reparation
Reparation is about repairing the damage which has been caused to an individual. A number of the
international judicial bodies are empowered to order a state to make reparations in cases where they
have made a finding of violation. It can be awarded in a number of forms. Traditionally, it has often
involved the award of monetary compensation, but it is becoming more common for other types of
reparation to be ordered as well. Monetary awards are normally calculated on the basis of actual
monetary loss, as well as moral damages, which means estimating the extent of suffering caused to the
individual and/ or his or her family and giving it a monetary value. Less traditional forms of reparation,
which in many ways are a much more appropriate and effective way of addressing the consequences of
violations, might include an order to open a school or hospital in a community which has been the
subject of violations, requiring the state to inform relatives of disappeared or murdered persons of the
location of the bodies of the dead, ordering that the state contribute financially to the rehabilitation of
the victim, or even that the state make a public apology for what has taken place.
3.2.4.4. Preventing the deportation of an individual to a country where he or she would be at risk of
torture
A number of the mechanisms are prepared to take urgent action to prevent the deportation of individuals
to countries where they are believed to be at risk of torture. The individual must be able to show that he
or she is personally at risk and that the risk is a continuing one - if this can be established, the body may
request that the state from which asylum is being sought does not deport the person, at least until the
mechanism in question has had an opportunity to consider the case. Such requests are not necessarily
binding on the state, but are often respected.
3.3. What is torture?
3.3.1. Introduction
Deciding whether or not a set of facts amounts to torture can be tricky. There are certain types of
treatment which most people will instinctively recognise as being unacceptable. There are others,
however, which are less clear- cut, or which may depend on cultural factors. It is important to remember
that when you submit an allegation to an international mechanism, you are seeking to show that the
facts constitute torture or ill- treatment in a legal sense, not merely in your opinion. This section will
examine what this might mean, and what the implications are for someone wishing to submit an
allegation.
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12
3.3.2. What does international law say about the meaning of torture?
The basic definition of torture is that contained in the UN Convention Against Torture ( 1984).
According to Article 1( 1), the term means :
“ any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed or is suspected
of having committed, or intimidating or coercing him or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity. It does not include pain or suffering arising only from, inherent
in or incidental to lawful sanctions.”
From this definition, it is possible to extract three essential elements which constitute torture:
· The infliction of severe mental or physical pain or suffering
· By or with the consent or acquiescence of the state authorities
· For a specific purpose, such as gaining information, punishment or intimidation
Torture is an emotive word, but one which should not be used lightly. As you can see from the above
definition, torture is characterised and distinguished from other forms of ill- treatment by the severe
degree of suffering involved. It is therefore important to reserve the term for the most objectively
serious forms of ill- treatment.
Cruel treatment, and inhuman or degrading treatment or punishment are also legal terms which refer
to ill- treatment causing varying degrees of suffering less severe than in the case of torture. Forms of ill-treatment
other than torture do not have to be inflicted for a specific purpose, but there does have to be
an intent to expose individuals to the conditions which amount to or result in the ill- treatment. The
essential elements which constitute ill- treatment not amounting to torture would therefore be reduced
to:
· Intentional exposure to significant mental or physical pain or suffering
· By or with the consent or acquiescence of the state authorities
In order for the international bodies to make a distinction between the different forms of ill- treatment
and assess the degree of suffering involved, they must take the particular circumstances of the case and
the characteristics of the particular victim into account each time. This makes it difficult to identify the
exact boundaries between the different forms of ill- treatment, because those circumstances and
characteristics will vary, but it does make the law more flexible because it allows it to adapt to the
circumstances. The important point to remember is that all forms of ill- treatment are prohibited under
international law. This means that even where treatment is not considered severe enough ( in legal terms)
to amount to torture, the state may well still be found to have violated the prohibition on ill- treatment.
PART I - PRELIMINARY MATTERS
13
3.3.3. What does this mean in practical terms?
International law gives us two main guidelines to apply in assessing whether or not a set of facts
amounts to torture:
· The essential elements contained in the definition of torture should be supported by the facts.
· Torture may be distinguished from other forms of ill- treatment by the severe degree of suffering
involved and the need for a purposive element.
3.3.3.1. Essential elements
You will see from the extract of the UN Convention Against Torture cited above that the legal definition
of torture is quite abstract in nature. It does not refer to specific types of ill- treatment or provide a list of
prohibited techniques. Instead, it sets out a number of essential elements which are required for an
incident to be considered as a possible case of torture in the legal sense. The elements necessary for
treatment to amount to ill- treatment other than torture are similarly abstract. These elements may be
recalled as follows:
· WHAT WAS DONE?: Severe physical or mental pain or suffering has been deliberately inflicted
( torture) or intentional exposure to significant mental or physical pain or suffering has occurred
( ill- treatment other than torture).
· WHO DID IT?: The state authorities either inflicted this suffering themselves, or else knew or
ought to have known about it but did not try to prevent it.
