A World of Torture - Un monde tortionnaire

Transcription

ACAT 2014 Report
A World
of Torture
ACAT 2014 Report
A World
of Torture
ACAT-France is a member of the FIACAT, the International Federation of ACAT.
action by christians for the abolition of torture | www.acatfrance.fr
For any information concerning this report,
please contact Olivia Moulin: [email protected]
TABLE OF CONTENTS
FOREWORD
9
serge portelli
INTRODUCTION
13
françois picart
GEOGRAPHY OF TORTURE
19
Americas |
21
23
26
36
46
56
Asia / Pacific |
67
69
72
80
90
98
Introduction
Canada
Dominican Republic
Haiti
Paraguay
Introduction
Afghanistan
Burma
Cambodia
Japan
Europe |
109
111
114
122
130
Maghreb / Middle East |
139
141
146
154
162
170
Sub-Saharan Africa |
181
183
186
194
202
210
Introduction
Greece
Hungary
Switzerland
Introduction
Libya
Oman
Syria
Yemen
Introduction
Cote d'Ivoire
Madagascar
Rwanda
Sudan
ANALYSIS OF THE PHENOMENON OF TORTURE
231
“I started to wish they would kill me
so that I would no longer feel fear”
233
testimony of a migrant who was tortured in mexico
Torture as pretext – Torture and conflict of meaning
241
antoine lepas-douand
“Fear up, ego down” – Psychological torture
253
jean-étienne de linares
Forgiveness: a journey or an obligation?
269
interview with claire ly
The prohibition of torture: a legal imperative worth defending
279
édouard delaplace
Representations of torture
291
christiane vollaire
Tunisia: towards a Just Spring
301
hélène legeay
APPENDICES
323
Defining torture
324
Ratification status of treaties concerning torture
326
Lexicon
333
Methodology note
348
Acknowledgments and list of contributors
351
Learn about ACAT
352
Learn about FIACAT
354
Terms followed by an asterisk in this report refer to a definition in the lexicon p. 333.
© Rodrigo Abd / AP
Aida cries after being seriously
wounded when the Syrian army
bombed her house, leaving her
husband and two of her children
dead. Idlib. Syria.
A WORLD OF TORTURE . ACAT 2014 REPORT . FOREWORD
Foreword
serge portelli, magistrate and author of Pourquoi la torture ?1
Henri Alleg
Shortly before he died, I had the opportunity during a public debate to meet Henri
Alleg, the author of La Question, a clandestine essay written in detention during the
Algerian War on pieces of toilet paper which Alleg handed to his lawyer, one sheet at
a time. In it he describes the torture perpetrated by the French army against him and
his companions, some of whom died as a result. It was a pioneering text at the time
and continues to be a shining example today. I had just published a book on torture
myself. “Continue”, he told me as he smiled a beautiful smile full of trustworthiness,
just as he encouraged all those willing to fight against torture’s most faithful ally
– silence. Never drop your guard, never look away, never forget, as we so often do
when it comes to those deeds that bring shame on humanity and each and every one
of us.
Torture and the law
Torture concerns us all, but some more than others. And some professions, too,
judges in particular. For centuries, torture was one of the weapons most favoured
by those in power, and without much soul-searching, judges were among its most
faithful backers. It was an official practice, recognised by law and regulated with
diabolical precision by legal codes and customs. It has now shifted from being a legal
procedure to an unlawful practice. In theoretical and legal terms, this shift is significant. Torture was transferred from the Code of Criminal Procedure to the Criminal
Code: it went from being an official method of interrogation to being an offence that
is punishable in accordance with legislative texts and denounced under international
law. Torturers are no longer public officers funded by the State, they now operate
clandestinely and risk strict sentencing.
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FOREWORD . A WORLD OF TORTURE . ACAT 2014 REPORT
Pusillanimous judiciaries
The reality is less emphatic. The law is as clear as it is imperative, so one might be
forgiven for supposing that States deploy all their resources and energy to enforce it
and that judiciaries do the same to ensure it is respected. Yet we are a very far cry
indeed from such a state of affairs. It took 40 years for the Chilean Supreme Court
to admit publicly, in 2013, that its attitude under the Pinochet regime constituted a
“grave failing” and an “abdication of its judicial role”, although it did not go so far as
to ask for forgiveness. Today, there is a very long list of judges worldwide who, in so
many countries, owe their people a confession and a detailed explanation of how their
judicial role became corrupted and how their legal oath was betrayed for so long. We
need to know all the techniques and tricks used to turn a blind eye and a deaf ear. It
is difficult to imagine the extent of the cowardice needed to be so unresponsive, useless and clumsy, not to investigate or behave with courage, to skew the facts, twist
the law and scupper an investigation. One must be sorely lacking in energy and intelligence to push victims into a state of despair and oversee the impunity of torturers.
Such attitudes are of course recognised as “failings” a few decades later, when the
irrevocable damage has been done, but these were self-interested “failings” which
at the time brought professional honour and other advantages to those responsible
for them. We need to recognise the reality: judicial courage in the face of torture is a
rare deed, one that usually surfaces with the same delay as remorse, when the danger has passed, when the dictatorship has disappeared and peace has returned. And
even then, it is foreign judges who show the most enterprise. General Pinochet left
power in 1990, and it was a Spanish judge, Baltasar Garzón, who, eight years later,
issued a warrant for his arrest.
The grave responsibility of judges
We expect judicial authorities to do their duty and assume their role, and not only
in times of political crisis. There are precise rules must be respected at all times,
especially those laid out by the UN Convention against Torture on 10 December 1984.
Examples include the ban on extraditing individuals to a State where they are at risk
of being tortured, or the inadmissibility of declarations made under torture being
used as evidence. But the main responsibility of judges, in all countries, whether
(slightly) democratic or not, stems from a little-known fact: the most widespread acts
of torture are those committed against individuals detained by the police or in prisons
and detention centres, i.e. under the direct or indirect control of the justice system.
The zealous quest for confessions is a worldwide phenomenon. And its corollaries,
violence and torture, are in no way exceptional and not the sole preserve of dictatorships. This is why judicial authorities must be unrelentingly vigilant in monitoring
police interrogation methods and, without weakness or complicity, in handling all
A WORLD OF TORTURE . ACAT 2014 REPORT . FOREWORD
complaints made against police officers or the many investigative bodies that depend
on the State.
Judges are also the primary suppliers for prisons across the world. They would be
failing in their mission if they were to ignore the reality of penitentiary facilities,
where cruel, inhuman, degrading and undignified living conditions are often reported.
Other forms of protection
Ordinary justice systems struggle to complete these tasks effectively; this is all the
more true of international justice, which is still in its infancy. In order to address
these shortcomings, which can be remedied and mitigated by better training, more
people need to rise up, decry the realities of torture and spur the authorities to action.
Lawyers and regional and international inspection bodies have an essential role to
play in monitoring and raising alerts, but non-governmental organisations such as
ACAT have become irreplaceable watchdogs.
The inestimable value of speaking out
Faced with the scale of the world’s ills today and the links that have always existed
between torturers worldwide (we know about the “French school”, the teaching in
certain inter-American schools of war, the manuals produced by the CIA and other
organisations, as well as the US system of outsourcing torture practices), largescale and ongoing mobilisation is needed. Justice and the law are invaluable weapons, but the act of speaking out, of which this report is a perfect illustration, is of
inestimable value. It not only transmits the complaints of victims and denounces
injustice, it also allows us to get closer to the reality of pain and suffering so unimaginable that words seem ill-equipped to address them. Each of the texts contained
in this report is the product of a long battle that must not be forgotten. Their words
forbid oblivion and indifference. They act as a mirror reminding us that this world of
torture is our world. They paint an overwhelming image that is full of hope, the hope
that across the world, every day of every year, men and women will continue tirelessly to rise up against the greatest ills of humanity.
When it was first published in 1958 Henri Alleg’s La Question was quickly censored
by the government. All copies were seized by order of a French investigating magistrate who felt that to investigate military torture was “to participate in an endeavour
designed to demoralise the army and harm our national defence”. Apologies, Henri
Alleg.
[1] PORTELLI, Serge, Pourquoi la torture ?, Paris, Vrin, 2011, 312 pages.
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A WORLD OF TORTURE . ACAT 2014 REPORT . INTRODUCTION
Introduction
It is fitting to act!
françois picart, President of ACAT
When ACAT was founded in 1974, it was easier for States that engaged in torture
practices to disguise their actions, at least for a while. 40 years later, the Internet
and its social networks have changed the playing field: it is now impossible to prevent
the spread of images of repression. Yet as recently as 10 years ago, the Internet was
only beginning to become a mass phenomenon. ACAT’s 30th anniversary coincided
with the appearance online of photos revealing the horrors of Abu Ghraib prison. The
organisation’s members were meeting at UNESCO, and our Vice-President, Marc
Zarrouati, called on us to update our approach to torture prevention by taking into
account what he was already calling “the world of news flashes which makes torture
appear natural and commonplace on the one hand, and the instrumental and dehumanising rationalisation of torture practices on the other”.
Our association emerged on the strength of a dual observation: in a world in which
torture increasingly managed to escape the attention of the public, Christians were
discovering that torture had not gone away and that they had simply been unaware
of it. ACAT’s founding members, Édith du Tertre and Hélène Engel, had participated in an international meeting in Paris in December 1973 during which Amnesty
International had launched a worldwide campaign against torture. They were horrified by the accounts of abuses being inflicted in “tiger cages” in Vietnam. As they
became aware that torture was “a present-day reality and not a vestige of mediaeval
times”, they brought together a group of around 20 people who were in a position
to encourage dynamic activism within the Christian network. Together they decided
to begin an adventure that was inextricably both spiritual and militant, taking action
against torture in the name of their Christian faith.
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INTRODUCTION . A WORLD OF TORTURE . ACAT 2014 REPORT
Today, we must do more than simply expose that which was once hidden. We must
endeavour to comprehend the scale and complexity of the torture phenomenon, faced
with perceptions of reality that are all too influenced by the virtual world.
In order to increase awareness, we must take great care to ensure that what once
remained hidden can now be brought into the open. We must realise that the abundance of available images fascinates the public more than it presents an account of
what is really happening. While torture practices are presented as an exceptional
measure to fight terrorism, used only against suspected terrorists, ACAT’s publications and those of other NGOs have shown that torture is in fact a phenomenon that
is stable, takes place on a massive scale and is not used in a targeted way, but rather
above all as an investigative method or as an instrument of terror and repression
designed to hold onto power.
The use of torture is no longer making the headlines. Public opinion appears once
again to be muted, confirming earlier warnings that torture was becoming commonplace, perceived as a natural and human phenomenon. We have failed to learn all
of the lessons from the “war on terror” declared by certain Western democracies
who either engaged in torture practices or “outsourced” them by despatching their
detainees to foreign States to have them tortured there.
It is true that domestic legislation has been strengthened. International human rights
law has introduced new alert mechanisms to prevent torture practices as well as
systems of evaluation (e.g. Universal Periodic Review*) and monitoring to document the situation in countries that have signed texts such as the Convention against
Torture, adopted 30 years ago. Progress has also been made in the fight against
impunity of torturers. However, the constancy of torture stands in contrast with the
political and geopolitical changes that have taken place in the world. We once associated it with the dictatorships of Latin America, the colonial wars and the Cold War,
but it has survived and continues to be perpetrated in one out of every two countries,
including many democracies. As in the past, torture is used by State representatives but also by non-State representatives (Colombian paramilitary groups, armed
Islamic groups, organised criminal gangs in Central Asia, etc.). Those targeted are
still opponents or activists who are perceived as a threat by incumbent regimes, as
well as terrorist suspects, members of religious, ethnic and sexual minority groups,
and illegal migrants. But the largest category of torture victims is mainly made up of
ordinary suspects and common law detainees, from whom the police try to extract
so-called confessions or who find themselves beaten by prison wardens by way of
additional punishment.
There is an urgent need to raise awareness about this reality and act to eradicate it if
we are to avoid the risk of accepting torture as a feature of life, as the skewed vision
A WORLD OF TORTURE . ACAT 2014 REPORT . INTRODUCTION
of this phenomenon that comes to us through our screens sometimes suggests.
ACAT is pursuing its mission in respect of the belief of its founding members that
the spiritual and militant dimensions need to be connected; this connection forms
part of our association’s genetic heritage and underpins our understanding of human
dignity. This belief leaves us rooted in the hope – not generated by ACAT but by its
fragile and vigilant testimony – that this world can be inhabited with all the goodness
of man’s innate conscience, even though at times it struggles to emerge, survive or
overcome human complexity and the hubris that sometimes submerges us. Like the
psalmist who confesses his faith following a lamentation without logic or continuity,
there is no logical continuity or any direct causal link between the pressing need for
ACAT’s commitment and its results, no matter how desirable they may be.
But this is not the primary reason for our commitment; it is to be vigilant in our
approach to a practice that drains us of our human dignity, which we understand
through the resurrection of Jesus of Nazareth, tortured and crucified for his expression of man’s freedom before God. In faith, he left it to God to give meaning to a life
which, until death, had assumed the discontinuity of the experience recounted by the
psalmist. Through its transcendence, the resurrection shields human liberty from
the risk of being made a prisoner of closed systems of thought – even religious systems – that would stifle the lamentation of the innocent victim who asks: “why me?”
This is why, from a Christian perspective, the resurrection of Jesus of Nazareth
unconditionally forms the basis for the dignity of each and every one of us in a
way that no other criterion could. As in the parable of the lost sheep, to ill-treat the
dignity of one individual is to wound the dignity of all. And to commit to helping one
individual is of benefit to all. This underpins the conviction, which Christians share
with Jews and Muslims, that to save one life is to save all of humanity. And it stands
in contrast to a quantitative logic, which can only lead to despair given the stability
of torture practices. This position implies that protest must come after the initial
assertion that human dignity is to be preserved. There can be no doubt that there is a
need for protest. The denunciation of the crimes of the 20th century led to achievements such as the Universal Declaration of Human Rights and all of the legal levers
without which such achievements would be often left powerless. The awakening
of public conscience, for which ACAT has been fighting for 40 years, is part of our
responsibility to assert that human dignity is a reality. Our organisation also seeks
to transform the punitive mindset at work in the world of torture into a restorative
mindset that can re-establish the links of justice that bind mankind, by introducing
the mercy that is such an essential part of justice. In this process of awakening, it is
the very notion of the unique nature of human dignity that is at stake, insofar as we
believe that to come to the assistance of torture victims helps restore not only their
dignity but also that of their torturers, and contributes to the fulfilment of those who
are committed to the fight against torture. There is no greater good.
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INTRODUCTION . A WORLD OF TORTURE . ACAT 2014 REPORT
These spiritual resources give meaning to the principled rejection by Christians
of torture practices and their commitment, alongside other civil society actors, to
accept a challenge that has become political, since it falls to States to apply the decisions of UN bodies: “Without the vigilance of citizens, without their corrective and
innovative initiatives, no structure and no regime can continue to act with justice
or defend itself for long against the designs on power of its strongest members. All
contemporary societies are alike in this regard. It will always be free associations
that reveal injustice and human suffering”1.
[1] WRESINSKI, Joseph, “Le rôle des organisations non gouvernementales”, Droit social, N° 11 – November 1974:
http://www.joseph-wresinski.org/IMG/pdf/Droit_Social_novembre_1974.pdf.
A WORLD OF TORTURE . ACAT 2014 REPORT . GEOGRAPHY OF TORTURE
GEOGRAPHY
OF TORTURE
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© Martin Bernetti / AFP
Activists from the organisation Detenidos
Desaparecidos participate in a ceremony
at Villa Grimaldi, which was used as a centre
of detention and torture under the dictatorship
of Augusto Pinochet (1973-1990).
Santiago. Chile.
AMERICAS
Canada . Dominican Republic . Haiti . Paraguay .
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GEOGRAPHY OF TORTURE . A WORLD OF TORTURE . ACAT 2014 REPORT
CANADA
ottawa
* 34,8 m
DOMINICAN
REPUBLIC
santo-domingo
* 10,2 m
PARAGUAY
asunción
*6,6 m
HAITI
port-au-prince
* 10,1 m
Countries covered in the 2014 report
Countries covered in previous reports (2010, 2011 and 2013)
*
Population in 2012 in million of inhabitants / Source: World Bank 2012
INTRODUCTION
The States that make up the Americas are democracies with the exception of Cuba,
where the Communist Party is the only political group authorised by the Constitution.
Most of them have adopted domestic legislation that prohibits torture. In some countries, such as Argentina, Colombia, Ecuador and Venezuela, the ban on torture
is actually enshrined in the Constitution. On 16 August 2013, Haiti signed the UN
Convention against Torture, making it the 29th State Party to the treaty out of the
35 countries in this region. Fourteen States in the Americas have so far ratified the
Optional Protocol to this Convention (OPCAT). The last country to have introduced
legislation establishing a National Preventive Mechanism* (NPM) is Argentina, which
did so in November 2012. Eighteen countries in the region have also adopted the
Inter-American Convention to Prevent and Punish Torture, with the notable exceptions of the United States and Canada.
Nonetheless, institutional violence, torture and ill-treatment remain extremely commonplace throughout the region. Several States still show reluctance to investigate
human rights violations, both past and present. Across most of the Americas, repressive public policies in terms of domestic security are being developed, with provisions
for or at least tolerance of exceptions to the need to respect human rights. A number
of common characteristics can be observed: abusive applications of pre-trial detention, excessive use of force for disciplinary purposes in custodial facilities, the use of
torture as an investigative method in criminal cases, an overriding climate of impunity, corruption and a lack of transparency in police, judicial and penitentiary affairs.
Persistent and deep-rooted social and economic inequality, in many cases combined
with weak State structures at a local level, creates fertile ground for the development
of criminality. Gangs (maras or pandillas) and hired assassins (sicarios) with links to
various criminal operations (drug smuggling, prostitution, human trafficking and kidnappings for ransom) thrive in Mexico, most Central American countries, Venezuela,
Colombia, the Brazilian favelas and even several US states.
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In an effort to confront these problems, preventive policies, alternative sentencing
and public initiatives to resolve social problems are overlooked in favour of a “zero
tolerance” or mano dura (“iron fist”) approach, which legitimises and makes it commonplace to use heavy-handed methods when taking down suspected criminals.
Torture is often used in lieu of real investigative methods, designed to extract a confession or information incriminating others, thereby allowing investigating officers
to boost their conviction rates. This is what happened in the case of Nehemías Etifaz
Camacho Correa and Lisnardo Danielson Llorente García in Venezuela. In November
2012, in the state of Amazonas, they were arrested and tortured (beaten, asphyxiated, threatened with execution and sexually abused) by military personnel from
the Bolivarian National Guard (GNB) and police officers from the country’s forensic
and criminal investigative unit (CICPC) in an effort to extract a confession relating to
the theft of assault rifles.
The corollary of this mass offensive and large-scale incarceration has been an
explosion in the number of prisoners held in detention centres, many of which
are extremely rundown and inadequate. In such conditions, acts of torture and illtreatment are used as disciplinary measures to control and subjugate the prison
population. In Argentina, several detainees have made allegations of torture relating
to Penal unit no. 7 in the city of Resistencia. In July 2013, a 25-year-old detainee
referred to as J. Z. alleged he had been brutally beaten as he left the showers in
Section 1 of the facility (reserved for detainees who have been punished). He was
held for several hours with his hands and feet tied behind his back and his arched
body placed against the wet ground.
Torture is regularly used for the purposes of humiliating or coercing social groups
that are vulnerable, marginalised or stigmatised (women, homosexuals, bisexuals
and transgendered persons, indigenous peoples, migrants and street youths). In June
2013, a Honduran national travelling on a freight train in Mexico stopped in Saltillo to
find temporary accommodation in a facility for migrants. On his way there, he was
arrested and tortured for several hours by police officers before being forced to sign
a statement without reading it. He was charged with drug smuggling and placed in
pre-trial detention.
Social and political protest movements are often met with brutal crackdowns by law
enforcement authorities, who engage in judicial harassment and use unfair legal
measures. Many Latin American States have adopted anti-terrorist legislation that
runs contrary to constitutional guarantees relating to rights and freedoms (Argentina,
Chile, Colombia, Paraguay, Peru, El Salvador and others).
In Colombia, in response to an agrarian national strike that began on 19 August 2013,
police officers from the mobile anti-riot squadron (ESMAD) committed multiple
human rights abuses against civilians in the Boyacá department: tear gas canisters
used in enclosed spaces and launched from helicopters, bullet and knife wounds,
sexual abuse, acts of torture perpetrated during mass operations of arbitrary detention, etc.
Poorly defined offences pave the way for interpretations that criminalise all acts of
protest against the incumbent authorities: trade unionists, peasants, students and
social leaders are arrested ostensibly as part of the fight against terrorism or organised crime. They are exposed to the risk of torture, ill-treatment or enforced disappearance*. Despite many international recommendations, Mexico continues to use a
process known as arraigo (pre-trial detention imposed prior to any investigation or
charges for periods of up to 80 days), arguing that it is absolutely necessary in order
to combat organised crime.
In Argentina, anti-terrorist legislation makes it possible to crack down on citizens or
organisations who criticise the authorities or try to exert pressure on the government.
On 8 February 2013, some 140 detainees in the American-run Guantánamo prison
facility in Cuba began a hunger strike lasting several months in protest against
their indefinite detention and the ill-treatment inflicted upon them (e.g. abusive cell
searches and desecrations of the Holy Koran). The authorities have used solitary
confinement* and force-feeding by nasogastric tubes. In June and October, two
emissaries were appointed by the State Department and Department of Defense
to help oversee the closure of the facility. Two Algerian detainees were released
and returned to their home country in August 2013. Of the 164 remaining detainees,
84 are considered to be eligible for release by the US administration, but are still
waiting for a host country to be found.
Widespread impunity contributes to the persistence of the torture phenomenon. It is
not only a result of endemic corruption, but also of the failings of judicial systems.
Many allegations are heard by military courts which either do not consider or minimise the gravity of torture crimes, as is the case in Colombia and Mexico, thereby
significantly impeding efforts to bring those who carry out human rights abuses to
justice. Amnesty laws still in force in El Salvador and Brazil continue to block the
prosecution of those responsible for acts of torture and enforced disappearances*.
In some countries, the actions of civil society have nonetheless made undeniable
progress in the fight against impunity for those guilty of crimes both past (Argentina,
Chile, Guatemala and Peru) and present. On 10 May 2013, a court in Guatemala
Ciudad sentenced the former dictator José Efraín Ríos Montt (1982-1983) to 80 years
in prison, including 50 years for genocide. Although this decision was later overruled by the Constitutional Court, it nonetheless represents a victory for the victims
and was the first time anywhere in the world that a head of State had been tried or
convicted by a national court for genocide.
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CANADA
BACKGROUND
Although it is often described as a successful parliamentary democracy with exemplary rule of law and as an influential UN member state, Canada is in fact struggling to respect its international human rights commitments. In 2012, UN experts1
denounced persistent breaches of the fundamental rights of the country’s indigenous peoples (North American Indians, Métis and Inuits, who represented 4.3% of
the overall population in 20112), including discrimination in granting access to land,
resources, food, housing and education, and a disproportionately high rate of arrests
and detention. They also pointed to the economic segregation that affects women
and ethnic minorities, as well as the lack of political and judicial will to ensure the
proper application of social, economic and cultural rights3.
Since 2011, Canada’s conservative Prime Minister, Stephen Harper, has identified
public security and the fight against terrorism as the key priorities of his mandate.
This policy, which was adopted in the aftermath of the September 11 attacks, has left
Canada complicit in acts of torture carried out by law enforcement officials in third
party States, and recently led to a tightening of criminal laws and the abolition of the
register of firearms which was designed to regulate their circulation.
PRACTICE OF TORTURE
Combating terrorism and torture
During the anti-terrorist campaign led in collaboration with the United States in the
2000s, the authorities tended to place national security above the need to respect
human rights4.
Since 2001, the Royal Canadian Mounted Police (RCMP) and the Canadian Security
Intelligence Service (CSIS) have been authorised, in the case of a threat to public
security or human life, to use information obtained under torture and to share intelligence with foreign States or bodies where there is a risk of torture.
In 2002, Maher Arar, a Canadian engineer of Syrian origin wrongly suspected5 by the
FBI and CIA of belonging to al-Qaeda – based on information provided by the RCMP –
was arrested in the United States and deported to Syria as part of an extraordinary
rendition*. There, he was tortured and imprisoned in inhuman conditions.
The Canadian authorities also contributed to the ill-treatment and torture suffered
by three Canadian nationals, Abdullah Almalki, Ahmad Abu El-Maati and Muayyed
Nureddin, in Syria between 2001 and 2004, again based on information shared with
foreign security officials6.
In 2003 and 2004, intelligence officials and a representative from the Canadian
Ministry for Foreign Affairs interrogated Omar Khadr, a Canadian minor arrested in
Afghanistan and detained in Guantánamo, despite their knowledge that he was being
subjected to acts of torture while in detention7.
During their participation in the Afghan military conflict (2001-2011), the Canadian
armed forces and military police officially handed over 579 suspected Taliban members8 to the national police and the National Directorate of Security, or secret police,
despite its reputation for routinely using acts of torture and ill-treatment while
interrogating detainees. As early as 2006, a diplomat from the Canadian embassy
informed his government of the acts being committed in Afghan prisons, including
beatings with electric cables, sleep deprivation, exposure to extreme temperatures,
stabbings, electric shocks, sexual abuse and rape. However, he acted in vain9. In
2012, the UN Committee Against Torture (CAT) accused Canada of complicity in the
torture of Afghans handed over to local security forces, given the “substantial risk”
that they would be subjected to abuse while in detention10.
Furthermore, in the aftermath of the Boston attacks on 15 April 2013, the government
asked Parliament to approve new measures designed to strengthen the anti-terrorist
legislation of 2001. Anyone suspected of involvement in a planned terrorist attack or
of having information related to such an attack can now be arrested, placed under
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supervision or held in pre-trial detention by the police for a period of three days without charge. Judges can also compel a witness considered likely to have information
about a past or planned terrorist offence to cooperate and appear before an “investigative hearing” or face one year in prison. Those affected do not have the right to
challenge the evidence being used against them or the reasons for the court order.
Treatment of migrants, refugees and asylum seekers
Legislation relating to migrants, refugees and asylum seekers exposes them to risks
of persecution, cruel, inhuman and degrading treatment and even torture. In 2012,
Canada received 20,461 asylum seekers11 and 213,516 economic migrants12.
The 2001 Immigration and Refugee Protection Act13 introduces exceptions to the
principle of non-refoulement*. It provides that asylum seekers or immigrants who
represent a threat to national security or the safety of any person, who have violated
human rights or international law or have committed a serious crime or engaged in
organised crime can be placed in detention for an unlimited period or deported to
their home country, even where they are at serious risk of being subjected to illtreatment once they return. This so-called “certificate” system prevents the accused
from gaining access to all of the evidence used against them, thus denying them the
possibility of effectively preparing their defence, which is a violation of the right to a
fair trial. They are also denied the option of appealing against a ruling by the Federal
Court on the grounds that the procedure was not reasonable. What is more, some of
these certificates are thought to have been established using information obtained
under torture14. Between 1991 and 2011, 28 non-citizens were the subject of security
certificates, 19 of whom were deported.
Meanwhile, the Protecting Canada’s Immigration System Act of 2011 provides for the
automatic detention – without legal checks and for a minimum period of 12 months –
of asylum seekers and refugees identified as “designated foreign nationals”, i.e. from
countries considered safe, provided they were aged 16 or older upon arrival and
did not have a visa or other required documents and regardless of their level of
vulnerability. If their request is denied, they are not allowed to take their case to the
Refugee Appeal Division15.
The conditions of detention experienced by asylum seekers and refugees in some
cases constitute ill-treatment. Due to a shortage of space in detention centres, occupants, even those suffering from mental illness, are placed alongside criminals in prisons, often high security facilities, which are inappropriate both in terms of the needs
and status of these occupants. They are forced to wear uniforms, their movement
is restricted, they have limited contact with the outside world (e.g., phone calls,
Internet access)16, and they can be searched, handcuffed, chained or subjected to
verbal and physical violence by prison wardens17.
Violence against aboriginal women and girls
Canada’s aboriginal peoples represent an extremely vulnerable segment of the population, in particular women and girls, who already suffer various forms of discrimination and are more exposed to violence and homicide than non-aboriginals18. Since
the 1960s, many indigenous women and girls have been the victims of murder and
involuntary disappearances, especially in northern British Columbia. In March 2010,
one NGO documented 582 killings and disappearances, most of which took place
between the 1960s and 1990s, although 39% occurred after 200019.
The police are also guilty of systematic and routine abuse against aboriginal women
and girls20, who are subjected by those assigned to protect them to racial and sexist insults, harassment and humiliation, physical and sexual assault, the excessive
use of force (tear gas and Tasers*), especially at the time of arrest, and undignified
conditions of detention. In July 2012, police officers took an aboriginal woman out of
town, raped her and threatened to kill her if she told anyone21.
Conditions of detention
The situation in the country’s 234 penitentiary facilities, many of which are rundown, is also a cause for concern. Due to the overcrowding caused by an increase
in the number of crime laws, 20.5% of detainees were sharing cells designed for
single occupancy as of January 201322. In an effort to reduce tensions and maintain
order, Correctional Service Canada (CSC) uses excessive levels of violence (containment methods, flammable aerosols and Cayenne pepper sprays), with a total
of 1,336 incidents recorded in 2011-2012, and solitary confinement for disciplinary
and preventive purposes23, whereby detainees spend 23 out of every 24 hours in
their cell and are subject to the maximum restrictions on contacts and other stimuli.
In 2011-2012, 8,700 out of 14,793 detainees were placed in solitary confinement,
16.5% of whom spent more than 120 days in solitary24. According to the former UN
Special Rapporteur* on torture, Juan E. Méndez, solitary confinement in excess of
15 days constitutes an act of ill-treatment or even torture as a result of the serious
psychological harm it causes25.
Due to a lack of adequate infrastructure and personnel, prisons are unable to properly cater for detainees suffering from mental illness, who represent around 60%
29
30
of the prison population26: there is a failure to systematically screen for such illness upon arrival and insufficient access to medication and health professionals.
Between 2010 and 2011, 304 detainees carried out acts of self-mutilation, including
54 suicide attempts. In order to manage this problem, staff over-rely on confinement, which is in fact counter-productive: nearly one third of all accidents take place
in cells used for solitary confinement, despite high levels of surveillance. In 2007,
Ashley Smith, a 19-year-old detainee suffering from mental illness, committed suicide by strangling herself as prison wardens looked on. She had been incarcerated
from the age of 15, during which time she had been almost perpetually in solitary
confinement and subjected to acts of ill-treatment such as the use of Tasers, pepper
gas spray, chains, full body searches and containment from head to toe27.
Excessive use of force during police operations
Security officials sometimes resort to violence, in particular the use of “non-lethal
weapons” (chemical irritants, tear gas, stun grenades and pistols that fire rubber or
plastic bullets), in order to control crowds and public demonstrations, for example
the G8 and G20 protests in Toronto and Québec (2010 and 2012 respectively) and
demonstrations by Canadian aboriginals against the confiscation of their land28.
Between February and September 2012, following a decision by the Québec government to increase education fees, thousands of students, teachers, parents and trade
unionists took to the streets in protest. The movement, dubbed the Maple Spring,
was met with a brutal crackdown. At least 3,500 people were arrested and hundreds
of others were assaulted. The 354 victims interviewed by three NGOs spoke of racist, sexist and homophobic insults; being pinned against a wall or on the ground;
being kicked, punched, kneed and beaten with truncheons and even bicycles; and
excessively restrictive containment with handcuffs and nylon binds. In many cases,
this brutality resulted in injuries such as broken bones, skin lacerations, cranial traumas, burns, etc. On 1 May 2012, Gabriel Duchesneau, a 29-year-old peaceful demonstrator, was pushed to the ground and beaten by anti-riot officers using truncheons.
He suffered multiple skull fractures29.
Individuals arrested without a warrant during these demonstrations were placed in
overcrowded provisional detention centres where they were subjected to degrading
treatment: inadequate toilet facilities, insufficient water and food, no contact with
their loved ones or a lawyer, invasive body searches, etc30.
The death of a Polish traveller who had been shot with a Taser at Vancouver airport
in 2007 resulted in the federal government establishing stricter criteria on the use of
electroshock weapons in 2010. The new criteria, which are non-binding, do not apply
across Canada31. In 2013, the provincial police in Ontario decided to widen the scope
for the use of these weapons32.
On 4 August 2013, a 27-year-old man succumbed to his injuries after he was shot
with a Taser by a police officer while being arrested in Alberta33.
LAW AND LEGAL PRACTICE
Legal condemnation of torture
Canada is a State party to the main international human rights treaties and has recognised the competence of the Committee Against Torture* (CAT) to examine communications* presented by another State party or by or on behalf of individuals falling
under its jurisdiction, although it has yet to ratify the Optional Protocol (OPCAT).
However, as a dualist State, in order for international treaties to have full effect in
Canada, they must be incorporated by relevant legislation.34 The authorities have not
fully incorporated all of the provisions contained in the Convention against Torture
into domestic law, which means that they cannot be directly invoked as the basis for
legal proceedings taken before the courts35.
Article 12 of the 1982 Canadian Charter of Rights and Freedoms guarantees every
citizen “the right not to be subjected to any cruel and unusual treatment or punishment”36. The Canadian Bill of Rights further stipulates that “no law of Canada shall
be construed or applied so as to […] impose or authorize the imposition of cruel
and unusual treatment or punishment”. The Corrections and Conditional Release Act
prohibits the infliction of cruel, inhuman or degrading treatment on detainees37. The
Criminal Code provides a comprehensive definition of torture, stipulates a maximum
prison sentence of 15 years for torture offences committed by public officials or
anyone acting at the instigation of or with the consent or acquiescence of an official,
and prohibits the use of any statement obtained under torture, except as evidence
that the statement was so obtained38.
Furthermore, the Canadian State can prosecute and try any individual on its national
territory suspected of having committed acts of torture abroad, in accordance with
the principle of universal jurisdiction established in the Crimes Against Humanity
and War Crimes Act.
In relation to conditions of detention, the CSC includes an internal dispute settlement mechanism, while the Office of the Correctional Investigator, an external and
independent body set up in 1973, has a mandate to receive complaints from federal
offenders, carry out investigations and submit recommendations to the penitentiary
authorities, the CSC Commissioner, ministers and members of Parliament.
31
32
Punishment of perpetrators of torture
In practice there have been few cases where public officials have been prosecuted,
subjected to disciplinary sanctions or convictions for excessive use of force and
ill-treatment.
The sexist, racist and indifferent attitudes that are rife within the police force act as
an impediment to justice. For example, officers regularly refuse to file complaints
from aboriginal women and girls who have been subjected to violence or even
accuse them of the abuse committed or another offence, and the same victims are
often arrested and detained under inhuman conditions39. As a result, many of them
refuse to file complaints for fear of reprisals.
This climate of impunity is further reinforced by a lack of impartiality inherent in the
mechanisms for bringing complaints against members of the security forces. Cases
involving police abuses are either processed by the provincial Office of the Police
Complaint Commissioner where municipal officers are involved, or the Commission
for Public Complaints in the case of mounted police officers. In both cases, investigations generally fall under the responsibility of the department being challenged or
an external police department. Just one officer involved in the massive crackdown
on G20 demonstrators in 2010 was found guilty (12 September 2013) of “assault
with a weapon”, an offence that carries a maximum prison sentence of 10 years40.
Canada has no independent civil body responsible for directly investigating offences
perpetrated by law enforcement officials.
Furthermore, the authorities are reluctant to prosecute those responsible for human
rights violations. Despite significant pressure from NGOs and international bodies,
they have yet to establish a public commission to investigate the disappearance and
killing of aboriginal women and girls, nor have they devised a national action plan to
identify the causes of this scourge and combat it effectively.
Similarly, the special commission established in May 2013 to examine the events
of the Maple Spring has a far-reaching mandate, although it has not been asked to
identify those responsible.
Canada has also refused to officially apologise to and compensate Abdullah Almalki,
Ahmad Abu Elmaati and Muayyed Nureddin for its complicity in the acts of torture
to which they were subjected on foreign soil41 and has repeatedly delayed efforts to
repatriate Omar Khadr from Guantánamo Bay42.
In 2009, the Canadian authorities found a Rwandan national guilty of genocide, war
crimes and crimes against humanity43. Yet, rather than launch public prosecutions on
national soil, they prefer to deport those accused of torture or offences such as these
to their home country, where they are likely to escape prosecution. In July 2011,
Stephen Harper’s government published a list of 30 suspected criminals due to be
deported, in an effort to secure the help of the public in locating them44.
Lastly, victims of torture outside of Canada are not entitled to redress, including
financial compensation, based on the jurisdictional immunity granted to foreign governments under the State Immunity Act45.
[1] United Nations, Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on
the Elimination of Racial Discrimination, 9 March 2012: http://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.CAN.CO.1920.pdf; Committee Against Torture, Consideration of reports submitted by States parties under article 19 of the Convention,
Concluding observations of the Committee Against Torture, Canada, 25 June 2012: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/
G12/436/03/PDF/G1243603.pdf?OpenElement; and Committee on the Rights of the Child, Concluding observations on the combined
third and fourth periodic report of Canada, adopted by the Committee at its sixty-first session (17 September – 5 October 2012),
6 December 2012, available at: http://www2.ohchr.org/english/bodies/crc/crcs61.htm.
[2] Statistics Canada, Aboriginal Peoples in Canada: First Nations People, Métis and Inuits, 2011:
http://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-011-x/99-011-x2011001-eng.cfm.
[3] Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the events relating
to Maher Arar, Analysis and recommendations, 2006, 373 pages: http://www.pch.gc.ca/cs-kc/arar/Arar_e.pdf.
[4] Amnesty International, Canada, Briefing to the UN Committee Against Torture, April 2012, 34 pages, p. 18:
http://www.amnesty.org/en/library/asset/AMR20/004/2012/en/b46d9371-1b2c-414b-90e9-b97c3953cb48/amr200042012en.pdf.
[5] Canadian Civil Liberties Association (CCLA), The Absolute Prohibition Against Torture:
http://ccla.org/our-work/national-security/the-absolute-prohibition-against-torture/.
[6] Government of Canada, Canadian forces released statistics on Afghan detainees, 6 February 2013:
http://www.afghanistan.gc.ca/canada-afghanistan/news-nouvelles/2010/2010_09_22b.aspx.
[7] “Témoignage percutant du diplomate Colvin”, www. radio-canada.ca, 19 November 2009:
http://www.radio-canada.ca/nouvelles/International/2009/11/18/009-colvin-temoignage.shtml.
[8] “Canada accused of 'complicity’ in torture in UN report”, www.cbc.ca, 1 June 2012:
http://www.cbc.ca/news/politics/canada-accused-of-complicity-in-torture-in-un-report-1.1166597.
[9] Government of Canada, Facts and Figures 2012: Immigration overview – Permanent and temporary residents:
http://www.cic.gc.ca/english/resources/statistics/menu-fact.asp.
[10] Government of Canada, Canada – Total entries of foreign workers by province or territory or urban area, 2008-2012:
http://www.cic.gc.ca/english/resources/statistics/facts2012-preliminary/03.asp.
[11] Immigration and Refugee Protection Act, 135 pages, p. 40: http://laws-lois.justice.gc.ca/PDF/I-2.5.pdf.
[12] Committee Against Torture (25 June 2012), op. cit., p. 4.
[13] Canadian Council for Refugees, Canada Rolls Back Refugee Protection: Bill C-31 receives Royal Assent, 29 June 2012:
http://ccrweb.ca/en/bulletin/12/06/29; and Canadian Council for Refugees and Amnesty International Canada, New refugee
system does not treat refugees fairly or protect those most at risk, 14 December 2012: http://ccrweb.ca/en/bulletin/12/12/14.
[14] United Nations High Commissioner for Refugees, The human and financial cost of detention of asylum-seekers
in Canada, December 2011, 104 pages, pp. 73-86: http://www.unhcr.ca/resources/documents/RPT-2011-12-detention_assylum_
seekers-e.pdf.
[15] Hans & Tamar Oppenheimer Chair in Public International Law, Bill C-4: The impact of detention and temporary status
on asylum seekers’ mental health, January 2012: http://oppenheimer.mcgill.ca/Bill-C-4-The-impact-of-detention?lang=en.
[16] Native Women’s Association of Canada, Fact Sheet, Missing and Murdered Aboriginal Women and Girls, March 2010,
5 pages, p. 4: http://www.nwac.ca/files/download/NWAC_3D_Toolkit_e.pdf.
[17] Ibid, p. 3.
[18] Human Rights Watch (HRW), Those who take us away: Abusive policing and failure is in protection of indigenous women
and girls in northern British Columbia, Canada, 13 February 2013, 95 pages, pp. 50-65: http://www.hrw.org/sites/default/files/
reports/canada0213webwcover_0.pdf.
[19] Ibid, p. 8.
[20] Association des services de réhabilitation sociale du Québec, Réflexions sur les conditions de détention et les services
correctionnels fédéraux: http://www.asrsq.ca/fr/salle/porte-ouverte/1302/salle_por_130203.php.
33
34
[21] Government of Canada, Office of the Correctional Investigator, Annual Report of the Office of the Correctional Investigator:
2011-2012, 26 June 2012: http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20112012-fra.aspx; and Submission to the Committee
Against Torture by the Canadian Human Rights Commission, April 2012, 23 pages, p. 7: http://www.chrc-ccdp.ca/sites/default/
files/cat_cct-eng.pdf.
[22] Government of Canada, Office of the Correctional Investigator, Segregation in Canadian Federal Corrections:
A Prison Ombudsman’s Perspective, 22-23 March 2012: http://www.ocibec.gc.ca/cnt/comm/presentations/
presentations20130322-23-eng.aspx?texthighlight=segregation.
[23] United Nations, Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel,
inhuman or degrading treatment or punishment, 5 August 2011, 27 pages, pp. 21-22: http://daccess-dds-ny.un.org/doc/UNDOC/
GEN/N11/445/70/PDF/N1144570.pdf?OpenElement.
[24] Government of Canada, Office of the Correctional Investigator, op. cit.
[25] Ombudsman and Child and Youth Advocate, The Ashley Smith Report, June 2008, 68 pages, pp. 22, 28 and 36:
http://www.gnb.ca/0073/PDF/AshleySmith-e.pdf.
[28] Committee Against Torture (25 June 2012), op. cit., p. 8; and Canadian Civil Liberties Association, Statement of Canadian
Civil Liberties Association, UPR-Info Pre-Session March 25th, 2013 Second Universal Periodic Review of Canada, 25 March 2013,
11 pages, p. 3: http://ccla.org/wordpress/wp-content/uploads/2013/03/STATEMENT-OF-CCLA-UPR-2013-Pre-Session.pdf.
[29] Ligue des droits et libertés, Association des juristes progressistes and Association pour une solidarité syndicale étudiante,
Répression, discrimination et grèves étudiantes : analyse et témoignages, April 2013, 47 pages, pp. 3, 6 and 7: http://liguedesdroits.
ca/wp-content/fichiers/rapport-2013-repression-discrimination-et-greve-etudiante.pdf.
[30] Ibid, p. 7; and Amnesty International, G8/G20, Toronto en juin 2010, 13 pages, p. 2: http://www.amnistie.ca/sites/default/files/
upload/documents/dossiers/g8-g20_mp.pdf.
[31] Committee Against Torture (25 June 2012), op. cit., Section 21.
[32] CCLA, CCLA: Government focus should be on police de-escalation techniques, not expanded Taser use, 27 August 2013:
http://ccla.org/2013/08/27/ccla-responds-to-ontario-governments-expanded-taser-use/; and “Tous les policiers ontariens
pourront avoir un Taser”, www.radio-canada.ca, 27 August 2013: http://www.radio-canada.ca/regions/ontario/2013/08/27/001taser-yatim-annonce-meilleur.shtml.
[33] “Man dies a day after RCMP use Taser on him in Leduc, Alta”, www.cbc.ca, 4 August 2013:
http://www.cbc.ca/news/canada/edmonton/man-dies-a-day-after-rcmp-use-taser-on-him-in-leduc-alta-1.1376866.
[34] United Nations, Human Rights Council, Summary prepared by the Office of the High Commissioner for Human Rights
in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, Canada, 29 January 2013, 21 pages, p. 2:
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G13/104/53/PDF/G1310453.pdf?OpenElement.
[35] Committee Against Torture (25 June 2012), op. cit., Section 8.
[36] Government of Canada, Canadian Charter of Rights and Freedoms: http://laws-lois.justice.gc.ca/eng/const/page-15.html.
[37] Corrections and Conditional Release Act, 143 pages, p. 35: http://laws.justice.gc.ca/PDF/C-44.6.pdf.
[38] Government of Canada, Criminal Code, 1,068 pages, pp. 311-312: http://laws-lois.justice.gc.ca/PDF/C-46.pdf.
[39] HRW, op. cit., p. 10.
[40] “Toronto police officer guilty of assaulting G20 protester Adam Nobody”, www.theglobeandmail.com, 12 September 2013:
http://www.theglobeandmail.com/news/toronto/toronto-police-officer-found-guilty-of-assaulting-g20-protester-with-weapon/
article14272231/.
[41] “Canada accused of 'complicity’ in torture in UN report”, www.cbc.ca, 1 June 2012:
http://www.cbc.ca/news/politics/canada-accused-of-complicity-in-torture-in-un-report-1.1166597.
[42] HRW, Omar Ahmed Khadr, 25 October 2012: http://www.hrw.org/news/2012/10/25/omar-ahmed-khadr.
[43] TRIAL, Desire Munyaneza: http://www.trial-ch.org/fr/ressources/trial-watch/trial-watch/profils/profile/423/action/show/
controller/Profile.html.
[44] “Le Canada appelle la population à débusquer 30 criminels de guerre présumés”, www.rfi.fr, 22 July 2011:
http://www.rfi.fr/ameriques/20110722-le-canada-appelle-population-debusquer-30-criminels-guerre-presumes.
[45] Amnesty International, Canada, Briefing to the UN Committee Against Torture, p. 11: http://www.amnesty.org/en/library/asset/
AMR20/004/2012/en/b46d9371-1b2c-414b-90e9-b97c3953cb48/amr200042012en.pdf.
36
DOMINICAN REPUBLIC
BACKGROUND
The Dominican Republic, which in recent years has become one of the most popular
tourist destinations in the Caribbean, is experiencing increasing levels of social inequality. At one end of the scale, wealthy owners of hotel complexes and farms, and
at the other an estimated 900,000 to 1.2 million undocumented immigrants1. Crime
rates have also seen a sharp increase. Police officers act in a way that is extremely
brutal and arbitrary, ostensibly as part of the fight against delinquency.
Some of the main human rights violations denounced by civil society include persistent human trafficking, forced labour – especially involving braceros (sugar cane
workers) –, discrimination and violence based on gender, skin colour and sexual orientation, and attacks against human rights defenders.
During the first year of his mandate, President Danilo Medina made no inroads into
the impunity and corruption of politicians and State officials, highly criticised under
his predecessor Leonel Fernández (2004-2012), a member of the same centre-right
Dominican Liberation Party (PLD). Since 2012, NGOs have expressed concerns about
draft reforms that would introduce sentences of up to three years’ imprisonment for
anyone found criticising elected representatives or government-appointed officials2.
PRACTICE OF TORTURE
The authorities deny the widespread use of torture, referring only to isolated cases3.
Although there is no available data on the number of victims, it would appear that
police officers in particular use force in a way that is excessive, systematic and
highly discriminatory.
Victims
The police carry out sweep operations in impoverished urban areas with high rates
of delinquency such as Capotillo, Gualey, Guachupita, Tres Brazos and Cristo Rey in
Santo Domingo4 and San José de la Mina in Santiago. In these areas, males, minors
and young adults, assumed to be responsible for smuggling or kidnappings for ransom and invariably taken to be members of naciones (gangs5), are subjected to arbitrary arrests and police brutality. On 28 September 2010, police officers burst into a
motel in Cristo Rey, where they found Junior Tontón Santiago and Samuel Sánchez
Monte de Oca. They shot Santiago and tortured his companion in their vehicle while
driving around the district in an effort to obtain information about a weapons stash
and the murder of a doctor6.
Many residents in these areas are also at risk of State violence when forced evictions are conducted for the benefit of industrial or tourist projects. In most cases, the
government justifies these evictions on the basis that the tenants have no ownership
deeds or authorisation to occupy the buildings, which is true of half of all Dominicans
and 75% of those living in Santo Domingo province. On 15 October 2011, 300 police
officers and military personnel evicted residents from 72 houses in Brisas del Este,
an area in the capital. They confiscated all of their belongings and levelled their
homes. More than 20 of them had to be admitted to hospital with buckshot wounds,
and many others, including pregnant women and children, were exposed to tear gas7.
Persons deprived of liberty endure appalling conditions of detention and are regularly
subjected to acts of ill-treatment. As of October 2012, there were 23,000 detainees in the Dominican Republic, for a maximum capacity of 11,5058. In the country’s
22 oldest prison facilities, there have been several reports of extreme overcrowding, lack of hygiene, failures to separate convicts from suspects in pre-trial detention (65%9), and acts of violence between detainees with no intervention by prison
wardens. In all of these facilities, as in the 13 correction and rehabilitation centres (CCRs), which are more recent and supposed to be better equipped to ensure
social rehabilitation, wardens harass and assault detainees and extort money from
37
38
those who wish to participate in training activities, receive visits, attend hearings
or secure early release10. In March 2013, the national press reported allegations of
torture against CCR inmates in the city of Moca by wardens and the facility’s assistant director, in particular refusing to treat sick and elderly detainees11.
Demonstrators face excessive and unjustified force from the authorities. In 2011 and
2012, students from the autonomous university in Santo Domingo who were protesting against budgetary laws and fiscal reform were brutally repressed: one of them,
Willy Warden Florián Ramírez, died while another, Claudia Espíritu, was shot in the
foot. Several others were injured, in particular by tear gas canisters.
Members of the LGBTI community, who face widespread discrimination, are subjected to arbitrary arrests, sexual abuse, torture and even killings12.
Journalists and human rights defenders who denounce such abuses, as well as
their friends and family, are targeted by attacks either carried out or tolerated by the
law enforcement authorities. According to the national trade union of journalists,
70 of its members were attacked during the first 10 months of 201213. Juan Almonte
Herrera, from an NGO known as the Dominican Committee of Human Rights, was
last seen on 28 September 2009, as police officers arrested him near his workplace.
His family and their lawyers, who have called for an explanation, have been subjected to surveillance and monitoring operations as well as anonymous phone calls.
They have not received any protection despite the recommendations of the InterAmerican Commission on Human Rights (IACHR)14.
Haitian immigrants and Dominicans of Haitian origin, who are the target of widespread racism, represent an even more vulnerable category. It is virtually impossible for them to secure identity papers, and since the introduction of a law in 2007,
subsequently reinforced by a Constitutional Court ruling on 23 September 201315,
Dominicans of Haitian origin find themselves in a situation of statelessness16. Many
of them are brutally and arbitrarily arrested and then deported without being given
the chance to prove that they are legal residents, recover their belongings or express
their fear of being tortured or ill-treated in Haiti. In 2012, local NGOs denounced the
conditions of detention at the Bono centre, where 50 men had been piled into a cell
with a capacity for six. They were left without chairs, beds or lighting and had to
share a single bathroom. The same organisations documented cases of law enforcement officials and members of the immigration authorities ripping up residency permits and identity papers in order to carry out expulsions17.
Torturers and torture sites
Torture usually begins at the time of arrest and continues in the police vehicle, during
interrogations at the police station and in prison.
The 30,000 members of the national police force18 are the primary culprits of extrajudicial killings, torture, ill-treatment and enforced disappearances*. The motorised
unit (LINCE), designed for rapid intervention in an unstable security situation, as well
as the Special Weapons and Tactics unit (SWAT), which is despatched in the case of
abductions and public disorder, are responsible for most of these abuses.
Such practices can be explained by several factors. Article 29 of the institutional law
governing the national police force only regulates the use of firearms rather than
the use of force in general, and is sufficiently vague to allow police officers after the
event to claim that there had been “shots exchanged” or “attempted escapes” and
ensure they will not be prosecuted19. The Dominican Republic tops the list of Latin
American and Caribbean nations in terms of the number of civilian deaths caused by
the police20. According to the office of the public prosecutor, 15% of recorded homicides can be attributed to the police21, although this phenomenon has eased slightly in
recent years (194 deaths in 2012 compared to 233 in 201122). There is almost no monitoring of conditions of detention and arrest. Officers frequently operate without legal
authorisation or an arrest warrant, exceed the maximum legal period of 48 hours’
police custody, and conduct interrogations in the absence of a public prosecutor23.
Due to their very low levels of pay, many police officers consider arrests to be an
opportunity to extort money from their victims. Indeed, it is not unusual for them to
use their uniform and weapons to work as private security guards24, leading to widespread confusion and facilitating abuses.
Prosecutors are regularly complicit in such acts of torture. Hipólito Caba Tineo, who
was arrested and tortured in October 2010 in an abduction case, told how “When I
was brought before the prosecutor and showed her the signs of torture, she said ‘this
is necessary in order for you to speak”25.
Military personnel who assist the police in conducting certain operations such as
forced evictions26 and carry out border checks regularly engage in acts of torture
and ill-treatment (beatings, rape) in order to obtain bribes. On 9 April 2012, Haitians
who had illegally entered the country were intercepted by soldiers near Las Matas
de Farfán in San Juan province. They panicked and tried to escape, but two of them
were caught and beaten with machetes. One of them had his hand severed while his
companion’s back was lacerated27.
39
40
Prison wardens – whether police officers or military personnel in the older so-called
“traditional” facilities, or civilian personnel, as in the CCRs – also perpetrate acts of
torture and ill-treatment28.
Methods and objectives
The primary torture techniques documented in the Dominican Republic include beatings (punching, kicking and with the use of sticks), rubbing onions on the eyes of
the victim, the “dry submarine” technique (whereby the victim’s head is covered with
a plastic bag)29, extended periods in painful positions (kneeling or suspended in the
air unable to touch the ground), sexual violence, water and food deprivation, and
restricted access to toilet facilities30.
These methods are used to obtain information or extract confessions, as well as to
punish victims and extort money. On 12 March 2012, police officers arrested a young
couple in Santo Domingo. They told the man to go and fetch them money and sexually
abused his girlfriend while he was gone31.
The main domestic laws in the Dominican Republic clearly prohibit the use of torture.
Article 42.1 of the Constitution provides that “no-one shall be subjected to aggravated punishment, torture or other measures that damage or deprive them of their
health or physical and mental integrity”32.
Article 303 of the Penal Code provides a definition of torture accounting for the
various circumstances in which it might be used, whether or not physical or mental
suffering is inflicted. Nonetheless, the legislation makes no mention of the liability
of public officials or persons acting under their authority or with their consent. The
applicable sentence for acts of torture is between five and ten years’ imprisonment.
This can be extended to 30 years if there are aggravating circumstances, i.e. if the
victim is a minor, disabled or has been raped, or if the perpetrator is a civil servant
or the victim’s partner33.
Articles 10, 107 and 276 of the Code of Criminal Procedure prohibits torture and
cruel, inhuman and degrading treatment. According to Articles 166 and 167, illegally
obtained evidence shall not be admitted by the courts34.
Article 27 of the institutional law governing the national police stipulates that no
member of the police force shall “inflict, incite or tolerate acts of torture” or “invoke
the orders of a superior or exceptional circumstances”35.
The Dominican Republic ratified the Inter-American Convention to Prevent and
Punish Torture in 1986. However, the UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment only came into force in the
Dominican Republic in February 2012.
The Dominican Republic has a long history of impunity. Those who carried out arbitrary arrests, acts of torture, executions and enforced disappearances* (around
50,000 victims, including 17,000 Haitians) under the dictatorship of Rafael Leónidas
Trujillo Molina (1930-1961)36 have never been prosecuted. It is also clear that none of
those responsible for acts of torture and ill-treatment in recent years have been convicted either37. There is no information available about the number of State officials
who are subject to investigations, have had charges brought against them or been
tried by the courts for these crimes. Of the 79 cases of police homicides documented
between September 2008 and July 2010, 24 led to 13 court rulings, eight of which
ended in convictions. It is most likely that the remaining 55 cases did not even lead
to an investigation38.
Most victims do not dare to speak out or file a complaint, either because they are
unaware of their rights or, more often than not, for fear of reprisals and because they
have no trust in public investigations or the judicial system.
The authorities seem unable to conduct quick, impartial and comprehensive investigations. According to the law, they must intervene as soon as they are made aware
of torture allegations. In reality, however, the likelihood that they will do so in the
absence of an official complaint is negligible. Furthermore, the attention given to
individual cases depends on the level of media coverage and political pressure.
It falls to the judiciary to conduct investigations. However, under Article 171 of the
Constitution, the President is responsible for appointing the Public Prosecutor of the
Republic and half of his assistant prosecutors.39 This increases the risk of partisan
influences. The Code of Criminal Procedure stipulates that the police offers assistance to the judiciary in its investigations. In practice, however, these roles are often
reversed. Police officers offer their conclusions, even in relation to circumstances
where their actions have been challenged, and prosecutors often do no more than
validate these conclusions40. In court hearings where the accused shows clear signs
41
42
of torture, judges almost never demand an investigation, limiting their actions to disallowing pre-trial detention. What is more, they often admit evidence obtained by force41.
Those who make torture allegations and file an official complaint find it difficult to
secure the services of a lawyer. Most of them have to settle for a publicly-appointed
lawyer due to a lack of financial resources. There is a shortage of such lawyers, and
they suffer from inadequate resources42.
In the absence of a protection programme, witnesses often refuse to appear in court
for fear of reprisals43.
Recent reforms offer some hope, but need to be developed and better monitored.
In 2001, a new law established an ombudsman responsible for ensuring greater
respect for human rights and producing regular reports. However, 12 years later,
this position has yet to be filled.
Since 2004, there are no longer any police or military courts in the Dominican
Republic, where cases involving human rights violations are now exclusively tried
by the regular courts. Yet it would appear that many cases circumvent the courts and
result in no more than disciplinary sanctions44.
A national institute of forensic sciences (INACIF), responsible for providing forensic,
scientific and technical expertise during legal trials, was created in 2005, although
it continues to lack resources and a clear mandate that would give it sufficient independence, in particular from the scientific department of the national police45.
The police force’s central department of internal affairs offers human rights training
and has dismissed – but later partly reinstated – corrupt officers (12,000 between
2007 and 2010)46. All of the planned reforms to address human rights violations committed by police officers have been rejected following pressure by senior members
of Parliament and the government. In 2011, for example, a draft organic law which
would have enhanced the judiciary’s investigative abilities was amended to such
an extent that it no longer had any substance. On 26 November 2012, President
Medina established a commission designed to propose far-reaching reforms to the
police force (recruitment, working conditions, promotions and monitoring) as part of
a national public security plan. In March 2013, the IACHR reminded the Dominican
authorities of their obligation to consult with civil society members in relation to this
process47. At the time of writing, they had not yet followed these recommendations.
[1] US embassy in Santo Domingo, Dominican Republic, Dominican Republic human rights report for 2012:
http://santodomingo.usembassy.gov/drhr2012.html.
[2] Amnesty international, Annual Report 2013: The state of the world's human rights, Dominican Republic:
http://www.amnesty.org/en/region/dominican-republic/report-2013.
[3] Amnesty International, “Shut up if you don't want to be killed!”: Human rights violations by police in the Dominican Republic,
October 2011, 70 pages, pp. 7 and 29: http://www.amnesty.org/en/library/asset/AMR27/002/2011/en/6ead3e9d-0684-40ae-aa7173c3dc5382dc/amr270022011en.pdf.
[4] Ibid, p. 5.
[5] Ibid, p. 13.
[6] Ibid, p. 25.
[7] Amnesty International, Dominican Republic: Families evicted, threatened, 28 October 2011: http://www.amnesty.org/en/library/
asset/AMR27/007/2011/en/12f3030a-a6e4-4e56-839e-848b25a86480/amr270072011en.html.
[8] US embassy in Santo Domingo, op. cit.
[9] Ibid.
[10] Ibid.
[11] “Denuncian presunta torturas cárceles de República dominicana”, proceso.com.do, 20 March 2013:
http://proceso.com.do/generales/12229-denuncian-presunta-torturas-carceles-de-republica-dominicana.html.
[12] United Nations, Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant,
Concluding observations of the Human Rights Committee, Dominican Republic, 19 April 2012, 6 pages, p. 4: http://www2.ohchr.org/
english/bodies/hrc/docs/CCPR.C.DOM.CO.5_en.doc.
[14] “Convocatoria a audiencia pública en las medidas provisionales dictadas en el asunto Juan Almonte Herrera
y otros vs. República Dominicana”, corteidhblog.blogspot.fr, 29 January 2012: http://corteidhblog.blogspot.fr/2012/01/
convocatoria-audiencia-publica-en-las.html.
[15] Organization of American States, IACHR expresses deep concern over ruling by the Constitutional Court of the Dominican
Republic, 8 October 2013: http://www.oas.org/en/iachr/media_center/PReleases/2013/073.asp.
[16] United Nations, Committee on the Elimination of Racial Discrimination, Concluding observations on the thirteenth
and fourteenth periodic reports of the Dominican Republic, adopted by the Committee at its eighty-second session
(11 February – 1 March 2012), 19 April 2013, 9 pages, p. 5: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G13/428/44/PDF/
G1342844.pdf?OpenElement.
[18] Amnesty International, “Shut up if you don't want to be killed!”, op. cit., p. 9.
[19] Ley Institucional de la Policía Nacional, No. 96-04, 36 pages, art. 29, p. 12: http://www.oas.org/juridico/spanish/mesicic2_
repdom_sc_anexo_5_sp.pdf.
[20] Comisión Nacional de los Derechos Humanos, Informe 2011, Situación de los Derechos Humanos en República Dominicana,
12 December 2011: http://cndhrd.blogspot.fr/2011/12/comision-de-los-derechos-humanos.html.
[23] Comisión Nacional de los Derechos Humanos, op. cit.
[25] Ibid, p. 29.
[26] Amnesty International, Dominican Republic: Families evicted, threatened, op. cit.
[27] “Reportage spécial. Haïti”, N°2/2012, 12 pages, pp. 4-5: http://www.equaltimes.org/wp-content/uploads/2012/10/Equal_
Haiti_FR.pdf.
[29] Ibid.
[30] Amnesty International, “Shut up if you don't want to be killed!”, op. cit., pp. 26-29.
[32] Constitución de la República Dominicana, 26 January 2010, 97 pages, p. 12:
http://www.suprema.gov.do/PDF_2/constitucion/Constitucion.pdf.
[33] Código Penal de la República Dominicana, 82 pages, pp. 40-41:
http://www.oas.org/juridico/Mla/sp/dom/sp_dom-int-text-cp.pdf.
[34] Código Procesal Penal de la República Dominicana, 166 pages, pp. 12, 48, 67 and 104:
http://www.suprema.gov.do/PDF_2/codigos/Codigo_Procesal_Penal.pdf.
43
44
[35] Ley Institucional de la Policía Nacional, op. cit., p. 11.
[36] Museo memorial de la Resistencia Dominicana, La dictadura dejó 25,000 muertos-desaparecidos:
http://www.museodelaresistencia.org/index.php?option=com_content&view=article&id=407:la-dictadura-dejo-25000-muertosdesaparecidos&catid=58:noticias&Itemid=224.
[37] Amnesty International, Dominican Republic: Police shot man and now intimidate his family, 12 May 2011:
http://www.amnesty.org/en/library/asset/AMR27/001/2011/en/ce038b81-48f6-4cfb-a0b1-d8d75ad1f3dc/amr270012011en.html.
[38] Amnesty international, Dominican Republic: Human rights abuses by police: Facts and figures, 25 October 2011:
http://www.amnesty.org/en/library/asset/AMR27/006/2011/en/7ae39799-c4ba-49b3-9125-02b411a624b4/amr270062011en.pdf.
[39] Constitución de la República Dominicana, op. cit., p. 12.
[40] Amnesty International, Dominican Republic: Police shot man and now intimidate his family, op. cit.
[43] Redress, La tortura en el continente Americano: la ley y la práctica, Informe de conferencia regional, June 2013, 57 pages, p. 46:
http://www.redress.org/downloads/publications/130723SpanishTorture%20in%20the%20Americas2.pdf.
[45] Amnesty International, “Shut up if you don't want to be killed!”, op. cit., pp 41-47.
[46] Ibid, p. 11.
[47] Organization of American States, IACHR, Situation of the Right to Citizen Security in the Dominican Republic, 12 March 2013:
http://www.oas.org/es/cidh/audiencias/topicslist.aspx?lang=en&topic=31.
46
HAITI
BACKGROUND
The earthquake in January 2010 worsened an already chaotic situation combining
poverty, criminality, corruption and an ineffectual legal system and state institutions.
In political terms, an ongoing conflict between President Michel Martelly’s government and the Parliament has blocked the reforms needed for the reconstruction and
development of Haiti.
The persistence of cholera, the lack of access to basic commodities for at least
800,000 Haitians1 and the widespread violence have led to demonstrations of public
anger, particularly in the last few months of 2012.
The authorities have focused on reconstructing the country to the detriment of human
rights. Police brutality is an ongoing problem, and the incidence of sexual assaults
has soared, especially in refugee camps. Violence against children, discrimination
towards minority groups and human trafficking continue to be a source of concern2.
The vast amounts of international aid received failed to provide a lasting solution, and
2012 saw the withdrawal of most humanitarian organisations. The United Nations
Stabilization Mission in Haiti (MINUSTAH), established in 2004, has struggled to fulfil its mandate to “restore a secure and stable environment […], strengthen Haiti’s
government institutions and rule-of-law structures, as well as to promote and protect human rights”3. In October 2013, this mandate was extended until 15 October
2014 with a view to being extended further thereafter4. The mission is set to include
5,021 troops and 2,601 police officers.
PRACTICE OF TORTURE
Torture remains commonplace in police stations, prisons and offices of the public
administration, sometimes resulting in death: between October 2010 and June 2011,
nine deaths were reported5. It is impossible to quantify the full-scale of the phenomenon as there is no official data available in relation to torture allegations and also
because very few victims file a complaint for fear of reprisals or because they do not
trust the authorities.
Victims
Suspected common law offenders generally are potential victims of torture. On
15 June 2011, 44-year-old Serge Démosthène was arrested without a warrant by
officers from the Pétionville police station (a suburb of Port-au-Prince) who were
operating outside of their jurisdiction. They tortured him into confessing to the murder of a bank manager. For 12 hours he was slapped and beaten all over his body,
deprived of water and suffocated with a plastic bag. He was taken to hospital where
he was pronounced dead on arrival6.
In Haiti, persons deprived of their liberty are subjected to inhuman conditions of
detention, ill-treatment and torture. As of December 2012, there were a total of
8,860 detainees in 17 prisons. 60% of them were in pre-trial detention (90% in Portau Prince)7, one third of whom had been detained for more than a year. Added to this
figure are the hundreds of detainees languishing in police stations, often for more
than the 48-hour period authorised for police custody8.
Prison overcrowding is such that detainees have a living space of barely 0.5 m²
each9 and must take turns sleeping. Access to food10, drinking water and daylight is
restricted. During the first half of 2012, 69 detainees died of cholera or tuberculosis
– compared to 43 in 2011 – as a result of deplorable hygiene conditions and a lack of
healthcare and cells specifically for sick inmates11.
Prison wardens regularly make disproportionate use of violence. In September 2012
in Arcahaie prison (Western department), detainees alleged they had been beaten as
part of “disciplinary” measures12.
As of June 2013, 299 minors were in detention, 167 of whom were in prisons for
adult inmates. Just 20% of them had been formally convicted13. Although the Criminal
Procedure Code places the legal age for criminal liability at 16, younger children continue to be sent to prison. The conditions endured by female detainees are no better.
According to testimony provided by Francine Desormeaux, a Quebec citizen incarcerated in Pétionville prison, inmates are forced to wash in the courtyard in front of
male detainees and wardens, and are regularly beaten with sticks14.
47
48
The roughly 358,000 internally displaced persons15 who have been living in camps
since the earthquake struck are also subjected to violence by the country’s law
enforcement officials. The public authorities and private landowners who wish to
recover their land engage the services of the police and private militias, who threaten
and physically assault occupants in order to evacuate the camps. On 23 and 25 May
2011, Delmas city officials and police officers brutally expelled 300 families from
a camp at Place Carrefour Aéroport and “Assistance plus” camp. Their personal
belongings and shelters were either seized or destroyed16.
Women and teenage and young girls are highly vulnerable to sexual assault. According
to the International Organization for Migration (IOM), many women and girls are raped
by police officers but do not have the courage to report these crimes.17
Those who criticise the incumbent regime, take part in public demonstrations or
act to defend human rights also come up against State violence. On 5 March 2011,
Frantz Emmanuel Louis and Sterson Jordanaud Jeune were hanging up posters in
support of presidential candidate Mirlande Manigat when they were arrested. Their
bodies were found the next day, badly beaten and riddled with bullets18.
In a similar incident on 15 April 2013, Civil Merius, who had been participating in a demonstration against an act of arson at a camp known as “Acra et Adoquin Delmas 33”,
was arbitrarily arrested and beaten to death at the police station afterwards19.
People who work with victims of rape are the target of specific attacks, mainly sexual in nature, by law enforcement officials20.
The Haitian national police force (PNH) continues to be identified more than any
other group with acts of torture and ill-treatment. Its members primarily carry out
abuses while arresting suspected common law offenders, often arbitrarily, during
police custody and prolonged periods of detention, and while breaking up public
demonstrations (in particular the units responsible for intervention and maintaining
order – CIMO21 and UDMO). Anyone who files a complaint at a police station also
runs the risk of ill-treatment. On 23 October 2012, a man who had been the victim of
an assault went to a police station in Trou-du-Nord (North-eastern department). He
alleges that a police officer slapped him, twisted his wrist and forced him to kneel
on his injured leg22.
In the Western department alone, between October 2010 and May 2012, MINUSTAH’s
Human Rights Section documented cases of extrajudicial killings, illegal use of firearms, torture and ill-treatment involving over 100 police officers23.
Officials from the customs authority (Direction générale des douanes – DGD) assist
the police in fighting crime, carrying out forced evictions, cracking down on demonstrations and even carrying out arrests. They have also been responsible for acts of
torture and ill-treatment24.
Senior civil servants from the judiciary, in particular government commissioners
(public prosecutors), turn a blind eye to police brutality and have even taken part in
torture sessions25.
Employees of the prison authority (Direction de l’administration pénitentiaire – DAP)
commit daily acts of torture and ill-treatment against inmates. The situation appears
to be particularly critical at the Arcahaie, Cap Haïtien and Trou-du-Nord facilities26.
Some acts of violence that constitute torture are “outsourced” to independent security forces or are the work of crowds apparently acting with tacit authorisation.
So-called justices of the peace (responsible for resolving petty offences and minor
disputes in communes27) use civilians known as “brigadiers” to issue arrest warrants
and even carry out arrests. The widespread abuses range from extortion to beatings.
On 27 September 2012, individuals recruited by a justice of the peace violently beat
the brother of a suspect during an interrogation28. Cases involving public vendettas
are also commonplace. In 2012, 121 people died in this way29. The authorities have
failed to respond adequately in order to prevent and punish these crimes, which
result from a lack of trust in the judicial system and police force, or from popular
rumours. In late 2010, several people were lynched for engaging in witchcraft with a
view to spreading cholera30.
