American University Washington College of Law Volume 19, Issue 4 (Spring 2012 Special Edition)
Human
A Legal Resource for the International Human Rights Community
Brief
Rights
Center for Human Rights and Humanitarian Law
Forensic Evidence in the Fight Against Torture
Proceedings of a Conference Presented by
American University Washington College of Law
and the International Rehabilitation Council for Torture Victims
February 15–16, 2012
Day One: February 15, 2012
1 | Opening Remarks
D ean C laudio G rossman , B rita S ydhoff , D r . M ohamud S.N. S aid
6 | Session One: Using Forensic Medical Evidence in Court
P rofessor D uarte N uno V ieira , P rofessor H ans P etter H ougen , M ostafa
H ussein , P rofessor J uan M éndez , D ean C laudio G rossman , P hil S hiner
21 | Session Two: Concurrent Panels
D r . M ariam J ishkariani , M aria N atividad P. H ernandez , D r . P ierre D uterte ,
D aniel C arey , I rit B allas , D r . A la ’ a S hehabi , F elicitas T reue , D r . F rances
L ovemore , R afael G arrido Á lvarez , S ilvia S errano G uzmán , D r . M echthild
W enk -A nsohn , R odger H aines , C hristy F ujio
Day Two:
February 16, 2012
53 | Session Three: Voices of the Survivors
C arlos J ibaja , D r . S othara M uny , D r . L illa H ardi , C arlos M auricio
65 | Session Four: Institutionalizing Medical Documentation at the
National Level
V ictor M adrigal , L oreine D ela C ruz , S ebnem K orur F incanci ,
R usudan B eriashvili , S uzanne J abbour , S ana H amzeh
77 | Session Five: Expert Panel Discussion on Fighting Impunity
D r . J onathan B eynon , P rofessor D iane F. O rentlicher , S uzanne J abbour ,
P rofessor D uarte N uno V ieira , D r . V ivienne N athanson , V ictor M adrigal
Directors of the Center for Human Rights and Humanitarian Law | Hadar Harris, Executive Director
Robert Goldman | Claudio Grossman | Diane Orentlicher | Herman Schwartz | Richard J. Wilson
American University Washington College of Law Volume 19, Issue 4 (Spring 2012 Special Edition)
The Human Rights Brief is a publication of the Center for Human Rights and Humanitarian Law at the American University
Washington College of Law. No portion of this publication may be reprinted without the express written permission of the
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The views expressed in this publication are those of the writers and are not necessarily those of the editors, the Center, or
American University. Copyright Human Rights Brief, 2012. ISSN 1533-6808.
Cite as 19 No. 4 Hum. Rts. Brief
An equal opportunity, affirmative action university.
Co-Editors-in-Chief
Lindsay Roberts
Christopher Tansey
Managing Editor
Kaitlin Brush
Managing Online Editor
Jessica Portmess
Senior Special Coverage Editor
Jessica Lynd
Senior Articles Editor
Carson Osberg
Staff Editors
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Allison Rogne
Jacob Schubert Lauren Nussbaum
Anne Schaufele
Katelyn Winslow
Staff Writers
Kyle Bates
Christina Fetterhoff
Claire Grandison
Anna Naimark
Sarone Solomon
Anna Taylor Megan Wakefield
Rachael Curtis
Michelle Flash
Matthew Lopas
Saralyn Salisbury
Marie Soueid
Thais-Lyn Trayer
Benjamin Watson
Founders Board
Vanessa Allen, Gillian Brady, Michelle Donme, Gabriel Eckstein, Robert Guitteau Jr., Fernando González-Martín,
Claudia Martin, Mair McCafferty, Rochus Pronk, Ayesha Qayyum, Diego Rodríguez-Pinzón, and Shashikala Warrier.
Alumni Committee
Anebi Adoga, David Baluarte, Anne Briggs, Fernando González-Martin, Jennifer M. Hentz, Richard H. Kamm, Sarah Paoletti,
Alejandro Ponce-Villacís, Amy Stern, Jaime Underwood, and Kristi Severance.
Editors’ Note: The remarks of the following conference participants are not included: Christian Harlang, Lawyer, Denmark; Jürgen
Schurr, REDRESS, United Kingdom; Rupert Skilbeck, OSI Justice Initiative, United States. The Brief extends a special thanks to
Jennifer de Laurentiis, Special Assistant to Dean Claudio Grossman, for her support in the production of this issue. All photographs
courtesy of the American University Washington College of Law and the International Rehabilitation Council for Torture Victims.
Opening RemaRks
Remarks of Dean Claudio grossman*
i
would like to welcome all of you to our law school, american
University Washington College of Law (aUWCL), for this
conference on the Use of Forensic evidence in the Fight
against Torture.
The purpose of the conference is to discuss the experiences of stakeholders around the world in enhancing the use
of forensic evidence to expose torture. This subject is crucial
for many reasons. We know that brutal forms of torture, which
leave physical scars, unfortunately continue to occur. However,
notwithstanding the physical evidence, there are many situations
where the passage of time or distance of international supervisory organs, for example, precludes the verification of the existence of torture. additionally, more “sophisticated” forms of torture are utilized with the precise objective of hiding and denying
its occurrence, creating further serious issues of accountability.
Torture is not only an issue involving a victim and a victimizer. impunity for torture has grave societal consequences in
addition to the impact on individuals. The practice of torture corrupts police and investigative agencies and their techniques, and
with its corollary of brutality, denies important values of human
dignity embodied in the rule of law, having a general negative
impact on the society. it is very difficult, if not impossible, to
isolate torture. Torture’s corrosive effect erodes important values
of human dignity and the rule of law in the societies where it takes
place. as a result, torture does not only impact individuals but all
of us, every individual who believes in the rule of law, and who
wants to live in societies where human beings are accountable for
what they do and where enforcement agencies, necessary in every
society, perform their duties in accordance with the rule of law.
This conference concludes a three-year study by the international
Rehabilitation Council for Torture Victims (iRCT). The law school
is proud and honored to cosponsor this conference with the iRCT
to explore topics that include survivors’ perspectives, national,
regional and international best practices in using forensic evidence
to combat torture, and challenges and emerging developments. The
iRCT is renowned worldwide for its commitment to the prevention
of torture and its contributions to advocacy, scholarship, and complete solidarity with the victims, which means so much not only to
the victims, but to everyone who stands for the values embodied in
the rule of law. if we were to live in a world with more ngOs like
the iRCT, we would certainly live in a better world.
* Dean Claudio Grossman has been Dean of the American University
Washington College of Law since his appointment in 1995. Dean Grossman
also currently serves as chair of the United Nations Committee against
Torture, and member of the Governing Board of the International Association
of Law Schools, of the Board of the Inter-American Institute of Human
Rights, and of the International Objectives Committee of the Association of
American Law Schools (AALS). Dean Grossman is also serving as a referee
in peer review evaluations for the European Research Council Dedicated
Implementation Structure, under the Ideas Specific Programme, until 2013.
As a member of the Inter-American Commission on Human Rights from
1993-2001, he served in numerous capacities including President (1996-97;
2001), Special Rapporteur on the Rights of Women (1996-2000), and Special
Rapporteur on the Rights of Indigenous Populations (2000-2001). Dean
Grossman has authored numerous publications on international law and
human rights, and received numerous awards for his work in those fields
including the 2010 Henry W. Edgerton Civil Liberties Award from the ACLU
of the National Capital Area and the 2012 Deborah L. Rhode Award from
the AALS Section on Pro Bono and Public Service Opportunities.
aUWCL has developed numerous initiatives in international
law and human rights including joint conferences with the
association for the prevention of Torture on the prevention of
torture and other ill-treatment, and on enhancing visits to places
of detention, and with amnesty international on the evolution of the Un Committee against Torture and strengthening
the prohibition against torture. in addition, aUWCL offers an
LLm in international Legal studies with eight different areas of
1
specialization, one of which is International Human Rights Law.
Our law school is also home to the War Crimes Research Office,
and our students and faculty contribute to studying issues of
accountability that are very much related to the topic that convokes us today. AUWCL is the law school that perhaps offers
the most courses in international law and human rights in the
world, with approximately 40 courses each term that specialize
in these topics. But this is not about what we do, this is about
what remains to be done. That is why all our efforts should not
be seen as things that create satisfaction for our accomplishments but as an incentive to move ahead in this important
struggle for human dignity.
On our side, I would like to thank Jennifer de Laurentiis who
spearheads our efforts involving the Committee against Torture
through our United Nations Committee against Torture Project,
and who also helped organize this conference. I would also like
to thank the Center for Human Rights and Humanitarian Law
as well as our offices of Special Events and Continuing Legal
Education, Public Relations, Grants and Programs, Technology,
and two of our law school’s faculty members participating in
this conference: Professor Juan Mendez who is also Special
Rapporteur on Torture; and Professor Diane Orentlicher who
is the Former Deputy for War Crimes Issues at the US State
Department between 2009 and 2011.
I would like to welcome you all once again to this conference, and to recognize in particular many of you who have
come from all over the world to be here. This conference will
be webcast and its proceedings reproduced by the law school’s
specialized, student-run publication, the Human Rights Brief,
which is distributed to over 4,000 subscribers in more than 130
countries. Through these means we hope to multiply the impact
of the conference and contribute even further to achieving our
common goals. I would again like to thank the IRCT. This
conference would not have taken place without this organization and its three-year project. I would like to recognize in particular Margaret Hansen, Senior Programme Assistant, Miriam
Reventlow, IRCT’s Head of Legal and Advocacy, as well as
IRCT’s President Mohamud S.N. Said, Secretary General Brita
Sydhoff, and Medical Expert Jonathan Beynon who is serving
as the conference moderator. The cooperation between our law
school and IRCT has been truly spectacular and I think it bodes
well for future events at this institution.
For all of you coming to the law school for the first time it
will be interesting for you to know that this conference is part
of our annual Founder’s Celebration, which commemorates the
history of this institution. WCL was founded by two pioneering
women in 1896, in a moment when women were not allowed in
legal education or into the practice of law because, “by nature,”
women were not considered to have the intellectual or practical skills required to practice the profession. The law school’s
founding mothers instead thought we should not blame nature
for things we do ourselves and that the study of the law irrespective of gender is essential to achieving a world of equality and
nondiscrimination. This is an important example that inspires
what we do here. We do not need to consider torture and other
forms of cruel, inhuman or degrading treatment or punishment
as inevitable occurrences. We can roll up our sleeves to act
against those situations, and imagine and contribute to a world
free of torture. I am sure that this conference will contribute
further to its realization. Thank you very much.
Remarks of Brita Sydhoff*
P
rofessor Grossman, Dean, thank you so much for inviting
us to the American University Washington College of Law
and being such a wonderful partner to this project.
* Brita Sydhoff is Secretary-General of the International Rehabilitation
Council for Torture Victims (IRCT) since September 2004. Responsibilities
include implementation of the IRCT’s policies and strategies with a broad
mandate to promote and support IRCT rehabilitation centers and programs
and the prevention of torture globally. Her previous positions include
Head of the Department of International Law and Refugees of the Swedish
Red Cross; Resident Representative of the Norwegian Refugee Council in
Geneva, Switzerland; Head of Programmes with the International Council
for Voluntary Agencies, also in Geneva; Head of research program on
international migration in the International Organisation for Migration in
Budapest, Hungary; Head of the Danish Refugee Council’s operations in
the former Yugoslavia with responsibility for implementing humanitarian
emergency programs; and consultant for the World Health Organization.
Prior to leaving Sweden in 1984, Ms. Sydhoff worked for the Swedish
Migration Board in senior positions for 13 years.
2
As a victim-centered global movement of around 150 centers
in 74 countries around the world, who focus on the rehabilitation of torture survivors, access to justice, and the prevention
of torture, it can come as no surprise that the documentation
of torture is so important to us. Therefore, for a decade now,
a key priority of the International Rehabilitation Council for
Torture Victims (IRCT) has been the promotion of the medical
legal documentation of torture. Such documentation is a crucial
means to increase victims’ access to justice, fight impunity, and
ultimately, to act as a deterrent to would-be torturers.
network of independent experts created by PRIVA (Foundation
for the Integral Rehabilitation of Victims of Violence), the IRCT
member in Ecuador, Dr. Ramírez documented cases of torture
and executions inside the prisons where he worked. On the same
day he was killed, PRIVA presented a number of cases that Dr.
Ramírez documented to United Nations Special Rapporteur on
Extrajudicial, Summary, or Arbitrary Executions, Philip Alston.
Dr. Ramírez knew about the risk of his documentation work
since he had received numerous threats against his life, but he
did not let this intimidate him.
Impunity, as you well know, is one of the most serious
impediments to the prevention of torture. Perpetrators are
seldom brought to court and torture survivors rarely receive
any type of reparations or redress. In the climate of impunity,
perpetrators of torture can continue their crimes without risking arrest, prosecution, or punishment. Besides adding to the
suffering of the victims, such a situation leads to a general
lack of trusting justice and the rule of law. Consequently, few
complaints are brought forward and few actual prosecutions
are made.
The lack of safety for professionals working on torture cases
and the absence of assured protection for victims pursuing justice is sadly all too common and a problem that is a major concern of ours. The pressure placed on medical staff, lawyers, and
survivors to dismiss action in torture cases for fear of retribution
is one of the most serious challenges to fighting impunity. I
know that I don’t need to spell this out to those of you present
here today, but still it has to be said.
But unfortunately, it’s only one challenge among a long list
which may include: a lack of independent national forensic institutions, a lack of understanding and expertise in both the medical and legal professions, flawed legal systems, and inadequate
procedural legislative and institutional structures. The challenges are many; yet, over the past two years we have together
with the independent forensic expert group that I mentioned
earlier provided input to more than thirty cases of torture and
ill-treatment worldwide. They have been supporting the work of
lawyers representing torture survivors, with medical expertise to
affect positive change through strategic litigation.
Since 2009, our work in this field has also embraced
direct medical and psychological support to select legal cases
in collaboration with IRCT member centers, particularly in
Ecuador, Georgia, Lebanon, and the Philippines. Alongside
our medical centers in these countries, we have supported
torture survivors in taking their cases to court, promoting
medical documentation, and advocating for change in their
national systems.
The European Commission has been the main donor in
this work from the very beginning and we are most grateful
for their continued and generous support. Collaboration with
academic institutions has been a key to success in the IRCT’s
work on the promotion of forensic evidence in the fight against
torture. And the Washington College of Law has been a great
partner to us for several years, as has the forensic department of
the medical faculty at Copenhagen University, with whom we
have worked so closely in the last decade. The forensic department at Copenhagen University has been an important partner
actually from the very outset. Together, we took the initiative
to form an international group of forensic experts to increase
the availability of high quality forensic documentation. We are
delighted that more than 34 prominent experts from seventeen
different countries have joined this group, it comprises outstanding collective knowledge and experience in the documentation
of physical as well as of psychological torture colloquium. This
group has served as a reference point and has provided advice
on cases and technical issues over the years in many parts of the
world. And lets not forget that often this work is not without
significant personal risk.
The support has taken the form of examinations of torture
survivors and provisional medical and psychological reports,
medical opinions on existing records, and expert testimony
on medical forensic questions in court. As we have seen, such
investigations can be essential in strengthening the evidentiary
basis for the case of the victim.
Today, there is a growing array of case law at the domestic
level as well as at the European and Inter-American courts of
human rights where medical and psychological reports have
provided decisive facts and insight for court decisions. Over
the coming two days, we will hear of some of these cases, and
a range of practitioners and academics from the legal, health,
and other fields will present achievements, challenges, and good
practice examples from their work. My hope is that together
we can exchange and share learning and find inspiration and
motivation to continue working for victims’ access to justice
and ultimately the prevention of torture, as Dean Grossman
mentioned. We have to have vision.
One thing is clear: forensic documentation of torture and
the use of the documentation as evidence in court is never a
straightforward issue. There are many hurdles to overcome. We
as an organization, worldwide, are committed to take this work
On the 6th of July, 2010 our colleague Dr. Germán Antonio
Ramírez Herrera, a forensic doctor working in the prison of
Quevedio in Ecuador, was killed under mysterious circumstances. As a former trainee and a member of the national
3
forward as one of the key stakeholders in this avenue of addressing impunity. We think we have added value to give here.
I hope that this conference can provide us with a further
step in the right direction. In the IRCT, we continue to do our
best to support our national member centers as well as local
and international health and human rights organizations who
are doing most impressive work in documenting violations and
providing support to victims under often very difficult conditions. But in this, we must take care not to relieve governments
of their primary responsibilities. We need to continue to remind
states of these responsibilities and to hold them accountable. It
is they who are ultimately responsible for adopting domestic
laws, implementing international legal obligations, putting in
place complaint mechanisms and the appropriate procedures
on investigations and independent monitoring, and for making sure victims can access independent and impartial medical
examination and access reparations including rehabilitation,
for their ordeals.
Another important aspect, that so many of our colleagues all
over the world are engaged in and we hope to strengthen over
the coming years, is to enhance the psychosocial support to
victims who either file complaints to courts or act as witnesses.
Today, there is too limited consideration to the measures needed
to support and counter the potential psychological harmful
effects for victims involved in legal proceedings. Our global
movement is increasingly exchanging experiences on how this
is best brought about.
The training and capacity development of health and legal
professionals on effective investigation and documentation
of torture is another area where there are endless needs. The
understanding and collaboration between the two professions
must be furthered. Legal and health professionals have a different frame of reference and often have limited insight into
each other’s work. Having legal and medical professionals work
closely together and exchange views and understanding will
greatly advance the effectiveness and impact of medical and
psychological work towards preventing torture. This is what our
experience over the last decade has told us.
Finally, once again Dean Grossman and also Professor
Méndez, I’m most grateful to you for inviting us to hold this
conference here in these fantastic premises, and I thank you for
all your invaluable support in the preparations and your generosity. I wish us all here very fruitful deliberations in the coming
days and that we can further move this work in the right direction. I thank you all.
Remarks of Dr. Mohamud S.N. Said*
T
hank you, Professor Grossman. Dear colleagues, I am
privileged to be here today. This historical moment for
us at the IRCT and all human rights defenders. Forensic
documentation is a very important tool to use in litigation of
torture. I represent over 150 centers worldwide, some of which
were started by victims using meager resources. Looking at the
background of all those centers, they were started very humbly
by humble people, ordinary people. Sometimes people tell us
that they are amazed by our activities on behalf of torture victims. They say, for example, “you people are extraordinary.” I
usually tell them, “we too are ordinary people doing extraordinary things anywhere we are needed. Among us are professionals, students and peasants, all engaged in the defense and
protection of human rights. If we go back, especially into third
world countries where torture is very prominent, many centers
have been established. Looking at what is happening in the great
lakes regions and also in Liberia, where women are raped and
tortured, and where child soldiers are prominent, there is massive abuse of human rights. Our collaboration with universities
and other institutions has enhanced our work of documenting
torture cases. The training of the Istanbul Protocol in all of our
centers has given us added strength to go into court and state our
cases. In some cases, mainly in Latin America, we have been
successful. Most of our centers are dealing with medical issues.
Rehabilitation, especially in psychological torture cases in the
* Dr. Mohamud S. N. Said is a medical doctor and President of the
International Rehabilitation Council for Torture Victims (IRCT). He
is also a member of the Board of the Independent Medico-legal Unit
(IMLU) in Kenya.
4
third world are very low. That is the area in which we need to
increase our work.
rights and proper documentation of torture cases. I am happy
to say that, all over the world now, medical personnel are very
much involved in issues related to human rights abuses. In my
view, documentation is an important aspect of our collective
works. This great two-day meeting, I believe, will provide us
opportunity to come up with comprehensive resolutions and
recommendations.
On many occasions, torture cases are handled by medical
doctors who are government employees and it happens, in some
cases, they falsify the reports. I can give an example from Kenya
where some years back a prominent minister was killed and the
then chief pathologist wrote down that he burnt himself and
then shot himself, but another pathologist from Egypt who was
working at the same institution wrote a contradicting report and
was immediately deported. The other case was of a tourist from
England who was murdered in the Maasai Mara game parks.
In this case, the postmortem report listed that she was killed
by wild animals, but the evidence by independant pathologists
found that she was murdered.
As we meet in Washington, it is a fact that impunity is
everywhere. Fighting impunity through proper documentation
is crucial to our collective work. Human rights abusers should
be aware that there is no escape from litigation when they
are caught. I am happy to note that both in Africa and Latin
America, through the Istanbul Protocol trainings and the instruments we applied, we were able to get good results in some
cases. Finally, I express my sincere gratitude to Dean Grossman
and American University for hosting us. My thanks also go to
all the participants. Thank you again.
Soon after, the Kenya Medical Association concluded
“enough is enough” and became active in the fight for human
5
SESSION ONE: USING FORENSIC MEDICAL EVIDENCE IN COURT
Opening Remarks from Professor Duarte Nuno Vieira, Session Chair*
G
ood morning, my name is Duarte Vieira. I come from
Portugal—a very cold Portugal, at this time it is not usual for
us—but here is much better. I want to begin by saluting all of
the participants in this session, to salute all the speakers in this first session, and to salute the organizers of this conference and, of course, congratulate them for choosing this very important topic, congratulate the
Washington College of Law and the International Rehabilitation
Council for Torture Victims for this excellent organization.
It is the end of a three-year project, as has been said, and
I think we all have so much. Our thanks to the International
Rehabilitation Council for Torture Victims (IRCT) for the excellent work they have been doing. No one has dealt today about the
fundamental importance of forensic evidence in the investigation
of torture and other cruel inhuman treatments or punishments. We
all know that forensic evidence is fundamental in many areas—
for battling impunity, for the redress of survivors, for compensation under the forms of restitution, for rehabilitation, introduction
of reforms, for the official public acknowledgment of these situations, and of course, for preventing and ending ongoing abuse.
As stated in the program conference, documentation makes it
difficult for perpetrators to deny their crimes, and especially puts
tremendous pressure on the government and on states concerning
their obligations under international law to both bring perpetrators of
torture to justice and provide reparations to victims. We know that
today we have many international bodies, many organizations that are
involved in the investigation of torture, but of course, there are always
difficulties in the investigation of torture. Torture always takes place
behind closed doors and without witnesses. States and authorities
tend to deny the practice of torture. Methods of torture are, every day,
increasingly aimed at leaving no visible marks. The worst scars are
usually on the mind. Victims of torture are usually kept in isolation,
far from families, far from lawyers, far from doctors, at least while the
visible marks are still present. To compound the issue of identification
of torture, many victims of torture tend to deny the practice of torture
because they fear reprisals—reprisals on themselves, reprisals on their
families. However, a well-trained forensic expert is able to identify
possible lesions and signs of abuse, even in the absence of specific
complaints. We will see that during this morning’s sessions.
* Duarte Nuno Vieira (MD, MSc, PhD) is the current President of the
International Academy of Legal Medicine and of the European Council
of Legal Medicine. He is the former President of the International
Association of Forensic Sciences, of the World Police Medical Officers, of
the Mediterranean Academy of Legal Medicine, and of the Latin-American
Association of Medical Law, and member of the Executive Board of the
Iberoamerican Network of Forensic Medicine and Forensic Sciences
Institutions. He is full professor of Forensic Medicine and Forensic Sciences
and of Ethics and Medical Law at the University of Coimbra and invited
professor in several European and South-America universities. He is also the
Director of the National Institute of Forensic Medicine and Forensic Sciences
of Portugal and a member of the Portuguese National Council of Ethics for
Life Sciences. He has published extensively and he has been awarded 11
scientific prizes and 14 honorary fellowships from scientific associations, governments and municipalities, from European, Asian and Central and South
American countries. He has participated in many international missions as
forensic consultant, especially in the field of Human Rights.
The documentation of signs of possible abuse, both physical and
psychological, is one of the competencies of these forensic experts,
and they will also be able to interpret this evidence and deduce possible causes, knowing that the absence of evidence is not always the
same as the evidence of absence. We will listen to forensic experts
this morning that will discuss the fundamental importance of the
forensic examination and forensic reports. We will also see how
their application in courts will be fundamental to hold perpetrators
accountable and to provide reparations to the victims. We will first
hear from Professor Hans Petter Hougen from the University of
Copenhagen’s Department of Forensic Medicine, who will discuss
forensic medical expertise in torture cases.
6
Remarks of Professor Hans Petter Hougen*
T
hank you, Duarte, and it is a great pleasure for me to be
here today with all of you I know, and all of you that
I hope to know during these two days. It is good to be
among friends. I will talk about medical expertise in torture
cases. The content of my presentation will be about sequels to
torture, the Istanbul Protocol,1 and the Minnesota Protocol.2
Then, I will share a few words about our project, the Forensic
Evidence Against Torture (FEAT) Forensic Expert Network,
and will then give my thoughts on the forensic expert in court.
SequelS to torture
Most of us have scars on the body, from falling down stairs,
falling while playing football, falling off a bicycle or whatever.
Looking at scars from whipping—this is a case from Sudan
some years ago—you see the dark stripes on the back, which
present the typical appearance of scars from whipping. Cigarette
burns: We have seen these kinds of lesions in many torture
cases. They heal up with round scars, but we also have to be
aware of the fact that burning can be done for ritual purposes.
I show you a photo of scars that are not after cigarette burnings, but after cigar burnings. They originate from one of the
Caribbean islands as ritual, and not torture. Clearly, the forensic
pathologist has to know something about the rituals and customs
in the country or the region in which he or she is working.
problems cut themselves. We call them “cutters.” This is not
torture, and we have to be mindful of the fact that not all lesions
are the result of torture. To recognize this, we must know something about the society in which we are working.
This is phalanga—beating of the soles of the feet—a torture
method used for many centuries throughout the world. The picture to the left is from Nepal, and the picture down at the right
is from Spain during the Franco period, from the early seventies.
I have seen cases from Latin America to the Far East. Sequels
to phalanga can be seen years after. You can see here that there
are several small scars under one foot—you can see the wrinkles
under the non-affected foot, but not under the other. Many of
the victims of phalanga have walking difficulties, which can
persist for the rest of the life. Here we can see a young man from
Rwanda with scars after chopping. In knowing what was occurring during the genocide in Rwanda, specifically that a frequent
method of killing or torturing was chopping with machetes, then
it is obvious that these scars are the result of chop wounds.
This is a picture painted by a local person from Burma
(Myanmar) who suffered various forms of torture and was a
victim of forced labor. It will be interesting to see how Burma
develops, because it still has a long way to go to real democracy,
especially in the eastern part of the country. There, the infrastructure is very poor, and the military has the habit of invading
the villages, taking all the males away and burning the villages.
The military then forces the men to work for them, carrying
heavy weights, for instance. And as you can see here from this
picture, the treatment is not very nice. So when a person presents deep abrasions of the back and shoulders, it is very likely,
maybe even obvious, that he has been a victim of forced labor
by having served as a carrier of heavy goods. If he presents
himself a long time afterwards, with shoulder and back scars, it
is quite obvious, knowing the context, that this person has been
forced to carry heavy burdens for the military.
These next wounds are not torture, however. They are selfinflicted wounds. We see these types of scars in many of the
Western countries, where young people with psychological
This photo is from a trip to Togo a couple of years ago, when
we found this person in a remote police station. He had been
accused of stealing two chickens, and to speed up the process
of obtaining a confession, the police whipped him. Here we see
stripes on the skin, where the superficial parts of the skin have
been lost during the whipping. Sure enough, in the same police
station, we found a thin tree branch which was used for whipping the detained persons. Here are photos from another facility
in Togo: this person had the striped skin hematomas and another
* Hans Petter Hougen is professor of forensic medicine at the University
of Copenhagen and chief forensic pathologist of East Denmark. Professor
Hougen has completed forensic expert assignments for the United Nations,
Organization of American States, the International Committee for the Red
Cross and various national authorities as well as several NGOs with experience from more than 15 different countries during more than 25 years.
7
humiliation tactic. You can see the same tactic here, where the
victim is naked and highlighted by spotlights. It is a tremendous
humiliation to be naked when you do not want to be naked.
person at the same facility had skin lesions with small hemorrhages on the side and pale skin in the middle. Both men had
been beaten, and sure enough, we found a stick in the facility,
and the local police then admitted that it was occasionally used,
when the detainees did not behave “as they should.”
The Minnesota Protocol covers the process for autopsies of
those who do not survive the torture or are victims of extralegal
executions. It is part of the UN Manual on Effective Prevention
and Investigation of Extralegal, Arbitrary and Summary
Executions, which has a legal section, and also contains a Model
Autopsy Protocol and a Model Protocol for Disinterment and
the Analysis for Skeletal Remains for forensic anthropologists.