· WHY WAS IT DONE?: The suffering was inflicted for a specific purpose, such as gaining
information, punishment or intimidation ( torture only).
What exactly these elements consist of is left for interpretation by the international monitoring bodies.
They have the responsibility of developing consistent interpretations of the definition of torture and
other forms of ill- treatment and must make sure that they apply the same standards in each case. This
means that you, as an individual or organisation ( NGO), do not have to decide whether the ill- treatment
inflicted on an individual amounts to torture or something else, but by documenting facts which support
the essential elements, you provide evidence for the international bodies to decide.
3.3.3.2. Degree of suffering
Torture is distinguished from other, lesser, forms of ill- treatment by the severe degree of suffering
involved. This is perhaps the most difficult aspect of torture to assess. The two other essential elements
are to a large extent objectively verifiable - it is generally objectively possible to establish that the
perpetrator had a link with the state, or that the torture was inflicted for a specific purpose. The nature
and degree of suffering experienced by an individual are another matter. They may depend on many
personal characteristics of the victim - for example, sex, age, religious or cultural beliefs, health. In
other cases, certain forms of ill- treatment or certain aspects of detention which would not constitute
torture on their own may do so in combination with each other.
Certain types of treatment appear objectively to fall into the category of torture - for example, electric
shocks to the genitals, or the pulling out of fingernails. Torture is not, however, limited to such familiar
examples - it encompasses many forms of suffering, both physical and psychological in nature. It is
PART I - PRELIMINARY MATTERS
14
particularly important not to forget about psychological forms of ill- treatment - very often these can
have the most long- lasting consequences for victims, who may recover from physical injuries yet
continue to suffer from deep psychological scarring. Forms of ill- treatment which have been found to
amount to torture, either alone or in combination with other forms of treatment, include:
· Falaka/ falanga: beatings on the soles of the feet
· Palestinian hanging: suspension by the arms while these are tied behind the back
· Severe forms of beatings
· Electric shocks
· Rape
· Mock executions
· Being buried alive
· Mock amputations
There are, however, also many ‘ grey areas’ which do not clearly amount to torture, or about which
there is still disagreement, but which are of great concern to the international community. Examples
include:
· Corporal punishment imposed as a judicial penalty
· Some forms of capital punishment and the death- row phenomenon
· Solitary confinement
· Certain aspects of poor prison conditions, particularly if combined
· Disappearances, including their effect on the close relatives of the disappeared person
· Treatment inflicted on a child which might not be considered torture if inflicted on an adult
One particularly significant factor which may affect an assessment of the severity of the degree of
suffering experienced is that of culture. It is important to be aware that different cultures, and indeed
individuals within a particular culture, have different perceptions of what amounts to torture. This can
be relevant in two ways - on the one hand, it can mean that behaviour which is thought of as torture by
a culture or individual victim, may not normally constitute torture in the eyes of the international bodies.
On the other hand, it can mean that treatment which is consistently considered by the international
community to amount to torture is not viewed as such by the person who has been subjected to it. For
example, in one country, beatings, even severe beatings, may not be considered torture but rather
normal practice, whereas tearing a woman’s clothing ( without more) may be. It may even happen that
treatment which is considered unlawful at the international level is actually lawful at the national level.
In such cases, you should not be dissuaded from reporting the allegation, because the international
bodies will be guided by international law. Remember that even where treatment is not found to amount
to torture, it may still amount to another form of prohibited ill- treatment.
In order to make sure that possible cultural variations are taken into account when submitting an
allegation of torture, you should:
· Explain the significance of cultural attitudes to certain types of treatment in your allegations and
reports, because this may affect the international body’s assessment of the degree of suffering.
· Make sure not to omit any details of the treatment to which a person has been subjected, because
facts which you may not consider important may actually be very relevant to the allegation.
· Remember that victims too may leave out details which they do not think are important, and that they
should be encouraged to be as complete as possible about what has happened to them. ( See Part II,
Chapter 4 for guidelines on which information may be most relevant)
PART I - PRELIMINARY MATTERS
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3.3.4. Conclusion: what is torture?
All of this discussion leads to the question: how can you be sure that the facts in your possession
amount to torture or ill- treatment? The answer is quite simple - you cannot be sure, but you do not need
to be.
· Your responsibility, as an individual or NGO submitting an allegation of torture, is to ensure that
the information you are providing supports the three essential elements which constitute the legal
definition of torture ( or two if you are alleging ill- treatment).
· It is the responsibility of the international bodies to determine exactly what amounts to torture or
ill- treatment and what does not.
The interpretation of what constitutes torture is constantly evolving. This may appear to complicate
matters, but in fact it allows the international bodies to be relatively open- minded when assessing forms
of ill- treatment which have not previously been found to amount to torture. For the person wishing to
submit an allegation of torture, it means that certainty about whether or not something is torture is not
necessary, but this does not mean that there are no minimum criteria. Remember that your task is to try
to establish the essential elements.