Lastly, several reports have questioned the actions of some MINUSTAH troops
towards civilians and police officers31. In January 2012, in the Northern department,
military personnel based in Limonade beat a group of students from a school in Cap
Haïtien. Others raped a 14-year-old boy in Gonaïves (Artibonite department). A total
of 10 allegations of rape against MINUSTAH officials were recorded in the year 201232.
The most common torture techniques are slaps and beatings, especially with the use
of sticks and iron bars. In some cases, victims have also been subjected to insults,
death threats, stone throwing33, tear gas34 and a technique known as the “dry submarine”35 (whereby the victim is suffocated using a plastic bag).
Torturers use these techniques to extract confessions and obtain information, to
humiliate, punish or evict victims, or to extort money.
49
50
Haiti has been a State Party to the International Covenant on Civil and Political Rights
since 1991, but has not recognised the competence of the Human Rights Committee
to examine individual complaints. It has signed but not ratified the Inter-American
Convention to Prevent and Punish Torture and the United Nations Convention against
Torture.
Domestic legislation contains a definition of torture and stipulates appropriate sanctions, although these fall far short of international standards.
Article 25 of the Constitution states that “Any unnecessary force or restraint in the
apprehension of a person or in keeping him under arrest, or any psychological pressure or physical brutality, especially during interrogation, is forbidden” and “No one
may be interrogated without his attorney or a witness of his choice being present”.
Article 27-1 provides that “Government officials and employees are directly liable
under civil and administrative criminal law for acts carried out in violation of rights.
In such cases, civil liability extends to the State as well”. Furthermore, according to
Article 42-3 “abuses, violence and crimes perpetrated against a civilian by a member
of the military in the performance of his duties are under the jurisdiction of courts for
ordinary law”, and according to Article 276-2, international treaties take precedence
over national laws36.
Haiti’s criminal law, which has been awaiting reforms since 2009, is a legacy of the
Napoleonic codes and contains provisions that are archaic and no longer fit for purpose. The Penal Code refers to torture although fails to define it or the circumstances
to which it applies. Nor does it stipulate that State officials can be held criminally
liable. Under the terms of Article 248, “anyone who, regardless of their title, employs
torture or commits acts of barbarity in carrying out their crimes shall be guilty of
premeditated murder”. Article 293 further states: “If [an individual who has been
arrested, detained or sequestered] is subjected to bodily torture, the person responsible shall be sentenced to a life of forced labour”37.
In March 2012, the Senate adopted an organic law that formally established the Office
of citizens protection (OCP), initially created by the 1987 Constitution. The OPC was
designed to prevent acts of torture and serve as the country’s National Preventive
Mechanism* (NPM) and has now begun to investigate alleged human rights violations.
In 2012, despite inadequate human and financial resources, it conducted several visits to detention centres accompanied by Haitian NGOs, the International Committee
of the Red Cross and MINUSTAH38.
Nonetheless, a climate of impunity continues to dominate cases involving human
rights violations. The police force falls under the authority of the Ministry for
Justice and Public Security, which exerts political pressure that undermines the
independence of investigations and the judicial system. The Haitian National Police
Inspectorate General (HNPIG), which is responsible for conducting internal investigations into alleged human rights violations by police officers and for transferring
cases to the public prosecutor, answers to the Director General of the police force
itself and is therefore unduly influenced. Although the HNPIG now initiates more
investigations than before, in most cases they present certain shortcomings and are
not completed39.
Securing legal representation in Haiti is a complex challenge. Most victims of human
rights violations and common law suspects come from underprivileged backgrounds
– slums and rural areas – and do not have the means to pay for a lawyer.
There is no real system of free legal aid at a national level. Pro bono consultations
offered by certain legal associations in criminal cases are insufficient and rarely
benefit those most in need. A draft law designed to remedy this problem and intended
as an annex to the Code of Criminal Investigation (similar to a code of criminal procedure) has suffered from delays40.
It is almost impossible for persons deprived of their liberty to obtain recognition of
the abuses they have suffered. It is not unusual for them to be interrogated without the presence of a lawyer. Most of them are not brought before a judge within
48 hours of their arrest; indeed, for some this period may reach months or even
years. The Constitution provides for detainees to challenge the legality of their arrest
and detention, although in practice detainees are not informed of this provision and
in any case have no lawyer to represent them.
Delays and a lack of fairness are characteristic of all legal procedures. This situation
worsened with the earthquake in 2010: many court buildings are still unable to function, while others lack personnel and other resources. Procedures take place without
due regard for standard protocol and vary from one case to the next. In some cases,
government commissioners and investigating judges carry out separate investigations, resulting in conflicting opinions on how to proceed with prosecutions41.
Judges, prosecutors, registrars and other officers of the courts are often poorly
paid or paid in arrears, thus perpetuating corrupt practices and causing high levels
51
52
of absenteeism42. Several reports have also highlighted a general lack of training.
The École de la magistrature (EMA) responsible for training judges has only resumed
some of its activities since the earthquake43.
Haiti’s higher judicial council (CSPJ), created in 2007 to independently nominate,
promote, supervise and sanction judges, was not put in place until July 2012 and
continues to experience operational difficulties. It would appear that the Ministry for
Justice and Public Security, which previously carried out this role, has continued
to appoint judges without consulting the CSPJ44 in exchange for political support45.
Between October 2011 and February 2012, after an eight-year period away from the
Haitian political scene, the head of State nominated 11 of the 12 members that make
up the Court of Cassation, which is responsible for disciplinary cases involving officers of the courts, an area that has suffered from huge delays.
The response from the disciplinary authorities to cases involving human rights violations has been varied and lacking in transparency and has not often resulted in sanctions. In his February 2013 report on Haiti, the independent expert on human rights
reported that 79 police officers – including senior ranking officers and police chief
inspectors – were dismissed for offences including assault, rape and abandonment
of post46. At the same time, some of the 20 police officers accused of causing the
death of nine people in Port-au Prince between October 2010 and June 2011 were
initially suspended but later allowed to resume their duties before the investigation
had ended47.
Human rights violations committed in the past also go unpunished. Jean-Claude
Duvalier, who was in power from 1971 to 1986, is thought to be responsible for many
enforced disappearances, acts of torture and extrajudicial killings. When he returned
to Haiti in January 2011 after 25 years in exile, 22 victims formally accused him
of crimes against humanity and a judicial investigation was opened by the public
prosecutor in the capital. Nonetheless, in January 2012, the investigating magistrate
threw out the case based on the statute of limitations. The victims have appealed
against the decision.
The low level of sanctions taken against MINUSTAH troops responsible for human
rights violations sets a bad example. In March 2012, two MINUSTAH members from
Pakistan were sentenced to one year in prison for raping a 14-year-old boy in January
of that year. They were repatriated to Pakistan48. In July 2011, video footage recorded
by Uruguayan marines in Port-Salut showed them sexually assaulting 18-year-old
Johnny Jean. In March 2013, four of the five men charged with the crime were convicted of “private violence” rather than rape49.
[1] Amnesty International, Annual report 2012: The state of the world's human rights, Haiti: http://www.amnesty.org/en/region/
haiti/report-2012.
[2] U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Haiti 2012 Human Rights Report, 40 pages, p. 1:
http://www.state.gov/documents/organization/204668.pdf.
[3] United Nations Stabilization Mission in Haiti (MINUSTAH), Restoring a stable and secure environment:
http://www.un.org/en/peacekeeping/missions/minustah/.
[4] UN News Centre, Security Council extends mandate of UN peacekeepers in Haiti for another year, 12 October 2013:
http://www.un.org/apps/news/story.asp?newsid=43283#.UoIq1vmio_8.
[5] UN News Centre, UN human rights officials urge Haiti to probe alleged killings and acts of torture, 27 December 2011:
http://www.un.org/apps/news/story.asp/http%3Cspan%20class=%27pullme%27%3EIt%20has%20become%20increasingly%20
clear%20that%20disasters%20are%20setting%20back%20efforts%20in%20development%20%E2%80%93%20they%20
can%20cripple%20the%20economy,%20destroy%20infrastructure,%20and%20plunge%20more%20people%20into%20
poverty%3C/span%3E://www.unisdr.org/www.iaea.org/www.wmo.int/realfile/story.asp?NewsID=40846&Cr=haiti&Cr1=#.
UoTe6ye42IA.
[6] UN Office of the High Commissioner for Human Rights, Human Rights Section of MINUSTAH, Report on the torture
and murder of Serge Démosthène, December 2011, 16 pages, pp. 1-6, available in French (executive summary available in English)
at: http://www.ohchr.org/en/countries/lacregion/pages/htreports.aspx.
[7] United Nations, Human Rights Council, Report of the independent expert on the situation of human rights in Haiti, Michel Forst,
7 February 2013, 21 pages, pp. 9-10: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/AHRC-22-65_EN.pdf.
[8] International Crisis Group (ICG), Keeping Haiti Safe: Justice Reform, Latin America/Caribbean Briefing N° 27, 27 October 2011,
20 pages, pp. 3 and 4: http://www.crisisgroup.org/~/media/Files/latin-america/haiti/B27%20Keeping%20Haiti%20Safe%20
-%20Justice%20Reform.pdf.
[9] United Nations, Human Rights Council, Report of the independent expert on the situation of human rights in Haiti, Michel Forst,
23 April 2012, 22 pages, p. 8: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A.HRC.20.35.
ENG.pdf.
[10] Ibid.
[11] Human Rights Watch (HRW), World Report 2013, Haiti, 3 pages, p. 2: http://www.hrw.org/world-report/2013/countrychapters/haiti.
[12] MINUSTAH, Human Rights Section, Bi-annual report on the human rights situation in Haiti (July-December 2012),
38 pages, p. 20, available in French (executive summary available in English) at: http://www.ohchr.org/en/countries/lacregion/
pages/htreports.aspx.
[13] MINUSTAH, Human Rights Section, Report on the protection situation in Haiti (April-June 2013), 28 pages, p. 7, available in
French at: http://www.ohchr.org/en/countries/lacregion/pages/htreports.aspx.
[14] “Une Québécoise dans l'enfer d'une prison haïtienne”, www.lapresse.ca, 16 November 2012: http://www.lapresse.ca/
actualites/justice-et-affaires-criminelles/201211/15/01-4594466-une-quebecoise-dans-lenfer-dune-prison-haitienne.php.
[15] Plate-forme des ONG haïtiennes des droits humains (PODH), Regard sur la situation des droits humains en Haïti
durant l’année 2012: http://www.pohdh.org/article.php3?id_article=199.
[16] Amnesty International, Urgent action: Stop evictions of homeless Haitians, 27 May 2011: http://www.amnesty.org/en/library/
asset/AMR36/006/2011/en/464532d4-1290-4ed5-bad4-3a521b7d6bc8/amr360062011en.html.
[17] U.S. Department of State (2012), op. cit., p. 17.
[18] U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Haiti 2011 Human Rights Report, 37 pages, p. 2:
[19] Amnesty International, Haiti: Protester “beaten to death by police" following attack on camp, 17 April 2013:
http://www.amnesty.org/en/for-media/press-releases/haiti-protester-beaten-death-police-following-attack-camp-2013-04-17.
[20] United Nations, Human Rights Council, Working Group on the Universal Periodic Review, Summary prepared by the Office
of the High Commissioner Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1,
Haiti, 25 July 2011, 17 pages, p. 4: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/153/23/PDF/G1115323.pdf?OpenElement.
[21] PODH, op. cit.
[22] MINUSTAH, Human Rights Section, Bi-annual report (July-December 2012), op. cit., p. 18.
[23] MINUSTAH, Human Rights Section, Bi-annual report on the human rights situation in Haiti (January-June 2012),
26 pages, p. 14: http://www.ohchr.org/Documents/Countries/HT/MINUSTAH-OHCHRJanuaryJune2012_en.pdf.
and murder of Serge Démosthène, op. cit., pp. 5-6.
[26] MINUSTAH, Human Rights Section, Bi-annual report (July-December 2012), op. cit., pp. 19-20.
53
54
[27] ICG, op. cit., p. 2.
[29] Ibid, p. 21.
[30] United Nations, Human Rights Council, Working Group on the Universal Periodic Review, op. cit., p. 6.
[31] PODH, La MINUSTAH et les violations des droits de l’homme en Haïti. Violations des droits humains par la mission des nations
unies pour la stabilisation en Haïti (la MINUSTAH), 22 pages, pp. 8-9: http://www.collectif-haiti.fr/data/file/News/LA%20
MINUSTAH%20et%20les%20Violations%20des%20Droits%20Humains.doc.
[32] U.S. Department of State (2012), op. cit., p. 4-5.
[33] ‘L'ONU dénonce des exactions policières en Haïti’, www.metropolehaiti.com, 27 December 2011:
http://www.metropolehaiti.com/metropole/full_poli_fr.php?id=20139.
[34] MINUSTAH, Human Rights Section, Bi-annual report (July-December 2012), op. cit., pp. 18-19.
and murder of Serge Démosthène, op. cit., p. 5.
[36] Constitution of Haiti, 1987: http://www.oas.org/juridico/MLA/en/hti/en_hti-int-const.html.
[37] Penal Code, available in French at: http://www.oas.org/juridico/mla/fr/hti/fr_hti_penal.html.
[39] MINUSTAH, Human Rights Section, Bi-annual report (January-June 2012), op. cit., p. 15.
[40] ICG, op. cit., p. 7.
[41] Ibid, p. 4.
[42] Ibid, pp. 1, 5 and 15.
[43] Ibid, p. 13.
[44] Amnesty International, Annual Report 2013: The state of the world’s human rights, Haiti:
http://www.amnesty.org/en/region/haiti/report-2013.
[45] U.S. Department of State (2012), op. cit., pp. 10-11.
[46] United Nations, Human Rights Council, Report of the independent expert, op. cit., p. 11.
[47] UN News Centre, op. cit.
[49] “Haïti – MINUSTAH / Viol : 4 des 5 agresseurs de Johny Jean condamnés pour violence privée”, www.alterpresse.org,
14 March 2013: http://www.alterpresse.org/spip.php?article14246#.UlgeLhaFvf9.
56
PARAGUAY
BACKGROUND
In April 2008, the Patriotic Alliance for Change (APC), combining left-wing parties
and the centre-right Authentic Liberal Radical Party (PLRA), won back power from
the ultraconservative Colorado party, which had governed since 1947.
Fernando Lugo, the former “bishop of the poor”, was elected president on the strength
of planned social measures and agrarian reforms: 85% of the land in Paraguay is in
the hands of major landowners who represent just 2.5%1, while very small landowners and as many as 350,000 landless families2, many of whom are indigenous,
struggle to survive. However, finding himself caught up in internal disputes within
the coalition – the liberals are more favourable towards powerful businesses – and
exposed to systematic opposition from the largely right-wing parliament, the head of
State became isolated and unable to act.
On 22 June 2012, exploiting the confusion caused by the death of 17 people during
a police operation seven days earlier in a peasant camp in Curuguaty, MPs voted to
impeach the President. Although the Constitution does provide for such an eventuality, the accusation made (“negligence in carrying out his duties”) and the great haste
with which the procedure took place (just 12 hours) clearly point to an institutional
coup d’état. The vice president of the PRLA, Federico Franco, took over as interim
President until the inauguration in August 2013 of Colorado party member Horacio
Cartes, who was elected in April.
Reports published in 2013 by national and international NGOs document several
attacks in recent months against human rights defenders, peasant leaders, civil
servants from the previous government and grassroots journalists. They also point
to the persistent use of violent methods by the law-enforcement authorities, human
trafficking (children in particular), exploitation of indigenous workers, discrimination
against minority groups and the impunity of criminal gangs3.
PRACTICE OF TORTURE
When the definition of torture provided in the country’s Criminal Code in 2012 was
amended to meet international standards, there was a rise in the number of cases
recorded that year by the human rights department of the public Ministry (57 compared to 28 in 20114). Yet the number of complaints remains far lower than the number
of victims. The use of torture by the police and penitentiary authorities continues to
be widespread.
Victims
Torture and ill-treatment primarily affect marginalised members of society (youths
from disadvantaged areas, sexual minorities and indigenous peoples), who are subjected to stigmatisation and criminalisation5.
During protests for improved land distribution, peasants must cope with a disproportionate use of force by the authorities.
An example is what happened during the events that led to the fall of President Lugo.
Amid claims that land in Curuguaty was not being used and had been fraudulently
acquired by a company known as Campos Morombi, 90 peasants decided to peacefully occupy the site. On 15 June 2012, following a decision by the courts, 300 police
officers violently dismantled the camp. Several witnesses claim that the authorities deliberately failed to assist injured peasants6. According to the Coordinator of
Human Rights in Paraguay (CODEHUPY), at least 7 peasants were summarily executed, 9 were tortured (death threats, beatings and squeezed testicles) and 3 were
arbitrarily detained7.
Protests generally lead to crackdowns by law-enforcement authorities. In June 2012,
a group of citizens including many human rights defenders who had gathered to protest against the impeachment of the President were dispersed using water cannons,
tear gas and rubber bullets8.
Youths and minors from disadvantaged areas, considered to be delinquents, are
insulted and beaten in broad daylight as police carry out vehicle and identity checks.
In September 2010, 13-year-old Fernando from the marginalised Bañado Sur suburb
of Asunción was beaten and tortured in a police holding cell9.
The LGBTI community is regularly attacked with complete impunity by the civilian
population and law-enforcement authorities and often subjected to arbitrary arrests
and detention. On 21 January 2012, a lesbian woman known as M. A. was placed in
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58
a police van in a park where two officers raped her “to show her what a man is like”
while a colleague filmed the scene. After she filed a complaint, M. A. received threatening phone calls from her attackers10.
In prison, members of the LGBTI community are subjected to specific attacks: at
the Tacumbú facility in Asunción, transvestites have been forced to play out sexual
scenes for the amusement of fellow detainees and wardens11. Intimate visits by members of the same sex are forbidden.
Acts of torture and ill-treatment are generally rife in custodial facilities. The country’s 16 prisons, with a capacity of 7,216, housed a total of 9,138 detainees as of July
201312. Overcrowding has resulted in minors being detained alongside adults13, people with psychosocial disorders alongside regular detainees14 and the vast majority
of suspects (71.9 %) alongside convicted inmates serving custodial sentences. Many
are placed in pre-trial detention for longer than the maximum lawful period of two
years. Furthermore, inadequate police premises – more than 1,30015 – are used to
house many detainees on a long-term basis. Corruption and violence dominate the
system as a whole to such an extent that the vast majority of detainees, who are very
poor, live in appalling conditions with total disregard for their rights. Everything has a
price: mattresses, food, medication and access to a doctor, visits from loved ones or
a lawyer, and the right to work16. The most disadvantaged among them are left piled
in the prison corridors, referred to as pasilleros. Several detainees claim to have been
beaten or placed in solitary confinement* for asking to see a doctor17.
Foreign nationals can be extradited without any assessment of the risk of dangerous
returns by the authorities. Although the United States have been accused of resorting to acts of torture and ill-treatment in the fight against terrorism, in January 2011
Paraguay agreed to extradite Lebanese national Moussa Ali Hamdam, suspected by
Washington of having links with Hezbollah18. Other Middle Eastern residents of the
“Tri-border area” between Paraguay, Brazil and Argentina are at risk of the same
treatment19.
The police (anti-riot and judicial units as well as the Special Operations Group – GEO)
are the main perpetrators of torture. Abuses mainly take place at the time of arrest,
which is often arbitrary, while transporting detainees or during the first few hours
of detention. Since there is no effective system for internal surveillance or checks
on the legality of their behaviour20, officers are free to carry out and cover up these
abuses without difficulty.
Legal timeframes are not always respected: the public Ministry and supervisory
judge must be informed of all arrests during the first six hours of police custody21.
Suspects are then brought before a criminal judge following a 24-hour period in
detention.
Without proper training in scientific techniques, police officers use torture as a
method of investigation, and although Article 90 of the Criminal Procedure Code prohibits police officers from taking statements22, the confessions obtained are nonetheless used to justify pre-trial detention and convictions23.
The fact that officers are themselves responsible for deciding whether or not to grant
detainees access to medical care makes it all the more easier for them to disguise
acts of torture24.
Officers are poorly paid and forced to provide their own equipment (weapons, uniforms and petrol for patrol cars) and do not hesitate to engage in extortion, often
through the use of violence25. On 31 January 2012, near Ciudad del Este, two police
officers falsely imprisoned, beat and attempted to asphyxiate Encina Casco and his
wife Reina Troche in order to seize their money and vehicle26.
Violence is also committed by penitentiary officials, who suffer from inadequate staff
numbers and a lack of training. Paraguay’s Prison Act provides for disciplinary sanctions but fails to specify the offences to which they apply, thus facilitating abuses.
Solitary confinement in particular is used arbitrarily, repeatedly and for durations
that far exceed the 30-day limit provided for under law. Several detainees have had
to pay their way out of their confinement cell27.
Detainees are not systematically allowed a medical examination when they first
enter prison and find it difficult to secure medical visits thereafter.
Finally, torture continues to be widespread within the army, where it is an integral part of the discipline and training used for young recruits28. In September 2012,
Sergeant Hugo Barrios placed 20-year-old Adrián Acosta Sanabria in solitary confinement, accusing him of selling the uniforms of high-ranking officers. For two
weeks, he subjected him to beatings all over his body29. In 2009 and 2010, military
personnel dispatched to the east of the country to provide support for the police committed several human rights violations including torture30.
Police officers primarily use torture to obtain information and confessions. For
prison wardens, its main purpose is to maintain order, but it is also carried out for
no apparent reason, in particular while detainees are asleep31. In both cases, it is also
used for the purposes of extortion32.
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60
Torture usually begins with insults, death threats and the removal of the victim’s
clothing. Beatings are also very common, administered all over the body or to targeted areas (falaqa*33) by kicking, punching or with the use of instruments such as
a baton or leather whip known as a teju ruguái (a Guaraní term)34. Victims also cite
solitary confinement, squeezing of the testicles, stamping, electric shocks and simulated drowning, either by placing a moist cloth in the victim’s throat or by using the
so-called “dry submarine” technique (where the victim is asphyxiated with a plastic bag covering their head). Sexual abuse is also carried out, in particular against
women but also against men35.
Article 5 of the Constitution explicitly prohibits torture and stipulates that it is not
subject to any statute of limitations. Other articles (12, 17, 19, 20 and 21) are designed
to prevent torture taking place at the time of arrest and in detention. Finally, Articles
133 and 134 provide for legal challenges against restrictions of liberty and legal procedures, particularly where there are allegations of human rights violations or a risk
of such violations36, on the basis of habeas corpus* and amparo (whereby the constitutionality of legal instruments is challenged).
Under Paraguay’s internal legislative hierarchy, the Constitution takes precedence
over ratified international instruments. Paraguay has been a State party to the United
Nations Convention against Torture since 1990, and in 2002 it lifted its reservation
relating to Articles 21 and 22, which recognise the competence of the Committee
Against Torture* (CAT). It ratified the Optional Protocol to the Convention in 2005 and
introduced laws for the creation and running of a National Preventive Mechanism*
(MNP) in 2011. Paraguay is also a State party to the Inter-American Convention to
Prevent and Punish Torture.
Since the adoption of a new law in May 2012, Articles 236 and 309 of the Civil
Criminal Code provide definitions of torture and enforced disappearance in accordance with international standards. The amendments introduce a minimum prison
sentence of five years for those found guilty of torture. Article 298 of the Criminal
Procedure Code prohibits torture “at the time of arrest as well as during detention”. Other articles are designed to prevent convictions on the basis of confessions:
Article 90 stipulates that police officers cannot take statements from suspects with
a view to bringing charges against them, and Article 286 compels public officials,
doctors and judges to report any abuses of which they become aware37.
The Military Criminal Code has yet to recognise torture as a crime.
Until the Criminal Code was amended in 2012, Article 309 provided such a vague
and restrictive definition of torture that allegations relating to this offence almost
automatically resulted in impunity for those responsible. As a result, lawyers and
human rights defenders tended to privilege allegations of “bodily harm inflicted in
the course of official duties”, even though it meant lighter sanctions, raised the possibility of the statute of limitations being applied, and failed to make the torture phenomenon visible to the public38.
Very few victims of torture or ill-treatment dare to initiate criminal proceedings
against those responsible. They are unaware of their rights, are resigned to accept
the slow and inefficient judicial system, or fear reprisals. In November 2012, in order
to reduce the risk of retaliation, pilot programmes were launched in two prisons
allowing victims and their families to phone a helpline and file complaints anonymously. Ten allegations were made in this way before the end of the year39.
Habeas corpus requests can no longer be used to denounce acts of torture. Hearings
before a judge, which in principle should be urgent in such cases, can take as long
as 30 days to be held40, making it easier to manipulate evidence and threaten victims.
Paraguay’s NPM, which has been operational since December 2012, might make
it possible to overcome some of these difficulties and register more complaints. It
is made up of members of the National Commission Against Torture (established
in 2011) and appears to be operationally and financially independent. However, it is
too early to assess the real impact it is having on the prevention and punishment of
torture.
Individuals found guilty of torture are sometimes subjected to disciplinary sanctions,
i.e. laid off, but criminal prosecutions and convictions are rare. Of the 230 complaints
filed with the public Ministry between 2000 and 2008, just one led to a conviction
and most of the cases were either closed or rejected41. During the years that followed, the ministry provided no information about any investigations or convictions.
Neither the human rights department within the police force, which was established
in 2009, nor that of the Interior Ministry, set up in 2011, has made any significant
61
62
improvement to controls and sanctions for abuses committed by police officers and
prison wardens, who have a poor record in keeping registers relating to police custody, detention and complaints42.
Police stations and prison facilities with a resident doctor are few in number. There
is little respect for the right to a medical examination upon being placed in detention
or transferred to hospital, or for the confidentiality thereof. Victims find it difficult to
obtain an impartial medical report that could be used as proof of torture43.
In at least 70% of cases, detainees, who are very poor, have to rely on the public
defence lawyer provided free of charge44. These automatically appointed lawyers,
who are underpaid and too few in number to handle the number of cases ongoing45,
rush their work and claim money from their clients in the east of the country46.
The weakness of the public defence system stands in stark contrast to the significant
resources at the disposal of the public Ministry. In an adversarial criminal justice
system such as that in Paraguay, this allows public prosecutors to favour criminal prosecutions to the detriment of legal guarantees47. There have been confirmed
reports of complicity with the police in relation to acts of torture and ill-treatment in
several locations across the country48.
The human rights unit within the public Ministry, which was set up in 2011 to register
allegations of torture, has no investigative protocol and does not apply the Istanbul
Protocol*49.
Finally, supervisory judges appear to show no interest where there are clear indications that torture has taken place. Whether knowingly or because they are unaware
of Article 286 of the Criminal Procedure Code, they fail to file a complaint in such
cases50.
The Curuguaty affair provides a clear illustration of these obstacles. The 14 peasants
in pre-trial detention were not allowed visits from their loved ones or lawyers at the
police station where they were detained, and had to wait until they were transferred
to prison. Despite their allegations of torture, only the accusations made against
them (attempted homicide, criminal links and property violations) have been taken
into account.
In its 2008 report entitled Anive hagua oiko, which, translated from the Guaraní, means
“Lest it happen again”, the Truth and Justice Commission* provided an account of
the victims from the Stroessner dictatorship (1954-1989) until the democratic transition in 2003, concluding that 18,772 people had been tortured51. Some of the high
commanders – with the notable exception of Alfredo Stroessner, who fled to Brazil –
and others responsible for human rights violations have been given the maximum
sentence of 25 years imprisonment for their role in the dictatorship, although many
victims are still awaiting justice. Some victims from the indigenous Aché community
decided to take their case to an Argentine court on 8 August 2013 in accordance with
the principle of universal jurisdiction*52.
[1] “La tierra: fuente de conflicto en Paraguay”, Serpajpy.org.py, 23 May 2013: http://www.serpajpy.org.py/?p=1237.
[2] European Commission, Paraguay (PIN del DEN 2007-2013) Revisión Intermedia y Programa Indicativo Nacional 2011-2013,
May 2010, 21 pages, p. 5: http://eeas.europa.eu/delegations/paraguay/documents/eu_paraguay/mtr_paraguay_es.pdf.
[3] “Casos presentados ante organismos internacionales denotan la falta de compromiso del Estado con los derechos humanos”,
Decidamos.org.py, 22 March 2013: http://www.decidamos.org.py/index.php?option=com_k2&view=item&id=1037:casospresentados-ante-organismos-internacionales-denotan-la-falta-de-compromiso-del-estado-con-los-derechos-humanos&Itemid=1.
[4] U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Paraguay 2012 Human Rights Report,
34 pages, p. 9: http://www.state.gov/documents/organization/204680.pdf.
[5] Coordinadora de Derechos Humanos del Paraguay (CODEHUPY), Capítulo Paraguayo de la Plataforma Interamericana
de Derechos Humanos, Democracia y Desarrollo (PIDHDD), Informe Sombra al cuarto, quinto y sexto informes periódicos,
previstos para el 2003, 2007 y 2011, presentados en respuesta a la lista de cuestiones Paraguay, 26 pages, pp. 12 and 17:
http://www.codehupy.org/index.php?option=com_docman&task=doc_download&gid=14&Itemid=21.
[6] Centro de Estudios Legales y Sociales (CELS), Remisión de Información al CDH en su 107ª Sesión – Evaluación de Paraguay,
19 pages, p. 8: http://www.ccprcentre.org/wp-content/uploads/2013/02/CELS_Paraguay107.pdf.
[7] CODEHUPY, Derechos Humanos en Paraguay 2012, December 2012, 604 pages, p. 25 and pp. 365-368:
http://www.codehupy.org/index.php?option=com_docman&task=doc_download&gid=17&Itemid=21.
[8] Ibid, p. 28.
[9] “Comunicado de repudio al hecho de tortura a niño de 13 años”, Vivaparaguay.com, 16 October 2010:
http://www.vivaparaguay.com/new/index.php?option=com_content&view=article&id=35873:comunicado-de-repudio-al-hechode-tortura-a-nino-de-13-anos&catid=4:nacionales&Itemid=7.
[10] Heartland Alliance, Aireana, Campaña por una Convención Interamericana de los Derechos Sexuales y los Derechos
reproductivos, Violaciones a los Derechos Humanos de las Personas Lesbianas, Gays, Bisexuales, Transgéneros e Intersex (LGBTI)
en Paraguay, March 2013, 9 pages, p. 6: http://www.aireana.org.py/imagenes/Informe%20Alternativo%20Paraguay_ES.pdf.
[11] Subcommittee on Prevention of Torture (SPT), Report on the visit of the Subcommittee on Prevention of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment to the Republic of Paraguay, 7 June 2010, 56 pages, p. 39, available at:
http://www2.ohchr.org/english/bodies/cat/opcat/docs/Paraguay_followup_en.doc.
[12] “Más de 9.000 convictos llenan 16 cárceles”, Abc.com.py, 16 July 2013: http://www.abc.com.py/edicion-impresa/judiciales-ypoliciales/mas-de-9000-convictos-mantienen-abarrotadas-las-16-carceles-del-pais-595842.html.
[13] U.S. Department of State, Bureau of Democracy, Human Rights and Labor, op. cit., p. 5.
[14] CODEHUPY, World Organization against Torture (OMCT), Centre for Civil and Political Rights (CCPR),
Informe alternativo Paraguay, Presentado ante el Comité de Derechos Humanos en vista del examen del tercer informe periódico
de Paraguay (107 periodo de sesiones, 11-28 de marzo 2013), February 2013, 32 pages, p. 12: http://www.ccprcentre.org/wpcontent/uploads/2013/03/Informe-alternativo-de-Paraguay-CODEHUPY-CCPR-OMCT.pdf.
[15] SPT, op. cit., pp. 7 and 25.
[16] United Nations, Committee Against Torture, Concluding observations of the Committee Against Torture, Paraguay,
14 December 2011, 12 pages, p. 5: http://www2.ohchr.org/english/bodies/cat/docs/CAT.C.PRY.CO.4-6_en.pdf.
[17] SPT, op. cit., p. 34.
[18] “Ratifican extradición de ciudadano libanés a Estados Unidos”, Paraguay.com, 4 January 2011: http://www.paraguay.com/
nacionales/ratifican-extradicion-de-ciudadano-libanes-a-estados-unidos-59660/pagina/3.
[19] CODEHUPY, Capítulo Paraguayo de la PIDHDD, op. cit., p. 9.
[20] United Nations, Committee Against Torture, op. cit., p. 4.
[21] SPT, op. cit., pp. 13-14.
[22] Código Procesal Penal, 101 pages: http://ebookbrowse.com/paraguay-codigo-procesal-penal-pdf-d254082014.
[24] SPT, op. cit., p. 16.
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[25] Ibid, pp. 21 and 31.
[26] U.S. Department of State, Bureau of Democracy, Human Rights and Labor, op. cit., p. 4.
[27] CODEHUPY, OMCT, CCPR, op. cit., p. 27.
[28] U.S. Department of State, Bureau of Democracy, Human Rights and Labor, op. cit, p. 9.
[29] “Investigarán nuevos casos de tortura en FF.AA”, Hoy.com.py, 4 September 2012:
http://www.hoy.com.py/nacionales/tribunal-militar-investigara-nuevos-casos-de-tortura-en-ff.aa1/.
[30] Servicio Paz y Justicia – Paraguay (SERPAJ PY), Los rostros nuevos de la militarización, 71 pages:
http://www.rebelion.org/docs/129391.pdf.
[32] SPT, op. cit., p. 31.
[33] Ibid, pp. 26-27.
[35] SPT, op. cit., pp. 16-17, 26-27 and 41.
[36] Constitución de la República del Paraguay, http://www.constitution.org/cons/paraguay.html.
[37] Código Procesal Penal, op. cit.
[38] SPT, op. cit., p. 7.
[39] U.S. Department of State, Bureau of Democracy, Human Rights and Labor, op. cit, p. 6.
[41] SPT, op. cit., p. 12.
[42] SPT, op. cit., pp. 14-15 and 20.
[43] SPT, op. cit., pp. 10-19.
[45] SPT, op. cit., p. 11.
[46] SPT, op. cit., p. 18.
[47] SPT, Informe sobre la visita de seguimiento a la República del Paraguay del 13 al 15 de septiembre de 2010, p. 9.
[48] CODEHUPY, op. cit., p. 506.
[50] CODEHUPY, OMCT, CCPR, op. cit., pp. 23-24.
[51] “Recorrido temático. Violaciones de los Derechos humanos”, Meves.org (Museo virtual, Memoria y Verdad sobre
el Stronismo): http://www.meves.org.py/?node=page&meves=guided,600,0#.
[52] “Víctimas de la dictadura presentan querella contra el Estado”, ultimahora.com, 9 August 2013:
http://www.ultimahora.com/victimas-la-dictadura-presentan-querella-contra-el-estado-n711569.html.
© Vlad Sokhin / OHCHR / Focus / Cosmos
Suspected of attempted assault, a man
is arrested by police and beaten in broad daylight.
Port-Moresby. Papua New Guinea.
ASIA / PACIFIC
Afghanistan . Burma . Cambodia . Japan .
68
JAPAN
BURMA
AFGHANISTAN
kabul
* 29,8 m
naypyidaw
* 52,8 m
CAMBODIA
phnom penh
* 14,8 m
*
tokyo
* 127,6 m
INTRODUCTION
The torture phenomenon continues to affect Asia generally, where human rights
violations remain widespread.
Recent advances include decisive legislation to combat torture adopted by Bangladesh in October 2013. The Torture and Custodial Death [Prevention] Act 2013, which
had been anticipated for many years and was initiated by a member of Parliament
who himself had been a victim of torture, criminalises all forms of violence in detention. It provides for sentences of up to 5 years in prison for acts of torture and life
imprisonment for acts committed in detention that lead to the death of the victim.
State officials accused of such crimes can no longer use exceptional circumstances
such as a state of emergency or orders handed down by a superior as a means to
justify their acts. Confessions obtained under torture are also now prohibited, and
victims or their families must receive compensation. It remains to be seen whether
in the highest echelons of power there is sufficient political will to enforce the new
legislation and successfully bring an end to the torture practices of the law enforcement authorities.
Other countries are still awaiting legislation that would criminalise torture. This is
true of Nepal, where political progress has stalled since the dissolution of Parliament
in 2012. The United Nations Committee Against Torture conducted a confidential
investigation in Nepal during the year, revealing that torture practices remain systematic in official detention centres. According to the NGO Advocacy Forum, however, the use of torture has steadily fallen at a national level, although it has sharply
increased in some areas, in particular against minors.
In Uzbekistan, the use of torture remains endemic. In April 2013, the International
Committee of the Red Cross (ICRC) was forced to end its inspections of the country’s
detention centres due to unacceptable working conditions. It was the last remaining
independent organisation that visited detainees and monitored their conditions of
detention. ACAT had for several years been informed directly by detainees that they
were regularly placed in hiding or transferred by the penitentiary authorities during
ICRC visits.
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70
In many countries in the region, civil society activists who try to denounce human
rights violations receive threats. They are often branded by the authorities as “traitors of the nation” or “terrorists”. It is not unusual for them to be arrested and disappear without a trace. In Bangladesh, Adilur Rahman Khan, one of the country’s
foremost human rights defenders and secretary of the NGO Odhikar, was arrested
in August 2013 for publishing a report about grave violations perpetrated by the
authorities a few weeks earlier. Under pressure from the international community,
he was finally released with a warning in October.
In China, human rights defender Cao Shunli was arrested in September 2013 at
Beijing international airport on her way to Geneva, where she was due to participate
in the UN Human Rights Council’s Universal Periodic Review* (UPR). The authorities
provided no information about where she was being held or her legal status, effectively subjecting her to an enforced disappearance*.
Even in prison, acts of reprisal continue. In Vietnam, human rights defender Nguyen
Van Hai, better known as Dieu Cay, who was sentenced in 2012 to 12 years in prison
for his activism, began a hunger strike in June 2013 in protest against the violence
and solitary confinement* he had suffered while in detention. The prison in which
he is serving his sentence is infamous for the inhuman treatment meted out by its
wardens.
It remains difficult and sometimes dangerous for victims who dare to speak out to
secure criminal convictions against those who perpetrate acts of torture. Some
cases reach the courts under public pressure, but the most senior officials are rarely
implicated. In one exceptional case in China, six investigators from a secret interrogation centre run by the Chinese Communist Party received sentences of between
4 and 14 years’ imprisonment in September 2013. The six men were found guilty of
torturing to death a chief engineer from a State company suspected of corruption.
The victim died in April 2013 following 38 days in secret detention, during which
time he was tortured (beatings, sleep deprivation, forcefully undressed, simulated
drowning, burns, etc.). The Chinese courts, which are overseen by the Party, hardly
ever agree to hear such cases. The scandal generated by the affair online forced the
court to accept the complaint filed by the victim’s family. However, the six accused
were scapegoats according to the victim’s lawyer. Those who gave the orders were
not identified or implicated in any way, and the judge did not allow the victim’s lawyer
to ask any questions about them during the hearing.
In Thailand, as 2013 came to an end, a broad amnesty was being put in place for
the perpetrators of human rights violations. Following the political violence of 2010,
which resulted in the death of many civilians and left thousands injured, Prime
Minister Yingluck Shinawatra, elected in 2011, undertook to carry out investigations
and prosecute those responsible, including military personnel. However, political
negotiations between the government and the opposition led to a bill being submitted
to Parliament in 2013 in which an amnesty was proposed for all political and military
officials who took part in the 2010 crackdown. In exchange, an amnesty would also
be granted to the supporters of Thaksin Shinawatra – the current Prime Minister’s
brother, himself Prime Minister between 2001 and 2006, when he was ousted in a
coup d’état – who were arrested and convicted between 2006 and 2011 for protesting against the previous government. If passed, the bill would effectively deny the
victims all hope of justice.
A climate of impunity dominates most of the States in this region. In the absence
of justice, many torture victims try to take their cases before foreign courts with
universal jurisdiction. For the most serious crimes, such as crimes against humanity or torture, some countries authorise their courts to hear cases involving alleged
crimes committed abroad by foreign nationals against foreign nationals. Kumar
Lama, a Nepalese Colonel, was arrested in the United Kingdom in January 2013 and
charged with acts of torture against fellow Nepalese citizens during the civil war.
Despite several complaints filed with the Nepalese courts, he had never been prosecuted or punished. In response to such impunity, it would appear that the British
judiciary is willing to prosecute and try the alleged torturer. The trial was ongoing
at the time of writing.
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AFGHANISTAN
BACKGROUND
After more than three decades of war, Afghanistan has been left devastated. It has
virtually no infrastructure (roads, hospitals or schools), nearly half of its population live in extreme poverty, and more than two thirds are illiterate. Conservative
estimates suggest that 40,000 people have died because of the conflict in the last
10 years. More than 2,700 civilians were killed in 20121, and in the first half of 2013
the number of civilian victims was 23% higher than for the same period in 20122.
Almost 500,000 people have been displaced and 2.7 million Afghan refugees live
outside the country3.
Beyond the conflict and the atrocities that go with it, human rights violations are a
daily occurrence in Afghanistan. Arbitrary arrests, restrictions on the freedom of
expression and freedom of conscience, discrimination against ethnic and religious
minorities, corruption and the recruitment of child soldiers are the most pressing
problems, along with the segregation of women, which operates both at an institutional level and across society as a whole. Forced marriages, the criminalisation of
any behaviour involving a degree of freedom, and the lack of access to education
have kept women in a state of submission and vulnerability.
The definitive withdrawal of foreign troops is scheduled for 2014, yet insecurity
continues to reign across most of the country. In June 2013, the United States
announced they were ready to negotiate directly with the Taliban, but subsequently
changed their position faced with mounting anger from the authorities. The peace
talks have made little progress so far this year. Some areas are still controlled by the
insurgents, while others are governed by warlords more or less loyal to the central
regime. Violence is endemic, and the appointment of war criminals to governmental
posts, the absence of the rule of law and ongoing impunity make it difficult to foresee
any improvement in the near future.
PRACTICE OF TORTURE
Torture and ill-treatment are widespread in Afghanistan, perpetrated by governmental authorities and the Taliban, by the army and the police, whether against insurgents or civilians, adults or children. Most abuses take place in detention centres,
mainly for the purposes of obtaining confessions or intelligence, in particular from
those suspected of belonging to insurgent groups.
Victims
The primary victims are those placed in police custody or in detention.
Detainees suspected of participating in the insurgency are most likely to suffer
abuse. More than half of those interviewed by UNAMA said they experienced torture
or ill-treatment at the hands of the security services between October 2011 and
October 20124. One suspected Taliban provided the following testimony: “Four ANP
officers beat me with a cable on my back and on my legs. The interrogation lasted
two hours. The next day, I was given electric shocks on my arms and legs. Another
time, they threatened me with a gun saying that they would kill me if I did not confess.
I was forced to put my thumbprint on a document and I was not interrogated again”5.
Common-law crime suspects are also targeted. A young Afghan man who left the
country after being arrested because his family owned a Bible described the ill-treatment inflicted upon prisoners: “I was beaten, tortured. The commanding officer […]
used to beat me on the head with the butt of his Kalashnikov”6.
Female inmates in Afghan prisons, who numbered nearly 800 in 2011, are also subjected to abuse. In 2012, the Ministry for women’s rights spoke out against police
officers responsible for raping female inmates, and NGOs reported several cases of
violence and rape perpetrated by prison wardens7.
Many children are also housed in penitentiary facilities, mostly for reasons relating to
the armed conflict. In 2012, more than three quarters of them were subjected to illtreatment or abuse by the various security services involved in their interrogations8.
Sexual exploitation is rife in Afghan prisons. Wardens sometimes “help themselves”
to detainees, particularly targeting the youngest among them. One witness provided
the following testimony: “A young prisoner in our cell was taken away by the guards
and we didn’t see him for three days. When he came back, he was dressed as a
transvestite and had completely broken down. The wardens used to rape prisoners”9.
In correction centres for minors, residents are also subjected to violence and torture. In May 2011, the United Nations Office on Drugs and Crime (UNODC) counted a
total of nearly 800 child and adolescent detainees (including 100 girls), mostly aged
between 12 and 18, although some were no older than 7 years old10.
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The conditions of detention in Afghanistan constitute inhuman or degrading treatment. In some facilities, there are more than 100 detainees in every cell11. There is
inadequate distribution of water and food, sanitary facilities are appalling and infectious diseases are widespread. Some detainees have to await trial for 2 to 3 years.
In March 2012, at the Pul-e-Charkhi facility, 100 detainees began a hunger strike in
protest against their treatment12.
The Afghani security forces commit abuses on a massive scale. The National
Directorate of Security (NDS), the country’s main intelligence agency, is known to
torture detainees on a routine basis: in 2012, more than one third of those interrogated by the NDS were subjected to ill-treatment or torture13.
The Afghan National Army (ANA) also has powers to arrest and detain people as part
of the conflict and to interrogate them before handing them over to police officers
or members of the NDS. One third of all those interrogated by the ANA in 2012 are
reported to have been tortured14.
Afghanistan’s various police agencies also regularly commit acts of ill-treatment, not
only against common-law suspects, but also those suspected of participating in the
insurgency, nearly half of whom were subjected to torture in 201215.
As for the Afghan Local Police (ALP), statements issued by people detained in 2012
suggest that more than 80% were subjected to violence16.
Acts of torture generally take place in the buildings run by these authorities, and in
some cases in unofficial and secret detention centres. There are several reports of
abuses taking place in basements and containers17, as well as police checkpoints and
even on the premises of Kandahar’s provincial governor18.
The International Security Assistance Force (ISAF), the military unit that represents
the NATO coalition that has been operating in Afghanistan since 2001, along with the
CIA and US special forces – which do not belong to the ISAF – regularly detain and
hand over Afghan citizens to the authorities.
Under ISAF rules, detainees must either be released or handed over within 96 hours,
during which time they are allowed no contact with their family or lawyer. Most of
those who are handed over to the local security services are then placed in secret
detention* for several more months. In 2012, one third of those detained in this way
were tortured after their transfer19 – an increase compared to the previous year20.
This means the coalition of foreign armed forces is contributing to a clear breach of
the right to due process, making it complicit in acts of torture.
Some 4,500 special forces are based in Afghanistan and are responsible for training
local police, a paramilitary unit intended to act as the main line of defence against
the Taliban in cases where the military and national police are unable to intervene.
American forces together with the ALP carry out counter-insurgency operations in
the country’s most isolated regions. These special forces can detain people suspected of taking part in the insurgency for up to 9 weeks without charge. They often
force them to undress and place them in solitary confinement* in cold cells that have
no windows and are brightly lit 24 hours a day21. According to the office of the Afghan
President, some of these groups “are conducting raids, searching houses, harassing and torturing people”22. One member of the special forces was accused by the
authorities of having supervised the torture of 15 civilians, 7 of whom died and one
of whom was aged just 16.
In January 2012, the Interior Ministry took over responsibility for prisons from the
Justice Ministry (the reverse transfer was made in 2003 in an effort to reduce torture), a move which raises serious concern about a possible increase in violence and
abuse against detainees23. Acts of ill-treatment, gratuitous violence and humiliation
are daily occurrences in Afghan prisons.
Under Afghan legislation, persons aged under 19 who are found guilty of crimes or
other offences are placed in correction centres for minors. There have been reports
that in these facilities some wardens supply drugs in return for sexual favours24. One
detainee alleged in 2012 that the centre’s director and his son regularly raped minors
housed at the facility25. According to other testimonies, staff members beat detainees
who reported acts of ill-treatment to NGOs26.
In areas under its control, the Taliban operates its own legal system based on a strict
interpretation of sharia law and which includes sentences such as stoning, flogging
and mutilation. In August 2010, a young couple in an “illicit relationship” who tried to
elope were stoned to death in a village governed by the Taliban in Kunduz province.
Outside of these areas, in isolated rural locations, shuras (community councils made
up of village elders) are usually used for criminal and civil litigation. They also hand
out sentences based on sharia law. In September 2012, a 16-year-old girl in Ghazni
province was sentenced to 100 lashes in public for having an “illicit relationship”
with a boy27.
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The torture methods used during interrogations are highly varied. Several different techniques have been documented28, including beatings, electric shocks, the
threat of rape, stress positions and sleep deprivation. Many detainees later report
that these methods are often combined and that the abuse intensifies if they refuse
to confess. Repeated blows to the feet, hands or back using plastic piping, sticks or
electric cables is a particularly widespread method, often used while the victim is
suspended from the arms, wrists or legs. Torture sessions are conducted both by
day and by night, sometimes for very long periods: from 20 days to one and a half
months according to testimonies.
The purpose of torture is to force detainees to confess to participation in the insurgency or a particular attack, provide names and addresses or own up to the possession of firearms, etc. Acts of ill-treatment may also be carried out as a form of
“additional punishment”.
Afghanistan is a State Party to the United Nations Convention against Torture,
although it has not signed the Optional Protocol (OPCAT).
The Afghan Constitution provides that “No one shall be allowed to or order torture,
even for discovering the truth from another individual who is under investigation,
arrest, detention or has been convicted”. Article 275 of the Afghan Penal Code stipulates that public officials who torture an accused for the purposes of obtaining
a confession shall be sentenced to “long” inprisonment. The provisional Criminal
Procedure Code outlines procedural guarantees designed to prevent torture (police
custody limited to 72 hours, evidence obtained under torture deemed inadmissible),
although they are not often respected.
Therefore, although torture is recognised as a crime under Afghan law, it is not
clearly defined and the definition under international law has not been integrated into
domestic legislation. As a result, several factors taken together make the legal ban
on torture devoid of substance. First of all, in the absence of a legal definition, it is
difficult to prove that torture has taken place29. Furthermore, judges tend to base their
rulings exclusively on confessions and rarely challenge the methods used to obtain
them. It falls to the accused to prove that they have been subjected to abuse and to
provide visible evidence of physical injury. Furthermore, the lack of resources and
personnel facing the courts, combined with the weight of political and tribal influence, threats and corruption, have eroded the independence of the judiciary.
The Afghanistan Independent Human Rights Commission (AIHRC) is an independent
governmental body that has received much praise for the quality and impartiality of
its work. In June 2013, however, Navi Pillay, the UN High Commissioner for Human
Rights, highlighted the negative impact that the appointment by President Hamid
Karzai of five new commissioners, including a former member of the Taliban government, had on the independence, reputation and value of the commission’s mandate30.
In 2010, legislation was introduced granting immunity to those responsible for serious human rights violations over the previous 30 years31. Taliban leaders who agree
to cooperate with the government are also exempt from prosecution. This legislation
thereby formalises impunity at an institutional level and denies victims the possibility
of seeking damages.
In any case, torturers are rarely brought before the courts. In 2012, not a single torture case was taken against members of the security forces32.
In 2011, the army recognised the conviction of just one officer who had beaten a
detainee. Some members of the NDS have been dismissed from their duties, but in
most cases they are simply transferred elsewhere to a similar post.
96 investigations were conducted following allegations of abuse by police officers, leading to the dismissal or prosecution of 77 individuals33. Four members of the
police force were found guilty of abusing their powers and raping an 18-year-old girl
in Kunduz province in November 2012. Yet the office of the public prosecutor claims
that no torture complaints were filed against police officers in 201234. In July 2012, an
official from a correction centre for minors was sentenced to 16 years imprisonment
for raping a 15-year-old detainee.
Such cases remain exceptional, and the impunity of law-enforcement officials
continues to be the norm in Afghanistan. The lack of awareness on the part of the
authorities further aggravates the problem: the government has rejected allegations
of systematic torture in detention centres, arguing that the insurgents are trained to
claim that they have been subjected to abuse during visits by representatives from
international bodies.
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1] Amnesty International, Annual Report 2013, Afghanistan, 23 May 2013: http://www.amnesty.org/en/region/afghanistan/
report-2013.
[2] “Afghanistan : les victimes civiles ont augmenté de 23 %”, www.lemonde.fr, 31 July 2013: http://www.lemonde.fr/asiepacifique/article/2013/07/31/le-nombre-de-victimes-civiles-du-conflit-afghan-a-augmente-de-23_3455631_3216.html.
[3] Amnesty International, op. cit.
[4] United Nations, United Nations Assistance Mission in Afghanistan and the Office of the High Commissioner for
Human Rights, Treatment of Conflict-Related Detainees in Afghan Custody: One year on, January 2013, 126 pages, pp. 2-3:
http://unama.unmissions.org/LinkClick.aspx?fileticket=VsBL0S5b37o%3D&tabid=12323&language=en-US.
[5] Ibid, p. 1.
[6] ACAT-France, testimony recorded by Asylum service, 3 December 2012.
[7] U.S. Department of State, Bureau of Democracy, Human rights, and Labor, Afghanistan 2012 Human Rights Report,
[8] United Nations, op. cit., p. 3.
[9] ACAT-France, op. cit.
[10] “Afghanistan: Concerns over child detention conditions in Kandahar”, www.irinnews.org, 3 May 2012:
http://www.irinnews.org/report/95405/.
[11] Institute for War and Peace Reporting, Hunger Strike Over Afghan Jail Conditions, 2 December 2010:
http://iwpr.net/report-news/hunger-strike-over-afghan-jail-conditions.
[12] U.S. Department of State, Bureau of democracy, Human Rights, and Labor, op. cit., p. 5.
[14] Ibid, p. 61.
[15] Ibid, p. 46.
[16] Ibid, p. 62.
[17] Afghanistan Independent Human Rights Commission (AIHRC) and Open Society Foundations (OSF), Torture, Transfers,
and Denial of Due Process: The Treatment of Conflict-Related Detainees in Afghanistan, 17 March 2012, 67 pages, p. 27:
http://www.opensocietyfoundations.org/sites/default/files/conflict-related-detainees-afghanistan-20120319.pdf.
[19] Ibid, p. 3.
[20] Ibid.
[21] Global Research, New Revelations of Torture and Murder of Afghan Civilians by U.S. Special Forces, 15 May 2013:
http://www.globalresearch.ca/new-revelations-of-torture-and-murder-of-afghan-civilians-by-us-special-forces/5335121.
[22] “Afghanistan leader accuses U.S. special forces of torture”, http://articles.latimes.com, 24 February 2013:
http://articles.latimes.com/2013/feb/24/world/la-fg-afghan-us-20130225.
[23] Human Rights Watch (HRW), 2013 World Report, Afghanistan: http://www.hrw.org/world-report/2013/country-chapters/
afghanistan.
[24] “Afghanistan: Concerns over child detention conditions in Kandahar”, op. cit.
[25] AIHRC and OSF, op. cit., p. 23.
[26] Ibid, p. 24.
[27] U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, op. cit., p. 13.
[28] Human Rights Watch, Afghanistan: Act on UN torture report, 3 February 2013: http://www.hrw.org/news/2013/02/03/
afghanistan-act-un-torture-report.
[30] United Nations, Office of the High Commissioner for Human Rights, Pillay urges reconsideration of new appointments
for the Afghan human rights commission, 28 June 2013: http://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.
aspx?NewsID=13495&LangID=E.
[31] International Committee of the Red Cross, Impunity and insurgency: a deadly combination in Afghanistan, December 2010,
20 pages, p. 940: http://www.icrc.org/eng/assets/files/review/2010/irrc-880-niland.pdf.
[32] United Nations, Treatment of Conflict-Related Detainees in Afghan Custody: One year on, p. 9.
[33] U.S. Department of State, Bureau of democracy, Human Rights, and Labor, op. cit., p. 4.
80
BURMA
BACKGROUND
Burma is currently in a state of transition. In 2011, the military junta brought an end to
its 50-year dictatorship by transferring power to a civil government led by one of its
former members, President Thein Sein. The authorities have introduced sweeping
political, economic and social reforms, freed hundreds of political prisoners, ended
the house arrest of long-standing political opponent Aung San Suu Kyi and progressively removed restrictions on fundamental rights, in particular the freedom of the
press and freedom of demonstration.
In the border areas inhabited by ethnic minority groups (one third of the population
belongs to groups such as the Shans, Karens and Kachins), peace agreements have
been reached with most of the armed separatist groups and those looking for greater
autonomy. The only exception is the conflict with the Kachin Independence Army
(KIA), which resumed in June 2011 following a 17-year ceasefire, leading to violent
clashes and the displacement of thousands of people.
Parliamentary by-elections, the first free elections in the history of Burma, were held
on 1 April 2012. Aung San Suu Kyi’s National League for Democracy won 43 of the
45 available seats.
Nonetheless, both the Parliament and government remain largely under the control
of the army, and it is not yet certain that the junta is fully intent on making the transition to democracy. Several restrictive laws remain in force, especially relating to the
freedom of association and the freedom of movement, and serious human rights violations continue to be perpetrated, including arbitrary arrests, forced displacements,
confiscation of land, sexual violence and breaches of international humanitarian law1.
PRACTICE OF TORTURE
Torture and ill-treatment continue to be endemic in Burma, usually committed in
police stations and prisons against political and common-law prisoners, as well as in
conflict zones between ethnic groups and the armed forces.
Victims
Anyone found criticising the government is at risk of being arrested, tortured or
even summarily executed. At least 230 people were still in detention at the end of
2012 because of their political activities2. During interrogations, nearly all prisoners
are beaten, mainly for the purposes of securing a confession. 152 political detainees
have died in prison since 1988 as a result of the abuse they suffered3, as in the case
of Thet Nwe, who died 10 days after his release in January 20124. Between 2007 and
2012, U Gambira was continually tortured in prison: he was beaten with sticks while
tied up, drugged, gagged and blindfolded, forced to remain and seated on a chair
on which he had no choice but to urinate and defecate5. Although Burma has opened
up in recent times, opponents continue to be subjected to violence: Nay Myo Zin
was the first political opponent to be arrested and tortured under the mandate of
President Thein Sein. Convicted in August 2011, he appeared in court lying on a
stretcher with broken ribs and vertebrae6.
Common-law suspects are also regularly subjected to torture. In April 2013, U Than
Htun, who had been involved in a fight with a villager, was picked up by the police for
interrogation. After three days in detention, the officers informed his family that he
was dead as a result of his alcoholism and self-inflicted injuries. Yet his entire body
bore the signs of torture. His face was bruised, several of his ribs were broken and
his legs were covered in scars7.
Ethnic minorities, particularly in Kachin state, are especially targeted with abuse.
Anyone suspected by the army of supporting insurgents runs the risk of being tortured. The wife of one Kachin prisoner has described the condition in which she
found her husband after his detention by the military: “He was covered in blood and
his nose was broken […]. An iron bar was rubbed along his legs. He was forced to
engage in homosexual act […], kneel on very sharp stones with his arms outstretched
[…]. He was beaten on his hands and arms”8.
The army also forces civilians to act as porters and even to walk ahead of its troops
serving as minesweepers9. As well as exerting extreme psychological pressure,
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such practices often lead to violence and acts of torture if those who are requisitioned do not comply or act quickly enough. One man explains how he was savagely
beaten after being forced to transport military equipment by soldiers who shouted
“villagers and KIA are one so you should be beaten”. He was told not to run away or
he would be shot10.
In a country where Buddhists represent 90% of the population, Muslims from the
Rohingya ethnic group suffer from severe discrimination. They have been denied
Burmese nationality since 1982 and in 2012 and 2013 were the target of an ethnic
cleansing operation in Arakan state11. Having encouraged and participated in extremist Buddhist attacks against Muslim communities, resulting in hundreds of deaths,
the destruction of entire villages and the forced displacement of more than 140,000
people12, the authorities are currently denying humanitarian organisations access to
the camps housing displaced persons. In 2013, the UN Special Rapporteur* on torture reported allegations that some Rohingyas had been beaten and tortured to death
in Buthidaung prison13.
Women from ethnic minority groups have been victims of rape, which is systematically used as a weapon of warfare. Despite the scarcity of testimony and statistics, the reality of this crime has been documented since 1996 by several NGOs and
the UN14. Between June 2011 and November 2012, at least 64 young girls and women
were raped or sexually assaulted by soldiers15. Victims, according to most witnesses,
are women and girls aged between 9 and 50, raped repeatedly by several men, and
many are subsequently killed. In some cases, their families were forced to watch16.
Rapes perpetrated by the army have been on the increase since Thein Sein’s accession to power17 and, according to testimony, military personnel have been explicitly
ordered to rape women18.
Sexual minorities are also subjected to acts of torture. In July 2013, plain-clothes
police officers and civil servants assaulted several homosexuals and transsexuals
in Mandalay and brought them to a police station where they stripped them naked
and punched, kicked, insulted and humiliated them. The officers told the media that
“homosexuality is not in accordance with law”, even though Burma has no legislation
prohibiting this practice19.
Members of the police force commit abuses against political and common-law prisoners during interrogations in police stations. Police custody, authorised by a judge,
cannot in principle exceed two weeks, with the possibility of a further two-week
extension. In practice, however, officers often detain suspects for longer, in some
cases for over a year20. Incommunicado* detention and the use of secret interrogation
centres are widespread21.
The armed forces, which also regularly torture suspected supporters of the rebel
groups, tend to consider that all inhabitants of ethnic minority areas fall into this
category and subject them to almost systematic violence in an effort to obtain information and even to punish them for their supposed role in supporting the insurgents.
In 2011, for example, soldiers accused four men of spying on behalf of the KIA. They
placed the men in an empty rice sack and beat, kicked and stabbed them before
throwing them in a river22.
Outside of border areas, members of the armed forces also carry out acts of torture
against civilians with no link to the conflict. In December 2012, military personnel
tortured to death a 16-year-old boy named Than Htike Aung after he accidentally
crashed into a soldier on his motorbike23. Unlike the police, the army does not torture
its victims in official buildings, but mainly in villages, military barracks or isolated
locations, thus reinforcing its impunity24.
The penitentiary authorities are responsible for managing 42 prisons and 109 labour
camps25, some of which are referred to as “New Life Projects” and are intended
to “uplift the moral character” of prisoners26. Detainees are regularly transferred
to these camps27, which means that prison overcrowding is minimal, although the
insalubrious conditions and lack of hygiene, food and drinking water in Burmese
prisons amounts to inhuman and degrading treatment. Acts of sexual abuse, which
are perpetrated by both prison wardens and inmates, have resulted in soaring HIV
infection levels. Furthermore, the prison authorities make no hesitation in deliberately worsening the conditions of detention so as to increase the vulnerability of
prisoners. They do this by denying them access to health care, restricting food distribution or serving rotting food28. It is estimated that 20% of detainees in the labour
camps die as a result of the treatment inflicted upon them. They are forced to work
12 hours a day without a break, even when they are sick or weakened, building roads,
dams, canals, etc29. Corruption is the only way of avoiding torture, which is very
widespread. Similarly, the only way to avoid being transferred to a labour camp is to
bribe the authorities.
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The systematic nature of torture perpetrated by the law-enforcement authorities
suggests that this practice is not only accepted but is actually encouraged. The prevalence of certain practices, such as scarring and electrocutions, also suggests that
some form of “torture training” has been provided30.
Torture is also routinely used to force common-law suspects to confess. Even if they
refuse to do so, the abuse can last for months or even years, in some cases leading to
the victim’s death. Members of the security services employ methods such as beatings, sometimes with sticks or chains, electrocutions and sleep and food deprivation,
as well as more typically Burmese forms of torture, including the “iron rod” (whereby
a truncheon or iron bar is repeatedly rubbed against the victim’s legs to irritate the
skin) and the “motorcycle” (whereby detainees are forced to stand with their knees
bent and arms stretched out for extended periods)31. Psychological torture, such as
extreme solitary confinement*, detention in dirty cells used to house prisoners with
infectious diseases, and transfers without notice to remote facilities far from loved
ones32, is also widespread.
The purpose of torture can also be to instil fear and suspicion. When acts of torture
are carried out on an individual’s body, the intention is in fact to target entire communities in order to intimidate those considering opposing the government33. In areas
inhabited by ethnic minorities, the use of violence is part of a deliberate strategy to
maintain the population in a state of subjugation.
According to allegations received by the UN Special Rapporteur, in 2012, at the
Buthidaung prison facility in particular, Rohingyas were subjected to various forms
of abuse by police officers, including rape, sexual humiliation, beatings using sticks
and hammers, genital beatings and burns, scarring using knives and scissors, dog
bites, burns, etc34.
The systematic use of rape and sexual violence by the army in ethnic conflict zones
is also designed to spread terror and destroy whole communities. Men are also targeted by sexual violence. One case has been documented involving a political prisoner who was forcefully penetrated by a dog35.
Burma has not ratified either the Convention against Torture or the International
Covenants of 1966.
Article 44 of the 2008 Constitution provides that “No penalty shall be prescribed that
violates human dignity”36, although it does not specifically define or prohibit torture.
Existing legal provisions do not protect Burmese citizens against such practices.
Articles 330 and 331 of the Penal Code prohibit “hurt and grievous hurt” during
interrogations37, while Articles 323 and 325 stipulate the same prohibition outside
of interrogations, but only in the case of prisoners38. This distinction between regular and “grievous” injury, combined with the absence of an outright ban on torture,
favours the use of ill-treatment. Confessions obtained by force can also be used
as evidence before the courts, and suspects bear the burden of proof in relation to
abuses suffered39.
Article 21 of the Constitution states that citizens cannot be “placed in custody for
more than 24 hours without the permission of a Court”, although there is no existing
legislation that explicitly prohibits arbitrary arrests or recognises the right of detainees to see a lawyer. The law allows the authorities to order the detention without
trial of anyone they believe has performed or might perform any act that endangers
the sovereignty and security of the State, or public peace and tranquillity40. Such
vague provisions are regularly used to justify arbitrary arrests41.
Judges in the Supreme Court are appointed by the head of State, who is in turn chosen by the military. This means they are closely controlled by the army. Crimes committed by soldiers are tried by military courts, which undermines judicial impartiality.
The National Human Rights Commission established in September 2011 is made up
of 15 members who are appointed by the President. The statements issued by the
commission in relation to Kachin and Arakan states in 2012 made no mention of the
abuses perpetrated against the Rohingyas or the restrictions placed on humanitarian
aid42. Indeed, it did little more than recognise that the acts of torture perpetrated in
Kachin “constituted a violation of human rights and must be avoided”43.
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86
Certain articles in the Constitution can be seen as enshrining impunity for crimes
committed by military and civilian personnel44. Article 432 stipulates that no legal
action can be taken against members of the country’s administrative, civil and military bodies for measures taken “in order to speedily restore the security, stability,
community peace and tranquillity and prevalence of law and order to its original
state”. According to Article 445, military generals and members of the government
cannot be prosecuted for acts committed in the exercise of their duties prior to the
promulgation of the Constitution45.
As yet, no State official has been prosecuted for acts of torture or ill-treatment46.
No specific mechanism has been put in place to allow victims to file a complaint.
Complainants can seek a legal remedy, but no successful attempts have yet been
documented. There is no system in place to compensate or protect victims.47
The police and armed forces have occasionally compensated victims of sexual violence and their families48 or dismissed officers for acts of ill-treatment, but this is
above all a means of silencing victims or pre-empting prosecutions49.
The lack of independence and corruption that undermine the judiciary make it impossible to hold the army or police accountable. Those who file complaints against the
law-enforcement authorities are subjected to police harassment50, and the courts
refuse to record such complaints. In 2012, when the husband of a Kachin woman
abducted by soldiers tried to file a complaint, the Supreme Court rejected the case
without even examining the facts51.
There are nonetheless some positive signs: in the case of Myo Myint Swe, who in
2012 was tortured and killed by police officers, who then claimed he had died from
natural causes, a judge in Mayangon ruled that it was “difficult to conclude that the
death was natural”52. Although such a judgement does not automatically imply that
the officers involved were responsible, it should nonetheless be seen as a promising
step forward53.
[1] United Nations, Office of the High Commissioner for Human Rights, Council establishes Commission of Inquiry to investigate
Human Rights Violations in the Democratic People's Republic of Korea, 21 March 2013: http://www.ohchr.org/EN/NewsEvents/
Pages/DisplayNews.aspx?NewsID=13178&LangID=E.
[2] U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Burma 2012 Human Rights Report, 39 pages,
p. 10: http://www.state.gov/documents/organization/204400.pdf.
[3] Network for Human Rights Documentation - Burma (ND-Burma), Extreme Measures: Torture and Ill Treatment in Burma since
the 2010 Elections, May 2012, 54 pages, p. 26: http://www.nd-burma.org/reports/item/94-extreme-measures-torture-and-illtreatment-in-burma-since-the-2010-elections.html.
[4] Assistance Association for Political Prisoners (Burma) (AAPP), Annual Report 2012, 25 pages, p. 15:
http://www.aappb.org/AAPP_2012_annual_report.pdf.
[5] ND-Burma, op. cit., p. 25.
[6] Ibid, p. 23.
[7] Asian Human Rights Commission (AHRC), BURMA/MYANMAR: Police torture man to death, claim he beat up himself,
10 July 2013: http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-098-2013/.
[8] “Horrific Torture in Myanmar”, www.asiasentinel.com, 15 May 2013: http://www.asiasentinel.com/index.php?option=com_cont
ent&task=view&id=5417&Itemid=189.
[10] Kachin Women's Association Thailand (KWAT), Ongoing Impunity: Continued Burma Army Atrocity against the Kachin people,
June 2012, 18 pages, p. 7: http://www.kachinwomen.com/images/stories/publication/ongoing_iimpunity%20.pdf.
[11] Human Rights Watch (HRW), “All You Can Do is Pray”: Crimes Against Humanity and Ethnic Cleansing of Rohingya Muslims
in Burma’s Arakan State, 22 April 2013, 165 pages, p. 22: http://www.hrw.org/sites/default/files/reports/burma0413_
FullForWeb.pdf.
[12] HRW, World Report 2013: Burma: http://www.hrw.org/world-report/2013/country-chapters/burma.
[13] “Some forms of brutal tortures and abuses are practiced in Buthidaung Prison where Rohingya Muslims are detained”,
www.rohingyablogger.com, 10 February 2013: http://www.rohingyablogger.com/2013/02/some-forms-of-brutal-torturesand.html.
[14] “En Birmanie, le viol continue d'être utilisé comme arme de guerre malgré les promesses de paix”, www.lemonde.fr,
8 March 2012: http://www.lemonde.fr/idees/article/2012/03/08/en-birmanie-le-viol-continue-d-etre-utilise-comme-armede-guerre-malgre-les-promesses-de-paix_1653519_3232.html.
[15] KWAT, State terror in the Kachin hills. Burma Army attacks against civilians in Northern Burma, February 2013, 15 pages,
p. 8, http://www.kachinwomen.com/images/stories/publication/state_terror.pdf.
[16] KWAT, Burma's Cover up War: Atrocities Against The Kachin People, October 2011, 21 pages, p. 6:
http://www.kachinwomen.com/images/stories/publication/repor_%20book.pdf.
[17] “Le viol et les violences sexuelles”, www.info-birmanie.org, 31 July 2013: http://www.info-birmanie.org/le-viol-et-lesviolences-sexuelles/.
[18] KWAT, op. cit., p. 6.
[19] AHRC, Burma: Police Torture of Gay and Transgendered People, 22 July 2013: http://www.scoop.co.nz/stories/WO1307/
S00535/burma-police-torture-of-gay-and-transgendered-people.htm.
of the High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution
5/1, Myanmar, 18 October 2010, 14 pages, p. 4: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/169/86/PDF/G1016986.
pdf?OpenElement.
