It's Time to Stop Torture

Impunity: The Turning Tide

1. Overview 2. Children 3. Corporal Punishment 4. Impunity 5. Juvenile Justice 6. Sexual Identity 7. Women & Girls

Photos: Protestors hold up photos of family members killed in Tiananmen Square on June 4, 1989. The Chinese government still refuses to hold an inquiry into the massacre of hundreds of unarmed civilians.

Every day, in every region of the world, women, men and children are subjected to torture and ill-treatment. In the great majority of cases, there is no investigation of these crimes and no one is brought to justice. Torture is committed with impunity.

International law is clear. Torture is absolutely prohibited in all circumstances. However, the very people charged with implementing the law frequently flout it. Some governments use torture as part of their strategy for holding on to power. Many more pay lip service to human rights, but their rhetoric conceals a lack of political will to hold torturers to account.

Victims of torture have a right to see justice done, to have the truth about what happened to them acknowledged and to receive compensation. Yet the shameful fact is that justice is the exception, not the rule. Most torturers commit their crimes safe in the knowledge that they will never face arrest, prosecution or punishment. Governments around the world rarely investigate incidents of torture. Even more rare are successful prosecutions under the criminal law.

Impunity sends the message to torturers that they will get away with it. Bringing the culprits to justice not only deters them from repeating their crimes, it also makes clear to others that torture and ill-treatment will not be tolerated.

Impunity undermines the systems built up over the years to protect against torture. When society's defences are down, any opportunistic pretext - such as the need to combat ''terrorism'', the fight against crime, or hostility to groups such as asylum-seekers - may be used as a licence to torture.

Impunity must also be overcome because it adds to the wrong that has been done to the victims of torture. Impunity prolongs the original pain of torture by seeking to deny that it ever took place - a further affront to the dignity and humanity of the victim.

Although impunity is widespread, the tide is turning. Public awareness is greater than ever before, in part because of action against some high profile figures, such as Augusto Pinochet and Slobodan Milosevic.. More and more governments appear willing to bring torturers to justice, at least those from other countries. The struggle against impunity for torture is gaining ground.

Barriers to justice

All states are obliged to prohibit torture, to investigate allegations of torture, and to prosecute and punish those responsible for torture. Yet successful prosecutions for torture are rare. Whether justice is done often depends on the degree of media interest or public outrage, the political will of the prosecutor or investigating judge and the independence of the judiciary.

Legal flaws
There are flaws in the legal framework of some countries which contribute to impunity. Torture may not be defined as a specific crime in national law, or it may be defined too narrowly. People accused of torture may escape conviction by arguing that they were only following orders, even though this is expressly prohibited as a defence in the UN Convention against Torture.

Laws may facilitate torture, for instance by allowing incommunicado detention (detention without access to lawyers, doctors, relatives or friends). In many countries, confessions extracted under torture are regularly used as evidence in trials to gain convictions, positively encouraging the use of torture and ill-treatment by law enforcement officers. Laws which unduly restrict the investigation and prosecution of torture cases also increase the chance of impunity for the perpetrators.

Legalized impunity
The most blatant obstacle to investigations and prosecutions is presented by national amnesty laws intended to shield perpetrators from justice. Such amnesty laws have been introduced in countries including Argentina, Chile, Peru, Sierra Leone and Uruguay. Often, laws granting immunity from prosecution for torturers have been introduced in periods of political transition, ostensibly to promote national reconciliation. Experience has shown that where justice is denied in the name of national reconciliation, a heavy price is paid by society as a whole, as well as by the victims and their families.

Hiding the evidence
Torture, whether in the home, the police station or the prison cell, is normally carried out in secret and considerable efforts are often made to conceal evid- ence vital to the successful prosecution and conviction of the torturer.

Officials who participate in torture sometimes hide their crimes through unlawful detention practices - such as failing to identify themselves or to register detainees, keeping detainees blindfolded or in secret detention, or denying them access to lawyers, relatives or doctors. Torturers sometimes choose methods, such as hooding or psychological torture, which leave few physical traces.

Police may tamper with or destroy evidence. For example, medical evidence may be suppressed and medical officers encouraged to falsify reports, while those who carry out their tasks scrupulously may be harassed or even prosecuted. The ''code of silence'' which operates in many police forces may dissuade officers from giving vital evidence against colleagues accused of torture. Police may also withhold and destroy evidence in cases where they have links or sympathies with the alleged perpetrators, such as where women accuse male members of the community of rape.

