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JUSTICE for TORTURE WORLDWIDE Law, Practice and Agendas for Change

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JUSTICE for TORTURE WORLDWIDE Law, Practice and Agendas for Change JUSTICE FOR TORTURE WORLDWIDE Law, Practice and Agendas for Change October 2013 ii | REDRESS TABLE OF CONTENTS 1. INTRODUCTION................................................................................................................................................... 1 2. LAW AND PRACTICE ON TORTURE FROM A CROSS-REGIONAL PERSPECTIVE .................................................... 4 2.1. The context of torture ................................................................................................................................. 4 2.1.1. Introduction ......................................................................................................................................... 4 2.1.2. Victims of torture and ill-treatment .................................................................................................... 5 2.1.3. Perpetrators of torture and ill-treatment .......................................................................................... 10 2.1.4. Methods of torture and ill-treatment ................................................................................................ 14 2.1.5. Causes of torture and ill-treatment ................................................................................................... 18 2.1.6. Social and cultural dimensions ........................................................................................................... 21 2.2. Torture and ill-treatment in situations of heightened tension ...................................................................... 22 2.2.1. Armed conflict .................................................................................................................................... 22 2.2.2. Counter-terrorism and security ......................................................................................................... 25 2.2.3. Political transitions ............................................................................................................................. 30 3. CRIMINAL ACCOUNTABILITY FOR TORTURE AND ILL-TREATMENT: CHALLENGES AND RESPONSES ................ 33 3.1. The Legislative Framework: Making Torture and Ill-Treatment a Criminal Offence ................................. 33 3.2. Legal barriers to accountability for torture and ill-treatment ................................................................... 41 3.2.1. Legislative developments................................................................................................................... 41 3.2.2. Jurisprudence: Removing obstacles to criminal accountability ......................................................... 48 3.3. Investigations and prosecutions in cases of torture and ill-treatment ..................................................... 50 3.3.1. Complaints Procedures and Investigations ........................................................................................ 50 3.3.2. Jurisprudence: Prosecutions .............................................................................................................. 62 4. ACCESS TO JUSTICE AND REPARATION: CHALLENGES AND RESPONSES .......................................................... 68 4.1. Legislative developments .......................................................................................................................... 68 4.2. Jurisprudence: Remedies and reparation for torture and ill-treatment ................................................... 77 5. THE INSTITUTIONAL AND POLITICAL CONTEXT ................................................................................................ 81 5.1. The role of institutions: Law-enforcement agencies, security forces and armed forces .......................... 81 5.2. The judiciary and the prohibition of torture ............................................................................................. 83 5.3. National human rights institutions ............................................................................................................ 85 6. TACKLING THE CHALLENGES IDENTIFIED: STRATEGIES AND PROSPECTS ......................................................... 87 REDRESS | iii iv 1. INTRODUCTION | REDRESS 1. INTRODUCTION Torture has many faces. It is both secretive and ubiquitous, an intensely personal ordeal and a practice that affects society as a whole. While its particular features frequently have a local imprint, its prevalence is truly worldwide. This double nature is also reflected in global efforts to combat torture. Prevention of, and accountability and reparation for, torture are first sought at the domestic level. Indeed, international human rights law requires victims1 and those acting on their behalf to exhaust domestic remedies first before bringing claims to international bodies. Advocacy efforts are also often directed at local actors, with a view to changing domestic mindsets and practices. At the same time, these efforts do not take place in isolation. Regional and international fora provide platforms for litigation and advocacy, and cooperation often transcends national and regional boundaries. Yet in practice, it is still rare for those working on torture cases to come together and share their expertise and experience. As a result, national laws and practices, and particularly jurisprudence, often remain little known externally beyond national borders and lawyers and others concerned may be ignorant of precedents, strategies and best practices developed elsewhere that may provide important tools for their daily work. Relevant actors may also not fully benefit from having links to their counterparts in other countries and regions as networks remain underdeveloped. Having these links and networks enhances cooperation and capacity and is therefore bound to increase the efficacy of work undertaken. It is certainly much needed, given the many systemic and specific challenges that lawyers and others face when seeking accountability and reparation for torture. These include legal obstacles (such as amnesties, immunities and short statutes of limitation), deficient victim protection, lack of access to justice, particularly for the most marginalised, and inordinate delays. They also comprise the often limited understanding of the definition of torture and weak judicial systems and responses, such as the award of inadequate amounts of compensation and other forms of reparation, if any, as well as poor enforcement mechanisms. This Report forms an integral part of the REDRESS initiative Reparation for Torture: Global Sharing of Expertise, supported by the European Union through the European Instrument for Democracy and Human Rights.2 It builds on comparative research, litigation and 1 The report will primarily use the term “victim” in line with international legal practice and without prejudice to the fact that individuals who have been tortured may prefer the term “survivor”. 2 The report was written by Lutz Oette, drawing on the reports published as part of the project (see below, note 6). REDRESS gratefully acknowledges the contribution of a great many people to this project, particularly the project partners and regional partners, that is the Asian Human Rights Commission; Coordinadora Nacional de Derechos Humanos, Peru; Mizan-Law Group, Jordan; Independent Medico-Legal Unit, Kenya, and the REDRESS | 1. INTRODUCTION 1 advocacy undertaken, aimed at developing best practices and effective strategies to realise victims’ right to a remedy and reparation.3 The initiative Reparation for Torture: Global Sharing of Expertise is a collaborative effort, involving a number of partners and counterparts around the world.4 It combines litigation in torture cases before national, regional and international mechanisms, thematic research and advocacy on security legislation and sexual violence amounting to torture,5 as well as country-specific and regional meetings and interventions. Significantly, it brought together lawyers and human rights defenders working on torture in five regional meetings, which resulted in regional reports on Asia, Africa, Europe, the Americas and the Middle East and North Africa (MENA) region.6 This Report brings together the wealth of expertise generated and the experience shared in the course of this work, focusing on comparative law and practice relating to accountability and reparation. It draws on, rather than simply replicates, the findings of the regional reports, to identify key issues. To this end, the Report discusses key developments from a cross-regional perspective, mapping out the context in which torture takes place and its legal, institutional and political dimensions. Following this introduction, chapter 2 provides the broader context facing victims of torture seeking accountability and reparation. The challenges experienced by victims of torture and those working on their behalf when pursuing cases, and national responses in that regard are the focus of chapters 3 (accountability) and 4 (reparation). Combining legal analysis with practitioners’ perspectives of effectiveness, these chapters examine the extent to which national law and practice are aligned with regional and international standards, considering in particular differences across regions/sub-regions. Such analysis allows for the identification of both common challenges and features, and regional approaches that promise to develop into, or serve as good practices. Chapter 5 considers how institutional, societal and political factors impact the realisation
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