[22] KWAT, Burma's Cover up War, op. cit., p. 7.
[25] AAPP, Torture, political prisoners and the un-rule of law: Challenges to peace, security and human rights in Burma, 30 pages,
p. 4: http://www.aappb.org/Torture_political_prisoners_and_the_un-rule_of_law.pdf.
[26] AAPP, Forced Labor of prisoners in Burma, 3 pages, p. 1: http://www.aappb.org/report8_forced_labor.pdf.
[28] AAPP, Torture, political prisoners and the un-rule of law, op. cit., p. 16.
[29] “Burma's forced labour”, www.newstatesman, 9 June 2008: http://www.newstatesman.com/asia/2008/06/forced-labourburma-work.
[30] AAPP, Torture, political prisoners and the un-rule of law, op. cit., p. 19.
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88
[32] AAPP, Annual Report 2012, op. cit., p. 10.
[34] “Some forms of brutal tortures and abuses are practiced in Buthidaung Prison where Rohingya Muslims are detained”,
op. cit.
[36] Constitution of the Republic of the Union of Myanmar (2008): http://www.burmalibrary.org/docs5/Myanmar_Constitution2008-en.pdf.
of the High Commissioner for Human Rights, op. cit., p. 2.
[39] AHRC, Torture in Burma, Legal framework regarding torture: http://www.humanrights.asia/countries/burma/torturein-burma.
[42] HRW, op. cit.
[43] United Nations, Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar,
op. cit., p. 5.
[44] United Nations, Human Rights Council, Working Group on the Universal Periodic Review, 15 November 2010, Compilation
prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human
Rights Council resolution 5/1, Myanmar, 17 pages, p. 3: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/175/02/PDF/
G1017502.pdf?OpenElement.
[45] Constitution of the Republic of the Union of Myanmar, op. cit.
[46] Burmapartnership, Burma ratify the UN Convention Against Torture, 26 June 2013: http://www.burmapartnership.
org/2013/06/burma-ratify-the-un-convention-against-torture/.
[47] AHRC, op. cit.
[48] United Nations, Human Rights Council, Working Group on the Universal Periodic Review, Compilation prepared
by the Office of the High Commissioner for Human Rights, op. cit, p. 5.
[49] AHRC, BURMA: Court issues landmark ruling on death in police custody; two accused police themselves die under
dubious circumstances, 5 December 2012: http://www.humanrights.asia/news/ahrc-news/AHRC-STM-251-2012.
[50] United Nations, Human Rights Council, Working Group on the Universal Periodic Review, Compilation prepared by
the Office of the High Commissioner for Human Rights, op. cit., p. 6.
[51] KWAT, Ongoing Impunity, op. cit.
[52] AHRC, op. cit.
[53] Ibid.
90
CAMBODIA
BACKGROUND
Cambodia remains profoundly affected by the legacy of the Khmer Rouge regime,
which was responsible for the death of some 2 million Cambodians – 25% of the population – between 1975 and 1979. The impunity of the country’s former Communist
leaders, to whom the incumbent government, led by Hun Sen, himself a former Khmer
Rouge, offers its protection, can be traced directly to the current system, in which
those who serve the powers that be are never held to account for the human rights
violations perpetrated over the last 30 years.
The 1993 Constitution was intended to establish a liberal democracy and the rule of
law. In reality however, the Cambodian People’s Party (CPP) controls all organs of
State and is led by Prime Minister Sen, who has been in power for 28 years. The
police and the judiciary are instruments used to serve the political military and economic elite, who are above the law and use the country’s resources as their own.
Regular citizens find it impossible to ensure recognition and respect for their fundamental rights.
In terms of human rights, this leaves many causes for concern, chief among them
the forced confiscation of land from peasants in favour of the large companies
whose presence can be felt in the corridors of power. Almost a quarter of all land
in Cambodia has been transferred to private companies, with at least 400,000
Cambodians affected by expulsion1. What is more, under the violent and authoritarian
regime of Hun Sen, many cases of political assassinations, extrajudicial executions,
arbitrary arrests and forced labour also continue to be reported. More than 300 people have been attacked and killed for political reasons since 19912, but despite the
involvement of members of the executive in many of these cases being proven again
and again, not a single one has led to an investigation or a conviction.
The situation further worsened as the parliamentary elections of July 2013
approached, with an increase in violence against human rights activists. At least
35 such activists were killed, injured, arbitrarily arrested, threatened or forced into
exile in 20123.
PRACTICE OF TORTURE
Acts of torture and ill-treatment are widespread in Cambodia, used to secure confessions for common law crimes or to crack down on political opponents and human
rights activists. Anyone found protesting or defending their rights is at risk of being
tortured, and all places of detention are potential locations where torture may be
carried out.
Victims
Suspects placed in police custody are the most vulnerable to torture. The fact that
they are denied access to a lawyer for the first 24 hours of their detention, that it
is left to the discretion of police officers whether or not to admit a doctor, and that
there is no judicial monitoring of the procedures observed during police custody
together create an environment that is conducive to ill-treatment. One Cambodian
NGO has reported at least 141 cases of torture and ill-treatment in police custody
since 20104. Another has documented 135 cases for 2011 alone5. Most of these
cases related to suspects of common law crimes who were subjected to violence
by police officers during their interrogation6. In 2011 for example, a 16-year-old boy
accused of theft alleged he was beaten until he agreed to say he was 19 years old7.
In the same year, a man convicted of rape claimed that police officers had beaten
him with an electric baton8.
Detainees must also endure the insalubrious conditions and overcrowding of
penitentiary facilities. The prison occupancy rate stands at 140%9 and in 2012, for
example, each detainee was confined to a living space of just 0.88 m² in the Ta
Khmau facility, the most densely populated in the country10. Because cell gates often
lack proper locks, inmates can be chained up, often for months at a time. In 2010,
15 prisoners at the Kampong Thom facility, the most overcrowded in the country
(220 detainees for a capacity of just 50), were attached to one another by metal
links tied to their legs and attached to an iron bar following an attempted escape.
They were left like that 24 hours a day for over a month.11 Prisoners are also regularly subjected to acts of ill-treatment, beatings and humiliation.
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Women and children are not systematically housed in separate areas, thus increasing their level of vulnerability. There have been several allegations of violence and
sexual abuse by police officers, prison wardens and fellow inmates against female
detainees and minors suspected of crimes, sometimes no more than 14 years old12.
Female inmates are supervised by male wardens, which increases the risk of
ill-treatment.
Pre-trial detention, a very widespread practice within the Cambodian judiciary, is
regularly singled out as a major human rights issue because of the excessive durations for which detainees are held. Some suspects remain incarcerated for periods
that exceed the maximum sentence that can be imposed upon them if found guilty.
Suspects are not registered and the many individuals who have received no legal
counsel are sometimes simply forgotten in their cells13. Combined with a climate
of endemic corruption within the police force, which makes the poorest detainees
all the more susceptible to abuse, as well as the appalling conditions of detention,
this practice of extended pre-trial detention is conducive to abuses and amounts to
inhuman or degrading treatment.
Human rights defenders and rural communities advocates affected by land disputes
have been subjected to arbitrary arrests, intimidation and brutality. In October 2010,
a demonstration against the expulsions in Phnom Penh led to violent attacks by the
police. Suong Sophorn, a land rights activist, was targeted by officers and extensively beaten with electric batons, even while he was being taken away with an
injury to the head and in a state of unconsciousness. One year later, during another
protest movement, he was attacked by police with bricks and batons and struck
repeatedly on the head. He was left unconscious and later treated at the hospital for
a serious head injury. One of his fingers had also been cut in half14.
Drug addicts, sex workers and the homeless are placed in camps where they are
subjected to inhuman and degrading treatment. There are several reports of drug
users, prostitutes, beggars and street children being rounded up by the police. They
are then placed against their will in “Social affairs centres”, under the terms of
the revised Narcotics act (2011), for a period of up to two years15 without any legal
justification or monitoring. Some of those who oppose these forced evictions are
also incarcerated in the same centres16, where detainees are subjected to militarytype exercises and forced labour. As many as 10 people can be confined to a single
room, with some inmates suffering from mental disorders, illness or injuries. They
are allowed access to fresh air for just one hour each day17. Former inmates have
described the acts of ill-treatment and even torture, including sexual abuse, perpetrated by staff18. One child describes being beaten with an electric baton and another
how he was raped several times19.
Police officers are the main perpetrators of acts of ill-treatment and torture. The
UN Committee Against Torture* (CAT) has on several occasions raised concerns
about the “numerous, ongoing and consistent allegations of torture against and illtreatment of detainees in detention facilities, in particular in police stations”20. In
2012, one NGO interviewed more than 1,500 prisoners, 10% of whom claimed they
had been tortured while in police custody21.
Torture also takes place in prisons, where discipline is increasingly delegated to committees usually made up of the toughest inmates, who receive privileges in return for
ensuring order and are allowed to commit acts of violence and ill-treatment against
fellow inmates.22 This “outsourcing” is also a strategy adopted by the prison authorities to disguise its involvement in the brutality inflicted upon prisoners. By acting
as a screen between the victims of torture and prison officials, these committees
make it more difficult to identify the State’s responsibility in the acts of ill-treatment
perpetrated in prison.
Cambodia’s ten Social affairs centres are managed either by the security forces or
the social services. The Committee Against Torture23, together with NGOs24, have
highlighted the abuses committed in these centres by wardens, including a lack of
food and proper care, cases of physical abuse, torture, beatings, rape and even murder. Despite an appeal launched in March 2013 by 12 UN agencies, these centres
continue to operate25.
The most common purpose of torture is to extract confessions from suspects in
police custody. Cambodian police officers are rewarded when they help secure convictions and can even benefit from informal and extrajudicial arrangements26, which
only serves to encourage the extraction of confessions and the practice of torture.
Although according to some NGOs acts of physical torture have declined, beatings, electrocutions and the crushing of limbs continue to be practised27. One NGO
reported in 2011 that a man accused of drug trafficking was subjected to electric
shocks by the police in an effort to secure a confession28. Psychological torture is
also used for the same purpose29, for example prolonged periods of solitary confinement*, permanent containment or intimidations and threats.
In some cases involving the assassination of activists, torture is used to force innocent individuals to confess and ensure that the actual perpetrators are not prosecuted. In 2005, a well-known trade unionist was killed in Phnom Penh against a
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backdrop of ongoing violence against those defending workers’ rights. Two individuals were accused of his murder, tortured by the police30 and sentenced to 20 years in
prison despite the lack of evidence. Several NGOs have suggested that the authorities used the two individuals as scapegoats to prevent those responsible from being
implicated31. The Supreme Court ordered their release and a fresh trial at the end of
2008, but in December 2012, despite a lack of any new evidence, the Appeal Court
maintained its verdict and sent the two men back to prison32.
Torture and ill-treatment are also used as a form of punishment, particularly in prisons, in order to prevent and crack down on certain types of behaviour such as fighting or escape attempts33 and to maintain order.
Cambodia has ratified all of the UN human rights conventions, including the
Convention against Torture and its Optional Protocol (OPCAT). However, the authorities have not agreed to allow individuals to submit communications to the CAT.
Article 31 of the Constitution recognises the legal authority of international human
rights instruments. Article 32 guarantees the right to life, liberty and security of person. Article 38 stipulates that “Confessions obtained by physical torture or mental
pressure shall not be admissible as evidence of guilt”. Article 39 entitles citizens
to “file claims for reparations of damages caused by any breach of law” by State
organisations. However, the definition of torture provided in the UN Convention has
not been enshrined in Cambodian law, which offers no precise definition of torture.
The 2009 Criminal Code prohibits this offence under Article 210 (“torture and acts
of cruelty committed against another person are punishable by a sentence of 7 to
15 years imprisonment”) but fails to define it34, making it difficult for the courts to
apply the legal prohibition35.
Although it has ratified the OPCAT, Cambodia has yet to establish a National Human
Rights Institution (NHRI) or National Preventive Mechanism* (NPM) to examine
the treatment of persons deprived of their liberty36. The government, the National
Assembly and the Senate each include a human rights committee which has the
authority to receive complaints and carry out investigations. Yet these bodies’ lack
of independence from the public authorities impedes their freedom to act and their
impartiality.
Impunity in Cambodia is enjoyed above all by Khmer Rouge leaders. The Extraordinary
Chambers in the Courts of Cambodia have so far pronounced just one conviction: in
2010, Kang Kek lew (Duch), director of the Khmer regime’s main torture and execution camp (S-21), was sentenced to 35 years in prison. Around 3,800 survivors of
the torture perpetrated by the communist regime are still awaiting justice37. Prime
Minister Hun Sen, who is facing calls from the Extraordinary Chambers to try some
of his allies and members of his government implicated in past human rights violations, has so far delayed and disrupted proceedings, thus protecting surviving
Khmer Rouge leaders and fuelling the culture of impunity that dominates life in
Cambodia.
With regard to cases of torture committed after the fall of the Khmer regime, there is
total impunity. The judiciary, whose most senior figures are appointed by politicians
and are first and foremost loyal to the party in government, is profoundly politicised.
State officials responsible for acts of torture are very rarely investigated due to a
refusal by the police to register the complaints made by victims and because their
superiors intervene to protect them. Complainants are often harassed, threatened or
paid off and the evidence is hidden or destroyed by the police. Judges rarely give any
consideration to the allegations of torture brought before them in order to contest
confessions made, and they never issue criminal proceedings against those responsible for acts of abuse.
Indeed, most victims fear reprisals and are reluctant to seek justice. In 2012, one
NGO reported that the last time a government official was prosecuted was in 200638.
And in 2013, another declared that despite the hundreds of acts of torture that had
been perpetrated since the introduction of the new Criminal Code in 2009 and the
prohibition of torture contained in that legislation, “not a single perpetrator has been
brought to justice to date”39.
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96
[1] Cambodian League for the Promotion and Defense of Human Rights (LICADHO), 2012 in Review: Land grabbing, the Roots
of Strife, 12 February 2013: http://www.licadho-cambodia.org/articles/20130212/133/index.html.
[2] Human Rights Watch (HRW), Cambodia: Hun Sen Promoting, Rewarding Killers, 13 November 2012:
http://www.hrw.org/fr/node/111351.
[3] HRW, World Report 2013, Cambodia, http://www.hrw.org/world-report/2013/country-chapters/cambodia.
[4] Cambodian Human Rights Action Committee (CHRAC), ADHOC Cambodia, Community Mental Health Programme,
Dignity Danish Institute against Torture, and Asian Human Rights Commission (AHRC), Rights to justice and Rehabilitation
of torture victims, 26 June 2013, 2 pages, p. 1: http://www.chrac.org/eng/CHRAC%20Statement%20in%202013/06_26_2013_
Statement%20on%20UN%20International%20Day%20for%20Victims%20of%20Torture.pdf.
[5] AHRC, CAMBODIA: Statement on International Day in Support of Victims of Torture on 26 June 2012, 26 June 2012:
http://www.humanrights.asia/news/forwarded-news/AHRC-FPR-030-2012/?searchterm=.
[6] Cambodian Human Rights Action Committee (CHRAC), ADHOC Cambodia, Community Mental Health Programme, Dignity
Danish Institute against Torture, and AHRC, op. cit., p. 1.
[7] Cambodian Center for Human Rights (CCHR), A series on fair trial rights and rule of law, 26 June 2011, 2 pages, p. 2:
http://www.cchrcambodia.org/index_old.php?url=media/media.php&p=newsletter_detail.php&nsid=7&id=5.
[8] USAID for the American people, East West management Institute, and Cambodian Center for Human Rights (CCHR),
A series on fair trial rights and rule of law, 26 June 2011, 2 pages, p. 2: http://www.cchrcambodia.org/index_old.php?url=media/
media.php&p=newsletter_detail.php&nsid=7&id=5.
[9] World Prison Brief, International Center for Prison Studies, Cambodia: http://www.prisonstudies.org/info/worldbrief/wpb_
country.php?country=90.
[10] LICADHO, Human Rights 2012: The Year in Review, February 2013, 30 pages, p. 2: http://www.licadho-cambodia.org/reports/
files/176LICADHOReportHumanRightsReview2012English.pdf.
[11] AHRC, NGOs call on the Cambodian Government to comply with the UN Torture Convention, 9 December 2010:
http://www.humanrights.asia/news/forwarded-news/AHRC-FPR-065-2010/?searchterm=.
[12] United Nations, Committee Against Torture, Concluding observations of the Committee Against Torture, 19 November 2010,
15 pages, p. 5: http://www2.ohchr.org/english/bodies/cat/docs/CAT.C.KHM.CO.2.pdf.
[13] AHRC, The State of Human Rights in Cambodia in 2010, CAMBODIA: Abysmal lawlessness and the powerlessness of the citizens,
20 pages, p. 6: http://www.humanrights.asia/resources/hrreport/2010/AHRC-SPR-003-2010.pdf.
[14] LICADHO, Attack and Threats against human rights defenders in Cambodia: 2010-2012, 66 pages, p. 17: http://www.licadhocambodia.org/reports/files/172LICADHOReportAttacksHRDs2010-2012-Eng.pdf.
[15] HRW, op. cit.
[16] Amnesty International, Cambodia: Stop the use of excessive force against peaceful land activists, 2 February 2012:
http://www.amnesty.org/en/news/cambodian-police-violently-disperse-peaceful-protest-land-activists-2012-02-02.
[17] Guardian, “Cambodians beaten, raped and killed at illegal detention camp funded by UN”: http://www.guardian.co.uk/
world/2010/oct/28/raped-beaten-killed-cambodia-detention-camp.
[18] HRW, op. cit.
[19] HRW, 24 July 2012, Torture in the Name of Treatment, http://www.hrw.org/node/109078/section/4.
[21] LICADHO, Human Rights 2012: The Year in Review, p. 20.
[22] AHRC, The State of Human Rights in Cambodia in 2010, op. cit., p. 9.
of the High Commissioner for Human Rights, in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution
5/1, Cambodia, 9 September 2009, 15 pages, p. 4: http://lib.ohchr.org/HRBodies/UPR/Documents/Session6/KH/A_HRC_WG6_6_
KHM_3_E.pdf.
[25] HRW, World Report 2013, Cambodia, op. cit.
[27] AHRC, CAMBODIA: Statement on International Day in Support of Victims of Torture on 26 June 2012, op. cit.
[28] Cambodian Center for Human Rights (CCHR), A series on fair trial rights and rule of law, op. cit., p. 2.
[29] United Nations, Human Rights Council, op. cit., p. 4.
[30] AHRC, The State of Human Rights in Cambodia in 2010, op. cit., pp. 13-14.
[31] International Trade Union Confederation, Cambodia: Release Scapegoats for Labour Leader's Murder, 22 January 2008:
http://www.ituc-csi.org/cambodia-release-scapegoats-for.html?lang=en.
[32] Amnesty international, Cambodia: Release scapegoats for killing of trade union leader, 1 May 2013:
http://www.amnesty.org/en/news/cambodia-release-scapegoats-killing-trade-union-leader-2013-05-01.
[33] AHRC, The State of Human Rights in Cambodia in 2010, op. cit., p. 3.
[34] Ibid, p. 2.
[35] AHRC, CAMBODIA: Cambodia needs to take effective action to eliminate torture and improve policing, 25 June 2010:
www.humanrights.asia/news/ahrc-news/AHRC-STM-130-2010.
[36] Cambodian Center for Human Rights (CCHR), op. cit., p. 1.
Dignity Danish Institute against Torture, and Asian Human Rights Commission (AHRC), op. cit., p. 2.
[38] AHRC, CAMBODIA: Statement on International Day in Support of Victims of Torture on 26 June 2012, op. cit.
Dignity Danish Institute against Torture et AHRC, op. cit., p. 1.
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JAPAN
BACKGROUND
2011 and 2012 were particularly difficult years for Japan due to the earthquake that
struck the country on 11 March 2011 and the extent of the resulting nuclear accidents
that affected the city of Fukushima. The authorities have been extensively criticised1
for their inadequate response and lack of transparency and for prioritising the economic recovery over and above the health of the city’s residents2.
The parliamentary elections held in December 2012 against a backdrop of political
instability, following a succession of six Prime Ministers since 2006, returned the
conservative Liberal Democratic Party (LDP) to power, headed by Shinzo Abe, who
served as Prime Minister from 2006 to 2007.
The human rights situation in Japan is relatively positive, although discrimination
against ethnic minorities, together with racism, domestic violence, human trafficking
(mainly women and young girls who are sexually exploited) and the country’s refusal
to recognise the atrocities committed during the Second World War, in particular
sexual slavery and the practice of so-called “comfort women”, continue to cause
concern. Another source of concern is the constitutional reforms being proposed
by the LDP, which would represent a return to a more authoritarian social model.
The proposal introduces the notion of “public order” to limit individual freedoms
and seeks to do away with several essential human rights provisions. Article 97,
which guarantees the people certain fundamental rights, would be deleted under the
proposal.
PRACTICE OF TORTURE
Although acts of torture and ill-treatment are prohibited and relatively rare, they
continue to be practised in Japan’s detention facilities, especially during police custody. The conditions of detention on death row and the secrecy that surrounds the
execution of convicts, as well as the brutal treatment to which asylum seekers are
subjected, can also be considered to amount to inhuman or degrading treatment.
Abuses committed by the police
The Daiyo Kangoku system (“substitute prisons”: pre-trial detention centres run by
the police rather than the prison authorities) allows police officers to detain suspects for up to 23 days with limited access to a lawyer3 and no legal checks, and to
interrogate them for unlimited periods in order to obtain a confession. The containment cells in police stations are not suitable for long periods of incarceration and
cannot guarantee satisfactory conditions of detention. It is rare for physical torture
to take place, although there have been reports of methods such as kicking, sleep
deprivation, stress positions and water and food deprivation4. However, psychological pressure, prolonged interrogations, humiliation and threats – especially relating
to one’s reputation, in a country where it is considered intolerable to “lose face” – are
widespread5.
This procedure leads to false testimonies, made all the more problematic by the
tendency of the Japanese courts to rely heavily on confessions. The case of Iwao
Hakamada, who has been awaiting execution for 45 years, is an illustration of this.
He was convicted on the basis of a confession made after 20 days in detention and
without the presence of a lawyer. He claims he was beaten and threatened into confessing during interrogation sessions that sometimes lasted more than 16 hours a
day. It would also appear that the evidence used against him was fabricated by the
police6. Govinda Prasad Mainali, a Nepalese national convicted of murder in 1997, had
the same experience. During his detention, he was denied access to a lawyer and
confessed to the crime after being punched and kicked. He was only acquitted after
15 years in prison.
The Japanese government has yet to take any steps towards reforming the Daiyo
Kangoku system. In June 2013, a group of 16 NGOs asked the government to ensure
audio and video recordings are made during interrogations7.
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100
With a prison population of almost 70,000, Japan has a relatively low rate of incarceration (55 detainees for every 100,000 inhabitants, compared to 106 in France).
The Japanese prison system is nonetheless very harsh and was even described
as “medieval” by one delegate during the review of the country by the Committee
Against Torture* (CAT) in 20138.
The Committee highlighted prison overcrowding (Japan suffers from a lack of prison
facilities), inadequate access to health care, as well as the abusive and unsupervised use of punishments and constrictive methods such as restraint handcuffs and
straitjackets. Solitary confinement* for prolonged and unlimited periods is a practice
that continues. At the time of writing, around 20 prisoners have been confined in
this way for a total of more than 10 years9. The excessive length of prison sentences
has also been highlighted10: At the end of 2011, the system housed eight convicts
who had been incarcerated for more than 50 years. This treatment can result in a
deterioration of the physical and mental health of prisoners and constitute inhuman
and degrading treatment. Furthermore, the possibility of parole for inmates serving
life sentences has been limited since 1998, running the risk of disproportionate and
cruel sentencing11.
Treatment of death row inmates
43 inmates have been executed by hanging since 2007. Seven prisoners were
hanged in 2012, meaning that the execution rate has increased in Japan, with more
than 130 inmates currently on death row. They include people suffering from mental
disorders and even minors. A 19-year-old man was executed in 2010 for a crime
committed one year earlier12 (the age of civil majority in Japan is set at 20).
Death-row inmates are kept in 5 m² cells that are permanently lit. They are monitored by a camera and separated from other prisoners day and night. They must
remain permanently seated and request permission if they wish to stand or lie down.
They are required to be silent, look straight ahead and not to communicate with fellow detainees13. In theory they are allowed to receive mail, but in practice letters
of support from the outside are not delivered and their written correspondence is
censored14. The use of solitary confinement for extended periods (sometimes more
than 30 years) is the norm for death-row inmates15. The CAT has suggested that this
practice amounts to torture.
Detainees are only told when their execution will take place on the day itself, and their
loved ones and the media are only informed after the sentence has been executed.
This refusal to provide the information in advance constitutes a serious breach of
the inmate’s rights and those of the family16, and the Committee Against Torture has
emphasised the psychological tension this inflicts on detainees and their families.
Such conditions of detention often result in mental suffering or worsen the suffering
already being experienced by detainees. The authorities argue that the purpose of
these provisions is to preserve the “effective stability” of convicts17 and that they do
not constitute a breach of their rights.
Conditions of internment in psychiatric hospitals
The law provides for a procedure of involuntary hospitalisation authorising the
internment of individuals without a hearing18. In 2013, the CAT reported the repeated
use of solitary confinement, restraint and forced medication on such patients19.
It recommended establishing legal checks on internment in psychiatric centres and
on the treatments prescribed, as well as the introduction of an appeal mechanism.
Treatment of refugees and asylum seekers
In 2012, 1,100 foreign nationals awaiting expulsion were being housed in 19 different detention centres20. Most of them came from Burma, Sri Lanka and Kurdistan.
The law does not provide for any maximum period of detention, meaning that illegal
migrants and asylum seekers, including families with children, are detained indefinitely: as of November 2012, 24 people had been detained for over a year and a half
and 75 more for over a year21. One case involved an individual who was detained for
47 months. According to the Committee Against Torture, “detaining persons indefinitely without charge constitutes per se a violation of the Convention”22.
There is no independent mechanism in place to ensure human rights are respected
in detention centres23. NGOs have denounced widespread problems of overcrowding (up to 9 detainees kept in 20 m² rooms), a lack of hygiene, inadequate access to
healthcare and food, and the detention of minors. In May 2010, following two suicides
at the Ibaraki centre24, 70 detainees began a hunger strike to demand better conditions of detention25. Two months previously, 73 detainees took similar action at the
centre in Osaka26.
The principle of non-refoulement* is not applied by Japan, mainly because it falls to
plaintiffs, who are not entitled to advice from a lawyer, to demonstrate that there is a
real risk of torture if they are expelled.
Forced returns are often accompanied with the excessive use of force. Although there
are directives in place in relation to the use of constraint by immigration officials,
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102
they are not legally binding27. The case of Abubakar Awudu Suraj, a Ghanaian national
living in Japan for 20 years and married to a Japanese woman, is a clear example of
the problems encountered: having been placed in a detention centre for 20 months,
he was later expelled in March 2010. According to his lawyer, he was tied up and
gagged before being forced by 10 immigration officials to board an aeroplane, where
he lost consciousness and died a few minutes later. The autopsy failed to determine
the cause of death, but his widow claims to have seen injuries on his face. As early
as 2004, a Vietnamese woman was deported in handcuffs, gagged and rolled up in
blankets28.
Corporal punishment
There is no blanket ban on all forms of corporal punishment in Japan. It is authorised
in the home, in penal institutions and in health care centres, although it is prohibited in schools29 – in 2010, the Committee on the Rights of the Child nonetheless
expressed concern that this was not being applied in practice. The law authorises the
use of “appropriate discipline”30 on minors and only sanctions punishment deemed
to “exceed current reasonable social norms”. Between April 2012 and March 2013,
840 cases were recorded of corporal punishment inflicted by teachers on their
pupils31, one third of which resulted in bodily injury. 1,890 pupils claim to have been
subjected to corporal punishment. There have been reports of slapping, kicking and
head-butting, as well as punishments such as being forced to run 40 kilometres32.
The suicide of a 17-year-old pupil in December 2012 drew public attention in Japan
towards abuses in schools. The deceased teenager had been regularly subjected to
physical abuse by his sports teacher, who had also slapped him several times the
day before his death.
Bullying and other forms of violence are also endemic within Japan’s Self-Defence
Forces33, where nearly one third of female recruits claim to have been the victim of
sexual harassment34.
Japan has ratified the Convention against Torture but has not signed its Optional
Protocol, which provides for the inspection of custodial facilities, and has not agreed
to the possibility of individual communications to the CAT.
The Japanese Constitution stipulates that “fundamental human rights” are “eternal
and inviolate”. Article 36 prohibits the use of torture and Article 38 provides that
confessions obtained by force are inadmissible before the courts.
However, Japanese legislation provides no legal definition of torture and has not
incorporated the definition provided in the Convention against Torture35. Articles 194
to 196 of the Criminal Code provide for sanctions against “assaults” and “acts of
physical or mental cruelty “committed by a person performing or assisting in judicial,
prosecutorial or police duties” or “a person who is guarding or escorting another
person detained or confined in accordance with laws”, thus providing a narrower
scope than Article 1 of the United Nations instrument. Furthermore, the statute of
limitations for acts of torture or ill-treatment contravenes the Convention36.
The LDP’s proposed constitutional reforms undermine several human rights provisions. Article 36, which states that “the infliction of torture by any public officer and
cruel punishments are absolutely forbidden”, will see the adverb absolutely deleted
under the reforms.
Japan does not yet have a National Human Rights Institution (NHRI) that is in accordance with the Paris Principles. A proposal by the previous government raised
concerns as it made no provision to allow the relevant body conduct visits to custodial facilities or issue recommendations, and it failed to provide any guarantee of
independence.
Allegations of violence or homicide on the part of public officials usually lead to
prosecutions, and victims are allowed to seek damages from the State37. However,
in many cases obstacles stand in the way of compensation. For example, the option
for foreign nationals held in detention centres to file a complaint of torture or illtreatment before the courts is subject to the principle of reciprocity; this means they
must come from a country that authorises Japanese nationals to seek damages from
the State38.
Japan does not provide overall statistics of the number of public officials prosecuted and convicted for acts of torture or ill-treatment39. In 2013, the National Police
Force announced it had received 552 complaints in 2011 regarding interrogations at
Daiyo Kangoku facilities. It also confirmed 27 breaches of interrogation guidelines
and announced disciplinary sanctions, but without providing any further details40.
However, according to the Committee Against Torture, of the 141 complaints filed in
2011 for acts of torture or ill-treatment committed in these facilities, not one led to
criminal proceedings41. In the case of Mr Yanagihara, who was convicted of rape in
2002 following a confession obtained under coercion while in detention and who
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104
was later acquitted in 2007, the police officers responsible for the investigation were
never approached. Even Yanagihara’s request to compel the men to appear before
the court or testify during his retrial was rejected42. Nonetheless, it would appear
that some progress is being made within the system: one prosecutor was recently
dismissed for issuing death threats during interrogation43.
The remedies and complaints procedures in relation to conditions of detention
are ineffective. There are several institutions responsible for allowing prisoners
to speak out and supervising conditions of detention, but they are not sufficiently
independent44. The Inspection committees set up in 2006, for example, can register
complaints and make recommendations, but their members are nominated by the
Ministry for Justice, as are the Chief prisons inspector and the Regional director of
correctional facilities45. There are legal remedies in place, but they are made quite
inaccessible by the lack of legal aid, the censorship of written correspondence and
the presence of prison officials during meetings between detainees and lawyers46.
Furthermore, the courts tend to be lenient towards State representatives: in 2005,
two prison wardens found guilty of killing a detainee by injecting water into his
anus at high pressure received no more than a suspended prison sentence. The
court found that their actions did not constitute a form of punishment, but rather an
attempt to wash the prisoner47. Similarly, the office of the public prosecutor abandoned its case against 10 immigration police officers who had deported Mr Suraj
in 2010, after deciding that coercive force had not caused the victim’s death, even
though it had been established that the officers involved had used unauthorised
methods of restraint. As of June 2013, efforts to seek damages from the State were
ongoing.
[1] “Fukushima crime contre l’humanité !”, Mediapart, 22 June 2013: http://blogs.mediapart.fr/blog/etienne-servant/220613/
fukushima-crime-contre-lhumanite.
[2] “Fukushima victims take a stand with human rights declaration”, Ajw.asahi.com, 28 December 2012:
http://ajw.asahi.com/article/0311disaster/fukushima/AJ201212280021.
[3] United Nations, Committee Against Torture, Concluding observations on the second periodic report of Japan, adopted by the
Committee at its fiftieth session (6-31 May 2013), 28 June 2013, 8 pages, p. 2: http://www.refworld.org/publisher,CAT,CONCOBSE
RVATIONS,JPN,51dfe6614,0.html.
[4] Ibid, p. 4.
[5] “Au Japon, quinze ans de prison pour rien”, Libération.fr, 10 December 2012: http://www.liberation.fr/monde/2012/12/10/
au-japon-quinze-ans-de-prison-pour-rien_866493.
[6] “On death row and a cause celebre”, Japantimes.co.jp, 9 May 2008: http://www.japantimes.co.jp/news/2008/05/09/news/
on-death-row-and-a-cause-celebre/#.UdFE89jtCho.
[7] “Human rights groups urge Japan towards recorded interrogations of crime suspects”, Japandailypress.com, 4 June 2013:
http://japandailypress.com/human-rights-groups-urge-japan-towards-recorded-interrogations-of-crime-suspects-0429981.
[8] “Medieval standard of decorum”, Japantimes.co.jp, 13 June 2013: http://www.japantimes.co.jp/opinion/2013/06/13/readermail/medieval-standard-of-decorum/.
[9] CAT Network Japan, The NGO Report on the Second Periodic Report of the Japanese Government under Paragraph 1 of Article
19 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, April 2013, 36 pages, p. 27:
http://www2.ohchr.org/english/bodies/cat/docs/ngos/CATNetworkJapan_Japan_CAT50.pdf.
[10] Ibid, p. 21
[11] Ibid.
[12] “Japan jury hands down death sentence to minor”, Deathpenaltynews.blogspot.fr, 25 November 2010:
http://deathpenaltynews.blogspot.fr/2010/11/japan-jury-hands-down-death-sentence-to.html.
[13] Amnesty International, Japan: Briefing to the UN Committee Against Torture, May 2013, 16 pages, p. 8:
http://www2.ohchr.org/english/bodies/cat/docs/ngos/AI_Japan_CAT50.pdf.
[14] Ibid.
[16] Ibid, p. 4.
[17] United Nations, Human Rights Council, Report of the Working Group on the Universal Periodic Review, Japan,
14 December 2012, 27 pages, p. 10: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/
AHRC2214_English.pdf.
[18] CAT Network Japan, op. cit., p. 18.
[20] Global Detention Project, Japan Detention Profile: http://www.globaldetentionproject.org/countries/asia-pacific/japan/
introduction.html.
[21] Ibid.
[22] United Nations, Committee Against Torture, Conclusions and recommendations of the Committee Against Torture:
United States of America, 25 July 2006, 10 pages, p. 6: http://www.refworld.org/docid/453776c60.html.
[23] United Nations, Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, Jorge
Bustamente, Addendum, Mission to Japan, 21 March 2011, 22 pages, p. 13: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/
G11/121/27/PDF/G1112127.pdf?OpenElement.
[24] “The case of Abubakar Awudu Suraj: A PR nightmare of Japan’s own making”, Japantoday.com, 16 November 2011:
http://www.japantoday.com/category/opinions/view/the-case-of-abubakar-awudu-suraj-a-pr-nightmare-of-japan%E2%80%99sown-making.
[25] Amnesty International, op. cit., p. 10.
[26] “Inmates on hunger strike in Japan immigration centre”, Lankabusinessonline.com, 20 May 2010:
http://www.lankabusinessonline.com/news/inmates-on-hunger-strike-in-japan-immigration-centre/959990405.
[28] “Inmates on hunger strike in Japan immigration centre”, op. cit.
[29] Global Initiative to End All Corporal Punishment of Children, Briefing on Japan for the Committee Against Torture,
May 2013, 3 pages, p. 2: http://www2.ohchr.org/english/bodies/cat/docs/ngos/GIEACPC_Japan_CAT50.docx.
[30] United Nations, Committee on the Rights of the Child, Consideration of reports submitted by States parties under article 44
of the Convention, Concluding observations: Japan, 20 June 2010, 18 pages, p. 8: http://www2.ohchr.org/english/bodies/crc/docs/
co/CRC.C.JPN.CO.3_fr.pdf.
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106
[31] “Survey shows 840 Japanese teachers use corporal punishment on students”, Japandailypress.com, 29 April 2013:
http://japandailypress.com/survey-shows-840-japanese-teachers-used-corporal-punishment-on-students-2927909.
[32] “43 schools in Japan guilty of ‘malicious’ corporal punishment”, Asiaone.com, 25 May 2013:
http://www.asiaone.com/News/Latest%2BNews/Edvantage/Story/A1Story20130525-425120.html.
[33] U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices
for 2012, Japan 2012 Human Rights Report, 29 pages, p. 2: http://www.state.gov/documents/organization/204416.pdf.
[34] “Sexual harassment rampant in SDF”, Japantoday.com, 13 January 2009: http://www.japantoday.com/category/kuchikomi/
view/sexual-harassment-rampant-in-sdf.
[35] United Nations, Committee Against Torture, Concluding observations on the second periodic report of Japan, op. cit., p. 1.
[36] Ibid, p. 3.
[37] U.S. Department of State, op. cit., p. 9.
[38] Global Detention Project, op. cit., p. 4.
[39] CAT Network Japan, op. cit.
[40] U.S. Department of State, op. cit., p. 7.
[41] United Nations, Committee Against Torture, Concluding observations on the second periodic report of Japan, op. cit., p. 3.
[42] “Court acquits man but kept lid on forced confession”, Japantimes.co.jp, 11 October 2007: http://www.japantimes.co.jp/
news/2007/10/11/news/court-acquits-man-but-kept-lid-on-forced-confession/#.UcltQtjtCho.
[43] “Au Japon, un taux de condamnation de 99%, mais combien d’innocents en prison ?”, Slate.fr, 3 January 2013:
http://www.slate.fr/lien/66779/japon-innocents-prison-aveux.
[44] United Nations, Human Rights Council, Working Group on the Universal Periodic Review, Compilation prepared by the Office
of the High Commissioner for Human Rights, Japan, 13 August 2012, 19 pages, p. 8: http://daccess-dds-ny.un.org/doc/UNDOC/
GEN/G12/159/42/PDF/G1215942.pdf?OpenElement.
[45] Fédération internationale des droits de l’homme (FIDH), “La peine de mort au Japon : la loi du silence. À contre-courant
de la tendance internationale. Mission internationale d’enquête”, October 2008, 56 pages, p. 37: http://www.fidh.org/IMG/pdf/
Japon505f_6.10.2008.pdf.
[46] Ibid.
[47] “Japan ‘water hose’ jailors freed”, News.bbc.co.uk, 4 November 2005: http://news.bbc.co.uk/2/hi/asia-pacific/4406396.stm.
© STR /AFP
193 clandestine migrants
after they were saved from
drowning by Greek harbour
police when their boat sank off
the coast. Kalo Zakros. Crete.
EUROPE
Greece . Hungary . Switzerland.
110
HUNGARY
SWITZERLAND
berne
* 7,9 m
budapest
* 9,9 m
GREECE
athens
* 11,2 m
*
INTRODUCTION
The system in place to protect human rights in Europe is among the most comprehensive and effective in the world today. Within the Council of Europe, the provisions
of the European Convention for the Protection of Human Rights and Fundamental
Freedoms (CPHRFF) are safeguarded by the European Court of Human Rights
(ECtHR), while the Commissioner for Human Rights ensures that these rights are
promoted. The Committee for the Prevention of Torture (CPT), meanwhile, is responsible for visiting the custodial facilities in each of the 47 Council of Europe member
States. Within the European Union (EU), the Charter of Fundamental Rights became
a legally binding instrument in 2009. The EU system is soon set to be strengthened
with the adhesion of the Union to the CPHRFF. Article 3 of this Convention, as well
as Article 4 of the Charter, stipulates that “No one shall be subjected to torture or to
inhuman or degrading treatment or punishment”.
Yet despite this dense and highly protective normative framework, Europe is not
exempt from human rights violations. Acts of both torture and ill-treatment continue
to be perpetrated. Almost one quarter of the ECtHR’s rulings in 2012 involved a grave
violation of Articles 2 and 3 of the Convention (on the right to life and the prohibition
of torture). In 2012, Russia was found guilty on seven occasions of failing to respect
the ban on torture, and on 48 occasions of inhuman and degrading treatment. Greece
was found guilty 11 times and France three times of inhuman and degrading treatment
or punishment.
There are several major problems affecting almost every country in the region. First,
the continent as a whole has seen a rise in xenophobic and discriminatory discourse,
in particular against migrants, asylum seekers and members of minority groups,
especially the Roma community, who are the primary targets of this hostility and
overall suffer acts of ill-treatment and torture more than the rest of the population. In
Macedonia, for example, on 5 May 2013 around 50 police officers who had come to
arrest a Rom suspected of murder punched and beat a group of ten Roma with sticks,
including three women. Law enforcement officials also carry out expulsions during
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112
which they have no hesitation in subjecting Roma to ill-treatment and destroying
their belongings. In response to a survey carried out in Italy in 2011, 26% of Roma
women said they had suffered police brutality, including physical assault, degrading
treatment, verbal abuse and sexual harassment.
There is an increasing number of migrants and asylum seekers in Europe, and the
conditions in which they are housed are deteriorating. Along Europe’s land borders,
would-be immigrants are violently turned away. On 11 March 2013, 25 people were
injured in Melilla as they tried to cross the border between Morocco and Spain.
Once they have arrived on the continent, illegal non-nationals, including unaccompanied minors, are often placed in detention in conditions that can be very harsh
and in some cases amount to cruel, inhuman or degrading treatment. In Italy and
Malta, living conditions in detention centres have caused riots among migrants. In
2012, the ECtHR ruled on five occasions that Greece had subjected undocumented
migrants and asylum seekers to inhuman and degrading treatment. Similarly, concerns relating to living conditions and the integration of asylum seekers and refugees
resulted in the court condemning transfers to Italy under the terms of the Dublin II
Regulation*, as it had done in the case of Greece in January 2011.
In 2013, the ECtHR warned several countries, including France in the cases of Mo. M.
v. France and Rafaa v. France, that returning foreign nationals to their home country
where there is a risk that they will be subjected to torture constitutes a violation of
Article 3 of the Convention. The United Kingdom also had a veto imposed on its decision to extradite an individual suffering from schizophrenia to the United States. The
court found that the extradition would significantly worsen the physical and mental
well-being of the applicant and that such a development would be likely to constitute
a form of treatment in breach of Article 3. In April 2013, Russia was found to have
breached the same article after it had expelled a Tajik refugee to his home country,
where he was at risk of being tortured.
Acts of violence committed by law enforcement officials affect every State in the
region to some extent. Police brutality remains endemic in countries such as Turkey
and Russia. In the case of Tangiyev v. Russia in 2013, the Russian Federation was
found guilty of acts of torture. The applicant had been beaten, burned with cigarettes
and electrocuted by police officers at the time of his arrest and while in police custody. In July 2013, Latvia was also found to have violated Article 3 when police officers repeatedly punched and kicked a man at the time of arrest and while in custody.
In Greece and Spain, there were reports of disproportionate levels of force used
during demonstrations against austerity measures. In Germany, which is often perceived as exemplary, around 2,000 complaints are filed each year for police violence.
Conditions of detention across Europe all too often amount to cruel, inhuman or
degrading treatment. In 2013, for example, Hungary (Fehér v. Hungary), Italy (Torregiani and others v. Italy) and France (Canali v. France) were found by the ECtHR to
have breached Article 3 of the Convention as a result of the custodial conditions
imposed on their prison populations. In Ukraine, harsh conditions of detention, a lack
of medical care and the ill-treatment of prisoners have been long criticised. At least
800 detainees died in Ukrainian prisons in 2012. Beyond deliberate acts of violence,
most cases involving a breach of Article 3 relate to the use of solitary confinement*,
prison overcrowding, force-feeding and arbitrary body searches.
Some human rights problems affect specific countries. The length of prison sentences in the United Kingdom led to a guilty ruling by the ECtHR, which held in July
2013 that there should be an option to review all life sentences after a certain period
and that the irreducible nature of such sentences constituted inhuman and degrading
treatment.
In Russia, civil society activists are regularly silenced by the authorities. Legislation
introduced in 2012 requiring organisations that receive foreign funding to be labelled
“foreign agents” imposes restrictions on the freedom of association that are incompatible with international norms. Several NGOs, including some of ACAT’s partners
leading the fight against torture, were the target of raids by the Russian security
forces in March 2013.
The governments in some States show total disregard for the rights of sexual minorities. The Turkish Republic of Northern Cyprus has criminalised sexual relations
between adults of the same sex. In Russia, a law has been adopted that prohibits the
“promotion of homosexuality”, while the Ukrainian Parliament is currently debating
two bills that would see a ban on the “promotion of homosexuality” and “propaganda
on same-sex relations”. Against a backdrop of increasing violence against LGBTI
minorities, these draft laws can only serve to encourage acts of aggression.
The rise in extreme right-wing – and even openly Nazi – paramilitary groups in some
countries (e.g. Golden Dawn in Greece, Jobbik in Hungary and ultranationalist groups
in Russia), the violence perpetrated by these groups and the lack of urgency among
the authorities to clamp down on them are cause for serious concern, not only in
relation to the well-being of minorities (whether ethnic, religious or sexual), but also
in relation to the future of democracy and the rule of law. On 13 October 2013, the
suburbs of Moscow were the scene of intense anti-immigrant violence to which the
police initially reacted half-heartedly.
Finally, some States are still “black holes” when it comes to human rights and the
fight against torture. One example is Belarus, Europe’s last remaining Stalinist dictatorship, where human rights are systematically flouted, torture is widespread and
freedoms are virtually non-existent.
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114
GREECE
BACKGROUND
Greece has been mired in recession since 2008 and is experiencing a period of
intense political, economic and social crisis. The fragile coalition in power since
the parliamentary elections in June 2012, comprised of the conservative New
Democracy party and the Panhellenic Socialist Movement, has had to take drastic
austerity measures under pressure from its international creditors. This has led to
widespread poverty and distress among the Greek population, with unemployment
reaching a record 28.6% in March 2013 and the suicide rate seeing an increase
of 26.5% between 2010 and 20111. The draconian policies have also had negative
repercussions for the country’s human rights situation: curtailed press freedoms, in
particular the closure of the public broadcaster ERT in June 20132; a steady rise in
racially motivated hate crimes, notably by activists from the neo-Nazi party Golden
Dawn, which won 18 parliamentary seats in the 2012 elections; an increase in police
repression during the demonstrations and strikes provoked by budget cuts; and serious violations of the right to asylum. Because of its border with Turkey, its long
coastline and countless islands, Greece is the main port of entry to the European
Union for clandestine immigrants and asylum seekers from Africa, the Middle East
and Asia. The country’s handling of this influx of people (128,000 in 20103), many
of whom are fleeing conflict zones like Afghanistan and Syria, has led to multiple
human rights violations.
PRACTICE OF TORTURE
Between 1959 and 2012, the European Court of Human Rights (ECtHR) ruled against
Greece on 39 occasions for violations of the European Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment, 11 of which took
place in 2012. These judgements mainly relate to the excessive use of force by police
officers and the treatment and conditions to which persons deprived of their liberty
are subjected. The latest ruling, which was issued at the time of writing (13 June
20134), related to the lack of space given to the Iranian applicant during his threemonth detention in a border police station.
Illegal migrants and asylum seekers:
conditions of reception and detention
Persons who illegally enter the Greek national territory, including unaccompanied
women, families with children and unaccompanied minors, are systematically incarcerated – for periods of up to 18 months in some cases5 – in border surveillance outposts, administrative detention centres, police stations and unsuitable premises such
as derelict warehouses, military barracks and even freight containers. Detainees
are placed in dilapidated and overcrowded cells without ventilation or natural light,
with limited or no possibility of walking or doing any exercise. Sleeping and hygiene
facilities are inadequate and dirty and there is a lack of hygiene products and clean
bedding6. These appalling conditions constitute inhuman and degrading treatment
against detainees, who are not given the necessary medical, social, legal and psychological assistance. In October 2012, a Greek criminal court acquitted 15 foreign
nationals who had fled the police station where they had been placed in detention.
The judge recognised the illegality of their escape but considered that the accused
had acted in order to avoid the risk of contagion from infectious diseases7. On 27 July
2013, Hassan Muhammad, an Afghan national who had been in a detention centre in
the city of Corinth for more than two months, died of a lung infection after repeatedly being denied access to a doctor8. On 10 April 2013, in the same facility, clashes
broke out between security forces and migrants who had gone on hunger strike to
denounce the “horrors of detention centres”9.
Those who are released and ordered to leave the country within 30 days are left to
fend for themselves without any assistance or material resources. They include asylum seekers, who face great difficulties in registering their request with the Attica
aliens police directorate, which only receives requests one day per week and accepts
no more than 20 or 30 at a time10. As a result, asylum seekers often show up several
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days in advance, during which time they are intimidated and chased away by police
officers in an effort to discourage them from returning, sometimes by force11. They
must also endure inclement weather, hunger, thirst and fatigue with no access to
toilet facilities and in a tense atmosphere that often results in incidents12.
Those who are unsuccessful or give up trying to file their request run the risk of being
arrested, placed in detention, deported by force despite the risks of human rights
violations in their home country, or expelled to Turkey, which has signed a bilateral
readmission agreement with Greece in violation of the principle of non-refoulement*.
Such serious failures led to the ECtHR ruling against Belgium in the case of M.S.S.
v. Belgium and Greece13 on the basis that it had violated Article 3 of the European
Convention by returning an Afghan National to Greece in accordance with the “Dublin
II”* regulation (procedure whereby migrants arrested in Europe are readmitted to
the country in which they first arrived). It found that Greece had no effective asylum
system in place and that it had violated the ban on torture and ill-treatment due to
the detention and living conditions to which the victim was subjected. Following this
judgement, several European countries suspended the transfer of asylum seekers
towards the Hellenic republic so as not to fall foul of the court.
Police violence
Police officers regularly perpetrate acts of violence against foreign nationals.
Victims include individuals who have been arrested as part of ethnic profiling identity
checks carried out under the Xenios Zeus operation, which was launched in Athens
in August 2012 to combat clandestine immigration14. State representatives are also
responsible for abuses committed against members of minority groups, in particular those from the Roma community, who have been forcefully expelled from their
camps. This community, which makes up 3.5% of the population, accounts for 20% of
fatalities following shots fired by police officers15. Many migrants and asylum seekers
also endure verbal (racist insults) and physical assaults (slaps, punches, kicks and
beatings with sticks and truncheons) at the time of arrest or while in detention16. On
10 March 2013, a 21-year-old Syrian national was allegedly beaten by police officers
after he began to film members of the police force beating fellow detainees involved
in a dispute17.
The country’s security forces, in particular the anti-riot police (MAT)18, who often
cover their faces with helmets or gas masks, have also been responsible for acts of illtreatment during demonstrations19, nearly all of which have been peaceful. Protesters
and journalists covering these events have been subjected to the excessive use of
rubber bullets, stun grenades, water cannons, tear gas and other chemical irritants20.
In April 2012, during the protests that followed the suicide of a pensioner, several
media professionals were attacked, including a photographer who was beaten on the
back of the head with a truncheon and suffered from cranial trauma21.
The situation in penitentiary facilities is of particular concern. Those in pre-trial
detention are not systematically separated from inmates serving a custodial sentence, and the same is true of minors and adults. Detainees are regularly subjected
to invasive body searches, are left without a bed or mattress, and are not given
adequate access to basic care and products. Furthermore, there are alarming levels
of overcrowding in Greek prisons, which had an occupancy rate of 151.7% in 201122.
Such conditions of detention regularly lead to riots and hunger strikes. Inmates are
also subjected to acts of ill-treatment by the security forces. In April 2013, 60 detainees alleged they had been beaten with truncheons and electrocuted with Tasers by
members of the special anti-terrorist police unit (EKAM) during cell inspections23.
According to the Greek constitution (Art. 28.1), international treaties take precedence
over domestic legislation. Greece is a State party to all of the main human rights
instruments and has recognised the competence of the Committee Against Torture*
(CAT) to investigate communications* submitted by another State party or by or on
behalf of individuals who fall under its jurisdiction. However, in September 2013 it
had not yet ratified the Optional Protocol to the Convention against Torture (OPCAT)
or adopted the draft law that would make the Ombudsman* the country’s National
Preventive Mechanism* as outlined in the UN instrument. The proposed bill also
provides for restricted access to the Ombudsman in detention centres in the case
of national security concerns, public disorder, natural disasters or unrest within the
establishment.
Article 7.2 of the Greek constitution stipulates that “Torture, any bodily maltreatment, impairment of health or the use of psychological violence, as well as any other
offence against human dignity are prohibited and punished as provided by law”24.
Article 137 (a) & (b) of the Criminal Code also identifies torture and offences against
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human dignity as crimes, although it includes several restrictions when compared
with the definition provided in the UN Convention against Torture. First, it omits the
term “severe suffering” and includes a requirement that mental suffering must be
capable of leading to serious psychological damage before it can be qualified as torture. Second, it does not take into account acts based on discrimination or those
inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity25. Lastly, it includes the term
“systematic”, which implies that sporadic abuses can be excluded, and requires that
the infliction of severe pain must be planned before it can be described as torture26. In
the case of Zontul v. Greece, the ECtHR ruled that Greece was in breach of Article 3
as its courts had failed to consider the rape of the applicant with a truncheon as an act
of torture27. Sentencing for the crime of torture ranges from 10 years to life imprisonment in the case of the victim’s death.
Police officers accused of abuse can be subjected to two types of disciplinary enquiry
in accordance with the 2008 Discipline Code: a preliminary administrative enquiry,
which is carried out by the officer’s own department and leads to no sanctions, or an
official administrative enquiry, which is only initiated if there is substantial evidence
to support the allegations of torture or offences against human dignity and is carried
out by a separate department which can decide to dismiss the officer in question.
The Code does not provide for police officers to be suspended pending the outcome
of the investigation.
An office was established in 2011 to deal with members of the security forces responsible for violations while carrying out their duties or abuses of power, although it
lacks independence and impartiality since it reports to the body responsible for overseeing the security forces, the Ministry of public order and citizen protection, and its
personnel is made up of police officials. This office is responsible for evaluating the
need to submit cases to the relevant authorities or open a new investigation where
failures have been identified by the ECtHR, but its investigative powers are limited.
A climate of impunity has dominated the abuses and acts of ill-treatment perpetrated
by State officials. In 2012, the CAT expressed concern at the very limited number
of prosecutions, definitive convictions and sanctions imposed in relation to such
cases28. In June 2013, just one case led to a conviction under the terms of Article 137
(a) and (b) of the Criminal Code. On 13 December 2011, an Athens mixed jury court
convicted a retired police officer for acts of torture (electroshocks) against two
youths in 2002, sentencing him to a suspended prison sentence of six years pending
appeal29.
In practice, judges and public prosecutors are reluctant to consider allegations of
torture and ill-treatment and initiate proceedings under Article 137 (a) and (b) of
the Criminal Code, preferring instead to rely on other offences such as the abuse of
power. Furthermore, they often replace the initial charge of torture with one relating to an offence against human dignity or use extenuating circumstances to impose
more lenient sentences than those provided for by law. It should also be noted that
despite the recommendations made by international bodies and NGOs, the authorities have failed to put in place video and audio recordings of interrogations. This
means that the Greek criminal justice system does not have the necessary dissuasive mechanisms in place to prevent abuses by members of the security forces.
The Greek judicial system further fails to guarantee the right to compensation. Even
in cases where the ECtHR and the UN Human Rights Committee have found that
the prohibition on torture and ill-treatment has been violated, the applicants have
received no compensation or any other form of damages30.
Finally, victims are reluctant to file complaints because they lack trust in the judicial
system, which is inefficient and although theoretically independent from the executive sometimes suffers from interference and corruption31, because they do not have
access to legal counsel or an interpreter (in the case of foreign nationals) or for fear
of reprisals.
In March 2013, a group of citizens, lawyers and NGO representatives established a
Committee against torture and arbitrary policing in an effort to combat this culture
of impunity by recording and publicly denouncing all acts of abuse committed by the
country’s security forces and by providing victims with independent medical and
legal aid.
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[1] “Grèce : face à la crise, le nombre de suicides augmente de 26 %”, Metronews.fr, 21 May 2013:
http://www.metronews.fr/info/grece-face-a-la-crise-le-nombre-de-suicides-augmente-de-26/mmeu!2XCrFMMdFs4v6/.
[2] Freedom House, Closure of Greek Public Broadcaster Further Stifles Media Freedom, 13 June 2013:
http://www.freedomhouse.org/article/closure-greek-public-broadcaster-further-stifles-media-freedom.
[3] Minority Rights Group International, State of the World's Minorities and Indigenous Peoples 2012, Greece, June 212, 242 pages,
p. 181: http://www.minorityrights.org/11374/state-of-the-worlds-minorities/state-of-the-worlds-minorities-and-indigenouspeoples-2012.html.
[4] European Court of Human Rights, Case of A.F. v. Greece (Application no. 53709/11), 13 June 2013, available in French at:
http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAM
BER%22],%22itemid%22:[%22001-120518%22]}.
[5] United Nations, Office of the High Commissioner for Human Rights, Working Group on Arbitrary Detention statement upon
the conclusion of its mission to Greece (21-31 January 2013), 31 January 2013: http://www.ohchr.org/EN/NewsEvents/Pages/
DisplayNews.aspx?NewsID=12962&LangID=E.
[6] Council of Europe, Report to the Government of Greece on the visit to Greece carried out by the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 19 to 27 January 2011, 10 January 2012,
53 pages, p. 12: http://www.cpt.coe.int/documents/grc/2012-01-inf-eng.pdf.
[7] GKEGKA, Maria, “Droit des détenus (Tribunal correctionnel grec) : Acquittement d’accusés du délit d’évasion en considération
de leur condition de détention”, Actualités Droits-Libertés, CREDOF, 15 January 2013: http://revdh.files.wordpress.com/2013/01/
lettre-adl-du-credof-15-janvier-2013.pdf.
[8] “Images de violences policières dans un centre de rétention grec”, Lemonde.fr, 20 August 2013: http://www.lemonde.fr/
europe/article/2013/08/20/images-de-violences-policieres-dans-un-centre-de-retention-grec_3463956_3214.html.
[9] “Grèce : la police donne l’assaut contre des migrants en colère”, Balkans.courrier.info, 11 April 2013:
http://balkans.courriers.info/article22236.html.
[10] Greek Helsinki Monitor, Sokadre, Minority Rights Group-Greece, OMCT, State Violence in Greece, An Alternative Report
to the United Nations Committee Against Torture, 20 October 2011, 33 pages, p. 10: http://www2.ohchr.org/english/bodies/cat/
docs/ngos/OMCT-GHM-MRG-G-SOKADRE1_Greece_CAT47.pdf.
[11] Greek NGOs, The campaign for the access to asylum in Attica area, 49 pages, p. 2: http://www.aitima.gr/aitima_files/
REPORT_Campaign_on_access_to_asylum_in_Attica_ENG.pdf; Greek Helsinki Monitor, Sokadre, Minority Rights Group-Greece,
OMCT SOS-Torture Network, State violence in Greece: An Update (October 2011-April 2012) Alternative Report to the United Nations
Committee Against Torture, 20 April 2012, 21 pages, p. 4: http://www2.ohchr.org/english/bodies/cat/docs/ngos/OMCT-GHMMRG-G-SOKADRE2_Greece_CAT47.pdf.
[12] Amnesty International, Greece, The end of the road for refugees, asylum seekers and migrants, December 2012, 12 pages, p. 5:
http://www.amnesty.org/en/library/asset/EUR25/011/2012/en/443c4bcd-7b2e-4070-916c-087008f6762f/eur250112012en.pdf.
[13] European Court of Human Rights, Grand Chamber, Case of M.S.S. v. Belgium and Greece (Application no. 30696/09),
judgement, 21 January 2011: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-103050#{"itemid":["001-103050"]}.
[14] Human Rights Watch, Unwelcome Guests, Greek Police Abuses of Migrants in Athens, 12 June 2013, 58 pages, pp. 1-2 or 3-4:
http://www.hrw.org/sites/default/files/reports/greece0613_ForUpload.pdf.
[15] Greek Helsinki Monitor, Sokadre, Minority Rights Group-Greece, OMCT, op. cit., p. 23.
[16] United Nations, Human Rights Council, Report submitted by the Special Rapporteur on torture and other cruel, inhuman
or degrading treatment or punishment, Manfred Nowak, Mission to Greece, 4 March 2011, 69 pages, pp. 10-11: http://www2.ohchr.
org/english/bodies/hrcouncil/docs/16session/A.HRC.16.52.Add.4.pdf.
[17] Amnesty International, The Greek authorities must urgently accelerate the asylum system reforms and end detention of asylum
seekers, 21 March 2013, 3 pages, p. 2: http://www.amnesty.org/en/library/asset/EUR25/003/2013/en/118ae1bd-048e-4e7c-b9c65d8ee81141e0/eur250032013en.pdf.
[18] Reporters Without Borders, Another day of violence against journalists covering protests, 6 October 2011:
http://en.rsf.org/greece-another-day-of-violence-against-06-10-2011,41135.html.
[19] United Nations, Committee Against Torture, Concluding observations of the Committee Against Torture: Greece, 27
June 2012, 10 pages, p. 5: http://www2.ohchr.org/english/bodies/cat/docs/CAT.C.GRC.CO.5-6.doc.
[20] Amnesty International, Police Violence in Greece, Not just ‘isolated incidents’, July 2012, 64 pages, p. 10: https://doc.
es.amnesty.org/cgi-bin/ai/BRSCGI/3724_Greece_cover_%20%20contents%20web?CMD=VEROBJ&MLKOB=31754011212.
[21] Amnesty International, Annual Report 2013, The state of the world's human rights: Greece:
http://www.amnesty.org/en/region/greece/report-2013.
[22] Council of Europe, Annual Penal Statistics Space I Survey 2011, 3 May 2013, 165 pages, p. 41:
http://www3.unil.ch/wpmu/space/files/2013/05/SPACE-1_2011_English.pdf.
[23] Greece Greek Reporter, Medical Report Shows Grevena Prisoners Beaten, 25 April 2013:
http://greece.greekreporter.com/2013/04/25/medical-report-shows-grevena-prisoners-beaten/.
[24] Hellenic Parliament, Constitution of Greece: http://www.hellenicparliament.gr/UserFiles/f3c70a23-7696-49db-9148f24dce6a27c8/001-156%20aggliko.pdf.
[25] Amnesty International, Greece: Briefing to Committee Against Torture 2011, October 2011, 36 pages, pp. 11-12:
http://www.amnesty.org/en/library/asset/EUR25/011/2011/en/3ba1f5a4-ad6d-448b-89e9-aa8d51b6e6c1/eur250112011en.pdf.
[26] Amnesty International, Police Violence in Greece, Not just ‘isolated incidents’, op. cit., p. 26.
[27] European Court of Human Rights, Case of Zontul v. Greece (Application no. 12294/07), 17 January 2012, available in French
at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108586#{%22itemid%22:[%22001-108586%22]}.
[29] Greek Helsinki Monitor, Sokadre, Minority Rights Group-Greece, OMCT, op. cit., p. 6.
[30] OMCT SOS-Torture Network, Greek Helsinki Monitor, UN body ruling: Greece failed to provide effective remedy
to Roma for ill-treatment and discrimination, 20 August 2012: http://www.omct.org/monitoring-protection-mechanisms/
statements/greece/2012/08/d21905/.
[31] U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Greece 2012 Human Rights Report, 34 pages, p. 6:
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HUNGARY
BACKGROUND
Since a comfortable victory in the 2010 parliamentary elections by the conservative
Fidesz-KDNP coalition (Hungarian Civic Union and Christian Democratic People’s
Party), which is led by Viktor Orbán, the country’s human rights situation has considerably worsened. Against the backdrop of an economic and social crisis and runaway unemployment levels, racial hatred against Hungary’s 13 national minority
groups has intensified, with the Roma and Jewish communities in particular targeted by campaigns of harassment and assaults by extreme right-wing militia and
paramilitary groups on the one hand and acts of discrimination and violations of their
fundamental rights by the authorities on the other. Jobbik, an ultra-nationalist party
and the country’s third-largest, has largely contributed to the now widespread use
of xenophobic discourse and attitudes in the political sphere. And outside politics,
police officers, judges and public prosecutors are reluctant to recognise the racial
motivations of crimes1, which means that appropriate sanctions are not being applied.
The incumbent regime has also repeatedly curtailed press freedoms by establishing
a supervisory body in 2010, the Media Council, whose director is appointed by Prime
Minister Orbán himself and whose other members are all chosen from within the
coalition. Such an extremely politicised and therefore biased structure is responsible
for ensuring that information is “correctly balanced”, has the authority to sanction
journalists who undermine “human dignity” or “public morality” and can also access
their sources under certain conditions2.
Furthermore, the Prime Minister has made several reforms to the new Fundamental
law, which was adopted without consultation or a referendum and came into force
on 1 January 2012, as well as some of the country’s “cardinal laws” in order to legislate in 35 areas relating to the ordinary decision-making powers of Parliament and
undermine the balance of power. Some of these reforms have considerably diminished the independence of the judiciary. The president of the National Judicial
Office (OBH), who is elected by members of Parliament, has absolute control over
the administration, management and oversight of the courts. He has the power to
appoint senior judges, transfer cases from one jurisdiction to another and transfer
judges to another court without their consent, in breach of the “lawful judge” principle3. The Constitutional Court, meanwhile, no longer has the authority to issue a
substantive ruling on the reforms to the Fundamental law or refer to its own case law
prior to the adoption of this text.
These measures have resulted in several rebukes from the European Parliament4,
the Council of Europe and the European Commission, wary of Orbán’s authoritarianism and his government’s breaches of the fundamental values upheld by these institutions: the rule of law, democracy and human rights.
PRACTICE OF TORTURE
According to the most recent sources, State officials do not regularly commit acts
of torture in Hungary, although they occasionally subject common law suspects and
prisoners to acts of ill-treatment, in particular those who belong to the much-stigmatised Roma community, which accounts for 5%-8% of the population according
to various estimates. The security forces are also responsible for acts of violence
against asylum seekers and undocumented migrants. Finally, the conditions of
detention in the country’s overcrowded prisons are often inhuman and degrading. All
of these abuses led to the European Court of Human Rights (ECtHR) ruling against
Hungary on six occasions between January 2012 and July 2013 for breaches of
Article 3 of the European Convention (prohibition of ill-treatment).
Police violence
Police officers are known to perpetrate acts of physical and verbal violence, racist
insults in particular, at the time of arrest, while transporting detainees or during
police custody. Roma are the primary targets and to a lesser extent members of
other minority groups and foreign nationals, who are often subjected to racial profiling and identity checks as well as arbitrary arrests. In 2010, a 27-year-old Rom who
became involved in a dispute between an officer and another citizen had pepper
gas sprayed in her eyes and was beaten and dragged along the ground towards the
police van, where her jumper was torn and her chest was exposed to onlookers.
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On 8 April 2013, a 47-year-old Romanian national suspected of stealing a chainsaw
and electric cables died after he was beaten all over his body by two officers for a
period of two hours at a police station5.
Hungarian legislation provides for “short-term arrests” without charge (maximum of
8 to 12 hours) and police custody of up to 72 hours on police premises, during which
fundamental legal guarantees such as access to a lawyer or a doctor are not always
enforced6, thus exposing detainees to the risk of ill-treatment.
The conditions of detention experienced by prisoners are a further source of concern as they regularly constitute an affront to the dignity of detainees.
Material conditions vary from one facility to another, but most show signs of disrepair and poor cleanliness with inadequate sanitary facilities in poor condition as well
as problems related to ventilation and lighting.
Prison overcrowding – a problem that has been officially recognised by the government, with a total of 18,388 detainees for an official capacity of 12,639 as of May
20137 – is partly linked to the excessive use by the judicial authorities of pre-trial
detention: in 2012, suspects accounted for nearly 30% of the prison population8.
The government decided in 2010 to amend the law so that the minimum living space
requirements of 3 m² for men and 3.5 m² for women and adolescents, as set by the
European Committee for the Prevention of Torture (CPT), only need to be met “where
possible”. The penitentiary authorities also opened a “summer prison” between June
and October 2012, a facility without heating or lighting designed to house inmates
convicted of minor offences who had to work to repay the cost of their detention9, an
experiment that is expected to be repeated.
Overcrowding creates tensions between inmates and prison wardens, who sometimes commit acts of ill-treatment (verbal violence, slaps, punches and kicks), in
particular against Roma suspects and convicts, who are subjected to racial prejudice
and are overrepresented within the prison population (between 30% and 40%10).
Wardens also regularly make excessive use of solitary confinement* and so-called
“category 4” constraint methods on prisoners considered to be very dangerous or
those who are serving long sentences, who are incarcerated in special security units
(KBK). These prisoners are handcuffed and forced to wear a belt every time they
leave their cell, attend a hearing, take exercise, see a doctor, receive visitors and
even take a shower. Sigmond Csüllög, who was first incarcerated in 2006, spent
almost 2 years of his life under these conditions, was subjected to detailed searches
every day and denied almost all contact with the outside world11. Furthermore, these
prisoners are often not informed of the reasons for their treatment, instilling in them
a “feeling of subordination, total dependence, powerlessness and, consequently,
humiliation” according to the ECtHR, which heard Csüllög’s case, and are not given
the possibility to seek a remedy before the courts or a higher authority.
Detainees who suffer from mental illness are placed in the Judicial and Observation
Psychiatric Institute in Budapest, where they take mandatory medication for an
open-ended duration. In 2012, a court fined the Institute for moral prejudice after it
forced a prisoner to wear a “chemical straitjacket” (multiple anti-psychotic drugs)12.
The Hungarian Criminal Code also provides for mandatory life sentences for certain
crimes and repeat offenders (the “three offence rule”). Yet the ECtHR has ruled that
to deny inmates serving a life sentence the possibility of securing conditional release
or having their sentence revised amounts to inhuman and degrading treatment13.
Illegal migrants and asylum seekers:
conditions of reception and detention
Since the introduction of amendments to the Asylum Act in January and July 2013,
anyone who immediately lodges an asylum request when they are arrested for illegal
entry and anyone returned to Hungary under the terms of the Dublin II* regulation are
no longer placed in detention but instead placed in open reception facilities.14 However,
the new legislation expands the list of justifications for the detention of other asylum
seekers for a period of six months, including families with children, unaccompanied
women, pregnant women, elderly persons and those suffering from mental illness.
Such detention is now the rule rather than the exception. These asylum seekers
are sent to the administrative detention centres alongside undocumented migrants.
The facilities, which are managed by the border surveillance authorities, are usually dirty and overcrowded, and detainees are treated like criminals15. They spend
most of their time locked in their cells, are not given access to suitable psychosocial
and medical care or recreational activities, and are kept tied and handcuffed when
they attend court hearings or even travel to see a doctor, go to the post office or the
bank. Nyírbátor detention centre, the country’s largest, was even described as being
“worse than prison” by the Commissioner for Fundamental rights, who serves as
the Hungarian Ombudsman*16. The authorities have also reopened nine penitentiary
facilities that had been closed for failing to comply with CPT standards in an effort to
deal with the influx of asylum seekers since the beginning of 2013.