Intimidation
Police officers may intimidate victims or witnesses of torture to persuade them not to file complaints or to retract testimony. Those who do present a complaint may be threatened, attacked or prosecuted on criminal counter-charges such as defamation. Victims from poor and marginalized sectors of the community, who are often unable to call on the support of lawyers or non-governmental organizations, are particularly vulnerable to threats and harassment.

Failure to investigate
Most incidents of torture are never investigated. Investigations - where they occur - are often stalled because of the inaction, ineffectiveness or complicity of the investigating body. In many countries the police and the public prosecutors work together closely, and this may mean that prosecutors are not impartial and independent when it comes to investigations into complaints against the police. In some cases, investigations into torture are carried out by the very force whose members were responsible for the abuse.

Failure to prosecute
The judicial system often fails to bring a prosecution, despite credible evidence that an act of torture has been committed. Prosecutors can obstruct justice by ignoring evidence of torture or by blocking investigations, for instance by refusing independent medical investigations of alleged torture victims. In some cases prosecutors do not have power to act on their own initiative or are unable to constrain the actions of the security forces. Political interference in the judicial process may also result in a decision not to prosecute.

Failure to convict
In some countries, courts fail to convict despite convincing evidence of the suspect's guilt. Even where a conviction is secured, impunity persists if the sentence is grossly disproportionate to the gravity of the crime.

The length of time it takes to pursue a case of torture through the courts encourages victims to make comprom- ises under pressure from perpetrators and often their own community or family. In India, for example, the average time for a case of rape to find its way from the Sessions Court to the Supreme Court is between 10 and 15 years.

Discrimination
Police, prosecutors and judges cannot escape the prejudices of the society in which they live. Discrimination on grounds of gender, ethnicity, class and sexual orientation leads to bias in investigations, in decisions on prosecutions, in court rulings and in sentencing decisions.

For example, some police officers share the attitudes of perpetrators of violence against women and therefore consciously or unconsciously shield the offenders. They frequently send abused women back home rather than file their complaints. In many instances, police have humiliated rape victims, adding to their suffering rather than alleviating it.

Victims with less wealth and power also have less access to legal remedies. They may lack the know-how, the contacts or the finances to pursue a complaint against those who have tortured them. They may find that those in authority are unlikely to believe them, and they may suffer further abuse for daring to complain.

Members of groups that face widespread hostility, such as street children, criminal suspects or people who express their sexuality in non-traditional ways, are both more vulnerable to torture and less able to gain justice from the authorities.

Discrimination reinforces impunity, lessening the likelihood of any official action in cases of torture.

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Victims' rights

Providing reparations for victims
Holding torturers to account is vitally important, but it is only part of giving victims justice. They are also entitled to reparations.

There are five types of reparation:

1. financial compensation;
2. medical care and rehabilitation;
3. restitution (seeking to restore the victim to his or her previous situation);
4. guarantees of non-repetition; and
5. forms of satisfaction such as restoration of their dignity and reputation and a public acknowledgment of the harm they have suffered.

The consequences of torture on the individual victim and their immediate family are both profound and long-lasting. Sometimes victims need long-term or expensive medical treatment or therapy. Sometimes their expectations of life have been changed dramatically by their terrible experience. A just scheme of redress should take into account both the harm done and its longer-term consequences.

Victims of torture have a right to an effective remedy - the right to enforce their rights, if necessary through court action. The right to an effective remedy is of paramount importance when a state ignores its duty to investigate, prosecute and provide redress when torture is alleged.

Turning the tide

The arrest of Augusto Pinochet in October 1998 in the United Kingdom transformed public awareness of the possibilities for overcoming impunity. The proceedings against Slobodan Milosevic before the International Criminal Tribunal for the former Yugoslavia marked a further step forward. Although impunity is still the rule and justice the exception, the tide seems to be turning, however slowly.

Victims of torture in many countries have organized to pursue through the courts the people responsible for their suffering. In Argentina, years after amnesty laws put a stop to prosecutions for atrocities committed during the ''dirty war''of the late 1970s and early 1980s, senior officials are in custody in connection with the ''disappearance'' of young children stolen for adoption, and an Argentine judge has recently ruled the amnesty laws unconstitutional.