The IsTanbul and MInnesoTa ProTocols
Next, I would like to say a few words about the Istanbul
Protocol, which is an essential instrument used when we document torture. The Istanbul Protocol is comprised of different
chapters: legal standards, ethical codes, legal investigation of
torture, general considerations for interviews, physical evidence
of torture, psychological evidence of torture, and annexes like
laboratory schemes, drawings, et cetera.
The Work of The forensIc evIdence agaInsT
TorTure (feaT) neTWork
Brita Sydhoff has already mentioned the Forensic Evidence
Against Torture (FEAT) Forensic Expert Network, which was
established by the International Rehabilitation Council for
Torture Victims (IRCT) and my department at the University
of Copenhagen. There are two main types of networks: ad hoc
networks and “spider web” types of networks. In this context,
IRCT is the spider. As we have already heard, members of the
forensic expert group come from many different countries. The
network has dealt with several cases during this project period,
over the last two and a half or three years. This is the Khaled
Mohamed Saeed site, a case that the next speaker will discuss,
and in which our network also intervened.
Here is a photo depicting the typical situation of a torture
documentation interview. Note that the doctor and the interpreter are sitting on the carpet, while the torture victim is not.
This is not good practice.
The Istanbul Protocol provides a checklist for the different
parts of the body that have to be examined, and also suggestions for specialized diagnostic tests regarding the situation. The
Istanbul Protocol also has a chapter on psychological evidence
of torture. Psychological evaluation is essential and a torture
victim examination that only includes a physical exam is incomplete. Torture does not necessary leave scars on the body but
almost always leaves scars on the mind. The Protocol includes
special considerations about Post-Traumatic Stress Disorder
(PTSD), which is a psychological condition seen in a lot of torture victims, but that is not only found in torture cases. PTSD is
a reaction to extreme stress, and we know that torture is a severe
psychological stressor. Torture may be physical or psychological, and is often a combination of the two.
This was a case that was brought before the Inter-American
Court of Human Rights, where two of the members of our network made their forensic study available and made a report to
the Court. Our network’s efforts was one of the main reasons
why the state of Ecuador had to pay compensation to the family
of this person who had died in a hospital and had not received
the care that he was entitled to. The Court ordered the State of
Ecuador to compensate the family, to change the law in this
area, and to publish the results of the verdict of the Court. The
Court will supervise the implementation of the sentence.
Then there is what I have talked a little bit about already,
the context: political or cultural differences. The psychological
consequences of torture may be a range, from nil to invalidating
psychoses. In most cases, there are psychological consequences
to torture, even though in many cases you may not see any
physical signs of torture. There will almost always be some psychological sign of the torture, and preferably, specialists should
conduct a psychological or psychiatric evaluation. However, I
know very well that we do not have psychiatrists all over the
world; not every village in every country has its own psychiatrist
or psychologist.
Then there was the UK military hooding case in Iraq. In this
case, brought through the court system in the UK, our network
intervened, made a statement,3 and published a report in the
Journal of Torture, which you can see up here afterwards if you
are interested. As a result, also of our efforts, hooding is now
banned in the UK.
The network has also made an operational manual for medical team missions, which has now been translated from English
to Spanish and French, and a Portuguese version is coming out
soon, so it will be in some of the main languages. Our network
also promotes human rights work at conferences, including
international forensic conferences, the most recent of which was
in Madeira last year.
These are some drawings made by torture victims where they
try to express how they feel after torture. This person has been
submitted to phalanga. In his work, you can see the beating of
the foot soles, and therefore you see his feet are big, swollen.
Hooding, where victims are hooded or blindfolded, is a very
common act during torture sessions. The victim in this photo is
“locked in his own mental prison” where it is difficult to get out
and to connect normally with others. Stripping a victim naked
during torture sessions, with a lot of eyes looking at her, is a
So what have we learned in this network? Well, the network
operates fast: with email, you can achieve great results in a day or
two. Network members all have experience in their field. Many of
8
the network members have influence, especially locally, and some
also have international influence. The network is taken seriously.
But, the network members are all busy because we have other
work, as well. Someone has to take the lead in every specific case,
and this to say that someone also has to do the hard work. The network as all networks, has to be activated, and the network needs a
secretariat, so the IRCT is not only the spider in the middle of the
network, but is also the network’s secretariat.
hammock strings. Here again you can see a scar from forty years
later, which fits very well with what we know of the country’s
human rights violation history.
The last thing I will talk a little bit about is the forensic
expert in court. We have several lawyers present and we know,
from our different countries, that forensic experts are called to
court, in some countries more than others. On the international
level, especially in human rights cases, some of us think that
we should be used more. So why is forensic expertise necessary in court? Forensic pathologists are specialists in trauma
documentation, and are also specialists in trauma interpretation.
We can interpret scars, and we are impartial. We are not the
patient’s doctors, and we are not the police’s doctors. Forensic
pathologists know how to write a report, and are accustomed to
going to court, while not all doctors are used to going to court.
Forensic pathologists can explain what lawyers need to know
about torture, at least the medical part of it. Forensic pathologists know that torture often leaves no physical marks, and can
explain a case in plain words because we do not speak “doctor
Latin,” at least not all the way. We are used to explaining what
we find to people who are not doctors. And finally, the words
from an expert count. So, with that, and the Little Mermaid from
Copenhagen, I would say thank you for your attention.
FEAT has sent forensic missions to a lot of different countries, including Afghanistan, Bahrain, Cambodia, Colombia,
Georgia, Iraq, Israel, Peru, Philippines, Russia, Thailand, and
Venezuela. For example, here is a photo of Cambodian tribunal
trying the Khmer Rouge for abuses it committed in the 1970s.
This is a picture made by one of the survivors, depicting his
leg in shackles, similar to many of the prisoners. This picture is
from a museum, where you can see the shackle. This is a scar
on a victim’s ankle. Scars can be detected even some forty years
after the torture or maltreatment. It is necessary to know what
happened in the country, because without other information, this
is just an isolated scar that says nothing. However, combined
with all we know, this could very well be a scar that is the result
of an ulcer resulting from shackling. Thousands and thousands
of the victims were tied by their arms during the torture or
before being killed. Here you can see the strings—these are
Remarks of Mostafa Hussein*
The Case of Khaled said
T
hank you very much for having the time to listen to
the Khaled Said case. Khaled Said is an Alexandrian,
a 28-year old man, who died minutes after two secret
policeman approached him. They smashed his head onto a
marble shelf of an Internet café. They beat him in broad daylight
in front of everyone. They smashed his head on a marble shelf in
the café and then took him outside and smashed his head again.
Outside in front of everyone, he was crying for help, he died
minutes later. Days later on the Internet his lawyers uploaded
two images of a bloody disfigured head, the one you see now.
This created immense uproar online and people decided to protest because there were already known cases of torture that had
been happening in Egypt for a long time.
There were many online protests on the Internet, and many
groups formed to share information about how people would
organize and take to the streets. These protests were met with
arrests and further brutality. The Egyptian government decided
to tell us about the circumstances following Khaled Said’s death
and, in a published statement, said that the two secret policemen basically did not touch Said, they only tried to stop him so
that they could search for drugs. They said that when the two
* Mostafa Hussein is finishing his postgraduate studies at Ain Shams
University and has worked previously at the El Nadim Center for
Psychological Treatment and Rehabilitation of Victims of Violence.
9
policemen approached him he swallowed a wrap of hash and he
choked and died. This statement was followed by other threatening statements from the Ministry of Interior. Basically, they just
wanted the case to die. The first forensic report that appeared
backed the story of the state and was the same story that the
two secret policemen had told. Immense public pressure and
requests by the family and the lawyers forced the public prosecutor to take the case to further autopsy. A second report was
published days later after an autopsy was done at the gravesite
for an hour or so; this single page report confirmed the earlier
circumstances and the earlier report.
The El Nadim Center which was established in 1993 as a
rehabilitation center for victims of torture and is part of the
IRCT network decided to take both reports and photographs
available to the international forensic experts. Actually, before
that, we tried to work with local experts, but there was immense
public pressure because of the case’s high profile that some
of the local experts decided not to look at the documentation
or provide extra (or any) reports on it because of the political
sensitivity of the situation. Thus, the Nadim center contacted
the IRCT, which commissioned Dr. Duarte Nuno Vieira and Dr.
Jørgen L. Thomsen, both forensic pathologists. They have written a report and I have a summary of the items mentioned in that
report. Essentially, it criticized the first two reports for failing to
comply with international standards for forensic autopsy. As to
the first report, it concludes that diagnosis of death by asphyxia
is not sufficiently supported by the data provided, and that most
of the aspects described are nonspecific and inconclusive of
their own. It goes on to say that the photographs supplied are not
clear and do not fulfill the minimum requirements of forensic
photography.
Out of the past 30 years of similar cases, the Egyptian government, the state security officers, and the former Minister
of Interior are now being tried along with other generals for
only 18 days of those 30 years. The Egyptian government had
30 years of an emergency state. This emergency state enabled
the police unlimited powers to arrest and persecute with impunity any individual. After years of work, international and
local organizations find torture in Egypt to be systematic and
basically a state policy. Article 126 of the Egyptian Criminal
Code, which defines cases of torture, is incompatible with the
international definition of torture and several requests for the
previous parliaments to sign and ratify the optional protocol
were refused. The Egyptian government continued to resist any
form of prosecution or trial against any of their police officers.
Some of the youngest officers were tried only after immense
pressure, but they only served as scapegoats and received light
sentences.
The second report has the same weaknesses and deficiencies as the first and is far below the minimum international
standards accepted for forensic autopsies. Both reports describe
that the subject was clearly subjected to physical aggression,
but they did not take into account that the secret policemen said
otherwise or that there were other witnesses who supported the
claim. There is much worry over the standard practice in the
country. The standard practice of forensic evidence or forensic
pathology in the country was also criticized. The conclusion of
the report was that the deficiencies, inadequacies, and incongruence of the previous reports and autopsies performed on the
cadaver of Khaled Said clearly make it impossible to reach any
firm conclusions about the circumstances surrounding his death,
including the cause.
Let us go back to the first report produced by the forensic authority and I will quote a bit from it. Essentially, the
section described under item one is trauma resulting from
collision with solid objects or objects of whatever nature
those described under item two are, friction of trauma resulting from collision, and friction of surface body or bodies of
whatever nature. Similar to what occurs from falling to the
ground, those described under the above injuries are minor
and not the cause of death. We believe that the death was
the result of aspiration asphyxia as a result of blockage of
air passages by the packet that was found stuck in the area of
the oropharynx in accordance with the prosecution’s memo.
The second forensic report that I told you was done at the
gravesite and was basically just the single page essentially
said that the second autopsy of the body showed the presence
of injuries in accordance with what has been shown in the
previous forensic report: injuries as a result of collision with
a solid body or bodies of whatever nature. There is nothing
to exclude the possibility that the injuries could be the result
of beating during the attempt to control the victim. These
injuries are generally minor and do not result in, nor have
they caused, the death. Additionally, analysis of the bowels
of the deceased found the substance of Tramadol (an opiate
narcotic) listed in the narcotics schedule as well as traces of
hashish metabolism, which is a cannabinoid. As the attached
pictures clearly show, the photo of the bloodied face and neck
was actually taken after the autopsy.
Suddenly, the medico-legal authority in Egypt was under
intense scrutiny and accused by everyone of being a part of the
regime—a state tool. It didn’t even help when the chief forensic
examiner appeared on TV. He appeared on TV late in the case,
after the revolution, and he proudly stated that he was chosen
by the state security department for his position. Luckily, he
was fired soon after this statement. The case of Khaled Said is a
very sensitive one for the medico-legal authority. They still deny
that the state put any pressure on them to write such reports, but
they concede that there is an incredible lack of experience and
tools to write proper professional reports that meet international
standards. The medical authority uses tools and has guiding
legislation that has been there for fifty years and has never been
changed or amended. One example is that the forensic authority does not have sterile swabs for victims of sexual torture or
sexual abuse.
The court in October of last year, after a very lengthy judicial process, decided to hand down seven years in prison to
the two secret policemen. This was not because of torture or
killing, but rather because of the misuse of force, the abuse of
10
law enforcement powers, and something called bodily harm and
bodily torture. This is not exactly the torture that happens as
legally defined by officials, but torture that can happen between
two normal citizens. This sentence wasn’t well received publicly in Egypt because people were hoping for either the death
sentence, which is still in place in Egypt, or at least 25 years in
prison for both of them. The court discarded the forensic reports
provided by the international expert and discarded forensic
reports made after the chief forensic examiner was fired. These
reports were completed by local university experts in Egypt.
This result stems from the fact that the court system in Egypt
considers itself the supreme expert on any case.
It is unfortunate to look at it this way, but if we look at the
bigger picture, the Khaled Said case was the catalyst for younger
Egyptians to overthrow Mubarak. He was thought of nationally
as a martyr and now we have thousands of Egyptians willing to
fight for dignity and human rights. This final image was taken
on the 6th of June 2011. This is the anniversary of Khaled Said’s
death and this is actually the Ministry of the Interior and protesters spraying graffiti of Khaled Said’s image on the walls of the
ministry of the interior. The prosecution has filed for a retrial to
the Court of Cassation. We still do not know what is going to
happen, if there will be a retrial or not, but hopefully there will
be. Thank you very much.
Remarks of Professor Juan Méndez*
IntroductIon
T
hank you, Duarte. Thank all of you for being here,
and I especially want to thank the law school and
the International Rehabilitation Council for Torture
Victims (IRCT) for inviting me to speak at this very timely
and important conference. As many of you know, the Special
Rapporteurship on Torture is one of the special procedures of
the United Nations (UN) and is a very well-established part of
the machinery of human rights protection that the UN has set
up. In fact, the Rapporteurship was one of the earlier thematic
mechanisms. It has existed for about 26 years. But more important than that, it has previously been occupied by four very
distinguished European jurists that have set a very high bar for
what I have to do. At the same time, I see it more as a platform
than as a challenge. It does make one’s work a lot easier when
you can say, “well, this is the way this has been done for 25
years.” In that sense, the four jurists that have preceded me have
really done excellent work.
But you should know also that the United Nations has
been dedicated to combating torture for a long time. Beyond
the Rapporteurship, there is the Committee Against Torture
that is now chaired by Dean Claudio Grossman. There’s the
Subcommittee on the Prevention of Torture that is part of the
Optional Protocol to the Convention Against Torture,4 and
our staffs try to coordinate our work as much as possible.
Coordination is not easy, but the exchanges have been very fruitful, at least for me. I’ve been able to learn from the Committee
Against Torture and the Subcommittee on the Prevention of
Torture, and we regularly meet and exchange views, and even
plan to maximize the possibilities for each of the bodies.
* Juan E. Méndez is a Visiting Professor of Law at the American
University Washington College of Law, and since November 2010,
the UN Special Rapporteur on Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment. In 2009 and 2010, he
was the Special Advisor on Prevention to the Prosecutor of the
International Criminal Court. He was also Co-Chair of the Human
Rights Institute of the International Bar Association in 2010 and
2011. Until May 2009, he was the President of the International
Center for Transitional Justice (ICTJ) and in the summer of 2009,
he was a Scholar-in-Residence at the Ford Foundation in New York.
Concurrent with his duties at ICTJ, the Honorable Kofi Annan named
Mr. Méndez his Special Advisor on the Prevention of Genocide, a task
he performed from 2004 to 2007.
Additionally, we have been working with regional mechanisms that have been set up to deal with the same topics, the
Inter-American Commission on Human Rights, which is fortunately based here in Washington as well. They have a Special
Rapporteurship on the Rights of Persons Deprived of their
Freedom. They have also been doing excellent work, and have
coordinated and exchanged views with us. It is difficult to
11
anticipate, but we are also even planning on doing some joint
projects as well. That is not limited to the Western Hemisphere.
As you know, Europe has had for a long time a Committee on
the Prevention of Torture (CPT) under the Council of Europe.
We have also started to coordinate with them; I had a meeting
in Geneva with them last December, but even before coordinating, I was very pleased to see that more or less coincidentally
with when I issued a report to the General Assembly on Solitary
Confinement, the CPT actually issued its own report to the
Council of Europe and called for the abolition, or at least strict
regulation, of solitary confinement in Europe. Serendipitous,
certainly, because we had not discussed it, but it is good to know
that we support each other and can draw on a body of prestige
like the CPT for some advances we propose in international standards. More recently, in January, I also participated in an attempt
to coordinate with similar mechanisms of prevention of torture
that have been set up in the African Commission on Human and
Peoples’ Rights. So this is all to say that there is a coincidence of
interest in preventing torture, and in documenting and providing
evidence for torture, and the reason is self-evident. Despite all
these efforts, torture continues to be so prevalent and so widely
used for various reasons that we just cannot let up our guard. We
may have thought some time ago that complete abolition of torture is around the corner, but unfortunately it is not the case. There
is much more that needs to be done, and much more imagination
has to be displayed as we make the prohibition of torture more
effective.
the level of severity that we call torture does not mean that the
conduct is permissible. Sometimes that is forgotten in this work.
Then there are some forms of treatment that do not even
reach the level of severity that is required for cruel, inhuman,
or degrading treatment. Being able to determine that is very
hard to do. In my mind, I am guided at least by jurisprudential
decisions by the European Court of Human Rights in a case
called Selmouni v. France in which, at least as guidance, the
European Court says that any force applied on a detainee that
is not justified by the detainee’s own conduct and proportional
to that conduct is impermissible, or a violation of Article 3 of
the European Convention on Human Rights.5 I think that is not
easy to determine, but at least it gives us good guidance to tell
authorities, “You’re not free to use force, you can only use force
under very limited and very specific circumstances; and once
you use it, then you still are bound to exercise that force within
certain boundaries.”
I am not going to discuss in the definition questions of
authorship. As you know international law prohibits torture
when practiced by state agents, and there are circumstances in
which that line is difficult to draw, but in general I think that
anybody who is aiding and abetting the state and committing
torture, qualifies as a state agent. Harder are questions of nonstate agents, clearly, and even anti-state agents, rebel groups,
etc., but I think that issues of torture and cruel, inhuman, and
degrading treatment in those circumstances are covered well
enough by international humanitarian law and the laws of war,
and we can act on them. Although I am mostly there to address
states in specific situations, I do not think the legal framework
under which I operate would prevent me from addressing nonstate actors in those kinds of cases. But of course there are also
more gray areas that my predecessor especially has explored
from time to time. That is the question of treatment in mental
institutions that are not state institutions, but are completely
private. I acknowledge that is kind of a gray area, but it is one
that, like my predecessor, it is one I do not want to simply walk
away from, and I would like to find ways of doing my work in
creative, but also in effective, ways. Besides, quite frankly, even
with state mental hospitals, there is so much to do that I do not
have to worry too much about having nothing to say.
The DefiniTion of ‘TorTure’ in inTernaTional law
For our purposes, I’d like to start with the definition of torture in international law. I think that some of the definitional
challenges call on the medical profession and forensic sciences
to assist us in the task of documenting and proving torture. As
you know, the definition calls for “severe pain and suffering.”
One of your colleagues, Dr. Pounder, has written that “severe
pain and suffering” is not a medical term, it is a legal term. I suppose he’s right, but I also have to say that legally, it is also a very
complicated standard. It is difficult to know when you cross the
line of severity that converts what is otherwise cruel, inhuman,
and degrading treatment into torture. Because it depends both on
subjective and objective factors, the severity threshold is very
difficult to establish, and much more difficult even to document.
Nevertheless, it is there and we need to have it in mind when
we decide that a certain practice, a certain technique, a certain
assault on human dignity or on human integrity constitutes torture. For that, we need the assistance of the medical profession.
The definition also says that the severe pain and suffering can
be either physical or mental, and establishing when pain and suffering of exclusively mental nature has been reached, is perhaps
even more complicated than being able to find traces of physical suffering that can still be borne by the body. But we also
have to remember that perhaps there is a difference in degree of
cruel, inhuman, and degrading treatment, and torture, but they’re
both prohibited, they’re both absolutely forbidden. They have
somewhat different legal effects once you decide that something
is one or the other, but the fact that something may not reach
The definition also talks about the purpose. The purpose for
torture has to be either to obtain a confession or for punishment
(the definition of cruel, inhuman or degrading treatment does
not require a specific purpose). I think those words are broad
enough that they do not create too much of a problem in addressing specific situations. In fact, many times, torture is used for
both purposes—both as a means for gathering evidence, but also
as a punishment. By its very nature, torture is punitive and therefore, whether or not interrogation takes place simultaneously,
the treatment itself qualifies as either torture or cruel, inhuman,
or degrading treatment.
Finally, the definition excludes pain and suffering that is
incidental to a lawful sanction. There, the challenges we have
12
with Duarte, we went to Kyrgyzstan, and the law in Kyrgyzstan
considers torture a relatively lesser offense. That means, among
other things, that nobody spends any time in prison and also that,
either by law or prosecutorial discretion, the cases are pursued
only if the victim is interested. You can imagine how interested
a victim can be if they have to pursue charges against somebody
who is still in authority and carry the burden of activating the
prosecution, bringing the evidence, and all of that. That is a very
simple legal question; Kyrgyzstan just has to change the law,
period. It has to provide for a definition of torture and penalty
that is commensurate with the gravity of the crime, and that is
basically an obligation that Kyrgyzstan acquired when it signed
and ratified the Convention Against Torture. There is a bill
pending in the Kyrgysz parliament to do just that. It still needs
some work, but it is a relatively easy matter.
to deal with include, for example, the death penalty and particularly conditions on death row. My predecessor and I have pretty
consistently looked at conditions in death row and decided that
by themselves they constitute cruel, inhuman, and degrading
treatment, and, in some cases, torture. It is also important to
note that there is very little room for states to impose the death
penalty and still not commit cruel, inhuman, and degrading
treatment by the very nature of the time that has to pass between
conviction and execution, and by the very threat of execution.
Similarly, it is difficult to conceive of a mode of execution
of capital punishment that does not inflict a level of pain and
suffering that is itself severe enough to constitute cruel, inhuman or degrading treatment or even torture. With the Special
Rapporteur on Extrajudicial Execution, Christof Heyns from
South Africa, we are considering joining forces to document
and research questions of whether the death penalty under any
circumstances can be imposed without violating the prohibition
on arbitrary executions and on torture or cruel, inhuman, and
degrading treatment.
Much beyond that, even in cases where torture is criminalized
appropriately, in practice, the same effects that I just mentioned
regarding Kyrgyzstan are still present. In practice, prosecutors
rely on whether the victim is interested in pursuing a case or
not. Many countries come back and say, “Well, we didn’t get
any complaint here, that is why we didn’t investigate,” as if they
didn’t know that torture is a crime that has to be prosecuted ex
officio, and that there’s ample authority for it in decisions by
international courts and international bodies. But the practice is,
however, that that is the way prosecutors do their work just about
everywhere. They will prosecute, but only if there is enough
interest and activity by the victim. That puts the victim in such a
difficult situation that unless we are able to assist the victim with
good forensic evidence, for example, it is going to be very hard
to get any traction on this very important obligation to investigate, prosecute, and punish torture. By the way, the obligation to
investigate, prosecute, and punish, is generally applied to crimes
against humanity, that is: serious acts of violence perpetrated in
widespread or systematic patterns, and to war crimes. But torture
is unique in international law because even a single episode of
torture triggers the obligation from the state to investigate, prosecute, and punish. Therefore, we need to generate conditions
under which this obligation can be effectively discharged. In my
experience, limited as it is, one of the main conditions that is lacking is the ability to prove or to provide evidence to document the
fact that torture has occurred. By and large, torture victims are
left to their own devices, so that when they come to a judge or a
magistrate or a prosecutor and they say they have been tortured,
the burden of proof shifts to them, and I’m saying this de facto,
not de jure obviously. But it shifts to them to show they have
been tortured, otherwise it is very easy for courts and prosecutors
to dismiss the complaint on the basis of lack of evidence. It is at
that point where sometimes we get into more egregious violations
because people are not even allowed to have independent forensic
evidence, and they rely on the testimony of medical doctors that
are employed by the police or by the penitentiary, and that have
a stake in not finding that torture has happened. Quite frankly, as
you know better than me, it is a lot easier than that. You just wait
and make sure that traces in your body disappear, and then you
bring the person before the judge when it is too late anyway to do
a serious investigation.
This question of what is incidental to a lawful sanction came
up in an important way when I issued the report about solitary
confinement. In many countries, solitary confinement is used
for different purposes, and without any regulation of it. But
in most cases, it is used pursuant to either prison regulations
that allow it for disciplinary purposes, or as part of the form of
punishment, in the form of the execution of a lawful sanction.
I think it behooves us to look at what point even a lawful sanction is impermissible on grounds of cruelty. Just the fact that
it is regulated and sanctioned in procedural codes or in prison
regulations should not be enough to decide that therefore it cannot be prohibited by international law, if in fact it produces some
measure of severe pain and suffering. In this case the suffering
would be almost always mental, but it could be severe enough
that in fact crosses a threshold into what international law forbids. I think those are the challenges of what we have to do; and
I have to say that I am very encouraged by the reception that my
report on solitary confinement has had because there is a lot of
interest in developing the ideas further. I have to say, of course,
before you go and read it, that it was just an attempt to throw
some ideas out into the open. It is based on scientific research
to some extent, but obviously it is scientific research read by a
non-scientist like me, so you have to understand that I may have
made serious mistakes. It was more the sense of a need to foster
more scientific research about how solitary confinement really
operates on the brain, mind, and body; to see at what point, even
though you do not see marks on the body, pain and suffering of
a prohibited nature has happened.
The InTernaTIonal law oblIgaTIons of sTaTes
ConCernIng TorTure
As you know, states are obliged to do a number of things
under international law when it comes to torture. First and
foremost, they have to criminalize it under domestic law, and
you’d be surprised that in some states, criminalization is not as
clear and not as effective as it should be. In our most recent trip
13
them, that they can develop their own capacities by being willing to accept international cooperation and NGO cooperation, I
think we can prevent cases of torture from happening in the first
place. Unfortunately all of what I have been saying is still not
going to be enough: we have to fight the struggle in the court of
public opinion as well.
When Duarte and I go to places of detention, we always
recommend that the very least a state can do is organize a seriously independent forensic service. The service should operate
from the beginning of the detention so that it can actually have a
meaningful role in determining whether torture has occurred, is
occurring, or not. Under those circumstances, your services have
obviously a great effect in allowing victims to prove torture. In
addition, as you well know, it has an enormous preventative
effect because if the torturer knows that a lawyer, a prosecutor,
a judge, but especially a doctor, is going to come around and
determine what has happened, by experience we know that factor alone is going to stay the hand, or at least make them think
twice, before practicing torture.
ConCluding ThoughTs: diffiCulTies in
eradiCaTing TorTure
I would like to finish by just adding some impressions
I have as to why torture has been so difficult to eradicate.
Unfortunately, I think a certain tolerance for torture has gained
ground in the last ten years or so since 9/11. The public at large
in most countries has been more or less conditioned to believe
that torture is inevitable, that torture is a fact of life, that torture
happens because there aren’t too many other ways to keep us
safe. Therefore, we do not like it, but we look the other way
because if it makes us safe, then we might as well just live with
it. Of course we do not live with it, it is the victims that live
with it. But I feel that that kind of tolerance that has been fostered in the last ten years especially though not exclusively by
Hollywood, is perhaps the more significant barrier that we have
to fight against torture. I think that your services in demonstrating the effects of torture can go a long way in eliminating this
sense of the “abstract” nature of torture. In daily life, people
talk about torture as if it is something ugly, yet we do not want
to get into the details. But it is getting into the details that is
going to make a difference—in our moral sense of whether we
can stand by and let it happen, or whether we should actually do
something to eliminate it.
I also think that all of these standards in international law
depend on the assistance of forensic services not only to prove
torture when it happened and therefore to exclude evidence
obtained under torture, or to generate the obligation of the state
to investigate, prosecute, and punish, but also to obtain reparations. Providing remedies and reparations is another cardinal
obligation of the state when the time comes to decide whether
and to what degree torture has created damages that have to be
compensated and repaired by the state. We also need the support
of forensic science in the determination not only of whether torture has happened, but on the effects on the life, on the emotions,
on the prospects of future employment, on the life project, as the
Inter-American Court on Human Rights has said from time to
time, of the victim. That obviously depends on many subjective
factors, but enough objective factors exist that we need the support of doctors, psychiatrists, psychologists. We know that we
have used them to some great effect in the Inter-American Court
of Human Rights; some of you have participated in those determinations very effectively. Your reports to the Inter-American
Court of Human Rights and your testimony before the court
have made a difference, not only for the victims, but also for the
standing, the weight, and the persuasiveness of the decisions of
those bodies.