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Prison wardens, police officers and contracted civil security guards display truncheons, handcuffs and pepper spray and regularly punch or kick detainees to intimidate or punish them. They also frequently sedate detainees or force them to take
medication, which can lead to problems of addiction17. The victims of such abuses
are often placed in solitary confinement as a disciplinary measure.
Hungary is a State party to all of the main human rights instruments and has recognised the competence of the Committee Against Torture* (CAT) to investigate communications* submitted by another State party or by or on behalf of individuals who
fall under its jurisdiction. In 2012, it ratified the Optional Protocol to the Convention
against Torture (OPCAT) and designated its Commissioner for Fundamental Rights
as the country’s National Preventive Mechanism*. However, the Commissioner, who
will only take up this role in 2015, does not have access to all custodial facilities such
as psychiatric units and is not authorised to meet anyone he chooses18 .
Hungary prohibits torture under the terms of Article III (1) of its Fundamental law19
and Section 16 (4) of its Police Act, although torture is not considered to be an offence
as such under the terms of the Criminal Code. Despite the government’s claims that
all acts amounting to ill-treatment or torture are punishable under Articles 226 (acts
of ill-treatment while carrying out official duties), 227 (interrogations under coercion) and 228 (illegal detention), the definition of torture provided in the Code does
not include all of the elements contained in the UN Convention. Furthermore, the
maximum sentence of eight years imprisonment does not reflect the seriousness of
the crime.
In 2003, the authorities introduced a code of conduct for police interrogations and in
2008 established an independent commission to examine complaints made against
the police. However, this mechanism, which is used to investigate human rights
violations perpetrated by members of the security forces, is not authorised to launch
investigations at its own initiative or interview the officers concerned; it can only
issue recommendations to the national police directorate and present its conclusions
before Parliament20.
Allegations of acts of ill-treatment committed by those responsible for enforcing
the law rarely lead to impartial and efficient investigations, judicial proceedings or
convictions. For example, the judicial authorities have delayed the criminal proceedings issued against police officers following the violent crackdown on anti-government protests in Budapest in September and October 200621. It took pressure
from the Romanian authorities for an investigation to be launched, after one of their
citizens died in detention, and for the two men accused of the abuse which led to
his death to be suspended along with two of their superiors. But as a general rule,
the level of prosecutions for acts of torture and ill-treatment is well below that of
other offences22, especially “violence against a representative of the authorities”, for
which judges are much stricter and impose longer sentences.
Persons placed in police custody or pre-trial detention are not systematically
informed of the reasons for their arrest or given access to a lawyer and are sometimes denied legal aid during the investigative phase. Furthermore, they must cover
the cost if they want their interrogation to be video recorded.
Those who complain of abuses committed by law enforcement officers are not
always allowed an independent medical examination but instead examined by a doctor who is employed by the police, penitentiary or border surveillance authorities
and in the presence of, respectively, police officers, penitentiary officials or border
guards23. Such a system can serve to discourage victims from reporting abuse.
Roma who have been subjected to violence have almost no chance of securing
justice, even where they have medical certificates confirming their injuries. Police
officers generally refuse to record their testimony or give serious consideration to
their allegations. Similarly, judges display a lack of will to hear such cases. As a
result, many members of the Roma community refuse to file complaints in defiance
of the judicial authorities.
In theory, all victims of crime are entitled to compensation under legislation designed
to assist victims, but those who have suffered acts of ill-treatment or torture do not
benefit from a specific compensation programme.
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[1] Amnesty International, Hungary: Violent attacks against Roma, Amnesty International submission to the UN Universal Periodic
Review, May 2011, 8 November 2010, 12 pages, p. 4: http://www.amnesty.org/en/library/asset/EUR27/003/2010/en/5d8aeb440f8f-490b-8f4e-1a003b31d8ee/eur270032010en.pdf.
[2] Reporters Without Borders, European Parliament urged to pass resolution condemning Hungary's new media,
31 December 2010: http://en.rsf.org/hungary-european-parliament-urged-to-pass-31-12-2010,39200.html; Hungary's media law
is unacceptable despite amendments, 8 March 2011: http://en.rsf.org/hongrie-hungary-s-media-law-is-08-03-2011,39721.html.
[3] Human Rights Watch (HRW), Wrong Direction on Rights, Assessing the Impact of Hungary’s New Constitution and Laws,
16 May 2013, 27 pages, pp. 8-12: http://www.hrw.org/sites/default/files/reports/hungary0513_ForUpload.pdf.
[4] European Parliament, European Parliament resolution of 3 July 2013 on the situation of fundamental rights: standards
and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130(INI)):
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2013-0315+0+DOC+XML+V0//EN.
[5] “Romanian detainee beaten to death by two Hungarian police”, NineO’Clock.ro, 11 April 2013:
http://www.nineoclock.ro/romanian-detainee-beaten-to-death-by-two-hungarian-police/.
[6] United Nations, Committee Against Torture, Conclusions and recommendations of the Committee Against Torture, Hungary,
6 February 2007, 8 pages, p. 3: http://www.refworld.org/country,,CAT,,hun,,45f6baaa2,0.html.
[7] International Center for Prison Studies, World Prison Brief, Hungary, 15 May 2013: http://www.prisonstudies.org/info/
worldbrief/wpb_country.php?country=143.
[8] Hungarian Helsinki Committee, Briefing paper for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT) on the occasion of the CPT’s periodic visit to Hungary, 28 March 2013, 28 pages, p. 7:
http://helsinki.hu/wp-content/uploads/HHC_briefing-paper_CPT_periodic_visit_28March2013_FINAL.pdf.
[9] “La Hongrie expérimente sa première prison d’été”, Journal.tdg.ch, 10 August 2012:
http://journal.tdg.ch/hongrie-experimente-premiere-prison-2012-08-10.
[10] United Nations, Office of the High Commissioner for Human Rights, Compilation prepared by the Office of the High
Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1, Hungary,
21 February 2011, 17 pages, p. 7: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/109/36/PDF/G1110936.pdf?OpenElement.
[11] European Court of Human Rights, Case of Csüllög v. Hungary (Application no. 30042/08), 7 June 2011:
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-104963.
[12] Hungarian Helsinki Committee, op. cit., pp. 14-15.
[13] European Court of Human Rights, Case of Vinter and others v. The United Kingdom (Applications nos. 66069/09, 130/10
and 3896/10), judgment, 9 July 2013: http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-122664.
[14] Hungarian Helsinki Committee, Brief Information Note on the Main Asylum-related Legal Changes in Hungary as
of 1 July 2013, 4 pages, p. 1: http://helsinki.hu/wp-content/uploads/HHC-update-hungary-asylum-1-July-2013.pdf.
[15] Hungarian Helsinki Committee, Hungarian Helsinki Committee UPR Fact sheet 8: Alien policing detention of asylum seekers and
irregular migrants, 2 pages, p. 1: http://helsinki.hu/wp-content/uploads/Hungary_HHC-Fact-sheet-8_Alien-policing-detention.pdf.
[16] Office of the Commissioner for Fundamental Rights, There is worse than prison: Temporary hostel of restricted access,
Nyírbátor – on-the-spot inspections of the ombudsman, 3 September 2012: http://www.ajbh.hu/en/web/ajbh-en/press-releases/-/
content/14315/15/there-is-worse-than-prison-temporary-hostel-of-restricted-access-nyirbator-%E2%80%93-on-the-spotinspections-of-the-ombudsman.
[17] United Nations High Commissioner for Refugees (UNHCR), Hungary as a country of asylum, Observations on the situation
of asylum seekers and refugees in Hungary, April 2012, 28 pages, pp. 12 and 17: http://www.unhcr-centraleurope.org/pdf/
resources/legal-documents/unhcr-handbooks-recommendations-and-guidelines/hungary-as-a-country-of-asylum-2012.html.
[18] Hungarian Helsinki Committee, Shortcomings of the Hungarian law ratifying OPCAT, 3 pages, pp. 1-2:
http://helsinki.hu/wp-content/uploads/HHC_comments_OPCAT_law.pdf.
[19] The fundamental Law of Hungary (25 April 2011): http://www.kormany.hu/download/4/c3/30000/THE%20
FUNDAMENTAL%20LAW%20OF%20HUNGARY.pdf.
[20] U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Country reports on Human Rights Practices
for 2012, Hungary, 47 pages, p. 8: http://www.state.gov/documents/organization/204504.pdf.
[21] United Nations, Human Rights Committee, Concluding observations of the Human Rights Committee, Hungary,
16 November 2010, 6 pages, p. 4: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/466/91/PDF/G1046691.pdf?OpenElement.
[22] Hungarian Helsinki Committee, Hungarian Helsinki Committee UPR Fact Sheet 4: Rights violations by officials:
http://helsinki.hu/wp-content/uploads/Hungary_HHC-Fact-sheet-4_Rights-violations-by-officials_2.pdf.
[23] Chance for Children Foundation, European Roma Rights, Foundation for the Women of Hungary, Hungarian Association
for Persons with Intellectual Disabilities, Hungarian Civil Liberties Union, Hungarian Helsinki Committee, Legal Defence Bureau
for National and Ethnic Minorities, Minority Rights Group International, People Opposing Patriarchy, The City is For All,
Hungary – Submission to the UN Universal Periodic Review, November 2010, 15 pages, p. 3: http://www.errc.org/cms/upload/file/
hungary-upr-08112010.pdf.
130
SWITZERLAND
BACKGROUND
Switzerland makes it a point of pride to promote human rights in its foreign policy.
Yet despite this principled position, based on a long tradition of humanitarian action,
several debates are ongoing internally, particularly in relation to the “foreign judges”
at the European Court of Human Rights and opposition to the ratification of the
European Convention on Human Rights, with some in conservative circles fearing a
loss of national sovereignty.
At a domestic level, the Confederation has tightened its laws on asylum and foreign
nationals in recent years. In a referendum on 9 June 2013, nearly 80% of Swiss
voters agreed to revise the law on asylum, first introduced on 26 June 1988. The
new measures provide for expedited procedures – which previously could last several years due to the various possibilities for appeal –, the removal of the right to
file for asylum in Swiss embassies abroad, restrictions on the family unit to one’s
spouse and children, and the removal of desertion and conscientious objection from
the list of reasons for seeking asylum. Collectively, these measures undermine the
country’s reputation as a land of asylum as well as the provisions of the 1951 Geneva
Convention Relating to the Status of Refugees.
The last few years have also seen a rise in acts of racism and racial discrimination
in a State where, at the end of 2012, 23.3% of the population were foreign nationals.1
This hostile approach was encouraged in political circles by the conservative Swiss
People’s Party (SVP), the country’s foremost political party, which gained 26.8% of
votes in the October 2011 federal elections and has made extensive use of symbols
and images that discriminate against foreigners in an effort to stoke a climate of fear
and feelings of insecurity within the population.
PRACTICE OF TORTURE
Certain police practices, prison overcrowding and in some cases the conditions in
which asylum seekers are housed are considered by the National Commission for the
Prevention of Torture (CNPT) to constitute cruel, inhuman or degrading treatment.
Police violence
There have been several allegations of excessive force used by police officers
in some of the 26 cantons that make up Switzerland, in particular the canton of
Geneva. Such abuses often take place at the time of arrest in the home of the suspect, while the detainee is being transported in police vehicles, or during their interrogation at the police station2. Several individuals whose cases have been heard
by national and international bodies set up to prevent acts of torture claim to have
been punched and kicked despite, they say, not having resisted in any way. On
3 June 2013, a police officer from an elite unit struck a thief who had already given
himself up and was on the ground3. Foreign nationals, in particular asylum seekers
and African migrants, are especially targeted by security officials. Such allegations
of police brutality are usually supported by medical examinations conducted at the
Champ-Dollon prison facility4.
Conditions of detention in Switzerland do not always meet international standards.
Although the occupancy rate in penitentiary facilities stands at 94.6%5, some prisons have suffered from chronic overcrowding for several years due to problems
managing the facilities available, particularly in Romansh-speaking Switzerland. The
Champ-Dollon facility in the canton of Geneva is a striking example. When the CNPT
visited in 2012, the prison housed 671 detainees, including 24 women, for a total
capacity of 376. In April 2013, the prison wardens went on strike to protest against
worsening working conditions. A planned extension to the facility is intended to double its capacity by 2017. The lack of available places leads to other problems such
as difficulty accessing physical and psychological health care, insalubrious facilities,
tensions between detainees, failures to systematically separate suspects from convicts and minors from adults, and the lack of a special unit for women.
Foreign nationals who are subject to legal restrictions are sometimes detained at the
Champ-Dollon and Frauenfeld facilities (canton of Thurgovia), which are not suitable
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for this purpose as those affected have not been convicted or even accused of committing an offence.
Although there are very few allegations of ill-treatment in detention, prison wardens
at the Champ-Dollon facility are sometimes guilty of bullying, verbal violence and
occasionally physical violence6 against detainees.
Foreign nationals placed in administrative detention are often held for excessively
long periods – up to 18 months for adults and 12 months for minors aged 15 to 18 –
and placed in difficult conditions of detention. They spend most of their time in their
cell without adequate opportunities to work or occupy themselves7, and are sometimes housed alongside common law offenders8.
Conditions of reception for asylum seekers
In 2012, 28,631 people requested asylum in Switzerland, up 27% on the previous year.
2,507 of these requests were successful. The overall population includes 80,454 people who have been granted asylum9, including 28,110 recognised refugees10.
The sharp rise in the number of asylum requests has led to problems housing applicants, with disparities in treatment from one reception centre to another and accommodation shortages in some cantons. In the canton of Fribourg, for example, around
50 asylum seekers were housed in an underground civil protection shelter for a
period of 13 months. This type of accommodation, or the military bases sometimes
used as an emergency measure, are unsuitable for long-term stays, with inadequate
air filtration systems and exposure to natural light.
Between 2011 and 2012, the National Commission for the Prevention of Torture visited the civil protection shelter in Biasca, the transit centre in Geneva airport and the
country’s four largest registration and processing centres (CEPs). It reported a lack
of access to play areas and entertaining activities for children as well as hygiene
facilities at the Kreuzlingen centre and in Biasca. The centre in Chiasso only has
squat toilets and has no facilities for children and babies or any room for creative
activities. Like the centre in Kreuzlingen, it is not equipped with any quiet room in
which residents can isolate themselves, an option that is thought to be successful in
reducing tensions. Furthermore, whereas the centres in Vallorbe and Chiasso offer
residents the chance to occupy themselves and even engage in community work, the
facility in Kreuzlingen does not make a sufficient number of activities available.
Conditions are particularly problematic for vulnerable residents and children at the
transit centre in Geneva airport. A mother and her six-year-old child spend more
than 50 days at the facility in conditions of detention that were unacceptable for a
young child.
Disproportionate use of force when carrying out
forced returns
A law governing the use of force, first introduced in 2009, stipulates four levels of
execution for the purposes of forcibly repatriating foreign nationals to their home
country. When conducting so-called “level IV” expulsions, which are reserved for
individuals likely to offer strenuous physical resistance and are carried out using
special flights with a police escort, Switzerland uses some of the most severe methods of restraint in Europe, including full body immobilisation11. This involves binding
the ankles and handcuffing the individual with plastic straps that are then attached
to a belt around the waist to prevent them from walking or moving in any way. The
individual’s knees are also tied together and the binds around the hands and feet are
attached to one another using a strap to prevent kicking. Larger individuals are not
allowed to stand and are seated in a narrow chair equipped with wheels that allow
officers to move it between the seats on the aircraft. The person’s legs, arms and
chest are also strapped to the chair. Finally, a helmet similar to those worn by boxers is placed over the head, complete with a net to prevent spitting. Officers place
the person on board the aircraft attached in this way before transferring them from
the “wheelchair” to a seat and once again binding their arms and legs before attaching their seatbelt12. These methods of restraint, combined with the stress of being
repatriated, are potential health risks and may even be fatal. Problems include malfunctioning organs in the abdominal cavity, a decrease in respiratory functions and
cardiac output, a risk of thrombosis, pulmonary embolism and asphyxiation. These
risks are aggravated by the fact that some flights may last more than 40 hours13.
Three individuals died as they were being forcibly removed between 1999 and 2010,
prompting the Federal Office for Migration (OFM) to suspend special flights for six
months, although they were then allowed to resume without any significant procedural changes or the introduction of any system to monitor removals. In the autumn
of 2011, the OFM finally appointed independent observers to participate in special
flights, including members of the CNPT. Then, in July 2012, the commission as a
whole agreed to monitor all level IV repatriations conducted by air. It published its
first report on its monitoring work in July 2013, offering a mixed assessment of the
31 special flights in which it participated between July 2012 and April 2013. One
positive dimension was the use of restraint methods adapted to the circumstances
and the use in most cases of verbal techniques to ease tensions. However, the CNPT
was more critical of some isolated cases where sedatives were forcibly administered and inadequate medical information was provided. It also reported disparities
in practices from one canton to another in terms of handling individuals and transferring them to the airport. It recommended greater harmonisation in this regard14.
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Disregard for the principle of non-refoulement*
Some of the provisions in the 1998 legislation on asylum and the 2005 legislation on
foreign nationals constitute a violation of the principle of non-refoulement. The law
on asylum stipulates that the ban on refoulement does not apply where there is substantial cause to believe that the individual concerned undermines the security of the
State or where, following a conviction for a crime or a particularly serious offence,
they are considered to be a danger to the community15. The law on foreign nationals
provides for the immediate expulsion of any foreign national guilty of a serious or
repeated breach of or threat to security or public order or who represents a threat to
internal or external security, with no possibility of appeal.
Furthermore, the SVP initiative to expel foreign nationals who have committed a
crime, which was approved by each canton and the population as a whole in
November 2010, also undermines the principle of non-refoulement as it provides for
the automatic expulsion of anyone sentenced to more than six months in prison. The
Federal Council made a counter proposal in June 2013 to allow magistrates to cancel
an expulsion if it constitutes a serious violation of the human rights enshrined under
international law, or postpone it if the life of the individual concerned is exposed to
too great a risk in their home country as a result of their race, nationality, religion,
political beliefs or association with a particular social group. The text is due to be
implemented, in whatever form, in 2015.
Prior to joining the UN in 2002, Switzerland was already a State party to the main
UN human rights instruments, including the Convention against Torture, and has
recognised the competence of the Committee Against Torture* (CAT) to examine
communications* either submitted by another State party or by individuals who fall
under its jurisdiction. It has also ratified the Optional Protocol to the Convention
against Torture (OPCAT). Within the framework of the Council of Europe, it has ratified the European Convention on Human Rights and the European Convention for the
Prevention of Torture, as well as the main human rights protocols.
However, although Article 10.3 of its Constitution states that “Torture and any other
form of cruel, inhuman or degrading treatment or punishment are prohibited”, and
various provisions in its Penal Code criminalise most of the acts that constitute
torture, in particular Article 264a (crimes against humanity) and Article 262c (war
crimes), domestic legislation in Switzerland does not include any legal definition of
torture that corresponds to the text of the UN instrument.
Since July 2012, the judiciary has been given additional resources to ensure compliance with the provisions of the Rome Statute of the International Criminal Court
(ICC), which was ratified in 2001. It has created a special unit to prosecute anyone
on Swiss soil responsible for genocide, torture or war crimes.
Shortly after ratifying the OPCAT, Switzerland also established a National Preventive
Mechanism* (NPM), the National Commission for the Prevention of Torture (CNPT),
which includes 12 members appointed for a period of four years and has a mandate
to visit all of the country’s detention facilities.
However, Switzerland has yet to establish a National Human Rights Institution with
extensive expertise in this area, as called for by the Paris Principles*, and does not
intend to do so until 2016 at the earliest. In May 2011, it set up the Swiss Centre of
Expertise in Human Rights (SCHR), but faced with opposition from the cantons to
the creation of an additional federal body, the authorities will only decide after a fiveyear pilot phase whether or not to make the SCHR a fully independent institution in
line with the standards set out by the UN.
A few Swiss cantons have an Ombudsman* although without any legal authority.
Their role is confined to investigating individual complaints made against government bodies and to make appropriate recommendations to the person or organisation
concerned.
In the absence of an independent investigative mechanism to handle allegations of
violence committed by the country’s security forces, and a neutral body to which victims could file such complaints, either in each canton or at a federal level16, complaints
must be made directly to the police or before the courts. In practice, the authorities
responsible for judicial investigations, who work hand-in-hand with the police on
a daily basis, tend not to follow up on such cases or have them dismissed. Police
officers accused of abuses often turn against victims, accusing them of “threats and
violence against a law enforcement official”. Ultimately, allegations of torture and illtreatment rarely result in criminal prosecutions and convictions, and even less often
in the payment of compensation.
A case involving a young Eritrean national illustrates the risk that abuses committed
by the police will be met with impunity. In 2006, the individual in question, then a
minor, insulted police officers travelling in a police van after he was subjected to an
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identity check. He was placed in the van and driven to a forest, where he had pepper
spray sprayed in his face before being abandoned. He filed a complaint for ill-treatment, but the officer charged with assault against a minor and abuse of authority was
twice acquitted by the district courts of Lausanne and Nyon. The Cantonal Supreme
Court rejected his appeal, but the Federal Supreme Court overturned that judgement
in 2011, ruling that its assessment of the evidence had been arbitrary and that certain
testimonies and confessions had been unjustifiably disregarded. Following this decision, in July 2012 a court in the canton of Vaud found the two police officers guilty of
abusing their authority and of causing bodily injury17.
[1] Swiss Confederation, Federal Statistical Office, Population – Key figures: http://www.bfs.admin.ch/bfs/portal/en/index/
themen/01/01/key.html.
[2] United Nations, Committee Against Torture, Consideration of reports submitted by States parties under article 19
of the Convention, Concluding observations of the Committee Against Torture, Switzerland, 25 May 2010, 8 pages, p. 3:
[3] Information Platform humanrights.ch, Violences policières dans le canton de Lucerne : quelles conséquences ?:
http://www.humanrights.ch/fr/Suisse/interieure/Poursuite/Police/idart_10194-content.html.
[4] Council of Europe, Rapport au Conseil fédéral suisse relatif à la visite effectuée en Suisse par le Comité européen pour
la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT) du 10 au 20 octobre 2011, 25 October 2012,
87 pages, p. 12: http://www.cpt.coe.int/documents/che/2012-26-inf-fra.pdf.
[5] International Centre for Prison Studies, Switzerland: http://www.prisonstudies.org/info/worldbrief/wpb_country.
php?country=167.
[6] Council of Europe, op. cit., p. 26.
[7] Swiss Confederation, National Commission for the Prevention of Torture (CNPT), Rapport d’activité de la commission
nationale de prévention de la torture (CNPT) 2011, 44 pages, p. 29: http://www.nkvf.admin.ch/content/dam/data/nkvf/
taetigkeitsberichte/121009_ber-f.pdf.
[8] Swiss Confederation, National Commission for the Prevention of Torture (CNPT), Rapport d’activité de la commission
nationale de prévention de la torture (CNPT) 2012, 48 pages, p. 28: http://www.nkvf.admin.ch/content/dam/data/nkvf/
taetigkeitsberichte/130604-ber-f.pdf.
[9] Swiss Confederation, Federal Office for Migration, Asylum statistics, 2012, 20 pages, p. 3, available in French at:
http://www.letemps.ch/rw/Le_Temps/Quotidien/04_Web/Dossiers/2013/Asile/ImagesWeb/stats_ch_2012.pdf.
[10] Ibid.
[11] Swiss Confederation, National Commission for the Prevention of Torture (CNPT), op. cit., p. 37.
[12] Amnesty International Suisse, Mesures de contrainte dans le domaine de l’asile et de la migration, 10 pages, pp. 7-8:
http://www.volspecial.ch/uploads/1331711440_Amnesty%20International%20fiche%20information.pdf.
[13] Swiss Confederation, National Commission for the Prevention of Torture (CNPT), Rapport au Département fédéral
de justice et police (DFJP) et à la Conférence des directrices et directeurs des départements cantonaux de justice et police (CCDJP)
relatif au contrôle des renvois en application du droit des étrangers de juillet 2012 à avril 2013, 8 July 2013, 18 pages, pp. 7-8:
http://www.nkvf.admin.ch/content/dam/data/nkvf/berichte_2013/ber_rueckfuehr_2013-07-08-f.pdf.
[14] Swiss Confederation, National Commission for the Prevention of Torture (CNPT), op. cit.
[16] “Plaintes contre la police: La situation reste insatisfaisante en Suisse romande”, Plaidoyer, October 2010:
http://www.humanrights.ch/upload/pdf/101001_PLAIDOYER_police.pdf.
[17] Information Platform humanrights.ch, Violence policière : un jugement cantonal contre l'impunité:
http://www.humanrights.ch/fr/Suisse/interieure/Poursuite/Police/idart_9103-content.html.
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© Khalil Hamra / AP
Syrian women, injured during
an air strike which targeted their
homes, arrive in a rural hospital.
Azaz. Syria.
MAGHREB
MIDDLE EAST
Libya . Oman . Syria . Yemen .
140
SYRIA
damascus
* 22,4 m
LIBYA
tripoli
* 6,1 m
YEMEN
sanaa
* 23,8 m
*
OMAN
muscat
* 3,3 m
INTRODUCTION
The year 2013 continues to be dominated by events in Syria, a country ravaged by a
one-sided armed conflict dominated by the regime of Bashar al-Assad, who for more
than two and a half years has decimated his own people and managed to withstand
the attacks of the armed opposition.
In the rest of the region, revolutionaries have watched the gains made during the
Arab spring slip away, as authoritarian rule across the board has either continued to
flourish or re-emerged in new guises.
Albeit with varying levels of intensity, political opponents in Algeria, Morocco, the
United Arab Emirates and Bahrain continued to mobilise in vain calling for democratic reform, running the risk of arrest, ill-treatment and even torture and judicial
harassment.
In Morocco, the authorities have oscillated between democratic changes and the
persistent use of political violence. Despite the constitutional reforms which in 2011
were met with a certain level of enthusiasm, critics of the regime and journalists
continue to be arrested mainly on the basis of provisions contained in Morocco’s
Penal Code and legislation governing the press, which significantly restricts the freedom of expression safeguarded by the Constitution.
In February 2013, a military court in Rabat handed down very harsh prison sentences
to 24 Sahrawi militants for associating with criminals, insulting and assaulting civil
servants and murder following their participation at the Gdeim Izik protest camp in
November 2010. The verdict was announced following an unfair trial that lasted nine
days and admitted confessions obtained under torture as evidence. This is just one
example among many of the kind of unjust legal procedures frequently imposed on
those who speak out against the government, and often on those accused of common
law offences.
Torture and unfair court proceedings continue to be used in Bahrain as tools to suppress opposition. Demonstrators, political adversaries, journalists, bloggers and
human rights defenders are regularly arrested and tortured by the security forces
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and convicted by judges loyal to the regime, often on the basis of forced confessions.
Despite the many commitments made by the Bahraini monarch to respect human
rights, such violations continue to be perpetrated in a climate of absolute impunity, as is clear from the acquittal on 1 July 2013 of Lieutenant-Colonel Mubarak Bin
Huwail, who was accused of torture by several medical professionals but enjoyed
the unfailing support of the Prime Minister.
In Tunisia, Egypt and Libya, where popular uprisings have resulted in regime change,
the new leaders have proved to be as disdainful of human rights as their predecessors and have generated great levels of dissatisfaction and fresh demonstrations.
In Egypt, the reign of the Muslim Brotherhood was short-lived. Mohamed Morsi, who
was elected President on 30 June 2012 following democratic elections that were
made possible by the overthrow of the authoritarian government of Hosni Mubarak,
was ultimately removed from power barely one year after taking up office. Widespread
unease had been building for several months: among other complaints, the government was accused of violently repressing acts of dissent, introducing legislation
that curbed freedoms and granted the President more extensive powers, and being
responsible for the increase in the price of basic goods, electricity shortages and
repeated attacks against religious minority groups, Copts and Shi’ites in particular.
On 3 July, the Defence Minister Abdel Fattah Al-Sisi announced that the Constitution
was to be suspended and that Mohamed Morsi and several of his close allies had
been arrested. This was followed by a series of protests held by pro-Morsi activists,
who faced a crackdown by the security forces and in some cases clashed with antiMorsi demonstrators.
The police-led violence and the clashes between the two camps resulted in hundreds
of deaths as the summer unfolded. The death toll rose sharply when the authorities
intervened on 14 August 2013 to destroy the two protest camps set up in Cairo by
supporters of the deposed head of State.
In the days that followed this intervention, Islamist activists and supporters attacked
churches, schools, shops and houses belonging to Christians in several towns and
villages across the country. In each case, the security forces, who had been warned
of the attacks or knew that there was an imminent risk, were either slow to respond
or simply failed to show up. Several Christians died and many others were wounded
during these attacks.
In Tunisia, segments of the population and most of the opposition are grappling
with the democratically elected government led by Ennahda, which they accuse of a
return to the corruption and political violence that characterised the earlier regime
of Ben Ali. The security forces continue to use excessive force when dispersing
crowds of demonstrators, and use acts of torture against detainees arrested for
political reasons or for common law offences. Although a small number of torture
trials have now been initiated, a climate of impunity continues to dominate – even for
crimes committed prior to the revolution – due to a lack of resources and above all
the absence of political will. Many of the police officers and judges who held office
under Ben Ali remain in their posts; they have a tendency to cover up crimes committed by the former, often with the complicity of the latter.
The assassination of two political opponents, Chokri Belaïd and Mohamed Brahmi,
cemented opposition among the Islamist regime’s detractors, who forced the authorities to enter negotiations with a view to creating a transition government and bringing an end to the crisis.
In other countries in the region that have been spared by the Arab spring, human
rights violations continue to be perpetrated with complete impunity.
Iraq still suffers from outbreaks of political and religious violence, which have intensified since the withdrawal of American troops in December 2011. Iraqi security
forces use excessive force to crack down on demonstrations, in particular those held
by the Sunni minority in protest against the discrimination of which it accuses the
authorities. Dozens of Sunni protesters have been shot dead by police officers and
militiamen since the start of the year.
There has been an upsurge in attacks, which are mostly carried out by jihadist groups
with close links to Al Qaeda. In July alone, at least 1,000 people died, mostly Shi’ite
civilians but also several hundred security officials. The government’s initial efforts
to prevent such attacks have involved increasing the number of executions of those
sentenced to death for terrorist offences, in most cases on the basis of confessions
obtained under torture.
In Iran, shortly after taking up office in June 2013, the newly elected President,
Hassan Rouhani, whose campaign promises included greater respect for fundamental freedoms, ordered the release of several political prisoners. However, many
others remain in detention, including human rights activists, trade unionists, journalists and bloggers. Ethnic and religious minorities continue to be targeted by acts of
repression. Members of the Bahá'í, Sufi and Christian minority groups are serving
prison sentences because of their religious practices, while many Kurds and Azeris
have been sentenced to death for their alleged hostility to the regime, following unfair
trials most of which involved confessions obtained under torture. Death-row inmates
convicted of drug trafficking offences account for the majority of prisoners executed
each year. Some of these were minors at the time of their offences.
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In July 2013, following discussions led by the US, the Palestinians and Israelis agreed
to return to the negotiating table after an interruption of three years to the peace
process. However, the negotiations were quickly undermined by the news that Israel
was due to build new houses in settlements on land claimed by the Palestinians.
Throughout the year, Israel’s settlement policies have seen several expulsions – in
many cases violent – of Palestinians from the West Bank and Bedouins living in the
Negev region.
At the same time as Palestinian detainees were being released by Israel in recognition of Palestine’s participation in the negotiations, the Israeli army carried out hundreds of arrests near the West Bank barrier and during incursions into the occupied
territories. Several Palestinians died and many others were wounded during these
operations, which generally involved violent hostilities. In the Gaza Strip, several
Palestinians were killed and others injured when Israeli armed forces fired shots at
them because they were too close to the border with Israel.
The Israeli army also used disproportionate force to break up demonstrations held in
the West Bank against the construction of the barrier and Israeli settlements.
Palestinian security forces operating in the West Bank violently repressed several
demonstrations held in support of Egypt’s Muslim Brotherhood and in protest against
the renewed negotiations with Israel, resulting in two deaths.
Meanwhile, the security forces run by Hamas in the Gaza Strip have pursued their
campaign of intimidation targeting Fatah activists.
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LIBYA
BACKGROUND
Libya gained its independence in 1951 and became a socialist Arab Republic on
1 September 1969 following a military coup d’état by Muammar Gaddafi, before being
declared a Republic of the masses (Jamahiriyya). Today it bears the scars of 42 years
of a dictatorial and repressive regime. The revolution in February 2011 led to an initial phase of political transition, culminating in a proclamation that the country had
been liberated on 23 October 2011. This was followed by the election of a national
congress on 7 July 2012 – the country’s first parliamentary election since 1965 – and
the subsequent dissolution of the Transitional National Council (TNC) that had been
put in place on 2 March 2011.
Efforts to draft a new Constitution have entrenched opposition between the various
camps. Libya’s many political formations have struggled to reach a consensus on how
the definitive text should look. This has severely undermined the democratic transition, made all the more challenging by calls from Cyrenaica province for a federal
system and the threat of “defensive retribalisation”1 in a country that has a 97% Sunni
Muslim population but includes several hundred tribes and clans2. As for the process
of transitional justice, it is proving difficult to achieve as it is tied into the thorny question of how to reform Libya’s security systems and the circulation of small arms and
light weapons (SALW), which are currently the only real means of settling disputes.
Libya continues to be the scene of many major human rights violations: political
assassinations, arbitrary detentions, enforced disappearances*, summary executions, violence against women and restrictions on individual and collective freedoms,
all against a backdrop of ostracism and discrimination against Berber communities
and sub-Saharan African nationals. The desire for revenge has dominated reconciliation efforts, raising many challenges for the Supreme Council for Public Freedoms
and Human Rights, which was established in 2011 to monitor violations and receive
complaints.
PRACTICE OF TORTURE
Both the authorities and the country’s various armed militia groups make systematic
use of inhuman and degrading treatment and torture, denying any legal protection for
those deprived of their liberty3.
Victims
Most victims are held in prisons or detention centres. Those who are subjected to
torture have extremely diverse backgrounds: political opponents, former mercenaries from sub-Saharan Africa, human rights defenders, lawyers, journalists, doctors
and surgeons, trade unionists, migrants, women, members of minority groups, etc.
At the beginning of 2013, nearly 9,000 people were in custody in Libya. 3,000 of
them were being held by the Justice Ministry, 2,000 by the Defence Ministry or
the Supreme Security Committee placed under its authority, and the remaining
4,000 were being detained without any legal framework, imprisoned by militias and
other armed groups4. These detainees, in particular those in the hands of the militias,
are held in very dilapidated facilities, in some cases in improvised detention centres,
and subjected to conditions that fall far short of international standards. Most of them
do not benefit from legal monitoring and have been detained for at least one year
without charge.
Tribes identified as having been pro-Gaddafi (in particular the Mashashiya, Tawergha
and Toubou tribes) continue to be the target of political vendettas that include acts
of ill-treatment and torture. The final report of the UN International Commission of
Inquiry, published in March 2012, concluded that the revolutionaries (thuwwar) had
executed and tortured to death mercenaries and members of these tribes suspected
of being loyal to Gaddafi5.
Migrant workers and asylum seekers en route to Europe are also especially targeted
by torturers. Almost 5,000 of them were being held in 17 different detention centres
in May 2013. Most of these facilities are supervised by the Department of Combating
Irregular Migration (DCIM), part of the Interior Ministry6. Asylum seekers in particular are subjected to abuse in order to silence those who dare to protest. The case of
a 28-year-old Nigerian national held in a detention centre near Tripoli in early 2013
is a striking example. After he complained of overcrowding and poor conditions of
detention, the guards shot him in the foot and injured his toe. They forced him to lie
face down on his bed, to which they then tied his hands and feet before repeatedly
beating his lower back with the butts of their weapons. Four months later, the victims
still had difficulty walking7.
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Journalists are also affected by torture practices. On 28 April 2013, Mahmud
Al-Farjani, Libya correspondent for the Saudi station Al-Arabiyya, was abducted by
armed militiamen in his employer’s premises in Tripoli as he was covering a demonstration organised by the militia in favour of the draft political isolation law. He was
detained for several hours, repeatedly beaten and threatened with execution8.
Religious minorities suspected of proselytism, in particular Egyptian Copts working
in Libya, are also the target of inhuman and degrading treatment. On 26 February
2013, at the al-Jarid market in Benghazi, members of the militia group Libyan Shield
Force 1 abducted 12 Coptic Egyptian nationals who were selling clothes, including
one man named Amgad Zaki. Once they had arrived at their destination, his assailants shaved his head and threatened to slice his throat. He was held for four days
during which time he was whipped and physically assaulted. “I was dying every day,
and at one point I thought death is better than this”9.
Sexual minorities are another target of abuse by official or semi-official militia groups.
On 22 November 2012, 12 homosexuals attending a private party were arrested and
imprisoned by the Nawasi brigade, which is affiliated to the Interior Ministry. They
were released after one week in detention with visible bruising on their legs and
backs. Their heads had also been shaved10.
In Libya, the vast array of authorities and militia groups authorised to carry out
arrests and place people in detention has blurred responsibilities and favoured the
impunity of those who carry out acts of torture. As well as the domestic and external
security services, the national military service and the military intelligence authorities, Libya is home to at least 350 armed militia groups11 which are loosely or closely
linked to official bodies (Interior or Defence Ministries). Of these groups, the Nawasi
brigade, the Free Libya Martyrs Brigade or the Libyan Shield Forces play the role of
auxiliary to the national army12. The Supreme Security Committee, which includes
between 60,000 and 100,000 troops, also has free rein to carry out investigations,
arrest suspects and refer cases to public prosecutors13.
The DCIM and the department responsible for combating crime, which also falls
under the authority of the Interior Ministry, are among the official bodies that engage
in acts of ill-treatment. One case in point is that of a 49-year-old Algerian national
who had lived in Libya since 1996 and was arrested at his place of work near Bir
al-Ghanam in February 2013. He was brought to the premises of the anti-crime unit,
where he remained for 55 days. He was tortured on four occasions (subjected to
electric shocks for 20 minutes at a time and beaten with rubber piping). One of his
fingers was broken as a result of the abuse14.
Libya’s infamous torture sites include the Zarroug and Wahda prisons in Misratah,
the interrogation centres used by the Supreme Security Committee, the Ein Zara and
Abu Slim prisons in Tripoli, and the al-Yarmouk and al-Khums centres east of the
capital. Former schools and military facilities, private residences and sports clubs
are also regularly used as detention and interrogation centres. At a local level, several local supreme committees responsible for security, which report to the Interior
Ministry, also supervise a certain number of torture sites.
Acts of torture and ill-treatment are mainly inflicted at the time of arrest, during the
first few hours of police custody and during interrogations, although they can continue during longer periods of detention. The purpose of such practices is twofold:
to extract confessions as quickly as possible, and in the case of some offenders, to
exact revenge for past abuses committed under the Gaddafi regime. Torture and illtreatment are often combined with appalling conditions of detention due to extreme
levels of prison overcrowding, highly unreliable access to water and food and even
less chance of gaining access to legal counsel. The inadequate access to health care,
whether deliberate or not, continues to be an extremely serious cause for concern.
Given the wide variety of torture techniques, it would be difficult to provide an
exhaustive list of the techniques used, but they include the following: beating various parts of the body using pipes or belts; repeated kicking and punching; beatings
using the butt of a firearm; suspending victims in constrained positions, including
the so-called “roast chicken” technique (bouka)15; repeated blows to the soles of the
victim’s feet using a cane (falaqa*); cigarette burns; electric shocks administered
to the victim’s genitals, in particular with the use of electro-shock weapons16; and
rape.17 These techniques are very often used during extended periods of solitary
confinement*18, often incommunicado*. A former police officer, Tarek Milad Youssef
Al-Rifa’i, succumbed to his injuries on 19 August 2012 having been transferred
from the Wahda prison in Misratah to the Supreme Security Committee’s centre in
the city for interrogation. He had been arrested by armed militiamen in Misratah in
October 2011. The autopsy showed that he had died as a result of ill-treatment. The
UN support mission in Libya (UNSMIL) also recorded the deaths of three individuals who had been placed in detention in facilities controlled by the same committee.
These deaths occurred on 13 April 2012 and were also the result of acts of torture19.
Such practices also take place during identity checks carried out at checkpoints,
affecting women in particular.
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Internationally, Libya adhered to the International Covenant on Civil and Political
Rights in 1970 and to the African Charter on Human and People’s Rights in 1987. It
also ratified the Convention against Torture in 1989, but did not recognise Articles 21
and 22 of the UN Convention, which stipulate that the Committee Against Torture*
(CAT) is competent to receive complaints filed by States or individuals. Libya is not
a State party to the 2006 International Convention for the Protection of All Persons
from Enforced Disappearance, the 1951 Convention Relating to the Status of Refugees
or the Rome Statute. Nor did it sign the 2002 Optional Protocol to the Convention
against Torture (OPCAT).
In domestic terms, a constitutional declaration issued on 3 August 2011 by the TNC
lays out the principles that form the foundation of the new Libya20. All arrests must
be made using a warrant (Article 30 of the Code of Criminal Procedure), and the
Penal Code in principle prohibits all forms of arbitrary detention21.
On 9 April 2013, the National Congress adopted a law to criminalise torture, enforced
disappearances and discrimination22. This legislation imposes a minimum prison
sentence of five years in the case of physical or mental suffering inflicted upon
a detainee. A life sentence is mandatory in the case of torture that results in the
death of the victim.23 However, the definition of torture provided in Article 2 does not
reflect Article 1 of the Convention against Torture as it restricts the material application of torture charges to acts committed against persons deprived of their liberty24
and makes no mention of the principle of non-refoulement*.
What is more, several domestic legal provisions relating to the criminalisation of
torture are in contradiction with one another due to a lack of clarity on the primacy
in domestic law of certain internal standards. Finally, according to sources, it would
appear that corporal punishment is still lawful as an applicable sentence for a certain
number of crimes and minor offences.
The major failings of the legal system, whose independence is seriously undermined
by the power of the country’s militia groups, political patronage and corruption, make
it extremely difficult if not impossible to take any legal action with a view to securing
a criminal conviction or damages following acts of torture or ill-treatment.
The judiciary has neither the infrastructure nor the personnel needed to guarantee
the safety of its members in the exercise of their duties25. In some regions such as
Jebel Akhdar (east of Benghazi), judicial investigations have had to be suspended
due to a lack of protection for judges and prosecutors and threats issued against
them. Few lawyers are willing to defend the interests of former detainees loyal to
Gaddafi, either for ideological reasons or for fear of reprisals. Indeed, some lawyers and judges have been put under pressure, intimidated or subjected to retaliatory measures following court rulings deemed to be biased26. There is a flagrant
lack of training for public prosecutors, judges, judicial police officers and forensic
investigators.
In institutional terms, there is no credible internal mechanism to monitor issues
relating to the prisons and the judiciary. The Supreme Council for Public Freedoms
and Human Rights has tried to carry out investigations in detention centres, but
lacks political support due to the omnipotence of the militia. Furthermore, there is
no vetting authority that could suspend judges whose impartiality and professionalism have been challenged. In reality, very few suspected perpetrators of torture or
ill-treatment are sanctioned. After an investigation was launched into the deaths
of the three people being held by the Supreme Security Committee in Misratah on
13 April 2012, the head of the committee was dismissed.
It would appear that the authorities favour a mechanism whereby the victims of serious human rights violations receive financial compensation, rather than enforcing
the principles of criminal liability and prosecuting those responsible. This is a dangerous trend that risks impeding the entire process of national reconciliation in the
long term and undermining efforts to restore trust in a judicial system that appears
to favour the “justice of victors”.
[1] MONCEF D., “Crise du système politique libyen, clivage et transition démocratique incertaine”, paper delivered during
a conference entitled “Libye : quels changements après Kadhafi ?”, held at the Centre d’Études et de Relations Internationales
(CERI) in Paris on 17-18 January 2013: http://www.sciencespo.fr/ceri/fr/content/libye-quels-changements-apres-kadhafi.
[2] Asylum Research Consultancy, Libya Country Report, 5 July 2013, 117 pages, p. 10:
http://www.refworld.org/publisher,ARCON,,,51de77c24,0.html.
[3] United Nations, Security Council, 21 June 2013, Security Council Press Statement on Libya:
http://www.un.org/News/Press/docs/2013/sc11042.doc.htm.
[4] Human Rights Watch (HRW), World Report 2013, Libya, 31 January 2013, 665 pages, p. 582:
https://www.hrw.org/sites/default/files/wr2013_web.pdf.
[5] United Nations, Human Rights Council, Report of the International Commission of Inquiry on Libya, 8 March 2012, 46 pages,
p. 9: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A.HRC.19.68.pdf.
[6] Amnesty International, Scapegoats of fear, Rights of refugees, asylum-seekers and migrants abused in Libya, June 2013,
31 pages, pp. 4-5: https://www.amnesty.org/en/library/asset/MDE19/007/2013/en/5310f0f7-1ff4-4acd-bfd8-e3e2c082d7d3/
mde190072013en.pdf.
[7] Ibid, p. 22.
[8] Reporters without Borders (RSF), Multiple Kidnappings of Media Workers, 29 April 2013: http://en.rsf.org/libya-multiplekidnappings-of-media-29-04-2013,44459.html.
[9] “Dozen of Coptic Christians were tortured inside a detention center”, Usatoday.com, 15 March 2013:
http://www.usatoday.com/story/news/world/2013/03/15/coptic-christians-tortured-libya/1991753/.
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152
[10] U.S. State Department, Bureau for Democracy, Human Rights, and Labor, Libya 2012 Human Rights Report, 19 April 2013,
[11] JOFFE, George, Libya – A Clouded Future, Centre d’Études et de Recherches Internationales (CERI), July 2013:
http://www.sciencespo.fr/ceri/fr/content/dossiersduceri/libya-clouded-future.
[12] International Crisis Group (ICG), “Divided We Stand: Libya’s Enduring Conflicts”, Middle East/North Africa Report N°130,
14 September 2012, 44 pages, p. 18: http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/North%20
Africa/libya/130-divided-we-stand-libyas-enduring-conflicts.pdf.
[13] ICG, “Trial by Error: Justice in Post-Qadhafi Libya”, Middle East/North Africa Report N° 140, 17 April 2013, pp. 23-24:
http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/North%20Africa/libya/140-trial-by-error-justicein-post-qadhafi-libya.pdf.
[15] Human Rights Solidarity, Libya Report, 27 June 2007, 27 pages, p. 8: http://www2.ohchr.org/english/bodies/hrc/docs/ngos/
HRS_LibyaAJ.pdf.
[16] Amnesty International, Libya: Deaths of detainees amid widespread torture, 26 January 2012:
http://www.amnesty.org/en/news/libya-deaths-detainees-amid-widespread-torture-2012-01-26.
[17] U.S. State Department, Bureau for Democracy, Human Rights, and Labor, op. cit., p. 5.
[19] United Nations, Security Council, Report of the Secretary-General on the United Nations Support Mission in Libya,
30 August 2012, 18 pages, p. 6: http://www.un.org/fr/documents/view_doc.asp?symbol=S/2012/675&TYPE=&referer=/
fr/&Lang=E.
[20] Libyan Transitional National Council, Draft Constitutional Charter for the Transitional Stage, September 2011:
http://www.refworld.org/docid/4e80475b2.html.
[21] Amnesty International, Libya, Rule of law or Rule of Militias, July 2012, 71 pages, p. 34: http://www.amnesty.org/fr/library/
asset/MDE19/012/2012/en/f2d36090-5716-4ef1-81a7-f4b1ebd082fc/mde190122012en.pdf.
[22] World Organisation Against Torture (OMCT), Libya: The New Law Criminalising Torture: A first step, but more is needed,
25 April 2013: http://www.omct.org/statements/libya/2013/04/d22237/.
[23] ICG, op. cit., p. 30.
[24] OMCT, Lawyers for Justice in Libya (LFJL), Redress and Dignity, Preliminary comments on the Draft Law Criminalising
Torture, Enforced Disappearances and Discrimination, 25 March 2013, 13 pages, p. 3: http://www.libyanjustice.org/downloads/
Publications/Draft-Torture-law-Note---Website-English-.pdf.
[25] United Nations, Security Council, Report of the Secretary-General on the United Nations Support Mission in Libya,
21 February 2013, 18 pages, p. 7: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2013/104.
[26] Amnesty International, Libya must seek justice not revenge in case of former Al-Gaddafi intelligence Chief, 18 October 2012:
http://www.amnesty.org/fr/news/libya-must-seek-justice-not-revenge-case-former-al-gaddafi-intelligence-chief-2012-10-18.
154
OMAN
BACKGROUND
There has been no revolution in Oman, as the absolute reign of Sultan Qaboos continues more than 40 years after he seized power. However, this monarchy with its
population of 3.3 million has not been completely spared by the Arab spring. On
17 January 2011, young protesters took to the street to denounce corruption. This
initial gathering, referred to as the “Green March”, was followed by several other
demonstrations and strikes, many of which were sector-specific, calling for salary
increases, improvements in working conditions and the labour market and the dismissal of ministers and other State representatives guilty of embezzlement, particularly relating to oil revenue1.
This popular uprising took place on a large scale in the spring of 2011 but continued
to mobilise workers from the private sector, public officials, students, the unemployed, journalists and intellectuals throughout that year and even up to the time of
writing, although on a smaller scale.
The Sultan’s response to these diverse protest movements has oscillated between
reforms and crackdowns. He carried out a cabinet reshuffle on 7 March 2011 and
has agreed to job creation initiatives and the introduction of unemployment benefit,
while at the same time his security forces have used excessive violence to disperse
protesters, arresting many. Online sources of information have been shut down or
hacked, and dozens of protesters, journalists and bloggers in particular, have been
given prison sentences, in most cases of between six months and one and a half
years, for defaming the Sultan, information crimes or participating in an unauthorised gathering2. In March 2013, the Sultan pardoned all those convicted on this basis,
but his gesture did not bring an end to the arrests3.
PRACTICE OF TORTURE
There is little available information about the torture phenomenon in Oman. Local
and international NGOs regularly document cases of arbitrary arrests and detention
for political reasons, but make few reference to ill-treatment and even fewer to acts
of torture.
Despite this lack of information, torture and ill-treatment cannot be said to be marginal practices; indeed they intensified from 2011 onwards as part of the crackdowns
on the protest movements that emerged against the backdrop of the Arab spring4.
Victims
According to the data collected by Omani human rights defenders and international
organisations, the torture phenomenon mainly affects protesters, human rights
defenders and bloggers who publicly oppose the regime.
On 8 April 2011, writer and human rights defender Said Ben Sultan al-Hashimi,
together with the journalist Basma al-Rajhi, were abducted by around 10 masked
men whose clothing and vehicle suggested they represented the intelligence authorities (Internal security service)5. Blindfolded and tied up, they were taken into the
desert where they were beaten and subjected to mock executions before being abandoned6. Al-Hashimi is known because of his support for institutional reforms and
his involvement in demonstrations. His actions led to him being arrested once again
by the police on 11 June 2012 during a gathering calling for the release of political
prisoners. He was sentenced to one and a half years in prison for participating in an
illegal gathering and impeding traffic.
While bloggers and human rights defenders have been the victims of a fierce
crackdown, it would appear that it is regular protesters who suffer the most serious assaults7, as in the case of the young demonstrators from the “gang of explosives” who were arrested in April 2011 after taking part in protests in Reform square.
Accused of possessing explosives and plotting an attack against security forces and
government buildings in the Sohar district, they were all sentenced to 2 ½ years in
prison after signing confessions obtained under torture. One of the protesters, Khaled
Hamid Mubarak al-Badi, who was arrested on 6 April 2011, had his genitals severely
beaten during his interrogation and is still suffering from the abuse inflicted8.
Protesters continue to be subjected to political violence despite a slowdown in the
popular uprising. On 29 July 2013, the blogger Sultan al-Saadi was arrested by members of the intelligence service and detained incommunicado* for 23 days while being
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interrogated about his activities on Twitter. He was kept in solitary confinement*
throughout the period of his detention and subjected to ill-treatment, in particular
being forced to wear a black bag over his head every time he left his cell9.
As well as the abuse and torture inflicted on opponents and human rights defenders in detention, the Omani security forces have also used excessive force against
demonstrators, two of whom were killed in Sohar on 27 February 2011 during one
of the early public gatherings calling for job creation, an end to corruption and a
cabinet reshuffle. Anti-riot police used rubber bullets and tear gas to disperse the
2,000 demonstrators who had gathered in the city centre. They were also beaten
with batons10. Dozens of demonstrators were injured during the first half of 2011 at
the peak of the uprising11.
More recently, on 23 August 2013, the security forces once again used tear gas in
the city of Liwa to break up a demonstration against pollution levels in the region12.
Finally, many illegal immigrants flock to the small Sultanate looking for work and are
vigorously pursued by the country’s security services. Each year, hundreds of them
are arrested, placed in overcrowded detention centres and deported to their home
countries despite the risks of torture some of them face once they return13. Many of
them are deported to Yemen, Afghanistan, Pakistan or the Horn of Africa, in some
cases having been refused asylum by the Royal police unit responsible for processing requests14.
Most acts of ill-treatment and torture take place at the time of arrest and during pretrial detention and are carried out by members of the Internal security service or
Special forces, both of which fall under the authority of the Royal office15, which is
responsible for both domestic and external security.
Political opponents and human rights defenders are often arrested at night time. Hilal
al-Alawi, one of the leaders of the protest movement, was arrested on 29 March 2011
by masked members of the Special forces dressed in black. They broke down the
doors to his house in the night and pointed their weapons at his face, and also at his
wife and six-month-old daughter16.
Those arrested are then detained in secret or incommunicado in a police station or
prison for several days or even weeks17 during which they are often subjected to illtreatment that in some cases can amount to torture.
Ahmed al-Shezawi, a demonstrator, was arrested during the night of 29 March 2011
at his home in Muscat. He was placed in secret detention for a week and then kept
in solitary confinement and subjected day and night to sleep deprivation through the
use of music recordings played constantly at a very high volume18.
Ill-treatment sometimes continues after an individual has been convicted. For example, on 3 April 2013, the political prisoner Hilal al-Alawi was beaten by prison wardens at the Smail facility and then placed in solitary confinement19.
Several opponents of the regime have been violently assaulted by unidentified men,
presumed by their victims to be members of the security forces20. The lawyer and
blogger Abdul Khaleq al-Maamari was found unconscious in his home in September
2011 after being beaten by unknown assailants in the middle of the night21.
Most acts of ill-treatment carried out as part of the crackdown on demonstrations
can be attributed to the Royal police, sometimes with support from the army22.
It would appear that in most cases the security services perpetrate acts of ill-treatment and sometimes torture to punish political detainees for their actions against the
regime or to scare them and discourage them from continuing23.
In most documented cases, opponents who claim to have been ill-treated or tortured
were detained in secret or incommunicado and denied all contact with the outside
world. Most of them were kept in solitary confinement24 for several days and in some
cases subjected to extreme cold, sleep deprivation and food deprivation25 or denied
care26, as well as being humiliated and intimidated. Some were insulted and forced
to wear a balaclava or bag over their head every time they left their cell27, as in the
case of Hamud al-Rashidi28, who was arrested along with eight other individuals on
31 May 2012 during a demonstration against the lack of government reforms and
placed in solitary confinement for a period of six weeks. He was subsequently sentenced to 6 months in prison for defaming the Sultan.
Several victims claim to have had their lives threatened and to have been beaten all
over their bodies, in some cases to such an extent that they continue to suffer from
serious injuries29.
Omani human rights defenders have documented some cases in which demonstrators were tortured while in detention in order to extract signed confessions30.
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Oman is not a State party to the International Covenant on Civil and Political Rights,
the Convention against Torture or the Convention relating to the Status of Refugees.
National legal provisions relating to torture are insufficient under international
standards. Article 20 of the Basic Statute of the Sultanate, or Constitution, which
the Sultan promulgated on 6 November 1996, stipulates that “No person shall be subjected to physical or psychological torture, inducement or demeaning treatment. The
Law stipulates punishment of whoever commits such acts. Any statement or confession proven to have been obtained under torture, inducement, demeaning treatment,
or the threat of any of these acts, shall be deemed void”. Article 22 further provides
that “It is not permissible to harm an accused either bodily or mentally”.
The Constitution states that the law stipulates appropriate punishments, yet there is
no legislation that directly sanctions torture or ill-treatment, only violence administered by State officials. According to Article 181 of the Penal Code, “Any official who
unlawfully subjects a person to any type of violence, with a view to abstract a crime
confession or any information related thereto shall be sentenced to imprisonment
from three months to three years”. This is a lenient sentence and the offence itself
is defined in a restrictive manner given that it only takes into account two objectives
for the perpetration of violence.
Article 41 of the Criminal Procedure Code provides that detainees must be treated
in a way that ensures their honour is respected and that they must not be subjected
to intimidation, coercion, inducement or undignified behaviour for the purposes of
extracting statements or preventing them from making a statement during preliminary investigations or judicial proceedings. Once again, the legislation makes no
mention of torture and only prohibits acts of brutality perpetrated strictly for the
purposes outlined. Furthermore, it fails to sanction such behaviour, meaning that one
must necessarily refer to the Penal Code in this regard.
In 2008, the Sultan established a national human rights commission whose mandate
includes inspecting the country’s detention facilities31. The last inspection, which
was carried out at Samail prison, dates back to 2 April 2013. The commission provided no more than a brief summary of the visit on its website.
The judicial authorities occasionally announce that they have carried out investigations into allegations of torture or ill-treatment, as in the case of the attack on Said
Ben Sultan al-Hashimi and Basma al-Rajhi en 8 April 2011, although they do not provide the results of these investigations32.
[1] “Oman : La jeunesse n’a pas dit son dernier mot”, Divergences2, 7 October 2012: http://divergences2.divergences.be/spip.
php?article26.
[2] Cairo Institute for Human Rights Studies (CIHRS), The Sultanate of silence... Full scale crackdown on Omani democracy activists,
18 December 2012: http://www.cihrs.org/?p=5336&lang=en.
[3] “Oman ruler pardons jailed dissidents”, www.aljazeera.com, 23 mars 2013: http://www.aljazeera.com/news/
middleeast/2013/03/201332363737987137.html.
[4] Human Rights Watch (HRW), World Report 2013, Oman, 665 pages, p. 595: https://www.hrw.org/sites/default/files/wr2013_
web.pdf.
[5] HRW, World Report 2012, Oman, 676 pages, p. 611: http://www.hrw.org/sites/default/files/reports/wr2012.pdf.
[6] Alkarama, Oman: Human rights defender Al Hashimi illegally detained with 28 other activists, 30 December 2012:
http://en.alkarama.org/index.php?option=com_content&view=article&id=1032:oman-human-rights-defender-al-hashimi-illegallydetained-with-28-other-activists&catid=30:communiqu&Itemid=156; and ‘La police enquête sur l’agression à l’encontre de Said
al-Hashimi et Basma al-Rajhi’, www.omanlegal.net, 10 April 2011: http://www.omanlegal.net/vb/showthread.php?t=5878.
[7] Amnesty International, Protesters in Oman Detained Incommunicado, 31 March 2011: http://www.amnesty.org/en/library/info/
MDE20/001/2011/en.
[8] Freedom for Detainees Oman, 19 February 2012: http://theoman-freedom.blogspot.fr/2012/02/blog-post_4445.html,
and 22 May 2012: http://theoman-freedom.blogspot.fr/2012/05/blog-post_9508.html.
[9] Amnesty International, Oman: Omani Activist Released, 23 August 2013: http://www.amnesty.org/en/library/asset/
MDE20/005/2013/en/ecb015b2-c106-42bf-b2b4-086e95cb1263/mde200052013en.html; and Gulf Center for Human Rights,
Oman – Arbitrary arrest of human rights defender and blogger Sultan Al-Sa'adi, 31 July 2013: http://gc4hr.org/news/view/462.
[10] Amnesty International, Protesters in Oman Detained Incommunicado, op. cit.; and HRW, Oman: Investigate Deaths in Protest
Clashes, 3 March 2011: http://www.hrw.org/news/2011/03/03/oman-investigate-deaths-protest-clashes.
[11] “Army fires on stone-throwing protesters in Sohar”, http://m.gulfnews.com, 1 April 2011: http://m.gulfnews.com/army-fireson-stone-throwing-protesters-in-sohar-1.786092; and “Oman detains dozens after clashes”, http://m.gulfnews.com, 3 April 2011:
http://m.gulfnews.com/oman-detains-dozens-after-clashes-1.786714.
[12] “Tear gas used on protesters in Oman”, http://m.gulfnews.com, 23 August 2013: http://m.gulfnews.com/news/gulf/oman/teargas-used-on-protesters-in-oman-1.1223268.
[13] “Oman : La jeunesse n’a pas dit son dernier mot”, op. cit.
[14] U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Oman 2012 Human Rights Report, 25 pages, p. 13:
[16] Freedom for Detainees Oman, 27 February 2013.
[17] United Nations, Special procedures of the Human Rights Council, 21 June 2012: https://spdb.ohchr.org/hrdb/22nd/
public_-_UA_Oman_21.06.12_%281.2012%29.pdf; 10 August 2012: https://spdb.ohchr.org/hrdb/22nd/public_-_UA_
Oman_10.08.12_%282.2012%29.pdf; Amnesty International, Oman: Omani Activist Released, op. cit.; and Amnesty International,
Annual Report 2011, The state of the world’s human rights, Oman: http://www.amnesty.org/en/region/oman/report-2011.
[18] Amnesty International, Oman protestors released; some still held, 21 April 2011: http://www.amnesty.org/en/library/asset/
MDE20/002/2011/en/d4e9d163-9d88-42c1-bc0e-05a838fd6758/mde200022011en.pdf; and Amnesty International, Annual Report
2012, The state of the world’s human rights, Oman: http://www.amnesty.org/en/region/oman/report-2012.
[19] Freedom for Detainees Oman, 7 April 2013: http://www.omanw.com/en/url.asp?url=theoman-freedom.blogspot.
com/&sitename=theoman-freedom.
[20] Alkarama, op. cit.
[21] Amnesty International, Annual Report 2011, op. cit.
[22] “Army fires on stone-throwing protesters in Sohar”, HRW, op. cit.; and “Oman : La jeunesse n’a pas dit son dernier mot”,
op. cit.
[23] Alkarama, op. cit.
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[24] HRW, Oman: Drop Charges Against Activist, 24 July 2013, http://www.hrw.org/news/2013/07/24/oman-drop-chargesagainst-activist.
[25] Amnesty International, Annual Report 2010, The state of the world’s human rights, Oman:
http://www.amnesty.org/fr/region/oman/report-2010.
[26] United Nations, Special procedures of the Human Rights Council, 10 August 2012, op. cit.
[28] HRW, Oman: Drop Cases Against Online Activists, 21 July 2012: http://www.hrw.org/news/2012/07/21/oman-drop-casesagainst-online-activists.
[29] Freedom for Detainees Oman, 19 February 2012: http://theoman-freedom.blogspot.fr/2012/02/blog-post_4445.html;
and 22 May 2012: http://theoman-freedom.blogspot.fr/2012/05/blog-post_9508.html.
[30] Freedom for Detainees Oman, op. cit.
[31] National Human Rights Commission, Une délégation de la Commission nationale des droits de l’homme visite
une prison centrale, 2 avril 2013, http://www.rtnb.bi/index.php?option=com_content&view=article&id=4225:une-delegationde-la-cnidh-visite-la-prison-centrale-de-ruyigi-&catid=6:politique&Itemid=7.
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SYRIA
BACKGROUND
The protest movement that has rocked Syria since March 2011 began in Dara’a when
15 children were arrested and tortured for defacing the wall of their school with
revolutionary slogans that had been heard in the streets in Tunisia and Egypt.
The uprising and the brutal crackdown immediately imposed by the regime of
President Bashar al-Assad gradually spread across the entire country. The Syrian
security forces, supported by shabiha militias, initially used snipers and later
armoured vehicles, air raids, cluster munitions, missiles and finally chemical weapons against their opponents. Such extreme levels of violence encouraged some protest groups to take up arms, with help from those who deserted the country’s law
enforcement groups as well as foreign jihadist fighters.
Little by little, Syria descended into a civil war which, at the time of writing, had left
more than 140,000 people dead, produced tens of thousands of victims of torture,
extrajudicial executions and enforced disappearances*, as well as several million
internally displaced persons and refugees.
The political and armed opposition groups, made up of thousands of different factions, are poorly organised and too divided to combine their efforts against the security forces, which enjoy considerable military power.
The UN Security Council members were unable to agree on the need to move beyond
economic sanctions and futile condemnation until the regime began to make use of
chemical weapons. The resolution adopted on 27 September, which compels the
Syrian authorities to destroy all of their chemical arsenal within one year, is indicative of the limited response by the international community to a humanitarian drama
that has been unfolding for nearly three years.
PRACTICE OF TORTURE
The torture phenomenon is nothing new in Syria. Prior to 2011, international organisations were already highly critical of the widespread use of torture1, and ACAT’s
recorded testimony of Syrians who have fled the country over the last three years
confirms that a great many victims of the current repression had already been harassed or tortured by State officials before the conflict began.
However, in the weeks that followed the beginning of the popular uprising, acts of
torture perpetrated by the security forces became so widespread and systematic as
to constitute crimes against humanity.
Victims
Since the beginning of the protests, the range of torture victims has expanded to
include all those who are hostile to the regime of Bashar al-Assad: peaceful demonstrators, intellectuals and leaders of opposition groups, and armed rebels2. N.L.,
a Syrian businessman, was arrested in June 2011 by intelligence officials who suspected him of assisting arms smugglers while on business trips to Lebanon. He
was taken to an unknown location where he was interrogated and tortured for 48
days. He was held in a 1 m² cell in which he was unable to lie down, subjected to a
technique known as dullab (where the victim is placed in a large tyre with his head
against his knees and then beaten), beaten with sticks, insulted and threatened. On
the day of his release, in return for a ransom, he was subjected to a mock execution3. Soldiers and security officials who flee the country or desert and join an armed
opposition group also suffer serious abuse if they are caught4.
Journalists, bloggers, amateur filmmakers, lawyers and human rights defenders who
cover the demonstrations or denounce the human rights violations being committed
by the regime are among those most targeted by the repression.
The security forces even arrest and torture those who offer help to the regime’s
political opponents and the armed rebels. Several medical professionals who offered
assistance to victims of the crackdown5, as well as shopkeepers accused of providing the armed opposition with food, fuel and other goods, have been arrested and
tortured while in detention.
In some cases, unable to apprehend the person they were looking for, officials have
arrested and abused or tortured members of the person’s family6.
Although adult males represent a majority of victims, minors, including children aged
under 10, women and the elderly have also been targeted7. According to the many testimonies provided by former detainees or State representatives who have defected,
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almost all those arrested by the security forces are subjected to acts of torture.
Some are later convicted following unfair and rushed trials, in most cases without
access to a lawyer or the right to appeal. Others are held in detention without trial
for weeks or even months. In some cases, families manage to pay bribes in order to
gather information about their loved ones, visit them after several days or weeks, or
perhaps even secure their release8. In other cases, however, those arrested are kept
in secret detention*, victims of enforced disappearance.
Detainees are regularly executed or tortured to death, especially in the detention
centres run by the intelligence services9. Their bodies are sometimes returned to
their families in exchange for a ransom payment and on condition that they keep
quiet about the cause of death, or simply placed in a hospital or dumped in the street.
In some cases, families are informed by an ex-detainee that their loved one died in
detention but are unable to recover the body.
Torture is used by all of the regime’s security forces to varying degrees. Four units
in particular use it on a systematic basis10: the general intelligence directorate (idâra
al-mukhabarât al-‘amma, more often referred to as the general security directorate),
which is independent of any ministry11; the political security directorate (idârat alamn al-siyâsi), which reports to the Interior Ministry; the military intelligence directorate (shu’bat al-mukhabarât al-‘askariyya), which is run by the Defence Ministry12;
and the air force intelligence directorate (idâra al-mukhabarât al-jawiyya), which has
a reputation for being the most brutal13 and also answers to the Defence Ministry.
Many suspected opponents are also arrested and in many cases tortured by the
regular police force – in particular the anti-riot police – or the army14, which often
replaces the police in carrying out arrests and searches. Others are dealt with in the
same way by pro-regime militias (shabihas, referred to by the regime as the national
defence forces15) or, more recently, Hezbollah combatants16, before being handed
over to one of the four directorates mentioned above17.
In July 2012, a man was arrested by the shabihas while driving his car in the city of
Homs. He was brought to a house containing 15 other detainees, including a child
aged eight. There his captors electrocuted him and tried to blind him with a screwdriver, causing him to lose sight in his right eye18.
Torture usually begins at the time of arrest, which generally takes place in the street,
at a checkpoint, in the home or even in the hospital where the victim, whether a
civilian or a rebel fighter, is being treated for injuries suffered as a result of a crackdown during a demonstration, a military strike or an exchange of fire with the armed
forces. It then continues as the victim is being transported to a detention centre.
The most severe forms of torture are inflicted during the days and weeks of interrogation that follow. Throughout this period, victims are tortured in the interrogation
centres run by the various intelligence services dotted around the country, or in
prisons, which are sometimes partly occupied by the same services19. Because the
number of arrests has risen sharply since the beginning of the uprising, arrestees
are also detained and tortured in other locations such as military barracks, checkpoints20, hospitals21, schools22 and privately owned buildings. They are usually kept
handcuffed and blindfolded for several days, often naked, and in some cases are
transferred from one detention centre to another and interrogated in each one23.
Yaser Abdul Samad Hussein Karmi was arrested on 31 December 2012 by members of the general intelligence directorate in Damascus. He was transferred to the
premises of Branch 40 (the anti-terrorist unit), where he was tortured for five days.
His entire body was beaten with cables and he was electrocuted in an effort to get
him to confess to an assassination attempt against the President and the Minister for
Foreign Affairs. On the fifth day, he was transferred to the al-Khateeb branch, also
in Damascus, where he was once again tortured for a period of 12 days and kept
in detention for four months in an overcrowded cell. He was poorly fed and denied
access to a shower. Detainees around him were dying every day while others picked
up serious infections due to the shocking lack of hygiene. After four months, he
was transferred back to the general intelligence directorate, where he was tortured
again. He was finally released one month later following an amnesty issued by the
President24.
At the time of writing, anti-government forces controlled more than half of Syria
with quasi-governmental authority. This means that in the areas under their control
the “rebel” fighters can be considered as public officials or other persons acting
in an official capacity, making them subject to the ban on torture as defined under
international law.
These armed groups, some of which are affiliated to the Free Syrian Army while
others operate with complete independence, increasingly engage in acts of torture
against members of the security forces, shabihas and their suspected informants,
journalists working for pro-regime media outlets, and individuals from minority groups suspected of supporting Bashar al-Assad25. Such acts are committed in
improvised detention centres such as schools during the first few days following
arrest. In general, detainees are then released, often in exchange for a ransom, or
executed without trial or after being sentenced to death following an unfair trial26.
In the context of the current civil war, these acts of torture constitute war crimes27.
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Torture is always used to punish victims and discourage them from pursuing their
allegedly subversive activities. It is also often used for the purposes of securing a
confession or obtaining information about the activities and structures of opposition
groups. More broadly, the systematic use of torture serves to terrorise those who are
involved with or likely to assist the regime’s political opponents, whether peaceful or
engaged in armed rebellion.