You must show that:
· Severe physical or mental pain or suffering has been deliberately inflicted ( torture) or that intentional
exposure to significant mental or physical pain or suffering has occurred ( ill- treatment other than
torture).
· The state authorities either inflicted this suffering themselves, or else knew or ought to have known about
it but did not try to prevent it
· In the case of torture ( though not required for other forms of ill- treatment), the suffering was inflicted for a
specific purpose, such as gaining information, punishment or intimidation
3.4. How does torture happen?
3.4.1. Who are the perpetrators?
As is emphasised in the section describing what is torture, it is necessary that the behaviour in question
be carried out by, or with the approval of, a representative of the authority in power. This means that
any state official could potentially be involved in torture or ill- treatment. However, considering the
common purposes of torture, which may be to obtain information during an interrogation, or,
increasingly, to intimidate the population as a whole in the face of insurrection or disturbance, it is
unsurprising that the principal perpetrators are those officials involved in the criminal investigation
process, and those responsible for the security of the state.
This means that those most likely to be involved in torture and other forms of ill- treatment include :
· The police
· The gendarmerie ( in countries where this institution exists)
· The military
· Paramilitary forces acting in connection with official forces
· State- controlled contra- guerrilla forces
PART I - PRELIMINARY MATTERS
16
But could also include :
· Prison officers
· Death squads ( torture following disappearance and preceding killing)
· Any Government official
· Health professionals - doctors, psychiatrists or nurses may participate in torture either by act ( direct
involvement which may include certifying someone fit for interrogation) or by omission ( falsifying
medical reports or failure to give appropriate treatment)
· Co- detainees acting with the approval or on the orders of public officials
In addition, torture often occurs in the context of armed conflicts, particularly internal conflicts
involving forces in opposition to the authorities in power, and which control sections of the territory. In
such circumstances, torture and other forms of ill- treatment may also be inflicted by:
· Opposition forces
· The general population
( See Part I, Chapter 3.6 for a discussion of allegations against non- state actors)
3.4.2. Who are the victims?
Anybody can be a victim of torture - man or woman, young or old, religious or atheist, intellectual or
farmer. Very often the determining factor may be membership of a particular political, religious, or
ethnic group or minority. However, no- one should be considered immune.
There is a tendency among those who report allegations of torture and other forms of ill- treatment to
concentrate on information relating to “ political prisoners”, those involved in politics and usually in
opposition to the authorities in power. However, common criminals, particularly those accused of
serious crimes, are very typically the victims of torture, perhaps for the purpose of obtaining
information or a confession, or simply for the purpose of extortion or intimidation. Where the purpose is
to spread terror among a population, all are equally at risk. It is very important not to give the
impression that only “ political prisoners” are at risk, by focusing on them to the exclusion of other
victims who may also be very much at risk.
The identity of the victim is important because:
· Specific groups, such as children, women, the elderly, or religious persons, may be more vulnerable
to the effects of ill- treatment, making it easier to consider that the degree of suffering is severe
enough to amount to torture.
· It helps to identify patterns of abuse being directed at a particular group of victims.
· Additional international mechanisms which are specific to particular groups can be used - e. g. UN
Special Rapporteur on Violence Against Women.
Specific examples where the identity of the victim may be of particular relevance include:
· Children: These are considered an especially vulnerable group. In particular, it should be emphasised
that the effects of a certain type of ill- treatment on a child may be different to the effects which
would be suffered by an adult undergoing the same treatment. It should also be noted that one form
of ill- treatment which may have very far- reaching effects on a child is being made to witness the
PART I - PRELIMINARY MATTERS
17
torture of a parent or close relative. Similarly, threatening or forcing parents to witness the torture of
their child may have severe psychological effects on the parents.
· Gender specific torture: Rape as a method of torture is not exclusive to female victims, but it is
nonetheless commonly used in a gender- specific form, as a means of emphasising feelings of
weakness and subordination in the victim or in the community. Cases of male rape may also be
under- reported for many reasons, among which is the lack of awareness of the interviewer. Further
examples where the gender of the victim may be relevant include the case of pregnant women, who
are especially vulnerable, and women of child- bearing age, who may become pregnant as an
aggravated effect of rape.
· Religious persons: There are examples where ill- treatment has been found to amount to torture or
inhuman treatment on account of the religious character of the victim e. g. devout persons subjected
to religious taunts; the plucking of the beard of an Orthodox priest.
· Ill- treatment targeting a person’s profession: In one case, psychological torture was found to have
occurred where a piano player was forced to undergo simulated amputations of his hands.
A more complete list of the types of characteristics which should be noted will be provided in Part II,
Chapter 4.1.
3.4.3. Where is torture most likely to occur?
Torture may take place in any location, especially in countries where there is a widespread climate of
violence. High- risk locations are those where interrogation is likely to take place, such as police and
gendarme stations, and any other place of detention, especially pre- trial detention.
