Abstract
In my role as the UN's lead expert on tackling torture I see the scale and extent of torture crimes being perpetrated by – and being ignored by – States every day, and everywhere. It is my opinion that only through national prosecutions can the cycle of impunity – the antithesis of accountable government – be broken. For too long, the burden of achieving justice has been pushed onto overloaded and inherently limited international courts and tribunals, even as they play an important role (and sometimes are the only acceptable actor). In this column I make the case why national prosecutions are so important and how they can be achieved.
INTRODUCTION
Too many torturers get away with it. Not a single official of the United States has yet been prosecuted for torture of the ‘forever prisoners’ as they became known because of their endless incarceration without trial at Guantanamo Bay. Neither the British soldiers directly involved nor the policy-makers have ever been criminally prosecuted for the inhuman interrogations in the ‘hooded men’ case in Northern Ireland. 1 Thirty years after the genocide in Bosnia and Herzegovina, thirty-five per cent of accused are ‘not available’ to the local criminal courts, 2 either because they are being sheltered in uncooperative countries or have changed identities and are in hiding. In other countries, the pace at which newer torture crimes are being committed outweighs the number of prosecutions being undertaken.
The extent of documented torture being perpetrated against civilians and prisoners of war by Russian forces in Ukraine appears to be widespread and systematic. 3 Even though investigations are being carried out in real time, prisoner exchanges are sure to interfere with any later prosecutions, even though they are necessary to prevent further potential mistreatment or torture. In Uganda, despite a world-leading criminal legal framework, thirty-seven percent of all human rights cases submitted to the national commission involve torture, making it the single most violated right. 4 In other places, such as in Afghanistan, China, or Iran, investigations into allegations of torture for some of the most egregious violations are not even contemplated, as any wrongdoing is emphatically denied.
Everywhere I look there are examples of the stark gap between the promise and the reality of the international prohibition of torture and the duty of every State to criminalise and investigate crimes of torture in national law, prosecute or extradite suspects, and sentence offenders with penalties that reflect the gravity of the offence. As I reported as the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Human Rights Council in March 2023, the obligation to investigate torture is alarmingly, universally, under-implemented. 5
In this column I argue that to combat impunity, much more investment and focus must be given to national investigations and prosecutions, rather than seeking to rely on international courts and tribunals, important as they are. For too long, attention on international prosecutions has replaced much needed development of national capacities to investigate and prosecute torture. For investigating torture nationally is not only aimed at successfully establishing criminal liability in a handful of cases, it is also, and importantly, about healing for survivors and their devastated communities and about re-establishing the lost legitimacy of the State. It is also clear that the scope and scale of violations being committed on a daily basis means that the only real prospect of justice is through stepped up domestic efforts. There can be few tasks more worthy of priority.
CRIMINALISING THE UNCONSCIONABLE
Torture is a crime, always and everywhere. The intentional infliction of severe pain or suffering, whether physical or psychological, by a public official or another person acting in an official capacity 6 is a crime, and in theory at least, a crime prohibited absolutely as an erga omnes and jus cogens norm. 7 Additionally, there is no State in the world that has not accepted voluntarily the obligation to prohibit, prevent, and respond to torture and other ill-treatment in at least one international treaty. 8 Most notably, the 173 States parties to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT or Convention) have accepted obligations to criminalise and investigate torture in all its forms. 9
The first step to national prosecutions of torture is for States to establish all acts of torture as an autonomous crime under domestic law. Jurisdiction over such crimes is to be exercised on the territoriality, flag, active nationality, passive nationality, and universal jurisdiction principles.
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As the Committee Against Torture – the team of experts that monitors the implementation of the Convention – pointed out simply, but essentially: Codifying this crime will also (a) emphasise the need for appropriate punishment that takes into account the gravity of the crime, (b) strengthen the deterrent effect of the prohibition itself, (c) enhance the ability of responsible officials to track the specific crime of torture and (d) enable and empower the public to monitor and, when required, to challenge State action as well as State inaction that violates the Convention.
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However, my research also found that of those States that had legislated for the crime of torture, not all enactments were in line with the definition of torture in Article 1 of UNCAT. On a positive note, in countries such as Brazil, Chile, Costa Rica, Ecuador, Mexico, and Venezuela, more liberal interpretations of the Article 1 component of torture as ‘discrimination’ include grounds of political opinion, race, religion, sex, sexual orientation, gender identity, disability, or other protected characteristics. A number of States, including Kenya, Nigeria, and Uganda, have made it clear that rape and sexual abuse are part of the category of acts amounting to torture, while others like Morrocco and South Africa have made the perpetration of rape or sexual violence an aggravating factor in the offence of torture. Torture committed by non-State or wholly private actors has also been included in criminal statutes, especially in Latin America and Africa, to reflect their specific challenges (such as internal insurgencies, armed conflict, terrorist activities, and other emergency situations) and the desire to achieve justice for all victims of torture. These trends are to be welcomed.