Another excuse is lack of resources and impatience with
results. Especially policemen always say that the public wants
them to solve crimes and to get to the bottom of these investigations, and they just do not have time to do scientific investigations. I think forensic sciences can show themselves to be
so much more effective in determining with much more rigor
whether a crime has been committed and by whom that I think
forensic sciences can become a serious alternative to the brutality of torture in the investigation of crimes. If we can demonstrate that this is the real, the proper, the morally correct, and the
most effective way of investigating crime, I think we will take
away another excuse for why torture continues to happen.
I also think that one of the obligations of the state is to
prevent, and among other things, to prevent by developing
and building capacity in the institutions of the state to prevent
torture from happening in their first place. There again, as you
know better than me, your services are greatly effective. Many
states use a variety of excuses for why torture happens and one
of them, the first one that I was confronted with the first time I
spoke to the Human Rights Council, is that they do not have the
capacity to do serious scientific crime investigations. I think it
is important to persuade states, or at least eliminate the excuse,
that forensic sciences can be very professional and scientifically sound, and they do not have to be so expensive that they
are completely out of the reach of poor countries. There is an
extensive ability to do not only north-south but also south-south
exchanges of technology and experiences, and we have to foster
that. As I said, in most cases it will be more a way of taking
away an excuse. In some cases it is also true that we are dealing
with states that have very limited resources, and if we can persuade them that the technology is not completely out of reach for
We also have to reckon with the excuse that torture happens
because it works. We know it is not a question of saying that
people who confess will always confess untruthfully. Of course
sometimes they will say the truth. But the question is not so
much first, whether it is always effective, whether especially
in the ticking bomb scenario, there’s really no reason why we
should accept that somebody who is tortured will always actually say exactly where the bomb is going to explode. That person
could be so determined to let the bomb explode, that he or she
will withstand torture and the bomb will explode anyway. In the
meantime, because we do not know who it is, we’d probably
have to torture a hundred people, but still not be able to stop the
14
bomb from exploding. And besides, the ticking bomb scenario
cannot justify the use of torture on a routine basis when there
is simply no bomb about to explode – which is the way most
torture happens in real life. So those arguments against the ticking bomb scenario are logical, though unfortunately they do not
carry a lot of sway with the public at large, but I think it is something we need to say from our own professional experiences.
or systematic patterns of torture, even if they may gain some
ground very momentarily on obtaining evidence of crime. Of
course, esprit de corps and silence among friends will always
interfere with serious investigations. There again, when the
evidence is strong, it will tend to break down those barriers of
conspiracies of silence that will always happen.
There are obviously many other reasons why torture prevails,
but my final message would be to try to look at the services of
the forensic sciences and medical practitioners, both in the small
and in the large picture. That is, on documenting specific techniques and evidence in helping individual victims to overcome
the barriers to effective remedies of different sorts, but also in
educating the public at large about what really happens when
torture is allowed to go on. Obviously, last but certainly not
least, I think you can have a great effect on the fellow members
of your profession around the world because the more we get the
medical and scientific and psychiatric and psychological profession engaged in the struggle against torture, the harder it will be
for governments to engage in these practices. I thank you very
much for your attention.
We will be even more effective if we can demonstrate the
price that societies pay for engaging in widespread torture. You
know it from your experiences in many parts of the world, and
we lawyers know it because we have seen it in many different
parts of the world as well. Torture has such an offensive effect
not just on a number of people who may be innocent, but on
their families, on the society at large, and on the institutions
and the members of the institutions that take sometimes justified pride in their belonging to an institution, but then all of a
sudden have to reckon with the fact that the institution itself is
asking them to perform morally repugnant techniques on other
human beings. With your experience, we can work on the larger
picture of what price societies pay for engaging in widespread
Remarks of Dean Claudio Grossman
IntroductIon
innocent, to his/her religion, and so forth. This developed a
common narrative of human dignity.
L
et me begin by saying that I am honored to be on the
panel with such a group of distinguished experts, and
to share our views and opinions as to how we can contribute to the important goal of preventing torture, and ensure
accountability and reparations in accordance with the legal
standards when torture takes place.
Also crucial to human rights is the understanding that these
norms apply in all circumstances. If you look at the International
Covenant on Civil and Political Rights or the Convention
against Torture, they established that some rights cannot be derogated ever—even under an emergency situation. One of those
is the right to your physical, emotional, and psychological integrity—the prohibition against torture and other forms of cruel,
inhuman, or degrading treatment or punishment. Particularly
during states of emergency and war, rights suffer and domestic
systems do not offer protection. In the context of populations
that are scared and governments that talk about real or perceived
enemies, the domestic judiciaries are unable or unwilling to
protect the population or groups of the population in some of
these cases. In addition to rights, the international community
created institutions and mechanisms at the international level
that would assist countries in complying with their obligations.
These developments were necessary to ensure that independent
experts resorting to different forms of supervision would ensure
the application of international norms.
I would like to start with a few questions. The first question is why do we have these norms at the international level?
Why do not we have them only at the domestic level? The
international community concluded that the domestic norms
and procedures in certain circumstances would not protect
the rights of individuals. A tragic reminder of that situation
was the World War II, which provided an impetus for the
development of international norms. As a result of the inability of the domestic governments to protect the rights of individuals, the development of norms started with the Universal
Declaration of Human Rights as a moral standard of achievement followed by the adoption of treaties stating that every
human being was entitled to internationally-protected rights.
This development reflected a very important humanitarian value, namely that human beings existed as subjects of
international law, and that those rights apply irrespective
of nationality, ethnicity, religious preferences, gender, etc.
If you read the texts of the International Covenant on Civil
and Political Rights, or the Convention against Torture, they
state that everyone is entitled to due process, to be presumed
the role of the un commIttee AgAInst torture
I am going to refer to one supervisory organ, the United
Nations Committee against Torture, and the UN Convention
against Torture. This supervisory organ measures behavior against the standards laid down in the Convention. The
15
the Convention. For example, where through the domestic judiciary it has been established that someone was water boarded,
or was held in isolation for a long time, and the domestic judiciary concluded that there was no torture, or that such treatment
amounted to something other than torture such as cruel treatment. (This last conclusion has several consequences including reparation that should be awarded or the penal liabilities
that could be pursued). The facts are undisputed, but the legal
qualification of the facts is at stake, and the legal qualification
of the facts is something that belongs to the organ engaged in
its supervisory role, in this case the Committee against Torture.
Then, again, in this respect, the role of doctors and evidence
presented will be very crucial, even if the facts are not disputed,
but the quality of the lawyering that includes presentations based
on sound evidence and forensic procedure are also important.
Convention against Torture includes a definition of torture, and
under Article 2, the right to be free from torture is non-derogable.6 The Convention’s obligations include, inter alia, the prohibition of using confessions extracted under torture in judicial
proceedings; the principle of non-refoulement—sending people
to countries where they might be subject to torture; the obligation to investigate and punish those who perpetrate torture; the
need to repair the consequences of torture; etc.7 The Committee
with its experts is expected to assist states in complying with
their obligations.
The Committee has a dual role from a political and legal
point of view. In addition to exposing mass and gross violations,
the first role of the Committee is to avoid a slippery slope created by isolated events that violate the Convention’s obligations.
Resorting to different techniques of supervision we detect early
on whether violations are occurring. It is often easier to solve a
problem when it is detected at an early stage. The second role of
the Committee is to expand compliance with the Convention’s
obligations by utilizing its expertise to help provide expert
advice to states.
The second instance is one in which relevant facts were
either never considered or were disregarded in the state’s
domestic proceedings. You cannot present a petition to the
Committee against Torture if you did not try to solve the problem in your own country beforehand. The international community has a subsidiary role since we need to give an opportunity to
the internal institutions and procedures to resolve an allegation
internally. On the other hand, if it is not reasonable to exhaust
domestic remedies (e.g., there is no access to them or they are
unduly lengthy), you can go immediately to the Committee.
In other circumstances, if known facts were never presented
internally by a petitioner, the Committee will declare the case
inadmissible. If, to the contrary, the facts were presented internally by the petitioner and the domestic judges failed to consider
them, no deference can be paid to the domestic judiciary’s determination of those facts because the judiciary did not determine
them. Another possibility is that relevant facts were known later
after completion of a process in a given country for no fault of
the petitioners (e.g., relevant data became known because of a
valid confession). In this situation the Committee will assess the
facts and determine their legal consequences.
The Committee resorts to different techniques in performing
its duties. One technique takes place through country reporting
whereby states submit a report to the Committee when they ratify
the Convention and then every four years thereafter. A dialogue
with the state where we review the status of compliance, and
formulate concluding observations to the states involving, for
instance, the incorporation of the prohibition against torture, or
compiling useful data, or the role of judges and doctors, etc. The
Committee’s observations are useful for the states in the adoption and implementation of public policies designed to comply
with the Convention. In addition, in accordance with Article 22
of the Convention,8 the Committee decides individual petitions
alleging violations of the treaty in cases where a country has
declared its acceptance of that procedure. What weight should
be given to decisions by the domestic judiciary or administrative organs? In the Committee’s General Comment No. 1, which
interprets obligations of the Convention against Torture, at
Paragraph 9, which applies to the communications for violations
of Article 3, it states that the Committee should give “considerable weight” to “findings of fact … made by organs of the State
party concerned.”9 The Committee, however, as stated in the
same General Comment No. 1, “is not bound by” the findings
of fact of a domestic proceeding and “instead has the power …
of free assessment of the facts based upon the full set of circumstances in every case.”10 How does the Committee exercise that
power when an alleged violation has taken place and considerable time has elapsed, and the Committee has before it only a
written record? How does it identify relevant facts?
The third instance occurs when the complainant and the state
party dispute relevant facts, e.g., whether a person was kept in
isolation and the duration of such isolation. In those cases, the
Committee gives considerable weight to the findings of fact
made by the organs of the state party, unless it appears that the
domestic proceedings did not meet minimum standards of due
process. In accordance with well-established legal principles,
the proof of facts belongs to the person who argues them.
Accordingly, the initial burden of proving underlying facts
belongs to the petitioner. Needless to say, again, the quality of
forensic evidence will be very important in this respect.
If the internal process did not meet minimum standards of
due process, no deference is due. What are those minimum
standards? For example, independence and impartiality of the
tribunals that made the determination that no torture took place.
Important safeguards that need to be in place in order to achieve
independence include that the organs were established by law,
that they function independently from political branches of
The Role of foRensic Medical evidence in
fulfilling coMMiTTee objecTives
In order to assist the Committee, three situations could be
identified. The first situation is one where the facts are undisputed, but the issue is whether the facts constitute a violation of
16
government, that there is an appropriate system of appointments,
terms of service, and procedures for appointments and removals
and terms of judges in place. Other components of due process
include: the right to a fair hearing, the right to independent
defense counsel, the right to communicate with legal counsel,
the right to confront adverse witnesses, the right of a person
deprived of liberty to be afforded a reasonable opportunity to
present his/her case, the right of judicial review, the right to be
treated with humanity and respect for the inherent dignity of the
human person, the right to be informed promptly of any charge,
the right to be tried without delay. In my view, there are sound
reasons for arguing that the Istanbul Protocol has turned into a
normative instrument. In accordance with international law, the
opinion of publicists is a source of law as it might be practice
in some circumstances. Whether or not we consider the Istanbul
Protocol a source of law, however, a lack of compliance with
sound procedures to identify and determine facts creates, in my
view, a presumption of a violation. Of course, a presumption
would only shift the burden of proof, and the other party could
prove that presumption wrong.
ConClusion
Let me conclude my comments by stating that in matters
of interpretation of human rights treaties, we should be guided
by principles of law, and a very important principle of human
rights law is that the object and purpose of a treaty is humanitarian. In light of that, when we have a doubt, we choose the
interpretation that affords more protection to human beings,
as it has been established by the International Court of Justice
and the European and Inter-American Courts of Human Rights.
Accordingly, when in doubt if we choose the protection of
human rights we are not only following a moral interpretation
but also applying the law.
Remarks of Phil Shiner*
introduCtion
I
’d like to echo the congratulations that have been expressed to
the organizers of this event. I think it is a fascinating initiative
to bring together the worlds of the legal and the psychological-forensic and the academic and the practitioner. Myself and
my colleague attended a session in November in Copenhagen and
it certainly got us thinking about how we can work much more
effectively on behalf of our clients who have all experienced
* Phil Shiner leads the team at Public Interest Lawyers (PIL). He is a
lawyer with an international and national reputation for his work on issues
concerning international, environmental and human rights law. He has
been practicing as a solicitor in the UK since 1981. He has acted in some
of the most constitutionally significant human rights test cases including Al
Skeini, Al-Jedda, Gentle et Al. In addition Phil also represents the family of
Baha Mousa and the survivors of the fateful incident in which Baha Mousa
was killed in the Baha Mousa Inquiry. The report of the Inquiry Chair Sir
William Gage was released on 8 September 2011. Mr. Shiner is also the
solicitor representing the families of the deceased as well as the survivors
of the notorious “Battle of Danny Boy” in an unprecedented second judicial Inquiry into the actions of UK forces in SE Iraq during their occupation. The Inquiry opening is expected to take place later this year. Further,
he is acting in over 150 other cases presently before the Court of Appeal
in which Iraqi civilians complain of torture and CIDT whilst in custody
with UK Forces in South East Iraq. Phil was Liberty/Justice Human Rights
Lawyer of the year 2004 for his work on Iraq and was the Law Society’s
Solicitor of the Year 2007. He is an honorary professor at the Metropolitan
University of London and a Vice-President at the Haldane Society. He has
written and spoken widely on the subject matter of his presentation to this
meeting and is the co-editor of “The Iraq War and International Law”
(with Williams, A), Hart Publications, 2008.
terrible torture at the hands of the UK. I offer these thoughts today
as the beginning of a process that can build on this project. I think
there’s a great deal to be done, and I want to spend quite a bit of
time focusing on the case study of Al-Bazzouni.
I’d like to make some preliminary points. Firstly, be in no
doubt that everything that you can imagine that the US has perpetrated at Guantanamo Bay, or Abu Ghraib, or Bagram, or in
their secret sites, or anywhere else, that is what the UK has done.
They were there alongside them, and bearing in mind our history
of colonial wars going all the way back to mandated Palestine, it
might be thought that we taught the US a lot more that they taught
17
paragraph five of the judgment that indeed he did have standing,
he didn’t need to be a victim of ongoing hooding. He said that
the Guidance failed to prohibit the use of hooding of detainees
in any or all circumstances, and impliedly authorized UK personnel abroad to use hooding, and condoned other states’ use of
hooding where deemed necessary for security reasons.
us. And it is absolutely shocking to think that this is being done
in the name of the UK state. Next point, this is all about the thesis
that Darius Rejali promotes in his excellent book, Torture and
Democracy,11 that modern democracies leave no marks—stealth
torture—we have heard that spoken about. One of the cases I’m
going to focus on mainly is about hooding, which is a classic
example of subjecting a person, a detainee, in incommunicado
detention to torture, though it leaves no marks maybe but some
abrasions on the face from the sandbag. It has to be noted that I
think in the UK we are a long way behind in terms of dealing with
torture cases and the psychological effects of that on a day-to-day
basis because by and large our police do not do what other states,
like Turkey and Russia, etc. do, so that in that respect we have a
lot to learn. But in many respects we are ahead of you because
there’s been a spate of very important litigation from the UK all
arising from our invasion and subsequent occupation of Iraq.
So I need to go to the offending document, and it is just a small
passage I need to read out from an annex. It helps define from the
government’s point of view, to personnel abroad, what is and isn’t
cruel, degrading, or inhuman treatment (CIDT). It says that is a
term that is used in some international treaties but is not defined
in UK law. “In the context of this Guidance, the UK Government
considers the following practices, which is not an exhaustive list,
could constitute cruel, inhuman, or degrading treatment or punishment…. Methods of obscuring vision or hooding,” and then this
exception in brackets, “except where these do not pose a risk to the
detainee’s physical or mental health, and is necessary for security
reasons during arrest or transit.” So there are two aspects to that
exception. Does it pose a risk, and is it necessary for security reasons during transit or arrest? We argued that this represented a very
slippery slope because the historical context of the UK continuing
to use hooding all the way through the time in Iraq was indeed for
security justifications. We said, this is going to lead to subjective
decisions on the ground by untrained personnel in the so-called
heat of battle as to whether there is a risk to a detainee’s physical
or mental health. We said that it contradicts a Ministry of Defence
policy that said there was an absolute ban on hooding, and that it
preempted the findings which were due in the Baha Mousa inquiry.
Now why is that? Some of you lawyers may be aware of the
Al Skeini case, which has dramatically changed the legal landscape in terms of where jurisdiction lies for the purposes of the
European Convention, and that my friends, is a very important
question because everything that I am saying to you about what
I know about what the UK did, I can only say it because of the
application of the European Convention of Human Rights.
Now why is that? Because one can secure accountability in
this struggle against impunity through Articles 2 and 3 of the
European Convention, the protection of the right to life and the
prohibition on torture,12 which are protected by a long line of
Strasbourg cases by the duty of a state breaching Articles 2 or 3 to
hold a prompt, impartial, effective, independent investigation that
involves the relatives to get to the bottom of what went wrong,
what reforms are necessary, and what lessons can be learned.
I need to stop and say a few words about Baha Mousa. Baha
Mousa was killed by UK forces in September 2003, and as a
result of domestic litigation which ruled on those duties that protect Articles 2 and 3, we were able to force the UK Government
against its will to hold a lengthy inquiry as to what went wrong.
One of the things that the inquiry had to look at was how on earth
it came about that we, the UK, were still hooding and subjecting
people to stress positions, and food and water deprivation, and
other things that had been banned by the Edward Heath government in 1972. So we were extremely concerned about all of that.
Now the medical effects of hooding are important for me to focus
upon. Firstly, let’s look at what was actually going on in Iraq.
People were being hooded with one or two or even three sandbags in temperatures that sometimes rose as high as sixty degrees
centigrade, and at times were an average temperature of thirtyeight degrees centigrade. So very hot climate conditions for very
prolonged periods of hours or even days. Baha Mousa survived
thirty-six hours in a facility and the government had to admit that
he was hooded for at least twenty-three hours and forty minutes
of that thirty-six hour period. In every case that we know about,
and we know about well over 150 cases where we are acting,
hooding was combined with many other techniques and practices
that would exacerbate the known effects of hooding on its own.
So we said that these UK practices were apt to induce a number
of medical effects. This is where we sought and received the
important help of the IRCT, which published a statement online
by its international forensic expert group, which was subsequently
Now, the combination of three factors here are very important in terms of what is happening in the UK. First, our judicial
review process whereby a person can come to the UK court and
say that a public authority has committed a public wrong, and
we want you, the UK court, to review that. That is what happened in the Al-Bazzouni case. Second, is because we brought
into domestic effect the European Convention on Human Rights
through the Human Rights Act. Third, because we have a civil
legal aid system so that lawyers like ourselves at Public Interest
Lawyers can actually run a law practice to bring these sort of
cases. So those are some preliminary remarks.
The Al-BAzzouni And BAhA MousA CAses
I want to focus on the Al-Bazzouni case because it is a good
example of what can be achieved when the legal world meets the
psychological-forensic world. It is tab 6 in the material, which
can be downloaded. It concerns an Iraqi civilian who had been
hooded whilst in detention with UK forces. He wasn’t presently
being hooded, or being detained and he brought a challenge to
government guidance, published in July 2010 that we said permitted hooding to continue, and I’ll demonstrate that. He said I
have standing because I was once hooded, and the court found in
18
published, and we made sure that statement was available to the
court.
clear to me at least that hooding alone in those conditions, represents not just CIDT, but torture. Hooding was part of a process
trained and implemented to soften up a detainee for interrogation.
So hooding was not punishment here; hooding was part of what
was referred to repeatedly in the Baha Mousa inquiry as “maintaining the shock of capture or conditioning.”14 It was part of a systemic
approach to softening up the detainees so they were more likely
to give the intelligence that was sought. So that involves physical
or mental pain and suffering, it is intentionally inflicted for such
purposes as obtaining from him information, or intimidating or
coercing him, etc. There is no doubt in my mind that this is, plain
and simple, torture. And, a lovely quote, to the Baha Mousa inquiry,
from the Deputy Head of Intelligence at what was called Permanent
Joint Headquarters in 2004. Commodore Massey, on hooding, says,
“I have serious concerns. There is surely no way that ministers
will or should be invited to contemplate the rehabilitation of this
archaic, emotive, baggage laden practice. One may just as well try
to justify the reintroduction of selective torture on the same highly
dubious grounds of operational and force protection reasons. Forget
it. Leave this sort of thing to King Canute.” Well said, that man.
I think it is worth spending some moments just focusing on
what hooding does. Firstly, this is a medical officer from 2004
reporting to the Ministry of Defense in the UK, and I just want
to read this passage because it gives eight effects:
“If the air supply through the nasal pharynx is hindered
as would be the case if one were to hood an individual,
one could expect the adoption of a state of asphyxia
in that individual, which would if unrelieved cause
death. This will then give rise to a state of hypercarbia,
increased carbon dioxide level, and hypoxia, reduced
oxygen concentration. This will then produce a state of
relative hypoxemia, decreased blood-oxygen concentration. In a hot and humid environment, this effect would
only be heightened. Also, hooding an individual reduces
heat loss by thirty percent, greatly reducing the chance
of heat-related illness. The increased levels of stress,
both physiological and psychological, surrounding
these events would further compound matters and hence
be an added detriment to most healthy individuals. If
one had a past medical history of respiratory or cardiac
disorders, then these effects could be more severe.”13
The context of hooding here was that it is supposed to have been
banned. Edward Heath made the statement to Parliament in 1972.
That was then put to the European Court of Human Rights in the
Ireland v. UK case from 1978.15 It was said on the record that if it was
ever discovered that any people were using these techniques, that is,
hooding, stress positions, food and water deprivation, sleep deprivation and the use of noise, then they would be prosecuted. So how was
it that we went into Iraq and everyone was hooding, a standard operating procedure, all battle groups, at all times. How was that? Well, I
haven’t got time to answer that question properly, but of course it is
highly significant that we were going into an illegal invasion with the
US. Some of the things that were said about that relationship on the
record in the Baha Mousa inquiry—someone said “well the European
Convention on Human Rights cuts no ice with the US. And anyway,
what’s all the fuss about? Hooding is the milder end of the spectrum
as far as that other state was concerned.” It was all being trained, there
were no training records that were conveniently lost, so we can’t be
sure as to exactly what was going on. There were systemic problems,
but as I said, all battle groups were using hooding and no operational
ban when we were in Iraq was ever going to stop it.
That medical officer is noting eight different effects. One of
the experts in the Baha Mousa inquiry added in a ninth, which is
he recognized that hooding could be a contributing factor in Baha
Mousa’s death, and noted the possibility that the hood placed on
his head may have resulted in reflex cardiac or respiratory arrest
due to having been pulled or tightened. So we are at number nine.
Now I’ll go to the expert group statement of the IRCT for the
next twelve. Number ten, the impairment of hearing. Number
eleven, impairment of the sense of smell. Number twelve, impairment of balance and coordination. Number thirteen, the exacerbation
of impaired respiration (oxygen and carbon dioxide exchange) by
preexisting medical conditions or psychological disorders such as
anxiety or claustrophobia. Number fourteen, the inducement of fear.
Number fifteen, the inducement of anxiety. Number sixteen, the
inducement of high levels of stress. Number seventeen, the inducement of disorientation, especially in respect to time and location.
Number eighteen, a sense of loss of control and powerlessness.
Number nineteen, impairment of individual psychological coping
mechanisms. Number twenty, the effect of the tendency of the hooding serving as a means of disengagement for the torturer, and thus
the potential to intensify additional acts of torture, and of course it
makes it difficult if someone is hooded to identify their perpetrators.
So what did the court in Al-Bazzouni have to say about the
medical effects of hooding? Well they said this. Short and simple.
“Mr. Al-Bazzouni says that hooding is to be regarded without
exception as CIDT, which will always by its nature pose a risk
to the detainee’s physical or mental health. He has convincing,
uncontradicted evidence to this latter effect.”16That was the end
of that. Of course, that convincing evidence included the IRCT’s
expert group statement. They didn’t really need to say a lot more
because as far as they were concerned, it was out of bounds.
They then went on and said, well we have been referred to some
selected evidence given to the Baha Mousa inquiry to the effect
that hooding may have been used by UK forces in Iraq that hooding can very often restrict breathing and have other serious physiological and psychological consequences and this was recognized
quite clearly in the Ministry of Defense in 2003.
And lastly, what we submitted in court was what we called
the Abu Ghraib effect, i.e. the images of hooding in Abu Ghraib
were so horrific to the Iraqis that they had irreversibly increased
the capacity of the use of hooding to degrade, insult, humiliate, and
instill fear in its victim. Many of our clients complain that it was
made clear to them that if they didn’t cooperate, they’d be sent to
Abu Ghraib. So, in the light of all of those factors, it is absolutely
19
Al-Bazzouni, and that points nicely to what I think is a rich vein of
work that can continue—the association between the world of law
and the world of medicine.
We do not propose to address or evaluate this evidence for a
number of reasons. First, it is necessarily incomplete and has been
fully addressed in the Baha Mousa inquiry. I’d ask you to note that
the Al-Bazzouni judgment of October 3 was handed down just
three weeks or so after the publication of the Baha Mousa report.
Then they said, “second, the Prime Ministers March 1972 statement
to Parliament and the unqualified prohibition of hooding in the Joint
Defence Policy publication, that is quite sufficient for our purposes.
We are unimpressed by the government’s attempt in these proceedings to read qualifications into the 1972 statement.”17 We had
severely criticized them of the MOD because they had tried to say
that it doesn’t mean what it says on the tin. This is something different, it is about overseas operations, it is only dealing with internal
law enforcement, etc. The court wasn’t having any of that, and they
agreed with us that what this was doing was introducing confusion and expecting personnel on the ground to decide without any
means of doing so, without any qualifications, whether what was
happening was indeed a risk to the detainee’s physical or mental
health. So what’s the effect of all of this? Well Al-Bazzouni needs
to be looked at alongside the Baha Mousa inquiry report, which was
published in September. It is three volumes. There are extensive
findings on the systemic issues I’ve been hinting at as to why all
these matters were going on. They make a number of recommendations, and a great number of them are focused on the five techniques
I’ve referred to—hooding, stress positions, food and water deprivation, etc. So what we can now conclude is that the combination of
the Baha Mousa Inquiry Report and the Al-Bazzouni judgment
means that no UK personnel, armed forces, or intelligence services,
anywhere in the world in the future may for any reason be associated in any way, including through a third state, with hooding. So
at long last, an absolute prohibition for legal reasons, not policy
reasons. And that would mean that any personnel employed by
the UK who thought that another state may have hooded a person
would be bound to withdraw from that situation and report the matter personally to the head of their agency or department. So that is
The Al-SweAdy CASe
So the next matter up is the Al-Sweady Inquiry, which is inquiry
number two. This concerns allegations that on the 14th and 15th of
May 2004, UK personnel executed a number of Iraqis in a battlefield and in a military facility and tortured nine survivors. Now the
Al-Sweady Inquiry thought it would be useful to have some professional input on how to deal with the witnesses, and they produced
an expert, Professor Wesley. But the trouble is that he concentrated
on the psychiatric effects of what was happening, and accordingly
focused almost exclusively on post-traumatic stress disorder. We all
know that an emphasis on PTSD carries the risk of misdiagnosing
the psychological effects. Relying on the Istanbul Protocol and its
guides, we have now produced a situation where the Al-Sweady
Inquiry accept that they’re going to now need expert evidence as
to what all of this means for the victims of torture and the victims
of the other human rights violations in this incident, and they’re
going to commission expert evidence on that point. In the future
though, there is going to have to be a further lengthy inquiry into
the UK’s detention policy in Iraq. We are acting in over 150 other
cases and we won a Court of Appeal case at the end of last year,
which finally demolishes the Ministry of Defence’s [sic] attempts
to kick all of this into the long grass. I foresee that we are going to
need in the UK in our work, intense input from experts in this room
on the psychosocial aspects of all of this. We are going to need help
to get the interviews set up correctly with these witnesses. We are
going to need evidence on psychological trauma. There are issues
of vicarious traumatization, etc. I can see from my standpoint that
the work I have been talking about has only just begun, and I think
there’s a great more to be achieved. I look forward to contributing
to the panel discussion this afternoon.
EndnotEs: session one: Using Forensic Medical Evidence in Court
1
7
U.N. Office of the High Comm’r for Human Rights, Manual on
the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul
Protocol), 2004, HR/P/PT/8/Rev.1, available at: http://www.unhcr.
org/refworld/docid/4638aca62.html.
2 U.N. Manual on the Effective Prevention and Investigation of ExtraLegal, Arbitrary and Summary Executions (Minnesota Protocol), U.N.