While the majority of such places will be familiar to those in the local area and are official places of
detention, it is fairly common for other, unacknowledged places of detention to exist also. These could
range from installations which are regularly used for such purposes, ( e. g. a disused factory or
Government buildings), to those which are used in a particular case because they are convenient on that
occasion. ( e. g. a school building used as a holding area, or even open land).
Remember that torture does not have to be confined to a place of detention and may occur in the
victim’s own home or during transportation to an official place of detention.
3.4.4. When is torture most likely to occur?
Rather than focusing too firmly on locations as such, it is probably more useful to think in terms of the
stage of the process of arrest and detention at which detainees are most at risk.
· The greatest risk of torture and other forms of ill- treatment to individuals is in the first phase of
arrest and detention, before they have access to a lawyer or court. This risk persists as long as the
investigation lasts, irrespective of where a suspect is being held.
· Incommunicado detention ( i. e. detaining somebody either without acknowledgement or without
allowing them access to anyone, such as their lawyer or family) is probably the single highest risk
factor for torture because it means that there is no external monitoring of the interrogation process.
Sometimes, the security forces only officially register the individual once they have completed the
initial interrogation.
PART I - PRELIMINARY MATTERS
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· Torture is usually less common in regular prisons for convicted prisoners as the investigation
process has been completed, but it should be noted that many prisons also hold remand prisoners
who are pending trial, as well as sentenced prisoners. A risk for remand prisoners should not be
ruled out, especially if the security forces themselves run the prison or are known to be closely
associated with it. The risk to remand prisoners may not necessarily exist within the institution itself,
but instead with the possibility that they may be transferred back into the custody of the investigating
authorities.
· In both the initial detention phase and also after transfer to a prison, it should be remembered that the
conditions of detention themselves may amount to inhuman or degrading treatment, and thus should
also be documented ( See Part II, Chapter 4.1)
· Torture may also occur following abductions. In temporary abductions the victim is released several
hours or days later. In the case of a ‘ disappearance’ evidence indicates that the victim is held by or
with the acquiescence of the authorities, yet this is not acknowledged by the authorities. The victim
may not be found, or may be found dead. Both forms of abduction may involve torture and are used
as a means of instilling fear or intimidation in the community. While cases of disappearance involve
violations other than torture, ( e. g. right to life, right to liberty and security of person) any evidence
that torture occurred during the disappearance should be documented. The disappearance could also
itself be found to amount to torture, either for the victim or for the relatives of the victim.
3.5. In what contexts might you receive or obtain allegations of torture?
Allegations of torture and other forms of ill- treatment may be received in a wide range of contexts and
places. In general, they are unlikely to be received in the place where the torture has occurred, but rather
in the very next place where the torture victim feels able to speak freely. This could be upon transfer to
prison if he has been tortured while in police custody, in court, upon release and return to the
community, or even upon leaving the country.
General contexts in which you may receive or obtain allegations could include:
· Situations of political unrest or generalised violence
· Conflict zones
Specific contexts in which you may receive or obtain allegations could include:
· Visits to custodial institutions
· Medical settings
· Camps and centres for refugees and internally displaced persons
· Asylum applications
Most of these contexts are self- evident. However, information can also sometimes be found in unusual
places of which one might not immediately think, and it pays to be resourceful. This is particularly true
of information which is able to support or provide evidence of an allegation which has been made orally
in an interview or elsewhere. Possible places to look or people to talk to include:
· Court files
· Prosecution files
· Medical reports
PART I - PRELIMINARY MATTERS
19
· Records of admission and release in police stations and prisons ( inconsistencies and gaps in such
records are often a sign of an irregular practice)
· Records of attendance at a place of employment or education ( this could help to confirm a claim that
an individual was unable to attend for a certain period because of injuries resulting from torture)
· Local newspapers or news reports
· Community support groups, e. g. youth groups
· Religious personnel
· Other detainees
The typical contexts in which torture allegations may be received need little elaboration. However, there
are some settings in which it would be useful to be aware of certain specific factors.
· Conflict zones: You should be aware that violations in such areas are likely to be perpetrated by both
parties to the conflict, whether governmental or not, and it is important to keep accurate records of
the alleged perpetrators in each case, or of any characteristics which may help to identify them.
Remember also that the fear and intimidation factor is likely to be very great as civilians are often
subject to persecution by both parties to discourage them from offering support and assistance to the
opposite party. See Part I, Chapter 3.6 for possible courses of action in response to allegations of
torture by non- governmental actors.
· Visits to custodial institutions:
Detainees are understandably less willing to make allegations of ill- treatment while still in the custody
of the investigating forces ( pre- trial detention), and in such settings you should be especially aware
of the security of the individual. As a general rule, detainees are more willing to discuss their
experiences at the hands of the investigating authorities once they have been convicted and are held
in a regular prison.