However, a number of States have qualified torture as a crime only when committed as part of a crime against humanity or a war crime (including Ethiopia, Guinea-Bissau, Lesotho, and Uruguay), limiting its scope. A few States limit the ‘purpose’ for the torture to particular contexts such as interrogation (China, Kuwait, and Sudan, for instance), or treat torture merely as an aggravating factor to other crimes (such as in Côte d’Ivoire, Denmark, and Mozambique), while at least one State, Uganda, appears to exclude the purpose of ‘discrimination’ from the crime. Moreover, a number of States continue to grant immunities or full or partial amnesties, apply statutes of limitations, or permit defences of superior orders, which cancel out individual criminal liability. I observed that a number of countries continue to have forms of torture or ill-treatment as legitimate statutory punishments. 12 Finally, I also found little global consistency in sentencing for torture crimes and recommend that more research be done in this space. 13
THE DUTY TO INVESTIGATE
Inherent in, but standing independent to, the requirement for States to criminalise torture are obligations on States to investigate all acts of torture or other cruel, inhuman, or degrading treatment or punishment. States have a duty to act as soon as a complaint has been lodged; or in the absence of a complaint, to investigate ex officio ‘wherever there is reasonable ground to believe that an act of torture has been committed in any territory under their jurisdiction.’ 14
The duty to investigate continues to apply in difficult security conditions such as generalised violence or armed conflict despite the obvious challenges presented by those situations. 15 The applicable minimum standards include ensuring that the investigation is conducted by independent and impartial bodies and officials who act with diligence and expediency and are open to public scrutiny, and that victims and survivors are able to participate and are protected against ill-treatment, intimidation, or reprisals.
Investigations must be commenced promptly. According to the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), which is the internationally agreed upon best practice guidelines for torture documentation and investigation, promplty means ‘within hours, or, at the most, a few days after the suspicion of torture or ill-treatment has arisen’. 16 In my report on this issue to the Human Rights Council in March, I offered further clarification to that position arguing that torture complaints should be reported to judicial or other independent authorities immediately (within hours) and never later than 24–48 hours. Any delays should be explained and documented in writing and those decisions must be open to judicial challenge. 17
The web of accountability for torture investigations must spread to all who are in a position to act. All public officials should be formally required to notify the competent independent authorities immediately upon becoming aware of allegations or indications of torture or ill-treatment. 18 Medical personnel have both an ethical and legal duty to report any suspicions of torture, unless explicitly asked by their patient not to. Judges must use a defendant's presence in their court to scrutinise not only the lawfulness of their detention, but also to assess any visible injuries and the individual's demeanour. Where there is reasonable cause to suspect torture or ill-treatment, or where the defendant alleges such, judges have a responsibility to order or carry out an investigation, and they must also put in place safeguards against reprisals and threats. 19
As to the means and methods of investigations, considerable progress has been made over the last decades. Developments in forensic science and technology are enabling more secure and reliable evidence collection and preservation. Expertise in torture documentation – both physical and psychological – is growing thanks to the Istanbul Protocol, which was updated in 2022, 20 and, in situations where torture leads to death, the Minnesota Protocol on the Investigation of Potentially Unlawful Death. 21 Humane and non-coercive interviewing techniques, such as those presented in the Mendez Principles on Effective Interviewing for Investigations and Information Gathering, aim to end the use of torture to obtain confessions. 22
Today's world of digital technology and social media is changing the accountability landscape; the public are playing a role not only as witnesses of crime but also documenters of crime. The Berkeley Protocol on Digital Open Source Investigations was launched last year to lay out common global standards for using public digital information such as videos, photographs, satellite imagery, and social media posts to investigate violations of international criminal, human rights, and humanitarian law. 23 There is still much to learn in this area, especially as misinformation and disinformation circulate widely and where (false) allegations of torture are sometimes used as political strikes against opponents. Getting to the bottom of what is true and what is not requires accessible digital forensic expertise.
So with all this progress, why then are our newspapers and airways not filled with headlines of perpetrators on trial?