The following are the most widely used torture techniques28: punching and kicking; beatings on all parts of the body – and in particular the genitals – using sticks
or the butt of a weapon; electrocution using cables or electric batons; suspending
victims from the ceiling by their wrists (shabeh) or with their hands behind their
back (balanco) for several hours or even days at a time; cigarette burns; extraction
of fingernails and toenails; falaqa*; dullab; the so-called “flying carpet” technique
(basat al-rîh), which involves forcing the victim onto a wooden plank and stretching
or twisting their limbs; and mock executions. More recently, victims have claimed
they were subjected to simulated drowning29. During these acts of torture, victims
are often undressed and have their hands tied behind their back.
They are systematically insulted and threatened with execution, rape or having to see
their loved ones tortured. In some cases they are humiliated and forced to declare
their allegiance to Bashar al-Assad.
Many men, women and children have made allegations of sexual abuse in the home,
at checkpoints or in detention30.
Throughout their period of detention, detainees are placed in solitary confinement*
or in cells that are so overcrowded it is impossible for all occupants to sit down at
once31. They are fed poorly and inadequately, often deprived of drinking water and
generally receive no medical care, even those suffering from serious illness or bullet
wounds. Sanitation is appalling: there are no available showers and detainees are
given limited access to toilet facilities.
Children are subjected to the same forms of torture and the same inhuman conditions of detention as adults.
The main torture techniques used by anti-government forces include punching, kicking, beatings with sticks and electric cables on all parts of the body, and falaqa32.
Syria has ratified the International Covenant on Civil and Political Rights as well as
the United Nations Convention against Torture, although it has not recognised the
competence of either the Human Rights Council or the Committee Against Torture
(CAT) to examine individual complaints.
Article 53-2 of the new Constitution, adopted on 27 February 2012, provides that “No
one may be tortured or treated in a humiliating manner, and the law shall define the
punishment for those who do so”.
Article 391 of the Penal Code provides a very restrictive definition of torture: “whosoever strikes another person with an intensity that is not authorised by the law
for the purposes of extracting a confession or information about an offence may be
sentenced to between three months’ and three years’ imprisonment”. This maximum
sentence does not account for the potential seriousness of torture and only sanctions violence committed for a specific and restricted purpose, in contrast to the
definition provided in the UN instrument. Furthermore, Article 391 indirectly refers
to violence of lawful intensity, thus legalising a form of ill-treatment.
There is total impunity in Syria when it comes to torture, war crimes and crimes
against humanity33. The 1950 Decree no. 61 guarantees the military intelligence and
air force immunity from prosecution for crimes committed in the exercise of their
duties, except where prosecution is authorised by the military command. In 1969
and 2008, two further decrees extended this immunity to officials from the general security and political security directorates, as well as the police and customs
authorities34. What is more, Syria’s judicial institutions have neither the means nor
– above all – the political will to bring justice to victims. It is therefore futile and even
dangerous to file a complaint against security officials with the judicial authorities,
who are unquestioningly loyal to the regime. Similarly, those responsible for acts of
torture are not given any disciplinary sanctions35.
The abuses perpetrated by the anti-government armed groups would appear to benefit from the same level of impunity, despite several of these groups having signed
the code of conduct of the Local Coordination Committees, which constitutes a commitment to respect international standards on the treatment of prisoners or face
prosecution36. The national judicial institutions in areas controlled by the opposition
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have been completely dissolved, and new legal bodies have been put in their place.
The prerogatives, operating methods and laws that apply to these bodies vary from
one region to the next37. The courts set up by armed groups in this way conduct
rushed trials with little respect for the rights of the defence, especially when judging
pro-government combatants. They are closely linked to these groups and therefore
reluctant to rule on allegations of torture that could have been committed by one of
their own.
In the current context, only the international courts have the authority and legitimacy
needed to try those responsible for the crimes perpetrated in Syria, but because
Syria did not ratify the Rome Statute which established the International Criminal
Court* (ICC), this body could only examine the Syrian case if convened by the UN
Security Council. At the time of writing, however, Russia and China – both permanent
members of the council – continued to veto such a move.
[1] United Nations, Committee Against Torture, Concluding observations of the Committee Against Torture, Syrian Arab Republic,
25 May 2010, 14 pages, pp. 2-3: http://www.refworld.org/docid/4c2073112.html.
[2] Amnesty International, I wanted to die: Syria’s torture survivors speak out, March 2012, 43 pages, p. 6: http://www.amnesty.
org/en/library/asset/MDE24/016/2012/en/708c3f40-538e-46a9-9798-ebae27f56946/mde240162012en.pdf.
[3] Interview with ACAT, 3 April 2013.
[4] United Nations, Committee Against Torture, Concluding observations of the Committee Against Torture, Syrian Arab Republic,
29 June 2012, 7 pages, p. 4: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G12/440/87/PDF/G1244087.pdf?OpenElement.
[5] Amnesty International, op. cit., p. 6; Doctors without Borders (MSF), In Syria, Medicine as a Weapon of Persecution,
8 February 2012, 17 pages, pp. 11-13: http://www.doctorswithoutborders.org/publications/reports/2012/In-Syria-Medicine-as-aWeapon-of-Persecution.pdf.
[6] United Nations, Human Rights Council, Report of the International Independent Commission of Inquiry on the Syrian
Arab Republic, 16 August 2013, 42 pages, p. 9, available at: http://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/
Documentation.aspx.
[7] Human Rights Watch (HRW), Syria: Detention and Abuse of Female Activists, 24 June 2013:
http://www.hrw.org/news/2013/06/24/syria-detention-and-abuse-female-activists.
[9] Ibid, p. 8; United Nations, Human Rights Council, Report of the International Independent Commission of Inquiry on the Syrian
Arab Republic, 5 February 2013, 131 pages, pp. 68-70: http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A.
HRC.22.59_en.pdf; and HRW, Torture Archipelago: Arbitrary Arrests, Torture, and Enforced Disappearances in Syria’s Underground
Prisons since March 2011, July 2012, 78 pages, p. 5: www.hrw.org/sites/default/files/reports/syria0712webwcover_0.pdf.
[10] Amnesty International, op. cit., pp. 6-7; and HRW, op. cit., p. 1.
[11] Violation Documentation Center in Syria, The testimony of an activist about Branch 285-The State Security Branch,
August 2013, 9 pages. http://www.vdc-sy.info/pdf/reports/branch285-English.pdf.
[12] HRW, Syria: Visit Reveals Torture Chambers, 17 May 2013: http://www.hrw.org/news/2013/05/16/syria-visit-reveals-torturechambers; and Violation Documentation Center in Syria, A Report about the Horrors of Almantiqa district Security Department /
Branch 227 Department-Military Security, June 2013, 13 pages: http://www.vdc-sy.info/pdf/reports/militarybranch227-English.pdf.
[13] United Nations, Human Rights Council (16 August 2013), op. cit., p. 13.
[14] United Nations, Human Rights Council, Report of the International Independent Commission of Inquiry on the Syrian Arab
Republic, 18 July 2013, 30 pages: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G13/156/20/PDF/G1315620.pdf?OpenElement.
[15] Ibid.
[17] HRW, Torture archipelago, op. cit., p. 5; HRW, Syria: Sexual Assault in Detention, 15 June 2012:
http://www.hrw.org/news/2012/06/15/syria-sexual-assault-detention.
[18] United Nations, Human Rights Council (5 February 2013), op. cit., p. 70.
[19] HRW, Torture Archipelago, op. cit., pp. 5, 35 et seq.; and Avaaz.org, Revealing the Scale and Horror of Assad’s
Torture Chambers: An Avaaz Brief on the Locations and Conditions of Syria’s Detention Facilities, 9 January 2012, 21 pages:
http://avaazimages.s3.amazonaws.com/DetentionCentresinSyria.pdf.
[20] United Nations, Human Rights Council (5 February 2013), op. cit., p. 71.
[21] Amnesty International, I wanted to die, op. cit., p. 7; and United Nations, Human Rights Council (16 August 2013), op. cit., p. 14.
[22] Save the Children, Untold atrocities, September 2012, 50 pages, p. 8: http://www.savethechildren.org.uk/sites/default/
files/images/untold_atrocities.pdf; HRW, Syria: Stop Torture of Children, 3 February 2013: http://www.hrw.org/news/
2012/02/03/syria-stop-torture-children; United Nations, Human Rights Council (5 February 2013), op. cit., p. 68; and HRW,
Torture Archipelago, p. 2.
[23] HRW, op. cit., p. 13.
[24] Violation Documentation Center in Syria, Report on Khateeb Branch-State Security: The Testimony of the Detainee Yaser
Abdul Samad Hussein Karmi, August 2013, 7 pages, pp. 4-7: http://www.vdc-sy.info/pdf/reports/khatibbranch-English.pdf.
[25] Amnesty International, Syria: Summary killings and other abuses by armed opposition groups, 14 March 2013, 20 pages,
pp. 2-3; HRW, Syria: End opposition use of torture, executions, 17 September 2012, http://www.hrw.org/news/2012/09/17/syriaend-opposition-use-torture-executions; and United Nations, Human Rights Council (5 February 2013), op. cit., pp. 16 and 73-74.
[26] Amnesty International, Syria: Summary killings, op. cit., p. 5.
[27] United Nations, Human Rights Council (16 August 2013), op. cit., pp. 14-15.
[28] Amnesty International, I wanted to die, op. cit., pp. 12-13; and HRW, Torture Archipelago, op. cit., pp.18-19.
[30] “Syria ex-detainees allege ordeals of rape and sex abuse”, www.bbc.co.uk, 25 September 2012: http://www.bbc.co.uk/
news/world-middle-east-19718075; HRW, Syria: Sexual Assault in Detention, op. cit.; and United Nations, Human Rights Council
(16 August 2013), op. cit, p. 13.
[31] HRW, Torture Archipelago, p. 31.
[32] See footnote no. 24.
[34] United Nations, Committee Against Torture (25 May 2010), op. cit., p. 5.
[36] Amnesty International, Syria: Summary killings, op. cit., p. 4.
[37] United Nations, Human Rights Council (XXXX), op. cit., p. 9.
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YEMEN
BACKGROUND
In November 2011, after nearly 10 months of demonstrations calling for President Ali
Abdullah Saleh to step down and which were brutally repressed, leading to armed
clashes in several parts of the country, negotiations led by the Gulf Cooperation
Council have finally produced a way to end the crisis. Having governed the country
for 32 years, Saleh agreed to hand over power on 21 February 2012 in exchange for
immunity.
Yet despite this change in regime, tensions remain very high between the government, dominated by members of the General People’s Congress (GPC), which continues to be led by Saleh, and the country’s other political forces. Islah, an Islamist
group, aims to exert greater influence over the political process; al-Hirak, the southern separatist movement, wishes to revise the 1990 unification of the country’s north
and south, which it argues favoured the north; the Houthi militants from the Saada
region in the north regularly clash with state security forces despite the ceasefire
reached in February 2010; and the Civic Coalition of Revolutionary Youth intends to
play a greater role in the democratic transition.
The political terrain is further complicated by the intervention of other players less
open to the democratic process, including Al-Qaeda in the Arabian Peninsula (AQAP)
and their local branch, Ansar al-Shari’a, the country’s powerful tribal leaders and the
army, which is currently undermined by dangerous divisions1.
Opposition to the new head of State, Abdu Rabu Mansour Hadi, has intensified as
a result of the drone strikes regularly carried out by his American allies against
suspected AQAP members. Each year, these strikes are responsible for civilian
casualties2.
In February 2013, in an effort to restore peace and ward off the threat of civil war,
the President established a National Dialogue Conference in which representatives
from the main political groups and civil society movements have come together to
draft a new constitution as well as electoral and transitional justice legislation and to
find a resolution to the conflicts in the north and south3. They are making progress,
although the outcome of their efforts – crucial for stability – remains uncertain.
PRACTICE OF TORTURE
During the popular uprising that began in February 2011, the range of possible torture
victims considerably expanded to include all suspected opponents of former head of
State, Ali Abdullah Saleh. The torture phenomenon appears to have subsided somewhat since Hadi took over. The new President set about restructuring the security
services4, although torture is far from having been eliminated.
Victims
In 2011, acts of torture and ill-treatment mainly affected those participating in protests against President Saleh. The security forces, sometimes with support from
pro-regime militia, used extreme violence to crack down on opposition protests, killing hundreds of demonstrators with live ammunition and wounding thousands more.5
Thousands of demonstrators – 3,500 in 2011 according to Yemeni NGOs6 –, most of
whom were aged between 15 and 25, were arrested during or after their participation
in public gatherings. The majority of them were placed in incommunicado* or secret*
detention for several days or even months and were subjected to torture7.
Naharri Mohamed Ali Naharri, 13 years old, was arrested along with other minors by
officials dressed in civilian clothing during a demonstration on 11 May 2011. He was
released in July 2012 following 14 months of enforced disappearance*. He claims to
have been subjected to electric shocks and cigarette burns, that his eardrum was
damaged when he was slapped, and that he was cut using knives and daggers8.
Several doctors were also arrested, arbitrarily detained and ill-treated and even tortured because of their alleged support for the demonstrators9.
Officials who had deserted the security forces10, as well as tribal fighters11 and members from the first armoured division led by General al-Ahmar, who defected from
the regular armed forces, were arrested, placed in secret detention and tortured12,
along with family members of demonstrators and political opponents, who were illegally arrested in an effort to compel their loved ones to give themselves up13.
Several of these opponents, most of whom were arrested in 2011 or early 2012,
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172
continue to be arbitrarily detained without charge despite a presidential edict issued
on 26 June 2012 ordering the release of all political prisoners arrested in 201114 .
22 people suspected of involvement in the attack against al-Nahdain mosque in June
2011 which left Ali Abdullah Saleh injured were arrested in December 2011, tortured
and placed in secret detention for several months. 17 of them were released in June
2013, but the remaining five are still being detained at the central prison in the capital
Sanaa15.
The excessive use of force and the arrests and acts of torture carried out against
demonstrators subsided following the regime change in February 2012, although
such cases have not been completely eliminated.
On 12 February 2013, the country’s central security forces used sticks to beat Ahmad
Saif Hashid and others who had been injured by the security forces and pro-Saleh
militia in 2011 and had gathered in front of the Prime Minister’s office to denounce
the fact that they received no medical assistance from the government16.
Journalists also continue to be subjected to violent assaults and harassment from
members of the law-enforcement authorities17.
Those accused of terrorist activities, such as suspected members of Al-Qaeda and
supporters of al-Hirak in the south and the Houthi movement in the north, are regularly targeted by assassinations and excessive force during public gatherings, as
well as waves of arrests, enforced disappearances and arbitrary detentions combined with acts of ill-treatment and even torture18. Between June and August 2012
alone, Yemeni security officials were responsible for the deaths of 109 demonstrators, activists and al-Hirak sympathisers, and subjected many others to beatings19.
In October 2011, Mohamed Ali Sa’id, who was admitted to a hospital in Aden after
receiving an injury to the head, was abducted by officials dressed in civilian clothing,
most likely members of the national security force who suspected him of being an
Ansar al-Shari’a member.
Finally, although information is hard to come by, work carried out by NGOs who have
increasingly focused on the treatment of political prisoners over the last three years
would appear to suggest that acts of torture and ill-treatment are also regularly perpetrated against common law detainees20.
The Central Security Forces (CSF), which are part of the Interior Ministry and include
anti-riot and anti-terrorist units, regularly use excessive force against demonstrators. On 9 June 2013, CSF officers opened fire on a group of around 500 Houthis
who had gathered in front of the National Security Bureau in Sanaa to protest against
the ongoing detention without charge of 10 of their members for a period of several
months. 13 of the demonstrators were killed and 87 were arrested21.
2011 and early 2012 saw massive abuses committed by the CSF against opponents of
the former President. At the time, the CSF was led by Saleh’s nephew with support
from the Republican Guard, which reported to the Defence Ministry and was led by
the son of the former head of State22. On several occasions, these two units fired
live ammunition on protesters, killing or injuring hundreds. Abdu Rabu Mansour Hadi
reacted by breaking up the Republican Guard in December 2012 and replacing it with
the Strategic Reserve Forces.
The CSF and Republican Guard were also responsible for many arrests followed
by acts of torture against demonstrators and security officials who had joined the
ranks of the opposition23. These opponents were placed in secret or incommunicado*
detention (it is likely that some of them have yet to be released), in conditions that
amount to ill-treatment, in unofficial detention centres run by the two groups24.
Other unofficial centres are managed by the National Security Bureau (NSB) and the
Political Security Organisation (PSO), which houses the largest number of political
prisoners. These two bodies report to the office of the President.
Prior to the popular uprising, most of those detained by the PSO and NSB were
arrested as part of the fight against terrorism. In February 2011, 350 people were
being detained by the PSO and subjected to ill-treatment and torture. Most of them
had not been charged, while the remainder were serving sentences handed down on
the basis of forced confessions25.
After the beginning of the revolt, the PSO and NSB arrested many protesters, political opponents and human rights defenders, whom they then placed in their detention
centres, tortured and detained in secret or incommunicado* for days and even months
in inhuman conditions26. Hemyar Derhem al-Moqbeli, an unemployed accountant, took
part in several demonstrations against Ali Abdullah Saleh in Sanaa. He was twice
arrested and placed in illegal detention centres run by the NSB, from 24 October to
12 December 2011 and again from 12 to 25 January 2012. He was interrogated about
his involvement in financing the protest movements and was tortured during each
detention period27.
Political adversaries and suspected terrorists are prosecuted in a special criminal
court. Suspects are denied access to their lawyer while in detention and convictions
take place following a rushed procedure, often based on confessions obtained by
force28 .
173
174
The military intelligence authorities29 and the presidential guard30 also carried out
arbitrary detentions and committed abuses during the uprising, as did the Criminal
Investigation Department (CID), which also used to resort to such practices under
the previous regime31.
Other non-governmental bodies have been responsible for abductions, secret detentions, acts of ill-treatment and even torture. In particular, this is true of several tribal
groups who imprison their opponents and anyone suspected of common law crimes
without calling on the authorities to intervene32. In some cases, massive abuses have
been perpetrated against civilians with the tacit consent of government33. After the
beginning of the popular uprising, the security committee of the opposition Islah
party and the first armoured division arbitrarily detained and ill-treated suspected
supporters of President Saleh and al-Hirak activists in their respective detention
centres34.
Finally, inmates in official prisons live in deplorable conditions of detention which
amount to ill-treatment. On several occasions during the autumn of 2012, detainees
at the prison facility in Ibb protested against the abuses suffered. In response, prison
wardens fired live ammunition and subjected some inmates to mutilations35.
Most acts of torture are carried out during interrogations for the purposes of extracting a confession or, in the case of political prisoners, obtaining other information.
The most commonly used torture techniques are as follows: electric shocks; cigarette burns; suspending victims by their wrists; kicks and beatings using sticks, rifle
butts or cables; skin lacerations using blunt objects; and slaps on the ears of victims.
Detainees are humiliated, threatened with execution or rape and in some cases subjected to mock executions. They are often blindfolded, kept in solitary confinement*
and deprived of sleep, water, food and even medical care.
Saddam Ayedh al-Shayyef, a 21-year-old demonstrator and the son of a sheikh
with close links to the first armoured division, was abducted in broad daylight on
4 March 2012 by what he thinks were officials from the National Security Bureau.
He was taken to various detention centres in Sanaa and later Aden, where he was
tortured for a week, forced to drink his own urine, electrocuted and burned with
cigarettes36.
Secret and incommunicado* detentions and enforced disappearances also constitute
acts of torture.
The excessive use of force against political opponents by Yemeni security forces is
a form of torture designed to punish the victims. Many cases involving shots fired
using live ammunition and rubber bullets, the use of tear gas and polluted water, and
beatings using electric batons have been documented.
Some of the sanctions stipulated in Yemen’s criminal law amount to acts of torture:
amputation, flogging and stoning, punishments that can be handed down using a
literal interpretation of the Koran. Floggings in particular are thought to be inflicted
almost on a daily basis, in public and with no option for the victim to appeal37.
Yemen ratified the Convention against Torture in November 1991, but has not recognised the competence of the Committee Against Torture* (CAT) to examine individual
complaints.
Article 48 (b) of the Constitution prohibits torture: “[…] Any person whose freedom
is restricted in any way must have his dignity protected. Physical and psychological torture is prohibited. Forcing confessions during investigations is forbidden. […]
Physical punishment and inhumane treatment during arrest, detention or imprisonment are prohibited”. Furthermore, the crime of torture is not subject to any statute
of limitations, and Article 48 (e) stipulates that “All those who practice, order, or
participate in executing, physical or psychological torture shall be punished”38.
However, the Constitution fails to define torture or stipulate specific sanctions. The
Law on Crimes and Penalties is inadequate as it only lists certain practices whose
definitions are more restrictive than those contained in Article 1 of the Convention
against Torture. Article 166 stipulates a maximum prison sentence of 10 years for
“Any public employee who tortures or uses force, by himself or through others while
carrying out his job, with any suspect or witness or expert, in order to force him to
confess to a crime or give testimony or relevant information thereof”. This is notwithstanding “the right of the victim […] to retribution [qisas] or blood money or liable
injuries compensation”39. Articles 241 to 245 sanction the crime of assault, distinguishing between the intentions of the person responsible and the outcome of their
actions. However, these provisions do not apply specifically to State officials. The
same is true of Article 254, which recognises threats for the purposes of intimidation as a crime40. Under Articles 22 to 24, anyone who orders or is complicit in the
offence is subject to the same penalty.
175
176
Article 6 of the Law on Criminal Procedures stipulates that “any statement proven to
have been committed by the accused, or any witnesses, under duress through any of
these acts, shall be annulled”.
Since the regime change in February 2012, the transitional government has been
working towards the introduction of a law on transitional justice. There are disagreements as to the precise scope of this law, but it is clear that it will only authorise
investigations into the period of the uprising in 2011 and will have no legal power41.
This mechanism will inevitably be limited by the law on immunity introduced on
21 January 2012 as part of the agreement negotiated by the Gulf Cooperation
Council, which guarantees total immunity to Ali Abdullah Saleh and partial immunity
to his subordinates for the political crimes they are thought to have committed, with
the exception of terrorist acts42.
It appears that no public officials have yet been convicted for the acts of torture
perpetrated against detainees either before or since the uprising, at least not for
the specific crime of torture43. The only trials that have been held since the transfer
of power relate to the excessive use of force and targeted assassinations. The first
trial, which began in September 2012, focused on the massacre of demonstrators on
the “Friday of Dignity” (18 March 2011) by armed men in civilian clothing with support from the security forces44, which left 45 dead and 200 wounded. More than half
of the 78 men indicted are considered to be fugitives, while the eight men placed in
detention are thought to have played no more than a secondary role or may even be
innocent45. The victims’ lawyers have called for legal action to be taken against senior figures including the former President, his son and two of his nephews, who at
the time of the attack were, respectively, head of the Republican Guard, commander
of the Presidential Guard and assistant director of the National Security Bureau. The
outcome of this and other ongoing trials have been put on hold until the Supreme
Court issues its interpretation of the law on immunity.
Away from the courts, partial compensation has been awarded to some victims of
the uprising46 and the new head of State has made changes to the hierarchy within
the security forces. Several security officials who served in Taiz have been removed
from office47. As for Saleh’s son and two nephews, they have been transferred to
diplomatic posts in the United Arab Emirates, Germany and Ethiopia, where they run
no risk of prosecution48.
[1] “Will military rebellions lead to a fractured country?3, www.yementimes.com, 13 May 2013:
http://www.yementimes.com/en/1676/report/2337/Will-military-rebellions-lead-to-a-fractured-country.htm.
[2] Bureau of Investigative Journalism: http://www.thebureauinvestigates.com/2012/07/02/yemen-strikes-visualised/.
[3] National Dialogue Conference: http://www.ndc.ye/default.aspx.
[4] “Military restructure moves ahead with fresh leadership”, www.yementimes.com, 15 April 2013: http://www.yementimes.com/
en/1668/news/2227/Military-restructure-moves-ahead-with-fresh-leadership.htm.
[5] Alkarama, Yemen: Alarming deterioration of civil and political rights, Report submitted to the Human Rights Committee
for the review of the fifth periodic report of Yemen, 1 February 2012, 38 pages, p. 13, note 46: http://en.alkarama.org/index.
php?option=com_docman&task=doc_download&gid=231&Itemid=218.
[6] Ibid, pp. 19 and 23.
[7] Fédération internationale des droits de l’homme (FIDH), Yemen: L'impunité consacrée, la transition en danger, 21 February 2012,
25 pages, pp. 17-18: http://www.fidh.org/IMG/pdf/yerapport200212fra.pdf; Human Rights Watch (HRW), Yemen: Detained,
Tortured, and Disappeared, 7 May 2012: http://www.hrw.org/news/2012/05/07/yemen-detained-tortured-and-disappeared.
[8] “Youth tortured in captivity”, www.yementimes.com, 16 July 2012: http://www.yementimes.com/en/1590/news/1145/Youthtortured-in-captivity.htm.
[9] “Detained doctor released after eight months in prison”, www.yementimes.com, 19 March 2012: http://www.yementimes.com/
en/1556/news/584/Detained-doctor-released-after-eight-months-in-prison.htm; HRW, op. cit.
10] Alkarama, Universal Periodic Review: Yemen, Second Cycle, Submission to the Stakeholders’ Summary, May 2013, 5 pages,
pp. 3-4: http://en.alkarama.org/documents/ALK_YEM_UPR2_052013_EN.pdf.
[11] HRW, op. cit.
[12] “Revolutionary detainee found, allegedly tortured”, www.yementimes, 18 October 2012: http://www.yementimes.com/en/1617/
news/1536/Revolutionary-detainee-found-allegedly-tortured.htm.
[13] HRW, op. cit.; United Nations, Committee Against Torture, Consideration of reports submitted by States parties under
article 19 of the Convention, Concluding observations of the Committee Against Torture, Yemen, 25 May 2010, 15 pages, p. 6:
http://www.refworld.org/docid/4c2074b92.html.
[14] “Uncharged and abducted, Yemeni revolutionaries’ whereabouts unknown”, www.yementimes.com, 15 April 2013:
http://www.yementimes.com/en/1668/report/2234/Uncharged-and-abducted-Yemeni-revolutionaries%E2%80%99whereabouts-unknown.htm; HRW, Yemen: Justice Deficit Marks Transition Anniversary, 23 February 2013: https://www.hrw.
org/news/2013/02/23/yemen-justice-deficit-marks-transition-anniversary; Alkarama, op. cit., p. 4.
[15] Alkarama, Yemen: Release of 17 Young 'Revolutionaries' Arrested following the Attack against former President Saleh,
7 June 2013: http://en.alkarama.org/index.php?option=com_content&view=article&id=1123:yemen-release-of-17-youngrevolutionaries-arrested-following-the-attack-against-former-president-saleh&catid=40:communiqu&Itemid=215; HRW,
Yemen: Order to Free Hunger Strikers Ignored, 6 June 2013: https://www.hrw.org/news/2013/06/05/yemen-order-free-hungerstrikers-ignored.
[16] HRW, Letter to Minister of Interior on Abuses by Central Security Forces, 15 February 2013:
http://www.hrw.org/news/2013/02/15/letter-minister-interior-abuses-central-security-forces.
[17] Reporters Without Borders (RWB), RWB sends observations on Yemen UN Human Rights Council, 17 June 2013:
http://en.rsf.org/yemen-rwb-sends-observations-on-yemen-to-17-06-2013,44805.html; RWB, Serial attacks on media workers in
Sanaa, 19 September 2012: http://en.rsf.org/yemen-serial-attacks-on-media-workers-in-19-09-2012,43416.html.
[18] Alkarama, Yemen: Alarming deterioration of civil and political rights, Report submitted to the Human Rights Committee
for the review of the fifth periodic report of Yemen, p. 16: http://en.alkarama.org/index.php?option=com_docman&task=doc_
download&gid=231&Itemid=218; United Nations, Human Rights Council, Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-fourth session, 27-31 August 2012, No. 19/2012 (Yemen), 22 November 2012, 4 pages, p. 2:
[19] Southern Observatory for Human Rights (SOHR), Quarterly report for the Southern Observatory for Human Rights (SOHR)
for June, July and August 2012 about the human rights situation in southern Yemen, 28 September 2012, 35 pages, p. 5:
sohr-aden.org/uploads/files/1348998093.pdf; and HRW, Yemen: Justice Deficit Marks Transition Anniversary, op. cit.
[20] U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Country Reports on Human Rights Practices
for 2010, Yemen, 45 pages, pp. 5-6: http://www.state.gov/documents/organization/160081.pdf.
[21] HRW, Yemen: Crackdown on Protest Leaves 13 Dead, 13 June 2013: https://www.hrw.org/news/2013/06/12/yemencrackdown-protest-leaves-13-dead.
[22] FIDH, op. cit., pp. 9-13.
[23] HRW, Yemen: Detained, Tortured, and Disappeared, op. cit.
[24] Alkarama, Yemen: Alarming deterioration of civil and political rights, op. cit., pp. 27-28.
[25] Alkarama, Yemen: Detainees' families protest against Political Security forces, 14 February 2011: http://en.alkarama.
org/index.php?option=com_content&view=article&id=692:yemen-detainees-families-protest-against-political-securityforces&catid=40:communiqu&Itemid=215.
177
178
[26] FIDH, op. cit., pp. 7-8 and p. 17; and HRW, Yemen: Detained, Tortured, and Disappeared, op. cit.
[28] Alkarama, Yemen: Alarming deterioration of civil and political rights, op. cit., pp. 29-31.
[29] Alkarama, Follow up submission in view of the provisional Concluding Observations of the Committee Against Torture
for Yemen’s 2nd periodic review, 9 April 2010: 7 pages, p. 3: http://en.alkarama.org/index.php?option=com_docman&task=doc_
download&gid=228&Itemid=218.
[31] Alkarama, Yemen: Ammar Attayiar tortured in Ta'izz, held despite release orders, 17 June 2010: http://en.alkarama.org/
index.php?option=com_content&view=article&id=532:yemen-ammar-attayiars-tortured-in-taizz-held-despite-releaseorders&catid=40:communiqu&Itemid=215.
[32] United Nations, Committee Against Torture, op. cit., p 5; and U.S. Department of State, Bureau of Democracy, Human Rights,
and Labor, Yemen 2012 Human Rights Report, 46 pages, p. 8: http://www.state.gov/documents/organization/204602.pdf.
[33] Alkarama, Follow up submission, op. cit., pp. 5-6.
[34] Amnesty International, Student political activist beaten, shot at: Abdul Raouf Hassan Zain al-Saqqaf, 29 November 2012:
http://www.amnesty.org/en/library/asset/MDE31/015/2012/en/501c321d-79de-440a-ae76-b200f2efb77f/mde310152012en.html;
and HRW, Yemen: Detained, Tortured, and Disappeared, op. cit.
[35] Alkarama, Universal Periodic Review: Yemen, Submission to the Stakeholders’ Summary, May 2013, 5 pages, p. 3:
http://en.alkarama.org/index.php?option=com_docman&task=doc_download&gid=249&Itemid=220.
[38] Arabic version available at: http://w1p.fr/128981. An unofficial English version (cited) is available at:
http://www.refworld.org/docid/3fc4c1e94.html.
of the Convention, Second periodic reports of States parties due in 1996, Yemen, 6 March 2009, 93 pages, pp. 42-43:
[40] Ibid, pp. 43-44.
[41] “Mohammed Al-Mikhlafi, Minister of Legal Affairs, about ‘transitional justice’”, www.yementimes.com, 24 June 2013:
http://www.yementimes.com/en/1688/intreview/2525/Mohammed-Al-Mikhlafi-Minister-of-Legal-Affairs-about%E2%80%9Ctransitional-jusice%E2%80%9D.htm; see also the bill outlining the positions of the General People's Congress
(GPC): http://www.peaceandjusticeinitiative.org/wp-content/uploads/2012/03/Yemeni-draft-Transitional-Justice-Law.pdf.
[42] Impunity Watch, In An Attempt To End The Violence, Yemeni Government Grants President Saleh “Complete” Immunity,
23 January 2012: http://impunitywatch.com/in-an-attempt-to-end-the-violence-yemeni-government-grants-president-salehcomplete-immunity/; and United Nations, Human Rights Committee, Consideration of reports submitted by States parties under
article 40 of the Covenant, Concluding observations of the Human Rights Committee, Yemen, 23 April 2012, 8 pages, p. 2:
www2.ohchr.org/english/.../CCPR.C.YEM.CO.5_en.doc.
[43] Alkarama, Yemen: Alarming deterioration of civil and political rights, op. cit., p. 22; and United Nations, Committee Against
Torture, op. cit., p. 64.
[44] HRW, Unpunished Massacre, Yemen’s Failed Response to the “Friday of Dignity” Killings, 12 February 2013, 69 pages, p. 1:
http://www.hrw.org/sites/default/files/reports/yemen0213webwcover_0.pdf.
[45] Ibid, pp. 2-3.
[46] Ibid.
[48] HRW, Yemen: Military Changes a Major Transition Step, 12 April 2013: https://www.hrw.org/news/2013/04/12/yemenmilitary-changes-major-transition-step.
© Ed Ou / Getty
Displaced children
temporarily seek refuge
in partly destroyed
colonial buildings.
Mogadishu. Somalia.
SUB-SAHARAN
AFRICA
Cote d’Ivoire . Madagascar . Rwanda . Sudan .
182
SUDAN
khartoum
* 37,2 m
COTE D’IVOIRE
yamoussoukro
*19,8 m
RWANDA
kigali
* 11,4 m
MADAGASCAR
antananarivo
* 22,2 m
*
INTRODUCTION
Torture is used in many African countries to obtain confessions or information by
force, and also as a tool of repression and to punish and terrorise victims. In dictatorships and authoritarian regimes such as the Democratic Republic of the Congo
(DRC), Djibouti, Equatorial Guinea, Ethiopia, Eritrea, the Gambia, Rwanda, Sudan
Uganda, and Zimbabwe, state security services make systemic use of torture as a
means of investigation and repression.
During the conflicts which in 2013 ravaged Nigeria, the Central African Republic, the
DRC, Sudan and Somalia, the fundamental rights of citizens were once again overlooked as widespread abuses were perpetrated by the warring factions and other
armed groups. In such circumstances, arbitrary detention and arrests, summary executions, rape and other sexual violence and acts of torture become shockingly banal
and daily practices. Since the diverse Séléka (a Sango term meaning “alliance”) coalition – made up of rebels from the north and mercenaries from Chad and Sudan –
seized power in a coup d’état on 24 March 2013, the Central African Republic has
been plunged into a state of complete anarchy. Although Séléka has been officially
broken up, there has been no change in the situation on the ground. The factions
that once made up the alliance have now formed various groups who only obey their
direct leaders and have created a reign of terror over vast areas abandoned by the
State. The country is at the mercy of these breakaway armed groups as its citizens
are subjected to constant pillaging and widespread abuses (torture, sexual violence
and summary executions). In response, self-defence groups have begun to emerge
at a local level, also carrying out human rights violations against the communities
that were once home to the former Séléka members. This violence, unprecedented
in the State’s history, threatens to mutate into an inter-religious conflict between
Christians, who represent a majority of the country’s 5 million inhabitants, and the
Muslim population to which the Séléka belongs.
In most African countries, the extraction of confessions is often the only method
used to establish a suspect’s guilt. In general, officials responsible for applying the
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law limit their efforts to seeking an admission of guilt from those arrested, whom
they immediately assume to be guilty without any presumption of innocence. And in
order to get suspects to do this, law enforcement officials use unlawful method such
as arbitrary arrests and detention, threats and ill-treatment. Anyone who continues
to claim their innocence runs the risk of violence, and in some cases torture. JeanMarie Ndakouzou Songo died at the Plateau des 15 Ans police station in Brazzaville
in the morning of 5 October 2012. During the night, he had been tortured in an effort
to secure information about a sum of money stolen from his employer.
Torture is all too often deeply rooted in the culture of security forces, and is especially prevalent during crackdowns on public demonstrations, popular uprisings and
attempted (or suspected) coups d’état.
Since parliamentary elections were held in Djibouti in February 2013, when the party
of the President claimed a much disputed victory, political opponents have been
increasingly arrested and subjected to violence in this small state in the Horn of
Africa. Opposition protesters who have mobilised to denounce the alleged electoral
fraud have been met with a brutal crackdown by the law enforcement authorities.
Between late February and early March 2013, ten demonstrators – students and
teenagers – were killed and 15 others injured by live ammunition. Several hundred
people were arrested and placed in detention for various durations, during which
time some of them were subjected to physical violence. Sahal Ali Youssouf, aged 24,
was arrested in the evening of 6 June 2013 having participated in several demonstrations. He was placed in a police vehicle and brought to an unknown location. The next
day, the same vehicle was used to drop him off in the so-called “cardboard” district
in the capital. He was still alive but in a critical condition. His body showed traces
of several acts of torture, including burn marks on the soles of his feet. Some of his
limbs had been broken and he had suffered a cranial trauma. He quickly succumbed
to his injuries.
Human rights defenders and independent journalists are particularly vulnerable to
acts of repression. In some countries, including Angola, Burundi, Cameroon, Guinea,
Kenya, Mauritania, Nigeria and Chad, they are regularly intimidated and harassed,
often placed under surveillance or arbitrarily arrested. In recent years, many of them
have been assaulted by police officers at the time of arrest or tortured by the intelligence services while in detention.
On 27 May 2013, a group of 20 youths assembled on Independence Square in the
centre of the Angolan capital Luanda following calls by the Movimento revolucionario group to denounce the authorities’ silence in relation to the enforced disappearances* of several opponents of the regime. The police intervened, using horses
and dogs to disperse the demonstrators and prevent them from attracting the attention of passers-by. Many of them were beaten with sticks. One activist, Raul Lindo
“Mandela”, was found unconscious at the side of a road around 5 km from the city
centre. After receiving medical treatment, he told his family that he had been subjected to physical violence while in detention at police station no. 6. He alleges that
he was beaten with metal cables while handcuffed and that he was kicked while on
the ground.
Ostensibly as part of their fight against terrorism, several States that suffer from
internal political violence, such as Ethiopia, Kenya, Nigeria and Somalia openly flout
international human rights norms. Law enforcement officials use torture against
those suspected of having links with Islamist movements accused of terrorism, but
also against political activists calling for greater autonomy for certain ethnic or religious groups. In the Horn of Africa, arrests are regularly made as part of the fight
being led by the United States and their Ethiopian and Kenyan allies against Al Qaeda
and the Somali Islamist group al-Shabaab. In most cases, those arrested are placed
in secret detention*.
Defence and security officials are rarely required to appear before the courts to
account for the acts of ill-treatment or abuses which they may have initiated and/or
committed. Very often, vague legislation and the failure of domestic laws to criminalise torture allow these officials to make widespread use of torture without fear
of even the most minor sanctions. The absence of investigations and convictions
generally deprives victims and their families of the right to determine the truth,
secure justice and receive compensation. Such a climate of impunity can only serve
to encourage the propagation of torture practices.
185
186
COTE D’IVOIRE
BACKGROUND
For more than a decade, Cote d’Ivoire has suffered a series of political-military
crises that have deeply fragmented society and divided the different communities
living in the country. In 2002, several armed opposition groups moved in from the
north and the west in an attempt to overthrow President Laurent Gbagbo. Following
a ceasefire agreement, the conflict officially ended in July 2003. The country was
divided in two, with the New Forces (FN) – a coalition of various rebel movements –
controlling the north and the authorities the south. At the end of 2010, the head of
State refused to recognise his electoral defeat and hand power over to Alassane
Ouattara, thereby dragging the country into a bloody post-electoral crisis that saw
the death of more than 3,000 people1. In May 2011, following six months of political violence, Laurent Gbagbo was captured in the capital Abidjan in a move that
apparently brought an end to the crisis as Alassane Ouattara took up office and
created a new government. But the political climate remains tense and the security situation unstable, particularly in the west of the country. Despite substantial
economic progress, although without any real impact on social affairs, there is still
intense communitarian dissent and the national army – the Republican Forces of
Cote d’Ivoire (FRCI) – continues to commit abuses against the civilian population.
PRACTICE OF TORTURE
The end of the post-electoral crisis saw a substantial fall in human rights violations,
but the torture phenomenon persists across several sections of the country.
Victims
Throughout the 2002-2003 conflict, the government’s defence and security forces as
well as the New Forces frequently attacked civilians thought to have close links with
the opposite camp and members of different ethnic groups, subjecting them to acts
of torture including various forms of sexual assault.
This targeted violence continued as the country was divided between 2002 and
2010. On both sides of the divide, women and young girls were particularly exposed
to sexual abuse by the armed groups.
Throughout this period, each episode of political tension saw an increase in the
number of torture cases. During the post-electoral crisis (October 2010 to May 2011),
296 cases of torture leading to the death of the victims, 196 cases of rape and 1,354
cases of torture and ill-treatment were documented by the National investigative
commission (CNE)2. Once again, the victims were targeted on the basis of their ethnic belonging and suspected political alliances.
Although there has been a drop in the scale of human rights violations since May
2011, the practice of detaining people in unofficial locations has favoured the use of
torture. Following a wave of armed attacks on military facilities between August and
September 2012, more than 100 young men – both civilians and military personnel –
from ethnic groups perceived to be mainly pro-Gbagbo were arrested, detained in
illegal locations and subjected to violence. At least two of them died following acts
of torture3.
Those suspected of plotting against the incumbent regime are particularly at risk of
being tortured. On 20 August 2012, a police officer named Serge Hervé Kribié was
arrested by the San Pedro police. He died the following day as a result of the injuries
sustained during his interrogation by the Republican Forces4.
Individuals suspected of common law offences are also regularly subjected to acts
of violence during preliminary investigations in an effort to secure a confession5.
Those who cannot or refuse to pay the defence and security forces stationed at road
barriers have also been subjected to acts of brutality6. Several journalists and members of civil society continue to be intimidated and harassed7 and, in some cases,
subjected to physical violence.
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188
During Laurent Gbagbo’s time in power, the police and gendarmerie were manipulated along political and ethnic lines for the purposes of protecting the head of
State: hundreds of youths belonging to pro-Gbagbo ethnic groups or from his home
region were recruited by the security forces and committed acts of violence against
foreigners found in the sub-region, citizens from the north of the country, political
opponents and members of civil society, particularly between 2002 and 20108. Militia
groups such as the Jeunes patriotes and the Fédération estudiantine et scolaire de Côte
d’Ivoire (FESCI) supported the crackdown in order to silence Gbagbo’s opponents in
the south of the country.
During this period, the New Forces committed grave human rights violations in the
rebel-held north of the country, including acts of torture, against suspected supporters of the Gbagbo government as well as dissident members on the fringes of
the New Forces. At the start of the post-electoral crisis, in late 2010, the police,
gendarmerie and affiliated militia groups pursued their opponents in the south of the
country, especially in Abidjan, committing numerous abuses. At the same time, the
New Forces and their backers, the Dozos (traditional hunters), were also responsible
for abuses during their military offensive on the capital.
At the end of the fighting in Abidjan, when the balance of power had shifted, those
previously responsible for such abuses now became victims and vice versa. Between
April and May 2011, regular acts of torture were perpetrated by elements from the
Republican Forces under the command of Ousmane Coulibaly, also known as “Bin
Laden”9.
The police and gendarmerie, considered to be pro-Gbagbo, have now been largely
marginalised, are poorly equipped and are no longer perceived as forces responsible for acts of torture. The main perpetrators of violence are to be found within the
army, military police, the Direction de la surveillance du territoire (DST), the “armed
volunteers” and the Dozos.
The Republican Forces were created following a decree by President Alassane
Ouattara in March 2011. They are mainly made up of combatants from the former
New Forces, most of whom have not been trained to respect human rights. Although
according to the law the military is not authorised to arrest, interrogate or detained
civilians, they have appropriated the law enforcement role usually attributed to the
police and gendarmerie with the consent of the incumbent regime. In response
to the wave of attacks in August and September 2012, the civilian authorities reestablished the network of commanders of so-called “com-zones” in Abidjan and
gave the Republican Forces greater latitude in arresting and incarcerating suspects
with no regard for proper legal procedure. This led to the army conducting sweep
operations and raids in areas considered to be pro-Gbagbo (several districts of the
capital and villages in the west of the country). Many people were arrested and physically assaulted in military facilities (a military police base in the Adjamé district of
Abidjan, the former base of the anti-riot brigade (BAE) in the Yopougon district of
Abidjan, and a military barracks in Dabou). So far, in the absence of any security
sector reforms, the Republican Forces have continued to act on the ground without
any real government control. They have set up checkpoints and roadblocks on some
transport routes and have interfered in land disputes in the west, particularly involving “armed volunteers”, members of the former New Forces who did not join the
army but have illegally assumed various police functions and commit acts of violence
against the civilian population.
The military police was reinstated by the head of State in December 2011 in an effort
to restore order to the Republic and hunt down those who were passing themselves
off as members of the Republican Forces and spreading insecurity in the capital.
It was placed under the command of Zacharia Koné, a former leader of the New
Forces. However, the scope of his mission was not clearly defined and the military
police very quickly exceeded its authority, assuming the right to detain and interrogate civilians acting as military personnel on the basis of State security10. A certain
number of individuals interrogated by the military police were subjected to physical
violence and acts of torture.
The DST also carries out arrests as part of its defence and interior security operations, and several people from pro-Gbagbo circles claim to have been tortured by its
members.
Traditional hunters contribute to national security in support of the army, particularly
in the west of the country11. This group, which includes around 18,000 members,
fought alongside the New Forces in 2002-2003 and again in 2010. As part of the
conflict and during their subsequent law enforcement activities, the Dozos committed abuses against civilians and have since continued to incarcerate and torture
individuals. They are supported by the authorities, who provide them with equipment
and weapons12.
Acts of torture are primarily perpetrated for the purposes of securing confessions
and obtaining information, which are then used as evidence before the courts.
Many detainees are not allowed to read the interrogation statements which they are
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forced to sign. Torture is also used to extort money from the families of detainees
in exchange for an end to the violence and the release of their loved ones. In cases
involving political violence, it is used to punish and humiliate suspected supporters
of the opposing political or ethnic camp.
The acts of torture documented in Cote d’Ivoire mainly involve beatings and blows
using belts, electric cables, clubs, rifles, boots and knives. One man who was tortured in August 2012 at the Adjamé police station provided the following testimony:
“Each day they pulled me out and took me to another room for questioning. [….]
They’d strike me over and over, hard. [….] They’d wrap their belt around their hand
and hit me in the head, the face, the side. The metal [ring] was on the end they hit
you with”13.
Torturers also use painful contorted positions as well as sexual abuse, sometimes
forcing detainees to commit such acts on one another. Food and water deprivation
is widespread. Finally, there have been several reports of the use of electricity14,
simulated drowning and burns using melted plastic, although these are more rare.
Cote d’Ivoire is a State party to several treaties and conventions that prohibit torture,
in particular the Convention against Torture, which it ratified in December 1995.
Furthermore, the country’s Constitution stipulates that “inhuman and cruel, degrading and humiliating treatment, physical or moral torture, physical violence and mutilation and all forms of debasement of the human being, are forbidden and punished
by the law”15.
However, the Criminal Code does not explicitly define torture. Nor is it identified as
a stand-alone criminal offence, but rather is considered as an aggravating circumstance in the case of murder (Article 344) and false imprisonment (Article 374.2), for
which it can lead to a life sentence. Given the absence of explicit criminal liability,
torture is likened to physical blows, bodily injury, violence and assault (Article 345)
and may lead to a maximum sentence of 20 years imprisonment. None of the provisions in the Criminal Code prohibits the use of confessions obtained under torture as
evidence in court. According to Article 419 of the Criminal Procedure Code, “confessions, like all other evidence, are left to the discretion of judges”16.
Victims of torture can file a complaint with the judicial authorities, but in reality
the State has limited institutional and logistical resources to initiate investigations,
especially as magistrates and lawyers properly trained to combat torture are few in
number. The judiciary also lacks independence, like the military police and military
courts which are usually responsible for investigating allegations of violence committed by members of the security forces. This inaccessibility of justice is further
worsened by a long-standing climate of impunity. There have been no prosecutions
for any of the crimes committed during the armed conflict of 2002-2003 due to the
amnesty granted to all combatants, and for a period of almost 10 years the New
Forces and pro-government forces have been able to continue to carry out abuses
with impunity in areas under their control.
Between 2011 and 2012, President Alassane Ouattara sought to break with the past
by establishing several bodies designed to improve justice and support the reconciliation process (the National investigative commission (CNE), Special investigative
unit (CSE)17, Dialogue, truth and reconciliation commission (CDVR18) and National
human rights commission (CNDH19)). Law clinics have also been set up in six of the
country’s regions in order to provide civilians with support.
In a report published in August 201220, the CNE stated that crimes under international law had been committed by both pro-Gbagbo and pro-Ouattara forces between
31 October 2010 and 15 May 2011, including acts of torture that had resulted in
216 deaths.
Civil and military prosecutors from the CSE have collectively charged more than
150 people with post-electoral crimes. The military court in Abidjan has started to
convict military personnel who served former head of State Laurent Gbagbo of grave
human rights violations. However, justice in Cote d’Ivoire continues to operate on
a one-way basis: except for the arrest of the Burkinabé warlord Amadé Ouérémi
on 18 May 2013, no high-ranking officer from the Republican Forces has yet been
charged or arrested for the bloodshed. Several officers accused of human rights
violations in comprehensive reports by the United Nations and human rights associations have held onto their positions within the security and defence forces. Some
have even been appointed to important posts, such as Ousmane Coulibaly, who
was named prefect of San Pédro by Alassane Ouattara under the President’s “discretionary legal power”21. In June 2013, the CSE was reduced in number by two
thirds, leading to a significant fall in its activities. The CDVR is struggling to carry
out any substantive work. It receives little support from the government, its mandate
is unclear, particularly in terms of its timeframe, and its working methodologies
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disorganised. Furthermore, its composition has not received unanimous support
from civil society.
With regard to the post-electoral period, the authorities have recognised that the
security forces used violence in response to the August 2011 attacks22, but they have
taken no steps to ensure those responsible are tried and punished. Legal proceedings
have nonetheless been initiated in relation to the Nahibly attack, and an investigating
magistrate from the court of first instance in Man has been appointed to oversee the
investigation23. At dawn on 20 July 2012, around 300 youths from the Malinké districts of Duékoué, with support from members of the armed forces and Dozos24, used
batons and edged weapons to attack a camp housing displaced persons in Nahibly,
in the West of the country. They beat several young men mainly from the Guéré community thought to be ex-militia from the pro-Gbagbo camp. Seven people were found
dead in the camp, including four who died as a result of their injuries. At least 11 people were executed and thrown into a well. At least one young woman was abducted
by military personnel, subjected to violence, raped and left for dead lying naked at the
side of the road. The investigation remains at the preliminary stages. The commanding officer from the Republican Forces in Nahibly, Lieutenant Daouda Koné, known as
“Konda”, has since been transferred to another location in the country.
Riding high on the sense of justice that comes with victory, the military forces loyal
to the incumbent regime continue to operate largely above the law and continue to
carry out abuses with complete impunity.
[1] Commission nationale d’enquête (CNE), Rapport d’enquête sur les violations des droits de l’homme et du droit
international humanitaire survenues dans la période du 31 octobre 2010 au 15 mai 2011, July 2012, 33 pages, p. 12:
http://www.fidh.org/IMG/pdf/cne_resume_rapport_d_enquete.pdf.
[2] Ibid, p. 15.
[3] United Nations, Human Rights Council, Report of the Independent Expert on the situation of human rights in Côte d'Ivoire,
Mr. Doudou Diène, 7 January 2013, 19 pages: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/
Session22/A-HRC-22-66_en.pdf.
[4] Fédération internationale de l’Action des chrétiens pour l’abolition de la torture (FIACAT) and ACAT Côte d’Ivoire,
Contribution au deuxième Examen de la Côte d’Ivoire, Conseil des droits de l’homme, Deuxième cycle de l’Examen Périodique
Universel, 19ème session, Mai-juin 2014, September 2013, 12 pages, p. 3; Amnesty International, Côte d'Ivoire: Time to put an
end to the cycle of reprisals and revenge, 26 October 2012: https://www.amnesty.org/en/news/c-te-d-ivoire-time-put-end-cyclereprisals-and-revenge-2012-10-26.
[5] FIACAT and ACAT Côte d’Ivoire, Rapport alternatif de la FIACAT et de l’ACAT Côte d’Ivoire en réponse aux rapports initial
et périodiques cumulés du gouvernement ivoirien sur la mise en œuvre de la Charte africaine des droits de l’homme et des peuples
Côte d’Ivoire, September 2012, 19 pages, p. 10: http://www.fiacat.org/IMG/pdf/Rapport_Alternatif_CADHP_RCI.pdf.
[6] Human Rights Watch (HRW), Côte d’Ivoire: Security Force Extortion, 1 July 2013: http://www.hrw.org/news/2013/07/01/
cote-d-ivoire-security-force-extortion.
[7] FIACAT, Le Rapporteur spécial des Nations Unies sur la Côte d’Ivoire dénonce des atteintes graves au droit à la liberté
d’association, de réunion et d’expression, 14 June 2013: http://www.fiacat.org/IMG/pdf/CP_CI_140613.pdf.
[8] Amnesty International, Côte d’Ivoire: The Victors' Law: The human rights situation two years after the post-electoral crisis,
February 2013, 86 pages, p. 16, http://www.amnesty.org/en/library/asset/AFR31/001/2013/en/e5b7a774-3898-4254-89856755a67a0c14/afr310012013en.pdf.
[9] HRW, Turning rhetoric into reality: Accountability for serious international crimes perpetrated in Côte d'Ivoire, April 2013,
79 pages, p. 30, http://www.hrw.org/sites/default/files/reports/CDI0413_ForUpload.pdf.
[10] International Crisis Group, Côte d’Ivoire: Defusing Tensions, 26 November 2012, 24 pages, p. 15: http://www.crisisgroup.org/
~/media/Files/africa/west-africa/cote-divoire/193-cote-divoire-defusing-tensions-english.pdf.
[11] Ibid, p. i.
[13] HRW, “A long way from reconciliation”: Abusive military crackdown in response to security threats in Côte d'Ivoire,
November 2012, 79 pages, p. 30: http://www.hrw.org/sites/default/files/reports/cotedivoire1112webwcover.pdf.
[15] Constitution as of 1 August 2000, Article 3: http://abidjan.usembassy.gov/ivoirian_constitution2.html.
[16] FIACAT and ACAT Côte d’Ivoire, op. cit., pp. 10-11.
[17] http://justice-ci.org/cellule.html.
[18] http://www.cdvr.ci/.
[19] http://cndhci.net/.
[20] Commission nationale d’enquête (CNE), op. cit.
[21] HRW, op. cit., p. 50.
[22] HRW, op. cit., p. 5.
[23] Fédération internationale des ligues des droits de l’Homme (FIDH), Mouvement ivoirien des droits humains (MIDH),
Ligue ivoirienne des droits de l’homme (LIDHO), Côte d’Ivoire / Attaque du camp de Nahîbly « Une occasion de rendre justice »,
March 2013, 8 pages, p. 5: http://www.fidh.org/IMG/pdf/civ_rapport_nahibly_mars2013-2.pdf.
[24] Ibid, pp. 2-3.
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MADAGASCAR
BACKGROUND
Madagascar has been experiencing a major crisis of governance for the last five
years. Following the coup d’état on 17 March 2009, it was governed by an unelected
civil regime with support from the army: the High Transitional Authority (HAT), led
by Andry Rajoelina, former mayor of the capital Antananarivo. In September 2011,
Malagasy political representatives accepted a plan to end the crisis drawn up by
the international community and overseen by the Southern African Development
Community (SADC). It included the appointment of a transitional government of
national unity which would continue to be led by President Andry Rajoelina and the
creation of an independent commission responsible for organising and setting the
timetable for presidential elections. These elections, intended to restore Madagascar’s
role in regional and international bodies and bring an end to the political crisis, were
twice postponed, dragging the country back into a state of uncertainty. The first
round of the presidential elections took place on 25 October 2013 and the second
round, which coincided with parliamentary elections on 20 December 2013. Since
January 2009, when the opposition now in power first began demonstrations, allegations of torture for political reasons have been on the increase1. The failures of the
State and its administration, which no longer appears capable of providing reliable
protection for its population, have led to an increase in insecurity and violence by
bandits against a backdrop of rising poverty. In an effort to combat this trend, the
country’s law enforcement authorities have also extended the use of force against
suspected offenders. Violence against suspected criminals is socially accepted in
Madagascar and has traditionally taken place unseen and unheard.
PRACTICE OF TORTURE
The torture phenomenon in Madagascar is widespread and affects a wide spectrum
of the population. However, torture and ill-treatment do not appear to take place
on a massive scale and even less so at an institutional level. NGOs have nonetheless expressed concern about the number of extrajudicial executions and arbitrary
arrests and detentions2.
Victims
The primary victims are those suspected of common law offences, in most cases
suspected thieves, who are tortured at the time of their arrest or while in police custody. Due to a worsening in the security situation in the Atsimo-Andrefana, AtsimoAtsinanana and Anosy regions in the south of the country, linked to several cases of
stolen zebus which led to fatal clashes between highway bandits and cattle thieves,
known as “dahalos”, and villagers, the authorities launched operation Tandroka
(“zebu horns”) in September 2012 in an effort to restore public order and capture the
suspected leader of the dahalos. A unit from the Special Intervention Force (FIS) was
dispatched to the region with military equipment. During the course of this operation,
which lasted until April 2013, the security forces killed several hundred suspected
dahalos and others suspected of supporting them, including many who were tortured,
and torched several villages, leaving victims that included the elderly, women and
children3.
The worsening political situation since January 2009 has resulted in increased
violence against political opponents4. Between January and March 2009, at least
100 people died during demonstrations, in some cases broken up by supporters of
Andry Rajoelina5. Some of the victims died at the hands of the defence and security forces. The shift in power in March 2009 made no real change in terms of law
enforcement. Following the detonation of improvised explosives in the capital in
June 2009, several figures close to the former government were arrested and several of them were subjected to violence. In November 2010, law enforcement officials arrested and violently assaulted a group of military officers accused of plotting
a coup d’état. In March 2011, political opponents Alphonse Rafaralahitsimba and Misa
Arifetra Rakotoarivelo were coerced under torture into issuing a statement implicating a close supporter of former President Marc Ravalomana in a planned assassination attempt on Andry Rajoelina6. Their interrogators subjected them to electric
shocks7. In July 2013, a presidential candidate was brutally arrested for organising
a public demonstration calling for the withdrawal of three other candidates. He was
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pinned to the ground by masked security officials and dragged by his feet towards a
van as his head scraped along the ground.
In a climate of deleterious State authority, journalists, lawyers and judges are also
exposed to abuse. In May 2012, police arrested an employee at the pro-regime newspaper La Vérité as he was on his way to cover an event in Antananarivo. They beat
him and left him with a broken arm8. On 9 December 2011, state prosecutor Michel
Rehavana was beaten to death in Tuléar by a group of around 50 police officers
demanding the release of one of their colleagues who had been convicted for handing over his weapon to bandits.
The defence and security forces regularly use violent methods. When the HAT took
over, they were given considerable freedom to act in exchange for supporting the
incumbent regime and were subjected to virtually no political checks outside of the
capital9.
As part of their efforts to combat insecurity in the country’s major cities, particularly
in Antananarivo, the law enforcement authorities, especially the Police Intervention
Force (FIP) and the Rapid Intervention Group (GIR) – a special unit within the national
police force set up to fight bandits – resort to brutal methods in dealing with suspected bandits. In 2012, they shot and killed at least 100 suspected criminals10.
Hajaharimananirainy Zenon, a taxi driver suspected of throwing stones at the presidential convoy, was arrested in the capital and placed in detention during the night
of 17 July 2011, before being tortured to death by members of the FIP. His body was
handed in to the morgue at Antananarivo general hospital the following morning.
The FIS, which was first established in March 2009 as the Joint National Committee
of Enquiry (CNME), has on several occasions used excessive force to break up
demonstrations. This unit, which includes military personnel, directly reports to the
leader of the HAT. It has also been accused of serious offences, including acts of
torture and arson, in conducting operation Tandroka11.
In Madagascar’s penitentiary facilities, corporal punishment is used as a disciplinary
measure. In the event of escape attempts or when arresting prisoners on the run,
wardens regularly subject their targets to ill-treatment12 in order to discourage them.
Sources also report instances of sexual violence against disobedient detainees for
the purposes of humiliating them and correcting their behaviour.
Given the increasing absence of the rule of law and a lack of confidence in the judiciary, dinas – traditional judicial structures used in rural areas which are competent
to try civil cases provided they have been approved13 – have in recent years begun to
apply repressive measures in their localities. In some cases, citizens who feel they
have been given coercive powers by these structures have carried out lynchings or
participated in other forms of collective torture against suspected thieves14. In March
2011, one individual was tortured to death by crucifixion after being convicted by a
dina in the south of the country15.
In the absence of modern investigative methods, torture is above all a means for judicial police officers to extract confessions from detainees in police custody16. These
officers do not hesitate to conduct heavy-handed interrogations during the preliminary investigative phase, including methods such as beatings, crushing their victim’s
fingers and cigarette burns17. Confessions obtained by force are used as evidence
before the courts.
Violence is also used to punish thieves at the time of arrest as well as common law
prisoners who behave badly. Three detainees at the Maison centrale in Manakara,
in the south-east of the country, were tortured by prison officials for two days in
September 2010 for smuggling cannabis into the facility. The eldest of the three was
undressed, handcuffed and beaten with sticks and iron bars until he lost consciousness on three occasions.18 During the same month and at the same facility, another
detainee who had fought with a fellow inmate over the theft of a food ration was
beaten with sticks from his head to his feet by four wardens before fainting.19
Finally, torture is used politically in an effort to stem all opposition against the incumbent regime.
Madagascar is a State party to most of the international legal instruments prohibiting
torture. Article 11 of its 2010 Constitution stipulates that “no one shall be subjected to
torture or inhuman or degrading punishment or treatment”. There are several decrees
and codes of conduct and ethics governing the police force and prison authorities
that also ban the use of torture20. With a view to transposing the Convention against
Torture (ratified in December 2005), which according to the Constitution takes precedence over domestic legislation, the authorities introduced a law in June 2008
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recognising acts of torture as a distinct criminal offence. The minimum sentence is
two years imprisonment, which can be extended to a life sentence of forced labour
in the case of rape or the victim’s death. This legislation also enshrines the absolute
inadmissibility of evidence obtained under torture, as well as the protection of witnesses, victims and investigators and the right of victims to seek damages. However,
these provisions have not yet been integrated into the Code of Criminal Procedure
or the Penal Code21. As it currently stands, the Penal Code considers torture to be an
aggravating factor in other criminal offences and does not outline a sentencing scale
for the punishment of torture. This means judges have discretion in determining
whether or not an act of torture has been committed and in determining the severity
of the sentence22. Finally, this legislation applies a statute of limitations to acts of
torture: three years for ordinary offences23 and 10 years for crimes24.
The law provides for victims to file a complaint with a competent court. This rarely
happens in practice and victims are not informed of their rights due to the complexity of legal procedures in a country where most citizens are illiterate. The legal aid
office, which was established by decree in July 2009, was intended to help victims
but has not yet been put in place. The distances that must be covered by many rural
inhabitants in order to reach judicial offices also prevents victims from asserting
their rights.
Detainees can also file written complaints with the commission responsible for
monitoring penitentiary facilities, established in January 200625, but in practice letters are opened before being dispatched and those addressed to the commission are
intercepted and rarely reach their destination. Although two cases of ill-treatment
in prisons in Manakara and Fort-Dauphin were the subject of an investigation at the
end of 201126, the commission has not heard a single disciplinary procedure relating
to abuses since it was set up. Lawyers and local NGOs have no involvement in the
commission’s work27, and reports drawn up by associations of violence in detention
centres and handed to the authorities are rarely followed up. A document compiled
by ACAT’s local office in relation to acts of torture carried out by wardens at the
Maison centrale in Manakara in September 2010 led to no disciplinary or criminal
sanctions28.
The new Mediator of the Republic, who was appointed in 2008, does not carry out
any activities to help combat torture. The National human rights council (CNDH),
which was established by legislation introduced in July 2010, is not yet operational
as its representatives have not been appointed due to the suspension of Parliament29.
Once it is up and running, it will have a mandate to conduct administrative enquiries
as soon as it receives an individual or collective complaint, bring torture allegations
before the relevant authorities and conduct on-site inspections of all of the country’s
detention centres. Finally, the office of the public prosecutor rarely monitors the
activities of judicial police officers with detainees in their custody30.
This means there is no effective or independent mechanism for the systematic
investigation of allegations of ill-treatment or torture at the hands of State officials.
As a result, offences committed by the law enforcement authorities are very rarely
investigated.
Before taking action against a security official accused of violence, the judiciary
must first obtain authorisation from the minister responsible for the person in question, which constitutes an obstacle to the possibility of legal proceedings31. In general, the authorities prefer to transfer those who commit abuses to another region.
In their initial report to the Committee Against Torture* (CAT) in January 2011, the
authorities provided details of just one prosecution relating to a torture case from
2006, whereby an investigator was sentenced to 6 months imprisonment and fined
500,000 ariary (around ¤165) for wilfully striking and wounding a person in the
course of an interrogation32. In November 2011, the government was unable to provide the CAT with statistics relating to the application by the courts of legislation
against torture33, of which those responsible have a poor understanding34. In an effort
to address this shortcoming, the administration along with civil society took a series
of joint training initiatives in 2010 and 2011. Despite the judiciary’s low levels of
both human and material resources and its lack of independence from the executive, some judges endeavour to do their work from a position of independence and
have convicted law enforcement officials of various crimes. Between March and
September 2011, 125 police officers were tried for offences such as corruption and
extortion. However, not a single State official was tried for acts of physical violence.
Judges are wary of conducting such proceedings as the law enforcement authorities
sometimes challenge their powers and even physically attack them. Senior officials
from the local police force in Tuléar were dismissed for beating a judge to death in
December 2011, and five officers accused of this crime have been placed in detention but have not yet appeared before the courts35. On 24 July 2012, around 40 armed
police officers from the GIR burst into a courtroom in Antananarivo and freed five of
their colleagues who were on trial for the sordid killing of a businessman36.
In relation to the abuses committed as part of operation Tandroka, the Prime Minister
announced to the media that an independent investigation would be set up together
with the United Nations, although this has yet to happen, ostensibly because of
budget restrictions37. Just one lieutenant colonel was placed in detention awaiting
trial in November 2012, following a complaint of illegal violence and extortion filed
by a peasant38.
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[1] United Nations, Office of the High Commissioner for Human Rights, Committee Against Torture begins examination of report
of Madagascar, 10 November 2011: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11587&LangID=E.
[2] Amnesty International, Madagascar: Human rights must be at the heart of the roadmap to end the crisis, 7 October 2011:
http://www.amnesty.org/en/library/asset/AFR35/001/2011/en/8db3441d-ee25-44b8-9cce-8d52921eb9ec/afr350012011en.pdf.
[3] Amnesty International, Madagascar must end mass killings and investigate security forces, 20 November 2012: http://www.
amnesty.org/en/for-media/press-releases/madagascar-must-end-mass-killings-and-investigate-security-forces-2012-11-2.
[4] United Nations, Committee Against Torture, Consideration of reports submitted by States parties under article 19 of
the Convention, Concluding observations of the Committee Against Torture, Madagascar, 21 December 2011, 8 pages, pp. 2-3:
[5] Amnesty International, Madagascar: urgent need for justice. Human rights violations during the political crisis,
February 2010, 46 pages, p. 7: http://www.amnesty.org/en/library/asset/AFR35/001/2010/en/6e05b73b-1337-4a57-b80b4c6d3e7fef61/afr350012010en.pdf.
[6] U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Madagascar 2012 Human Rights Report,
for 2011, Madagascar, 31 pages, p. 3: http://www.state.gov/documents/organization/186425.pdf.
op. cit., p. 12.
[9] U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Madagascar 2012 Human Rights Report, p. 6.
[10] Ibid, p. 2.
[11] Ibid.
[12] ACAT-Madagascar, Fédération internationale de l’Action des chrétiens pour l’abolition de la torture (FIACAT), Organisation
Mondiale Contre la Torture (OMCT), Alternative report on the implementation of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Madagascar, 17 October 2011, 36 pages, p. 30: http://www2.ohchr.org/english/
bodies/cat/docs/ngos/FIACAT_OMCT_ACAT_Madagascar47_en.pdf.
[13] Law no. 2001/004 of 25 October 2001 on the general regulation of dinas in terms of public security.
[15] ACAT-Madagascar, FIACAT, OMCT, op. cit., p. 25.
[16] Ibid, pp. 11-12.
[17] Ibid, p. 12.
[18] Ibid, p. 24.
[19] Ibid.
[20] Decree no. 96-174 establishing an Ethics Code for the National police force, 18 March 1996: http://www.policenationale.
gov.mg/?page_id=1229; order no. 24.480/2012 establishing a Code of Conduct for the National police force, 6 September 2012:
http://www.policenationale.gov.mg/?page_id=1129; and decree no. 2006-015 of 17 January 2006 on the general organisation
of the penitentiary administration (Art. 16): http://legislation-madagascar.cwebh.org/TOME%200/73058.htm.
[22] United Nations, Office of the High Commissioner for Human Rights, op. cit.
of the Convention, Initial periodic report of States parties due in 2007, Madagascar, 23 February 2011, 40 pages, p. 15:
http://www2.ohchr.org/english/bodies/cat/docs/CAT-C-MDG-1_en.pdf.
[24] Ibid.
[25] Decree no. 015/2006 of 17 January 2006 on the general organisation of the penitentiary administration (Art. 39-45).
[26] United Nations, Office of the High Commissioner for Human Rights, Committee Against Torture hears response of Madagascar,
11 November 2011: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11599&LangID=E.
[27] United Nations, Office of the High Commissioner for Human Rights, Committee Against Torture begins examination
of report of Madagascar, op. cit.
[29] United Nations, Office of the High Commissioner for Human Rights, Committee Against Torture begins examination
of report of Madagascar, op. cit.
[31] United Nations, Office of the High Commissioner for Human Rights, Committee Against Torture hears response
of Madagascar, op. cit.
of the Convention, Concluding observations of the Committee Against Torture, Madagascar, op. cit., p. 3.
[34] Association pour la prévention de la torture (APT) and Ministère de la Justice de la République de Madagascar,
Combattre la torture à Madagascar, Guide pour la mise en œuvre efficace de la Convention des Nations unies et de la loi nationale
contre la torture, December 2012, 101 pages, p. viii: http://www.apt.ch/content/files_res/guide-madagascar-fr.pdf.
for 2011, Madagascar, op. cit., p. 2.
[36] “Madagascar : des policiers armés s’introduisent dans un tribunal et contestent une décision de justice”, www.rfi.fr,
26 July 2012: http://www.rfi.fr/afrique/20120726-madagascar-policiers-arm%C3%A9s-s'introduisent-dans-tribunal-etcontestent-d%C3%A9cision-justice-.
[37] “Madagascar : toujours pas d’enquête internationale sur les exactions dans le sud”, www.rfi.fr, 26 March 2013:
http://www.rfi.fr/afrique/20130326-madagascar-toujours-pas-enquete-internationale-exactions-le-sud.
op. cit., pp. 2-3.