The distinction between the two categories of places of detention and their respective sense of safety can
be blurred, however, by several factors: in some countries, both pre- trial and convicted prisoners
may be held in the same institution; in others, the staff of one or both types of institutions may
originate from the very same authority as is responsible for the investigation, such as the police. In
such cases, you should be aware that being transferred to another place of detention does not
necessarily mean being transferred out of reach of the investigating authorities.
Access to custodial institutions is difficult, but certain NGOs may have privileged access by agreement
with the authorities, usually to convicted prisoners only, to provide health care, food or as part of a
system of prison visiting. In such cases, however, it should be borne in mind that confidentiality may
be a condition of access ( see in particular the activities of the International Committee of the Red
Cross, Part III, Chapter 7.2). Other persons who may have access to prisons include lawyers and
healthcare professionals.
In such circumstances, three broad categories of allegations may be received.
First, particularly in the case of new arrivals, allegations may be received about treatment experienced
prior to arrival at the institution, whilst in the hands of the investigating authorities.
Second, allegations may be received about individual incidents which have occurred within the
institution, such as abuse of an individual by a guard or by other inmates with the approval or
encouragement of guards, a specific event such as a riot in which named individuals were attacked
PART I - PRELIMINARY MATTERS
20
by guards, a particularly extreme case of solitary confinement, or the case of an individual who has
been refused adequate medical treatment for a serious condition.
Lastly, information can be obtained about general conditions in the institution, such as the living space,
hygiene, a particularly distressing aspect of the institutional regime, unacceptable methods of
punishment such as the use of chains or fetters, or prolonged isolation. Where possible, interviewing
prisoners individually, rather than in groups, allows allegations about the institution to be better
corroborated. It is worth bearing in mind that prisoners who have been in the institution for a long
time will be more familiar with the general conditions than those who have just arrived.
A talk with the doctor at the institution can be very informative, particularly if he is willing to show
you the medical files of prisoners. Of course, such access to medical files should be consistent with
the need to protect the identity of individuals where confidentiality is expected ( see note on
confidentiality in Part I, Chapter 2 above). Where medical examinations are carried out upon arrival
at a prison, it is particularly useful to ask to see the medical report of this first examination, as it
may provide evidence of injuries received while in police custody, or show that the individual was in
good health on arrival and may have received injuries or become ill subsequently. Doctors may be
more inclined to show you evidence of events which occurred outside of their institution as this is
less likely to have implications for them.
IMPORTANT : You should be aware that there may be repercussions for the doctor depending on how
you intend to use this medical information. If possible, this should be discussed with the doctor or
other health staff, and consent obtained if names of either the staff or the victim are to be used ( see
note on informed consent in Part I, Chapter 2 above).
· Medical settings:
In countries where torture is a regular occurrence, doctors are sometimes early witnesses, when they are
called to treat the resulting injuries or psychological trauma of ill- treatment. In some countries there
is an area of medicine, known as forensic medicine, in which the doctors have specialised knowledge
of types and probable causes of injuries or disease. For legal reasons the forensic doctor is often
asked by the police or courts to examine victims of violence and should keep detailed records. While
doctors may be too afraid to report cases themselves, requesting a medical file, either from the
forensic doctor, the family doctor, hospital or prison doctor, if this is possible, could yield valuable
information. Again the issues of consent and confidentiality should be discussed ( see Part I,
Chapter 2).
Professional ethics requires doctors to make accurate reports, and yet in some cases there may be strong
pressure to omit findings or even falsify reports. One of the difficulties of medical reports may be
that injuries are often described without listing a probable cause. In such a case, it may be possible
to ask an independent expert to interpret the findings to see if they are consistent with allegations of
torture.
· Camps and centres for refugees and internally displaced persons:
Camps and centres for forcibly displaced persons, whether within or outside their own country,
particularly in conflict zones, are inevitably home to many deeply traumatised persons who have
both experienced and witnessed torture, and who may wish to make allegations of such. If
information is sought in connection with a specific incident or series of events, these camps will often
contain persons originating from the same region or village who can provide corroboration. Some
caution will nonetheless need to be exercised in consequence, first because there may be a possibility
of obtaining an unbalanced account of events if the population of the camp consists mainly of one
PART I - PRELIMINARY MATTERS
21
group, and secondly because perpetrators may also have concealed themselves in the camp and may
give misleading information. Where information obtained from refugees appears to indicate that
widespread torture is one of the causes of the refugee flow, you should consider passing on the
information to the UN High Commissioner for Refugees - see Part III, Chapter 7.2.
· Asylum applications: Allegations of torture of an individual in his home country may form the basis
of a claim for asylum in a second country. Although the elapsed time since the alleged ill- treatment
can mean that collecting evidence is more difficult, the basic principles outlined in this handbook
should still be followed ( see Part II, Chapter 5). It is also worth being aware that individuals may
sometimes inaccurately claim that they have been tortured, solely in order to avoid deportation.