In Chile, efforts to bring former President Augusto Pinochet to account for grave human rights violations committed since 1973 made significant progress, with more than 200 law suits lodged against him, until a court suspended the charges on the grounds that he was unfit to stand trial.

During 2000 in both Suriname and the Netherlands (the former colonial power), investigations were ordered into allegations that Desiré Delano Bouterse, former army commander and head of state of Suriname, was involved in torturing and extrajudicially executing 15 people in December 1982.

There have been concerted efforts both in Senegal (his country of exile) and in Chad to pursue former president Hissène Habré, who ruled over Chad between 1982 and 1990 and whose regime was characterized by the systematic occurrence of serious human rights violations such as torture.

Efforts to bring torturers to justice for atrocities committed in the past, sometimes many years ago, have been encouraged by, and reflected in, moves towards international justice.

International justice
The international community is putting into place international mechanisms to overcome impunity and enforce international law.

During the 1990s the UN created two international tribunals to prosecute those responsible for genocide, crimes against humanity and war crimes committed in Rwanda and the former Yugoslavia.

The functioning of these tribunals has been hampered by shortages of human and financial resources and lack of sufficient cooperation from individual states, for example in providing intelligence and assisting in the arrest of indicted suspects. Despite such problems, the tribunals have indicted and convicted a number of people on torture-related charges.

In Sierra Leone and Cambodia, the UN is preparing to support tribunals combining national and international judges and jurisdiction.

International Criminal Court
In 1998 the international community voted overwhelmingly in Rome to establish a permanent international criminal court with jurisdiction over perpetrators of torture when it constitutes genocide, a crime against humanity or a war crime. The International Criminal Court, which will come into being when 60 states have ratified the Rome Statute, will not be a substitute for national courts able and willing to fulfil their responsibilities. It will exercise jurisdiction only when states fail to bring those responsible for these crimes to justice.

National legislatures in states which have ratified the Rome Statute should enact legislation ensuring cooperation with the International Criminal Court and enabling their own national courts to complement it effectively.

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No safe haven for torturers

Torture is a crime that requires an international response. Under the UN Convention against Torture, any state can and should judge anyone on its territory who is suspected of torture, regardless of the place where the crimes were committed, and the nationality of those involved.

The principle of universal jurisdiction requires states to bring suspected torturers in their territory to justice in their own courts or else to extradite them to another state able and willing to do so.

This principle was established more than 50 years ago following the Second World War and was incorp- orated into the four Geneva Conventions of 1949. For decades, however, most states failed to give their courts such jurisdiction under national law. Those that did hardly ever exercised it. Political consider- ations always prevailed over those of principle. As a result perpetrators evading justice in their own countries have had little difficulty in finding ''safe havens'' elsewhere.

Recent developments, however, indicate that in future fewer countries will tolerate torturers on their soil. Prosecutions on the basis of universal jurisdiction for recent crimes have taken place in Austria, Belgium, Denmark, France, Germany, the Netherlands, Spain and Switzerland.

The progress towards the Inter-national Criminal Court and implementation by states of universal jurisdiction are landmarks in the struggle against impunity. These successes would not have been possible without the steadfast lobbying and painstaking groundwork done by victims, their relatives, lawyers and human rights activists. The battle against impunity is primarily local and national, but these achievements point to the importance of a globalized response to the challenge of pursuing torturers, wherever they may be.

What can be done

Governments must ensure that torture is not committed with impunity:

• torture should be expressly defined as a crime in national criminal law;
• all reports of torture should be promptly, independently, impartially and thoroughly investigated;
• decisions on whether to prosecute should be made by an independent prosecutor or investigating judge, not a political official;
• people suspected of torture should be brought to justice in fair trials;
• the rights of victims to an effective remedy against torture should be recognized in national law;
• victims of torture, witnesses and relatives should be protected before, during and after trials;
• victims of torture and their dependants should be entitled to reparation from the state including compensation and medical care.

Governments must not provide safe haven for torturers from other countries:

• ratify and implement the 1984 UN Convention against Torture, if it has not done so;
• ratify and implement the 1998 Rome Statute of the International Criminal Court, if it has not done so;
• enable national courts to exercise universal jurisdiction over alleged torturers (they should have the right to try cases no matter where the torture took place, and the nationality of the people involved);
• the legal system should allow people suspected of torture to be brought to justice in fair trials, or extradited to another country able and willing to prosecute them.

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