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RWANDA
BACKGROUND
The Republic of Rwanda has been governed since 1994 by the head of the Rwandan
Patriotic Front (RPF), Paul Kagamé, whose government receives strong international
support. Since this former armed rebel group seized power from the regime associated with the genocide, the army has exercised close control over the country’s
political, economic and social spheres by playing on the people’s fears of a return
by the genocidal forces that fled to eastern Democratic Republic of Congo (DRC).
However, Kagamé’s long-standing unchallenged reign and his increasingly autocratic
approach, particularly his management of the conflict in DRC and his removal of
potential opponents from within his clan, have led to internal dissent in the RPF and
armed forces.
The authorities strive to project an exemplary image of Rwanda, but in order to
achieve this they exercise near total control over information. They regularly flout
international human rights standards in terms of freedom of expression and freedom
of association. As elections approach, the regime tends to restrict these fundamental
rights to an even greater extent and does not hesitate to use violence, as in 2010 at
the time of the presidential elections.
PRACTICE OF TORTURE
Acts of torture and ill-treatment against those being held in the official detention
system are relatively rare, while individuals who are illegally arrested and placed in
secret detention* are more affected. There were 18 reports of torture perpetrated by
State officials in military barracks or clandestine detention centres between 2010
and 20111. Following these reports, the Rwandan Defence Forces (RDF) undertook
reforms to improve their interrogation methods and conditions of detention.
Victims
Those considered as enemies of the regime are almost systematically subjected to
acts of repression that can extend to physical violence and killings.
Dissidents within the RPF, the military or pro-Rwandan armed Congolese rebel
groups are particularly targeted by acts of brutality. In the aftermath of the grenade attacks carried out in the capital Kigali between January and March 2010 and
the escape in February 2010 of Kayumba Nyamwasa, the former head of the armed
forces who fled to South Africa, military intelligence officials carried out a wave
of arrests against soldiers suspected of being loyal to Nyamwasa and anyone suspected of belonging to the Democratic Forces for the Liberation of Rwanda (FDLR),
a Rwandan armed opposition group based in eastern DRC. In June 2010, 30 civilians
were arrested and placed in illegal detention centres. During their interrogation, they
were tortured in order to extract confessions. After eight months in secret detention,
they were handed over to the judiciary and transferred to civilian prisons.
Several dissidents have been abducted, subjected to abuse and then executed. Their
bodies have never been found. There has been no news of the Congolese religious
leader Sheikh Iddy Abassi, a close ally of the National Congress for the Defence
of the People (CNDP) – a pro-Rwandan group of Congolese insurgents – or Robert
Ndengeye Urayeneza, a former RPF member and leader of the Front patriotique congolais (FPC) – a Congolese rebel group with ties to Rwanda. They were abducted on
25 and 26 March 2010 respectively. On 7 May 2010, Ndengeye Urayeneza was able
to phone his family and tell them that he was being held in a clandestine detention
centre in Rwanda. According to the authorities, the two men are thought to be in DRC.
Anyone who publicly criticises the authorities or expresses opinions that differ from
those of the party in power (journalists, political opponents and human rights defenders) are silenced through intimidation, arrests and in some case violence2. Many of
them have fled Rwanda to protect themselves.
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As the August 2010 presidential elections approached, political opponent and
Chairperson of the United Democratic Forces (UDF), Victoire Ingabire Umuhoza
– currently in prison having been unfairly convicted under the terms of a law that
bans “genocide ideology” – and her assistant Joseph Ntawangundi were physically
assaulted by unknown assailants in Kigali in February 2010. André Kagwa Rwisereka,
Vice-Chairman of the Democratic Green Party, was found decapitated in July 2010
in Butare.
The law-enforcement authorities also regularly use force against journalists for
no apparent reason. On 14 June 2012, Tusiime Annonciata, a journalist with Flash
FM radio station, was beaten unconscious by police officers in front of Parliament3.
Dissident members of the media who remain in Rwanda are forced to censor their
own work to avoid abuse and harassment.
Those living in eastern DRC are also subjected to violence – torture in particular –
which can in part be attributed to the Rwandan political and/or military authorities.
Rwanda’s military involvement in North and South Kivu since the mid-1990s (dispatch of troops and support for various Congolese rebellions) has been accompanied
by constant and serious human rights violations, including many acts of torture. The
victims of these abuses are mainly Congolese, but also include Rwandan Hutus4.
The Rwanda National Police (RNP), the Rwandan Defence Forces and the office
of the President have their own intelligence service. The Criminal Investigations
Division of the RNP is placed under the authority of the Interior Ministry. The National
Intelligence and Security Services (NISS) comes under the authority of the office of
the President. Finally, the Directorate of Military Intelligence (DMI), also known as J2,
operates on behalf of the army. These bodies manage a separate system for arresting
and detaining those suspected of threatening national security and are accused of
engaging in torture and enforced disappearances* in recent years, especially since
the introduction in April 2009 of legislation relating to the fight against terrorism,
which provides a very broad and vague definition of this offence and offers greater
scope for arrests5. In Rwanda, an act considered as terrorism is now defined as “an
act committed or a threat to commit an act in the interest of an individual, a group or
a terrorist organization”6.
The police, who are responsible for domestic security, are also granted the authority
to use force under Article 40 of legislation designed to formally establish the police
force, determine how it is structured and outline its competence. The use of force
must be reasonable and in proportion to the objectives being pursued, but in reality
this provision allows officers to use violence while carrying out their duties.
The Rwandan Defence Forces, who are responsible for external security, come
under the authority of the Defence Ministry, although they are governed by the head
of State, who acts as Commander-in-Chief. They are regularly accused of contributing to the brutality in eastern DRC.
Prison wardens and members of the local defence forces, which provide support
to the police and include some 20,000 people, are sometimes challenged for committing abuses and acts of violence in carrying out their duties. Furthermore, the
Rwandan authorities at the highest level support the criminal activities of several
warlords in eastern DRC, whose troops regularly engage in acts of torture. Two of
them – Laurent Nkunda, former head of the National Congress for the Defence of the
People (CNDP), and Jules Mutebutsi, a former officer with the Rally for Congolese
Democracy (RCD-Goma) – have sought refuge in Rwanda.
Military barracks represent the main torture sites in Rwanda. Mukamira barracks
mainly houses combatants and former members of the FDLR who were arrested in
DRC and transferred to Rwanda. Kami barracks on the outskirts of Kigali is used by
the DMI to interrogate people accused of threatening national security. Between the
end of 2010 and 2011, it was used to secretly detain around 60 people. There is currently no new information about illegal detentions in these facilities. Acts of torture
are also committed in other military barracks, police stations, at the “Kwa Gacinya”
detention centre run by the police intelligence service in Kigali7, as well as in administrative buildings, including the offices of the Defence Ministry. Furthermore, there
is an entire network of clandestine detention centres in Kigali used to house detainees linked to the conflict in eastern DRC or the trafficking of natural resources. These
unofficial detention centres are located in private individual homes, where senior
members of the DMI conduct their interrogations.
The torture techniques employed are varied and sometimes sophisticated. Examples
include repeated punching or blows using plastic sticks – in some cases objects are
inserted into the victim’s mouth to increase the pain –, the extraction of fingernails,
electric shocks, suffocation, burns, scalding, and simulated drowning in cisterns
filled with rainwater8. Others include secret detention for long durations of up to
several months, solitary confinement, sensory deprivation, sleep and water deprivation or starvation for several days and as long as a week. This treatment is referred
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to as the “regime” or “specialisation”. Victims who undergo the regime have their
hands handcuffed behind their back and their legs chained together.
In most cases, physical and psychological violence takes place after the arrest – during the interrogation – and is used to extract a confession or information or to coerce
detainees into signing a declaration that can later be used before the courts. Those
who refuse to speak are subjected to more torture. In general, victims bear no sign
of abuse upon their release as their injuries have had time to disappear while in
detention.
The Constitution stipulates that “No person shall be subjected to torture, physical
abuse or cruel, inhuman or degrading treatment”9. Various other legislative texts
prohibit torture, including Law N°15/2004 on evidence and its production, which prohibits the use of confessions obtained by force10. The new Penal Code, which came
into force in June 201211, provides a definition of torture in line with international
standards12 and outlines the applicable prison sentences, which run from six months
to life13. The Criminal Procedure Code also provides for torture convictions and
includes a set of guarantees designed to protect those arrested or placed in police
custody: the right of all suspects to be examined by a doctor, meet with a lawyer and
contact the people of their choosing. The maximum duration for police custody is
set at 72 hours in the case of judicial police investigations and seven days for preliminary investigations14. However, the Criminal Procedure Code also sets a 10-year
statute of limitations on acts of torture, which is incompatible with the unlimited
application of this crime under international law15.
Rwanda has ratified the main international human rights instruments that prohibit
torture (Convention against Torture, International Covenant on Civil and Political
Rights, African Charter on Human and People’s Rights). It has recognised the competence of the Committee Against Torture* (CAT) to carry out investigations, but
has rejected inter-State and individual complaints. The Optional Protocol to the
Convention against Torture has undergone a technical review and is expected to be
ratified. The 2008 legislation on the competence, structure and running of the courts
defines torture as a crime that falls under universal jurisdiction. The Convention
against Torture can be invoked before the courts, as international instruments take
precedence over domestic legislation.
Several monitoring mechanisms have been put in place to protect human rights and
monitor police stations and prisons (National human rights commission [CNDH],
Office of the mediator, Office of the Ombudsman*, and the Access to Justice programme). These mechanisms can be convened by victims. However, the CNDH lacks
independence from the authorities, as well as the financial and human resources
needed to carry out its mandate effectively. In 2008, the CNDH and the Office of
the mediator respectively dealt with 1,361 and 3,056 cases, none of which related to
torture offences.
Several State security bodies also have the authority to carry out internal investigations (National prison service, Police inspectorate, and the National inspection authority with responsibility for public prosecutions). Finally, the country’s
Parliament and Senate have internal commissions with a mandate to investigate
human rights violations.
Despite the existence of these various bodies with responsibility for monitoring conditions of detention and registering complaints made by victims, none of them really
has ultimate responsibility for investigations into torture allegations. As a result, such
allegations rarely lead to investigations and criminal proceedings, which explains the
lack of information and statistics available in this regard: the only example presented
in Rwanda’s initial report to the CAT in June 201116 related to a case that dated back
to April 2007 in which the judicial police officer who had beaten a suspect while in
police custody was given a sentence of one year in prison for inflicting blows that
resulted in injuries. According to the Minister of Justice, the onus is on the victim and
not the State to file a complaint17, contrary to the State’s obligation to investigate as
stipulated under Article 12 of the Convention18. Despite the creation of mechanisms
to protect victims and witnesses within the court system, victims continue to fear
reprisals and prefer not to file their complaints. Furthermore, the authorities systematically dismiss reports of human rights violations by their defence and security
forces. In January 2011, during the Universal Periodic Review* (UPR), the government rejected requests for the launch of investigations into enforced disappearances
and arbitrary arrests and detention.
Cases involving violence committed by the intelligence services run up against significant obstacles because of interference from the authorities, particularly in trials of a political nature or where there are accusations of deliberate divisionism.
During the criminal proceedings taken against a group of 30 people suspected of
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carrying out grenade attacks in 2010, seven of the detainees informed the judges
that they had been coerced or beaten during their interrogation or detention for the
purposes of extracting a confession, but the judges refused to examine their testimony as they could not produce medical certificates confirming the alleged violence.
Yet throughout their period of detention, the victims had never been given access to
an independent doctor, and upon their release bore no signs of violence. Congolese
warlords, who are close to the Rwandan authorities, also benefit from notorious
levels of impunity for the various crimes of which they are accused. At the beginning
of April 2013, 682 Congolese rebels from the pro-Rwandan M23 movement successfully sought refuge in Rwanda. Not one of them has been prosecuted for the serious
human rights violations committed. Finally, not a single case of torture victims being
compensated for their suffering has yet been documented in Rwanda19.
[1] Amnesty International, Rwanda: Shrouded in secrecy. Illegal detention and torture by military intelligence, October 2012,
46 pages, p. 7: http://www.amnesty.org/en/library/asset/AFR47/004/2012/en/ca2e51a2-1c3f-4bb4-b7b9-e44ccbb2b8de/
afr470042012en.pdf.
[2] U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, 19 April 2013, Rwanda 2012 Human Rights Report,
[3] Human Rights Watch, World Report 2013, Rwanda, 2013, 665 pages, p. 150: https://www.hrw.org/sites/default/files/
wr2013_web.pdf.
[4] UN High Commissioner for Human Rights, Democratic Republic of the Congo, 1993-2003: Report of the Mapping Exercise
documenting the most serious violations of human rights and international humanitarian law committed within the territory
of the Democratic Republic of the Congo between March 1993 and June 2003, August 2010: http://www.ohchr.org/Documents/
Countries/ZR/DRC_MAPPING_REPORT_FINAL_FR.pdf.
[5] Official Gazette of the Republic of Rwanda, 112 pages, Law N°45/2008 on Counter Terrorism, Art. 44 and 45, p. 50:
http://www.hsph.harvard.edu/population/domesticviolence/rwanda.genderviolence.08.pdf.
[6] Ibid, Art. 3, p. 33.
[8] Ibid, p. 7.
[9] Constitution of the Republic of Rwanda of 4 June 2003, Art. 15: http://www.mod.gov.rw/?Constitution-of-the-Republic-of.
[10] Law N° 15/2004 on evidence and its production (Art. 6); Law N° 27/2001 on the rights and protection of the child against violence
(Art. 20); Law on the prevention and punishment of gender-based violence (Art. 27); Law on prisons (Art. 23); Law N° 38/2006
on the creation and organisation of the National prison service (Art. 23); Law N° 25/2004 on the creation of the Local defence forces
(Art. 15); Presidential order N° 155/01 of 31 December 2002 governing the National police (Art. 28); and Directive N° 09/08 from
the Minister of Internal security relating to conditions of detention (Art. 8).
[11] Organic Law N° 01/2012/OL of 02/05/2012 instituting the Penal Code, 597 pages: http://www.ilo.org/dyn/natlex/docs/
SERIAL/93714/109657/F1967095662/RWA-93714.pdf.
[12] Ibid, Art. 176, pp. 219-220.
[13] Ibid, Art. 177, p. 220.
of the Convention, Initial reports of States parties due in 2010, Rwanda, 16 June 2011, 28 pages, p. 9: http://www.refworld.org/
docid/4f1d47d62.html.
[15] United Nations, Committee Against Torture, Convention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment, General Comment No. 3 of the Committee Against Torture, 19 November 2012, 11 pages, p. 9: http://www2.ohchr.
org/english/bodies/cat/docs/GC/CAT-C-GC-3.pdf.
of the Convention, op. cit., p. 6.
[18] Office of the UN High Commissioner for Human Rights, Convention against Torture and other, Inhuman or Degrading
Treatment or Punishment, 26 June 1987, Art. 12, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx.
[19] United Nations Committee Against Torture, Consideration of reports submitted by States parties under article 19
of the Convention, Concluding observations of the Committee Against Torture, Rwanda, 26 June 2012, 9 pages, p. 8:
http://www2.ohchr.org/english/bodies/cat/cats48.htm.
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SUDAN
BACKGROUND
In 1989, Omar al-Bashir came to power with the support of the Muslim Brotherhood
following a military coup d’état. In 2005, after decades of conflict and the death of
more than two million people, the government signed a peace agreement with the
rebels in South Sudan which, following a referendum in 2011, secured its independence. This meant that Sudan lost a significant proportion of its oil revenue
and plunged into an unprecedented economic crisis. In 2011, taking inspiration from
the protest movements that had erupted in Arab nations, Sudanese citizens took
to the streets calling for political change and improved socio-economic conditions.
They were brutally repressed. Between September and December 2011, more than
250 suspected political opponents were arrested in several different regions. Most
were students or supporters of banned opposition party Sudan People’s Liberation
Movement-North (SPLM-N). Many of them were beaten at the time of arrest and
while in police custody1.
At the same time, relations between Sudan and South Sudan were becoming increasingly tense. As well as the question of oil revenues, they clashed over the delineation of their shared border and accused one another of supporting insurgent groups
hostile to the other State. 2012 saw several violent clashes between the two countries. As a result of the ongoing policy to pillage resources and concentrate power
in Khartoum to the detriment of outlying areas, several rebellions have formed in
recent years in Sudan, which is now facing multiple armed clashes in Darfur, Blue
Nile and North and South Kordofan. These clashes regularly result in serious human
rights violations by those involved, who are free to act with complete anonymity.
The conflict in Darfur, which has been ongoing since 2003, has taken on a new
dimension. The long-standing hostility between the Sudanese army and the Sudan
Revolutionary Front now plays out alongside an increasing number of inter-tribal
clashes and local conflicts over economic resources and access to land, water and
pastures. Criminality has reached an alarming scale with the emergence of armed
groups of bandits who pillage and attack the civilian population. This violence forced
more than 300,000 people to flee their villages in 2013. Governmental restrictions on
access to the conflict zones have allowed the authorities to control information and
keep the lid on the country’s human rights situation2.
In Khartoum and other major cities, the protests continued despite the crackdown.
PRACTICE OF TORTURE
Arbitrary arrests and detentions followed by acts of torture and ill-treatment are a
widespread occurrence and particularly affect common law prisoners and anyone
who mounts opposition, whether armed or not, against the central regime.
Victims
Suspected common law offenders are regularly subjected to torture at the time of
arrest or while in police custody. In Sudan, corporal punishment is used against
thieves and criminals. There are no available statistics, so we are unable to say
whether this is a widespread or exceptional practice. On 14 February 2013, Adam
al-Muthna had his right hand and left foot amputated in Khartoum after he was convicted of armed robbery.
Article 152 of the 1991 Penal Code lists “indecent and immoral acts” as an offence,
although it fails to define such acts, and stipulates a maximum sentence of 40 lashes.
Those affected are generally impoverished women, in some cases non-Muslims,
whose clothing is thought by police officers to be inappropriate. This type of violence
is commonplace in urban centres.
As part of the conflicts in Darfur, Blue Nile and North and South Kordofan, civilians
caught up in areas controlled by combatants regularly suffer human rights violations. All sides involved in the conflict have been responsible for many acts of torture against their adversaries as well as civilians considered loyal to the enemy.
The exact scale of these attacks is difficult to determine as access to these areas is
restricted by the authorities.
In Darfur, regular clashes between government forces, pro-government militia
– referred to as Janjaweed – and armed opposition groups have led to persistent
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violence against the displaced population. Members from the Zaghawa and Fur
communities, which are linked to the rebel groups, are particularly targeted. On
2 October 2012, a community leader from the Zam Zam camp for displaced persons
was arrested in Al-Fashir and tortured for several days before being released3. He
was suspected of supporting the Minni Minawi faction of the Sudan Liberation Army
(SLA).
Women and young girls are regularly subjected to sexual violence.
The intense commercial rivalry between communities, especially in the case of Arab
clans and their access to the country’s gold mines, and the land disputes between
nomads and farmers in relation to the destruction of harvests and cattle theft have
resulted in inter-community violence including acts of torture, particularly where
local militia groups linked to those affected become involved.
In North and South Kordofan, those suspected of belonging to or supporting the
SPLM-N rebel group – the Nuba peoples mostly – are persistently exposed to acts
of torture. Between December 2011 and February 2012, women thought to be the
spouses of SPLM-N fighters suffered mass acts of sexual violence, including gang
rape in public, in the villages of Tess, Troji and Jaw4.
In the Blue Nile region, civilians are targeted by the authorities. Since the beginning
of the conflict in September 2011, many suspected SPLM-N members, mostly from
Blue Nile, South Sudan or the Nuba Mountains5, have been arrested and tortured.
In major Sudanese cities, demonstrators are frequently assaulted at the time of
arrest or while in police custody.
During the general election held in April 2010, political opponents were arrested and
tortured in an effort to suppress any opposition to the outcome from demonstrators
in the street and within the media. Those arrested during spontaneous public gatherings were tortured while in detention.
Since 2011, tens of thousands of civilians have demonstrated in many of the country’s major cities, mainly around university campuses, calling for greater democracy
and improved living conditions. Student protest movements such as Girifna (“We are
fed up”) and Sharara (“Youth for change”) in particular have mobilised in peaceful
marches involving at least 100 to 200 people. The law enforcement authorities have
used force (truncheons and tear gas) to break up these events, in many cases arresting the leaders and spokespersons, who are tortured while in detention.
The authorities have also tried to limit citizens’ access to information and block out
any sign of dissidence. Many trade unionists, journalists and human rights defenders
have been tortured in recent years and have had to give up their activities or flee the
country.
One journalist, Somaia Ibrahim Ismail “Hundosa”, produced articles criticising
the actions of the incumbent regime in the conflicts in Darfur and Kordofan. On
29 October 2012, she was abducted near her home in Khartoum by officers from
the National Intelligence and Security Services (NISS). For three days she was illtreated, whipped on several occasions and had her head shaved on the basis that
her hair was closer in appearance to that of the Arabs than the Africans. She left the
country on 6 November 20126.
Human rights defenders working on sensitive issues such as the internal conflicts
constantly live in fear of being arrested and tortured.
A wave of repression was unleashed on these activists following a decision by the
International Criminal Court (ICC) in March 2009 to issue an arrest warrant against
the Sudanese President for crimes committed in Darfur in 2003. Many of them were
detained and tortured or subjected to other forms of ill-treatment. The same occurred
during the electoral period of April 2010 and in the run-up to the January 2011 referendum on the independence of South Sudan.
All of Sudan’s defence and security forces – troops in the Sudan Armed Forces
(SAF), police officers, intelligence officials and prison wardens – engage in acts of
torture and ill-treatment. The NISS and the Sudan Military Intelligence (SMI) are the
main perpetrators of torture. The February 2010 National Security Act provides the
NISS with extensive powers of arrest and detention. Officials can keep individuals in
detention without any legal checks for as long as four and a half months.
In order to crack down on protest movements, anti-riot police use violence and do
not hesitate to ill-treat demonstrators at the time of arrest.
The army and paramilitary militia groups involved in local armed conflicts such as
the Janjaweed or the Popular Defence Forces (PDF7) also practice torture. In Darfur,
the 1997 emergency and public security legislation continues to be applied, allowing
the defence and security forces to enjoy considerable discretionary powers of arrest
and detention without any legal checks8.
Armed opposition groups such as the MPLS-N and the Sudan Revolution Front (SRF)
in Darfur have also been associated with acts of torture.
Torture mostly takes place in police stations, NISS buildings, prisons and the clandestine detention centres dotted around the country, most of which are run by the
army and the intelligence authorities.
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When used as part of the crackdown, torture is designed to punish those who defy
the regime, to prevent them from speaking out or to extract information about their
activities, with the ultimate aim of silencing any potential future opponents.
In the context of the country’s armed conflicts, it is used for the same purposes but
also serves to punish and exercise greater control over entire communities considered to be close to the enemy.
Finally, it is used to extract confessions of guilt from common law detainees and to
impose order in prison facilities.
The most widespread torture techniques are beatings, hanging victims in painful
positions, burns, falaqa*, sexual violence, electric shocks and food, water and sleep
deprivation. Prolonged exposure to extreme temperatures, extended periods of
detention in confined spaces and threats of execution and rape are also used. In conflict situations, acts of torture regularly lead to the death of the victims, who either
succumb to the abuse or are summarily executed.
Sudan is a State Party to the International Covenant on Civil and Political Rights and
the African Charter on Human and People’s Rights, which prohibit the use of torture.
It has also signed but not ratified the Convention against Torture.
Article 22 of the 2005 interim Constitution prohibits torture and other inhuman or
degrading treatment or punishment9. However, the crime of torture is neither defined
not criminalised by Sudan’s Penal Code. The 1991 Criminal Procedure Code simply
stipulates that all detainees should be treated in such a way that their dignity is
protected. Furthermore, in accordance with sharia law, since the 1980s corporal
punishment such as flogging, amputation and stoning has been authorised by law.
According to Article 168 (b) of the Penal Code, offenders can be sentenced to cross
amputation in the case of armed robbery resulting in serious bodily harm or where
the amount stolen exceeds 1,500 Sudanese pounds (around 260 euros).
The 1993 Evidence Act permits the use of confessions extracted under duress as
evidence in court10.
The State has created several mechanisms responsible for promoting human rights.
The Advisory Council on Human Rights, set up in 1992, advises the authorities on
human rights issues, receives allegations of human rights violations and trains public officials in human rights standards and principles11. NGOs and individuals can
bring cases to the Council through a complaints commission. The independent
National Human Rights Commission, which was first established in April 2009, can
receive complaints relating to alleged human rights violations. In practice, these two
State bodies are unable to provide true protection to torture victims or help them
secure justice for the abuses suffered12. After four years in existence, the National
Human Rights Commission has yet to receive accreditation from the International
Coordinating Committee of National Human Rights Institutions13.
Sudan suffers from a widespread culture of impunity. In the absence of legal steps
to criminalise torture, officials from the defence and security forces cannot be prosecuted for acts of torture. They also benefit from immunity against legal action for all
human rights violations carried out in the course of their duties (2007 Armed Forces
Act, 2008 Police Act and 2010 National Security Act). The insufficient number of
courts and institutions responsible for law enforcement throughout Sudan makes it
difficult for those living outside the major urban centres to gain access to the justice
system, thus contributing to this climate of impunity.
Furthermore, where legal action is taken, the judiciary suffers from a cruel lack of
independence and efficiency. The various legal bodies put in place by the authorities,
and in particular the special criminal courts in Darfur, have proved to be ill-suited
and incapable of prosecuting and convicting those directly and indirectly responsible
for abuses. Just 25 military personnel and 8 police officers were arrested as part
of the 10 investigations opened by the office of the special prosecutor appointed to
investigate crimes committed in Darfur since 200314.
Added to this is the lack of any measures to provide victims with damages or
compensation15.
The inability of the authorities to sanction those responsible for acts of torture can
be seen from the many obstacles used to hinder the ICC’s work on crimes committed
in Darfur. None of the individuals targeted by ICC arrest warrants since 2009 has
been handed over to the international body or prosecuted in Sudan for the crimes of
which they are accused.
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[1] Human Rights Watch (HRW), Sudan: End Violence against Peaceful Protesters, 3 January 2012:
http://www.hrw.org/news/2012/01/03/sudan-end-violence-against-peaceful-protesters.
[2] “Briefing : La situation humanitaire au Darfour”, www.irinnews.org/fr, 20 August 2013: http://www.irinnews.org/fr/
report/98607/briefing-la-situation-humanitaire-au-darfour.
[3] United Nations, Security Council, Report of the Secretary-General on the African Union-United Nations Hybrid Operation
in Darfur, 15 January 2013, 16 pages, pp. 10-11: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2013/22.
[4] International Crisis Group, Sudan’s Spreading Conflict (I): War in South Kordofan, Africa Report N°198, 14 February 2013,
63 pages, p. 31: http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/sudan/198-sudans-spreading-conflict-i-war
-in-south-kordofan.pdf.
[5] Amnesty International, “We had no time to bury them”: War crimes in Sudan’s Blue Nile State, June 2013, 74 pages, p. 37:
http://www.amnestyusa.org/sites/default/files/afr540112013en.pdf.
[6] Committee to Protect Journalists (CPJ), Sudanese journalist found after being abducted, tortured, 5 November 2012:
http://cpj.org/2012/11/sudanese-journalist-found-after-being-abducted-tor.php.
[7] Immigration and Refugee Board of Canada, Sudan: the Popular Defence Forces, 18 May 2011:
http://www.refworld.org/docid/4f15182d2.html.
[8] United Nations, Human Rights Council, Compilation prepared by the Office of the High Commissioner for Human Rights
in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1, Sudan, 24 February 2011, 16 pages, p. 9:
http://www.refworld.org/docid/4d9f009a2.html.
[9] United Nations, Human Rights Council, National report submitted in accordance with paragraph 15 (a) of the annex
to Human Rights Council resolution 5/1, Sudan, 11 March 2011, 33 pages, p. 27: http://www.refworld.org/publisher,UNHRC,,SDN,
4dbfe5302,0.html.
[10] United Nations, Human Rights Council, Compilation prepared by the Office of the High Commissioner for Human Rights,
op. cit., p. 8.
[11] United Nations, Human Rights Council, National report, op. cit., pp. 5-6.
[12] REDRESS, Comments to Sudan’s 4th and 5th Periodic Report to the African Commission on Human and People’s Rights:
article 5 of the African Charter, prohibition of torture, cruel, degrading or inhuman punishment and treatment, April 2012,
14 pages, pp. 7-8: http://www.redress.org/downloads/publications/1204%20Commments%20to%20Sudans%20Report%20-%20
Legislative%20Reforms.pdf.
[13] Network of African National Human Rights Institutions (NANHRI), Members of the Network of African National Human Rights
Institutions: http://www.nanhri.org/index.php?option=com_content&view=article&id=107&Itemid=828&lang=en.
[14] United Nations, Security Council, op. cit., p. 2.
[15] REDRESS, op. cit., p. 11.
© Paula Bronstein / Getty
Members of the Rohingya
minority Muslim group, victims
of persecution. Burma.
© Bruno Stevens / Cosmos
Mohamed Ibrahim, 31 years old,
was tortured for five days
by police before being
brought to Abu Salim prison.
Tripoli. Libya.
© Vlad Sokhin / OHCHR / Focus / Cosmos
Simon (15 years old),
arrested in a state of intoxication,
and Alu (9 years old), suspected
of stealing a telephone, were
placed in a cell alongside adult
prisoners after they were
beaten by police for several days.
Papua New Guinea.
© Étienne Laurent
Cissa revisits the cell in an Islamic prison
where he was detained and beaten before
having his arm amputated for shoplifting.
Gao. Mali.
© Arantxa Cedillo 2011
Daily exercises followed
by the national anthem
at Somsanga detention centre.
Vientiane. Laos.
© Arno Brignon / ACAT
Abdoulaye Saw,
an asylum seeker
supported by ACAT.
Mauritania / France.
ANALYSIS OF
THE PHENOMENON
OF TORTURE
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A WORLD OF TORTURE . ACAT 2014 REPORT . ANALYSIS OF THE PHENOMENON OF TORTURE
“I started to wish they would kill me
so that I would no longer feel fear”
testimony of a migrant who was tortured in mexico
Background
Every year a little over 400,000 undocumented migrants from Central America travel
through Mexico to reach the United States, where they hope to find work and better
living conditions. 90% of them are from Honduras, where extreme poverty, insecurity
and structural violence are highly prevalent, especially since the coup d’état in June
2009. These migrants usually travel in very dangerous conditions, on the roof of a
freight train, following the main transport routes that cross Mexico from Chiapas or
Tabasco states in the south to the six border states in the north. In a climate of total
indifference, they undertake a long (15 to 20 days) and treacherous journey.
This is an extremely lucrative business for criminal gangs, who exploit the migrants
(through prostitution and forced labour networks), assassinate them or subject them
to enforced disappearance, having first sequestered and racketeered them. In many
cases, these gangs have arrangements with members of the army, the municipal,
state and federal police forces, and the National Migration Institute (INM), which is
responsible for enforcing migration laws.
Transit migrants are also direct victims of excessive force, sexual assault, threats,
ill-treatment, extortion, violent arrests, arbitrary detention and torture at the hands of
State representatives. This violence often leads to acts of manipulation designed to
incriminate the victims in serious offences and/or deport them quickly.
The city of Saltillo, in Coahuila state, is the point of departure for three railway lines
to Texas. Many migrants stop here before continuing their journey.
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ANALYSIS OF THE PHENOMENON OF TORTURE . A WORLD OF TORTURE . ACAT 2014 REPORT
Saltillo has seen a sharp rise in violence over the last several years as cartels fight
over the territory. Members of the joint forces (military and federal police), municipal
and state police also have a strong presence in the city, where they conduct brutal
operations. Migrants, who are targeted by high levels of xenophobia, racism and discrimination, are the first to fall victim to this tense situation.
In February 2012, a former military officer was appointed director of the municipal preventive police force by the city’s mayor. He created an “elite” unit made up
of soldiers, known as the Saltillo municipal operational response group (GROMS).
Its members exceed their mandate, taking charge of investigations and occasionally
committing serious human rights infringements, especially against migrants. The
usual format for these abuses is for migrants to be arbitrarily detained and tortured
and then forced to confess before a judge to the offence of which they have been
accused so they can be released on bail and ultimately returned to their home country. According to the law, this system allows them to serve out their sentence while
on conditional release, but in practice, once they have paid the required sum they are
taken to the INM and immediately deported.
The Casa del Migrante in Saltillo reported that GROMS officers were responsible for
11 cases of torture involving 35 victims in the first half of 2013. Among other services, the NGO offers legal aid to migrants wishing to file criminal complaints and take
the necessary steps to secure a humanitarian visa as victims of torture. However, in
most cases migrants live in fear of reprisals and simply wish to return home.
To ensure his safety, the witness’ name and surname have been changed.
Testimony
“My name is Alberto Sierra Díaz. I am 23 years old. I live with my girlfriend and our
two sons, aged six and 10. I come from the city of San Pedro Sula in Honduras, where
I used to work as a stonemason. I earned very little money (three dollars per day), not
enough to feed my family. Because of the lack of available well-paid work, as well as
the poverty my children had to endure, I decided to look for a better future elsewhere.
I wanted to go to the United States, to New Orleans where one of my uncles lives,
in the hope that he could help me find work. I was aware of the danger of travelling across Mexico, as one of my relatives had told me about it. The government in
Honduras also issues warnings about the risks involved. But because we were so
poor, I had to do something. It was hard to see my family suffering.
I left with very little money and no documents. I was travelling with one of my neighbours, but when we arrived in Chiapas state, we were chased by officers from the
National Migration Institute. He was caught but I managed to get away. I decided
to take the train on my own. Initially everything was fine. I stopped at an inn called
Hermanos en Camino in Ixtepec, in Oaxaca state. Then, when I left the train in San
Luis Potosí, I went into a small shop to buy something to eat and drink. I met a
Guatemalan and we started chatting. We went off together to look for a refuge for
migrants known as Casa de la Caridad Cristiana, where we rested for a day and night,
then we decided to travel together to protect each other on the journey.
On 15 May, we arrived in Saltillo and got off the train to take a break. We walked along
the tracks and under a bridge we saw a petrol station and a 7Eleven. There we met
four other Hondurans who were also following the tracks. We talked to them for a
while and decided to pool our money to pay for a hotel. We also wanted to buy some
clothes. We thought we would keep heading north the following day. We went into
one of the first cheap hotels we saw in the centre of the city. We were worried we
would attract attention walking around the city in a group, so we split up. We arrived
at the hotel between 7 pm and 8 pm. We had to take three rooms in total. I shared one
with my Guatemalan friend. We left our belongings and went to meet the others in
their room. When we arrived, they were all there already chatting and watching the
telly. Some of them were drinking beer and a few were smoking cannabis.
At around 10 pm, there was a knock on the door. One of the Hondurans went to open
it. There was a group of masked men wearing black uniforms and black helmets
standing outside. Six of them came in and shouted: “Everyone on the ground!” At
no point did they tell us who they were or what they were doing at the hotel. Initially
we thought they were officers from the National Migration Institute. But because of
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their behaviour, we weren’t sure if they were really public officials or members of
a criminal gang who wanted to recruit us, kidnap us or kill us. One of them moved
towards me and kicked me in the face because I was watching them beat the others,
then he kicked me four more times in the head. They spent 15 minutes in the room
beating us. They kept insulting us and threatening us. They shouted: “Dirty fucking
Central Americans, we’re going to make you suffer, we’re going to rid this country of
your filth, since your own fucking country won’t do it. We’re going to blame you for
pushing drugs in Saltillo, at the end of the day you’re worth nothing, no one’s going
to worry about you. Bunch of assholes, we’ll help you stay in Mexico, in prison!” They
asked us what cartel we belonged to and pointed their guns at us. I started thinking
they would end up shooting me in the head.
Afterwards, they told us to get up and handcuffed and blindfolded us. They kept
punching me in the stomach. They led us out of the room and put us into the back
of a patrol vehicle in which three other guys were waiting, without telling us why
we were being arrested. They kept us blindfolded throughout the journey so that we
wouldn’t recognise the route or the location where they were taking us. They had put
all six of us sitting down, they kept kicking us and prevented us from talking. They
said we were going to suffer, that what they had done was nothing and that we hadn’t
seen anything yet. We heard a radio and some conversation and worked out that they
were police officers from the GROMS. I realised we were leaving the city because
there was less and less noise from traffic and other sounds you usually hear in the
city. I think the journey lasted around 20 minutes.
We suspect the staff at the hotel warned the police. There was also a municipal police
station a block away, so it’s possible that officers saw us go in and raised the alert.
We now know that we were taken to La Torre hotel outside Saltillo. But we didn’t know
that at the time. I thought we were at a ranch. Through small holes in my blindfold, I
managed to see lights and cars outside. We could hear dogs barking. They even set
one on me and he started to bite my left leg. Then they put each of us in a room and
started to interrogate us. They asked: “Who do you work for? Are you with the Zetas
or the Golfo cartel?” At the beginning they kicked me in the stomach while I was on
the ground and punched me in the ribs, stomach, chest, back and neck. Then they
started hitting my legs with an iron bar and they tied me to a mattress that they had
moistened. They used it to conduct electric shocks. Then all of a sudden, they untied
me and pushed my head into a basin of water or a plastic bag. Finally, they started
putting a gun to my head to make me think they wanted to kill me. One police officer
would say to the other: “Go on, take him down! Go on, kill them!” Then I’d hear the
trigger snap (“click”), but there was no bullet. I was terrified and really stressed,
I started to wish they would kill me once and for all so that I would no longer feel
fear. All this lasted around 19 hours, during which time they only allowed me to rest
for 40 minutes to two hours at a time.
I know they did the same to the others because I could hear them more or less
clearly, screaming in pain and begging the officers not to hurt them anymore. Then
everything would go quiet and the screams would start up again after a while, as
if the officers were dealing with us one at a time. Occasionally I heard shots and I
thought they really had killed the men in the other rooms.
After that, they brought us all together and forced us to write out the names of drugs
on a sheet of paper. I just wrote crack, coke and cannabis, because I don’t know any
others, but they made me write them lots of times, saying that if I didn’t they would
kill me. Then they made us add figures on the side to indicate the quantities of each
drug. They said: “You’re going to have a tough time at the CERESO1, you’ll get 10
years”. They threatened to hurt our families in Central America and said we would
never see them again. When we had finished writing, they stopped beating us. One
of the guys with us was a minor, just 17 years old, and he had to tear up the birth
cert that he had brought with him. They threatened to kill him so that he wouldn’t say
anything and so he could appear before an adult court. I saw them force him to rip
up the piece of paper.
Then they put us lying down on a mattress for around half an hour, and at around
6 pm, they drove us to the prosecutor’s office. While we were driving, they took off
our blindfolds for the first time. They threatened to kill us inside the prison if we told
anyone about what they had done to us. We spent the night there. The following day,
they called us in and showed us what we had written, the drugs and the quantities.
We didn’t talk about the torture, but we told the public prosecutor that the police officers had not found us selling drugs on the railway line. They didn’t care and seemed to
be complicit with the GROMS. They didn’t allow us to make any phone calls. A doctor
came to sign some papers, but he didn’t talk to us and certainly didn’t carry out an
examination. A lawyer showed up too, but he didn’t talk to us either. He just came
in, said hello to the officers, signed some papers and left. I felt weak and there were
times when I was afraid, I thought there was nothing else we could do and that everything had been arranged to send us to prison. The officers didn’t mistreat us, but
they didn’t answer our questions either. I felt that all was lost and I was sad thinking
about my family, thinking that I would never see my children again. I was also angry
for having put myself in that situation, for having been in that hotel room when the
GROMS officers showed up. That same day, on 18 May, they placed us in pre-trial
detention in the male prison in Saltillo.
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At the beginning of June, we appeared before the criminal court in Saltillo. There, the
lawyer did talk to us and told us that our best option was to accept all the charges
because the offence was not considered to be serious, and we could be released on
bail and quickly get out of prison. But if we decided to plead not guilty, the trial could
last between one and one and a half years, with no guarantee that we would win.
We pleaded guilty and signed the documents so that we could get out quickly. The
lawyer told us that the judge had agreed to release us on bail. We were all convicted
of being in possession of drugs with the intent to sell and sentenced to three years
and nine months in prison, or to pay bail of $1,500 and a fine of $4,900 to get out on
conditional release, with a requirement that we sign a register each week. We didn’t
report the acts of torture to the judge for fear of reprisals once in prison, just as the
GROMS officers had warned us.
I am still in prison with the other migrants, in an area reserved for common law
offenders. The wardens treat us well and allow us to work to make enough money
to pay the bail and the fine. So far we haven’t been given any medical examination. Almost all signs of the torture are now gone. In psychological terms, we have
received very little attention.
Fortunately, the Casa del Migrante has supported us. They heard about us when the
media reported our detention, referring to “migrant drug dealers”. They know of
other cases of migrants detained and tortured by GROMS officers. So they contacted us through other migrants who are also in prison. They visit us and they have
listened to our testimony. They have explained our legal situation and informed the
Honduran consulate. They said we could file a complaint of torture, but I just want to
get out of this country and never come back. I’m angry at the Mexican authorities.”
Testimony recorded by Javier Martínez Hernández, a lawyer at the Casa del Migrante in Saltillo.
[1] CERESO is a social rehabilitation centre, i.e. a prison.
Torture as pretext
Torture and conflict of meaning
antoine lepas-douand, writer
« Songe aux souffrances taillées sous des voiles fautifs »
Paul Éluard
Ethnologist Pierre Clastres explains that the initiation of young Guayakis, nomadic
Indians from Paraguay, is carried out in two stages. The first, at the age of around 15,
which allows the child to gain hunter status and engage in sexual relations, involves
violently piercing the lower lip. The second, which takes place six to eight years later,
allows the young hunter and lover to get married and raise a family, allowing him to
become a “big person” and a fully-fledged member of the tribe. This stage, known as
jaycha bowo (which one might translate as “slicing the tattoo”), takes place as follows:
“They wait until the sun is at its highest point. The young man wraps his arms
around a sloping tree trunk, lying on his stomach with his back exposed and skin
pulled taut. The “slicer” uses a stone to make a deep incision from the top of the
shoulder to the highest point of the buttocks. This is not a small or superficial incision, as would be the case for example with a bamboo shard that has been cut like
a razor; the man’s back is literally sliced, all the way through the skin.
In order to carve out such a groove, using an instrument that offers nowhere near
the same cutting capacity as bamboo, you need a firm hand as the skin resists.
The “slicer” uses all his strength to tear the skin. The entire surface of the back is
scored in this way with straight parallel lines, from one shoulder to the other. There
are at least ten incisions. The blood flows freely, covering the young man as well
as the arms of the man wielding the stone, the tree trunk and the ground all around
them. The pain is atrocious, say the Guayakis: nothing like the lip piercing [...].”
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“The jaycha bowo rite of passage nearly kills the subject. Yet, as during the lip
piercing, the young man cannot be heard cry out or whimper; he will sooner lose
consciousness, his teeth tightly clenched. It is his silence that measures his bravery and his right to be considered an accomplished man1.”
This ritual of initiation is not arbitrary or without meaning: the actions described
reflect a very specific understanding of the world. At the beginning, the Guayakis
believe, there was only daylight as the unmoving sun scorched the Earth. A man who
was walking with his uninitiated son saw a large cauldron as he rounded a bend in
the path. He warned the child not to touch it, but his son disobeyed him and broke
the cauldron as he struck it with his club. A torrent of ash flowed from the crack in
the cauldron, bringing with it terrifying and perpetual darkness that blanketed all
things. Wax was thrown on the fire, and the world came to be as it is today, with a
regular and structured alternation between day and night. But the risk of returning
to disorder – to darkness – has not gone away, and sometimes in the heavens there
appears “a great blue jaguar rushing towards the moon or the sun to devour them”2
(this is how the Guayakis interpret the phenomenon of lunar or solar eclipses). If the
Jaguar were to succeed in devouring one of these celestial bodies, “mankind would
once again be condemned to live in perpetual light or perpetual darkness, heralding
the end of the world.
“So we are very frightened and spare no effort to prevent that from happening. [...]
And men, using their stone axes, furiously slice the Earth”3. Just as an uninitiated
boy once sliced the cauldron open and freed the darkness, allowing for the structured alternation between day and night, so, too, do men slice the Earth to prevent
the blue jaguar from destroying the world order.
In the same way, for the Guayakis, the desire to remain an impenitent bachelor
when you can have a woman would be to introduce disorder into society. One
must make room for future generations and occupy a new role, one that is predetermined; the group forces the individual to recognise himself in order for society
to endure. Throughout the long intermediary period between the lip piercing and
the jaycha bowo, the young man can do as he pleases as the group tells him he can.
But there comes a time when the group tells him it’s over. The ordeal of suffering makes this clear. [...] The blue jaguar threatens the order of the cosmos when
he tries to devour the sun and the moon; and the young man threatens the order
of society if he refuses to become an adult. A bachelor is like a jaguar within the
community: in order to prevent a return to chaos in the skies, the Guayakis slice the
earth with their axes, and in order to prevent similar chaos amongst themselves,
they slice the back of the young man. Scored skin and a scarred Earth: these two
markings are one and the same4.”
The strange “logic” of torture
This highly detailed description of the initiation ritual and of the Guayaki cosmology
that lends it its meaning provides us with a starting point for the issue addressed in
this article.
Although to our eyes this ritual appears to bear all the characteristics of torture,
it nonetheless takes place in a specific and structured religious context. Far from
being an expression of unbridled anger, it is in fact perfectly ordered and fastidiously
structured in a way that allows the tribe to achieve its most vital objective: maintain
the established social order – preserve the world as it is. No more, no less.
Yet although the structure and sequence of the underlying causes outlined by the
ethnologist in order to explain the reasons behind the ceremony may be intellectually accessible to us 21st-century Westerners, it is impossible for us to subscribe to
this phenomenon. This is about much more than a simple disagreement between the
Guayakis and us about an issue that we could discuss; the meaning attributed to the
ritual has, for us, a kind of exteriority and radical strangeness that make it impossible
even to discuss.
The strangeness of inscribing the tribe’s structuring principle on the backs of its
members in order to preserve social order presents a challenge for anthropologists,
who can do no more than recognise their inability to penetrate the Guayaki logic.
They are unable to understand this people “from the inside” and must settle for a
presentation of the reasons for their behaviour. Nonetheless, this strangeness represents an opportunity for us, as it allows us to “see” certain things that usually remain
hidden from view.
Yet there is no need to travel to the ends of the earth or step back in time to experience such strangeness:
“Capital punishment includes all kinds of deaths: some are sentenced to be hanged,
others to have their hand cut off or their tongue cut out and pierced and then to be
hanged, while others, convicted of more serious crimes, may be burned alive and
left to die a horrible death, having had their limbs cut off. Others may be broken
until they die naturally, or sentenced to be strangled; others to have their tongue
cut out or pierced and then to be burned alive; others to be drawn and quartered,
others still to have their head cut off, and others, finally, to have their head broken5.”
This text is taken from 17th-century France. It is a detailed inventory of the common
methods used in the penal system as governed by a royal order issued in 1670. As
in the case of the Guayakis, these punishments form part of a very specific ritual
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which, as noted by Michel Foucault, must not be seen as “an extreme expression of
lawless rage”6. This, too, is a form of legal, structured and controlled violence. There
is nothing arbitrary about the way sentences were handed down; indeed, there were
precise adjustments to connect the gradation of punishments to the seriousness of
the crime.
“Torture correlates the type of corporal effect, the quality, intensity, duration of
pain, with the gravity of the crime, the person of the criminal, the rank of his victims. There is a legal code of pain; […] punishment […] is calculated according to
detailed rules: the number of lashes of the whip, the positioning of the branding
iron, the duration of the death agony on the stake or the wheel (the court decides
whether the criminal is to be strangled at once or allowed to die slowly, and the
points at which this gesture of pity must occur), the type of mutilation to be used
[…]. All these various elements […] are combined according to the court and the
crime7.”
Here we see the same disconnect as in the case of the Guayaki initiation: we can
comprehend the internal consistency of such practices, the logic behind the application of these sentences, yet we are unable to subscribe to it.
This raises a disturbing parallel – cultural differences notwithstanding – between the
suffering inflicted by Indians in Paraguay and the atrocities perpetrated by the French
kingdom during the age of Enlightenment. The fact that the former is something to
which all young members of the community are subjected, while the latter were used
to punish and dishonour, reserved for the most serious crimes, should not disguise
the fundamental similarity between the two rituals: both serve the same expiatory
function. Both are part of the same sacrificial endeavour to maintain social order.
In the former, the aim is to preserve the fundamental balance between day and night,
while in the second it is to restore the divine order embodied by the sovereign. Crime,
as an attack on social order, is an attack on the sovereign, who then restores order
by demonstrating that he is all-powerful: he has the power to break up, fragment and
annihilate the body of the culprit.
This notion of fragmentation corresponds to what Foucault most insightfully calls a
“code of pain”. Each organ has its own punishment. These acts of torture are inflicted
in accordance with a very carefully thought out structure, covering the convict’s
body by following a codified path that leads to a crescendo, echoing the gradation of
crimes of which he has been found guilty. In this sense, these acts are like a form
of writing whose syntax is reflected in the sequence with which the victim’s limbs
are removed, and whose alphabet is made up of letters such as “lash of the whip”,
“burn”, “drawn”, “strangulation”, “suffocation”, “asphyxia”, “amputation” and so on.
In these two rituals, that which appears strange to us is not so much their purpose
– to maintain social order – as the method used – inscribing the punishment on the
victim’s body. We can explore the strangeness of this salvific approach by studying how
literature plays on it, and what this can tell us about our own relationship with torture.
What do we find so intolerable about the infliction of suffering? The torture itself? Its
manifestation? Or perhaps its absurdity?
The incongruity of suffering used as a literary artifice
to denounce torture
Literature plays on the strangeness of torture. It uses the drama of torture to
denounce this atrocity in a way that is much more effective than any intellectual
argument, and in this way it invites us to identify what it is about torture that we find
so intolerable.
In the penal Colony, by Franz Kafka, tells the story of an ill-disciplined prisoner and
his hardship as he is sentenced to a particularly cruel death: a machine designed
with steel needles shaped like a harrow slowly inscribes the text of the regulation
broken by the culprit all over his body. For almost 12 hours, the needles, carefully
designed to increase gradually in intensity, penetrate deeper into his body until they
finally cut right through him and he dies. The officer responsible for ensuring the
machine runs smoothly explains to an astonished onlooker why it operates so slowly
and why the torture is so “apparently” cruel:
“For the first six [hours] the condemned man lives almost as before, only experiences pain. […] But how quiet the man comes to be in the sixth hour! The very dimmest of them begins to understand. […] The man begins to decipher the script, he
purses his lips as if he were listening. As you’ve seen, it’s not easy to decipher the
script with one’s eyes; our man deciphers it with his wounds. Admittedly, it’s hard
work; and takes six more hours to complete. At the end of that time, the harrow
pierces him through, and tosses him into the pit8.”
In the fifth Harry Potter adventure, a new teacher called Dolores Jane Umbridge terrorises the pupils at Hogwarts. She gives Harry a punishment which initially seems
rather trivial: he has to write out a single sentence many times using a quill provided by the teacher – until “the message has sunk in”9. But of course, the quill is
enchanted:
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“Harry placed the quill on the parchment and wrote: “I must not tell lies”.
“He let out a gasp of pain. The words had appeared on the parchment in what
appeared to be shining red ink. At the same time, the words had appeared on the
back of Harry’s right hand, cut into his skin as though traced there by a scalpel.”10
The inscription on his skin becomes deeper and more painful and lasts longer with
each line he writes.
“He stood up. His hand was stinging painfully. When he looked at it he saw that the
cut had healed, but that the skin there was red raw.
[…] Tut, tut, I don’t seem to have made much of an impression yet’, [Umbridge] said,
smiling. ‘Well, we’ll just have to do try again tomorrow evening, won’t we?’”11
In both of these accounts, the unease felt by the reader reflects the incongruity of the
punishment described. Torture is exposed in its rawest state; indeed there is nothing
else to see, no signifier in which to seek meaning. Such acts appear to be hideous
and unjustifiable remnants of an age long since passed.
How is it possible, in the early 21st century, to believe that this process of inscribing
a message on someone’s body can allow them to attain some kind of profound or
spiritual understanding of the law? How is it possible to believe that the law can be
assimilated to a form of carnal “impregnation”? For us, the mind and body do not work
in this way. The separation of body and soul, made possible by Cartesian thought,
tore asunder the similarities between the two so favoured during the Renaissance
period12. The notion of a structured cosmos, understood as a single entity all of
whose components relate to one another13, was replaced by a dualist vision of the
world, that of the human mind and ideas on the one hand, and the physical world on
the other. The objects of the latter appear to the former as “phenomena”14: the human
mind operates outside of the physical world and contemplates it through the mediation of ideas. Body and mind are no longer linked in any fundamental way. They do
not function in the same way. They are not of the same world.
In the eyes of the reader, therefore, there is nothing left but a torture victim devoid of
all meaning, except to signify the cruel intentions of his torturer.
The absurdity of torture and its public nature anger readers
Today, torture no longer makes any sense in and of itself, i.e. as a demonstration
of restorative power. As a demonstration: the public nature of the punishment has
become intolerable as its pedagogic dimension has lost all legitimacy. As restorative
power: we no longer have a holistic perception of the universe as an entity that is
unified and structured by supposedly “reparative” acts15.
However, the horror with which we universally receive such texts does not mean
that torture has become intolerable for us.
For although torture no longer makes sense, some of the practices that constitute
torture have nonetheless flourished in the Western world, long after penitentiary torture in public places was eradicated. Not only did torture not disappear at the end of
the 18th century, but it is also regrettably clear that it actually developed and regenerated itself and that it is now practised on a massive scale to everyone’s knowledge.
What angers readers, therefore, is not the fact that torture exists, but rather acts
of torture that are endowed with this pedagogic dimension, emphasised time and
again. The social norm is inscribed on the victim’s body so that it may be understood,
assimilated, digested. Torture is the instrument of this digestion. It is this which is
bereft of meaning and is intolerable. Intolerable because it is bereft of meaning.
Inscribing punishments on the human body came to be intolerable because it is a
form of writing, and all forms of writing are intended to have a normative purpose.
But when it is a question of breaking down the resistance of a terrorist who may
have certain information that could foil a hypothetical plot against Westerners, that
is another matter. His body can be beaten, mutilated, burned, electrified or scarred,
because the aim is no longer to communicate a message but instead to extract it. The
aim is still to use the body to reach the mind, but for the purposes of breaking rather
than educating it. If it can help avoid the death of thousands of innocent people, many
of us might say, should we not tolerate such practices? Or at the very least show
some level of comprehension to those who engage in them?
The international community (rightly) denounced the Soviet Gulags, Chinese laogai
camps and other camps used for labour and indoctrination, because we find such
“pedagogic” torture, designed to steer the errant citizen back onto the right path,
to be intolerable. But when it comes to denouncing all forms of physical torture,
including those ostensibly perpetrated to avoid attacks against innocent people, or
the “ordinary” acts of torture carried out on common law detainees in forgotten jails,
it would appear that we become more circumspect. The anger caused by such acts
is less virulent and more measured. We are all aware that torture continues to be
perpetrated as part of the war against terrorism and in countless custodial facilities
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worldwide, yet who speaks of this phenomenon, who continues to be appalled by it?
We see Kafka’s machine and Umbridge’s punishment as indecent for two main reasons: because the incongruity of the meaning that the torturer associates with his/
her role completely delegitimises it in our eyes, and because we are compelled to
witness such absurdity. But if the same deeds are carried out for a less “strange”
purpose or in the secrecy of some dungeon, our anger does not well up with such
intensity.
It is clear that we do not wish to be taken hostage by the torturer, to be called upon
to approve the laceration of another man’s body, even if the reason behind such an
act does not seem quite so strange, such as the extraction of “vital” information. In
the context of the fight against terrorism, it would appear – regrettably – that torture
is accepted by many of us, provided that the torturer has the decency to perform
his work out of sight. Modern society seems to be resigned to tolerating this kind of
torture.
This use of torture may be controversial, but it is considered worthy of debate. Yet
the very fact of debating something already constitutes defeat. Human rights activists must nonetheless engage in this “debate” with anyone who is undecided, and
they should do so with all of the discipline and tolerance needed to show the utmost
respect to their interlocutors. But at the same time they must be aware that such a
debate or discussion constitutes a regressive step, for if a particular form of torture
is “debatable”, this implies that it is no longer “strange” and that it is no longer considered to be irretrievably bereft of meaning.
Some forms of torture have disappeared while others persist
Since 11 September 2001, it is only public manifestations of torture that are ultimately unacceptable for Westerners. This became clear in May 2004, when images
of detainees being tortured in Abu Ghraib prison in Iraq were splashed across our
screens. The public anger was instantaneous, unanimous and global. 21st-century
television viewers found themselves looking at images which, once in the public
domain, could be interpreted as a macabre mise-en-scène, a most despicable drama,
an act of torture in the public sphere that reminded all of us of the earlier pedagogic
dimension of torture, the notion that torture must be perpetrated in plain view so that
the restorative power of the regency – in this case the US, which had been undermined – could be fully exercised.
But as soon as the images disappeared from our screens, the vigilance of the media
and public opinion immediately began to wane. Several studies, reports and documentaries have since shown that torture practices persist, yet nothing has been
done. The wider public is no longer horrified. Manifestations of their anger have
become more feeble, less urgent. Pragmatism is once again the dominant response.
Some may argue that this dulling of our conscience is just as natural as the awakening which preceded it, and that our disgust is simply generated by the appalling and
intolerable sight of the act of torture itself. This implies that the disappearance of
these images of battered bodies “mechanically” brings an end to our horror.
However, this argument fails to take into account the following surprising fact: the
image that has circulated more than any other and has become iconic of the torture
in Abu Ghraib is that of a man standing on a box, wearing a black hood that covers
his entire face, with his arms outstretched and his fingers attached to electric wires.
He appears to be naked under the black sackcloth covering his body. The image does
not suggest that the man is writhing in pain. Perhaps he has already been tortured.
He almost certainly will be in the minutes that follow. His suffering is on hold, it is
imminent. You can sense its presence all around him, the terrifying prospect fills the
room, yet the scene appears to be suspended in a way that reinforces its dramatic
aspect16.
It was not so much the sight of a body being tortured that fascinated and horrified
the public, it was the dramatization of the act that brought us back in time to an age
we would sooner forget.
Words to shroud the ill deeds of the past
Ultimately, the only acceptable meaning of inscriptions on a human body appears to
be that which the torture victim himself tries to express. When we move from fiction
to testimony recounting real events, the narrative takes on a new dimension. The
traces left on the victim’s body could not make sense alone, so it falls to the victim to
decipher them for us. In doing so he takes a step back, albeit unable to fully escape
the ordeal. Stories of concentration camps, from Primo Levi to Varlam Shalamov,
can be understood as a desperate attempt to regain possession of one’s body, using
words to shroud the ill deeds of the past:
“Our superiors, supervisors, overseers, camp administrators, guards had all been
to Kolyma, and Siberia had signed its name on each of their faces, left its mark, cut
extra wrinkles, and put the mark of frostbite as an indelible brand!” wrote Varlam
Shalamov in an account of his experience at the Gulag.
Here, literature acts as an impossible vehicle for the unspeakable. It is the writing by
the man to undo the writing on the man.
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“It is not an abstract body, but the suffering flesh of a prisoner who has had his
bodily functions altered by hunger and deprivation. The law of the camp, which
makes it the reference point for what is real, the last word you might say, manifests
itself in the inevitability of the body as the starting point of any narration. The body
is not only that which asserts the authenticity of the writing, it is the writing itself,
the locus of writing.”17
In this impossible quest, the victim’s account sometimes appears to overlap the pedagogic intention of the torturer: “A young body whose skin had seen all its folds
smoothed over, all of its wrinkles disappear, a body that had understood, said and
explained everything”18.
But the comprehension instilled by suffering is not that which the torturer intends.
By breaking down the mechanisms of the concentration camp, the writer buys back
the defilement of his body. He attacks the very foundations of torture, exposing its
underlying intentions and its effects. The writing of the suffering body becomes an
expression of life itself19.
In this way, the torture victim makes sense of something that was once bereft of
all meaning. In contrast to the “pedagogy” of the torturer, who sought to reduce his
victim to no more than a recipient of his views, the body’s words free the victim by
inverting the mechanism by which meaning is produced. The torture victim is given
the right to express the meaning of the suffering body, to disqualify the writing on the
body through the writing by the body, which re-establishes the victim as the author
of his own existence, of his own desires, joy and suffering.
[1] CLASTRES, Pierre, Chronique des Indiens Guayaki, Paris, Plon, 1972, p. 131. Translated from the French.
[2] Ibid, p. 127.
[3] Ibid.
[4] Ibid, p. 133.
[5] SOULATGES, Jean Antoine, Traité des crimes, I, 1762, pp. 169-171. Translated from the French.
[6] FOUCAULT, Michel, Discipline and Punish, New York, Random House, 2012, 352 pages, p. 33.
[7] Ibid, p. 34 (author’s italics).
[8] KAFKA, Franz, In the Penal Colony, London, Penguin, 2011.
[9] ROWLING, J. K., Harry Potter and the Order of the Phoenix, Pottermore Limited, 2012, Chapter 15.
[10] Ibid.
[11] Ibid.
[12] FOUCAULT, Michel, 'La prose du monde', in Les mots et les choses. Une archéologie des sciences humaines, Paris, Gallimard,
1966, 404 pages.
[13] CASSIRER, Ernst, Individu et cosmos dans la philosophie de la Renaissance, Paris, Les Éditions de minuit, 443 pages, 1983.
[14] DESCARTES, René, Meditationes de prima philosophia, Paris, 1641.
[15] The widespread incomprehension – even among many Catholics – of the doctrine of indulgence, and especially
the difference between indulgence and absolution, is a particularly clear manifestation of this.
[16] In fact, the stress position in which the man is being maintained is already very much a part of the torture session.
But in this image, his suffering is disguised to the uninformed onlooker, who can only imagine past abuses and sense
those still to come.
[17] JURGENSON, Luba, L'expérience concentrationnaire est-elle indicible ?, Monaco, Éditions du Rocher, 2003, 396 pages, p. 42.
[18] SHALAMOV, Varlam, op. cit.
[19] SEMPRUN, Jorge, L'écriture ou la vie, Paris, Gallimard, 1994, 396 pages.
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“Fear up, ego down”
Psychological torture
jean-étienne de linares, Chief Executive Officer of ACAT
Since the end of the Second World War, sophisticated methods of torture have been
developed. These no longer attack the body as directly and as brutally as beatings,
burns or electric shocks. They are based on techniques of sensory deprivation, prolonged isolation and the destruction of one’s identity; they are designed to subjugate
the victim through an attack on their mind. As they were gradually perfected, these
methods came to be known as “brainwashing”, “white torture” and even “clean torture”, perhaps because the torturers do not need to get their hands quite so dirty. The
term “psychological torture” is now the most commonly used.
The distinction between physical and psychological torture, however, is not as clearcut as one might think. First, this is because the body and mind cannot be dissociated from one another, so an attack on one’s psyche has somatic consequences.
Secondly, in order to break the victim’s resistance, both forms of torture are nearly
always combined. Torturers have long understood the advantage of combining traditional torture with sleep deprivation, mock executions and confinement in tiny, dark
cells. The victim’s overall weakened state as a result of this treatment is intended to
make physical violence all the more intolerable. And the various forms of psychological pressure can only be inflicted if the victim knows that physical aggression can
also be used. Who would be willing to suffer extended periods standing on two feet
without the threat of being severely beaten if they refuse to comply? A pistol placed
against your temple is only terrifying if you believe that the threat is real.
It is not technical differences that set physical and psychological torture apart, but
rather two specific factors. The first is that, for the first time in history, over a few
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short decades, torture techniques were designed, tested, improved and codified with
almost scientific precision. The second is that psychological torture is a form of
torture that is not recognised as such, a form of torture which public opinion can
deem acceptable.
Historical background
In 14th century England, Matthew Hopkins was the country’s witch finder general.
In order to confirm a witch’s guilt without resorting to questions, which was not
allowed by law, the scrupulous Hopkins developed alternative methods. Suspects
were starved and forced to walk for days on end without a break. To prevent them
from sleeping, their jailers would chain them in uncomfortable positions and brutally
shake them at the slightest sign of drowsiness.
You might say that Hopkins was a lone pioneer. For centuries later, in the 1930s,
the Soviets were the first to reinvent and use these methods rationally and systematically. In order to secure confessions that corroborated the official charges,
KGB officials and their predecessors from the GPU and NKVD employed all kinds of
deprivative techniques on a massive scale, as well as psychological pressure and
psychotropic drugs designed to create a state of anxiety and dependence that would
make it easier to break down the resistance of their opponents. The Communists in
China drew inspiration from these techniques to re-educate “enemies of the people” and rebuild their personalities in a way that satisfied the requirements of state
ideology.
At the end of the Korean War, the West was concerned by the Communists’ use of
“brainwashing”. They wanted to learn how soldiers taken prisoner could resist these
techniques, and at the same time acquire the same weapons as their adversaries.
Some believed that the Communists were even able to radically modify the minds of
their victims, as if reprogramming the human brain.
Research programmes were initiated by the CIA. Under the codenames Bluebird and
later Artichoke, they were combined in 1953 under the title MK-Ultra. The research
involved studying the effects of hypnosis, electroshocks, psychiatric surgery and
chemical substances or hallucinogens such as LSD, which had recently been discovered. In the absence of any conclusive results, MK-Ultra was abandoned in 1963,
although not before it had killed or vegetablised some of its experimental subjects,
who had been recruited against their will from psychiatric institutions.
At the same time, the CIA had been studying and financing various scientific research
studies on behaviour, neurophysiology, psychotherapy and psychology. In 1955, it
set up the Society for the Investigation of Human Ecology. The agency was primarily interested in scientific research on temporal and spatial disorientation and the
effects of sensory deprivation, isolation and confinement in tight spaces. At McGill
University in Montreal, Dr Donald Hebb studied the reactions of volunteer students
who were locked into containers filled with foam and unable to move, blindfolded and
made to wear a helmet that blocked out all sound. As they gradually lost all sense of
reality and entered states of delirium, hallucination or uncontrollable fear, nearly all
of the subjects quickly abandoned the experiment.
In other universities (e.g. Yale and Cornell), the effects of methods such as prolonged
stress positions and sexual or cultural humiliation were studied for the first time.
The CIA concluded that the best way to break a prisoner and weaken his ability to
resist was to combine various forms of pressure based around radical isolation, sensory deprivation and forced periods of prolonged stress. The term “DDD syndrome”
was used to refer to the Debility (extreme physical and psychological weakness),
Dependency and Dread engendered.
In 1963, this research was applied in practice in a manual drafted by the CIA to be
used by its agents: KUBARK1 Counterintelligence Interrogation. This document provides details of actual interrogation techniques, which it describes as “methods
of inducing regression of the personality to whatever earlier and weaker level is
required for the dissolution of resistance and the inculcation of dependence. […]
The result of external pressures of sufficient intensity is the loss of those defenses
most recently acquired by civilised man […]. Relatively small degrees of homeostatic
derangement, fatigue, pain, sleep loss, or anxiety may impair these functions. As a
result, most people who are exposed to coercive procedures will talk and usually
reveal some information that they might not have revealed otherwise”.
These techniques were tested and used against Vietcong prisoners from the mid1960s onwards, especially as part of the Phoenix Program2. They were taught by
institutions such as the School of the Americas3, which trained large numbers of
military personnel from Central and South America, and the Office of Public Safety,
which offered training to the police personnel of US allies, including South Vietnam,
Uruguay, Iran and Greece.
The end of the Vietnam War did not bring an end to efforts to perfect and employ
psychological torture methods. In 1983, in an updated version of its 1963 manual entitled Human Resource Exploitation Training Manual, the CIA continued to recommend
manipulating the interrogatee’s environment by creating unpleasant or intolerable
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situations “in which familiar patterns of time, space, and sensory perception are
overthrown”.
This meant that the US army and secret service benefited from years of experience
when it came to interrogating “enemy combatants” as part of the “war on terror”
initiated in 2001. Further proof that this policy was extended can be found in the
Survival, Evasion, Resistance and Escape program (SERE), which was designed in
the aftermath of the Korean War to prepare US air force pilots for the possibility of
being captured in a Communist country. In order to build up their resistance, pilots
were subjected to forms of torture that were inspired by practices described by the
air force in a 1957 document entitled Communist Attempts to Elicit False Confessions
from Air Force Prisoners of War. But this defensive training was also used to perfect
the development of scientific torture methods. The manual produced by the air force
had such an influence on CIA memos written in the 2000s, in relation to the use of
“intense physical pressure”, that some senators claimed when they were issued that
the agency had done no more than modify the title of the 1957 document by removing
the word “communist”.
The United States was not the only country that studied and used what was known
at the time as “white torture”. At the beginning of the 1970s, the Federal Republic
of Germany began to study sensory deprivation at Hamburg-Eppendorf University.
The FRG used these methods against members of the Red Army Faction (RAF). In
1972, Ulrike Meinhof, Astrid Proll and Gudrun Ensslin4 were detained in conditions of
extreme isolation in a section of the Cologne prison that had been specially designed
for acoustic insulation. The walls and furnishings were white and daylight entered
only through a narrow slit covered in fine wire mesh. Meinhof wrote to his lawyer:
“You feel like your skull is going to break open or explode. Like your brain is being
crushed like a prune. [...] You feel as if the cell is moving. You don’t know why you’re
trembling: because of fever or because of the cold. You freeze up. In order to speak in
a normal voice, you have to make an effort as if to speak very loudly. […] Words don’t
make sense any more. The use of sounds like s, ss, tz and sch becomes absolutely
unbearable”.
Fourteen people arrested in Northern Ireland in 1970, accused of belonging to the
Irish Republican Army (IRA), were incarcerated in “unidentified centres”. The Irish
State took the case before the European Court of Human Rights (Ireland v. The
United Kingdom), which ruled on 18 January 1978 that “they were submitted to a
form of “interrogation in depth” which involved the combined application of five particular techniques. […] (a) wall-standing: forcing the detainees to remain for periods
of some hours in a "stress position", described by those who underwent it as being
"spread eagled against the wall, with their fingers put high above the head against
the wall, the legs spread apart and the feet back, causing them to stand on their toes
with the weight of the body mainly on the fingers"; (b) hooding: putting a black or
navy coloured bag over the detainees’ heads and, at least initially, keeping it there all
the time except during interrogation; (c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing
noise; (d) deprivation of sleep: pending their interrogations, depriving the detainees
of sleep; (e) deprivation of food and drink”.
The court further stipulated that these five techniques, “applied in combination […]
caused, if not actual bodily injury, at least intense physical and mental suffering to
the persons subjected thereto […]. The techniques were also degrading since they
were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral
resistance”. As a result, the court ruled that these five techniques constituted inhuman and degrading treatment.
However, it did not go so far as to describe them as torture, ruling that “they did not
occasion suffering of the particular intensity and cruelty implied by the word torture
[understood as an aggravated and deliberate form of cruel, inhuman or degrading
treatment or punishment]”.