3.6. Can allegations be made against non- governmental actors?
Many human rights abuses, including torture, occur in the context of political unrest, tensions and
conflict. In such circumstances, it is often the case that the perpetrators of torture are not only state
officials, but also private persons with no connection to the state ( usually referred to as non-governmental
or non- state actors). This is a very difficult and very real problem from many angles, but
for the purposes of this handbook, the question is: Can any action be taken in response to allegations
of torture by non- governmental actors?
3.6.1. Can action be taken under human rights law?
You will have seen earlier in this chapter that the basic definition of torture contained in the UN
Convention Against Torture makes reference to the actions of ‘ a public official or other person acting in
an official capacity’. Does this mean that international human rights law considers private acts of
cruelty to be acceptable? No - the definition is limited to persons acting in an official capacity because
states are expected to deal with the actions of private persons themselves through their own domestic
law.
Human rights law does foresee the possibility that states might not do this, however - consequently, a
state can be held responsible not only for its actions ( the deliberate practice of torture), but also for its
omissions ( failure to take effective measures to prevent torture from occurring/ failure to prosecute
perpetrators/ failure to investigate allegations).
What consequences does this have for the possibility of taking action in response to allegations of
torture by non- governmental actors? It means that:
· International bodies responsible for implementing international human rights law cannot in principle
examine the possible responsibility of a non- governmental actor for the act of torture. This applies
particularly to treaty bodies, which can only assess the responsibility of States Parties to the
conventions which created them.
· They can examine the possible responsibility of the state in which the act took place for its failure to
take effective measures to prevent the act of torture.
· They can also examine the possible responsibility of a state wishing to expel a person to a country
where he or she is at risk of torture, including at the hands of non- governmental actors.
PART I - PRELIMINARY MATTERS
22
3.6.2. Do other types of law prohibiting torture apply to non- governmental actors?
3.6.2.1. International law of armed conflict
The international law of armed conflict ( ILAC) is a type of law which applies only in situations of
armed conflict, both international ( where the conflict involves two or more states) and non- international
( where the conflict takes place within the territory of a single state, and may involve governmental
forces and one or more opposition forces, or only non- governmental forces divided into opposing
factions).
ILAC prohibits the torture, cruel, inhuman or degrading treatment of any person in the power of the
other party including, in the case of non- international armed conflict, where that party is non-governmental
in nature. ( Common Article 3 of the Geneva Conventions of 1949)
This appears promising - here is a legal obligation binding on non- governmental actors not to practise
torture. Unfortunately, there are difficulties in implementing this obligation, because ILAC relies mainly
on domestic criminal law for its enforcement, which means that either perpetrators have to be captured
and tried by the governmental party, or the non- governmental forces need to have their own legal system
incorporating such obligations.
Certain particularly grave violations of ILAC are considered so serious that it is also possible for any
state to try a perpetrator in its domestic courts ( universal jurisdiction), but only if its domestic
legislation allows this. Few states are as yet willing to do this, but this may change in the future. In
recent years, it has proved possible to establish international tribunals on two occasions specifically to
examine possible violations of ILAC - in the case of the Former Yugoslavia and that of Rwanda.
However, they can only examine matters arising from those particular conflicts. An even newer
development is the creation of a permanent International Criminal Court ( ICC) which will be able to
examine, among other things, matters relating to violations of ILAC. However, the ICC has not yet
begun to function and it is not yet clear what role, if any, NGOs will have in the process.
3.6.2.2. Crimes against humanity
Crimes against humanity are particularly grave violations of human rights committed on a large scale.
They are generally considered to include torture and other inhuman treatment, when committed as part
of a widespread or systematic attack directed against a civilian population, with knowledge of the
attack. They do not have to be committed in the context of an armed conflict and the policy to commit
the attack can be carried out by a non- governmental group. This means that it may be possible to hold
non- governmental actors responsible for acts of torture committed in the context of a wider policy.
As with ILAC, there are difficulties with the enforcement of crimes against humanity. It will be possible
for the ICC to examine allegations of such crimes when it begins to function, but it is difficult to predict
how this will work. This entire category of crimes is considered so serious that it is also possible for
states to exercise universal jurisdiction over them, but only where their national law allows this, as with
grave violations of ILAC. A further consequence of their seriousness is that there is no time limit for the
prosecution of perpetrators - with some crimes, prosecutions must be started within a certain amount of
time, e. g. 10 years after the incident, but such limits do not apply to crimes against humanity.
PART I - PRELIMINARY MATTERS
23
3.6.2.3. National law
Like public officials, non- governmental perpetrators of torture and other forms of ill- treatment can be
prosecuted under the national law of the country where the torture or ill- treatment occurred. The exact
law under which this may be done will vary from one country to the other, and could include legislation
implementing ILAC or crimes against humanity as previously mentioned. More commonly it could take
the form of, for example, a prosecution for assault, causing grievous bodily harm or rape.