POLICING THE POLICE
What sets the crime of torture apart from serious common crimes is exactly the function and status of the perpetrator, as they are ordinarily a public official. And while no one is above the law and all are equal before the law, it is precisely because the State is implicated in crimes of torture that very few incidents of torture are ever officially reported, and why too many investigations and prosecutions collapse before their satisfactory conclusion.
Given this immense power asymmetry between the perpetrator and the victim in torture cases, legal, procedural, and practical safeguards are fundamental elements for successful investigations and prosecutions. Victims must have access to complaints procedures that are fully independent of the agency against whom they are complaining, are safe and confidential, and which minimise risks of retaliation against the accuser by those being accused. If investigators are not hierarchically, administratively, and financially independent of the authorities they are investigating, 24 there is an irreconcilable conflict of interest. It is just not possible for the police, for example, to investigate their own and for society to have confidence that any such investigation would be carried out impartially.
Complaint boxes in prisons, which are not monitored by CCTV and are accessible only by an independent complaint body, is a simple yet effective option. In England and Wales, the Independent Office for Police Conduct has adopted statutory guidance for handling and investigating complaints of police misconduct, addressing issues of accessibility for vulnerable or marginalised community members. Jamaica's independent commission on investigations (INDECOM) is an example of good practice: A civilian-staffed State agency established as a commission of parliament with statutory authority to carry out investigations into actions by members of the security forces and other State agents that resulted in death, injury, or otherwise abused human rights. The rules on impartiality and independence apply to civilian as well as military investigations.
Currently there does not appear to be any collection of global statistics on how many such truly independent bodies exist. National human rights institutions can and do play a role in the early stages of receiving complaints, but impartiality is fundamental at all stages of the process – from the investigators, to the prosecutors, to the judges. Recent examples of judicial harassment, such as that by the Turkish criminal justice system against Dr. Sebnem Fincanci, 25 one of the world's leading experts on torture documentation, is a reminder that governments use different branches of the State to block effective investigations into human rights abuses.
Civil society organisations (CSOs) are important players in their role to hear and prepare complaints, and to help support victim-survivors throughout legal proceedings. Their active participation helps increase transparency and legitimacy of proceedings. In the State of Palestine, the Treatment Centre for Victims of Torture has a hotline manned by psychologists ready to take calls 24 hours a day from victim-survivors, while in Uganda the African Centre for Treatment and Rehabilitation of Torture Victims (ACTV) drives around Kampala asking residents to call the number emblazoned on their bus to report torture safely to their trained staff.
In terms of collection and admission of evidence, well-functioning independent investigative bodies that operate at arms’ length from those they are investigating should be properly financed, equipped and trained to collect and preserve evidence to the highest standards. For example, when death results from torture, it is known for autopsies to record only the cause of death (for example, heart attack, dehydration, or blunt force trauma) while possible injuries or explanations of torture are left undocumented or unanalysed. At the same time, testimonies and medical evidence from victim-survivors collected by private practitioners following the Istanbul Protocol should be allowed into court; the court's evidentiary rules may need to be adjusted accordingly. The State monopoly on evidence production is another of the blocks to effective investigations and prosecutions of State misconduct. In many national contexts, it is expert practitioners of non-governmental organisations who have first contact with victim-survivors and their reports can be crucial pieces of evidence. Improvements in prosecutorial and judicial expertise in assessing the reliability of such evidence is still needed in many countries.
The role of civil society in bringing justice for torture crimes is perhaps most dramatically illustrated in the emergence of what has been termed ‘entrepreneurial justice’: 26 the filling of the public accountability gap for international crimes, most notably regarding Syria, through the creation of networks of CSOs operating as private evidence-gatherers. The notable successes this citizen-led movement has already achieved in bringing national prosecutions for international crimes of torture demonstrates the efficacy of fighting the erga omnes crime with an all-of-society-approach. Rules of evidence must keep up with these new dimensions and take account of them. It is equally important however that private actors are governed by proper codes of conduct and do not inadvertently undermine ongoing or subsequent criminal prosecutions through, for example, memory and/or evidence contamination, or undermine testimony by producing multiple and conflicting accounts (which becomes more likely the more frequently a victim-survivor is asked to recall events during interviews). Unofficial evidence gathering can have its drawbacks and these need to be acknowledged and addressed.