Doc. E/ST/CSDHA/.12 (1991), available at http://www1.umn.edu/
humanrts/instree/executioninvestigation-91.html.
3 International Forensic Expert Group, Statement on Hooding,
Torture: J. on Rehab. of ToRTuRe VicTims and PReVenTion of
ToRTuRe, 2011, at 186 , available at http://www.irct.org/Files/Filer/
news/Statements%20letters%20declaratios/2011-09.pdf.
4 Optional Protocol to the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, G.A. res. A/RES/57/199,
entered into force June 22, 2006 [reprinted in 42 I.L.M. 26 (2003)].
5 Selmouni v. France, App No. 25803/94, Eur. Ct. H.R. (1999).
6 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No.
51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.
Id.
Id.
9 Committee Against Torture, General Comment 1, U.N. Doc.
A/53/44, annex IX at 52 (1998), reprinted in Compilation of General
Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 279 (2003).
10 Id.
11 daRius ReJali, ToRTuRe and democRacy (2007).
12 [European] Convention for the Protection of Human Rights and
Fundamental Freedoms, ETS 5, 213 U.N.T.S. 222, entered into force Sept. 3,
1953, as amended by Protocols Nos 3, 5, and 8 which entered into force on
21 September 1970, 20 December 1971 and 1 January 1990 respectively.
13 The baha mousa Public inquiRy RePoRT, 2011, H.C. 1452-III
(U.K.).
14 Id.
15 Ireland v. The United Kingdom, App. No. 5310/71, Eur. Ct. H.R. (1978).
16 The Equality and Human Rights Commission v. The Prime Minister and others
and Alaa’ Nassif Jassim Al Bazzouni v. The Prime Minister, High Court (Queen’s
Bench Division) Administrative Court Judgment, [2011] EWHC 2401 (Admin).
17 Id.
8
20
SESSION TwO: CONCURRENT PANELS
CASES INVOLVING MARGINALIZED GROUPS
Opening Remarks from Dr. Mariam Jishkariani*
IntroductIon
Georgia was elaborated and ordered. Since December 2009, the
National Preventative Mechanism (NPM) has been formed in
the framework of the Public Defender’s Office and the Optional
Protocol is implemented in Georgia.
G
eorgia is a post-Soviet country that restored independence in 1991. The whole population living in Georgia
is around 4.5 million. Georgia is a low/middle income
country with a developing economy and democratic reforms.
Georgia acceded to the United Nations Convention against
Torture on 22 September 1994 but, unfortunately, the relevant
changes have not fully been made in the national legislation,
bearing heavily on the efforts to fight torture. In 1999, Georgia
became a Member State of the Council of Europe, and accepted
all relevant documents and Conventions, among them European
Convention on Human Rights and Fundamental Freedoms
and the European Convention on Prevention of Torture and
Inhumane, Degrading Treatment or Punishment. In 2005,
Georgia ratified the Optional Protocol to the UN Convention
against Torture, which entered into force in June 22, 2006. In
December 2005, special articles regarding torture and inhuman
treatment, including the definition of torture, were incorporated
in the Criminal Code of Georgia. The prohibition of torture
is likewise included in the Article 17 of the Constitution of
Georgia. In 2011, the new Anti–Torture Plan of Action of
rct/EMPAtHY, GEorGIA
RCT/EMPATHY is the first torture victims’ rehabilitation
centre in the Caucasian region. It was established in 1996 to
provide a wide range of services to victims of torture and members of their families, including medical and psycho–social rehabilitation with art therapy and legal assistance. The Centre also
conducts forensic evaluation according to the Istanbul Protocol.
The program is designed to select torture cases from the vulnerable categories of RCT/EMPATHY clients and to observe the
application of forensic evidence in legal proceedings.
A case study method is used, pursuant to the Istanbul
Protocol guidelines, for complex forensic medical and mental/
psychological examination, in particular Protocol annexes III
and IV.1 Diagnostics are provided according to the International
Classification of Diseases.2 According to the requests of lawyers, examinations may be provided by RCT/EMPATHY and
IRCT Experts, involving the participation of psychiatrists, neurologists, orthopedists, psychologists, and forensic experts, and
employing several clinical psychological tests. At the first stage
of intervention, informed consent is received from the juvenile,
and from any parents or guardians for all medical and legal procedures and advocacy campaigns.
* Dr. Mariam Jishkariani has been a Certified Doctor Psychiatrist since
1990. She has been founder, president, and director of RCT/EMPATHY
since 1996. She is an Expert Psychiatrist of the National Preventive
Mechanism at the Georgian Public Defender’s office, an invited teacher
of the Tbilisi Sate Medical University an invited expert psychiatrist for
quality control expertise of the Georgian Medical Association, and a
UNHCHR/Tbilisi invited trainer/expert. She is also Board Member of
the WPA Scientific Section: Psychological Consequences of Torture
and Persecution, a Member of the Board of Directors of the Georgian
Medical Association and Head of Section on Torture at the Society of
Georgian Psychiatrists, and a member of the Penal Reform International.
She has experience of Trainer/Expert in several IRCT, PRI and RCT/
EMPATHY’s training programes on Documentation and Prevention of
Torture, health in prison etc. She is the author of about 10 projects of
RCT/EMPATHY. Over 24 years, she has participated as expert/trainer
in more then 20 international, regional or national training/seminars
related to torture, health in prison and stress related disorders, organized for doctors “at risk” and legal experts. She participated and made
presentations in more then 26 national and international meetings and
conferences, and published about 35 articles, papers, books, reports on
Georgian, Russian and English languages.
tHE cAsE of M.M.
M.M. is a juvenile of 17 years old, 16 at the time of his
arrest. He is currently imprisoned in the Juvenile Colony of the
Ministry of Correction and Legal Assistance of Georgia. At the
age of 7, he was diagnosed with scoliosis. At 11, he was the
victim of electric burn and numerous fractures, which led to his
being assigned the status of a child with disability. At 12, he was
diagnosed mental retardation and a range of physical defects. By
14, the patient had his first episode of lost consciousness.
M.M. was first arrested in 2009 and given a 5-year conditional
sentence. On 6 April 2010, he was arrested again and accused of
breaking into a grocery store to steal cigarettes, alcohol, and cash.
His criminal case also included two instances of petty theft. His
21
mental disability was not investigated at this stage in violation of
Articles 641 of Criminal Procedural Code of Georgia (which was
the criminal code in place during this period). M.M. reports that,
during his time in detention in Telavi Regional Police Station,
he was beaten by policemen with fists, rubber clubs and kicked;
insulted verbally, threatened with physical elimination, and intimidated with guns; and deprived of food and water. Neither his lawyer
nor his parents were called. The aim was to obtain confessions.
and by medical expert of the Public Defender. Several body
injuries, among them on the head area, were found. On April
23, 2010, the Alternative Forensic Medical Expertise was provided by RCT/EMPATHY and the independent forensic centre
Vektori. Taking into consideration the location of injuries and
the morphological picture, the experts considered it possible
that these injuries were caused in circumstances as described
by M.M., namely due to beating with fists, kicking, and the use
of blunt objects. The treatment, combined with stress factors
associated with his detention and other emotional stresses, has
triggered in the frequency of fits, which provided the need for
additional diagnostics and treatment. There is a high probability
that the treatment caused a manifestation of epileptic disease.
In conditions of physical and psychological pressure M.M.
was feeling very poor. Over the course of the beatings, he fell and
hit his head on an iron safe. He had a headache, pain in his whole
body, and problems with movement. He was intimidated, restless,
and had a desire for self-mutilation grounded anger and feelings
of insult. In preliminary detention, he had a sleeping disorder and
started having nightmares. He was not taken for medical examination and did not undergo check-up to document his injuries. M.M.
did not make any statement on the beatings and inhuman treatment,
later reporting feeling too afraid and intimidated by the policemen.
Taking into consideration international standards concerning
the particular diagnosis of the patient, M.M. needs intensive
treatment and rehabilitation with the involvement of psychiatrists, neurologists, endocrinologists, psychologists, social
workers and teachers, in a rehabilitation facility and in psychosocial correction and development program. Detention and
staying in a social group is source of additional stress for the
patient and may have negative impact on his psychosocial
state. The patient requires safe and protected environment and
individual program, which shall reduce his sense of inferiority
and disadaptation, and promote maximum development of his
capacities and correction of behavior. The patient also needs
continuation of pharmacy-therapy, including lengthy treatment
with anticonvulsants.
M.M. was subsequently sentenced to imprisonment for a
term of ten years and eight months, despite his status as a disabled person. Neither an investigation nor a forensic psychiatric
examination was conducted.
InterventIon by rCt/eMPAtHy
The Juvenile was found in juvenile detention by the psychologist of the Centre in April 2010. A first medical investigation
was immediately provided by the neurologist, traumatologist
22
during, and after interrogations; (4) state forensic reports are not
provided; and (5) the limited rights of victims enshrined in the
new criminal code of Georgia.
As a result of interventions on his behalf, M.M.’s sentence
was reduced from ten years to eight years; he will be released
from prison in April 6, 2012. A separate investigation was
opened according to the Article 332 of the Criminal Code—
overuse of force. Lawyers of RCT/EMPATHY were seeking to
qualify the investigation as a violation of Article 144—torture.
After 2 years of investigation, the Chief Prosecutor’s Office did
not find sufficient evidence to support such allegations.
The case of M.M. represents an example of cooperation
between experts from different countries and different specialties, which is most important for countries where the independency of forensic evaluation system is not sufficient and where
the rights of experts are at risk. This partnership is highly important for development of independent forensic evaluation services
that will play important role in the fight against impunity. The
case of M.M. also represents good practice of medico-legal
cooperation that significantly reflected in the medical and legal
outcomes of the case. It presents an innovative model of intervention provided by the torture victims’ rehabilitation centre
that shows importance of integrated multifaceted intervention
for eradication of impunity and fulfill rehabilitation of victims.
Finally, the case demonstrates the importance of comprehensive
intervention inside the penal system, especially for most vulnerable categories, such as in cases involving juveniles with disabilities and mental problems.
In February 2012, RCT/EMPATHY applied to the European
Court of Human Rights. The application alleged violations
of Articles 3 and 13 of the European Convention of Human
Rights,3 and a violation of the right to rehabilitation enshrined in
Article 14 of the UN Convention Against Torture.4
Discussion anD conclusion
The following issues were identified during the course of
observation: (1) forensic evaluation is not provided in time and
is not considered obligatory in cases of torture; (2) medical
examination in penal system is not in line with International
Standards; (3) the lack of photo and audio evidence before,
Remarks of Maria Natividad P. Hernandez*
introDuction
2009. Despite that, there are newly documented cases of torture.
There are three organizations that are known to document cases
of torture, while the Medical Action Group documents the medical side of it. Specifically, involved in the documentation process
are the Task Force Detainees of the Philippines, the Philippine
Alliance of Human Rights Advocates (PAHRA), the Alliance of
People’s Rights, and the Commission on Human Rights.
T
hese remarks are concerned with linking poverty and torture, and we have evidence from the ground that proves a
direct link. Since 1987, the Philippines has prohibited the
use of torture. We ratified the United Nations Convention Against
Torture in 1986, and codified the Anti-Torture Act into law in
The number of poor Filipinos is increasing at an alarming rate,
particularly in the rural countryside. From 2006 to 2009, there has
been an increase in the poverty rate of 4.4% and, consistently,
three regions in Mindanao have been declared the three most
impoverished provinces. There is a direct link between being
poor and being a torture victim. This is our position, together
with the Task Force Detainees of the Philippines. To this end,
we completed a comparative study wherein we identified Muslim
brothers and sisters allegedly tortured in 2005 and 2006, and the
rate is increasing despite reforms in our country.
* Maria Natividad P. Hernandez is a registered nurse and Executive
Director of the Medical Action Group, based in the Philippines.
She has worked with different NGOs that deal with human rights
issues and was currently a member of the board of directors of the
Philippine Coalition for the International Criminal Court (PCICC)
and the Philippine Alliance of Human Rights Advocates (PAHRA).
She has attended and is often invited as a resource person to local
and international conferences that deal with victims of torture and
desaparecidos (disappeared). Her office initiates training for medical
practitioners, law enforcers, and human rights defenders regarding medical documentation, monitoring, and investigation of human
rights violations in coordination with the Commission on Human
Rights of the Philippines, the United Nations Development Program
(UNDP), the European Commission, and other leading human rights
organization of the world regarding torture and human rights cases.
She recently participated as presenter and debater on the Philippine
experience during the FIDH Strategy Workshop on Terrorism in
Yerevan, Armenia. She also served as an educator on labor issues and
concerns before she got fully involved in human rights.
case stuDies
There are a few particular cases involving alleged torture in
the Philippines that I want to discuss this afternoon. The first
case: Lenin Salas. Mr. Salas is considered the first torture victim under this administration. At the time of his arrest, he was
a 29-year-old college graduate and performing artist. He was
arrested with four others and labeled as a Marxist-Leninist group
member together with the others. He was blindfolded, detained
in the police office for interrogation, and tortured, receiving
23
sustained injuries. He was examined a day after his arrest once
he was transferred to the provincial jail.
filed a case of torture against the soldiers who arrested him, and
the case is pending. He is now under the supervision of NGOs,
and just recently finished his testimony in the case.
Immediately, amidst harassment from the police, the families
filed a writ of amparo, which, after two or three meetings, the
Court granted. Medical documentation was done by our doctors together with the higher city experts, which is part of the
process. Cases are documented by the doctor and the expert
from the higher city, and are then filed with the Commission on
Human Rights. Unfortunately, this case was dismissed twice due
to insufficient evidence. According to the decision of the public
prosecutor, the victim could point out the perpetrator, which is of
course very interesting considering he was blindfolded. All torture
victims are blindfolded! We were, and continue to be, very angry.
Alimanan and Samal were both farmers when they were
arrested and accused of bombing a rural transport in October 2010.
Interestingly, this case was considered under 2009 Anti-Torture Law,
the first among many. Though most cases must be filed in court, the
Department of Justice panel is charged under the law with deciding
whether this is a case of torture. As such, this case was immediately
handled by the Department of Justice, the military court, and the
Department of National Defense, particularly because it involved a
senior police inspector being videoed during the alleged commission of torture. There was significant pressure from the people for a
positive result in this case. Unfortunately, the police inspector is now
teaching in a police academy. He did not get his time in court.
The Salas case violates the Anti-Torture Law. While the law
states that there should be a decision within sixty days, the Prosecutor
issued his own decision roughly 300 days after the incident. The case
is now under the Secretary of the Department of Justice, and we wait
for the Secretary to review it and issue his decision to the Prosecutor.
One final case: Abdul Khan Ajid Balanting is a 30-year-old
Muslim and baker in Basilan. This case is interesting because
his torture lasted for four days, continuously until the end of the
night. There are burns that can prove that he was tortured.
The second case: Ronel Cabais. At the time of his arrest, Mr.
Cabais was 21 years old, a high school graduate and a welder.
He stood accused of being a part of the New People’s Army
[the armed wing of the Communist Party of the Philippines].
Soldiers took him into an army detachment, where he was
tortured. Mr. Cabais was able to identify his perpetrator at one
point, when they removed his blindfold. He was then brought to
a police station, but he did receive immediate medical treatment
and was documented by government doctors. We documented
his case as well. Once again, the Commission on Human Rights
ConClusion
All of these individuals come from a poor family, and all were
accused of being members of armed groups. Poverty and torture
are interdependent. A majority of those who are victims of torture
are amongst the poorest strata of society. And, today we struggle
to resist large-scale violence. Torture in the Philippines is widespread because of impunity, and definitely it is very, very hard to
address, but we have to address it to have a better life.
Remarks of Dr. Pierre Duterte*
introduCtion
B
efore I start, I want to dedicate this to all of the indigenous people from the Andes who have not been heard.
I do feel bad because while we were in Huanta, they
heard we were there. They came from down the mountain,
women, babies, for the first time to tell someone about their suffering. They came to testify, to use what was for the first time
* Pierre Duterte—medical doctor, psychotherapist and family therapist, trainer and supervisor—was born in Tourcoing in 1953. In 1994,
he made a commitment as voluntary doctor in a health care center
for torture victims and, in 1995, became the director of this center. In
2001, he co-founded the association Parcours of Young People, then
opened in 2002 the health care center, Parcours of Exile, which is
dedicated to the treatment of victims of torture and foreign isolated
minors. In 1994, he was honored as “Gold MD” for his professional
activity and his commitments.
24
and in Paris were quite helpful for me in the work I had to do
in Peru. This mission in Peru was conducted by Parcours d’Exil
(Paris-France), together with IRCT (Copenhagen-Denmark),
ADEHR (Lima-Peru), Cuenta Conmigo Perù (Nantes-France)
and the trans-cultural institute Takiy (Nantes- France) took place
from November 15 to December 3, 2011.
for twenty or thirty years the opportunity to talk with someone
about their suffering. And lacking of money, lacking of time,
we had to send them back. Today, here, I want to talk for them,
I would like to be their voice, and that’s why this intervention
is for them.
The ConTexT
LegaL aspeCTs of The Case
I’ve been working for 18 years in full-time practice with the
theme of torture and I really believe that this disappearance of
relatives is a long-term, full time, never ending torture. I recently
wrote an article about disappeared children. If we have a few
people speaking French, they can obtain copy of it. For me
disappearances are very important because it’s something that
has been used very much in Latin America. In Argentina, with
the military junta, in Paraguay, in Chile by Augusto Pinochet.
Paraguay is not as well known as Chile or Argentina, but disappearances have been widely used. Mass graves are still found.
Last week they found again another mass grave. Remains of
corpses are still discovered. When I went there, they found
remains of dead bodies.
A penal instruction of the case, Huanta 84, has just been
opened by the judge of the first penal court of Lima. This means
that this judge will have to take a lot of action and make several
travels to complete information missed by the the prosecutor
of Ayacucho. The prosecutor will also interview the witnesses.
This step might last about six months before the upper prosecutor of Lima handles this case (this transfer can last from 4 to 5
months).
The prosecutor has to proceed to lodge a penal complaint
before the national penal court officially opens the trial. It is at
this level that it is possible to present psychological expertise.
Once the trial begins, the lawyer of the private party associated
in the court with the public prosecutor will express the importance of the expertise to determine the damage caused to the victims. Then, the judges fix a date when the expert has to appear at
the trial to explain his expertise. The trial will probably begin at
the latest in January 2013 and the testimony of the experts will
occur in July or August 2013.
In Europe, when I talk about what happened in Peru, I just
meet people who think I am a maniac. Most of them know Peru
through the gold of the Incas and Machu-Pichu. From 19802000, under a so-called democratic regime, the army of Peru did
not hesitate to turn to terror, to fight the bloodthirsty guerrilla
warfare of the Shining Path. Under three successive elected
governments in the so-called democracy, in the silence of most
of the Peruvian population and the international community,
estimates suggest that the number of Peruvians who have undergone any sort of violence is 75,000 victims. For me, the true
number will never be known and will remain always underestimated because of the lack of a Registry Office. The Indians of
the Alitiplano, caught in the crossfire, were the main victims of
this mass murder, mass torture, mass terror. So many Indians in
the Andeans have no legal identity. After the condemnation of
Alberto Fujimoro for the violations of human rights, it’s obvious that the fate of the fragile Peruvian democracy is connected
today to the recognition of the rights and the memory of the
families of the victims.
Mission
The mission took place in Huanta, martyred, unknown city,
taken in pliers between the fighters of the Shining Path and the
armed forces of the Peruvian state. It was a 12-hour journey
by bus to arrive in Huanta. To save money I prefer to ride in
a bus rather than plane but now I know never again will I be a
miser. It was an oppressive ride up to more than 5,400 meters,
which is three miles high in the mountains. After twelve hours
of bus driving, then it was a 1.5 hour race in a mad taxi on the
verge of deep valleys. Travel sickness plus altitude sickness
make this trip unpleasant both ways. Eventually, we arrived
to Huanta, where a number of deaths and massacres occurred.
There was a balcony where a girl was shot down; there were
street corners where a lot of people were killed. I also went to
the stadium. It was disturbing to me, and I’ve been told there
are a lot of bodies under the ground. It’s very strange.
Work WiTh irCT
Now I would like to thank the IRCT for what I have learned
with them. 2011 was a very special year for me. After I started
with the Parcours d’Exil association, a mission to Rwanda
to work with victims, and to start an art therapy workshop,
IRCT asked me to go to Cambodia to put my expertise on the
Khmer Rouge trial. I’m used to writing reports for the French
Courts, but in Cambodia it was for an international purpose. I
learned a lot from the manual that IRCT issued, I learned a lot
with the team, and I learned a lot from the victims. Then IRCT
asked me provide expertise concerning Uzbek victim in Paris.
Subsequently, IRCT offered to help us in the mission that I had
built up all alone with Rafael Gillèn-Barnett a franco-peruvian
ethnologist, president of Cuenta Conmigo Perù association and
Takiy, a trans cultural institute. The experiences in Cambodia
I met the victims with the translators in a premises lent by an
elderly persons home in connection with the association Cuenta
Conmigo Peru: In this place we met with old people, alone,
victims of the disappearance of their family. It was a place of
poor appearance, but had the impression of brotherly wealth,
sharing, mutual aid, and generosity. A storekeeper, a policeman, a farmer, and other people told us how they were taken
hostage. They never received any healthcare or treatment for
their traumas. The interviews were conducted in a hypersensitive atmosphere. It was difficult to conduct expertise in the very
place where the totalitarian horror occurred. Thirty years later,
25
because each victim is not able to have his own trial. One lawyer came up to me and said that after talking to me, he realized
in a very systemic way, that it’s not normal, the experiences of
the victims. All the stories are important and telling them has a
positive impact.
the trauma was still there. Huanta is a seemingly calm city, but
the violence is still perceptible.
The interview was conducted in Spanish with a translator for
the Spanish-speaking victims. For the Quechua language-speaking
victims, it was a bit more difficult because it was not possible to find
a Quechua-French translator. So for the first time in my life I had to
use two translators, which made it a bit difficult because sometimes
I had to rephrase my question to be sure that I understood or I had
to ask that they explain some expressions. One thing that seemed to
be difficult in the beginning was to have this interview in a topico, a
small hut, warm, and with a small window. I didn’t think it was good
enough for these victims; I felt bad receiving them in such a small
uncomfortable place. Very quickly I realized that these people were
not intimidated by the place. Compared to the room where I interviewed victims in Phnom Penh that was inside a big clean building,
in a clean room with naked walls, three chairs and one table, this was
not as intimidating. It seemed to me that the victims in Huanta felt
they were in a safe place in the topico. This was a real lesson for me.
It is so difficult to overcome our own standards.
While they were translating an old woman who was eighty
years old, she kept punctuating her story with “it was terrible,
it was terrible,” and she showed huge distress in her eyes. I had
a question about memory and concentration problems since the
events happened, but the woman explained that this was not a
problem. She said it was quite important to her to benefit from
such expertise.
Another women, a younger one, in response to my questions
if it was possible to speak to other people about what happened,
explained that she tried in the past, but that people always told
her that she should not remember, that her uncle was now her
father, and that she should forget about her real father. She added
with a lot of emotion that she felt very much alone. She often
looked at the picture of her father who had disappeared. I asked
whether she can trust justice or have any faith in it, and she said
that she has faith in justice because strangers, foreigners, were
participating in it. I think that’s also very important in a country
where a dictatorship is very difficult for people to trust.
The victims were very eager to talk to someone. For most of
them, it was the first time they received therapy. The people I
interviewed expressed very clearly: “I feel much better, I was able
to talk. You were asking questions no one ever asked and I do feel
better. I realized I am not mad, I am not alone. I can express my
feelings.” One woman even asked the local association manager
if she could see me again before I left, which I was not able to do.
ConClusion
I will just try to finish with the role of life and justice. Once
again let’s talk of these victims. A woman answered that she
wants truth—she wants to know if her father is dead, she is
not sure. She is always imagining that she could meet him in
the street—that she could recognize him. She hopes to see him
again. For her, this expertise was a way to begin justice, and she
was really expecting that the justice would find the dead body of
her father. What surprised me: I’ve been told that was the first
time that she went for expertise. It’s true that therapy is not easy
to access. But no one has ever been to these people. No one has
been taking care of these people. They are not rich. They live
very deep in the mountains. But for me, it’s really fascinating
that no one ever went there. And they really ask if we will go
again. I don’t know when I will go again, but if I do I’m not sure
what will happen. Thank you very much.
The reports have been transmitted to the lawyer of the ADEHR
in charge of the files for the trial. As I told you a few minutes ago,
probably the trial will begin at the latest in January 2013, and the
testimony of the expert will occur in July or August 2013.
Comparison of Work in Cambodia and peru
I would like to make a quick comparison to my work in
Cambodia with victims from the Khmer Rouge period from
1975-1979 because in June and November I had the opportunity
to interview survivors. It was amazing to notice that there was
no healing of post-traumatic stress disorder. The trauma was
so present, so much alive, and no justice had come to allow
for healing. I think it’s very important to document these cases
EndnotEs: session two: Concurrent Panels – Cases Involving Marginalized Groups
1
3
U.N. Office of the High Comm’r for Human Rights, Manual on
the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul
Protocol), 2004, HR/P/PT/8/Rev.1, available at: http://www.unhcr.
org/refworld/docid/4638aca62.html.
2 World Health Organization, International Classification of Diseases
(1994), available at http://www.who.int/classifications/icd/en/.
Convention for the Protection of Human Rights and Fundamental
Freedoms, Apr. 11, 1950, C.E.T.S. No. 005 (1950).
4 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (1984).
26
CASES IN THE SO-CALLED WAR ON TERROR
Remarks of Daniel Carey*
IntroductIon
unlawful. It was brought by a public interest claimant called
Maya Evans. She’s a well-known human rights and peace campaigner in the UK. Because of the fact that the prisoners being
handed over couldn’t access the UK court, she had standing to
bring this challenge effectively on their behalf, and we acted for
her in the case. The principal allegation in the case was that UK
practice of handing over prisoners to the Afghan Intelligence
Services – the Afghan National Directorate of Security (“NDS”)
– breached the UK’s non-refoulement duties. For those of you
that aren’t familiar with that, that’s the duty first found in the
refugee convention and now in all of the major human rights
treaties that prevents the handover of detainees to a state where
they face a real risk of torture. In the ECtHR context, the test is
principally found in the case of Soering2. The remedy that we
were seeking in the case was to stop all prisoner handovers from
taking place. The judgment was given in June 2010.
I
am a lawyer at Public Interest Lawyers in the UK. I work
with Phil Shiner. I’m here to talk about UK forces in
Afghanistan. I’ll talk about a case that we ran in the UK, but
the principles are equally applicable to any of the states that currently have troops on the ground in Afghanistan, whether it’s the
US or any of the other ISAF (International Security Assistance
Force) states. The issue of torture in Afghanistan is a very
important one because it is an ongoing conflict and it was one of
the first reactions of the international community after 9/11. It’s
also important because it involves the participation of supposedly advanced western states that have all the means to prevent
torture, but their interaction with a country like Afghanistan,
which is at the very other end of the scale, and has a problematic
history with the use of torture. There are various perpetrators
involved in torture in Afghanistan, whether it’s the US forces
at Baghram Air Base, whether its other ISAF countries like the
UK, or whether it’s the Afghan security forces themselves. The
case that I’m going to talk about is called Queen In Re: Maya
Evans v. Secretary of State for Defence,1 which involved the
issue of handover of prisoners from UK forces to the Afghan
security forces. In particular, I’m going to look at the use that
we made of forensic evidence in that case and how useful it was.
I think it’s particularly important to look at non-refoulement
in the Afghanistan context because the coalition countries
learned the errors that they made in Iraq and they changed
their detention policies. In Iraq, the UK and the other coalition
partners had their own detention facilities. But that was such a
public relations disaster that when it came to Afghanistan, they
decided to do things a little differently and let the problem of
detention and torture lie primarily with the Afghan authorities.