3.6.3. Conclusion: how can you use information alleging torture by non- governmental actors?
This will depend on what you hope to achieve with the information. Possible courses of action are far
more limited than where your allegation concerns official action, and you should be aware that the
likelihood of obtaining concrete results is low. Nonetheless, if you present your information the right
way, you may be able to increase the possibility of achieving something.
· If you are seeking an individual remedy:
You should start by seeking a remedy under the domestic law of the state in which the torture took place
( as you will see in Part III, this is the usual first step to seeking an individual remedy). Remember to
check if there is any implementing legislation which allows prosecution on the basis of ILAC or crimes
against humanity.
If this is unsuccessful, you may be able to apply to an international body. Under human rights law, it is
not possible to hold non- governmental actors directly accountable, so you should proceed against the
state as you would with a regular allegation, but you will need to base your submission on an argument
that the state has failed in its obligations by omission - that it has failed to take steps to prevent torture,
to investigate the allegation adequately or to prosecute the perpetrator.
It is also possible to apply to an international body to prevent the expulsion of a person to a country
where he or she is believed to be at risk of torture, even if this risk is at the hands of non- governmental
actors. This has been confirmed only quite recently, and has been applied by both the Committee
Against Torture and the European Court of Human Rights in the case of proposed expulsions to
Somalia. It is possible that this will prove to be a special case because of the complete absence of
central governmental authority in that country, such that the non- governmental actors could be
considered to be carrying out the functions of a Government and thus “ acting in an official capacity”.
However, these are encouraging precedents suggesting that the important factor is the risk itself rather
than the origin of the risk.
· If you are seeking a remedy of a more general nature:
As with those which receive individual cases, international bodies examining a state’s general human
rights situation are not really in a position to take concrete action in relation to violations by non-governmental
actors, but it is very important for them to be informed of the role of non- governmental
actors in that general situation. This helps them to understand the context and to know what the
Government should in fact be held responsible for. Very often, governments will try to argue that any
abuses which occur are perpetrated by opposition forces - if you can provide accurate information about
what those forces do and do not do, the international body will be better equipped to respond to such
arguments.
PART I - PRELIMINARY MATTERS
24
Ultimately, it may be that the most effective course of action is to make sure that the actions of the non-governmental
actors are public knowledge - both by sending the information to the international bodies
for context- setting purposes, and through active lobbying ( see Part III, Chapter 7 for suggestions
regarding lobbying). Where international human rights law cannot provide a great deal of assistance in
cases involving non- governmental actors, public pressure may still do so.
PART I - PRELIMINARY MATTERS
25
SUMMARY
PART I - PRELIMINARY MATTERS
1. What can you hope to achieve by reporting allegations of torture?
· Draw attention to a situation/ establish a pattern
· Seek positive changes in a general situation
· Combat impunity
· Seek redress for an individual victim:
A finding of violation
Holding perpetrators to account
Reparation
Preventing the deportation of an individual to a country where he or she is believed to be at risk of torture
2. What is torture?
Torture can be difficult to define, but you do not need to do so for the purpose of reporting allegations. You must,
as a minimum, be able to show that:
· Severe physical or mental pain or suffering has been deliberately inflicted ( torture) or that intentional exposure to
significant mental or physical pain or suffering has occurred ( ill- treatment other than torture).
· The state authorities either inflicted this suffering themselves, or else knew or ought to have known about it but did
not try to prevent it.
· In the case of torture ( though not required for other forms of ill- treatment), the suffering was inflicted for a specific
purpose, such as gaining information, punishment or intimidation.
3. How does torture happen?
Who are the perpetrators?
· Anyone acting in an official capacity: This might include police, gendarmes, security forces, prison officers,
military personnel, Government officials or civil servants, political superiors, ‘ death squads’, medical personnel.
· Members of armed opposition groups
Who are the victims?
· Anyone
Where is torture most likely to occur?
· Any location ( including during transportation or in a victim’s own home), but especially any place where
interrogation is likely to take place.
When is torture most likely to occur?
· In the early stages of being held, particularly if being held incommunicado ( without access to a lawyer or
family). The risk persists as long as an investigation lasts.
PART I - PRELIMINARY MATTERS
26
4. In what contexts might you receive or obtain allegations of torture?
· General contexts: These could include situations of political unrest or generalised violence, or conflict zones.
· Specific contexts: These could include visits to custodial institutions, medical settings, camps and centres for
refugees and internally displaced persons, or asylum applications.
Don’t forget to look in more unusual places too. See main text for suggestions.
5. Can allegations be made against non- governmental actors?
The responsibility of non- governmental actors is limited under international law, but:
If seeking an individual remedy, you could:
· Seek a remedy under national law: This could include prosecution on the basis of the International Law of Armed
Conflict or crimes against humanity, if national legislation exists which makes this possible
· Apply to an international human rights body: As non- governmental actors cannot be held directly accountable
under human rights law, you will need to bring your application against the state in which the incident took place,
arguing that it has failed in its obligations to take steps to prevent torture, to investigate the allegation adequately or
to prosecute the perpetrators.