Methods
In the space of a few decades, experiments with psychological torture led to the
selection of the most effective techniques both in terms of implementation and their
ability to break down the resistance of subjects.
Standard procedures were developed, recommending that prisoners be isolated,
weakened physically, subjected to sensory deprivation or saturation, terrorised and
humiliated. Furthermore, the various techniques put in place are often combined for
increased effect.
The effectiveness of these techniques is based on two principles. The first is identical to that which underpins the use of physical torture: victims give in to pain.
Psychological abuse is every bit as difficult to tolerate as beatings or electric shocks.
The second principle is that subjects are more likely to cooperate as they lose their
sense of identity and self-esteem; the CIA described this approach as “Fear up, ego
down”. The aim is to place the victim in a state of complete dependency, exercise
complete control over his environment, force him to lose his bearings, and convince
them that he is alone, that he has been abandoned by his people and that his torturers are all-powerful. This is what is referred to as the “DDD syndrome”: debility,
dependency and dread. Cut off from the world and physically weakened through
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deprivation, the prisoner will try to develop a new mindset and a new familiar environment by opening up to the only interlocutors he has left in the hope that his
relationship with them will be similar to that which he had with his friends and loved
ones. And then ultimately it will be a relief for him to surrender.
Solitary confinement
Solitary confinement is the method that is used most systematically to break
detainees.
Humans are social creatures, not only because we appreciate the company of our
fellow man and need one another to organise our lives, but above all because our
personality is developed and defined largely on the basis of our interactions with
other individuals.
Therefore, to deprive someone of all contact, often for months or even years on end,
to leave them alone at the mercy of their wardens, with nothing to do but face their
anguish and their thoughts, which no longer form coherently, or memories which
are fading away, is one of the most powerful forms of torture. Solitary confinement
cells are usually tiny, barely large enough to take a few steps, and even in some
cases to lie down. The walls are all white or grey. Furnishings are reduced to a minimum or non-existent. Where there is a window, it is invariably small, covered with a
metal grating and high up. It is impossible to speak with fellow detainees, or at least
only possible by shouting, which is liable to result in punishment. Outings are infrequent and short in duration, except where the detainees is chained up and escorted
by unspeaking wardens. Everyone who has endured such conditions of detention
describes them in similar terms. They all say that prolonged solitude breaks the
human spirit as effectively as other forms of abuse.
Terry Anderson, who was held hostage by Hezbollah for seven years, recalls how he
felt after one month in detention: “The mind is a blank. Jesus, I always thought I was
smart. Where are all the things I learned, the books I read, the poems I memorized?
There’s nothing there, just a formless, gray-black misery. My mind’s gone dead. God,
help me.”
All States that engage in torture use solitary confinement. The example of the United
States is particularly telling. As well as using solitary confinement “routinely and
repeatedly”5 in all operations during their “war on terror”, it should also be added
that at least 25,000 people are currently in solitary confinement in various so-called
Supermax high-security prisons. Conditions of detention in near-total solitude constitute torture when they last for more than 15 days, according to the UN Special
Rapporteur* on torture, Juan E. Méndez. The average duration of this form of detention is seven and a half years. Some detainees spend more than 20 years in solitary
confinement.
Physical weakening
Giving prisoners mediocre nourishment, in some cases just enough to ensure they
do not starve to death, or depriving them of basic hygiene and health care are the
most common methods used to make them suffer, while at the same time eroding
their physical and intellectual capabilities. Two specific forms of psychological torture deserve our attention: sleep deprivation and the use of “stress positions”.
Sleep is a basic physiological need. Forcing someone to remain constantly awake
can reduce them to a state of near madness in a few short days. The techniques to
achieve this are simple. One need only produce constant noise, for example by rattling keys or a truncheon against the bars of a cell, leave bright lights permanently on
or bring detainees for a new interrogation as soon as they start to become drowsy.
They can also be forced to walk endlessly, with the threat of beatings if they stop,
or handcuffed with their arms in the air so that they are kept awake by the handcuffs biting into their skin. Artur London, who was tortured in Czechoslovakia 1951,
recounted how “The insults, threats, beatings, hunger and thirst are like child’s play
compared to the organised lack of sleep, which robs the victim of all thoughts, turning him into an animal dominated by the need for conversation”.
“Stress positions” are uncomfortable positions that prisoners are forced to hold
without moving for hours at a time, either because they are handcuffed or because
they will be beaten if they budge. For example, they may be forced to stand on the tips
of their toes one metre away from a wall, which they can only lean against using the
tips of their fingers, forced to remain hunched over with their arms stretched out in
front of them, placed lying on their back on a stool with their wrists and ankles tied
together, or have their wrists tied together with one arm reaching over their shoulder. Despite the fact that part of the body remains in contact with the ground, the
muscles very quickly experience extremely violent and painful cramps.
The distinction between physical and psychological torture may seem tenuous, but
there is another phenomenon at work: “self-inflicted pain”. The torturer, who often
leaves the room, is no longer the only immediate source of pain, which is in fact
caused by the victim himself. If he is tied up, it is the weight of his own body and the
weakness of his muscles that appear to be the primary causes of his suffering. And
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if he tries to maintain the stress position, little by little he will begin to think that it is
his urge to withstand and resist his torturer that is the cause of the persistent and
increasing pain. Faced with this dilemma, he may begin to turn his hostility towards
himself, as if the torturer had subcontracted the victim to do his work for him.
Sensory deprivation
Here, the victim’s sight and hearing are attacked using methods that are simple to
put in place.
Blindfolds, an extremely common and ancient practice, may be used as early as the
time of arrest. The prisoner’s eyes are covered using a thick strip of cloth, or his
head may be covered with an opaque piece of fabric. Although less directly painful,
sight deprivation may be used without respite for extremely long periods, where the
prisoner is kept in an unlit cell and blindfolded once again before being removed. The
main advantage of blindfolds is to protect the anonymity of the victim’s captors and
torturers, and to prevent the prisoner from determining the location to which he has
been taken. But depriving an individual of the sense that is first used to develop an
awareness of his environment above all accentuates feelings of abandonment and
terror as it undermines his ability to understand his situation or even to anticipate the
blows as he is being interrogated.
Conversely, a victim’s sight is just as unsettled by exposure to aggressive stroboscopic lighting or artificial light that is never turned off.
As regards hearing, cutting someone off from all ambient sounds and plunging them
into total silence is a technique that is hardly ever used, since it is much easier to
bombard them with music. It is harder to install an anechoic chamber in Afghanistan
than a pair of loudspeakers which you can use to play hard rock, the sound of crying babies or horror film soundtracks at exceptionally high volumes. Detainees are
forced to listen to these deafening sounds, often while tied up in stress positions
attached to rings set into the ground, in a room that has been plunged into darkness
with an air conditioner on its hottest or coldest setting.
In 2003, Sergeant Mark Hadsell worked for the U.S. army’s psychological operations
unit. He explains: “These people [Afghans] haven’t heard heavy metal before. They
can’t take it. If you play it for 24 hours, your brain and body functions start to slide,
your train of thought slows down and your will is broken. That’s when we come in
and talk to them.”6
The songs that are chosen also account for the fact that the mostly Muslim prisoners
may consider them to be culturally offensive. Tracks such as White America (Eminem),
Enter Sandman (Metallica) and especially Born in the U.S.A. (Bruce Springsteen) feature on this torture playlist, alongside children’s songs such as I love you from the
cartoon Barney the purple dinosaur.
Some former Guantánamo prisoners have recounted how the music made them
crazy and how they screamed and banged their head off the walls.
Fear
One of the most effective psychological methods to destabilise the prisoner is to
keep him in a state of terror and powerlessness. What are they going to do to me?
How long am I going to spend here? What’s happening to my family? Do they know
where I am? Being plunged into the unknown generates a state of permanent anxiety. The fear of torture is unbearable, especially when the rhythm of torture sessions
appears to be completely random. Will there be another session today? At dawn?
In 10 minutes? “The worst is waiting to be tortured again, the fear is much more
unbearable than the suffering itself. […] It’s the fear rather than the physical pain that
transforms the personality of the victim”, as a Chilean tortured under the Pinochet
regime explained. He added that he had never been able to get over the shame of
experiencing huge relief whenever the torturer came to fetch somebody else – a
friend or a brother in arms.
Torturers also sometimes force prisoners to listen to the screams of their fellow
detainees or to watch as their loved ones are being tortured.
Mock executions have an equally devastating effect. All regimes that engage in torture use this technique. In Argentina, military personnel used to place detainees in a
helicopter, throw some of them to their deaths in mid-flight and bring the others back
safely to the ground. According to a report by the Red Cross following an inspection
in Iraq in 20037, inmates undergoing interrogation by US military personnel “were
allegedly subjected to frequent cursing, insults and threats, both physical and verbal,
such as having rifles aimed at them in a general way or directly against the temple,
the back of the head, or the stomach, and threatened with transfer to Guantánamo,
death or indefinite internment”. They were also subjected to “threats against members of their families (in particular wives and daughters)”.
The most diverse phobias are also used to terrorise prisoners, in particular the fear
of insects or dogs. Canine units were used on all fronts of the “war on terror”, as
shown in the images of Iraqi prisoners at Abu Ghraib terrified by ferocious dogs
barking at them.
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Humiliation
Our choice of clothes and hairstyles is an important part of the way we see ourselves. This explains why one of the main methods used to break detainees, from
the beginning of their incarceration, is to deprive them of their personal belongings.
They are often forced to wear anonymous, shapeless and brightly coloured uniforms
that may be too small or too big and have no buttons, belt or braces. When they are
given shoes, they are without laces, forcing the prisoners to drag their feet. They
may also be left nearly or fully naked, an attack on their modesty which heightens the
impression that they are at the mercy of their wardens. Finally, in order to completely
cut them off from their earlier life, they may have their hair or beards shaved and be
identified with a registration number.
All of these acts of humiliation are designed to degrade the prisoners, to defile them
in their own eyes and cause them to lose all self-esteem. Anything can be used as
a source of mockery: skin colour, religious and cultural customs and even physical
flaws. Sexual forms of humiliation are often used, especially if they can be accentuated by the transgression of religious taboos.
Detainees may also be displayed naked before other prisoners while being insulted
by the wardens, including women. In some cases they are forced to wear women’s
underwear, sometimes on their head, mime sexual acts while being photographed,
watch pornographic images, or be touched by women who they are told are
menstruating.
The NGO Physicians for Human Rights found that in Abu Ghraib, Guantánamo and
many other detention centres in Iraq and Afghanistan, such practices had become so
common that they had “created an environment in which even more extreme forms
of humiliation and abuse were likely not seen as such”8. The report went on to say:
“By denying the victim the most basic forms of decency and privacy, forced nudity
conveys the message that interrogators have absolute control over the detainees’
bodies and can do as they please”9.
Consequences
Although each individual is different, psychological torture leaves lasting marks in
all cases. In both the short and long term, victims may suffer from memory loss,
diminished concentration levels, headaches and back pain. They may also become
extremely depressed, have nightmares, feel humiliated and ashamed, and experience
all the effects of post-traumatic shock.
Studies on former prisoners at Guantánamo and various other American detention
centres have shown that some find it difficult to express themselves, become irritable
and prone to anger, experience hallucinations and sometimes suffer from paranoia.
Others become depressed and display suicidal tendencies and emotional problems.
Many former detainees are less able to face the regular challenges of daily life, take
decisions and maintain normal relations with their loved ones. They may lose their
job, their friends or their spouse.
Those who have been subjected to long periods of solitary confinement display specific symptoms.
Sometimes they speak for hours on end without interruption, or at times they return
to the same thoughts obsessively. They alternate between periods of optimism and
periods of depression during which they can neither sleep nor eat normally. Some
lose all sense of time, forgetting what day or what time it is. They require many
months to adapt to the sensations and emotions of a person who is able to live freely.
Some detainees who were kept in solitary for years on end say they hear voices and
begin to speak to ghosts, or they may curl up in a corner of their cells for hours,
covering themselves with a blanket.
Doctors from a Berlin centre for torture victims have reported that Muslims subjected
to serious acts of sexual humiliation bear the stigma for life and find themselves isolated from their community. Men feel that their virility has been undermined, especially those who have been assaulted by women. The doctors also documented many
cases of divorce and severed family links among Muslims who felt that the sexual
torture was like a violation of their honour and dignity. They tend to relive the scenes
of humiliation again and again and continue to hear the voices of their attackers as
they insulted them and threatened them sexually. Many of them said they would have
committed suicide if it were not forbidden by their religion.
The victims of mock executions constantly recall the moments before what they
thought was their death. They feel as if nothing is predictable and they live in fear and
feel as if they have been abandoned. Some feel as if they are already dead, especially
those who begged their torturers to execute them once and for all.
Motivations
In resorting to psychological torture, undemocratic States are above all looking for
additional ways to bring suffering to those whom they wish to repress.
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In comparison, democratic States that use this form of torture have two objectives in
mind: to ward off legal action by circumventing laws that prohibit torture; and above
all justify to the public the use of extreme measures ostensibly intended to ensure
their safety.
The senior figures responsible for implementing such practices have developed
strategies to ensure that the methods used cannot be described as “torture”.
The first such strategy is never to use this word. Many euphemisms can be found:
secret services do not engage in torture, they exert “intense physical pressure”,
carry out “aggressive interrogations” that lead to a “phase of heightened pressure”.
They use “coercive measures” and “alternative interrogation techniques”. John
Kirby, a Pentagon spokesman, stated that military personnel in Guantánamo did not
use music to torture prisoners, but rather to “discourage” them.
Extremely detailed descriptions of interrogation procedures are another aspect of
this strategy. By emphasising minutiae and constantly alluding to the requirement
that a doctor be present, these long lists of recommended techniques maintain the
impression that everything is under control, that the pressure being exerted on prisoners is measured and acceptable and does not constitute torture since everything
has been codified10. Those responsible for drafting these documents are all too aware
that their descriptions completely water down the levels of violence inflicted and that
the reality on the ground is altogether different. They also know that if necessary the
existence of such formal procedures would allow them to blame a handful of scapegoats who failed to respect the correct protocol.
In 2002, the US Attorney General developed various legal arguments in an attempt
to demonstrate that US military personnel and the secret service did not practice
torture. His aim was to propose a restrictive redefinition of torture. The Attorney
General recommended that only physical pain “equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of bodily
function, or even death” should be considered to be “acute”. This is an attempt to
define levels of pain and assert that torture only takes place where there is physical
trauma, thus excluding psychological methods. Mental suffering was also the subject
of a new definition. In order to constitute torture, it was suggested that “it must result
in significant psychological harm of significant duration, e.g. lasting months or even
years”. This would make it impossible to make a torture claim prior to a psychological examination, which can always be contested, yet this may not take place for years
after the alleged abuse, when it is effectively worthless.
This legal wrangling dragged on, but the main objective was not to convince legal
experts but rather the wider public.
In democratic countries, the use of physical torture is largely condemned by the
public, but to the extent that they leave almost no visible traces on the victim’s body,
and especially because they do not correspond to the traditional image of torture,
methods scandalously referred to as “clean torture” provide citizens with a much
more acceptable vision of the practices carried out by their law enforcement officials
or secret service agencies.
The tenuous legal basis used to explain that “this is not torture” is often well received
by all those who are convinced that “you can’t fight terrorism with one hand tied
behind your back”. Like the General who annotated a passage in the CIA memo on
stress positions with the words “I stand for 8-10 hours a day”, these people may be
willing to admit that the methods used are brutal and no doubt difficult to endure, but
not so much so as to be considered scandalous.
The wry and coarse humour with which the revelations of NGOs are met is a good
indication of this. On the use of music, jokes are commonplace: “We shouldn’t make
them listen to Yoko Ono, we’re not barbarians!” And various responses include playlists featuring the artists or musical genres which it would be torture to listen to.
But it is sexual humiliation that generates the most laughs, with some people commenting that it is inappropriate to use the word torture to describe interrogations
conducted by women in their underwear, when so many people would be willing to
pay to be treated in that way.
If so many comments are made in a way that is humorous, it is because ultimately
all of this is not perceived to be so serious. If torture can make us laugh, perhaps it
has become acceptable.
All those who have studied this issue, in particular those who help victims rebuild
their lives, are aware that, contrary to what you might think, psychological torture is
just as devastating as physical torture, and it is futile to try to distinguish between
them. Regardless of the methods employed, torture takes place whenever someone
is subjected to a form of treatment they find unbearable and have no way of escaping.
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Main bibliographical references
CHAMAYOU, Grégoire, ‘De la torture en Amérique’, in KUBARK, Le Manuel secret
de manipulation mentale et de torture psychologique de la CIA, Zones, 2012, 187 pages:
http://www.editions-zones.fr/spip.php?page=lyberplayer&id_article=159.
Physicians for Human Rights, Break them down: Systematic Use of Psychological Torture
by US Forces, 2005, 126 pages: http://humanrights.ucdavis.edu/resources/library/
documents-and-reports/physicians_for_human_rights.
VOLCLER, Juliette, Le son comme arme. Les usages policiers et militaires du son, Paris,
Éditions La Découverte, 2011, 180 pages.
PORTELLI, Serge, Pourquoi la torture ?, Paris, Vrin, 2011, 312 pages.
[1] KUBARK was one of the code names used to refer to the CIA during the Cold War.
[2] The Phoenix Program was a counter-espionage and counter-insurrection operation led by the CIA in Vietnam from 1967
to 1973. It notably drew inspiration from the methods used by the French army in Algeria. It led to many cases of torture
and summary executions.
[3] COHN, Marjorie, ‘Training Torturers: the School of the Americas’, ACAT-France, A World of Torture, 2013, 343 pages, p. 233:
http://www.unmondetortionnaire.com/IMG/pdf/Rapport_Torture_2013_en.pdf.
[4] Ulrike Meinhof, Astrid Proll and Gudrun Ensslin belonged to the first generation of the RAF, better known as the “BaaderMeinhof gang”. Meinhof and Ensslin committed suicide in prison in suspicious circumstances in May 1976 and October 1977
respectively.
[5] International Committee of the Red Cross (ICRC), Report of the International Committee of the Red Cross (ICRC) on the treatment
by the coalition forces of prisoners of war and other protected persons by the Geneva conventions in Iraq during arrest, internment
and interrogation, February 2004, 24 pages, p. 14, http://www.informationclearinghouse.info/pdf/icrc_iraq.pdf.
[6] LONDON, Artur, L'aveu, Paris, Gallimard, 1968, 464 pages.
[7] VOLCLER, Juliette, Le son comme arme. Les usages policiers et militaires du son, Paris, Éditions La Découverte, 2011, 180 pages.
[8] Physicians for Human Rights, Break them down: Systematic Use of Psychological Torture by US Forces, 2005, 126 pages,
p. 6: http://humanrights.ucdavis.edu/resources/library/documents-and-reports/physicians_for_human_rights.
[9] Ibid, p. 11.
[10] The list of recommended techniques appears, for example, in a memorandum sent by the office of the Attorney General
to John A. Rizzo, senior deputy general counsel of the CIA, on 10 May 2005.
Forgiveness:
a journey or an obligation?
interview with claire ly, writer*, philosopher and lecturer at the Institut de Sciences
et Théologie des Religions (ISTR)
17 April 1975: having fought a civil war for five years against the authoritarian and
pro-American regime of Marshall Lon Nol, who came to power following a coup
d’État, the Cambodian communists (Khmer Rouge) entered the capital Phnom Penh,
seized power and established Democratic Kampuchea. They immediately began to
implement a policy of terror targeting all symbols of “Western decadence”, executing
intellectuals, members of the bourgeoisie, notables, those with links to the former
government and anyone who opposed them by emptying towns and cities of their
residents. In just four years, 2 million people, almost a quarter of the country’s population, died as part of the regime’s efforts to purify society. Claire Ly, like most urban
dwellers, was sent to a labour camp in the countryside. She managed to survive but
lost almost her entire family at the beginning of the bloody revolution. Formerly a
Buddhist, she converted to Catholicism. Here, she looks back on her past and the
notion of forgiveness, in conversation with Jésus Asurmendi, director of the ACATFrance Theology Commission.
Jésus Asurmendi: How did you survive when the Khmer Rouge came to power?
Claire Ly: As soon as they entered the capital, they shot anyone who had held a
position of responsibility before they seized power. My father, who was a businessman, my husband, who was a bank manager, my older brother, who was a member
of Parliament, and my younger brother, who was a businessman and married to a
French woman seen as an imperialist, were all killed. I was teaching philosophy at
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the time and was in charge of overseeing the translation of French schoolbooks
within the Education Ministry; what saved me was my status as a woman. I disguised
my professional identity and passed myself off as an uneducated member of the
bourgeoisie, whose only role in life was to marry a man from a similar background,
so the Khmer Rouge sent me to the countryside to purify myself by growing rice, digging canals and building dams in a re-education and labour camp.
J. A.: Were you subjected to ill-treatment and torture there?
C. L.: I suffered extreme levels of psychological torture above all. I was two months
pregnant when my three-year-old son and I were sent to the camp, and not only
was I allowed to breastfeed my son, but I also had to breastfeed the other detainees’
children and vice versa. We all had to take on a role as mother of all of the State’s
children under the new society that the Khmer Rouge wanted to build. We were also
deprived of sleep and food, we used to get up as the sun rose at 4 am, and we were
only entitled to one bowl of rice per day. Hunger is a powerful weapon, you know,
which can very quickly encourage you to speak out against others. People will say
anything to get something to eat. What’s more, we never knew what task they would
give us next, we obeyed orders, it was that simple. If you wanted to survive, you
didn’t ask “why?” or “how?”, you couldn’t ask any questions. Angkar, the umbrella
organisation of the Khmer Rouge, did our thinking for us.
By implementing their hate policy against urban dwellers, who were presented to
peasants as impure citizens and even as collaborators of the West, by pitting one
class against another, the Khmer Rouge broke down existing social links and robbed
us of our identity. We completely lost our bearings, it was as if we were in a foreign
land when we arrived in the countryside, we had lost everything, all we had was a
shirt and some trousers to work in, while the peasants were allowed to keep almost
everything they had.
J. A.: Did your Buddhist faith allow you to maintain your morale despite
the nightmare you had to endure in the camp?
C. L.: On the contrary, I was consumed by anger and hatred, which are described as
“poisons” in the teachings of the Buddha, as well as the desire for revenge, and I was
incapable of behaving like a good person in the Buddhist tradition, someone who
refuses to engage in violence and does not respond to aggression but instead leaves
it to one side. Such a person would have been able to step back from the atrocities being committed by the Khmer Rouge. The Buddha actually spoke about such
weakness and suggested a way out: you build what we call a “mental object” that
does not exist and use it to bear all of the bad feelings that are crushing you. It’s what
modern psychology calls the scapegoat. So I turned towards a mental object that
I called simply the “God of the Westerners”. I chose it because it was not my own, it
was easier to insult someone else’s God all day long, but also because as a teacher
of philosophy, I felt that the West was responsible for the wars in Indochina and
Vietnam. Similarly, the ideology of the Khmer Rouge did not develop in Southeast
Asia but instead came from Marxism, a product of the Judaeo-Christian culture.
After two years, in 1977, I had a very powerful spiritual experience. I realised that the
God of the Westerners was not only my mental punching bag, but that he also accompanied me in my hatred and by anger. I felt his presence, I felt that he was listening
to me although I couldn’t speak about. I had to encounter the Gospel before I could
put my experience into words. This whole episode happened in silence, but a silence
that was inhabited like that of a mother at the bedside of her sick child. The logic of
Buddhism immediately caught up with me, telling me that it was no more than an illusion, that my mind was playing tricks with me and causing me to fantasise because
of the hunger and lack of sleep, but that didn’t change what I had just experienced.
The nightmare wasn’t over yet, however. It continued until I was released from the
camp in January 1979, but during the first two years I spent there, I was convinced
that I was the only one suffering and that only my loved ones had been executed.
I was obsessed with myself, I couldn’t see the distress of others. This experience
allowed me to reconnect socially, it developed in me a fraternal compassion for the
hardship of my people. It allowed me, as a Buddhist, to refer to “my brothers and sisters in suffering”. I started to become friendlier and speak to others, I was no longer
locked into my own world. That is the true miracle of the Gospel.
J. A.: When did you convert to Catholicism?
C. L.: When I was released in 1979, I stayed in Cambodia to look for my loved ones,
hoping that maybe they had not died as I had been told. Then I fled the violence
between the Vietnamese troops and the guerrilla movement, seeking refuge in
a camp in Thailand. In 1980, I arrived in Alès, in France, where a community of
Protestants and Catholics welcomed me in. One day I read the Gospel. It was like an
encounter. It was the character of Jesus of Nazareth that drew me in. When we read
something, we are affected by what we carry around with us, and I was carrying
around a sense of wounded pride. There was a disconnect in my image: I saw myself
as an intellectual who had arrived in the land of human rights, where I was equal
to French citizens, but I was seen as no more than a transparent political refugee
with no identity, “an object of charity”. So I found common ground with Jesus of
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Nazareth, a wanderer like me. But wandering freely, unable to be labelled by family,
religious figures or politicians. Once a Buddhist, I now began to listen to Jesus of
Nazareth. When I return to Cambodia, Buddhists often ask me what I find in Jesus
that the Buddha does not offer. I explain to them that in the Buddhist tradition, even
though the Buddha is depicted as a man and not a God, he is presented as a rounded
and perfect being who mastered everything in a state of total serenity, who never
cried and never became angry. When I read in the Gospel about Jesus becoming
angry and crying, I saw him as a master more within my reach. The humanism of the
Buddha prepared me to recognise the humanity of Jesus. It was not Jesus our Lord
who drew me in, but Jesus the man, to whom I felt closer. And then in 1983, I asked
to be baptised.
J. A.: How do you explain the conversion to Catholicism of many senior
Khmer Rouge figures?
C. L.: I wouldn’t presume to judge the conversion of others. Perhaps they did it sincerely, I just don’t know. What I denounce is the evangelists, mainly from South
Korea, who came to tell them that God would erase their sins and offered them the
most beautiful reward in the Christian faith as if it was a commodity. I can’t accept
that, I don’t want to be a disciple of Christ alongside those people.
J. A.: As a Catholic, what is your understanding of forgiveness, a key concept
in Christianity?
C. L.: First I would say that forgiveness must be dissociated from other concepts
such as amnesty, regret, prescription or apology. I understand forgiveness as a force
for good, as a pure and selfless act that stands above everything and comes from
someone greater than me. Forgiveness is not mine to give, it is not something I can
distribute to whomever I wish, as I wish, it is a gift that one must first receive before
granting it to another, an act of grace that is accorded to us at the end of a long
spiritual journey, one that requires us to rework the past and engage with mourning. Focusing on the past is a duty of intellect that is owed to victims, who wonder
about the meaning of all the violence that is unleashed, why they have had to endure
it and what they did to deserve it. This duty is exercised as one recounts the past, for
oneself and for others, it involves critically drawing on the past and finding the right
words, those that can heal wounds, those that create a welcoming and hospitable
space for others. Words that the other can understand, words which emerge from
the wound itself and transform our painful contractions into life impulses.
In the face of Evil, we all have the duty to try and understand. This is not about
explaining or forgiving everything, it is about engaging with reason beyond our passions. It is about focusing on mourning, detaching ourselves so that we may move
towards a promise, towards a future that can be built together.
Christian forgiveness is a spiritual path that requires a shift away from self-interest,
it is a facet of existence: it is something to be experienced rather than explained
or applied automatically. In order to be sacramental, forgiveness must first be
existential.
J. A.: What is your own position on forgiveness?
C. L.: I haven’t really tried to forgive the Khmer Rouge yet. I live my life in the Catholic
Church, but I feel free not to follow all of its precepts to the letter. Forgiveness is not
a commandment or an obligation that is imposed from the outside. No institution can
order someone to forgive another.
I first began to truly reflect on forgiveness in 2004, when I returned to Cambodia
with my daughter, who never met her father. We returned to the very site where
our loved ones were shot dead. We were accompanied by Buddhist friends, who
immediately lit incense sticks and began to recite the teachings of the Buddha on
non-violence. We listened to them carefully and afterwards decided to recite the
“Our Father”, the prayer of Christ’s disciples. The words “Our Father, forgive us
our trespasses” made us think. We asked ourselves if, standing on the site where
300 people had perished, we could forgive the Khmer Rouge on behalf of the victims.
We came to the conclusion that we weren’t in a position to do so.
J. A.: But you yourself are a victim of the Khmer Rouge!
C. L.: Yes, but others suffered much more than me. I find it a little bit presumptuous to
claim to be more of a victim than those who died without ever being given the chance
to speak. François Roux, the French lawyer who defended Duch at the International
Criminal Court, which tried the Khmer Rouge, asked to meet me in Phnom Penh. He
wanted my opinion on the fact that Duch, having converted to Christianity, intended
to ask for forgiveness for his crimes. My daughter and I thought about it, we felt
that our country had been destroyed by the genocide and we felt devastated by the
disastrous state in which it was left. We were incapable of saying in truth that we
had forgiven the Khmer Rouge. So as disciples of Christ, we turned to Jesus on the
cross. Jesus did not say: “I forgive them”, but rather “Father, forgive them for they
know not what they do”. My daughter and I turned to the Father and told Him in total
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confidence of our weakness, our inability to forgive. We placed ourselves in His
hands and entrusted Him with all those who made Cambodia suffer.
Forgiveness is difficult because it asks me as a Christian to take the Lord’s cross
seriously and to face the Evil that destroys humans, but it is not impossible because
in each of us resides a surplus of goodness that the philosopher Paul Ricœur calls
“capable man”. By following the necessary spiritual journey, perhaps one day, with
the passage of time, I will be able to say that I have forgiven the Khmer Rouge.
What I like so much about the work of Paul Ricœur is that he refers to forgiveness
as a voice that is silent but not mute. It is silent because it claims nothing, but it is
not mute because it has the capacity of speech. When this silent, capable voice is at
work, it restores our consideration for others and allows Christians to believe that
they are worth more than their acts.
J. A.: Would you be more willing to forgive if the culprits recognised
their actions?
C. L.: Forgiveness is unconditional and comes free of charge. You can forgive someone’s actions without them asking for forgiveness. And conversely, a request for
forgiveness need not always be granted. I also think that crimes against humanity,
i.e. crimes which are designed to attack the integrity of man, are unforgivable; rather
than any human institution, one must look to God Himself, who was just as deeply
hurt by these events as me. Otherwise, I feel it would be an act of imposture.
J. A.: Yet forgiveness can help us to rebuild our lives after we endure suffering.
C. L.: Yes, but I wouldn’t force myself to forgive just so I could feel better! Some
time ago I taught a class at the Royal University of Phnom Penh to students aged
25 to 30. At the end of the class, one of them came to see me and said: “When I
listen to you I see your wounds, which have not gone away, but what is great is
that you allow us to touch them, and by doing so we gain the strength to look at our
own wounds”. As a Christian, I was reminded of the resuscitated man who said to
Thomas: “Reach out your hand and put it into my side”. I have not completely got
over the trauma that the Khmer Rouge inflicted upon me, but I am able to name it and
share it. Life resumes as we accept the scars of the past little by little.
J. A.: At the fall of the Khmer regime, you had the opportunity to denounce
the camp leader who used to attack you, but you refused. For what reason,
other than that you had forgiven her?
C. L.: I hated that woman, who used to send us out to pick up excrement and regularly subjected us to lashes of the whip when we failed to show enough enthusiasm
in carrying out our tasks. But when the time came to denounce her, I saw in her
eyes the same fear that I had felt for four years, the fear of dying, and for a moment I
recognised her as a human being. The gaze of another is arresting. There is a reason
why people are blindfolded before being shot dead.
J. A.: You were steeped in Buddhism for much of your life. Was the question
of forgiveness also part of that spiritual path?
C. L.: For me, the concept of forgiveness as understood in Christianity is founded on
the Abrahamic tradition and presupposes the existence of a personal and merciful
God. That is not a feature of Buddhism, which does not refer to God but rather to the
ultimate truth and awakening. Indeed, the word “forgiveness” has no exact equivalent
in my native language: when someone becomes aware they have injured another,
they ask them “not to retain the transgression”.
This does not mean that Buddhists are incapable of opening up to the act of forgiveness. They share the Hindus’ primary belief in what is called the law of karma,
a Sanskrit word which refers to actions and their consequences. All of our acts,
whether good or bad, produce good or bad effects which follow us like our shadow.
It is a law of causality, like a physical law. So the average Khmer does not believe in
impunity, since all bad actions eventually catch up with us.
The Khmer Rouge used the law of karma as an instrument, they used the notion
of retribution to claim that their victims deserved their punishment, that they were
suffering the consequences of earlier bad actions. It was terrifying, they made the
victims responsible for their own deaths. There were no longer any criminals or
torturers. If everything is justified by karma, there can no longer be any injustice.
Now that I am a Christian, when I hear Christians say “God is punishing you” or “it is
because of God’s will that you have been punished”, I cannot accept it, it’s the same
as the Khmer Rouge discourse, which used religion to explain Evil, even though it is
something that remains enigmatic. As soon as you start to explain Evil, I think you
show contempt for your victims.
The other fundamental conviction of Buddhism relates to the responsibility of
human beings. To recognise that humans are responsible for what happens to them
is to recognise the greatness of human beings, something that is all too often forgotten. Responsibility is not given to just anyone, not even divine beings. When
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an appalling act is committed, such as the crimes of the Khmer Rouge, we have a
responsibility not to accept it, to “cut off” the transgression. That is non-violence.
It is a moral requirement of Buddhism to do everything possible to alleviate the
disastrous effects of bad actions. This raises a question for Buddhists: when violence occurs on a massive scale, when it is committed as part of a State system,
what of my responsibility to “cut off” such actions? What must we do when we are
overwhelmed and no longer have the space necessary to withdraw? Faced with
this dilemma, Buddhists who have not travelled far on their spiritual path can console themselves with the idea that those responsible will be punished sooner or
later, they can avoid the tiring process of reflection and let karma take over. More
advanced Buddhists will engage what are known as the four incommensurable sentiments: benevolence, compassion, sympathetic joy and equanimity, sentiments that
the Khmer Rouge should have felt for their victims in an effort to understand the
other. To do this, one must believe not only in individual karma but also collective
karma.
J. A.: In the West, we tend to think of karma as a purely personal concept.
C. L.: No, it includes a dimension which in the West is expressed in what we call geopolitical and social causes. That was the mistake of the International Criminal Court
in confining itself to the period between 1975 and 1979 rather than looking at the
collective factors which overlapped and produced the Khmer Rouge tragedy. First,
the country was suffering from extreme levels of social injustice, as the wealthy
seized its riches and its resources, in effect preserving the hatred that peasants felt
towards urban dwellers. King Norodom Sihanouk also had individual responsibility as
he never allowed the emergence of any real political opposition. Then there was the
responsibility of the international community, as I mentioned earlier, with regard to
the Vietnam War and the spread of Communist ideology. This question of ideology is
crucial. Perhaps I am overly influenced by the Buddhist tradition, but I am convinced
that people do not behave badly with bad intentions, but rather with good intentions.
Of course there is no way to defend the Khmer Rouge, but they really did believe
in the new society that they wanted to build. Every time there is a shift towards a
singular ideology that will not countenance any criticism, the outcome is disastrous.
Indeed, that is what is interesting about the ICC, which some Cambodians feel is a
parody of justice and serves only to flatter the good conscience of Westerners: for
the first time, the Communist system was put on trial. As a priority, the tribunal
should have created a forum in which the events involving the Khmer Rouge could
have been explained in economic, sociological, geopolitical and even spiritual terms,
a forum in which the victims and their torturers could later evolve side-by-side, in
the “here and now”. That is what I have always recommended, along with a few other
Khmer intellectuals.
J. A.: But it is not the role of the ICC to ensure reconciliation.
C. L.: That’s just it. I think that the Khmers raised an important issue for the ICC
and the wider international community: that of the meaning of justice. If justice is
about no more than judging, convicting and punishing, then we are not interested.
Of course sanctions are required when the rule of law is violated, and impunity cannot be allowed to remain a daily reality, but justice should not stop there, it must
introduce the possibility of a shared future after the Khmer Rouge and the collective
trauma they caused, without which we don’t know in which direction to turn. We
must talk and exchange views, name and recognise bad actions, analyse and understand their causes, and share and confront our pain. To rework the past and engage
with mourning, as I have said, is the duty of all witnesses towards Cambodia’s
younger generations. It allows us to move beyond all feelings of guilt and any victimisation complex so that we may rebuild our lives as a people and as a country.
Isn’t the ultimate aim of justice to help us learn to live together and to renew social
links when they are severed by mistrust and hatred of the other?
Interview conducted with the help of Olivia Moulin.
* Revenue de l’enfer, 27 March 2002, Éditions de l’Atelier, Ivry-sur-Seine, 175 pages; La Mangrove :
À la croisée des cultures et des religions, October 2001, Laval, Éditions Siloé, 208 pages; Retour
au Cambodge : Le chemin de liberté d'une survivante des Khmers rouges, 18 January 2007, Éditions
de l’Atelier, Ivry-sur-Seine, 221 pages.
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The prohibition of torture:
a legal imperative worth defending
édouard delaplace, doctor of law and special advisor
to Association for the Prevention of Torture (APT)
Condemning torture is above all an ethical and moral imperative. It is a profound,
personal and sometimes instinctive conviction that to violate the dignity of another
individual is, under all circumstances, absolutely intolerable and unacceptable.
As is often the case in human society, this ethical and moral imperative has been
enshrined in legal instruments which are themselves every bit as imperative. Article 5 of the Universal Declaration of Human Rights, Article 7 of the International
Covenant on Civil and Political Rights (ICCPR), Article 3 of the European Convention
on Human Rights (ECHR) and Article 5 of the African Charter on Human and People’s
Rights all prohibit torture.
What is more, these legal instruments make it clear that the ban on torture is absolute. Article 4 of the ICCPR, Article 15 of the ECHR and Article 27.2 of the InterAmerican Convention on Human Rights stipulate that the prohibition of torture is a
principle from which there can be no derogation. In other words, not even the most
exceptional of circumstances can result in legal authorisation of the use of torture.
Finally, the ban on torture has been recognised as a peremptory norm under international law1, i.e. one which sits at the highest level of the international legal framework and whose absolute nature can in no way be challenged by any other legal
norm. Beyond the strictly legal meaning of this term, which had never before been
applied to a measure designed to protect human rights, it is an indication of the
international community’s profound attachment to the ban on torture and the protection of human dignity under all circumstances.
Furthermore, this legal imperative has been progressively strengthened by a framework that fully recognises the absolute nature of prohibition. Following the global
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campaign against torture initiated by Amnesty International and supported by ACATFrance in the mid-1970s, several international instruments were adopted with a view
to making this a reality. The United Nations Declaration on the Protection of All
Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1975), the UN Principles of Medical Ethics relevant to the
role of health personnel, particularly physicians, in the protection of prisoners and
detainees against torture and other cruel, inhuman or degrading treatment or punishment (1982), and above all the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (1984) compelled States to ensure
the prohibition of torture became a reality.
Without going into too much detail, broadly speaking the provisions of the Convention
are about taking all necessary legislative, administrative, legal and other measures
to prevent torture and other forms of ill-treatment (Article 2), ensuring that people cannot be expelled, returned or removed to a country where they are at risk of
being tortured (Article 3), criminalising acts of torture (Article 4), applying universal
jurisdiction to crimes of torture (Article 5), integrating the ban on torture and other
types of ill-treatment into the training provided to relevant personnel (Article 10),
ensuring that impartial investigations are conducted where torture allegations have
been made (Article 12), guaranteeing victims the right to compensation and rehabilitation (Article 14), and, lastly, rejecting the use of information obtained under torture
(Article 15). At the beginning of the 21st century, the legal regime that underpins the
ban on torture was presented as an impenetrable fortress. To a certain extent, the
question of defending this regime was not even raised given that to challenge it in
any way seemed legally, politically and ethically impossible.
Yet in the space of a decade, especially though not exclusively as part of the fight
against international terrorism, the impenetrable fortress that was the prohibition
of torture came under siege. Ostensibly in the name of security, some States have
done everything in their power to circumvent the absolute nature of the ban and free
themselves of the obligations that came with it.
Ten years on, as the siege appears to be subsiding, it is possible to reappraise the
situation and conclude that the fortress is still standing and that most of the attacks
have been repelled. Yet there is a need to (re)consider the means and strategies with
which we can provide greater protection for this legal imperative and ultimately for
future victims.
Vain attacks (?) against the absolute legal ban on torture
Over the last 10 years, the legal ban on torture has been the target of various attacks
designed to undermine its absolute nature, the material scope for its application and
some of the obligations it imposes upon States.
Attacks against the absolute nature of the ban on torture
As we have already seen, international law prohibits torture absolutely. This means
that even in the most extreme circumstances, torture is a practice that cannot be
justified.
Yet the attacks that took place on 11 September 2001 and the climate of insecurity
they left in their wake resulted in some countries, chief among them the United
States, openly trying to abandon this principle. Highlighting the exceptional danger
of the terrorist threat and the inhumanity of those responsible, these States, with the
support of a certain number of academics2, sought to breathe new life into the utilitarian view that the end justifies the means. As they used and abused the deceptive
and fallacious theory of the ticking time bomb3, they tried to convince others that in
some particular circumstances it can be legitimate to engage in acts of torture.
The highly delicate question of whether public opinion would ever accept this utilitarian discourse will not be addressed in this article, although from a legal point of
view it is clear that these attempts proved vain. Over the last 15 years, not a single
competent international body missed the opportunity to repeat time and again that
the ban on torture is absolute. On the contrary.
The UN Committee against Torture* (CAT), in a declaration that was rather unusual4 although fully justified by the attempts being made to contest the absolute
nature of the prohibition of torture, felt it was necessary to remind “State parties
to the Convention of the non-derogable nature of most of the obligations undertaken by them in ratifying the Convention” and express its confidence “that whatever
responses to the threat of international terrorism are adopted by State parties, such
responses will be in conformity with the obligations undertaken by them in ratifying
the Convention”.
Similarly, on several occasions the European Court of Human Rights (ECtHR) has
had to reassert the absolute nature of the ban on torture, leaving no room for ambiguity. In the case of Saadi v. Italy5, it held that “Article 3, which prohibits in absolute
terms torture and inhuman or degrading treatment or punishment, enshrines one of
the fundamental values of democratic societies. [It] makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a
public emergency threatening the life of the nation […]. As the prohibition of torture
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and of inhuman or degrading treatment or punishment is absolute, irrespective of the
victim’s conduct […], the nature of the offence allegedly committed by the applicant is
therefore irrelevant for the purposes of Article 3”.
Such public statements had the enormous merit of compelling those who supported
the use of torture to back down. And although from time to time one still hears political leaders occasionally putting forward a utilitarian and/or security-based argument to defend the practice of torture, it is clear that such positions remain highly
marginal.
However, it goes without saying that the victory of this official discourse in the public
sphere in no way implies that such practices have not continued in secret, and in a
way that is disguised as much as possible, or that we do not face many obstacles in
our efforts to establish truth and justice.
In this respect, the use of extraordinary renditions* is a rather striking example of the
clandestine way in which such actions continue to be perpetrated and further reveals
the difficulties in bringing an end to and condemning this phenomenon. This procedure, which involves temporarily transporting an individual to a third party State
where they are subjected to torture, has persisted in recent years, although those
involved do everything they can to hide their actions, mainly because it is an illegal
procedure or because it breaches the absolute ban on torture. Their efforts were
unsuccessful, since extraordinary renditions have been extensively documented6,
but we had to wait for the recent ECtHR ruling in the case of El-Masri v. the former
Yugoslav Republic of Macedonia (13 December 2012) to see them formally condemned7.
Attacks against the material scope for the application of the ban
Faced with the impossibility of challenging the absolute nature of the ban on torture,
many have tried to limit the material scope for its application by tweaking aspects of
the definition of torture. Whereas international institutions were in agreement that in
order to qualify as torture acts of violence had to result in “severe pain or suffering,
whether physical or mental”8, the US administration tried to demonstrate that acts of
torture should only include those that cause pain that is difficult to endure9. Indeed,
the authorities even went so far as to suggest that “Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury,
such as organ failure, impairment of bodily function, or even death”10.
Based on this scandalous and flagrantly reductive approach, their aim was above all
to restrict the obligations of States as much as possible by arguing that acts which
did not fall within the scope of the definition constituted “merely” cruel, inhuman or
degrading treatment, which was prohibited in terms less absolute than those relating
to torture. Yet international human rights law makes no distinction and views the ban
on both practices to be fully non-derogable.
These efforts ultimately failed. Even though the definition of torture can still give
rise to tortuous debates11, international bodies, relying on the definition provided in
Article 1 of the UN Convention, have played a key role in reiterating and confirming
the characteristics of torture, thereby pre-empting all efforts to limit the scope for
the application of this definition.
In particular, the International Criminal Tribunal for Former Yugoslavia (ICTY) once
again made an important contribution. It repeatedly recognised that acts of torture
must be of “substantial gravity”12 and that the circumstances of each case must be
considered13 (the international bodies agree that the victim’s character, gender, age
and health must be taken into account when assessing the severity of an act), and
has often supported the view that “Although such torture practices often cause permanent damage to the health of the victims, permanent injury is not a requirement
for torture”14.
On the basis of this case law, efforts to limit the material scope for the application of
the ban on torture to acts that result in permanent injury were therefore rejected15.
Attacks against certain obligations: the example of diplomatic assurances*
The third type of challenge involved trying to undermine certain obligations associated with the ban on torture. The practice of diplomatic assurances is a good example of this. Included in the legal obligations imposed by the prohibition of torture
is the principle of non-refoulement*, which holds that no-one should be returned,
removed or extradited to a country in which they may be subjected to torture or other
forms of ill-treatment. This principle, which falls under customary international law,
presented an obstacle to some Western States who wanted to return individuals
suspected and/or convicted of acts of terrorism to their home countries.
In order to circumvent this obligation, some of these States sought to rely on diplomatic assurances. This technique, which has already been used by European countries in cases involving the return of individuals to a country in which they were likely
to be sentenced to death, consists in seeking diplomatic assurances from the receiving State that a death sentence will neither be necessary nor carried out. Where an
individual is at risk of torture, the returning State seeks formal assurances that they
will not be subjected to torture or other forms of ill-treatment.
Some States initially relied on such agreements to authorise the return of undesirable detainees to countries where they were at risk of ill-treatment. Once again,
however, the relevant institutions16 together with civil society spoke out against
these “empty promises”17 and their illegality. As a result, States subsequently put in
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place more binding mechanisms to seek even greater assurances that the individuals
in question would not be subjected to torture. After some procrastination, some of
these agreements were validated at an international level.
In the case of Othman v. the United Kingdom18, involving the returned to Jordan of the
radical Islamist Abu Qatada, the ECtHR ruled that the agreement reached between
the British and Jordanian governments for the expulsion of the applicant included
sufficient guarantees so as not to constitute a breach of Article 3 of the European
Convention on Human Rights.
However, the court’s validation in this particular case – which undoubtedly represents a step backwards in terms of upholding principles – does not necessarily apply
to all scenarios involving diplomatic assurances. Indeed, the court has imposed strict
and precise conditions with which to govern these procedures in the future. It has
identified no less than 11 criteria with which to evaluate such agreements19. They
include “whether the assurances are specific or are general and vague […], who has
given the assurances and whether that person can bind the receiving State […], the
length and strength of bilateral relations between the sending and receiving States
[…] [and] whether compliance with the assurances can be objectively verified”20.
This use of diplomatic assurances can be seen in two different ways. It is of course
possible to see it as a way of challenging certain legal obligations, since some States
have successfully returned a certain number of people even though the risk of torture
had not been completely eliminated. But is also possible to see in this “reinforced”
protocol of diplomatic assurances further evidence that the States concerned were
unable to do exactly as they pleased.
Ultimately, without wishing to overlook the dramatic deterioration in the experience
of persons deprived of their freedom, especially although not exclusively in the context of the fight against terrorism, it would appear that the legal framework for the
ban on torture has stood up rather well to the various attacks launched against it. It
would nonetheless be naive to believe that this framework alone was sufficient to
curtail or bring an end to the many acts of impropriety committed as part of the fight
against international terrorism, and more generally as part of efforts to contest the
primacy of human dignity over all other considerations. Other forces – institutional
and ethical as well as normative – have exerted influence over the course of this battle. They need to be explored if we are to better safeguard the legal imperative that
is the prohibition of torture.
A legal imperative worth defending: aspects to consider
The attacks in recent years against the legal regime underpinning the absolute prohibition of torture have at least had the merit of consolidating the much-needed vigilance of individuals, civil society and other authorities responsible for protecting the
dignity of those who are deprived of their liberty and of encouraging them to think up
new strategies to ensure this regime is effectively strengthened and, in turn, improve
efforts to prevent torture.
Their approach involves putting into effect the normative framework itself, developing institutional structures, in particular at national level, and reinforcing the ethical
conviction that the ban on torture is absolute.
Putting the normative framework into effect
Although one might say that in terms of normative quality the legal framework underpinning the ban on torture no longer needs to be strengthened, a certain amount of
progress could still be made in terms of the content of that framework.
Traditionally, such progress would be made through institutional processes such as
the ongoing revision of the UN’s standard minimum rules for the treatment of prisoners or initiatives taken at a regional level by Asian or Arab States or in relation to
certain categories of detainees in a state of vulnerability.
But strengthening the normative framework relies much more on increasing efforts
to put existing norms into effect so that they can be made as concrete as possible.
To this end, the use of international or regional and national mechanisms could prove
to be particularly effective.
For example, the progress made in recent years in carefully regulating the first
few hours of detention, when the risk of torture is at its highest, owes much to the
work of such mechanisms. Under the influence of the European Committee for the
Prevention of Torture* (CPT)21, based solely on Article 3 of the European Convention
on Human Rights, it is now recognised that anyone who is arrested must be allowed,
in the first few minutes following their arrival at their place of detention, to have
access to the doctor of their choice as well as a lawyer and must be allowed to
inform their family or loved ones of their arrest and the location at which they are
being held.
Since Article 3 has been made operational in this way, many actors at national level
(NGOs, lawyers, parliamentarians, etc.) have been able to strengthen the existing
legal framework so as to better prevent acts of ill-treatment. In particular, the presence of a lawyer during the first few hours of detention in many countries is largely
due to these developments.
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But the devil is in the detail, so we must go even further in fully implementing the
standards in place. Again in terms of having access to a lawyer, it is useful when
regulations or case law clearly address issues such as the exact procedures for
contacting one’s lawyer, the quality of public information about this right, and the
existence or absence of a high-quality legal aid service for detainees with inadequate financial resources. In the same vein, when it comes to having access to a
doctor, further clarity is needed on issues relating to the conditions of the medical
examination, the training provided for medical personnel required to document signs
of ill-treatment, and the protection of data confidentiality. Similarly, the procedure for
making a telephone call to one’s family or loved ones, and whether or not the call can
be made free of charge, are questions that need to be examined.
The same concrete steps need to be taken on issues relating to staff training, interrogation procedures, access to justice, contact with the outside world and body
searches.
Where clarifications or specifications are provided or other normative developments
made, those who act to protect the dignity of detainees are given the means not only
to enforce the rights of those they represent, but also to establish a concrete and
specific basis for dialogue with the competent authorities with a view to effectively
improving the treatment of detainees.
In this regard, international, regional and especially national institutions have a crucial role to play.
Developing the national institutional fabric
The legal regime underpinning the ban on torture may have stood up to the attacks
launched in recent years, but this is also due to the existence of a particularly welldeveloped and targeted institutional fabric, especially at international and regional
levels.
The UN Special Rapporteur* on Torture, the UN Committee Against Torture, the UN
Subcommittee on Prevention of Torture, the European Committee for the Prevention
of Torture, the ECtHR, the Inter-American Commission’s Special Rapporteur on the
Rights of Persons Deprived of Liberty, and the international criminal courts have all
played a decisive role, establishing a “cordon” against attacks by issuing reports and
statements, conducting visits and providing the basis for other legal developments.
While it is always necessary to ensure that these institutions continue to benefit from
the political and operational independence they require to carry out their missions
effectively, it is also important to place greater emphasis on the national institutional
fabric, for efforts to safeguard and strengthen legal obligations also depend on the
creation or reinforcement of national institutions.
In this regard, the developments surrounding the implementation of the Optional
Protocol to the UN Convention against Torture (OPCAT) are of particular interest.
Under the terms of this protocol, all 69 States parties must put in place National
Preventive Mechanisms* (NPM) to prevent torture and carry out regular inspections
of all custodial facilities.
And beyond this function, which helps ensure greater transparency in detention centres and therefore greater levels of torture prevention, these mechanisms also often
serve as catalysts for questions relating to the protection of the dignity of those who
are deprived of their freedom. Through their knowledge of on-the-ground realities in
detention centres and their expertise in the area, they contribute to a wider process
of reflection involving civil society actors and public authorities. The case of the
Director-General of France’s custodial facilities offers a compelling example of how
a debate can be initiated surrounding the protection of the dignity of detainees. On
issues relating to the conditions of detention in French prisons22 or the treatment of
detainees23, the Director-General managed to participate in the public debate as an
important figure who expressed valuable views and who, without denying the need
to safeguard the security of persons and goods, managed to place those who are
deprived of their liberty at the centre of public concerns24.
The role of judges also needs to be strengthened, as the protection and physical and
mental integrity of those who have been arrested or detained lie at the heart of their
mandate as guarantors of individual freedoms.
Beyond monitoring the legality of detention, judges can also exert influence by
supervising the material conditions in which people are detained. In many cases
they have the authority to inspect custodial facilities within their jurisdiction. When
they take place, such inspections may be limited to ensuring that the correct judicial
procedures have been respected, but they may also provide an opportunity for the
judge to meet with detainees and talk to them about their treatment and conditions
of detention.
The role played by members of parliament should also be considered. They play an
essential role in ensuring that the national normative framework is conducive to the
prevention of torture and more broadly to the protection of the dignity of those in
detention. By allocating sufficient budgets to the penitentiary authorities, by expanding training for staff members responsible for applying the law, and by establishing
independent monitoring mechanisms, they can work towards this objective.
Strengthening the ethical and moral dimension
Ultimately, if the legal regime underpinning the ban on torture has been successfully
defended in recent years, it is also and perhaps above all because fundamentally it is
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based on a very strong ethical and moral conviction that it is unacceptable to violate
the dignity of another individual.
In her highly inspiring contribution to ACAT’s 2011 report, A World of Torture25,
criminology professor Sandra Lehalle concluded that the normative framework was
important as a complement to a moral approach. The reverse is also true: whether in
the past, present or future, this framework can only be sustained with the support of
solid ethical and moral convictions.
One of the reasons that judges, monitoring mechanisms, civil society activists and
also certain public authorities have been able to resist the significant levels of political pressure exerted by some States, as well as the equally intense pressure from
some voices within the public debate, is that as individuals and as institutions they
were bound by the convictions forged as part of their training, career paths, personal
choices and public mandates. These convictions are precious indeed and need to be
carefully preserved and consolidated.
To a certain extent, and almost paradoxically, the attacks in recent years and more
broadly the emphasis placed on protecting individual and collective security have
offered and continue to offer those who fight against torture and seek to protect
human dignity a unique opportunity to preserve and strengthen this ethical and moral
conviction by compelling them to (re)consider the very foundations of their work.
That which has been lost against a backdrop of disillusionment, sadness and sometimes anger towards such brutal discourses and acts and the suffering caused to
victims has been counterbalanced by the revitalised ethical and moral commitments
of those who combat torture. Like their predecessors in the 1970s, the actors of the
early 21st century have had to dig deep into their individual and collective values if
not to win outright (torture continues to be practised in almost half of all countries
worldwide) then at least to fight valiantly in yet another battle.
It is this dynamic that today must be maintained so that in the future we may be
equipped to defend an imperative in which we believe in the name of human dignity,
that of the absolute prohibition of torture.
[1] International Criminal Tribunal for the Former Yugoslavian (ICTY), Prosecutor v. Anto Furundzija, Judgement,
10 December 1998, IT-95-17/1-T, § 153-157: http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf.
[2] See in particular DERSHOWITZ. Alan M., ‘Should the Ticking Bomb Terrorist be Tortured?’, in Why Terrorism Works,
Yale University Press, 2003, 288 pages, pp. 131-164; POSNER, Eric A. and VERMEULE, Adrian, ‘Should Coercive Interrogation be
Legal?’, Michigan Law Review, 2006, Vol. 104:671: http://www.michiganlawreview.org/assets/pdfs/104/4/Posner_Vermeule.pdf;
and GROSS, Oren, ‘The Prohibition on Torture and the Limits of the Law’, in Torture: A Collection, Oxford University Press, 2006,
352 pages.
[3] For further details about this theory, see in particular Association pour la prévention de la torture (APT), Désamorcer
le scénario de la bombe à retardement. Pourquoi nous devons toujours dire NON à la torture, 2007: http://apt.ch/content/files_res/
tickingbombscenariofr.pdf; and DE LINARES, Jean-Étienne, ‘Le masque des bourreaux’, in Courrier de l’ACAT, December 2004:
http://www.acatfrance.fr/medias/pages_dynamiques/doc/lemasquedubourreau.pdf.
[4] United Nations, Office of the High Commissioner for Human Rights, Statement of the Committee Against Torture,
22 november 2001, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.XXVII.Misc.7.En?Opendocument.
[5] European Court of Human Rights (ECtHR), Case of Saadi v. Italy (Application no. 37201/06), Judgement, 28 February 2008:
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-85276#{"itemid":["001-85276"]}.
[6] See in particular Open Society Justice Initiative, Globalizing torture: CIA secret detention and extraordinary rendition:
http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf.
[7] See in particular HERVIEU, Nicolas, “Les détentions secrètes de la CIA et les “restitutions extraordinaires” sous l’accablant
regard européen”, La Revue des Droits de l’Homme, 24 December 2012: http://revdh.org/2012/12/24/terrorisme-detentionssecretes-cia-et-restitutions-extraordinaires/.
[8] ICTY, Prosecutor v. Zejnil Delalic and others, Case no. IT-96-21-T, 16 November 1998, § 452-474: http://www.icty.org/x/cases/
mucic/tjug/en/981116_judg_en.pdf
[9] GREENBERG, Karen J. and DRATEL, Joshua L., The Torture Papers: The road to Abu Ghraib, Cambridge University Press,
2005, 1284 pages.
[10] Extract from the “Bybee” memorandum (named after its author, Jay S. Bybee), used in the ICTY judgement
of Prosecutor v. Brðanin, Case No. IT-99-36-A, 3 April 2007, 195 pages, § 244: http://www.icty.org/x/cases/brdanin/acjug/en/
brd-aj070403-e.pdf.
[11] See in particular BURCHARD, Christoph, ”Torture in the Jurisprudence of the Ad Hoc Tribunals, A Critical Assessment”,
Journal of International Criminal Justice, Oxford University Press, May 2008, Vol. 6, Issue 2, pp. 159-182: http://jicj.oxfordjournals.
org/content/6/2/159.abstract.
[12] ICTY, Prosecutor v. Krnojelac, Judgement, IT-97-25-T, 15 March 2002, 195 pages, § 181: http://www.eccc.gov.kh/sites/default/
files/documents/courtdoc/00207009-00207023.pdf.
[13] See DROEGE, Cordula, ‘“In truth the leitmotiv”: the prohibition of torture and other forms of ill-treatment in international
humanitarian law’, International Review of the Red Cross, Vol. 89, No. 867, September 2007, 541 pages, p. 529:
http://www.icrc.org/eng/assets/files/other/irrc-867-droege.pdf.
[14] ICTY, Prosecutor v. Kvocka, Judgement, IT-98-30/1-T, 2 November 2001, 241 pages, p. 43, § 148:
http://www.icty.org/x/cases/kvocka/tjug/en/kvo-tj011002e.pdf.
[15] ICTY, Prosecutor v. Brðanin, Judgement, IT-99-36-À, 3 April 2007, 195 pages, p. 71, § 244-252:
http://www.icty.org/x/cases/brdanin/acjug/en/brd-aj070403-e.pdf.
[16] See for example United Nations, Torture and other cruel, inhuman or degrading treatment or punishment, Note by
the Secretary-General, 30 August 2005, 7 pages, in particular § 40-52: http://www.refworld.org/docid/43f30fb40.html;
United Nations, Committee Against Torture, Communication No. 233/2003: Sweden, 24 May 2005: http://daccess-dds-ny.un.
org/doc/UNDOC/DER/G05/421/69/PDF/G0542169.pdf?OpenElement; and European Committee for the Prevention of Torture
(CPT), 15th General Report on the CPT's activities covering the period 1 August 2004 to 31 July 2005, 22 September 2005,
in particular § 38-42, or ECtHR, Saadi v. Italie, op. cit.
[17] See in particular Human Rights Watch (HRW), “Empty Promises”: Diplomatic Assurances No Safeguard against Torture,
15 April 2004, Vol. 16, No. 4 (D), 39 pages: http://www.hrw.org/sites/default/files/reports/diplomatic0404.pdf.
[18] ECtHR, Case of Othman (Abu Qatada) v. the United Kingdom (Application no. 8139/09), Judgement, 17 January 2012:
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108629#{"itemid":["001-108629"]}.
[19] Ibid, § 189.
[20] Centre suisse de compétence pour les droits humains (CSDH), Assurances diplomatiques: exercice difficile pour la Cour
européenne des droits de l’homme, 2 May 2012: http://www.skmr.ch/frz/domaines/police/nouvelles/assurances-diplomatiques.
html; and HERVIEU, Nicolas, “Droit des étrangers (art. 3, 5, 6 et 13 CEDH) : Encadrements conventionnels des expulsions
d’étrangers terroristes menacés dans le pays de destination”, in Lettre « Actualités Droits-Libertés » du CREDOF, 24 January 2012:
http://www.droits-libertes.org/article.php3?id_article=167.
[21] See in particular CPT, 12th General Report on the CPT's activities covering the period 1 January to 31 December 2001,
3 September 2002, § 40-43: http://www.cpt.coe.int/en/annual/rep-12.htm.
[22] Contrôleur général des lieux de privation de liberté, Recommandations du Contrôleur général des lieux de privation
de liberté du 12 novembre 2012 prises en application de la procédure d’urgence (article 9 de la loi du 30 octobre 2007) et relatives
au centre pénitentiaire des Baumettes, à Marseille, et réponse de la garde des sceaux, ministre de la justice, du 4 décembre 2012,
6 December 2012: http://www.cglpl.fr/wp-content/uploads/2012/12/Recommandations-Marseille-et-r%C3%A9ponse-dela-garde-des-Sceaux_JO.pdf.
[23] http://www.legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=20100702&numTexte=81&pageDebut=&pageFin=;
http://www.legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=20110123&numTexte=25&pageDebut=&pageFin=; and
http://www.legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=20100725&numTexte=32&pageDebut=&pageFin=.
[24] Contrôleur général des lieux de privation de liberté, Avis du 8 août 2013 relatif aux jeunes enfants en prison et à leurs mères
détenues, 3 September 2013: http://www.cglpl.fr/wp-content/uploads/2013/09/AVIS-JO_nurseries_20130903.pdf.
[25] LEHALLE, Sandra, “The Absolute Prohibition of Torture: Defending a Moral Imperative”, in ACAT-France 2011 Report,
A World of Torture: http://unmondetortionnaire.com/IMG/pdf/a_world_of_torture-2012-DEF.pdf.
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Representing torture?
christiane vollaire, philosopher, writer1, member of the board of editors
for the journals Pratiques, Chimères and Outis
During his trial in Jerusalem in 1961, Adolf Eichmann presented his work in executing the “final solution” as an abstract process, a purely administrative task that
required him to provide good stewardship, coordinate train timetables and the many
people that had to be transported, ensure the railway lines operated efficiently, and
manage the work hours of the civil servants assigned to transport and handling. He
also claimed that he couldn’t bear the sight of blood without fainting, implying that if
he had been shown actual images of what he was organising from the safety of his
office, he would have been unable to commit the crime of which he was accused.
This suggests a visual sensitivity that is stronger than words, makes our awareness of the suffering of others more acute and provokes a kind of salutary shock in
response to violence. Similarly, as the 1960s came to a close, the images of children
starving to death in Biafra or Bangladesh were more successful in stirring collective
emotions and soliciting massive humanitarian donations than any information on the
war itself.
Showing images of bodies scarred by torture might therefore be the best way of
raising collective awareness and encouraging people to speak out against such practices. Indeed, this is the technique adopted by those who wish to provoke emotions:
they use images to get people to sign petitions. And these images are considered to
provide the testimony that public discourse is unable to communicate. An asylum
seeker, for example, needs to do more than simply recount the abuses suffered; he
must show the signs of that abuse, as if using his body to prove that which his words
cannot.
Representing torture – displaying it visually – is perhaps therefore the only sure way
both to present it as a credible reality and discredit it. It is this certainty of awareness-raising through the use of images that we will be discussing here.
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Martyrology and hellish suffering:
images of torture and religious tradition
In the same year as Adolf Eichmann’s trial (1961), Georges Bataille published The
Tears of Eros, which examined the libidinal power of the image. One celebrated passage refers to the “torture of a hundred pieces”, a Chinese torture inflicted on regicides of which Bataille presents a photograph taken at the beginning of the century.
The central image is the torso of a young man with a distant expression who is being
dismembered alive. Bataille wrote: “This photograph had a decisive role in my life.
I have never stopped being obsessed by this image of pain, at once ecstatic (?) and
intolerable. I wonder what the Marquis de Sade would have thought of this image,
Sade who dreamed of torture, (which was inaccessible to him) but who never witnessed an actual torture session. In one way or another this image was incessantly
before his eyes. But Sade would have wanted to see it in solitude, at least in relative
solitude, without which the ecstatic and voluptuous effect is inconceivable”.
The scopic impulse, manifested only through one’s gaze, here acts as a truly libidinal
vector as the sadistic dimension of the onlooker takes pleasure in the climax of pain
that the image tends to bring forth, thus transferring the ecstatic pain of the subject
in the photo to the orgasmic ecstasy of the beholder. Who would deny that the violent impulses of voyeurism are behind the most common images used for pleasure
which continually circulate online and in sadomasochistic meeting places, or that
from video games to blockbuster films the suffering inflicted by violence is one of
the essential driving forces behind our addiction to images?
But Bataille did more than simply read the work of De Sade, he also explored the
works of the great museums as an archivist and art historian. There he saw the many
representations of torture on display, part of the Christian tradition of the martyrology, the ordinary decor that adorned the churches and monasteries from which they
were taken. Female saints with hollowed out eyes, breasts torn off, tongues cut out
or thrown to the lions; their male counterparts dismembered, skinned alive, burned,
pierced with arrows or stoned to death, still on display on the stained glass and ceilings of our cathedrals. Yet who among us is concerned by the sadistic fascination
that they so clearly generate? And although we may seek to protect our children
from the violence of modern cinema, which of us would hesitate to show them the
Sainte-Chapelle in Paris or the Cathedral of Reims, where such scenes abound? And
where a model among martyrs is everywhere on display: Christ, with his crown of
thorns, scourged and ultimately, like all victims of crucifixion, left to die in the hot
sun, attacked by birds of prey.
Which of these images of torment could have discouraged the practices of the
Spanish Inquisition, whose torture chambers were designed very much with crucifixion in mind? And in terms of images of torture, what difference is there between
the representations of the dammed and those of the martyrs? Commissioned by
Pope Julius II, Michelangelo painted a self-portrait on the back wall of the Sistine
Chapel within the lines of Saint Bartholomew’s skin, torn off during his martyrdom.
It is clear that the images of the martyrology did no more to discourage the religious
institutions from using the very acts of torture that they denounced in the context
of the Passion of the Christ than images of war serve to discourage armies from
engaging in warfare.
Following the 1973 coup d’état in Chile, as a majority of the religious powers, brandishing their crosses, offered official and effective support for the military regime and
the systematic use of torture and enforced disappearances, a minority of Christians
from the Vicaria de la Solidaridad, an official institution of the Catholic Church but
which was in conflict with and was denounced by much of its hierarchy, risked their
lives gathering information, hiding political opponents and facilitating their escape.
From this perspective, the decision to use the cross as the emblem of Christianity
raises questions about the status of representations of torture. For this decision has
its own history: early Christians did not in fact identify with the cross, which for them
was an infamous and terrifying symbol of torture, something they were exposed to
due to their opposition stance. They chose the symbol of the fish, a Greek anagram
representing Christ or the miracles he had performed. Constantine was the first to
choose the cross, which he used as a banner for his army, in other words with a
view to killing. And the decision by the Christian authorities to adopt the “Roman
cross”, i.e. an instrument of torture adapted to the anatomy of the human body, came
at a time when Christianity was becoming the State religion and Christians were no
longer persecuted but were instead those most likely to carry out acts of persecution.
The scenes of torture inflicted on the dammed, in a dual inversion of those contained
in the martyrology, were intended to terrorise and brandished the threat of divine
violence for the purposes of encouraging submission. But in terms of morality they
achieved much more: they presented the practice of torture as a positive manifestation of divine power and therefore as an activity that was not only completely lawful
but was in fact necessary and glorious. This sent out the message that the torture
inflicted on Christ and the martyrs was not repulsive because of the act of torture
itself, but because of the subjects to whom it was applied.
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Visual terrorisation and the terrorism argument
The terrorism argument was used on a massive scale in the 20th century generally
and in particular during the Algerian War in order to justify the use of torture against
“terrorists”. This term evokes the same hatred that was directed at regicides or,
similarly, blasphemers, i.e. those whose political acts threaten the balance of power.
This is an accusation which in the 17th century was used to justify the torture of
Ravaillac, that of Damien in the 18th century, as described by Michel Foucault at the
beginning of Discipline and Punish, the “torture of a hundred pieces” in 19th-century
China, the French army’s use of electric generators to torture its opponents during
the Algerian War, and the boundless tolerance that continues to be accorded to the
legal anomaly that is Guantánamo Bay, the US facility that operates on Cuban soil.
In Zero Dark Thirty, a film by Kathryn Bigelow released at the end of 2012, once again
it is the accusation of terrorism that is used to justify, in the context of Guantánamo,
the initial sequence depicting the interrogation of a jihadist who supposedly enables
the CIA to track and execute Osama bin Laden. The torture scenes, twice filmed in
extensive detail, bear no hint of denunciation. On the contrary, the film has the dual
effect of political legitimisation and justification through careful scriptwriting: the
torture is effective because it is used to access the information required, and at the
same time it allows the heroine to experience the limits of her own endurance for
the suffering of another, thereby confirming her aptitude for virile virtues. When the
prisoner is left alone with her during the torture session and implores her to help
him, she responds with panache: “You can help yourself by being truthful”, before
turning away, having successfully proven that she too can be firm.
In reality, we know that Guantánamo, which still holds more than 150 detainees, of
whom just six have been put on trial, mainly houses prisoners who are now free
from any suspicion but nonetheless have not yet been released. Suicides and hunger strikes, which are brutally resisted, are regular occurrences, and we know of
the existence of overseas bases used to commit abuses in Europe and elsewhere,
contrary to the most fundamental legal principles. Yet a single image of the torture
inflicted here, crisp and carefully justified by the script, is sufficient to overrule our
conscience and place torture under the timeless banner of the “lesser evil”, something that can be used to “save human lives” or prevent violence, as a vigilante State
carries out its revenge.
Images of bodies subjected to torture are more effective in discouraging us from suffering the same fate than in discouraging us from practising torture ourselves, which
means that above all they have the power to terrorise and ensure our submission.