The issue of non-refoulement in Afghanistan is therefore one of
the key issues if accountability for the carrying out of torture in
the Afghan conflict is to be achieved. There was an extra issue
in the case that I should also point out, which is that there was
a suspicion that this was not just non-refoulement, but this was
in essence UK rendition. Prisoners were being handed over
to the Afghan authorities not only so they could be dealt with
within the Afghan system, but so that as a result of the torture
to which Afghan authorities were subjecting prisoners, intelligence would be gained that would then be fed back to the UK
and other coalition partners. So it was a very important case to
try to establish—whether these handovers were in fact lawful.
overvIew of case and non-refoulement
In afghanIstan
Just briefly then, an outline of the case: It is a judicial review
case, which is a form of constitutional challenge that we have
in the UK by which acts of government can be impugned as
* Daniel is a solicitor at Public Interest Lawyers (PIL) in the UK, a
practice specialising in public law and human rights cases. In recent
years PIL has been at the forefront of efforts to eradicate torture from
British military and intelligence services practice. Daniel has worked
on a number of notable PIL cases including Al-Skeini (ECHR jurisdiction in Iraq); Al-Saadoon (the non-refoulement duty in relation to
the death penalty in Iraq); and the Baha Mousa Public Inquiry. He
lead the team on Evans, concerning the handing over of prisoners by
UK forces in Afghanistan to face torture at the hands of the Afghan
intelligence service. He is currently working on the Al-Sweady Public
Inquiry, an investigation into an incident involving alleged torture and
unlawful killing of a large number of Iraqi civilians in Iraq in 2004. In
2009, Daniel received the Peter Duffy Award at the Liberty and Justice
Human Rights Awards in the UK for his work on a number of these
cases. In 2007 he received the Law Society’s New Solicitor of the Year
for his work in Guatemala with the NGO Peace Brigades International
(PBI). Prior to his work at PIL, Daniel worked at the Louisiana Capital
Assistance Center in New Orleans, USA and as a commercial lawyer.
facts of case
There were 500 prisoners that were transferred by UK forces
between 2006 and 2012, and that figure I think has now gone
up to 900, so these transfers are continuing even up to today.
The way that the UK ran its transfer policy, and indeed how
all the other ISAF countries ran their detention policies is to
hold prisoners temporarily, perhaps interrogate them during that
time, and then transfer them to the Afghan intelligence service
(the NDS). They would then monitor how these prisoners were
being treated by the NDS, having handed them over. In reality
27
this system was clearly broken. There were massive problems
with torture once prisoners had been handed over.
the prisoners whether they had been tortured. It was unsurprising under those circumstances that victims of torture were not
happy to talk about what was being done to them. That was if a
private interview had actually been achieved. In many cases the
UK monitors would go to the prisons and interview the prisoners through the cell doors, where all the prisoners could hear the
conversation. Clearly again, the prisoners would not be happy to
talk in those circumstances. Monitors were being denied access
to facilities, visits were extremely irregular, and visits were forewarned so the Afghan authorities knew that the UK inspectors
were coming.
A recent 2011 report from the UN Assistance Mission in
Afghanistan (“UNAMA”) confirms that they interviewed a vast
number of prisoners in NDS facilities throughout Afghanistan
and found that forty-six percent of them complained of torture.
So basically one in two people were being tortured. The actual
figure is probably much higher when you account for the reluctance of some victims to actually talk about their experiences.
The kinds of torture to which prisoners are commonly subjected
by the Afghan NDS are hanging from the ceiling, beating with
sticks whilst being hung, electrocution, pulling out of fingernails, really terrible stuff.
Disclosure in the case also revealed a series of serious allegations, known to the UK Government but not disclosed to the
public. See for example the following excerpt from the High
Court judgment:
Disclosure in the case also revealed serious problems with
the UK’s monitoring system once the prisoners had been handed
over. There was a failure to track those prisoners within the
Afghan detention system; prisoners had simply disappeared.
The NDS was shown to be hiding prisoners on the roofs of
detention facilities when inspectors from the Red Cross actually
came to the facilities to see the prisoners. When inspectors from
the UK visited, they couldn’t find the prisoners and there was
the possibility they were being hidden. There was a complete
lack of privacy in the interviews that the UK monitors were carrying out with the prisoners. Habitually, the NDS guards were
actually in the room at the time the UK inspectors were asking
Allegations by prisoner G of ill-treatment at Lashkar
Gah emerged at a late stage, during a UK visit to
Pol-i-Charki [Afghan Prison] on 24 November 2009.
He had not been seen on previous visits to the prison.
His allegations were that while in detention at NDS
Lashkar Gah in July 2007 he had been beaten with
steel rods on his back and legs for six consecutive
nights, and that this was the only reason why he had
made a confession. He claimed to be able to identify
the perpetrators.3
28
conclUsion
These kinds of allegations bear a remarkable similarity to
those which later appeared in the UNAMA report that I referred
to earlier. These kinds of allegations were also clearly echoed
by other sources. At the same time that the Evans case was proceeding, there was a Canadian case in which for example one
prisoner spoke to journalists about his torture and when he said
that he’d been whipped with electric cables, he pointed to the
chair on which the journalist was sat, and asked him to lift it up,
and under the chair were the cables that had been used to torture
the prisoner. Despite all of this evidence, the prisoner transfers
were continuing. The system was clearly broken. Where allegations such as these were made to UK investigators, the UK
would try to discredit them and claim that the allegations were
simply not credible.
By the time we finished the case, we’d shown clearly that
there was a risk of torture; we’d shown that the allegations
were credible; and we’d also shown that the UK’s monitoring
regime was clearly not up to the task. The inevitable conclusion was therefore that the UK was clearly not complying with
its non-refoulement obligations and should cease transferring
prisoners to the Afghan authorities. The court did agree with us
on all of those questions, save for what the remedy should be. It
concluded, firstly, that in the absence of specific safeguards, the
scale of torture by the NDS did mean that there was a real risk
of torture post-transfer. Secondly, it concluded that the system
of UK safeguards was not sufficient to adequately diminish this
risk. However, all through the case, the “elephant in the room”
had been the consequences of forcing the UK Government to
cease prisoner transfers in Afghanistan altogether. Whilst not
relevant to the legal issue at the heart of the case, the court
nevertheless tried to find a way that it could both conclude that
the UK hadn’t been living up to its non-refoulement obligations,
but also that it could carry on transferring prisoners. The Court’s
third and final conclusion was therefore to prohibit transfers
to the NDS facilities in Kabul, but to allow them to continue
in Helmund and Kandahar, but only on the basis of very strict
further conditions with which the UK now had to comply: it had
to carry out regular private interviews, and it had to impose a
moratorium on transfers if any further allegations came to light.
Use of expert evidence
So the problem we had was, we needed an expert to critique
the UK’s clearly inadequate monitoring regime, and that’s why
we turned to the International Rehabilitation Council for Torture
Victims (“IRCT”) for some expert evidence. Onder Ozkalipci
(of the IRCT, now International Committee of the Red Cross)
gave a very helpful witness statement in the case, which pointed
out all of the flaws in the UK’s monitoring process. This was
very important context for the court because they really hadn’t
heard of the Istanbul Protocol, and they needed to know what
the minimum standards were. It shifted the emphasis of the case
onto a more victim-centered approach, and brought to the front
and center of the case the professional standards that the UK
should have been following. The statement highlighted several
breaches—that investigators should be trained specialists, the
overriding importance of private visits, having visits without
notice, visits of sufficient duration. He also sounded a note of
caution about he UK’s attempts to discredit people who had
come forward to make allegations, making clear that silence
or inconsistencies in account aren’t sufficient to undermine a
victim’s account. It may well stem from their own fear, psychological damage, their lack of trust in who they are talking
to, from avoidance behavior, or PTSD. Clearly the UK needed
to go much further before they deemed all of these allegations
to be false.
The court referred to the IRCT’s witness statement in its
judgment, and it’s clear that measuring the UK’s practice
against international standards and showing how short the UK
had fallen significantly helped us get over the line in what was
ultimately a very helpful judgment. I think the kinds of conditions that the court imposed should be replicated by other ISAF
states, including the US, as a matter of urgency. The case is
a good example of better practice for other conflict contexts.
It is an important application of the Istanbul Protocol in the
non-refoulement area, and it’s a good example of medico-legal
cooperation in litigation to improve policy. Experts can in fact
assist in these kinds of cases even when you don’t have a victim
for a forensic examiner to examine.
The statement also criticized the two medical examinations
that the UK had carried out. In those examinations the UK
concluded that because a prisoner had no visible scarring, he
couldn’t have been electrocuted. The expert statement made
very clear that electrocution is often used precisely because it
leaves no marks.
However, the job isn’t quite finished because as I’ve said, the
UK was still permitted to continue transferring prisoners, and
we’re likely to head back to court in the near future to try and
finish the job in light of a new series of allegations.
29
Remarks of Irit Ballas*
IntroductIon
T
he Public Committee Against Torture in Israel and other
human rights organizations have been dealing with victims of torture and ill-treatment for over twenty years.
The subject of forensic documentation has always been part of
our strategy. However, many difficulties make it hard for lawyers representing detainees to achieve cooperation with doctors
and to obtain medical records that substantiate victims’ complaints. I am here to tell you about these difficulties and about
the ways we are trying to deal with them.
I will start by giving some background about the peculiar
legal status of torture in Israel. Then I will explain the mechanisms created to grant full impunity for interrogators, and I will
describe the important role doctors play in this mechanism.
Finally, I will discuss the possible solutions we are trying to
pursue.
LegaL StatuS of torture In ISraeL
In Israel, torture and ill-treatment enjoy a peculiar semi-legal
status. This semi-legality is a construct created by a landmark
ruling of the High Court of Justice in 1999. After about two
decades of public and legal struggles starting in the mid-1980s,
the question of the legality of the investigation methods used
by the Shin Bet, Israel’s secret service, was brought before the
High Court of Justice.4 The court’s decision is an important
milestone in the efforts to end torture. It affirms the absolute
prohibition against torture and explicitly bans the methods of
torture which were commonly used at the time. Yet alongside
this absolute prohibition, the court ruled that if Shin Bet interrogators employed these means of interrogation in order to save
human life, they could, if brought to criminal trial, claim the
necessity defense. The court went even further. It authorized
the attorney general to publish guidelines as to when interrogators who supposedly acted out of necessity would be exempt
from criminal prosecution. This ruling has had far-reaching
consequences. The Attorney General has interpreted this authority very broadly, and his guidelines grant a priori permission to
use certain interrogation methods. These guidelines became one
of the central tools used for proving torture in Israel. The court’s
ruling is a landmark and indeed affects the way interrogations
are held. However, more than a decade later, not only do torture
and ill-treatment continue in interrogation rooms, they also continue to receive the full institutional backing of the state.
ImpunIty for InterrogatorS
This is not the only obstacle to stopping torture in Israel. Even
if we look at the bright side, the achievement of having such a
ruling remains incomplete, because there exist several layers of
protection that guarantee complete impunity to Shin Bet interrogators. To name but a few, the identity of Shin Bet interrogators is classified, which denies torture victims the chance to cite
their interrogators’ names in their complaints. Also, the Shin
Bet is exempt from created the audio and video documentation
required in police interrogations. Furthermore, the handling of
complaints of torture and ill-treatment is appalling. Not one of
the hundreds of complaints of torture or ill-treatment filed by
victims in recent years has led to a criminal investigation. The
interrogators can rest safely, assured that even if they do violate
the prohibition, no harm will come to them.
* Irit Ballas, is head of research at the Public Committee against
Torture in Israel (PCATI), and a graduate student at the Hebrew
University of Jerusalem’s Department of Sociology, the. After completing her studies at the Hebrew University’s Faculty of Law, Ms. Ballas
did her legal apprenticeship at the Association for Civil Rights in Israel
(ACRI). In the course of her work at PCATI, she wrote several of the
organization’s key reports, i.a. “Accountability Denied: The Absence
of Investigation and. Punishment of Torture in Israel” (2009) and
“Doctoring the Evidence, Abandoning the Victim: The Involvement of
Medical Professionals in Torture and Ill-treatment in Israel” (2011).
Ms. Ballas was also actively involved in various petitions to the High
Court of Justice relating to state violations of human rights in Israel
and in the Occupied Territories.
Important roLe of medIcaL profeSSIonaLS
Medical professionals who interact with detainees, whether
employed by the Israel prison service or part of the civilian
hospital staff, comprise one of the most important layers in the
system of Shin Bet protection. They are often the only people
30
under the title “Intake,” the detention center doctor noted that
J.M. suffered from pain in the right shoulder. Yet there is no
documentation of either his having been unconscious, or of his
claim of violence by the soldiers.
the detainees meet other than their interrogators and prison
guards. Their documentation the only real-time evidence available to a detainee about injuries resulting from the interrogation.
Unfortunately, our research clearly shows that doctors neglect to
do their duty by failing to document and report torture.
These two cases are just two examples of the many cases in
which doctors do not offer any refuge for interrogees, and do
not provide the kind of documentation that can help a detainee
if he wishes to take his interrogators to court. What makes matters worse, and makes the doctors’ failure even more deplorable,
is that Palestinian detainees are usually held incommunicado.
Although they are prevented from meeting anyone outside of
the interrogation or prison system, including family members,
lawyers, Red Cross representatives, or other prisoners. They do,
however, get to meet doctors on a regular basis. This makes the
role of prison doctors as providers of evidence of an injury a
crucial one, as their medical records constitute the sole source of
real-time evidence to support any allegations of torture.
Let me give you two examples. M.A. was 22 years old at
the time of his arrest. He testified that during his arrest, soldiers cuffed his hands behind his back with plastic handcuffs
so firmly that the marks lasted for a week. He was forced to sit
in a kneeling position and to rest on his fingertips for hours. A
soldier slapped him across the face some ten times, and slammed
his head into the bench twenty more. The resulting pain in his
eyes was so severe that one month later, while giving his affidavit to our lawyer, he was still unable to read at all. M.A. was
subjected to a preliminary medical examination the day after
the injuries were inflicted on him. In the column reserved for
doctor’s commands, it says, “overall, conditions satisfactory;
heartbeat regular,” followed by a completely illegible sentence.
Then, it says, “not in need of treatment at this point.” Though
there is a note attesting to additional visits to the clinic in the
next two weeks, there is no record of the injury until two weeks
after the arrest, when the following line appears: “complaints of
pain in teeth and eyes.” While we do not know for sure if M.A.
told the doctors about what happened to him, according to the
affidavit, the injury was clearly visible for all to see. The doctors
ought certainly to have noticed it, and should have documented,
photographed, and reported, even without an explicit request
from the detainee. Moreover, three weeks after the arrest, M.A.
was referred to an eye doctor by a judge at the hearing on his
matter. That was three weeks after he sustained the injuries, yet
the judge was convinced of the necessity of treatment. So the
same certainly should have been expected of a doctor who saw
him closer to the time of the injury, and whose job it is.
Possible solutions
At the Public Committee Against Torture (PCAT – Israel),
we decided on two different courses of action. The first avenue
is making prison doctors more aware of their professional and
ethical obligations. We want them to remember that the well
being of their patients has to be their first priority. One way
of doing this is raising public awareness. This was one of the
objectives of the report we issued not long ago, in collaboration
with Physicians for Human Rights – Israel. The report, called
“Doctoring the Evidence: Abandoning the Victim,” which
describes in detail the issue of doctors’ involvement in torture
and maps the different ways in which this involvement perpetuates the impunity system. Also, getting media coverage of
specific cases helps make the subject the topic of public debate.
Doctors’ duties extend far beyond simply recording, describing, and treating injuries. They are also obliged to report any
sign of violence. Their obligation is all the more pronounced
when it comes to detainees and prisoners. According to the
Israeli penal code, they are defined as helpless because their
ability to independently complain of any injuries is very limited. Moreover, the patients are in custody and are subjected to
the same prison system that employs the doctors, which clearly
places an obligation on the system to create effective channels of
reporting. However, with the exception of one case, we have not
encountered a single case where torture and ill-treatment were
reported. This is true even in cases which were documented,
even if only partially, removing any doubt that the doctor was
aware of any injury having been inflicted.
A second way of raising awareness is getting the health system in charge of prison doctors more involved in the doctors’
conduct. This includes the Israel Prison Service, the Ministry of
Health, and the Israeli Medical Association. Many of the issues
discussed here are caused by the reluctance of these bodies to
get involved and formulate clear guidelines as to when and to
whom doctors should report, as well as the obligations regarding torture and ill-treatment. We have extensive correspondence
with these bodies and one of our major achievements is that the
Ministry of Health has decided to set up a joint committee of the
relevant bodies. Doctors will be able to turn to the committee
when they discern signs of torture. But even though we received
the announcement of the established of the committee over six
months ago, we have not seen any signs that it is actually being
set up.
J.M. was twenty years old at the time of the arrest. His affidavit testifies to a great deal of violence at the time of his arrest.
Soldiers broke into his bedroom and began to beat him up, using
their guns. One of the soldiers seized his arm so violently that
his shoulder was dislocated. J.M. lost consciousness and woke
up to find himself in a clinic, at a location unknown. He told
the doctors there what had happened to him. In his medical file
A third way is holding doctors personally accountable. We
are trying to achieve that by submitting complaint regarding
doctors’ conduct to various professional authorities. So far, even
though these bodies are quick to declare that they do everything they can to prevent torture; we have very little success in
convincing them to take action against doctors who take part
31
in it. Recently, we went so far as to lodge a complaint against
a certain doctor to the police. This cause of action is possible
because the doctor’s omission to document and report are not
only unethical, but also illegal. Doctors are obliged to report and
document injuries of helpless people, as defined by the penal
code. People under custody fall within this category. No official
answer from the police has yet been received.
role on themselves, from a large pool of professionals we can
recruit for these purposes. In collaboration with IRCT, we are
in the process of setting up a workshop for training physicians.
An additional benefit for such training is the potential effect not
only of the possibility of visiting Palestinian detainees and collecting evidence, but also raising awareness within the medical
community.
Those are the three different ways in which we act to make
doctors more aware of their obligations. A different avenue of
action is not aimed at improving the conduct of prison doctors,
but rather at replacing it. That is using independent external doctors to give medical opinions that can be used in court. In Israel,
this is a very difficult endeavor, though not impossible. First, as
mentioned, most Palestinian detainees are held incommunicado
during the time of the interrogation. When they are finally permitted to meet a lawyer, we visit them and hear their story ex
post facto. At this point in time, an independent outside doctor
is allows to see them, but after so much time has passed, it is
difficult to observe any trace of injury. This doesn’t mean that
there is no point visiting them when the interrogation is over,
it means that we really can’t do without the evidence provided
by the prison doctors. Second, there is a lack of doctors—let
alone doctors with forensic training—who are willing to visit
detainees, an act which is considered extremely controversial in
the Israeli-Palestinian political climate. In order to change the
situation, we are trying to train those who are willing to take this
ConClusion
What follows from everything described here leads to the
conclusion that we still have a long way to go to ensure proper
medical documentation that can serve as evidence in litigation.
It is impossible to exaggerate the importance of such evidence.
In the Israeli context, prison doctors are the only people who
have access to detainees at the time of interrogation, and could
play an important role in ending impunity. Unfortunately, doctors who come across detainees show time and time again that
they are part of the interrogation mechanism, rather than taking
a clear stand against any violence inflicted upon their patient. I
wish I could have presented a success story, but that is a story
yet to be written. We at PCAT-I are constantly trying to find
new opportunities for action, but this is not unusual in our line of
work. Change has been slow and difficult to achieve. However,
there are some recent improvements that make me optimistic
that, in the not too distant future, doctors will be better partners
for this cause.
EndnotEs: session two: Concurrent Panels – Cases in the so-Called War on terror
1
2
3
4
[2010] EWHC 1445 (Admin).
Soering v United Kingdom (1989) 11 EHRR 439
Id. at para. 219.
Supreme Court of Israel, Judgment Concerning the Legality of
the General Security Service’s Interrogation, 38 I.L.M 1471 (Israel,
1999).
32
CASES RELATED TO POLITICAL ENGAGEMENT
Remarks of Dr. Ala’a Shehabi*
Background
T
he use of torture has been systematically practised in Bahrain
for decades. This was noted in 1997 by several reports by the
UN Special Rapporteur on Torture, and in 2010 by Human
Rights Watch.1 In 2002, Royal Decree 56 was passed by the King
of Bahrain granting amnesty to all state security officers who may
have committed human rights abuses prior to 2001. On this basis,
the Bahrain Public prosecutor refused to accept any complaints of
torture lodged against security officials and no individuals had been
charged or tried by the state, despite pleas by international human
rights groups. Most of the officers concerned have remained in post
and some promoted to senior government positions.
More recently, the use of torture returned on an unprecedented
scale in the state’s campaign to suppress the political uprising that
began on February 14, 2011 as part of the regional upheavals in
the so-called “Arab Spring.” The Government of Bahrain (GoB)
responded brutally with a crackdown that lead to the arrest of thousands of people. Around 500 prisoners of conscience remain, and
the death toll that has reached 76 according to the Bahrain Centre for
Human Rights. The Bahrain Independent Commission of Inquiry
(BICI) established in 2011 to investigate human rights violations
found that approximately 3000 people were arrested within a threemonth period alone. It also established that the police used excessive
force against protesters and a systematic practice of torture:
of 559 complaints of torture that it received. Local NGOs however,
have documented approximately 1800 complaints of torture.
The most common techniques of torture documented were
enforced standing for prolonged periods; beating; punching; hitting the
detainee with rubber hoses (including on the soles of the feet), cables,
whips, metal, wooden planks or other objects; electrocution; sleepdeprivation; exposure to extreme temperatures; verbal abuse; threats of
rape; and insulting the detainee‘s religious sect. BICI blamed a culture
of impunity: “the lack of accountability of officials within the security
system in Bahrain has led to a culture of impunity, whereby security
officials have few incentives to avoid mistreatment of prisoners or to
take action to prevent mistreatment by other officials.” BICI urged
the government to conduct investigations and to prosecute implicated
individuals both direct and at all levels of responsibility. The Ministry
of Interior claimed that it opened investigations into cases of alleged
torture; however, less than a handful of officers have been prosecuted,
and none have been convicted. These low-level officers are viewed
as scapegoats despite evidence of superior responsibility reaching the
ministerial level if not higher. These officers are mostly being prosecuted on misdemeanor charges (such as accidental death, or grievous
bodily harm) that amount to less than the crime of torture as outlined
in the penal code only & face minimal punishment even if convicted.
There was a systematic pattern of torture [...] The security
services of the GoB resorted to the use of unnecessary and
excessive force, terror-inspiring behaviour and unnecessary damage to property. The fact that a systematic pattern
of behaviour existed indicates that this is how these security
forces were trained and were expected to behave.2
The report goes on to say that, “the extent of this physical
and psychological mistreatment is evidence of a deliberate practice, which in some cases was aimed at extracting confessions
and statements by duress, while in other cases was intended for
the purpose of retribution and punishment.”3
As part of the retribution and punishment, approximately 4500
people were sacked from their jobs as well. The BICI relied on forensic evidence. It brought a forensic medical team that examined 59 out
* Dr. Ala’a Shehabi is a lecturer, writer, and a civil rights activist in Bahrain
with a Ph.D. in economics from Imperial College London. She has authored
several human rights reports for local NGOs, and policy reports for international think tanks. Shehabi co-founded the Bahrain Rehabilitation and AntiViolence Organisation (BRAVO), and Bahrain Watch, a transparency and
anti-corruption NGO. Her husband was a victim of torture in Bahrain.
current Situation
The situation at the time of writing continues to worsen, as torture is yet to be eradicated and security forces continue to act with
impunity. To avert accountability, torture is now taking place mostly
33
Challenges In eRadICatIng toRtuRe
upon arrest, in the street, in police cars, or in secret detention centers
to avoid monitored police centers and prisons. However, torture
at the National Security Agency continues during interrogation in
cases to do with political crimes. This is one of the detention centers
to which BICI was not given access. In addition, there has been no
initiative to offer rehabilitation and redress for the hundreds of torture
victims. The justice system is also complicit in condoning torture and
sustaining the system of torture. Judges refuse to listen to defendant’s
direct testimony of torture in court, let alone order investigations into
alleged torture. In the rare cases where a judge approves a medical
examination of the defendant, a forensic doctor employed by the
Ministry of Interior is used, and who rarely corroborates any evidence
of torture. Judges still rely on forced confessions as evidence against
defendants. Accountability therefore remains an aspiration.
The biggest challenges to solving problem of torture thus far
have been primarily the State’s denial of the practice of torture,
impunity for torturers, and an environment of fear and persecution. Additionally, State control of forensic medicine makes it
impossible to practice independent forensic medicine. There is
restricted access to health care for political activists in detention
and wounded protestors. There is a lack of legislative and institutional structures to prevent torture. There has been targeting
of doctors who treat protestors.4 A lack of resources results in
a limited number of dedicated specialists, particularly doctors
and lawyers. There is strong community but weak civil society
institutions.
Role of the IRCt
BahRaIn’s fIRst RehaBIlItatIon CenteR
The IRCT recently supported the autopsy of a young man, Yousif
Muwali, who went missing for several days. The police claimed that
the missing man was found dead in the sea. The family was adamant
that he was arrested based on witness accounts. The GoB rejected
the family’s request for an independent medical examination. The
doctor found physical evidence of electrocution most likely obtained
through torture. Yousif Muwali was particularly vulnerable due to
the mental illness he suffered from. The doctor also documented two
other cases of torture using the Istanbul Protocol. The GoB claims
that all torture in Bahrain ended in 2011; however, this strong evidence suggests otherwise, as human rights activists have been claiming all along, with three deaths in January 2012 alone.
The Bahrain Rehabilitation and Anti-Violence Organisation
(BRAVO) was established in January 2012 by lawyers, doctors, and activists. It aims to offer physical and psychological
rehabilitation services to torture survivors, counter impunity
for perpetrators and promote justice for survivors, raise awareness of torture among policy-makers and citizens. The biggest
hurdles facing BRAVO are as follows: Obtaining authorization
to operate as an NGO amidst restrictive association laws and
state control of civil society; knowledge, training, and capacitybuilding; obtaining a license to operate a clinic that allow doctors to practice forensic medicine and deliver rehabilitation
services; resources and funding; and long-term sustainability.
Remarks of Felicitas Treue*
IntRoduCtIon
T
orture continues to be practiced systematically in Mexico,
in spite of the fact that the state has signed and ratified
all relevant conventions. In our work we can distinguish
two main scenarios of torture: (1) Torture related to political
* Felicitas Treue is a Psychologist, Psychotherapist, and General
Coordinator of the Colectivo Contra la Tortura y la Impunidad – CCTI
(Collective Against Torture and Impunity), Mexico. She has a masters
degree in Psychology from the University Johann Wolfgang Goethe in
Frankfurt, Germany with a specialization in cognitive behavioral therapy.
Since 1998, she has worked in the rehabilitation of torture survivors
(psychotherapy, counselling, psychosocial support), training for health and
legal professionals, and documentation of torture. She participated in the
implementation process of the Istanbul Protocol (IP) in Mexico since 2000,
co-authored the national adaptation for Mexico, and was a trainer in the first
international seminar about the IP in Mexico. She has also been a trainer
for the Istanbul Protocol in national/international seminars in Mexico, Chile,
Ecuador, Peru, and for the Inter-American Commission on Human Rights.
34
activism; and (2) Torture related to criminal investigations and
the so-called war against organized crime.
time, the richest man in the world, Carlos Slim, owner of telecommunication systems comes from Mexico, his fortune is
estimated at $69 billion USD.)
In order to understand the phenomena of torture related to
political activism in Mexico, it is necessary to give some general information about the political and human rights context
in the country. I am going to mention some elements that seem
important to me.
Poverty is extreme in the southern states (Chiapas, Guerrero,
Oaxaca, Veracruz) with a high percentage of indigenous and
rural populations. Although theses states are rich in natural
resources, the population is highly marginalized, without access
to basic services of health and education.
Generalized Violence and FiGht aGainst
orGanized crime in mexico
conFlicts related to natural resources
Since 2006, when President Calderon declared the “war
against drug trafficking,” there has been a dramatic increase of
violence in Mexico, with over 50,000 killings in the past five
years, that include members of organized crime but also an
unknown number of persons that have nothing to do with this.
In many regions, we can see conflicts about the exploitation
of natural resources, like water, wood, biodiversity, mining. The
government has been more than willing to give concessions to
international firms without consulting the population or against
their will. For example: since 2000, the Mexican government
has given concessions to mining companies that cover more than
25% of Mexican territory. There are several big hydro-electrical
projects in Guerrero, Oaxaca, Jalisco. These projects destroy the
livelihoods for people, forcing them to migrate, leave their lands
and join the big group of cheap labor. There has been strong
opposition against many of the projects, nevertheless government has not shown willingness to resolve the conflicts and has
chosen to use repression as a means of resolving the conflicts.
In this political-economical-social context, torture is used by
the Mexican State as one instrument in a strategy of repression
and criminalization of social protest. Torture is used selectively
against leaders of union, student, peasant organizations in order
to break their will, their convictions and their capacity to organize, to motivate others and continue defending fundamental
rights of the population.
Within his strategy of national security, the president has
increased the military budget 44% since 2006, and has been
using the armed forces to take over duties of public security,
with more than 50,000 soldiers taking part in big operations
against the cartels all over the country. Within their mandate,
they can realize detentions, search houses, investigate, and interrogate, functions that should be carried out by the police forces.