If seeking a remedy of a more general nature, you could:
· Keep the international human rights bodies informed of the activities of non- governmental actors
· Engage in lobbying
PART II - DOCUMENTING ALLEGATIONS
27
PART II - DOCUMENTING ALLEGATIONS
1. Introduction
2. Basic Principles of Documentation
2.1. Why do these principles matter?
2.2. What does good quality information consist of?
2.3. What can you do to maximise the accuracy and reliability of information?
3. Interviewing the Person Alleging Torture
3.1. Introduction
3.2. General considerations
3.3. Conducting the interview
4. Information Which Should Be Recorded
4.1. Model information
4.2. Specific contexts
5. Evidence
5.1. Medical evidence
5.2. Statement of person making allegation
5.3. Witness evidence
5.4. Other types of evidence
PART II - DOCUMENTING ALLEGATIONS
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1. INTRODUCTION
The object of this chapter is to provide guidelines on how to go about documenting an allegation of
torture. This handbook deals specifically with documenting and reporting torture, but allegations of
disappearances, extra- judicial killings and other human rights violations can also be documented using
broadly similar information, collected using these guidelines.
The individual allegation forms the backbone of any submission. Even if your final goal is to compile a
report which discusses the general situation in a country, you will need to start by collecting individual
allegations as this is the best way to establish and build up patterns and general trends. Individual
allegations are not necessarily made by the victim him or herself - in cases where the victim has
disappeared, been killed, or is being detained incommunicado, an individual allegation may be made by
witnesses or relatives who last saw the person, and may have noted injuries or altered behaviour that
indicate ill- treatment had occurred.
In order to establish guidelines for documenting allegations of torture and other forms of ill- treatment,
this chapter will consider the following issues:
· There are some basic principles which should be borne in mind when documenting allegations of
human rights violations. In particular, the key to making such allegations is accurate, reliable, good
quality information. What exactly does this mean? Does it vary according to the mechanism or
procedure to which you wish to submit the information? What steps can you take to make sure that
your information has the right characteristics? [ Part II, Chapter 2]
· In many cases, you will need to interview the person making the allegation. This might be the victim,
a member of the victim’s family, a witness to the incident of torture, or some other person wishing to
report the incident. Are there any special considerations you should be aware of when carrying out
the interview? [ Part II, Chapter 3]
· What kind of details should be recorded during an interview? Is there a minimum amount of
information which must be obtained wherever possible? What kind of questions should you ask?
How can you make sure that you obtain the information you need? [ Part II, Chapter 4]
· Why is supporting evidence important? What kind of evidence should you be looking for and where
can you find it? [ Part II, Chapter 5]
PART II - DOCUMENTING ALLEGATIONS
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2. BASIC PRINCIPLES OF DOCUMENTATION
The primary goal of documenting allegations of human rights violations is to create an accurate, reliable
and precise record of events. The uses to which this record may be put are varied, but all rely equally on
the quality of the record which has been established. This means that when you are documenting
allegations, you should:
· Seek to obtain good quality information
· Take steps to maximise the accuracy and reliability of the information
2.1. Why do these principles matter?
Unless you are making an allegation based on your own experience, it can be difficult to always be
certain of the quality, accuracy and reliability of the information you collect. Human rights violations
often occur in contexts where emotions and allegiances are very strong, and can influence the reports
and allegations received. It is important to do your best to remain objective when assessing the nature of
the information - no matter what opinion you may hold about the general situation or however strongly
you might feel about the content of the allegation, you need to consider if, objectively, the information is
sufficiently accurate, reliable and of good quality to initiate action before a domestic authority or an
international body. As you will see below, the degree of quality, accuracy and reliability necessary may
vary according to the course of action selected, but you should always aim to reach the highest standard
possible in the circumstances. How rigorous you choose to be is a decision for you or your organisation,
but remember that the information you submit is a reflection of your own reliability - this will affect
your reputation with the international bodies, and the seriousness with which your allegations are
considered.
2.2. What does good quality information consist of?
The quality of information necessary in relation to a particular allegation depends on the purpose for
which it is to be used. For example, judicial procedures, whether domestic or international, usually
require a high standard of proof. By contrast, reporting procedures may be able to act with little or no
supporting documentation or fewer details. You should aim to obtain the best information possible
under the circumstances - this does not mean that you must always reach the highest standard before
submitting information, but it does mean that you should do your best to put together a strong allegation
using all the information available to you.
Factors which contribute to the quality of your information are:
· The source of the information: Where was the information obtained? Directly from the victim, from
the victim’s family or friends, from a witness present at the scene of the incident, from someone who
heard it from someone else, from a media report? The further away from the victim or incident you
get, the less dependable the information is likely to be.
· The level of detail: Is the allegation very detailed? Are there unexplained gaps in the account? Do
you only know the very bare facts? The mo