PROSECUTING PERPETRATORS ‘AT HOME’
In this column, and in my Human Rights Council report, my message has been that truth, reconciliation, and healing can only fully happen if justice is carried out ‘at home,’ through domestic proceedings. That message is in no way intended to undermine the significant and groundbreaking work being pursued through the network of international and hybrid courts and tribunals. Such international prosecutions are significant for putting the most senior officials on trial, for being concrete examples of international resolve to prosecute such crimes, and for developing and reinforcing international criminal law standards. Sometimes they present the only avenues in the face of obstruction or denial.
But it is in the establishment of hybrid or mixed tribunals – such as those for Cambodia, Kosovo, Sierra Leone, Senegal, Timor-Leste and recently announced in The Gambia – where I find more of the benefits associated with national prosecutions: catalysing domestic legislative reforms, enhancing local legal capacity, and peace building through putting justice outcomes in the hands of those affected. The principle of complementarity means international courts should be the justice sites of last resort, a backstop for when national investigators or prosecutors are not considered impartial, or where national courts fail to prosecute.
The reason I am calling for a renewed focus on domestic proceedings is manifold. First, every victim-survivor of torture has a right to their day in court. International proceedings can only ever hope to touch a small segment of victims, and the catharsis of participating in court can be empowering and healing for victim-survivors and for communities as a whole to learn and to acknowledge the truth. In this regard I am encouraged by a number of States that are doing just this, some carrying out their first ever prosecutions of torture in domestic courts. 27
Second, every perpetrator of torture should be brought to justice, and the important consequence of this is that all public officials should carry out their duties faced with the real prospect that should they act against the law, they will be prosecuted. The International Criminal Tribunal for Rwanda set up to try the lead instigators and actors in the Rwandan genocide, in which it is estimated that between 800,000 and a million Tutsis and their sympathisers were slaughtered (not to mention the scale of other crimes that were committed), has indicted 93 individuals since 1995, of whom 61 were convicted and 14 acquitted. The International Criminal Tribunal for former Yugoslavia has a similar track record, with 161 indictments, of whom 90 have been sentenced and the remainder were either acquitted or proceedings were terminated or referred. As for the International Criminal Court, with over 900 staff and an annual budget of $169 million USD, it is disappointing that out of 31 logged cases, only ten persons have been convicted and there have been four acquittals.
The third reason I’m calling for emphasis on national prosecutions is for guarantees of non-repetition. States and leaders need to evolve to recognise that torture and similar conduct is a scourge on society, eating away at its moral fabric, future chances of peace and stability and stable governance. Taking up the mantel of national prosecutions signals that leaders recognise that holding perpetrators to account does not weaken their leadership, but rather strengthens it.
Although my emphasis in this Column and in my work as the UN's Special Rapporteur on Torture has been to push States to fulfil their obligations to conduct national investigations and prosecutions, I do not want to suggest that torture as an erga omnes crime is not of interest to all States collectively. Ever since Nuremberg, international prosecutions have played an essential role within the justice landscape for survivors of atrocity crimes, including torture.
In recent years, a growing number of States are showing solidarity by applying universal jurisdiction 28 to try foreign perpetrators accused of torture committed against foreign victims in faraway places who would otherwise be free. 29 As I write this Column, Canada and The Netherlands applied to open proceedings against Syria before the International Court of Justice via Article 30(1) of UNCAT. 30 This Article is an under-utilised way to hold States as perpetrators accountable, permitting States to pursue disputes over the interpretation or implementation of the Convention against Torture to The Hague.
Finally, the Mutual Legal Assistance (MLA) Convention for the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and other International Crimes, was adopted in Ljubljana on 26 May 2023, 31 which aims at strengthening cooperation between States on the extradition for prosecution of the most serious international crimes, and that is an historic first! My plea for ‘torture’ to be included as a distinct international crime, and not only under other heads of liability of genocide, war crimes, or crimes against humanity, has only been partially taken up by an optional clause in Article 6 of the new treaty. 32 Reliance will still therefore fall to insisting on mutual judicial assistance via Article 9(1) of the Convention against Torture, which obliges States parties to ‘afford one another the greatest measure of assistance in connection with criminal proceedings [on torture] including the supply of all evidence at their disposal necessary for the proceedings.’
CONCLUSION
A single incident of torture or ill-treatment should send shudders through our communities and be promptly investigated. While there have been many commendable developments which have chipped away at the grip that torture holds in many societies and throughout our world, too many routine forms of ill-treatment are being perpetrated every day and left uninvestigated. States can and should do more to clean up their own backyards. And as an international community, we can also do more to support these nationally-led efforts.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.