After all these years it has become more than clear that these
policies have not reduced but increased the violence and the
authorities are far from having disarticulated the cartels.
The security forces have incurred a growing number of gross
human rights violations, including arbitrary detentions, torture,
forced disappearances, extrajudicial executions, committed by
state and federal police, the military and the Marines. During
the first three years of the Calderon administration, the National
Human Rights Commission registered an increase of 1000% in
the number of complaints against members of the armed forces
(up to June 2011 it had received more than 4772 complaints),
including torture, arbitrary detention, sexual abuse, and forced
disappearances. Yet we know that this is only the tip of the
iceberg because many victims are afraid to denounce. This
militarization of the whole country has been used, especially in
the regions with strong presence of social movements and community organizations that defend their territories, to control and
intimidate the population and repress the movements. Still, more
and more critical voices can be heard that demand an end to this
failed strategy and investigations of the crimes committed by the
security forces against the population.
case examPle: marcelino coache
Marcelino Coache is a social activist and union leader from
Oaxaca since the 1980s. In 2006, he participated in the union
movement that demanded the destitution of the governor and
became the spokesperson of the Popular Assembly of the
Oaxaca People and member of the negotiation committee with
the Oaxaca government.
In November 2006, there was a violent repression against the
teachers’ union movement that had installed a permanent protest
camp in the Main Plaza: 502 arrests, 141 persons were illegally
transferred to federal prisons in the north of Mexico, many
were tortured after detention and during transport to prison.
Marcelino was arrested a few days later in Mexico City, accused
of rebellion, sedition, criminal association) and tortured for the
first time. In May 2007, he had to be released free of all charges.
During all this time, his family received threats and harassment.
PoVerty and marGinalized GrouPs
Mexico is a very unequal country. Recently for the third time
the country was classified by the Organization for Cooperation
and Economic Development (OECD) between the nations with
major inequality in salaries and distribution of wealth. In this
oil-producing country rich in natural resources, biodiversity,
water, number 14 of the world economies, 46.2% of the population live under the poverty line, 10.4% in extreme poverty,
21.7% with difficulties in access to alimentation. (At the same
From 2008 onwards, the aggressions against Marcelino
increased again. He was attacked and injured, documents were
stolen from his car; he and his son received direct threats. In
March 2009, he was arrested by unidentified police officers
(Oaxaca State Police), blindfolded, taken to a car and brought
to a secret detention place (casa de seguridad). There, he was
35
stripped naked, beaten, suffocated with a bag over his head,
threats were made against his family, he was put into a forced
position with a rope tying together his mouth and his arms, burnt
with cigarettes (breast, testicles, pubis). After some hours, he
was taken to an unknown place where the aggressors performed
a mock execution and then left him there. Finally, he managed
to get to a hospital where he was examined; they took X-rays
and then sent him home.
ten other women who were sexually tortured, she decided to
file a claim against the perpetrators, in her case we have two
positive Istanbul Protocol exams but the process is not advancing. Just recently the case was admitted by the Inter-American
Commission on Human Rights.
The aim of torture is not only to break the individual, it seeks
to damage or destroy the social network, the family, the organization, and to manipulate the society as a whole. Combined with
impunity for the perpetrators it is a strategy used by the states
to protect themselves from the so-called threats to stability and
national security and control social unrest—in Mexico but also
in many other states.
Despite the medical reports from the hospital and several
private practitioners that attended to Marcelino during the following weeks, and despite his very obvious altered emotional
state, the official expert reports found no evidence of torture. In
2011, our organization practiced an independent exam and still
found physical evidence as well as psychological effects (posttraumatic stress syndrome, depression, and a high level of anxiety). Now his defense has asked for a third expert opinion and
suggested two internationally recognized experts. Nevertheless,
the Prosecutor did not accept them, ironically using the argument that they were not impartial as they belonged to the IRCT
expert group and our center belonged to the IRCT network.
IstanBul protoCol In mexICo
In Mexico, the application of the Istanbul Protocol has
become obligatory in all cases where a person alleges having
been tortured. The General Prosecutor emitted an agreement in
2003 that obliges all State Prosecutors to include this medical
psychological exam in their investigations. This regulation was
first established on the federal level with the plan to promote it
also on the state level and up to now half of the Mexican states
fourteen have followed. On the other hand, medical exams are
obligatory for every detainee before and after interrogation and
at arrival at a state or federal prison.
Torture is also used indiscriminately against groups of populations in regions with strong rooted community movements. Its
aim is to intimidate people, paralyze them, to create mistrust and
fear in the community. Torture is also used as a punishment and
intimidation against persons who participate in demonstrations
and other actions of inconformity. In this context, torture is used
in a very demonstrative way. Its intention is to let everybody see
what can happen if people get involved and show their opposition, creating fear and paralysis in society as a whole.
The problem here is that the forensic doctors, psychiatrists, and psychologists who are in charge of carrying out the
Istanbul Protocol exam are employed and belong to the Attorney
General’s office, just like the police agents who allegedly tortured them. So the perpetrators, the investigative body and the
medical personnel in charge of documenting torture all belong
to the same institution. This complete lack of independence is a
structural problem that is one of the major obstacles for torture
investigation. Mexico was the first country to institutionalize
the Istanbul Protocol, but after 8 years we consider that this way
of implementing it has contributed to consolidate impunity in
Mexico.
Case example: BarBara ItalIa mendez
Barbara Italia Mendez was arrested May 4, 2006 in the village of San Salvador Atenco, in a massive police operation after
clashes between demonstrators and police the day before. In the
early morning, police forces stormed the village, arresting very
violently and indiscriminately more than 200 people.
In all the torture cases we have documented, there is only one
case, the case of Barbara Italia, where the official expert report
based on the Istanbul Protocol concluded there was evidence of
torture. This context brings about a very difficult situation for
the victim and a high risk of retraumatization as he/she will be
examined by an official expert (or maybe two—a doctor and a
psychologist), then by an independent expert and finally—as
there will be contradictions in most cases—the Judge will name
a third expert who will have the final verdict. So in general, the
victim will go through at least three Istanbul Protocol examinations, and apart from all the other difficulties of maintaining a
legal process against the perpetrators, this is an unbearable situation for many survivors.
Italia was severely beaten on the head and body during
detention, her eyes were covered, and she was brought to a bus
with other 50 or 60 detainees. Many persons, including those
severely injured were piled up in the aisle between the seats,
there were up to four on top of the others with the police officers beating everybody who would complain or ask for help.
Italia was taken to one of the seats. During the five to six hours
transport to jail, she was repeatedly beaten and received death
threats against herself and her family. She was violated by several police officers who inserted their fingers and objects into
her vagina, touched, punched and bit her breasts and kissed her
by force, introducing their tongue in her mouth. Italia also witnessed the sexual aggressions against other women. In jail there
were no proper medical exams, and she was refused adequate
medical assistance. She was released from prison two weeks
later, but had to go through a legal process during the next two
years until she was finally declared innocent. Together with
Nevertheless, being convinced that the adequate and professional documentation of torture and the use of the Istanbul
Protocol is an indispensable factor in the fight against impunity,
36
there is a need to rethink the implementation of the Protocol
in Mexico, and to press the State to recognize and respect the
principle of independence. The international bodies and mechanisms play a crucial role in this process, and we hope that our
experiences as well as the experience accumulated in other
countries can help to find the best proposals of how to implement the Istanbul Protocol and how to sharpen international
recommendations in that sense.
Remarks of Dr. Frances Lovemore*
Background
Z
imbabwe’s independent years have been turbulent and
fraught with power retention struggles by the ruling
party, Zimbabwe African National Union – Patriotic
Front (ZANU PF), who have used intimidation and terror systematically against all forms of opposition.
Zimbabwe inherited an Eastern European and communist
type government structure where power was and is protected
by fear, rule by law, detention and disappearances, torture and
extra-judicial executions, and where investigation and durable
evidence of these activities carries inherent risk to health and
legal professionals and relatives.
During the 31 years ZANU PF has been in power, there has
also been remarkable development in issues of prohibition of
torture and in the role of human rights in the development and
promotion of democracy and economic empowerment.
The rapid development of information technology and the
ability to disseminate information has had an overall positive
impact on accelerating the reform processes of government in
Zimbabwe, but with high humanitarian and human rights costs,
often difficult to document and quantify. The control of information by the ruling party, as seen in the eighties and nineties was
no longer possible with the introduction of satellite media and
the internet, allowing alternate perspectives on news and easier
access to rapid information flow. However, access to information, broadcast of the truth and holding information about abuse
of power remains dangerous in Zimbabwe and many people
have encountered the wrath of both the law and the state terror
mechanisms as a consequence of their legitimate activities.
With the development of more visible resistance to the ruling
party and opposition political parties with substantial support,
the state security mechanisms have been used extensively to
retain power.
The past 11 years in Zimbabwe have required the development of robust systems of capture, protection and analysis of
forensic evidence of human rights abuses. This presentation will
explore the development of these processes, and seek to identify
key lessons learned and promote discussion on the promotion of
systematic training and support for all health and legal professionals. It will also explore the increasing acceptance of statistical evidence for systematic abuse and crimes against humanity.
* Dr. Frances Lovemore is the Medical Director of Counselling
Services Unit, an organization providing medical, psychological, and
rehabilitative services to victims of organised violence and torture
throughout Zimbabwe through a network of medical services providers. CSU also prepares medical and legal affidavits for all victims,
and submits narratives and affidavits to relevant domestic, regional
and international mechanisms as requested by the victims. CSU has
collaborative activities with local and regional legal organisations
around both individual cases and matters of systematic torture, and
appropriate litigation and investigative mechanisms to eliminate
impunity. Dr. Lovemore has worked with victims of organised violence and torture for 12 years.
development of forensic evidence analysis
in ZimBaBwe
The provision of medical and legal services for victims has
formed the cornerstone of collection of evidence of human
rights abuses. Without access to dedicated services for treatment
and legal redress for victims, much of the targeted violence and
intimidation would have remained as hearsay and estimation.
The provision of these services has not been without challenge, and has required ingenuity, flexibility and courage on
37
the part of the service providers, who frequently are threatened,
and are often reluctant to provide the forensic documentation
required for legal services.
core part of the work. The concurrent international acceptance
of statistical analysis and proof of systematisation of human
rights abuses by state and state security mechanisms has added
confidence to the pursuit of this track of the work.
Training and awareness has over the years, improved the
quality of evidence and assisted to create confidence that the
evidence decreases impunity and assists in the prevention of
further violence. The development of the use of the Istanbul
Protocol5 by health professionals working with victims of torture has created standards of treatment and documentation that
are more easily quantified and qualified, laying the ground for
development of relational data capture and analysis. This in turn
has been an effective tool to analyse the direct causes and nature
of the violence.
Political climate contributes significantly to activities that
can be undertaken, and many of the bigger impunity issues
within the country can only be effectively addressed once the
legal framework for recognition of systematic targeted abuse
by the current regime is created and enacted, and then used
appropriately.
ConClusion
The development of international instruments and conventions has greatly assisted the country to highlight the plight of
human rights within the country, and the role of the state, and
has created increasing difficulty for the secure-crats to easily
continue with their agenda of oppression and violence to remain
in power.
The development and protection of trust for the clients
accessing services has also formed a critical pillar of the ability
to accurately record the evidence of state abuse, and part of this
trust had to be restored after inappropriate use of data for advocacy. The development of a secure and appropriately targeted
advocacy strategy is a critical part of the long-term strategy
around impunity.
Over the next five years it is possible that the careful continued documentation and utilisation of legal instruments may
start to produce the ultimate result for the country; that is the
elimination of impunity for human rights abuses.
Protection issues around data and data storage, and the development of a secure and stable relational database have formed a
EndnotEs: session two: Concurrent Panels – Cases Related to Political Engagement
1
Rights Watch, Targets of Retribution, Attacks against Medics, Injured
Protesters, and Health Facilities (Jul. 2011).
5 U.N. Office of the High Comm’r for Human Rights, Manual on
the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul
Protocol), 2004, HR/P/PT/8/Rev.1, available at: http://www.unhcr.
org/refworld/docid/4638aca62.html.
Human Rights Watch, Torture Redux: The Revival of Physical
Coercion during Interrogations in Bahrain (2010).
2 Report of the Bahrain Independent Commission of Inquiry, 405
(Nov. 3, 2011).
3 Id. at 406.
4 Physicians for Human Rights, Do No Harm: A Call for Bahrain to
End Systematic Attacks on Doctors and Patients (Apr. 2011); Human
38
EXAMPLES IN THE INTER-AMERICAN SYSTEM
Remarks of Rafael Garrido Álvarez*
IntroductIon
produced, to further deal with problems caused by the violations
and assist with the legal process moving forward. Also, we do
psychological assistance, in which we first try to identify the
emotional effects. Then, we proceed to document these problems and proceed to therapy where needed. This is the same
as with medical assistance. Psychological assistance means to
begin to identify the particular problems the victim presents,
and then as we proceed to assist the person, we are also documenting the psychological effects. One of these methods that
we use in dealing with the psychological problems is, in the first
case, to detect the suffering. We determine the emotional and
psychological effects, so that we can assist them with therapy
as needed.
I
want to excuse myself for not giving this presentation in
English, but I hope that you will get the dimension of the
problem that I am going to present to you. My presentation
is going to be divided into two parts: the first part will explain
how we conduct camp work, and the second will be on specific
cases that we deal with.
the Work of Red de Apoyo poR lA JusticiA y lA pAz
First, I want to explain that our organization is Red de
Apoyo por la Justicia y la Paz (Support Network for Justice
and Peace), and we are an NGO based in Venezuela. We work
cases with victims of police and military abuse, cases related to
violations of the right to life and personal security, and also to
the integrity of the person. We deal with cases in which human
rights are being violated. We label our model an “integral
model” because suffering for human rights violations extend to
the totality of the cultural or political abuses. It is suffering in
general. This integral approach allows us to deal with victims
of human rights violations on all levels of their personal, family and social life.
We do have legal assistance, so that we may seek justice and
a remedy for the victims. In terms of the legal problems that we
face, we work on the level of investigation and documentation—
filing reports—as well as litigation before the courts. From this
legal perspective, we can clearly see the inter-relationship of
these various levels; that is, in litigating the case, we are also
addressing the need of the victim to heal.
The other part of our model includes social assistance and
pedagogical assistance. One of the things that we identify in
instances of violations is that in consequence, people can lose
jobs and can be isolated from the community or displaced by
way of the community. On this level of social assistance, the
other component is to educate people and to raise awareness of
human rights and social and political rights.
In dealing with cases that we treat, we have specialized
teams of people that have a multi- and inter-disciplinary background. In this work, we go to assist victims, and primarily we
start with medical assistance in case it is needed. In cases in
which victims suffer damages to their person, or their rights
have been violated, we can better deal with it. When we are providing medical attention, we primarily try to alleviate the trauma
or physical damages that arise.
Even though it looks like I am presenting different points
for different stages, we emphasize the need to understand this
process as interrelated, so that a lawyer who is interviewing a victim can immediately identify whether this person is
presenting psychological or other type of needs. Once I have
explained how we conceive this process as an interrelated
process, I am going to advance and present the case of José
Francisco Matheus.
In this case, as we begin with medical assistance, we also are
trying to document the ways in which these violations have been
* Rafael Garrido Álvarez (Venezuela) obtained his law degree (with
honors) from the University of Margarita in 2006. He participated
in the Inter-American Human Rights Moot Court Competition at
American University in 2005, coached the team in 2006, and was
the academic coordinator of the University of Margarita’s Human
Rights Center between 2005 and 2008. He earned a scholarship
from the Andean Human Rights Program of the Universidad Andina
Simón Bolívar for the Master of Human Rights and Democracy in
Latin America, and obtained his degree in 2009. He also worked as
a teacher in the Andrés Bello Catholic University, teaching international human rights systems in the Advanced Studies in Human Rights
Program. He currently works as a lawyer in the NGO Red de Apoyo
por la Justicia y la Paz, providing legal support to victims of human
rights violations.
the case of José francIsco Matheus
José Francisco Matheus suffered torture in the year 2000. He
was arrested at home in his house in Maracaibo, Venezuela and
was taken away in front of family members by the police without any legal order or arrest warrant. As the policemen didn’t
have handcuffs, they used rope to tie him up for transport in a
most undignified manner. The excuse given by the authorities in
this case was that he was being investigated in connection with
a kidnapping case. Then he was transported to several points
along the route in the city of Maracaibo, and as this continued
39
Felicitas Treue, and is in charge of doing the psychological profile of Matheus and other victims.
he realized he was being taken outside of the city. The interrogation process was not carried out in a police structure or official
installation, but in a rural place far away from the city. Among
the other things he suffered, he was burned several times with
cigarette butts and hanged by the arms. He was also hooded
several times, which prevented his breathing, and he received
electric shocks to parts of his body including his testicles, and
hooded policemen discharged firearms near his head in order
to intimidate him. Constantly throughout this process he was
being asked, “Where is ‘la china’ [the Chinese woman]?” which
apparently was someone sought by the authorities.
In 2011, a judge in Venezuela dismissed the case, alleging
that the statute of limitations had expired and those responsible
could not be tried. The prosecutor appealed the case, and is trying to determine if the case is being dismissed without prejudice
or whether it could be reopened. Whatever the outcome, the
Venezuelan constitution sets no time limit for violations of
human rights, so the case can still be prosecuted. One of the
problems that we have had in this case and many others that
occur in Venezuela is that lack of legislation that typifies torture.
We are continuing to advocate in Venezuela for the passing of
a law against torture, so we can have in Venezuela a system
through which crimes like torture can be dealt with. And to finish with my last point, I want to talk about the benefits of our
participation and collaboration with the FEAT project and how
we are implementing in Venezuela.
After several days of this torture, he was transported to a
detention center called El Marite, where he would spend the
next eleven days. As he was detained in that place, he realized
he was totally incapacitated due to the damage applied to his
arms; he was unable to wash himself and totally incapable of
taking care of himself. The detention place itself could constitute a violation of human rights; it was a humid, cold, dark
place and was not conducive to any of the treatment that he
needed. Shortly after his liberation, Matheus did an exposé of
what happened to him and came to the Red de Apoyo por la
Justicia y la Paz (Support Network for Justice and Peace). The
office of the District Attorney took two years to investigate the
case, and ultimately identified those responsible and presented
an accusation. Later on, we can speak of impunity. It was not
until preliminary hearing in the year 2004 that the magistrate
determined that the police officials responsible for this should be
tried. Up until today, the police officials who committed these
crimes have not been tried. During all this time, not only the
victim, but also the support network, have been seeking justice
without any response. In 2009, Matheus and the Red de Apoyo
por la Justicia y la Paz (Support Network for Justice and Peace)
presented a recourse demanding that the responsible officials be
brought to trial. Though this habeas corpus was granted, these
officials have not been brought to trial.
Next to the training we received from the International
Rehabilitation Council for Torture Victims (IRCT), we have
better conditions to deal with these cases in Venezuela. We
now understand that the best way of reinforcing our practices is
through the use of the Istanbul Protocol.1 And we also saw in
this process the beneficial effects that this had in the victims, as
other experts from other parts were taking interest in the cases.
Jose Matthews and Manuel Mijares took renewed interest and
hope that different people in other parts of the world were taking interest in the cases. They felt deeply that after their relation,
once they felt all the avenues had been exhausted, there were
renewed possibilities for the cases, renewed hope.
Because of the status of the cases in Venezuela, we can probably not use the report that was produced based on the victims,
but we will use it at the IACHR. As soon as the Inter-American
Commission for Human Rights determines the admissibility of
the case we would immediately present the case and the report
of José Francisco Matheus. We are very hopeful that once we
present this case, we can set the precedent that we can also
show at the Inter-American level that these cases can be brought
to justice. I want to close with the other case, that of Manuel
Mijares. In that case, the responsible officials were exonerated.
And we were unable to obtain any kind of justice for the victim.
That case was also presented to the Inter-American Commission
for Human Rights, but today we have not had any acknowledgement of receipt. These are two cases that show clearly the
presence of impunity: one the lack of process, and the other,
absolution of those responsible. Thank you very much.
Six months later, the victim and the support network decided
to file a petition to the Inter-American Commission for Human
Rights (IACHR) claiming that there had been unwarranted
delay in rendering a final judgment, preventing the exhaustion
of remedies. Since 2009, when the report was presented to InterAmerican Commission for Human Rights, there has not been
any communications regarding whether the case is admissible.
We simultaneously maintain this case before the Venezuelan
courts, claiming loss of justice. Last year, a group of forensic
experts, part of a group called FEAT, were in Venezuela doing
a report on Matheus. One of those experts is with us today,
40
Remarks of Silvia Serrano Guzmán*
IntroductIon
T
hank you. I am going to make my presentation in two
parts. First, I am going to present the legal framework
in which forensic evidence is considered by the InterAmerican Commission on Human Rights. Second, some important developments and difficulties resulting from recent cases
with emphasis on the Cabrera and Montiel case against Mexico.
Regarding analytical considerations in cases of torture, I want
to mention the main objectives of evidence-gathering. These
objectives are: (1) mainly to prove that torture actually occurred
and (2) to define proper and adequate reparations in the specific
case. I will focus this presentation on the first point since given
the difficulties and challenges we face in cases with forensic
expert evidence, but maybe in discussion we can open it up to
the second point as well.
LegaL Framework
The first legal aspect I want to mention is, standards of
proof that the Court has defined in cases of torture. And there
are two different standards I consider relevant in this context.
First, when the Commission and the Court find evidence of a
specific pattern of violation in a specific country over a specific
timeframe by specific authorities, the analysis of medical or
forensic evidence may be complementary. For example, in the
Peruvian cases, the Commission relies significantly on the Truth
Commission reports, which state that the Direction Against
Terrorism [Peruvian National Police] used torture consistently
over a period. In those cases, specific medical evidence of
torture might be relevant, but not strictly necessary. In these
cases, if a person’s declaration is in line with the findings of
the Commission, and there is other circumstantial evidence, it
may be sufficient for the Commission to conclude that there
was torture.
for that harm. It is the burden of the State to present such
evidence to refute the presumption of torture. Consequently, in
these cases the specific medical, physical evidence may be complimentary to this analysis. Aside from these two types of cases,
I want to mention some of the important developments and challenges from the lawyer’s perspective dealing with these cases.
cases In the Inter-amerIcan system
Developments regarding the Istanbul Protocol2 stem from
the case of Gutierrez-Soler v. Colombia.3 The first time the
Court mentioned the Istanbul Protocol was regarding reparations in the specific case. In this case, the Court said investigations that might be conducted by the State after the judgment
should take into account the Istanbul Protocol. Also, in the
cases of Fernandez Ortega v. Mexico4 and Rosendo Cantú v.
Mexico5 (these are the cases of rape by the Army as a form of
torture), the Court went further with the Istanbul Protocol and
said that all protocols of investigation, not just in the specific
case, should consider the Protocol. And then in the most recent
case on torture, Cabrera and Montiel6 (which is very complex
as I will mention later), the Istanbul Protocol becomes very
much relevant and goes further because the Court considers the
Protocol when analyzing the merits, not just during the reparations phase. For example, in that case, there were objections
on the part of the State regarding the declaration of the victim.
The State emphasized in specific inconsistencies regarding
very minor inconsistencies—date, time, color of shirts—and
the Court used the Istanbul Protocol to establish the validity of
those declarations notwithstanding these minor inconsistencies.
This is very important for the Inter-American system. Then, in
There is another standard of proof regarding persons under
state custody. The Commission and the Court have consistently
held that the State must present a satisfactory explanation for
any harm to a person in state custody. That satisfactory explanation should be the result of an independent and serious investigation. If no explanation is given, the State can be held responsible
* Silvia Serrano Guzmán is a Colombian attorney who graduated from
the Universidad Autónoma de Bucaramanga and is an LL.M. candidate
at Georgetown University. She has worked at the IACHR since 2006
in various posts as a human rights specialist, and since 2009 she has
worked on the Litigation Group, which provides support in litigating
cases before the Inter-American Court of Human Rights. She has a
number of human rights publications to her name and has participated
in various training seminars and courses for public officials and members of NGOs on the Inter-American Human Rights System.
41
for Human Rights. The reports said the victims were in good
physical conditions when they were evaluated; no harm and no
injuries, and the others represented minor injuries or injuries
related to their age or other health aspects. On the other hand,
the Physicians for Human Rights report was performed one
year after the facts. The Court made a distinction between the
two reports, and that is important. The Court said the fourteen
reports are not relevant to determine whether there was torture
in this case because their objective was not to establish that there
was torture, only to establish the health of the victim. The Court
decided the relevant report was the Physicians for Human Rights
report, which was performed in accordance with the Istanbul
Protocol. At the end of the judgment, despite these distinctions
that the Court made, the Court did not find there was enough
evidence to issue a determination of torture in this case. The
justification was the lack of investigation of this important evidence. There is an important debate on this judgment, however,
because the Court did find cruel and inhumane treatment. Some
might consider it difficult to understand that the Court could
find proof of cruel and inhumane treatment but not torture, since
the report was aimed not to find a different degree of violation,
but to demonstrate simply that the violations had occurred. The
Cabrera and Montiel case is relevant if you are interested in the
standards of proof in cases of torture and the debates on what
are the challenges for forensic evidence to convince a judge that
torture occurred in a specific case.
this case, we had an expert report from Physicians for Human
Rights. The State likewise objected to the validity of that report
based on questions of impartiality, and to the passage of time
between the facts and the time when the report was made. The
Court again applied the Istanbul Protocol to say to the State that
the report was valid and complied with the minimum requirements of the Protocol.
Those are important general developments. Now, I want to
mention some difficulties that we usually find from the perspective of the lawyers when we receive different medical or psychological documents. There are different types of documents
we usually receive. First, official or non-official medical reports
describing injuries on the body of the victims. These usually do
not have the specific aim to identify torture, and therefore there
is no consideration of these reports regarding the consistency or
inconsistency of the allegations regarding torture. In the cases in
which we have only this type of evidence, we are faced with the
difficulty of interpreting medical evidence sometimes without
the expertise to do so. The second type of documents we receive,
usually from the state, are official reports detailing the absence
of injuries on the body of the victim. In some cases these reports
have been named as ‘personal integrity reports’, usually to say
that this person was presented before a doctor and has no injuries. The third type of document that we receive, and this is in
the minority of cases, is an independent report from organizations, such as Physicians for Human Rights or IRCT, as in the
Cabrera case. These reports usually include a complete analysis
of the findings on the victim and its correlation with his or her
specific allegations of torture. Of course, this is useful forensic
evidence for factual determinations and conclusions. However,
it is not very common to find them in the documents we receive.
The other types of reports that the Commission receives are
psychological reports. I would say that in an important number
of cases we receive psychological reports. Some are general
and state only a diagnosis with no reference to the allegations
of torture. Others are more specific and describe the acts of
torture alleged by the victim, and make a statement on possible
consistency or cause effect relation between the acts of torture
and the psychological impact. A fewer number of reports make
a stronger statement on the number of correlations between
psychological impact and the alleged acts of torture. For us, psychological reports have been mostly used in the aspect of determining the appropriate reparations in the specific case. In our
view, there is still a very important challenge in order to explore
the weight of psychological, the psychological aspect of forensic
evidence in the first objective I mentioned that is the proof that
torture occurred. However, I want to mention with regard to the
psychological reports that in the more recent judgments—in the
cases of Cantu v. Mexico and Ortega v. Mexico, the rape cases
by the army in Mexico—the Court relied on psychological
evidence to establish with other elements of proof that torture
occurred in these cases. The system might be getting closer to
including psychological reports to prove that torture occurred
and not only as an element to determine reparations, but I think
that there are many challenges to address. Just one minute to
mention that for the victim, it is almost a miracle that someone
is listening to their story for the first time. It is very relevant for
us in our experience, and to some degree frustrating that it is
related to the judicial constraints that we have from the lawyer’s
perspective. In some cases, when we have this process before
the Inter American system—first before the Commission, then
An important challenge arises with these independent reports.
These reports are usually drafted years after the person is
released or years after the person was tortured. For example, in
the Cabrera and Montiel case, the Physicians for Human Rights
expert had to tell the authorities that he was a public defender,
rather than a doctor, just to get into the jail and perform the
evaluation. It is difficult to find independent reports very close
from the moment of the facts. We understand this difficulty from
the medical or psychological point of view, even though the
effects are often permanent and ongoing. From the point of view
of a judge or commissioner, when they receive this evidence,
they may consider that it was performed four or five years after
the facts and that it is therefore not weighty enough to declare
that torture occurred. It might be useful that in these reports,
the specific passage of time issue is addressed directly by the
forensic expert. They mention how the evidence is still useful to
address consistency or inconsistency with allegations of torture
despite the passage of time, and how the extent of the injuries to
the victim has ongoing effects. This could be addressed directly
in the reports and could improve its relevance in the analysis.