Similarly, when we are not fascinated by such images, to the extent that we are
repulsed or disgusted, they remain a tool of manipulation. Yet they tell us nothing of
the process itself. Images of surgery or injuries from an accident can repel us just
as much, even though they depict no intention of violence. And, as in the case of the
journalists who showed us the “mass grave” of Timisoara in Romania in 1989, broken
bodies taken from a regular morgue can generate collective emotions on demand
when photographed and published with deceitful captions.
Discrimination in the production of images
There is another interesting aspect of the contemporary representations of violence
captured by photographers: these images always evoke the exotic. The torture of a
hundred pieces, under the gaze of Westerners, depicts the Chinese; the exhibition
of tortured prisoners in Vietnam shows Vietnamese victims; the photos of tortured
fellaghas are of Algerians; the chaotic and disturbingly burlesque images of Abu
Ghraib prison near Baghdad are of Iraqis; and images of famine show people suffering on the African continent. In each case, these representations reveal a form
of racial discrimination, as pointed out by Susan Sontag in Regarding the Pain of
Others.3 The author analyses the way in which the bodies of the American victims of
the September 11 attacks, which would have been easy to photograph as they were
removed from the rubble, have not been presented, emphasising that there is a certain amount of complicity in photojournalism, which depicts the broken bodies of the
former colonies and their state of humiliation through their suffering.
In directing Shoah, Claude Lanzmann refused to show any images of the victims’
suffering as a mark of respect for the European Jews who were exterminated. Even
though in 1945 Lee Miller and Margaret Bourke-White had already published photos
of corpses and survivors taken when the extermination camps were first opened,
40 years later Lanzmann rejected the same depiction. His decision was based less
on religious iconoclasm than on a personal interpretation of the need to show respect
for the victims, and he even angrily denounced the photos taken in secret of the inside
of the camps while they were in operation, which were found many years later and
which he not only said could not be shown but were “impossible”.
The publication of torture images is often met with efforts to discredit, more or less
explicitly, not only the activities themselves but the source of the images. An image
of the corpses of Paris revolutionaries lined up in coffins, clearly tortured before
they were shot, tells us that the victims were commoners and, what is more, guilty of
violating State security. For the same reason, it is easy to find images of members of
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the Red Army Faction in 1970s Germany, but who has seen images of torture victims
from the French Resistance in World War II, even though such images must be out
there? No-one wants to present their loved ones in such a way, even to denounce the
treatment inflicted upon them.
One does not need to be an experienced semiologist to understand that images of
suffering above all humiliate those affected and that even though they condemn the
torturer, they are never degrading for him.
When images of the concentration camps being opened were shown during the
Nuremberg trials, the Nazi defendants were not humiliated by what they saw, but
rather by the position from which they were forced to see them: not that of a criminal, rather that of a defeated foe. And it is because they were defeated that they can
be punished for crimes which, up to that point, were a symbol of glory. In the same
way, when the extent of Adolf Eichmann’s crimes, made possible by the efficiency
of his administration, was presented before him in detail 16 years later, it was the
witnesses and former victims who collapsed in court rather than the accused, who
barely looked at them from behind his glass cabinet. His humiliation came from being
locked in a cage and not from having to listen to the list of his crimes, which he
understood better than anyone, having intentionally planned each one as he successfully carried out what he saw as his duty.
Revelation as a practice of warfare
Revealing images of torture is therefore at the very least a double-edged sword.
Refusing to engage in it necessarily implies a rejection of the very principle of torture, regardless of the various circumstances in which one might argue it can be
effective. A principle, inasmuch as it is universal, cannot be depicted by an image, and
images, as Jean-Jacques Rousseau wrote in his Essay on the Origin of Languages,
are always particular in nature.
In a short article entitled ‘À propos d’un plaidoyer’ (in response to a plea), published
in El Moudjahid in November 1957 at the height of the Algerian War, Frantz Fanon
responded to a book published by Éditions de Minuit in defence of Djamila Bouhired,
an Algerian militant who had been raped and tortured and recently sentenced to
death. He wrote: “A feature of most French democrats is that they only become
alarmed by individual cases that only serve to draw a tear or provoke a minor crisis of conscience. […] What is essential […] is not to confuse matters. We must not
present Djamila Bouhired as some poor girl who fell victim to unkindness. Djamila
Bouhired is a knowing Algerian patriot whose activities were structured within the
FLN. She neither asks for our commiseration nor our pity”4.
What does he mean? That the image of a young woman who has been tortured could
solicit our clemency based on pity? This is precisely what Fanon did not want. And
in rejecting that position, he clearly asserts the non-innocence of the victim. As a
militant, Djamila Bouhired placed bombs that killed people in busy cafes and claimed
to be a political activist fighting against French occupation in the Algiers region. She
was tortured more to punish her for these actions than to prevent those which it was
hoped she would reveal under torture.
The principle of torture is in itself a principle of racial discrimination, applied indifferently to those who have killed, like Djamila Bouhired, and those who live wholly
peaceful lives, like the incalculable number of Algerian peasants and city dwellers who were subjected to torture for no reason. In an earlier article, Fanon had
described the context of these torture practices: “Torture in Algeria is no accident, it
is not an error or a mistake. Colonialism cannot be understood without the possibility
of torture, rape and massacres. Torture is a symptom of the relationship between the
occupier and the occupied”5.
It was the account published in 1958 by the Frenchman Henri Alleg, a militant who
was tortured for supporting the FLN, which first raised concerns about torture practices. Gilles Caron, who went on to become a photojournalist, had enlisted 20 years
earlier as a paratrooper during the Algerian War. In his letters he wrote: “Enduring
endless discussions about the merits of Gloria Lasso and Dalida […], conversations
that refer to ears being cut off and eyes gouged out […] What desolation, the mountain
was bombed using napalm6.
“When we arrived our unit was holding three prisoners. They had been interrogated
and badly banged up7.
“This morning we got up at 5 o’clock and burned everything. […] It was the first time I
had seen people dumbstruck with pain, suffering from ‘a kind of lucid incomprehension of their condition’ (I found that in Promise at Dawn)8.
“The previous day, I had seen an old guy around 60 years old hanging upside down
from a tree, with a rope around one ankle. They were beating him without mercy,
using fists, shoes and belts. He was half dead when they took him down9.
“They avoid using mattresses, but you need only close the door to rape someone10.
“We’re playing a new game. We have to bring round the civilian population, we follow a long script: ‘[…] You are reminded that rape during peacetime is punishable by
death, etc.’ To think that it took 130 years of theft and six years of pillaging to come
up with that. […] For six years we practically taught the guys how to kill, torture, steal,
rape, etc”11.
These short excerpts from Caron’s correspondence tell us more about what Fanon
called “a symptom of the relationship between the occupier and occupied” than the
images of Biafra, taken years later by Caron himself, could ever say about the reality
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of war. The practice of torture is in no way an anomaly, it is the very essence of the
colonial relationship – this is precisely how we should interpret the intention to reveal
all that is implicit in torture. To torture someone is to gain knowledge of their body
as much as their thoughts, it is to invade their memory and rob them of all intimacy.
Whether it is physical or psychological, torture seen in this way is a form of revelation, a point that Fanon made when he raised the issue of the veil in Algeria. Whatever
one might think of the veil as an instance of sexist discrimination in Islamic culture,
the veil has also proved to be a means of identification and of escaping colonial
culture. Hiding one’s face is a way both to assert one’s identity through clothing and
to remove a part of oneself from the panopticon of the dominant investigating force:
“Each veil that is rejected reveals to the colonialists horizons that were once forbidden and shows them, bit by bit, the naked flesh of Algeria. […] Each Algerian woman
who decides to remove the veil signals to the occupier that the defence system of
Algerian society is breaking up, exposed and battered. […] Each face that is revealed
to the bold and impatient gaze of the occupier sends out the negative message that
Algeria is beginning to give itself up and accept the rape of the coloniser. With each
abandoned veil, Algerian society seems willing to learn from its master and change
its habits under the control and patronage of the occupier”12.
This link with the veil and the act of revelation is also connected to the image, and
many of the current debates about the veil, with all the violence they have generated,
would do well to take account of the simple yet complex analysis provided by Frantz
Fanon in this text, of the dual game of discrimination that is being played out in relation to the veil.
As Michel Foucault showed in Discipline and Punish, the dramatization of torture was
the central motif underpinning its legitimisation, and the invention of the guillotine
during the French Revolution in the 18th century heralded the end of the “ostentation
of torture”. In the 20th century, no images were published depicting the death sentence, and the secrecy in which it was carried out contributed both to its acceptance
and its discredit.
Ultimately, images of torture always reveal more about the degradation of the enemy
and his relegation to an inferior status than they serve to delegitimise the dominant
systems, which continue to use the image of the degraded and defeated foe for their
benefit.
Our unconditional rejection of torture practices should therefore be based on an
analysis of the relations at work in cases of political domination, without regard for
the emotions which representations of torture can elicit.
[1] VOLLAIRE, Christiane. Humanitaire, le cœur de la guerre, Paris l'Insulaire, 2007, 117 pages.
[2] BAZIN, Philippe and VOLLAIRE, Christiane, Le Milieu de nulle part, Grane, Créaphis éditions, 2012, 168 pages.
[3] SONTAG, Susan, Regarding the Pain of Others, New York, Farrar, Straus and Giroux, 2003, 131 pages.
[4] FANON, Frantz, “Pour la révolution africaine”, in Œuvres, Paris, Éditions La Découverte, 2011, 884 pages, pp. 754-755.
[5] Ibid, p. 747.
[6] CARON, Gilles, J’ai voulu voir, Lettres d’Algérie, Paris, Calmann-Lévy, 2012, 396 pages, p. 106. Translated from the French.
[7] Ibid, p. 107.
[8] Ibid, p. 109.
[9] Ibid, p. 110.
[10] Ibid, p. 123.
[11] Ibid. p. 218.
[12] FANON, Frantz, “L’An V de la révolution algérienne”, in Œuvres, p. 280.
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Tunisia: Towards a just spring
hélène legeay, Maghreb/Middle East Programme Director, ACAT
Zyed Debbabi was just 24 years old when he joined the swollen ranks of Tunisians
imprisoned on the strength of confessions obtained under torture. This young middle-class man from Ben Arous, near Tunis, had no criminal record and was planning
to travel to France to train as an aviation mechanic when his life was turned upside
down on 16 September 2013. He was driving home when he met some acquaintances
from his neighbourhood who asked him to drop them off near their homes. A short
distance later, the police stopped his vehicle to carry out an identity check. At that
moment, one of his passengers admitted to him that he was carrying a joint. Zyed,
panicking at the thought of being arrested without having done anything wrong,
accelerated past the checkpoint. He crashed into a bollard, and he and his passengers fled.
The following day, Zyed went to the police station to set things straight. But as soon
as he arrived, he was placed in police custody. The next day, he was driven to the
judicial police station for interrogation. That’s when his nightmare truly began. He
was tortured for almost five hours. He was burned with cigarettes, kicked, punched
and beaten all over his body with truncheons until he finally signed a confession so
that the abuse would end.
Six days later, he was brought before the investigating judge. He showed signs that
he had been beaten and was clearly in a state of considerable distress, but the judge
did not react. Zyed tried to explain that he had been tortured, but the judge refused to
listen. His lawyer asked for medical expertise to be heard, but the judge refused his
request, suggesting that the accused was already in that condition before his arrest.
The brutality of the police had been replaced by the indifference of the judiciary,
which was complicit by omission.
This case, just one among many, is indicative of the torture phenomenon in postrevolution Tunisia. Two and a half years have gone by since the authoritarian regime
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of Ben Ali was overthrown by the revolutionaries, who had identified as a key priority the eradication of the torture and impunity that had beset the country for so
long1. Yet during this period, a constant stream of torture victims have turned to the
legal offices of the Organisation Contre la Torture en Tunisie to denounce abuses suffered at the hands of the security forces after the revolution. The use of torture and
ill-treatment currently appears to be the main method of investigation used against
both political opponents and common law criminals2.
Torture practices are ongoing because they continue to benefit from a form of complicity on the part of the judiciary, which not only accepts confessions obtained by
force but actually guarantees the impunity of those who carry out acts of torture. It
is true that the most courageous judges in the country have now begun to record the
allegations made by torture victims, and have even opened investigations in some
cases at the risk of a backlash from the police, but such advances have not been
made on the kind of scale needed to offer any real encouragement.
Lawyers: spearheading the justice revolution in Tunisia
In order to counter the many pitfalls of the transitional justice system in Tunisia,
ACAT and the Swiss NGO TRIAL set up a programme to assist Tunisian lawyers
who represent torture victims. In November 2012, the two organisations held an
initial training session on documenting instances of torture and taking cases before
national and international judicial bodies. Thirteen cases involving torture victims
were then handed over to the lawyers who had undergone training. These victims are
representative of the torture phenomenon in Tunisia: some were tortured prior to the
revolution (1990s and 2000s) and others since it began. Some are left-wing, Islamist
or salafist political opponents, while others are suspected of common law crimes.
In each case, ACAT and TRIAL involved Tunisian lawyers and accompanied them
throughout each phase as the victims prepared their complaints: recording the victim’s story in detail and the circumstances of the incident; identifying those responsible and any accomplices; debriefing witnesses; gathering evidence; developing legal
arguments to be presented before national or international bodies, etc. At the same
time, the two organisations carried out advocacy work with the authorities in an effort
to overcome any obstacles facing the lawyers as they followed up on the victims’
complaints.
The objective is to consolidate the lawyers’ capacity for investigation and their ability
to act. It is hoped that we can progressively strengthen the status of victims and their
legal counsel within a system in which they are currently confined to an excessively
passive role by an all-powerful judiciary.
The project put in place by ACAT and TRIAL is based on a strategy to pin down the
Tunisian legal system so that it has as little room for manoeuvre as possible in the
way it handles torture allegations. The victims’ lawyers are required to carry out
investigations where judges refuse to do so, in order to ensure that no witness is
overlooked and no suspect can slip through the net. This applies to the torturers
themselves of course, but also to their accomplices, i.e. those who issued the order,
superiors, as well as judges and doctors who covered up the acts of torture.
This strategy also involves filing complaints in foreign jurisdictions where one of the
victims or suspects is a foreign national, or calling on the UN Special Rapporteurs*
if the torture investigation in Tunisia is not conducted independently or fails to meet
basic standards.
Finally, where victims are unsuccessful before the Tunisian courts, the two organisations, along with Tunisian lawyers, contact the UN Committee Against Torture* (CAT)
and ask it to remind Tunisia of its commitments in ratifying the Convention against
Torture in 1989, commitments which it has publicly reasserted both to its people and
to the international community since 14 January 2011.
So far seven cases have been filed under this project: five with the Tunisian courts,
one in France on behalf of a Franco-Tunisian victim, and one with the CAT on behalf
of a victim who failed to secure justice in Tunisia3.
ACAT and TRIAL use their available resources on a daily basis in an effort to provide
victims with the time and dedication denied them by the Tunisian judiciary and sometimes even their lawyers, who, despite their best intentions, are often overwhelmed
by the scale of their task. Lawyers are mostly accustomed to drafting short torture
allegations lacking in detail, following a short interview with the victim or one of
their relatives. By contrast, ACAT and TRIAL endeavour to compile precise and carefully structured documents which are gradually built up from a detailed account
provided by the victim and recorded over the course of an interview lasting several
hours. Judges tend to botch the investigation, the hearings of both victim and suspect, as well as the trial itself, so ACAT and TRIAL take various forms of legal action
to force them to work with due diligence and adopt an exhaustive approach so that
the truth may be established and justice may be handed down accordingly.
These organisations face two main obstacles in carrying out their work. First, Tunisian
judges are relatively inexperienced in handling serious crimes involving State officials. And even worse is their serious lack of independence due to political pressure
and a kind of self-censorship that is the result of decades of authoritarianism.
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Neither diligent nor independent: the vagaries
of Tunisia’s post-revolution judiciary
It is clear from the first prosecution of torture crimes before the Tunisian courts
that there is a long way to go before the judiciary will be able to conduct serious,
independent and impartial investigations. The “Baraket Essahel” affair involves acts
of torture committed in 1991 by police officers and military personnel against fellow
troops suspected of plotting against President Ben Ali. A group of military officers
were arrested that year, formally suspected of planning a coup d’état. They were all
tortured and a few of them were given long prison sentences at the close of unfair
legal proceedings, while the majority of them were released. Despite promises from
their superiors that they would be reintegrated, their careers were destroyed and
both they and their families were subjected to harassment for years. After the revolution, the victims were finally able to file complaints against their torturers with help
from several human rights lawyers. Because they had been arrested in relation to an
alleged coup d’état, i.e. as part of an operation to protect State security, the case was
transferred to the military courts under the terms of a law passed in 1982.
Torture was not recognised as a crime by the Penal Code in force in 1991. The victims
therefore filed charges of bodily injury with aggravating circumstances, as some of
them were left severely physically incapacitated as a result of the torture inflicted
upon them. Without any justification, the military judge turned a deaf ear to the arguments put forward by the victims and decided to charge the accused with assault – a
misdemeanour rather than a crime – without taking into account the long-term physical injury suffered. In a clear move to protect the institution to which they belonged,
the military courts also refused to prosecute some of the officials from the Interior
Ministry and all those from the Defence Ministry against whom accusations had been
made. The accused from the Interior Ministry and the office of the President were
given negligible sentences of between three and four years’ imprisonment following
a trial that was beset by irregularities.
All of the victims’ legal options have now been exhausted in Tunisia, and ACAT and
TRIAL are currently preparing to bring their case before the Committee Against
Torture in the hope that its decision will encourage the Tunisian judicial authorities
to adopt a more rigorous approach in future cases.
The civil judiciary is just as dysfunctional as the military court system. Rached Jaidane
has witnessed this first-hand ever since he filed a complaint of torture, after the revolution, at the hands of State security officials in 1993. At the time, Jaidane was teaching at a university in France and had returned to Tunisia to attend his sister’s marriage.
On 29 July, 15 State security officials dressed in plain clothes burst into his home in
the middle of the night without a warrant and arrested him in front of his family.
Koussaï Jaïbi, a pharmacist, was arrested on the same night as part of the same case
and in similar conditions. The men were suspected of plotting an attack against the
incumbent regime. They were driven to the Interior Ministry where they were interrogated separately under the direct supervision of senior officers from the political
police unit. They were questioned about their alleged plans and about suspected links
with Salah Karker, a senior member of Ennahda who was in exile in France.
On 4 September 1993, following 38 days in secret detention*, Jaïbi and Jaidane
were brought before an investigating magistrate for the first time and then placed in
pre-trial detention. On 20 June 1996, after three years in arbitrary detention, the two
men along with ten other suspects were sentenced to 26 years in prison for plotting an attack and for planning to kidnap the daughters of Interior Minister Adballah
Kallel and President Ben Ali. Their trial lasted just 45 minutes. They were released in
February 2006, after 13 years of ill-treatment in the Tunisian prison system.
In June 2011, Rached Jaidane filed a torture complaint against those from the Interior
Ministry who had tortured him and seven prison officials. From the outset, the investigation – which was being handled by civil rather than military courts – was skewed
in favour of the accused. The investigating magistrate failed to question Mr Jaïbi, who
was one of the primary witnesses in the case. Nor did he try to verify the statements
made by the accused, all of whom were cleared of any wrongdoing. Furthermore, as
in the Barraket Essahel affair, the judge decided not to take into account the disability
(of more than 35%) suffered by Mr Jaidane, which should have allowed the plaintiff
to bring criminal rather than civil charges. At the end of the pre-trial hearing, on 17
May 2012, the judge found the accused guilty of assault, an offence that exposed the
torturers and their accomplices to a prison sentence of no more than five years, far
too lenient to reflect the gravity of their acts.
In January 2013, ACAT and TRIAL hired a Tunisian lawyer to assist Mr Jaïdane for
the remainder of the proceedings and try to correct the grave errors committed by
the judge during the pre-trial hearing. Unfortunately, more than one and a half years
after the investigation had ended, the trial continued to be postponed either because
of requests from the lawyers of the accused or because one of the accused refused
to appear before the court. These are the kinds of delay tactics that are tolerated by
judges, a clear indication that they are intent on exhausting the victims and gradually
bringing the case to a standstill.
Faced with such obstacles, ACAT and TRIAL decided to bring the case before the
UN Special Rapporteur on Torture in the hope that he would raise the issue with the
Tunisian authorities. This is the first step towards giving the case an international
dimension. If the Tunisian judges nonetheless decide to postpone the trial yet again
at the end of December 2013, the two organisations will file a complaint with the UN
Committee Against Torture.
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306
Going international: a double-edged strategy
Systematically turning to the CAT when there are insurmountable obstacles at
national level is not an end in itself. Ideally, both for the victims and for the Tunisian
State, legal proceedings should only take place on national soil. The Committee cannot accord victims all that a Tunisian judge can: recognition by the State itself and
perhaps even by the torturers of the crime committed, a criminal conviction against
those responsible, as well as compensation and rehabilitation.
However, given the failings of the judiciary, the CAT is the final defence against a
climate of total impunity. It can give victims the recognition that has been denied by
the State and is so essential for their rehabilitation. Furthermore, if the government
is even a little bit sensitive with regard to the image it projects onto the international
stage, of which the United Nations is a central forum, the Committee’s decisions
place additional pressure on the authorities to implement judicial reforms.
Proceedings at the CAT can be lengthy, however, and some of the victims defended
by ACAT and TRIAL face a cruel race against the clock. An example is Taoufik Elaïba,
who was detained in Tunisia on the basis of confessions obtained under torture. This
50-year-old Tunisian-Canadian national, a father of four children, was arrested on
1 September 2009 by officers from the National Guard and then tortured for several
days until he agreed to sign a false confession. In October 2011, he was sentenced to
22 years in prison for smuggling cars (this was reduced to seven years on appeal),
despite his lawyer filing a torture complaint and requesting that the judges deem
inadmissible the confessions made under torture.
When the case was brought to ACAT and TRIAL by the family of Mr Elaïba, a torture
investigation had finally been opened, almost 32 months after the complaint was first
filed, but there had been no progress for several months. The two organisations had
no choice but to file a complaint with the Committee Against Torture in June 2013.
Mr Elaïba’s release depends on the outcome of the complaint filed. In order to seek
a new ruling in Tunisia on the basis that his conviction was based on confessions
obtained by force, the Committee Against Torture would have to rule against the
Tunisian State, which might take several years. The Tunisian courts would then have
to take over the investigation and a judge would have to rule on the merits of the
case, determining whether or not the torture allegations were true, or convict those
responsible. Finally, the Minister for Justice would have to order that the trial be held
again and that the confessions made under torture be disregarded.
It is highly likely that Mr Elaïba would have served his full sentence before these procedures could be completed. In the meantime, he continues to suffer from the injuries inflicted and has gone on several hunger strikes to protest against his continued
detention. For this reason, as well as dealing with the Committee Against Torture,
ACAT and TRIAL have taken various steps at national level in an effort to secure
his conditional release so that, in the absence of swift justice, he does not have to
endure the consequences of his torture any longer.
In other cases every bit as urgent as that of Mr Elaïba, the internal legal remedies
have not yet been exhausted. Because it is not yet possible to involve the CAT, we
must first deal with the national authorities.
Practices evocative of an authoritarian regime
The alleged acts of torture have not been satisfactorily investigated in any one of the
13 cases currently being handled by ACAT and TRIAL. At best, this is due to a lack of
diligence or competence, but in some cases the victims have had to face corruption
or flagrant unfairness on the part of certain judges who actively seek to cover up
the crimes of torture they have been called upon to consider. Judges often refuse
outright to follow up on torture allegations, and even where they respond favourably they botch the investigation. This is a way of protecting those responsible, with
whom they sometimes work on a daily basis, as well as their fellow magistrates and
public prosecutors, who may have turned a blind eye when victims were brought
before them showing clear signs of abuse after their arrest.
The case of Wadi Khattali is particularly striking in this respect. He was convicted
on 13 December 2010 on the basis of confessions obtained under torture and is currently serving a six-year prison sentence for drug trafficking. In March 2011, during
a visit from his parents, he was able to recount for the first time the abuses he had
suffered during his interrogation. His father filed a complaint of torture on 19 March
2011, but the judicial enquiry began more than one and a half years later, in the
autumn of 2012.
The proceedings were overseen by the same investigating magistrate who had tried
Mr Khattali after his arrest in 2010, when he covered up the torture inflicted upon
the accused and refused to carry out an investigation. As might have been expected,
the judge, whose impartiality is seriously undermined, botched the torture investigation. After a very brief hearing involving Mr Khattali and the accused, who denied the
charges, the judge closed the enquiry due to a lack of evidence without taking any
statements from potential witnesses such as fellow detainees, most of whom were
tortured in the same police station at the same time as the victim.
On 27 May 2013, the judge threw out the case, refusing to follow up on Mr Khattali’s
torture allegations. In cooperation with the lawyer hired to defend the victim, ACAT
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308
and TRIAL appealed and were ultimately successful in having the investigation reopened. We then asked the Supreme Court to remove the investigating magistrate
from the case, although there is no guarantee that his replacement will conduct diligent and independent legal proceedings.
As we await the outcome of the case, the only observation to be made is that the
investigating magistrate’s decision to close the enquiry was harmful to the victim’s
interests in two ways. First, by treating his torturers with impunity, it denied Mr
Khattali the justice to which he was entitled and which is necessary if he is to rebuild
his life. Second, as in the case of Mr Elaïba, as long as the acts of torture have
not been officially recognised, the forced confessions that led to the conviction will
retain their probative value and the original ruling will go unchallenged.
In all cases involving individuals prosecuted on the basis of confessions obtained
under torture, it is impossible to dissociate the instance of torture of which the individual is the victim from the crime or other offence of which they are accused. There
is also an overlap in cases where victims are prosecuted because they have filed a
complaint of torture. There have been many cases in which police officers, in collaboration with the judicial authorities, fabricate accusations against victims in order
to punish them for filing a complaint and persuade them to drop the charges. In such
cases, it is difficult to establish the link between the victim’s torture allegations and
the fresh accusations made against them.
ACAT and TRIAL are currently defending several victims in this situation and must
do everything they can to protect them. In particular, this involves asking the lawyers
assigned to handle the torture case to also monitor that in which their client is being
prosecuted.
Actual or potential judicial and police harassment discourages many victims from
pressing charges. Added to the failings of the judiciary are security concerns, which
ACAT, TRIAL and the Tunisian lawyers must tackle with whatever resources are
available, i.e. legal tools, political advocacy and media publicity, the best way of protecting victims.
Justice based on the fickle world of the media
The steps taken by ACAT and TRIAL as part of their joint programme will take time,
and it is too early to evaluate the success of this initiative. However, there have been
some promising initial results. Several torture victims have been given the opportunity to tell their story and have received the support previously denied them. For their
part, the lawyers have benefited from technical expertise, drafting more detailed and
more carefully presented allegations, especially with regard to international law.
This programme nonetheless has its limits. In no way is it a substitute for legal
reforms or the political will needed to lead the fight against impunity. In this regard,
little progress has been made since the introduction in 2011 of (inadequate) reforms
to the Penal Code and the military judicial system5. The many political promises made
continue to ring hollow, with the exception of a law passed to create a national body
for the prevention of torture on 9 October 2013, more than two years after Tunisia
had ratified the Optional Protocol to the Convention against Torture (OPCAT). This
body, which will be responsible for visiting detention centres and other custodial
facilities to ensure that acts of torture and ill-treatment have been eliminated, is due
to be established in the near future, assuming the political climate stabilises.
Apart from this exception, initiatives have been rare or even non-existent. This is
clear from the report published in July 2013 by the UN Special Rapporteur on the
promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de
Greiff, following a visit to Tunisia. He points out that the strategic plan prepared by
the Justice Ministry does not include any “major proposals for structural reforms
ensuring the independence and self-regulation of the judiciary”6. The absence of
reforms has also affected the security sector, which continues to suffer from a significant lack of transparency, partly due to the continued presence in senior posts of
figures close to the old regime.
Even the draft bill on transitional justice, which was presented to Parliament in
January 2013 but has not yet been adopted, has proved to be a disappointment.
According to Pablo de Greiff, it focuses on the creation of a truth commission with an
ill-defined mandate and is “short on questions of institutional reforms and criminal
prosecutions”7. Finally, he rightly condemns what he calls an “event-based approach”.
Indeed, this is how the public policies implemented – or more often announced – have
been approached since the revolution. The country’s decision-makers seem to be
feeling their way forward, constantly reacting to tumultuous current affairs, which
they both create and endure, or popular dissatisfaction, which they can neither anticipate nor appease.
The same is true of their proposed reforms on the prevention of torture and the
fight against impunity, such as the overhaul of the judicial and security sectors.
These constantly change in response to events and do not benefit from the stability
and diligence needed to develop lasting, coherent policies that conform to international standards. As in the judiciary, political timeframes fluctuate in accordance
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with media coverage and are therefore just as unstable. In such an environment, victims who want to take their first steps towards justice must first attract the attention
of the media and the wider public, with all the arbitrariness and inconsistency that
come with such an approach.
In order to face these problems, ACAT and TRIAL, in their own modest way, have
made the bold decision to invest time, diligence and attention to detail in the Tunisian
legal system, which for the moment is undergoing an uncertain transition. This is a
small contribution to democracy-building, made in the hope that one day Tunisia will
see the arrival of a just spring.
[1] For an overview of the torture phenomenon under the Ben Ali regime, see ACAT-France, Un monde tortionnaire,
2010, 372 pages, pp. 181-189: http://www.unmondetortionnaire.com/Tunisie-rapport-2010.
[2] ACAT-France, Vous avez dit justice ? Étude du phénomène tortionnaire en Tunisie, June 2012, 62 pages:
http://www.unmondetortionnaire.com/Vous-avez-dit-justice-Etude-du.
[3] ACAT-France and TRIAL, Les tortionnaires tunisiens au banc des accusés, 25 June 2013, 8 pages, p. 6:
http://www.acatfrance.fr/medias/files/actualite/DP_ACAT_TRIAL_Tunisie_juin2013_final.pdf.
[4] ACAT-France, Vous avez dit justice ? Étude du phénomène tortionnaire en Tunisie, op. cit.
[5] United Nations, Human Rights Council, Report of the Special Rapporteur on the promotion of truth, justice,
reparation and guarantees of non-recurrence, Pablo de Greiff, 30 July 2013, 22 pages, p. 15: http://www.ohchr.org/
EN/HRBodies/HRC/RegularSessions/Session24/Documents/A-HRC-24-42-Add1_en.pdf.
[6] Ibid, p. 10.
© ACAT
© ACAT
© ACAT
© Amnesty International France
© ACAT
A WORLD OF TORTURE . ACAT 2014 REPORT . APPENDICES
Appendices
Defining torture
324
326
Lexicon
333
Methodology note
348
Acknowledgments and list of contributors
351
Learn about ACAT
352
Learn about FIACAT
354
323
324
GEOGRAPHY
DEFINING
TORTURE
OF TORTURE
. A WORLD
. A WORLD
OF TORTURE
OF TORTURE
. ACAT. 2014
ACATREPORT
2014 REPORT
DEFINING TORTURE
Torture
Torture presents several characteristic features which, taken as a whole,
determine its specificity:
• An acute pain or suffering, whether physical or mental.
• A deliberate act resulting from a decision (unlike the occurrence
of an accidental act).
• A torturer acting officially or at the instigation, with the consent or the assent
of a State agent (police officer, soldier, prison guard, member of a paramilitary
group)1.
• A specific purpose, such as obtaining a confession or information from the victim,
or punishing him for an act committed by him or by another, or intimidating him,
or terrorizing him (him or the group to which he belongs), or any other motive
based on some discrimination.
• The intention to harm a person’s physical or mental integrity, break
his personality, or force him to behave in a fashion he would not
voluntarily behave in.
The act of torture is the result of all these elements.
International law clearly affirms the absolute and non-derogable nature of the
prohibition against torture, which has acquired the status of a customary norm.
Definition of the United Nations Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
(adopted 10 December 1984, effective as of 26 June 1987)
“The term ‘torture’ 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.”2 (Article 1)
A WORLD
A WORLD
OF TORTURE
OF TORTURE
. ACAT. 2014
ACATREPORT
2014 REPORT
. GEOGRAPHY
. DEFINING
OF TORTURE
Cruel, Inhuman or Degrading Treatment
or Punishment
The notion of cruel, inhuman or degrading treatment or punishment includes
all measures and punishments intended to cause physical or mental suffering,
or to degrade or humiliate a person. Torture constitutes an aggravated form
of cruel, inhuman or degrading treatment.
Cruel, inhuman or degrading treatment is – as is torture – illegal under international
law, and particularly under Article 16 of the Convention against Torture. While
international law does provide certain indications of what this prohibition covers,
no actual definition exist. As the Human Rights Committee* and the Committee
Against Torture* have noted, it is in fact impossible to make a clear-cut distinction
between what constitutes torture and what constitutes cruel, inhuman or degrading
treatment or punishment.
Unlike torture, the latter may result from carelessness, as may be the case,
for example, of uncertain detention conditions, of food or medicine deprivation.
The difference between the two notions also resides in the degree of gravity of
the pain or suffering inflicted. Yet this depends on a considerable number
of factors, such as the nature and duration of the ill-treatment inflicted, the victim’s
specific physical or moral fragility, his sex, age, and state of health…
But this distinction has significant legal consequences, because the international
legal mechanisms intended to fight against torture are stronger than those
concerned with cruel, inhuman or degrading treatments.
For the sake of convenience, the expression “ill-treatment” is often used instead
of “cruel, inhuman or degrading treatment” in this report.
[1] The word “torture” may designate the same acts when they are committed by “non-state-controlled players”, such
as members of armed groups (required to comply with the 1949 Geneva Conventions regulating the laws and customs
of war and specifically prohibiting torture) or groups exercising de facto authority over part of a territory, or by individuals,
when the State has failed to meet its obligations concerning the effective protection of people.
[2] Regarding this provision, in its General Observation No. 20 (1992), the Human Rights Committee specified that corporal
punishments fell within the scope of the prohibition against torture and cruel, inhuman or degrading treatment. This
interpretation has been confirmed by the Special Rapporteur* on Torture in 1997 and the Human Rights Commission in 2000.
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algeria
andorra
angola
antigua and barbuda
argentina
armenia
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of the congo
denmark
djibouti
dominica
dominican republic
ecuador
egypt
el salvador
equatorial guinea
eritrea
estonia
ethiopia
fiji
finland
france
gabon
gambia
democratic people's
republic of korea
burundi
cambodia
cameroon
canada
cape verde
central african republic
chad
chile
china
colombia
comoros
congo
cook islands
costa rica
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greece
grenada
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guinea
guinea bissau
guyana
haiti
honduras
hungary
iceland
india
indonesia
iran (islamic republic of)
iraq
ireland
israel
italy
jamaica
japan
jordan
kazakhstan
kenya
kiribati
kuwait
kyrgyzstan
lao people’s democratic
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latvia
lebanon
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ROME STATUTE
OF THE
INTERNATIONAL
CRIMINAL COURT
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CONVENTION
RELATING TO
THE STATUS OF
REFUGEES
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INTERNATIONAL
CONVENTION FOR
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OF ALL PERSONS
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for the Prevention
or Punishment.
on Human Rights
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1987
EUROPEAN
CONVENTION
1950
EUROPEAN
CONVENTION
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1966
INTERNATIONAL
COVENANT
ON CIVIL
AND POLITICAL
RIGHTS
(ICCPR)
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2002
OPTIONAL
PROTOCOL TO
THE CONVENTION
AGAINST TORTURE
(OPCAT)
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CONVENTION
AGAINST
TORTURE
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to Prevent
and Punish Torture
on Human Rights
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INTER-AMERICAN
CONVENTION
1969
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CONVENTION
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on Human
1981
AFRICAN CHARTER
monaco
mongolia
montenegro
morocco
mozambique
myanmar
namibia
nauru
nepal
netherlands
new zealand
nicaragua
niger
nigeria
norway
oman
pakistan
palau
panama
micronesia (federated
states of)
lesotho
liberia
libya
liechtenstein
lithuania
luxembourg
macedonia (the former
yugoslav republic of)
madagascar
malawi
malaysia
maldives
mali
malta
marshall islands
mauritania
mauritius
mexico
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papua new guinea
paraguay
peru
philippines
poland
portugal
qatar
republic of korea
republic of moldova
romania
russian federation
rwanda
saint kitts and nevis
saint lucia
saint vincent and the
grenadines
samoa
san marino
sao tome and principe
saudi arabia
senegal
serbia
seychelles
sierra leone
singapore
slovakia
slovenia
solomon islands
somalia
south africa
south sudan
spain
COUNTRY
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on Human Rights
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EUROPEAN
CONVENTION
1950
EUROPEAN
CONVENTION
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CONVENTION
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REFUGEES
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2006
INTERNATIONAL
CONVENTION FOR
THE PROTECTION
OF ALL PERSONS
FROM ENFORCED
DISAPPEARANCE
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1966
INTERNATIONAL
COVENANT
ON CIVIL
AND POLITICAL
RIGHTS
(ICCPR)
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2002
OPTIONAL
PROTOCOL TO
THE CONVENTION
AGAINST TORTURE
(OPCAT)
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1984
CONVENTION
AGAINST
TORTURE
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to Prevent
and Punish Torture
on Human Rights
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1985
INTER-AMERICAN
CONVENTION
1969
AMERICAN
CONVENTION
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on Human
1981
AFRICAN CHARTER
uruguay
uzbekistan
vanuatu
vatican
venezuela (bolivarian
republic of)
vietnam
yemen
zambia
zimbabwe
sri lanka
sudan
suriname
swaziland
sweden
switzerland
syrian arab republic
tajikistan
tanzania (united republic
of)
thailand
timor-leste
togo
tonga
trinidad and tobago
tunisia
turkey
turkmenistan
tuvalu
uganda
ukraine
united arab emirates
united kingdom of great
britain and northern
ireland
united states of america
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A WORLD OF TORTURE . ACAT 2014 REPORT . LEXICON
LEXICON
Committee Against Torture
The United Nations Committee Against Torture (CAT) is the monitoring body for the
United Nations Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (10 December 1984). Consisting of 10 members serving in their personal capacity, it meets twice a year at the UN to examine the periodic reports submitted by the States parties (one year after the entry into force
of the Convention, and – theoretically – every four years thereafter), on advancement of the implementation of the rights and obligations contained in the Convention.
As a result of its review, the CAT addresses its concerns and makes recommendations to the State party in the form of “concluding observations”. Under certain
conditions, the CAT is competent to consider violations of the rights set forth in
the Convention and brought to its attention by private individuals through communications*. It may initiate investigations and review complaints between States.
In the course of its analysis of reports, the Committee Against Torture has adopted
“general observations” that interpret certain specific aspects of the Convention.
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LEXICON . A WORLD OF TORTURE . ACAT 2014 REPORT
Communications
Under UN terminology, a communication concerning human rights is a complaint
regarding breaches of these rights.
It may be addressed:
• To the supervisory bodies of treaties, such as the Human Rights Committee*
for allegations of violations of the provisions of the International Covenant on Civil
and Political Rights, and the Committee Against Torture* (CAT) for allegations of
violations of the provisions of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. Communications may be filed
by or on behalf of private individuals, provided that the State party has ratified the
treaty concerned and recognized the competence of the Committee. For a communication to be receivable, the individual must have exhausted all domestic remedies,
or it must be evident that these would prove ineffective or would exceed reasonable delays. Furthermore, the communication must not be currently examined
under another procedure of international investigation or settlement.
• To the Human Rights Council*, as part of its Special Procedures (country –or
thematic-based mechanisms, such as the Special Rapporteur* on Torture). Communications may be submitted by the victims, their relatives, a local or international
NGO, etc. Special Procedures apply to all member States of the UN, regardless of
the treaties they ratified.
• To the Human Rights Council* under the procedure known as “1503”, which
allows identifying, on the basis of communications, a series of flagrant and systematic violations of human rights. Communications may come from any person
or group of persons claiming that they were the victim of such violation or that
they have knowledge thereof.
Dangerous Returns
In theory, international conventions prohibit States from expelling, extraditing or
returning individuals to a country where they are at risk of being subjected to
torture or ill-treatment because of their ethnicity, religion, nationality, the community to which they belong or their political opinions. In practice, however, such
returns do take place despite the risks presented by the country of destination.
See non-refoulement.
Enforced disappearance
One speaks of enforced (or forced) disappearance when a person is arrested,
abducted or detained by State agents (or by people acting with the support or consent of the State), and when the authorities refuse to recognize the deprivation of
liberty or conceal the person's fate and the place where he is being held. Removed
from society, unable to have their rights respected or to benefit from the protection of the law, disappeared persons are at the mercy of their captors. They are
often tortured and murdered. Resorting to enforced disappearances is a strategy
of terror which seeks to keep a society in line and eliminate the opponents. It is
also a strategy to organize impunity, which – due to the absence of information,
cadavers, and evidence – allows to cover up both the crime and the State's (and
its leaders’) responsibility. For families and relatives, not knowing the fate of the
missing person, nor indeed if this person is still alive, is a never-ending suffering. The International Convention for the Protection of All Persons from Enforced
Disappearance was signed on 20 December 2006. It came into effect in December
2010, after 20 States had ratified it.
European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment
The European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) is the body of the Council of Europe responsible
for implementing the places of detention's inspection mechanism provided for in the
1987 European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment. The CPT is composed of independent experts elected for
a four-year term by the Committee of Ministers of the Council of Europe, and
conducts periodic visits to the places of detention of the States parties (including
police stations, migrant holding centres and psychiatric establishments) to assess
the treatment of people deprived of their liberty. It notifies the State concerned of
its intention to carry out a visit but, unlike the UN Subcommittee on Prevention of
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT)*, is
not required to provide the timeframe within which this visit is to be held.
CPT delegations have an unlimited access to all places of detention and may interview freely and privately any person deprived of liberty as well as any person
likely to provide information. At the end of its visit, the CPT sends the State concerned a confidential report setting out its findings and recommendations. In the
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case where the State do not cooperate or refuse to implement the recommendations formulated by the CPT, the latter may decide to issue a public statement. As of
21 December 2012, the CPT had conducted 334 visits and published 280 reports.
Falaqa (also spelled “Falaka” and “Falanga”)
This method of torture consists in whipping the soles of a detainee's feet with a truncheon, an iron rod, a cane, a cable… The victim is tied down horizontally, for example on a table, or suspended upside down. This technique is very hurtful because of
the many nerve endings clustered in the feet. Once the victim has been released,
he may be forced to walk on bloodied feet, sometimes over a salt-covered surface.
The falaqa damages both the soft tissues and the small bones of the feet, may lead to
chronic infirmities, and may make walking a painful and difficult activity. Universal,
as all methods of torture, the falaqa is notably used in Middle East and North African
countries.
Habeas corpus
This Latin term meaning “that you might have the body [to appear before a judge]”
refers to a rule of law that allows an individual who has been arrested to appear
quickly before a judge so as to determine the legality of his detention. On the basis
of this principle, anyone who is taken into custody has the right to be informed of
the reasons for their arrest and the charges being brought against them. The habeas
corpus principle also provides that detainees must be released if they have been
deprived of their liberty without just cause in the eyes of the judicial authorities.
Habeas corpus is a founding principle of the rule of law, designed to limit abuses
or arbitrary usage of a State’s executive powers. It can be traced back to medieval England, when it was enshrined under law by the Habeas Corpus Act of 1679.
It became one of the cornerstones of public freedom in England and continues
to be a principle that is adopted by most common law countries. The scope of its
application, however, varies from one country to the next and is dependent on political context. In the United States, habeas corpus is enshrined in the Constitution
but can be suspended in times of war. In the United Kingdom, it is unique
to England and does not apply in Scotland or Northern Ireland.
Human Rights Committee
The United Nations Human Rights Committee is the monitoring body for the
International Covenant on Civil and Political Rights (16 December 1966). Consisting
of 18 members serving in their personal capacity, it meets three times a year at
the UN to examine the periodic reports submitted by the States parties to the
Covenant on the advancement of the implementation of the rights recognized in
this instrument. As a result of its review, the Human Rights Committee addresses
its concerns and makes recommendations to the State party in the form of “concluding observations”. Under the corresponding Optional Protocol, and under certain conditions, it is competent to consider violations of the rights set forth in the
Covenant and brought to its attention by private individuals through communications. In the course of its analysis of reports, the Human Rights Committee has
also developed a case law of sorts through the adoption of “general observations”
which interpret certain specific aspects of the Covenant's provisions.
Human Rights Council
Created by the General Assembly of the United Nations on 15 March 2006, the
United Nations Human Rights Council replaces the Commission on Human Rights
(1946-2006) as the intergovernmental body tasked with promoting and overlooking the respect of Human Rights throughout the world. Consisting of the 47 States
members elected by an absolute majority by the General Assembly for a three-year
term (renewable), it meets three times a year at the UN, in Geneva, and may hold
extraordinary sessions. The General Assembly of the United Nations may, by a twothird majority decision of its members, suspend a member of the Human Rights
Council found guilty of flagrant and systematic violations of human rights.
Incommunicado detention
A detainee is held incommunicado when he is allowed no communication outside
of his detention centre. His only interlocutors are his fellow prisoners (if he is not
being held in solitary confinement*), his guards, those who interrogate him and, if
applicable, the judicial authorities. Theoretically, he may neither meet nor contact
his family, his friends, a lawyer or a physician.
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International Criminal Court
Created by the Rome Statute adopted on 17 July 1998 (ratified by 121 States as of
April 2012), the International Criminal Court (ICC) is the first permanent international criminal court competent to prosecute and try persons responsible for war
crimes, crimes against humanity, and genocides. The ICC, which sits at The Hague,
may judge nationals of the States parties or persons responsible for crimes committed within the territory of these States, but only in cases that have occurred
since its statute came into effect. Under the principle of complementarity, the ICC
is only competent in the event of failure or bad faith of States. Since September
2004, the ICC has heard 13 cases involving crimes committed in the Central African
Republic, Côte d’Ivoire, the Democratic Republic of the Congo (DRC), Kenya, Libya,
Sudan (Darfur), and Uganda, a situation that was referred by the Security Council.
On 31 March 2010, the ICC allowed the Prosecutor to open an investigation into
crimes committed in Kenya.
Istanbul Protocol
The Manual on the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, known as the Istanbul
Protocol, is a guideline for the documentation of torture. This text, approved by the
United Nations in 1999, aims to draft and implement effective measures to protect
individuals against torture and to fight against the impunity of torturers. It provides
medical and legal experts with a methodology to help them determine whether a
person has been tortured and establish evidence which may be used in a court of
law. It details, among other points, how to produce medical reports or to gather
testimonies if they are to be used in legal proceedings against alleged torturers.
The Istanbul Protocol has no mandatory value for States, but it does represent an
effective tool for them, insofar as international law requires them to investigate acts
of torture.
National Preventive Mechanisms
States parties to the Optional Protocol to the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) commit to establish National Preventive Mechanisms (NPMs) tasked with periodically reviewing
the treatment of people deprived of their liberty. NPMs make recommendations
to the authorities to improve detention conditions and strengthen the protection
against torture and ill-treatment. NPMs are helped and counselled by the UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment* (SPT) to fulfill their mission.
Following the OPCAT ratification by France in 2008, the Inspector General in charge
of places for persons deprived of freedom (CGLPL) plays the role of the French NPM.
Non-refoulement
The principle of non-refoulement is the prohibition for States to transfer a person to another country when this would expose the said person to serious human
rights violations, such as the arbitrary deprivation of the right to life, torture, or
any other cruel, inhuman or degrading treatment or punishment. Initially stated
in the Geneva Convention Relating to the Status of Refugees (1951), the principle of non-refoulement was reiterated in many international and regional human
rights protection treaties, such as the International Covenant on Civil and Political
Rights (1966), the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (1984), the European Convention on Human
Rights (1950). It is derived from the absolute prohibition against torture, which
– as peremptory customary norm in international law – is mandatory for all States,
whether or not these are signatories to the applicable corresponding treaties.
It must be complied with under all circumstances, including in the context of the
fight against terrorism and during armed conflicts.
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Ombudsman
The concept of the Ombudsman emerged in the Scandinavian countries in the
19th century as an alternative method for settling disputes. It literally means “spokesperson of grievances” in Swedish and refers to an independent authority or individual with responsibility for receiving and examining complaints by citizens who
feel their rights have not been respected by the State and wish to seek compensation. The Ombudsman carries out official investigations into complaints received
and transfers its recommendations to the relevant body. If these are not followed in
practice, it can submit an ad hoc report to Parliament. In some cases, it can act on
its own authority to defend the public interest by taking legal action and monitoring the prosecution process, although it does not have the power to issue binding decisions or overrule court judgements. The Ombudsman is generally appointed
by Parliament or on the basis of specific legislation, but is sometimes nominated
by the executive, thus raising doubts about its impartiality in relation to the bodies it is supposed to keep in check. In 2010-2011, according to the International
Ombudsman Institute, 156 countries had such an institution, under various titles:
the People’s Advocate in Albania, the Defender of the People in Bolivia, the Protector of Justice in Portugal, and the Human Rights Defender in Poland. The role
of the Ombudsman also varies from one region to another: this guardian of legality
and the rule of law in democratic countries has specialised to focus on promoting
and protecting human rights in more authoritarian regimes.
Paris Principles
The Paris Principles, which were first defined in 1991 and adopted by the UN
General Assembly in 1993, outline the international rules that National Human
Rights Institutions (NHRIs) must respect in order to be considered credible and
receive UN accreditation. The level of accreditation granted – level A (fully compliant),
B or C – is determined by an international independent body, the Sub-Committee
on Accreditation of the International Coordinating Committee of NHRIs.
The far-reaching scope of the Paris Principles applies to all NHRIs regardless of
type or structure (protector of civil rights, commissioner, ombudsman*, human
rights commissioner, advocate, etc.). NHRIs are State bodies with a constitutional
or legislative mandate. They must clearly define their role and powers, with as
wide a mandate as possible. They must also adopt clear and transparent operating
methods, benefit from adequate infrastructure and financial resources, and not
be subjected to a level of financial control that could undermine their autonomy.
The composition and selection of their members must be conducted in a way
that guarantees their independence, transparency and pluralism. In France, the
role of the NHRI is assumed by the national consultative human rights commission,
or CNCDH (Commission nationale consultative des droits de l’homme).
According to the Paris Principles, either following a request by the national authorities or by self-convening, NHRIs must make public recommendations and proposals to their government relating to various human rights issues, including existing
laws and draft legislation that has been submitted for approval to Parliament.
A national institution may also be authorised to receive and evaluate requests relating to individual circumstances.
Psychological torture (“White torture”)
Besides the most brutal physical abuses, torturers also resort to other methods
of torture so-called psychological. These increasingly sophisticated techniques
seek to break the victims more efficiently while fostering the impunity of torturers (fewer visible physical signs, use of methods less likely to be perceived as torture). Less medieval in appearance, these processes inflict sufferings that are just
as intolerable, and their after-effects are often far more lasting than those of merely
bodily traumas. The methods most often used are: keeping the detainee in absolute uncertainty and dependence (eyes blindfolded, hooded head, personal effects
and clothes confiscated, maintenance in solitary confinement*); sleep deprivation
extended over several days; sensory deprivation: maintenance in complete darkness through prolonged wearing of a blindfold over the eyes and/or maintenance in
absolute silence through wearing soundproof hats; sensory hyper-stimulation:
hours-long subjection to intense noises (music, screams, whistles…), to blinding
and/or strobe lights, to constant lights, day and night; death threats, and mock
executions.
“White torture” can also consist of solitary confinement* and the prohibition against
any kind of communication, including with the guards and prisoners; of being
threatened with or forced to be present during the torture or rape of one's loved
ones; of offences against one's moral or religious values – the obligation to be naked
or, in the case of a man, to wear feminine underwear, the obligation to simulate or
have sexual intercourse, the profanation of sacred objects, the obligation to blaspheme or insult one's homeland…; of the total regulation of the detainee's life down
to the smallest detail; of the forced ingestion of psychotropic drugs intended to
generate psychic modifications; of the obligation to execute absurd, contradictory
or degrading orders; of the seclusion to a mental hospital where the victim is being
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subjected to aggressive medication (injection of antipsychotics) intended for mentally ill patients. All these forms of psychological torture are often alternated with
physical abuses.
Secret detention
A person is detained in a place that is not officially a detention centre: a military
camp, a secret jail, a concealed section within a jail or police station, or in private
facilities.
Solitary confinement
Solitary confinement may be imposed for the purpose of an investigation, to protect a detainee, or as a security measure against the prisoners considered the
most dangerous. However, it is very often used as a punitive measure (theoretically of limited duration), inflicted as an additional punishment to detention. Placing
a detainee in solitary confinement consists in confining him alone in a cell (often
a small one) with no or very little communication with other detainees. In some
cases, the detainee may be confined for almost twenty-three hours (sometimes even
for twenty-four hours) per day in a room equipped with a very small window (if
any), and he remains alone, even during the rare walks he takes in fenced yards.
Furthermore, the possibilities of contacts with the outside world are strictly limited, when actually non-existent: letters are censored and sometimes come months
later, if ever; access to reading material is restricted, telephone calls are forbidden; work is denied, as are the opportunities to participate in education or reinsertion activities. Prolonged solitary confinement, sometimes over several years,
has grave implications on both the physical condition and the mental health of prisoners: physical problems related to the confinement in a narrow cell with little if any
illumination, too cold or too hot depending on the seasons, and to the lack of exercise, are compounded by symptoms such as claustrophobia, hypertension, insomnia,
anxiety attacks, or a decrease in the ability to concentrate.
Special Rapporteurs
The United Nations Special Rapporteurs are independent experts, serving in their
private, personal and non-remunerated capacity, tasked by the Human Rights
Council to review a specific issue (“thematic mandates”) or a specific situation in
a given country or territory (“country mandates”) in the field of human rights see
also Special Procedures. Special Rapporteurs may carry out investigations through
onsite visits, at the conclusion of which they draft a report containing their findings and recommendations. They can also receive individual complaints and information describing specific human rights violations; ask for explanations from the
States through communications; conduct studies; provide technical assistance
to a country; and undertake activities to promote human rights. Each year, they
present a report to the Human Rights Council*. The Austrian Manfred Nowak was
the Special Rapporteur on Torture up to November 2010. His successor is the
Argentinian Juan E. Méndez.
Subcommittee on Prevention of Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment
The United Nations Subcommittee on Prevention of Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (SPT) is the body established by
the Optional Protocol to the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment (18 December 2002), tasked with inspecting
the States parties’ places of detention. Consisting of 25 independent experts elected
for four years by the States parties, the SPT conducts periodic visits, without prior
authorization, to the places of detention of the States parties (including police
stations, migrant holding centres and psychiatric establishments) to assess the
treatment of people deprived of their liberty. It carries out its mission with the collaboration of the National Preventive Mechanisms* (NPMs). The SPT notifies the
State concerned of its intention to perform a visit and specifies the dates on which
this visit is to be held. Theoretically, SPT members have an unlimited access to all
places of detention and to all information about the detention conditions of persons
deprived of their freedom.
They may interview freely and privately any person deprived of liberty as well as
any person likely to provide information. At the end of its visit, the SPT sends the
State concerned a confidential report setting out its findings and recommendations;
this report may, at the State's request, be made public, along with any observation
the State may wish to make. In the case where the State do not cooperate or refuse
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to implement the recommendations formulated by the SPT, the latter may ask the
Committee Against Torture* to issue a public state-ment or to publish the report of
the Subcommittee.
TASER
The TASER (Thomas Appleton Swift’s Electric Rifle) is a weapon used to bring
individuals considered violent and/or potentially dangerous under control, while
mini-mising the risk of injury or death for the person being apprehended, the law
enforcement authorities and potential witnesses. It is not considered by the authorities as a lethal weapon, but instead designed to weaken the targeted individual by
administering electric shocks of up to 50,000 volts or 2 milliamperes, either from
a distance (in shooting mode by propelling two electrodes connected to conductive wires) or in direct contact. On several occasions, the UN Committee Against
Torture* has argued that the use of this weapon can provoke acute pain that constitutes a form of torture and can ultimately result in death. According to Amnesty
International, in 2012 more than 500 people died as a result of a TASER attack.
Truth and Reconciliation Commission
A Truth and Reconciliation Commission (TRC) is an official investigative body,
temporary and non-judicial in nature, tasked with uncovering the truth regarding
human rights violations committed in a country during a specific period of civil war
or unrest, or under an authoritative regime. Far from being limited to mere factfinding tasks, the role of TRC commissions is to explain the events at stake and
to contribute to prevent new breaches. While their work does not fill the need to
prosecute the authors of serious human rights violations before a criminal court,
their works are often inestimable contributions in the process of national reconciliation and remembrance, particularly where an inoperative judicial system or
amnesty laws hinder legal proceedings. They can be also useful in the event of the
subsequent beginning of legal proceedings. The commissions collect the testimonies of victims, witnesses, and perpetrators of the violations, conduct investigations
into the events in question, and hold public audiences. Upon completing the investigation, they publish a final report that includes their findings and recommendations. Since 1974, when the first TRC commission was created for Uganda, 40 TRC
commissions have been established throughout the world. The most publicised
and most important one – in terms of resources mobilized – is the Truth and
Re-conciliation Commission for South Africa (1996-2002). The most recently formed
commissions include the truth commissions set up in Morocco (2004) in Canada
(2006), in Ecuador (2007), in Togo (2009), and Côte d’Ivoire (2011).
Universal jurisdiction
Notwithstanding the classic rules of jurisdiction, international law acknowledges that the courts of a State may exercise their jurisdiction on behalf of the
entire international community as far as certain serious crimes with international
repercussions are concerned, e.g. torture (the United Nations Convention Against
Torture, 1984), war crimes (Geneva Conventions, 1949), or enforced disappearances* (International Convention for the Protection of All Persons from Enforced
Disappearance*, 2006). So-called universal jurisdiction therefore allows national
courts to judge certain crimes wherever they were committed, including the territory of another State, even if these crimes involve foreign victims or suspects.
Most States which have recognized this principle condition the launching of any
proceedings to the suspect's presence on their territory. For example, France
exercised this type of jurisdiction to condemn a Mauritanian torturer in 2005 and
a Tunisian torturer in 2010. However, it may not be called upon in cases of war
crimes, crimes against humanity, and genocide, contrary to most Western States,
because of a law, enacted in August 2010, that sets up several restrictive and cumulative conditions hindering the resort to this type of jurisdiction for such crimes.
One of the major obstacles to the effective application of this mechanism is widely
due to the States’ lack of political will and the fact that they prefer to foster good
diplomatic relations rather than fight against impunity.
Universal Periodic Review
The Universal Periodic Review (UPR) was created by the resolution 60/251 of
March 2006, which also established the Human Rights Committee*. It is the mechanism under which the Human Rights Council* reviews the situation of human
rights in the 193 member States of the UN General Assembly. Each State is examined every four years, which brings the number of States reviewed each year to
48. Founded on the principles of universality and equal treatment between States,
this mechanism constitutes a forum that provides them with an opportunity to
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present the measures taken to improve the situation of human rights in their country and share their experiences and better practices on the subject. The UPR also
seeks to provide the States with assistance in the effective treatment of human
rights-related problems. NGOs may attend the review and express their position
in a plenary session prior to the adoption of the final recommendations.
Waterboarding and simulated drowning
Waterboarding is an interrogation method that consists in immobilizing a prisoner to a board, usually face up (often with the feet slightly higher than the head).
A piece of cloth or plastic is forcefully placed over the prisoner's face, over which
water is poured to provoke a sensation of drowning or suffocation. The extreme
pain is accompanied by the feeling one is dying. CIA agents who accepted to be
subjected to this method have stated it was very difficult to resist for more than
fifteen seconds. In reference to this method, commonly used by the United States’
secret services, the term “simulated drowning” is often used. ACAT believes this to
be a very useful euphemism to camouflage the suffering caused. Actually, waterboarding is merely a more sophisticated version of the torture by immersion into or
forced ingestion of large amounts of water (sometimes with the addition of detergents, urine…). It has long been a favourite of torturers, because of its effectiveness and the few marks it leaves. In this sense, waterboarding hardly differs from
the so-called “bathtub torture” used by the Gestapo.
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METHODOLOGY NOTE . A WORLD OF TORTURE . ACAT 2014 REPORT
METHODOLOGY NOTE
Remark on the structure and principles
underpinning this report
This is the fourth dedicated report that ACAT has carried out on the phenomenon
of torture in the world today. While it can be read independently of the two earlier
reports, readers will appreciate its import all the more when taken as a new volume
in the encyclopaedia of torture that we intend to build up over the years.
Completed at the end of 2013, this fourth edition is entitled ACAT Report 2014:
A World of Torture. In 2010 and 2011, the title referred to the year in which the report
was produced. From now on, the year of publication will feature in the title.
This report is divided into two sections. The first, Geography of Torture, continues
the factual description of torture practices in 19 different countries from the world’s
five continents. These serve to complement the 64 countries previously included
and were chosen on the basis of the sources currently at ACAT’s disposal, while of
course ensuring a certain level of geographic balance.
For the purposes of objectivity and in an effort to facilitate comparisons between the
countries analysed, each country file is structured in exactly the same way: following
a brief outline of the country’s political and social background, the authors describe
its various torture practices, highlighting the victims, the torturers and the locations
where abuses take place, as well as the methods used and the objectives behind
their actions. They go on to provide a study of current legislation and judicial practices, outlining the way in which the crime of torture is legally condemned in these
countries and the way in which those responsible are prosecuted.
Readers will find bibliographical references detailing our sources at the end of each
file. The country files are classified according to continent, with an introduction for
each one detailing the overall geopolitical context and the way in which torture is
used there.
A WORLD OF TORTURE . ACAT 2014 REPORT . METHODOLOGY NOTE
As well as the specific knowledge and contacts of the researchers at ACAT, the first
section of this report primarily draws on sources within the network of NGOs that
combat torture or campaign for the protection of human rights, as well as the work
of international institutions and bodies.
The second section, Analysis of the Phenomenon of Torture, begins with the testimony
of one of these countless migrants from Central America who are abused and tortured by security forces during their transit through Mexico. It continues with original
articles by authors involved in the fight against torture and researchers (psychologists, theologians, NGO representatives, legal experts and others) who endeavour
to present and understand the many facets of this major affront to the rights and
dignity of mankind. This section is intended to build on the raw facts exposed at the
beginning of the report; it gives our contributors the opportunity to reflect on the
various specific features of torture and on the major common threads that emerge,
to identify the individual geopolitical, cultural, economic or other reasons that explain
its persistence, and finally to study the legal and moral resources used to combat this
phenomenon.
The appendix provides readers with an updated overview of the different States that
have signed or ratified international conventions prohibiting torture or designed to
prevent it. Finally, a lexicon contains the definitions of more “technical” words and
concepts which might have proved cumbersome if explained in the main body of the
report. These are indicated by an asterisk and are arranged in alphabetical order.
Reflecting the raison d’être of ACAT, the purpose of this report is to serve as a tool
that contributes to the fight against torture. To this end, we have endeavoured to
reconcile factual precision, the quality and rigour of the ideas expressed and the fairness of the analyses put forward, with the simplicity and accessibility of the text as
a whole. This is essential if we are to produce a reference work intended for public
or private organisations that specialise in the protection of human rights, while at
the same time ensuring as wide a readership as possible. We hope to have achieved
this objective.
[1] For those countries where torture practices are not endemic (Western democracies in particular), our approach is different
and depends on the specific problems in each country.
349
A WORLD OF TORTURE . ACAT 2014 REPORT . ACKNOWLEDGEMENTS
ACKNOWLEDGEMENTS
AND LIST OF CONTRIBUTORS
The fourth edition of ACAT’s annual report A World of Torture was made possible
by the work of several contributors. Many people, to varying degrees, have participated
in its design, drafting and final production, often contributing in ways that far exceed their
acknowledgement below. We extend our warmest thanks to each and every one of them.
Editorial director | Jean-Étienne de Linares
Design and editorial supervision (ACAT Torture Commission) | Marie-Nicole Azéma, Paul Coppin,
Florence Couprie, Nordine Drici, Séverine Durand, Mariá Cecilia Gómez, Michel Jordan,
Jean-Étienne de Linares, Cécile Marcel, Olivia Moulin, François Picart
Coordination | Olivia Moulin
Foreword | Serge Portelli
Introduction | François Picart
Geography of Torture | country fact sheets and regional introductions
> Americas | Anne Boucher, ACAT-Canada, Olivia Moulin
> Asia / Pacific | Paul Coppin, Christine Laroque
> Europe | Olivia Moulin, ACAT-Suisse, Paul Coppin
> Maghreb and Middle East | Hélène Legeay, Nordine Drici
> Sub-Saharan Africa | Clément Boursin
> Research | Paul Coppin
We would like to thank ACAT-Madagascar for proofreading the Madagascar country file.
Analysis of the Phenomenon of Torture
> Contributors | Édouard Delaplace, Antoine Lepas-Douand, Jean-Étienne de Linares,
Claire Ly, Christiane Vollaire, Anne Boucher, Hélène Legeay
> Testimony | Alberto Sierra Díaz
> Interviews | Jésus Asurmendi, Olivia Moulin
Ratifications table | Olivia Moulin
Lexicon | Jean-Étienne de Linares, Florence Hervey, Olivia Moulin, and Nordine Drici
Methodology note | Jean-Étienne de Linares
Iconographical research | Coralie Pouget
Translation | Myles O'Byrne
Corrections | Olivia Moulin
Graphic design and layout | Coralie Pouget and Dorothée Beauvais
351
ACAT: A CHRISTIAN
NGO COMMITTED
TO HUMAN RIGHTS
COMBAT TORTURE. ABOLISH THE DEATH PENALTY.
PROTECT VICTIMS.
OUR NETWORK OF ACTIVISTS
37,000 members and donors throughout France
350 local groups
23 employees at our head office
OUR STRATEGY TO EXERT INFLUENCE
Advocacy targeting French and international institutions
Reports from field missions and investigations
Ongoing mobilisation efforts:
• Countries in which we operate: 61
• Monthly calls for intervention: 12 (passed on by 40,000 people)
• Urgent calls to support victims: 58 (passed on by 3,000 people)
• Courrier de l’ACAT (magazine): 6 issues per year (9,000 copies)
• Abolition (journal): 4 issues per year (50,000 copies)
• Annual reference report on torture worldwide: A World of Torture
• Asylum seekers: 200 people – from 30 different countries –
receive legal aid each year
• Sponsored prisoners: 150
• Night Vigil: 26 June
• Investigative reports, books, educational publications,
press conferences and more
RESULTS AS THEY HAPPEN
• Releases secured: 15
• Good news: abuses ended, conditions of detention improved, access
to health care, sentences reduced, trials reopened, death sentences commuted,
torturers convicted, etc.
• Refugee status obtained: 46
Action by Christians for
the Abolition of Torture
(ACAT) is an NGO that
was founded in 1974.
It is recognised under
French law as being in the
public good and playing
a role in public education.
Its work in defence of
human dignity is based
on the Universal
Declaration of Human
Rights and the Gospel.
354
FIACAT . A WORLD OF TORTURE . ACAT 2014 REPORT
ACAT-France is the oldest of the 26 ACAT organisations present
on four of the world’s continents. These operate under the umbrella
organisation FIACAT.
WHAT IS FIACAT?
The International Federation of Action by Christians for the Abolition of Torture (FIACAT) is
an international non-governmental organisation for the defence of human rights which works
towards the abolition of torture and the death penalty. FIACAT was founded in 1987 and includes
a total of 30 ACAT organisations (including 4 currently in the process of affiliation) across 4
continents.
MISSIONS
Representing the national ACATs before international and regional bodies
FIACAT holds Consultative Status at the United Nations (UN), Participative Status with the Council of
Europe and Observer Status with the African Commission on Human and People’s Rights (ACHPR).
FIACAT is also accredited to the International Organisation of La Francophonie (OIF).
In bringing the concerns of its members before international bodies, FIACAT aims to encourage governments to adopt and implement relevant recommendations. FIACAT works to ensure the application
of international conventions for the defence of human rights, to prevent acts of torture, and to combat
enforced disappearances and impunity.
One of FIACAT’s missions is to raise awareness within church bodies and Christian organisations
about torture and the death penalty, and to convince them to work towards their abolition.
FIACAT is a founding member of several campaigning coalitions, notably the World Coalition against the
Death Penalty, the International Coalition Against Torture (InCAT) and the International Coalition Against
Enforced Disappearances (ICAED).
Building up the capacities of the ACAT network
FIACAT assists its member associations in organising themselves, supporting them so that they
can become important players in civil society, capable of raising public awareness and having
an impact on the authorities in their country.
It contributes to a dynamic network by promoting exchanges, offering regional or international
training events and joint campaigns, thus supporting the activities of the ACATs and providing
them with exposure on the international scene.
Finally, it contributes to the development of the network by encouraging the creation of new
national ACATs and of regional structures, which are essential to extend the reach of the national
associations.
FIACAT
27 rue de Maubeuge | 75009 Paris, France
Tél. +33 (0)1 42 80 01 60 / Fax. +33 (0)1 42 80 20 89
email. [email protected] / www.fiacat.org
One in two countries
tortures men,
women and children.
Each year, ACAT intervenes
in about 70 countries.
Investigate. Inform. Protect. Exert pressure. Pray. Denounce. Support.
Raise awareness. Mobilise. Bear witness. Promote international justice.
Represent plaintiffs. Fight impunity. Educate.
No torture. No death penalty.
in action
Legal deposit 2014
ISSN: 2264-136X
Impression | Corlet, 14110 Condé-sur-Noireau
This document was produced with the financial assistance of the European Union.
The contents of this document are the sole responsability of ACAT, and under no circumstance may
they be deemed to reflect the position of the European Union.
ACAT-France, 7 rue Georges Lardennois | 75019 Paris
www.acatfrance.fr
The entire text of this report is available at www.aworldoftorture.com
ACAT 2014 Report
A World of Torture
In 2014, one country in two continues to practice torture. And not only authoritarian
regimes, some democratic States are also affected.
Every day, thousands of men, women and even children are left at the mercy of their
all-powerful torturers, who so often go unpunished. Every day, torturers and those
who control them try to silence political opponents, trade unionists, journalists and
lawyers. Every day, they terrorise members of ethnic, religious and sexual minority
groups. They extract confessions from common law prisoners through violence.
And they send those who are not beaten, electrocuted or suffocated to death to suffer
in detention.
The 2014 edition of A World of Torture follows on from those published by ACAT
in the last three years. Our ambition remains unchanged: to reflect the reality of
torture practices in 19 additional countries, while also shedding light on the historical,
political, psychological and cultural features of this phenomenon. This year’s report
includes a preface by Serge Portelli, original contributions by Claire Ly, Édouard
Delaplace and Christaine Vollaire, as well as the poignant testimony of a Honduran
migrant who was tortured in Mexico.
This report, which serves both as a bibliographical resource and an advocacy tool,
is the fourth volume in our encyclopaedia of the torture phenomenon.
ACAT is an ecumenical NGO that was founded in France in 1974 for the purposes of combating torture.
It also campaigns for the abolition of the death penalty and to defend the right to asylum.
No torture. No death penalty.
with financial support
from the european union
ISSN: 2264-136X – Photography of cover: Étienne Laurent
This report can be read in full at www.aworldoftorture.com

A World of Torture - Un monde tortionnaire

Transcription

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