This is what might have happened in the Cabrera and
Montiel case. The Court had about fourteen reports on one side,
and on the other side the independent report from Physicians
42
before the Inter American Court—the relation with the victim
is only at the end of the process. In many cases, we experience
that the victim—for the first time, one day before the hearing—
says everything, for example, that person was not only detained
but tortured or raped. This is an experience that we have had in
some cases.
maybe the Commission will receive the expertise at the merits
stage when the Commission can analyze the specific facts,
but in many cases it’s only before the Court that we have this
expertise available. We have procedural obstacles in this matter
because the Court considers the facts of the case as defined by
the Commission. Then we will get forensic evidence only before
the Court. It’s an important challenge to balance the nature of
the procedure before the Commission and the right of the states
to defend them selves. By this moment, I can answer questions.
A final comment is related to the procedural moment when
we receive the expertise, in the case that Rafael was mentioning,
EndnotEs: session two: Concurrent Panels – Cases Related to Political Engagement
1
4
U.N. Office of the High Comm’r for Human Rights, Manual on
the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul
Protocol), 2004, HR/P/PT/8/Rev.1, available at: http://www.unhcr.
org/refworld/docid/4638aca62.html.
2 Id.
3 Gutiérrez-Soler v. Colombia, Judgment of September 12, 2005,
Inter-Am. Ct. H.R. (2005).
Fernandez Ortega v. Mexico, Judgment of August 30, 2010,
Inter-Am. Ct. H.R. (2010).
5 Rosendo Cantú, et al. v. Mexico, Judgment of August 31, 2010,
Inter-Am. Ct. H.R. (2010).
6 Cabrera García and Montiel Flores v. Mexico, Judgment of
November 26, 2010, Inter-Am. Ct. H.R. (2010).
43
ASYLUM PROCEEDINGS
Remarks of Dr. Mechthild Wenk-Ansohn*
Forms oF Protection For reFugees in euroPe
get a safe stay after the first interview and asylum procedure.
Immigration officials often do not identify victims of torture.
Even if they are trained, they are not able to identify torture
victims or traumatized war victims in many cases. There is no
guaranteed early access to specially trained (Istanbul Protocol)
health professionals who are independent and would be capable
to examine the persons. Victims of torture often have a very
difficult time to present details of their traumatic history and
thus they are at risk not to obtain the title of protection that
they deserve. But for traumatized refugees, it is fundamental
to their recovery to have a safe stay, and threat of deportation
poses them to a high risk of re-traumatization. This is why in
the Berlin Center for the Treatment of Torture Victims we do a
lot of reports for asylum claims. Also, we do some reports for
claims for compensation or for penal claims.
T
here are different forms of protection for refugees in
Europe, which have been laid down in the EU Council
Directive (2005/85/EC),1 which is presently reviewed.
The forms of protection are mainly based on the Geneva
Refugee Convention, which means that in order to get a title
of protection a refugee has to make evident that he or she has
a well-founded fear of future persecution. Medical reports
documenting torture can support alleged former persecution and
thus underlay a risk of future persecution. In Germany, there
are some additional possibilities for titles of protection such
Political Asylum (§ 16 A GG) and various obstacles for deportation. One of those is that deportation would pose the refugee to a
concrete and serious threat to health and life, or that the person
is in need of treatment that is not possible or available in the
home country (§ 60.7 Aufenth.G.). The question to be answered
by medical doctors and psychotherapists in this case is of what
concrete nature and how high might be the risk to health in the
course and after deportation.
Physical scars after torture are not frequent and can be
unspecific, also psychological torture is used more and more
often. When we see refugees in our center, we see them not
right after they come out of jail, so we rarely see fresh marks
of physical violence like hematoma. We see the torture victims
at least two months after the inflicted violence, after their flight
and arrival in exile. Some come to treatment even ten years after
release from jail—and at the intake they suffer from chronic
posttraumatic syndromes and sometimes still don’t have a safe
stay. So often we do not see physical marks of torture, but on
the other hand we see very often psychological trauma reactive
syndromes, as they are frequent after torture or war-violence.
Depending on where the assessed refugees come from, the prevalence of PTSD described in studies varies from about 30% to
70%—and the trauma reactive syndromes are often long-lasting,
if not life-long. So the psychological and psychiatric evidence
can be of central importance for the documentation of torture
and its use in legal proceedings.
Figures and Facts
About 40% of refugees suffer from posttraumatic stress disorder (PTSD) when they come to Germany, but of course not
all victims of torture suffer from PTSD.2 They might have other
forms of psychological problems, also PTSD might occur with
delayed onset. There are also victims of torture who do not have
psychological symptoms at a level that justifies a diagnosis.
On the other hand, the statistics of the federal migration
office (BAMF) show that only about 21% of the refugees
* Dr. Mechthild Wenk-Ansohn is a medical doctor and psychotherapist,
special traumatherapy (DeGPT/ESTSS). Since 1994, a staff member at the Berlin Center for the Treatment of Torture Victims (bzfo/
Überleben). Since 2006, head of the outpatient sector bzfo. Currently
council member of IRCT. Main focus of work: diagnostics, medical
reports, psychosomatically oriented treatment and psychotherapy with
clients from various cultures who have experienced torture or violence
in wars/civil wars - especially treatment of women who have suffered
gender-specific violence. Member of the expert-group SBPM that
established standards for Germany for medical expert opinions on psychotrauma in asylum cases (including the psychological part of Istanbul
Protocol), certified medical expert in this field at the Berlin Medical
Chamber of Doctors, supervisor. Experience in training also in the
international field, lecturer at national and international conferences
and dialogues with politicians, German immigration-authorities and
judges, publications on diagnostics and treatment of trauma-reactive
disorders in intercultural settings.
Psychological/Psychiatric/medical assessment
and rePorts: methodology and central Questions
The central questions for medical, psychological, or psychiatric assessment are: is the person actually presenting any
psychological or physical symptom or damage, and if yes, what
type? Do the psychological or physical findings give any, or a
strong indication, that the person has experienced torture/persecution? Or are the findings rather related to other causalities?
Is there an indication for treatment, and if yes, what kind? And
the prognosis: what are the risks of deportation from a medical
point of view?
Immigration officers and judges often pose the question of
“credibility.” It is their job to examine the statements of refugees
44
symptomatologies are often chronic and complex. The longer
the traumatic process lasts, the higher is the rate of comorbid
disorders: depressive disorders, somatoform disorders, anxiety
disorders, substance abuse, dissociative disorders, and personality disorders. We don’t only have to see the clinical features, but
also the level of impairment of social functioning, and working
in rehabilitation centers we also observe the impact on the families and on the next generation.
critically, but sometimes the eye of doubt seems to lead to a
general mistrust. Also, our reports are often seen through the
eyes of doubt. We have frequently heard: “the alleged traumatic
incidence did not happen to this person, so your diagnosis of
posttraumatic disorder is wrong,” “you are doing sweetheart
reports, so we don’t have to take them into account.”
So we had to explain in discussion forums and seminars
with immigration officials and judges our methodology and
scientific background and what kind of evidence we can
provide. We had to explain our possibilities and limitations.
Important is to make clear that we are doing a clinical psychological report, and that it should not be confounded with
the criteria-based psychological analysis of statements of
witnesses for the prosecution. This methodology analyses witness-statements concerning the probability that the statement
is reality-based, it is a criterion-based form of text analysis
that has been developed for the necessities of criminal courts.3
Clinical examinations take place in a different setting and with
a different focus and methodology, they are not merely a textanalyses but an extensive clinical examination. But also clinicians evaluate the plausibility of the anamnestic statements
of the client and their clinical findings critically. One of the
goals of a psychological and medical evaluation is to assess
the degree of consistency between an individual’s account of
torture and the clinical findings observed during the course of
the evaluation.4 Based on their clinical findings medical doctors or psychologists can give an indication that the person has
suffered a traumatic incident or sequency and thus a clinical
report can serve as evidence for a history of persecution, torture or other forms of violence. We were not there, we haven’t
seen it, but we can give an indication.
clinical examinaTion anD sTrucTure of rePorT
When we are conducting a clinical examination in order
to do a report, we will first study the pre-existing information
and documentation. We begin the personal interview (with a
specially trained interpreter), which in general will take various
sessions by asking about the actual psychological and somatic
complaints. Then we will do a profound biographic anamnesis
and, when there is established a trustful enough relation, we ask
the person to tell us about the trauma history as detailed as possible, depending on the clinical status of the person. To conduct
a trauma anamnesis it is important to have clinical experience
and to be able to make stabilizing therapeutic interventions if
needed. We ask about reactions that occurred during the traumatic events in question, and the course of symptoms since the
traumatic events. We will observe the actual mental status and
the behavior and nonverbal communication in the course of the
anamnestic interview. We eventually conduct psychological test
diagnostics, which can underline what we see clinically–but the
clinical examination is the one that is most important. In the
report, we will discuss and evaluate the results, give the interpretation of the findings, discuss the diagnosis and differential
diagnosis and discuss the possible relationship and consistency
between reported events and reported symptoms and our clinical
findings. At the end, we will give a prognosis and recommendations for treatment and answer to the specific questions the judge
may have asked.
In Germany, we have adapted the psychological part of the
Istanbul Protocol to the requirements and standards in Germany.5
A working group has developed a modular training program
for reports for asylum procedures in an inter-cultural setting
—that means also with interpreters—and this was adopted by
the German Chamber of Doctors and the German Chamber of
Psychologists. We have had more than ten years of dialogue
with immigration officials and judges, a lot of trainings, and still
we are always again discussing, still reports sometimes receive
no consideration even though there are higher court rulings since
2007 that a good enough report should at least decline further
investigation. We made some progress but it is not easy.
Central to the psychological assessment are the trauma
anamnesis and the clinical features. We have to conduct a very
detailed exploration of the symptoms because there might occur
fabrication or exaggeration of symptoms as there is a lot at
stake. The refugee wants to gain a safe stay and might have been
briefed before what to say. We will be observing closely the
behavior, the changing of the psychological rapport when focusing on the traumatic events. Do we see PTSD symptoms during
the exploration? We note shame reactions, patterns of avoidance, defense mechanism, affective connotations, the changing
of arousal, the changing of concentration and attention. We analyze the pattern of relationship within the assessment situation,
the transference and counter-transference phenomena. We have
to observe very closely if there are dissociative reactions, even
flashbacks, and we have to stop such reactions with therapeutic
interventions. We have to care for emotional overload when the
examined person is eventually breaking patterns of avoidance.
On one hand, we want to make a thorough assessment; on the
other hand, we have to keep the risk of re-traumatization through
our assessment as low as possible.
TraumareacTive Psychological DisorDers
The trauma reactive psychological disorders are diverse.
Frequently, victims of torture and war violence including rape
present symptoms of PTSD. After a potentially traumatic event
with reactions of extreme fear and horror and helplessness, the
person will present re-experiencing symptoms, avoidance symptoms, and hyper-arousal symptoms. The victims we see in our
center have lived through man-made disasters and often repeated
traumatic incidences, also after the traumatic events they have
been living under difficult material and social conditions. Their
45
Case examples
photos to show the pain-reaction when lifting the shoulders. For the
report then, its like a mosaic, you are putting together and evaluating
the reported history and the physical findings and the psychological
findings, the individual details the person gave. As diagnoses it was
clear that the young Iranian was suffering from PTSD. At the intake,
just two to three months after the traumatic experience, he had still
shown a picture of acute PTSD with changing states of numbing and
hyperarrousal and tendency to flash-backs, heavy sleeping problems
and nightmares. Then the PTSD changed to the chronical form, but
in the frame of the therapy the symptomatology gradually got better.
I would like to share with you a case example of a young
man from Iran, a former patient of mine for whom I made a
report for his asylum request. At the intake, two years ago, he
was 26 years old. He had been working before in IT. When he
was 17, he had been shortly arrested for the first time because
he had consumed alcohol in a park. In June 2009, in the election
riots, he took part in the demonstrations. He was arrested by
civil police and Pasteran and then detained three weeks in a jail
of the state securities in Tehran.
In the case of this young man in the report we could show the
consistency between the account of torture and the psychological and medical findings. The report supported his statements at
the asylum hearing and he was granted asylum.
What he reported about forms of torture: beatings, falanga, suspensions by the arms (giving details of so called Palestinian hanging). He reported that once occurred a luxation of his left shoulder
while he was torn up for hanging and that he must have been unconscious for a short time. That he woke up while his shoulder was
repositioned by one of the guards, and he added, “my God, they
must practice this very often.” Also he mentioned suspension by
the feet, being blind-folded, sleep deprivation and forced position
tied to a chair. Only in the third anamnestic session he mentioned,
under visible shame reactions, also sexualized torture, that he was
beaten in the anal region while hanging naked by the feet and that
his testicles were squeezed. In a later (then therapeutic) session he
was able to verbalize that he had been penetrated with a stick.
I would like to share a second case with you. The case of a
Kurdish female from Turkey. This was a report requested from
court. Besides the diagnosis and prognosis the central question
in this case was: are there hints of limited ability to report torture
experiences due to the symptomotology?
The woman originated from the east of Turkey, but she had
already been living in Germany for ten years. In her first asylum
hearing ten years ago, she had not told anything. She just had
said: “everything that my husband says concerns also me.” One
of the delicate details concerning the limitations to report was
that her husband was present at this interview with the German
officials–also she had not made an own asylum request (only
together with her husband), there had been no lawyer involved.
They were denied asylum and then went to court – but the same
behavior of her part went on, and they were denied again. Over
all the years in Germany she was of bad health condition and
in psychiatric treatment for depression. And she had gone to
many doctors for somatic complaints, like lower belly pain,
headaches, back pain and so on. But there was never conducted
a deeper anamnesis, not only because the psychiatrists did not
look for trauma, but also because a friend of the family or her
daughter had been translating; an independent interpreter never
had been organized. Finally, when the family was threatened
to be deported she made a suicidal attempt and was treated for
weeks in a psychiatric hospital. A new request for obstacles
against deportation was made and finally the case came into the
hands of a judge who said, “OK, we have to review this case,”
and he referred her to me for examination and an expert-opinion.
When he came to us, he reported severe sleeping problems
and nightmares in which he would be seeing fragments of scenes
from the torture, especially the hanging and the sexual torture.
Also repeatedly he had intrusion of memory pictures of the
demonstration where a friend was shot while he could run away.
He showed feelings of guilt for having tried to save himself. He
reported to wake up terrified out of such dreams, with strong
heart palpitations. Also he reported flashbacks on his way to
the treatment center. For example, when an ambulance passed
by with a siren this made him recall a scene of one of the demonstrations. So in the moment of hearing the siren now here in
Berlin he had lost contact to the current reality, had started to
scream–as if the Demonstration would happen at the moment.
He reported that the first weeks after his release from jail,
he had been feeling sort of numb. Then it started to change with
feeling restless and agitation, he started to have nightmares and
panic attacks and suicidal thoughts. When we see saw him in
our center right after his arrival to Germany in some sessions he
still appeared numb, acting and moving slow, not reacting much
emotionally, not talking much. In other sessions, he was very
nervous and shaky, started to cry. He showed a lot of avoiding
behavior when we focused on his traumatic history, especially
when touching the experience of sexualized violence.
In the interview in our center, with translation by a female
Kurdish interpreter, the 30 year old woman reported that her husband had been helping the Kurdish guerillas, like many Kurdish
people did it in the east of Turkey. At that time, in the late 80s
and early 90s, there were a lot of raids in the villages. Step by
step, after having gained trust while talking about her childhood
and her kids and being informed that the report would be handled
confidential by the judge, she began to disclose her traumatic
experiences. She had been taken five times to several local police
and military stations around her village, and had been interrogated
about the activities of her husband. At the last arrest, shortly
During the physical examination he showed signs of heavy
shoulder pain when lifting his arms. He mentioned that in the beginning, the first days after the torture, he had not been able to lift them
at all. The left side shoulder, which he had reported to have been
luxated, he could still lift less then the right side when arriving in
Berlin. I was not able to make an ultrasound at that time but I took
46
before they fled to Germany, she had been raped by two of the
officers. With the trauma-anamnesis we had to really go slow,
at the whole we had six hours of examination. Slowly she was
opening herself more and more, talking about more details also
of her symptoms like sexual problems and flashbacks during the
intercourse. She mentioned concrete contents of her nightmares,
and more details about the arrests and torture, she could verbalize that she was raped. She could describe how the two officers
came into the room, and that then there had been a like a break of
memory. The first thing she could remember thereafter was how
she woke up in the cell and felt that she had been raped. She had
difficulties to remember also details of the period after the rape,
the hours after she was released. She didn’t know some details of
her way home. She also told us under tears that she made her first
suicide attempt the day after the rape and release from the police
station: “I was going down to the river. And then suddenly it came
into my mind that, if I kill myself, my husband will know that I
was raped. So I went back to the house.”
of persecution. During the sessions she told us for example: “if
my husband knows what happened to me, I couldn’t live that. I
suppose that he would leave me.” Also she mentioned that she
was very afraid to go back to Turkey and to her village, because
may be persons in the village would know what happened to her,
that she would rather die. So in the report we described the risks
to her psychological health in case of deportation and discussed
various aspects of limitations to her ability to report about her
torture experience in the former asylum interviews. The judge
granted an obstacle to deportation for health and humanitarian
reasons. The symptoms of traumatization themselves, like lack
of concentration, avoidance, shame, dissociative reactions and
gaps of memory may lead to a fragmented, incoherent, and contradictory description of the traumatic events.
As a medical/psychological expert, the assessing professional finds himself/herself in-between two different worlds:
the world of the legal authority and the world of the client. To
be able to assess a traumatic history and the psychological or
somatic trauma sequalae, we need time, respect, inter-cultural
sensitivity, knowledge about psychotraumatology and transparency of the procedure for the victim. We have to build a trustful
enough relationship to the client to be able to overcome individual, cultural, and communication problems. We need to have the
ability and willingness of empathetic listening–combined with
keeping boundaries. To write a report as an independent expert,
we have to maintain the position of impartiality. We want to be
as objective as possible, and we have to write our reports with
transparency and traceability when answering the questions of
the judge as critically as possible. Thank you for your attention.
In the report we documented her history, the clinical findings
and her diagnosis. She had suffered from complex PTSD all
these years with comorbid depression and somatoform disorders.
The intrusive memories had again increased after the threat of
deportation, the depression anxiety and distress had deteriorated.
She had shown over the years a strong avoidance behavior,
this also in our sessions, and manifested signs of shame. It was
obvious, that because of the traditional concept of honor in her
country, which she has internalized, she had not been able to talk
about her traumatic experience of sexualized torture and that, to
protect herself she had avoided to talk about the whole situation
Remarks of Rodger Haines*
IntroductIon
I
n a sense, the first slide, which subtitles my presentation—credibility assessment and medical evidence—is
something of a misnomer, in that the true message that my
* After being admitted to practice in 1972, Rodger Haines engaged for the
first 11 years in Government litigation and prosecution work. Since 1983,
he has practiced as a barrister specializing in administrative law, immigration law, citizenship law, refugee law, customs law, and extradition law.
He is currently Chairperson of the New Zealand Human Rights Review
Tribunal. When the New Zealand refugee determination system was set up
in 1991 he was one of the original three appointees to the Refugee Status
Appeals Authority and wrote many of its principal decisions. He remained
a member of the Authority until it was disestablished in November 2010. In
the period 1994 to 2010, he was Deputy Chairperson. Since 1993 he has
lectured in Immigration and Refugee law at the Faculty of Law, Auckland
University. In 2000 and again in 2003, he co-taught papers in Comparative
Asylum Law with Professor James C Hathaway at The University of Michigan
Law School, Ann Arbor. In May 1999, he was appointed Queen’s Counsel.
47
But in principle I do not dispute the potentially determinative significance that medical evidence can have in determining
refugee and protection claims.
presentation carries is the issue of credibility and the responsibility of assessment.
The context in which I bring this to you today is that New
Zealand is a party to the Refugee Convention and also to the
Convention Against Torture (CAT) along with the International
Covenant on Civil and Political Rights (ICCPR). New Zealand
has domesticated not only the non-refoulement obligation in
the Refugee Convention, but also that in CAT article 3 and the
ICCPR articles 6 and 7, which address themselves to non-return
to arbitrary deprivation of life or to a risk of torture or cruel,
inhuman or degrading treatment (CIDT).
But there are necessary and substantial reservations. I ask
you to consider whether there are dangers in raising expectations
as to how far medical evidence can actually take the decisionmaker. It is in that context that I will now turn first to a success
story and then to the dangers inherent in holding false expectations as to how torture is to be proved.
SucceSS Story
In New Zealand, we were most fortunate that, in the middle
of 2011 we were visited by Professor Sebnem Korur and Dr.
Thomas Wenzel. They conducted not only training of doctors
and lawyers but also forensic examinations of individuals who
were then going through the refugee and protection process.
The perspective I bring is that of a decision-maker rather
than that of a lawyer, although in the past I have represented
refugee claimants. I take as my starting point the acknowledgement that medical evidence is extremely valuable. Where it is
available it must be grasped firmly with both hands because it
can be critical to the outcome of a case. But medical examinations perform different functions. For example, the examination
of torture victims in the context of rehabilitation has a function
and direction of its own because the focus is on the patient. A
medical examination for the purpose of documenting torture and
holding persons accountable for this acute violation of human
rights may be framed in different terms. Then again, if the purpose of the medical examination is to support a claim for protection from refoulement by an individual who has been tortured
the focus and function of the report is specific.
One of the medical reports Sebnem and Thomas prepared
resulted in the favorable outcome of a case which had initially
been declined at first instance on credibility grounds. The case
succeeded on appeal largely because the new forensic evidence
established the credibility of the claimant. The appellate tribunal
known as the Immigration and Protection Tribunal (IPT) commented upon the report in highly favorable terms as the slides
which follow show.
First, the facts. The case is AB (Mexico) [2011] NZIPT
800025.6 The claimant was from Mexico. One paragraph of the
Tribunal decision describes his evidence as “problematic, disjointed, and at times prima facie inconsistent.” It was characterized by “considerable confusion and perversity.” The decision
talks about the Tribunal being left from time to time in doubt.
One can make the observation that this is the paradigm of the
challenge confronting most decision-makers in most circumstances in most countries.
The German federal system is fortunate to have within its
system persons and medical specialists who produce reports
as carefully and as intellectually robust as the ones that have
been described by Mechthild Wenk-Ansohn. But ordinarily, in
many countries, the decision-maker and the protection claimant
together face real problems for a number of reasons. First of all,
the country of asylum is usually at a distance from the country
of origin. This means that it is very difficult to get evidence of
the kind courts are accustomed to using in the setting of civil
and criminal proceedings. Second, a person who has been subjected to torture is not only physically distant from the country
of origin, but also distant in time from the event. The utility of
the medical examination may be marginal.
The decision goes on to describe at para [59] that the claim
was ultimately accepted by the IPT because it found that the
forensic evaluation was supportive of the core elements of the
claim.
The IPT decision at one point describes the particular
individual as being unable to present in a “clear, logical, and
consistent manner.” This is a revealing comment signaling as
it does that whenever a person goes to an interview, he or she
will be clear, logical, and consistent. Just ask yourself whether
that is a realistic expectation of an individual who is in front of
a decision-maker he or she has never met before and when the
evidence is given through an interpreter.
Third, the country of asylum may be a country where torture
is not practiced, or if it is, it is a rare occurrence, so that decision-makers are unfamiliar with its symptoms and its context;
medical witnesses may not know how go about recognizing or
documenting the sequelae. Above all, as the point was made this
morning, a person subjected to torture does not get a certificate
certifying to the time, place, and thoroughness of the experience.
So someone “fortunate” to still have the physical marks and
scars at the time of the medical examination is in this respect
(ironically) at an advantage. But most often the enduring injuries
experienced by torture victims are the “scars” of the mind and
spirit therefore the more difficult to establish.
Moving on, the decision at the end of paragraph 59 refers to
this individual’s lack of formal education, a point often overlooked by decision-makers. Once, at a time when I believed I
was an experienced refugee decision-maker, I was taken aback
while observing a refugee interview in Egypt. The first question
48
for the decision-maker to reason that there being no medical
report it follows that the claim to have been subjected to torture
or to cruel, inhuman or degrading treatment or punishment is
less than credible. Furthermore, if the report is “just” from a
medical practitioner who is a general practitioner doing his or
her best, but who has no exposure to or expertise in this area,
the report will be regarded dismissively. The decision-maker is
then driven back to making a decision exclusively on his or her
subjective understanding of this person’s predicament, and that
itself has difficulties.
asked of the individual was, “When did you last eat?” I had
never heard this question asked before but for the particular
person being interviewed, the issue was critical. It drove home
to me that we all have quite different preconceptions of what is
relevant in the refugee context and how to go about an interview.
Any medical practitioner will tell you that if you have low blood
sugar levels or hardly any food in you, it will be very difficult to
meet the paradigm of being clear, logical, and consistent.
A further question is whether the individual can adequately
express him or herself, not just to the lawyer or forensic medical
expert, but also ultimately to the decision-maker. The level of
education is significant.
It is not just a phenomenon that I have noted in the New
Zealand context. It is also one that I see appearing in regional
court decisions, even in decisions that are truly landmark and
path-finding. I refer to the Grand Chamber decision of the
European Court of Human Rights in the case of MSS v. Belgium
and Greece (Application No. 30696/09, 21 January 2011)
which found Greece in default of key elements of the European
Convention on Human Rights and in addition Belgium was
found to be complicit in sending people back to Greece to face
awful conditions of detention in a refugee-determination system
that actually does not function in any meaningful way.
Let me get to the point–I am extremely pleased that Sebnem
is in the audience today–the report that she and Thomas Wenzel
presented was described by the IPT as being authored by two
world-class professors. The IPT describes how it assisted in
explaining many of the problems the particular individual had
in the presentation of his evidence. It is the good luck story, the
person who fortuitously had a refugee claim going through the
system at a point in time when two eminent forensic experts
were in New Zealand and available to carry out the examination.
In this case, the Grand Chamber referred in passing to the
question of medical documentation in support of asylum claims.
After mentioning allegations of brutality and insults during the
second period of detention asserted by the claimant, the Grand
Chamber observed that “these allegations are not supported by
any documentation, such as a medical certificate, and that it is
not possible to establish with certainty exactly what happened
to the applicant.” This is a clear and unambiguous example of
the courts assuming that if a person presents an account involving an allegation of physical or psychiatric or psychological
violence, the absence of a forensic medical report leaves a big
question mark over the credibility of the claimant. It is truly
disappointing that a decision from a court of this stature should
contain such an unhelpful, if not misconceived observation.
But unfortunately, we do not have a flying squad of forensic
experts who can go around and assist everyone. We are heavily
dependent on training and the willingness of the local medical
profession to be involved in cases like this. This is a big issue,
as it is with lawyers, because it is very much pro bono hardship
territory for most lawyers and medical professionals.
Note in the slides that reproduce paragraphs 66 to 63 of the
decision that there is reference to the findings showing consistency with memory impairment and highly increased PTSD
during interviews related to torture. So, again, it is just a pointer
as to what medical experts may need to focus on.
The decision also noted that the physical and psychological findings in the forensic report were found by the medical
experts to be “highly consistent”—not just consistent but highly
consistent—with the patient’s history of torture during arrest
and detention. The Tribunal states in paragraph 64 that the terms
of this report “led us to accept the credibility of the appellant’s
core claim.”
Finally, I want to talk about a decision of the CAT committee itself, namely the decision of TI v. Canada (Communication
No. 333/2007, 15 November 2010). It involved an ethnic Tartar,
who in 1995 was arrested and subjected to torture such as beatings, kicks, needles under the fingernails, sleep and water deprivation, solitary confinement, continuous exposure to light, and
administration of psychotropic drugs. He had blood in his urine
and lungs. The detention was about one month. He fled with
his wife and daughter to the United Arab Emirates. An incident
there caused him to flee to Germany under a false name. His
refugee claim was rejected in Germany. He traveled to Norway.
Again, his refugee claim was unsuccessful; it was under a false
name. In September 2001, he entered Canada and then made his
refugee claim. That claim failed on credibility grounds.
Dangers of forensic MeDical reports
That is the success story. Now I must introduce the “downside” of forensic medical reports. Once decision-makers have
been introduced to the luxury of making credibility decisions
when aided by detailed forensic medical reports, they not unnaturally see such reports as the potential key to arguably the most
challenging aspect of refugee decision-making (credibility). The
absence of the forensic medical report is therefore inevitably
noted, if not highlighted. One soon ends up with the situation
where the response to the torture claim is: “So you claim torture? Where is your medical report?” It is a short step from there
The Federal Government of Canada argued before the CAT
Committee that there was no evidence to corroborate any of
the allegations. Now remember, this man entered Canada in
2001 and was describing incidents which occurred in 1995. Ask
49
yourself, if you were required to produce or prove things that
happened in your life six years ago in another country, how successful would you be?
any medical practitioner in Canada could help in 2001. The
conclusion, stated by the CAT Committee was in the following
terms: “In such circumstances, the Committee finds that he has
failed to establish his claim that he would personally be exposed
to a substantial risk of being subjected to torture if returned to
Uzbekistan at the present time.”
The complainant’s response was compelling. He said that he
could not provide medical evidence of the injuries he received
including blood in his urine and lungs. It was unrealistic for him
to request his torturers for such a medical report. This was, after
all, Uzbekistan. Reality had to intrude at some point. But the
CAT Committee, in responding to this point, said at paragraph
75 that “despite several inquiries about medical or any other
documentary evidence in support of his account of events in
Uzbekistan prior to his departure, namely of his alleged arrest
and ill-treatment in detention in 1995 which would corroborate
his claim or possible effects of such ill-treatment, the complainant did not provide any such evidence.” The question I pose
is whether one can realistically expect victims of torture to
have corroboration of the kind implicitly required by the CAT
Committee? Can one assert that claims of torture are inherently weak without corroboration? General experience shows
that it is the exceptional case only where corroboration of the
kind required will be available. Implicit in the decision is an
expectation that if you request corroboration it will be provided.
They said: “Neither did he provide any report of a medical
examination after his arrival in Canada.” Well, if the question
is what was in his lungs and urine in 1995, I am not sure that
As to this I am reminded of the observation made earlier in
these conference proceedings that the absence of evidence is not
necessarily evidence of absence.
ConClusion
The point of my presentation is that while medical evidence
can be of critical importance in refugee and protection decisionmaking, there is a danger that we might inadvertently create an
expectation that victims of torture “will and must” be able to
prove their account by such evidence. Certainly, in my experience, it is rare for victims of torture to have access to medical
practitioners specialized in the field of forensic medicine who
will detect physical, psychological or psychiatric sequelae.
While forensic medical reports can be of determinative significance to refugee and protection claims, we must resist the expectation that such reports be forthcoming as a matter of routine
and that their absence reflects adversely on the credibility of the
refugee or protection claimant.
Remarks of Christy Fujio*
introduCtion
human rights abuses. Primarily, we are talking about asylum,
but in the U.S. there are a number of other categories as well,
for people who do not fit the strict asylum criteria but have suffered some sort of persecution or human rights violations. There
are other categories they can apply for. Next, I will illustrate the
value of the Istanbul Protocol as a tool for documenting torture
and cruel, inhuman treatment for U.S. adjudicators. Finally, I
will illuminate the clinician as an expert resource in immigration
cases where human rights have been violated.
P
resenting from a legal and procedural perspective, these
are the things that I would like to cover. First, I will
describe U.S. immigration categories for survivors of
* Christy Fujio is the Director of the Asylum Program at Physicians
for Human Rights, where she determines policy direction related to
asylum and detention issues and oversees a network of approximately
450 health professionals who provide forensic medical evaluations
to asylum seekers. Prior to joining PHR, Christy worked in private
practice as an immigration attorney and volunteered at the Political
Asylum/Immigration Representation Project. Previously, Christy
was Chief of Staff at Hunt Alternatives, where she organized and
conducted legal training and capacity-building seminars for women
parliamentarians, executive officers, and civil society leaders from
Rwanda, Liberia, Sudan, Bosnia, Serbia, Afghanistan, and Russia.
She consulted directly with Liberian President Ellen Johnson-Sirleaf
regarding the transitional justice hurdles Liberia faces in the wake
of its civil war. In addition to her law degree, Christy has a Master’s
degree in International Policy Studies and a Bachelor’s degree
in East Asian studies. Her analyses have been published by legal
journals at Georgetown University Law School, University of San
Francisco Law School, and Michigan State University Law School.
u.s. immigration Categories for survivors of
Human rigHts abuses
The United States has incorporated the key points of the
Refugee Conventions,7 but one key differential is that U.S. applicants have to file within one year of coming to the United States.
It’s different in some other countries—some have shorter or longer
deadlines, and others have no deadlines. The reason that this deadline is important in terms of medical evaluations, particularly with
psychological evaluations, is that in addition to looking at all the
other factors related to persecution and human rights violations,
the psychological evaluator will also be looking to explain why the
person may have missed the one-year filing deadline. Hopefully the
person will fit within one of the couple exceptions to the deadline.
50
There are four principal responsibilities that the clinicians
have. Some people might ascribe more responsibilities to them,
but these are the basic ones: (1) The provision of the medicallegal affidavit that will go to the adjudicator: the asylum officer
or the immigration judge. (2) In many cases, live testimony will
be requested in immigration court, a critical factor. We often
have clinicians who will say they will evaluate the case, but
will not have the time to do the live testimony. This is strongly
discouraged. It is helpful to have the medical-legal affidavit,
but if the immigration judge is not going to accept it because
it cannot be authenticated, then it is essentially meaningless.
It is like you are throwing someone a lifeline and then just as
they’re ready to be pulled it, you toss it back at them and don’t
hold on to it. The live testimony can be really important – it can
make or break a case. (3) Another clinical responsibility is to
obtain relevant information from that person that the attorney
might not have gotten. Particularly, through a psychological
evaluation—though it can happen with a physical evaluation as
well—something the victim didn’t tell their attorney that might
be highly relevant to the asylum claim or to the another kind of
immigration claim. The clinician doing the evaluation can share
that information with the attorney. It can make a big difference
in the strength of their claim. (4) Finally, to refer for treatment,
because so many people coming over here who have suffered
human rights violations need some sort of additional treatment.
The asylum benefits are pretty similar across countries: a
grant of asylum provides security, support for people, a chance
to get them back on their feet, possibility to bring their families
over here, work, start their lives over again. And also the healing that comes with a grant of asylum—a feeling that victims’
claims have been recognized—that the suffering they endured
was legitimate and recognized by another country is important
part of the healing process for them. To put it all in context for
the United States, according to the UNHCR, we had over 36,000
people apply for asylum in the first half of 2011. The people
came from over 100 countries, with China as the top sending
country, perhaps simply because its population is so great. The
approval rate of asylum claims for the U.S. is historically 30%,
with many qualifications and factors, such as the geographic
area, who the immigration judge is, the type of claim, etc. Lots
of different factors influence whether a given asylum claim is
approved.
Some of the other protective statuses that victims may be
eligible for, if not for asylum, are T-Visa for victims of human
trafficking; U-visa, which could also include trafficking victims
but also other kinds of crime victims; Violence Against Women
Act, for survivors who have endured domestic violence in this
country; Special Immigrant Juvenile Status, for children—people under 18; and finally, relief under the Convention Against
Torture8 and the withholding of removal. Suffice it to say, there
are other statuses if people don’t fit the rigid asylum criteria.
People in these categories also benefit from having physical or
psychological evaluations to support their claims.
Now here is the great statistic: 90% of our case outcomes are
positive, compared to that national historical average of 30%.
The big qualification to this stat is that all of the cases that we
take through our network right now are represented through
attorneys, and having good legal representation is a huge advantage for anyone applying for asylum or any of the other protective statues. Of course, we believe that the health professional’s
evaluation is also critical and is a huge part of the success, but
we cannot discount the role of the attorney when we consider
success rates.
For a very simple affirmative asylum claim, there are several different points at which a person might request a physical
or psychological evaluation. They could have it done shortly
after arriving in the U.S., before they first apply for asylum and
they can hand it in with the asylum paperwork. It might happen in-between submitting the asylum application and actually
interviewing with the asylum officer. Or, it might happen after
the asylum interview if they are not granted asylum and they are
referred to an immigration judge.
Value of istanbul PRotoCol
Again, the primary purpose of the evaluation: to establish
the facts, and to evaluate and document the level of consistency
with the victim’s narrative. The Istanbul Protocol guidelines lay
out all of the elements that should go in a report. I just want to
highlight here again that not all people in the United States will
have both the physical and psychological evaluation. Most only
have one or the other – physical or psychological.
Role of CliniCians
The role of clinicians is documenting harm caused by persecution and providing some sort of corroboration of the victim’s narrative. Even though the evaluation itself is not proof,
is an important corroborating piece of evidence and it is often
the only piece of evidence that people have to submit with
their asylum claims. There are three different types of evaluations that we provide through Physicians for Human Rights:
physical evaluations, OB-GYN evaluations, and psychological
evaluations. Some people might request all of those, and some
people might request one or another. Of course, that depends on
what harm the person has endured, what that person’s attorney
advises, and also what they’re able to get in terms of a pro bono
evaluation. Certainly we are limited by the number of clinicians
we have, the time frame requested for the evaluations, and other
logistical concerns.
Levels of consistency: as the clinician is looking at the physical evidence and doing the clinical interview, she must rank each
element, mark or scar, in terms of consistency with the story
related to what the actual symptom is. She will state whether
scars or other mark are “consistent with,” highly consistent
with,” “not consistent with,” or “not related” to the allegations
in the victim’s narrative.
There are several important considerations for written
reports, and there are a couple of things I want to highlight.
51
Objectivity and impartiality are critically important. There is
one but one wrinkle, however. Many immigration judges actually prefer and view more favorably evaluations that are done by
the treating physician or the treating psychologist of that person.
This is something that we struggle with, because objectivity and
impartiality are so fundamental to the Istanbul Protocol. But
some judges are saying, in short: “You have only talked to this
person for a few hours, so it is not as valuable as the treating
psychologist, who has spent twenty hours or more.” There is an
interesting split among the judiciary, and we see many of the
attorneys making the decision, based on the judge, whether they
want to get an evaluation from the professional who is actually
treating the client or whether they want to get an independent
evaluation. It is something that we will continue to look at.
that, working with attorneys is difficult for some clinicians at
first. They need to put aside their fears, and attorneys need to
try and be a little bit less bossy and a more understanding of the
interpersonal dynamics at play.
Physicians for Human Rights’ asylum network in 2011 provided 432 evaluations for 382 clients, the differential representing the number of people who had both physical and psychological evaluations. While this a number that we are proud of,
it is a drop in the bucket compared to the tens of thousands of
people who have applied for asylum already in the country this
year. Generally, we had about a 50/50 ratio between requests
of women and men. They represented 89 countries, the largest
numbers from Mexico, El Salvador, and Ethiopia. Those were
also some of the top-sending countries, globally. We had 105
new professionals join the network, and we served the clients
of 309 attorneys.
Finally, a slight deviation from the Istanbul Protocol
Guidelines, which recommends that clinicians have knowledge
of country conditions, knowledge of the torture practices, and
knowledge of detention practices. Of course, if a clinician is
in country, she should have pretty good knowledge of what is
going on there. But in in the U.S, where we have clinicians who
are seeing asylum-seekers and others from all different countries, we can’t really expect that they know about the particular
detention, torture, country conditions of all the different places.
We try, as much as possible, to familiarize them with all the
country conditions, but we don’t want to be too rigid with our
expectations or else we won’t have so many people volunteering to do them. So we relax this recommendation in regard to
provision of forensic evaluations for asylum seekers in the U.S.
It is a system that has great merit, a lot of value. The people
involved in the system—the attorneys, the clinicians, the clients—are all getting a huge benefit out of it. There are two
significant challenges going forward, however. First, since the
introduction of medical evaluations in court has been increasing
in recent years, the expectations of adjudicators are also increasing. What is needed is advocacy and education for adjudicators,
to reinforce that the absence of a medical evaluation certainly
does mean that torture, persecution, human rights violations did
not occur. Second, the huge number of unrepresented cases that
we are not able to provide evaluations for is worrisome for us.
It is something that we have been looking at a lot is how we
can serve this pro se population—“pro se” meaning people who
are representing themselves because they were unable to obtain
legal representation. There are tens of thousands of them in the
U.S. There are all sorts of problems with providing evaluations
to pro se client: logistical problems, interpretation concerns,
getting access to people who are in immigration detention. It is
something that we are continuing to look at, and really want to
figure out, so that we can widen the net of people that we are
able to serve through these clinical evaluations. Thank you.
Challenges
The various challenges that the clinicians face are the typically the same across countries. One that I want to highlight that
is particular to the U.S. is working with attorneys. Simply, the
idea of working with attorneys is a significant challenge for
many clinicians. I was surprised to learn that a lot of health professionals feel slightly antagonistic toward lawyers, towards the
profession as a whole, because the fear of malpractice lawsuits is
driven into them from the time they are in medical school. Given
EndnotEs: session two: Concurrent Panels – Asylum Proceedings
1
Protocol), 2004, HR/P/PT/8/Rev.1, available at: http://www.unhcr.
org/refworld/docid/4638aca62.html.
5 Berlin Center for Torture Victims, SBPM Standards 2001 (revised
2012).
6 AB (Mexico) [2011] NZIPT 800025, available at https://forms.
justice.govt.nz/search/IPT/Documents/RefugeeProtection/pdf/
ref_20111124_800025.pdf.
7 U.N. Convention Relating to the Status of Refugees, July 28, 1951,
189 U.N.T.S. 137; U.N. Protocol Relating to the Status of Refugees,
Jan. 31, 1967, 606 U.N.T.S. 267.
8 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR
Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into
force June 26, 1987.
Council of the European Union, Council Directive 2005/85/EC of
1 December 2005 on Minimum Standards on Procedures in Member
States for Granting and Withdrawing Refugee Status, 2005/85/EC
(Jan. 2, 2006).
2 See Ulrike Gäbel et al., Prävalenz der Posttraumatischen
Belastungsstörung (PTSD) und Möglichkeiten der Ermittlung in
der Asylverfahrenspraxis. Zeitschrift für Klinische Psychologie und
Psychotherapie, 1, 12-20, 35 (2005).
3 See M. Steller & G. Köhnken, Criteria-based Statement Analysis,
in Psychological Methods in criMinal investigation and evidence
217-245 (David Raskin ed., 1989).
4 U.N. Office of the High Comm’r for Human Rights, Manual on
the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul
52
SESSION THREE: VOICES OF THE SURVIVORS:
INVOLVEMENT IN LEGAL TRIALS
Remarks from Carlos Jibaja*
IntroductIon
G
ood morning. First of all, I want to thank the organizers
of Washington College of Law to give me the opportunity to share to you the story of a torture survivor.
Florencia is the voice of a sexually tortured survivor of an internal conflict in Peru. There is two places in Peru that I will refer
to during the course of my presentation. One of them is Lima,
the capital of Peru, and the other one is Ayacucho, which is
where Florencia was raped. It is a region that was the main site
of the internal conflict in Peru. It is very hard for me to explain
what happened in Peru between 1980 and 2000, which would
take me the entire presentation.
Internal armed conflIct In Perur
My overview of the conflict in Peru will therefore be brief.
The internal conflict hurt mainly rural areas—the poorest, the
excluded, the Quechua speaking women. It was a horrendous
time in my country. It took the life of 70,000 people in Peru.
Car bombs were frequent in the main cities. ‘Shining Path’
declared war on the Peruvian state at the beginning of 1980. Its
Maoist tactics of terror expanded almost all over the country.
On the other hand, state agents reacted with cruelty against
Shining Path members and innocent civilians. Florencia was
one of them.
sexual violence, and not only rape, was an overwhelming form
of torture directed at females by state agents. It established that
sexual violence in Peru constituted a crime against humanity for
its generalized and systematic character. 83.5% of rapes were
committed by state agents and approximately 11% by subversive groups. The Peruvian females who were sexually attacked
were primarily Quechua speaking peasants—poor and excluded.
Throughout the history of wars and confrontations, women
have been subject to acts of sexual violence. The female body, as
a trophy of war and as a form of control over the enemy, manifests as a way to demonstrate power and dominion over the bodies of “the conquered and submitted” women. Feelings of guilt,
shame, humiliation, and fear of stigmatization usually cause the
acts of sexual violence be kept quiet, hidden, and interior of
individuals and communal subjectivities. The Commission of
Truth and Reconciliation in Peru emphasized sexual violence
as a form of torture during the internal armed conflict. As stated
by advances in international normative of human rights, sexual
violence manifests in the following modalities: rape, sexual
slavery, forced prostitution, forced pregnancy, among others.
Through its report, the Commission of Truth confirmed that
the case of ‘florencIa’
One of the cases studied by the Commission of Truth was
that of Florencia, a victim of rape in Ayacucho by a state
agent in 1980. On December 24, 1980, members of Shining
Path violently entered a large state hacienda in Vilcashuaman
in Ayacucho. The landlord was assassinated and two workers were injured. Family members of the landlord denounced
the crime, and the police made several detentions in search of
the criminals. While on a road, Florencia, her father, mother,
and her youngest brother were detained. She was imprisoned
for three days and finally released. Five days later, the police
guided by a relative of the deceased landlord entered Florencia’s
home, detained her for a second time and she was taken to the
police station of Vilcashuaman. It was during this second detention that the sexual violation occurred. Seven policemen said,
“You must talk, you must have seen them. You are a terruca”
(terrorist). In view of her negative responses, they ripped her
* Carlos Jibaja Zárate is a Peruvian clinical psychologist, psychoanalytical psychotherapist and Director of Mental Health of the Centre
of Psychosocial Attention (CAPS). He has attended to torture survivors and their family members since 1998.
53
skirt, underwear, tied her hands and stuck a handkerchief in her
mouth. They started to rape her. Florencia stated, “One left and
another entered, sometimes between two, I even felt like I was
raped by three people at the same time, I felt dead. I tried to
get free, but I was raped again. I cried and they beat me. They
said, ‘Shut up, shut up, you are not going to say anything.’ I was
already unable to see because my face was bloody, my clothes
torn. Suddenly, I felt dead. No pain. I felt nothing.” Days later,
they transferred her to the city of Ayacucho. She was accused
of the landlord’s crime and she was released after three months,
no evidence at all.
better give her up for adoption. In my ignorance, I thought many
things. When I left the hospital, I left my baby to a woman, but I
had to sign the authorization. My lawyer told me to think clearly,
and I answered—after making sure the baby was healthy—that I
would raise her in any way I can.”
At the end of the 1980s, Florencia moved to a district close
to Lima composed primarily of people displaced from the political violence. She married her husband, José, and had a second
child. One of her means of support in her gradual recovery was
the good spouse relationship that she established with José. He
was a loving father for both children and, when she told him
about what had happened to her, he was even more affectionate
towards the eldest daughter.
In 1981, Florencia, a seventeen-year-old adult adolescent
announced that she had been sexually assaulted and was pregnant. The evidence corroborated her claim. Not only she was
expecting a child as a result of the rapes but also two gynecological exams determined that she presented defloration with
the hymen, which was ruptured. On April 19, 1982, the process
was sent to the ad hoc court in Lima, which was created for the
trials of terrorism cases. The file was sent to the criminal district
attorney office, which included names and last names the police
officers that perpetrated the act of sexual rape. More than three
years later, in 1985, all the accused were absolved from the
crime stating that there was no probative evidence to convict
them of rape. After the Commission of Truth final report, the
Human Rights Commission (COMISEDH) legally represented
Florencia and forwarded on November 2, 2005 a formal criminal complaint before the Public Ministry in Ayacucho City for
the crime of rape as a form of torture. The complaint is still with
the district attorney in Ayacucho, which has not yet even taken
the declaration of the police officers accused of this act, clearly
maintaining a setting of impunity.
Florencia is a member and former president of COFADER,
the National Committee of the Detained, Missing and Refugees,
which is an institution, composed of survivors of the social and
political violence of the internal conflict. COFADER has served
as a reference group to help her voice along with other groups
of people heard and not silenced to obtain comprehensive
reparations for her condition as a victim of the state, and also to
find and compensate the necessary support. Organizations such
as CAPS and Comisión Episcopal de Acción Social (CEAS)
have worked periodically with COFADER through informative
workshops, group dynamics, and actions towards institutional
strengthening.
In 2002, Florencia participated in the Public Hearing
in Ayacucho offering her testimony before the Truth and
Reconciliation Commission. Hundreds of victims gave their
testimony in seven Public Hearings in different regions.
It was a very important televised event, and a very strong
tool for dissemination of what the Truth Commission was
finding at that moment. All of them relied on the emotional
accompaniment provided by the psychosocial team of human
rights organizations belonging to the National Coordinator of
Human Rights of Peru. The National Coordinator is like an
umbrella organization, and it is composed by 79 organizations in Peru.
How long is a reasonable time for the victims’ right to due
process?
The first trial ended in a dismissal of the case for lack of evidence to accuse the police officers. It was 1985 and the struggle
against Shinning Pace went hand in hand with the transgressions
against due process in order to provide “licenses” to the armed
forces in their anti-subversive actions.
As part of the follow-up, Florencia was referred to CAPS
for treatment. The public hearings were a very important
period for the victims because they had the opportunity to say
and put in words what they had felt. She initiated treatment at
CAPS by the end of 2002. The services she received for a sixmonth period were individual psychotherapy, social assistance,
and physiotherapy. The improvement with physiotherapy of
her muscular ailments was notorious and relatively quick. The
weekly sessions of individual psychotherapy provided a space
to revise her history, express her fears, and put into words her
current worries in regards to raising her children and her feelings towards them.
Together, the fall of Fujimori government, the re-organization of the army and Peru’s democratic institutions, as well
as the creation of the Truth Commission that registered 17,000
testimonies set up a new stage in the Peruvian judicial system,
which reopened the case. However, notions such as reasonable
time and overload of the judicial obligations are in practice a
daily exercise of re-victimization and impunity of the system
against the survivor.
What happened to Florencia’s life during these years? How
have institutions such as CAPS and others been accompanying
her throughout her recovery process?
After many years in the psychotherapeutic practice with
torture survivors, we know in CAPS that several of them
with great resilient capacities are willing to open certain
The first decision Florencia made was to accept her daughter. “When I gave birth, I said, I am not going to see the baby,
54
The Work of The CenTre of PsyChosoCial
aTTenTion (CaPs)
doors of the internal world, but others not. We respect that
wish and do not insist beyond what the afflicted wants and
can emotionally process. Sustaining an empathic therapeutic
relationship allows the survivor to relieve the pain because
the healing power over the burdens left by torture on body
and mind of a person does not dwell in an impersonal medical
relationship, no matter how professional it is; the therapeutic
effort requires one primary condition: the encounter from the
decision of the survivor to trust others again in order to alleviate his suffering and the sincere desire of reparation from
the therapeutic agent. It requires a relationship based on trust
to therapeutically repair what the torturer sought intentionally to destroy: the capacity to trust oneself when relating
to others.
CAPS adopts a psychosocial perspective, and a holistic view
of the problem. An individual who suffers symptoms of posttraumatic stress disorder or depression as a result of torture must
be set in the context of his family and communal milieu as well
as in the factors and interactions that underlie and sustain environments of impunity, exclusion, and violations against human
rights from the state against its citizens.
For instance, CAPS works in three groups within the National
Coordinator of Peru. These three groups have different actions.
One of them is a working group against torture. Our actions
have been directed towards the implementation of a National
Mechanism for the Prevention of torture—the Optional Protocol,
through a proposal in Congress—to the training and sensitization
of justice operators and police agents concerning the crime of torture, to statements regarding those cases where there is evidence
of torture, as well as organizations and activities around June
26th. We are looking and really pushing to create the National
Mechanism, which is kind of hard, but we are in the process.
The relationship that Florencia established with her eldest
daughter from her initial reaction and ambivalent character,
sometimes violent against her, to a more caring mother-daughter
relationship was a long process in her personal elaboration. To
integrate what violence sought to destroy in her, as we have
seen, did not start with CAPS’ treatment or end with it. This
is a point I want to underline. The marks left from the torture,
the never-ending struggles to obtain fair trials, the profound
alteration in the life projects of the survivor settled in context
of impunity in a society such as Peru, require psycho-social
accompaniments and a wide support network at different stages
of the survivor’s life.
Regarding influence on issues of public policy, CAPS and the
feminist movement Manuela Ramos promoted the creation of a
committee to elaborate an Evaluation Guide of the Psychological
Damage in Adult Victims of Torture and Sexual Violence within
the Public Ministry. Psychologists and psychiatrists from the
Institute of Legal Medicine and Forensic Science of the Public
Ministry work along with the mental health professionals and
lawyers of Manuela Ramos and CAPS to develop this important
tool, which has as a key reference the Istanbul Protocol.1 This
guide was approved in December 2011 after three years and is
currently in the implementing process at the national level. This
guide helps the expert to record the crimes step-by-step, making
it possible for professionals of the Legal Medicine Institute and
others to follow a uniform, systematic, and multi-dimensional
procedure in their analysis of the case. We consider in this way
that we are contributing to visualize the psychological damage,
which is not recorded otherwise or not given the value it deserves.
So thirty years after the brutal rape, in 2011, grandmother
of two beautiful children of her eldest child, Florencia
enrolled in a four-month course in CAPS to strengthen productive skills among the affected by the political violence.
Her entrance test showed ten percent of theoretical- practical
knowledge on how to manage a micro-business. In her final
test, after four months, Florencia obtained ninety percent and
now has a working plan to improve her small business in
repairing cellular phones.
Fighting torture and, especially, to make visible that sexual
violence is a form of torture, is not an easy task in Peru as in
many countries with obvious lack of protection of dignity, integrity, and freedom of the citizens. The psychological rehabilitation of survivors in the multiple areas of psychosocial functioning is a main task for the recovery, but insufficient if we want to
defeat the blight of torture. We rehabilitate a few while torture
as a form of punishment and repression continues to victimize
thousands every year, many of them without formal complaints.
The strategy must be multi-dimensional. While recovering the
survivor and his family members, we must influence public
policies and justice operators towards protecting and guaranteeing human rights as well as training and sensitizing state agents,
along with the population.
ConClusion
I’m going to finish with some of Florencia’s words about
her legal process. Not so long ago, we asked Florencia about
her disposition to continue fighting these legal battles. She told
us, “After so much time, why give them the satisfaction? They
are going to continue committing those abuses to the people and
communities. It is not convenient for them to have everything
they did come out into the light. I will continue to claim for
justice, so there are no more abuses on others… so many years
until when? I tell my lawyer that while he fights, I will continue
to fight until the day I do not exist anymore.”
Survivors, such as Florencia, guide our path. Thank you.
55
Remarks of Dr. Sothara Muny*
IntroductIon
G
ood morning to all the participants. Before I start I
would like to say thank you to IRCT and American
University Washington College of Law for inviting me
and giving the opportunity to speak in this exciting conference.
We heard already, the true victims, Mr. Carlos Jibaja, the
real victims speaking today. I am not a direct victim of torture. I
can’t say I’m a direct victim or I was a victim. But, my parents
died during the bad period in Cambodia, and I am the only one
in my family who survived. I can’t say that I am a direct victim,
but I am part of the victim side.
I work to support the survivors of the Khmer Rouge. This is
a kind of motivation for me to work in this. So I would like to
have your attention for the next twenty minutes to present to you
about the Transcultural Psychosocial Organization (TPO); how
TPO has been involved with victims of torture. And I will present some remarkable research findings related to victim experiences when participating in the criminal court proceedings. I
will end with the lessons learned from our TPO work.
Cambodian government to establish the Extraordinary Chambers in
the Court of Cambodia (ECCC), and its mandate was to try senior
leaders of the Khmer Rouge and those who were most responsible
for the crimes. But the time period is limited. Actually, this event
could not have happened if there’s no link to the past. But the mandate of the ECCC is to try those most responsible for the crimes,
from 1975 to 1979 only.
Background
I would like to start with the historical background of Cambodia,
but it’s a very long time, a period of political turmoil in Cambodia,
but I’ll just be brief. From 1975, when the Khmer Rouge genocide
originally took place. At that time, they declared democratic rule
in Cambodia from 1975 to 1979, which resulted in the death of at
least 1.7 million people due to starvation, overwork, torture, and
execution. From 1979 to 1998, the country continued in a civil
war, backed by Vietnam and against the Khmer Rouge rebellion.
From 1991 to 1993, there was a decision from the United Nations
to come as a mission—United Nations Transitional Authority in
Cambodia—to restore the peace in Cambodia and to lead the general election backed by the United Nations in 1993. From 1993 to
2006, there was a negotiation between the United Nations and the
The ECCC is a hybrid tribunal that permits victims to
participate in the criminal proceedings as a civil party. It is
a mechanism that allows for a level of victim’s participation
and is unprecedented in other hybrid tribunals. The civil party
mechanism gives anyone additional procedural rights allowing
for more active involvement in the legal proceedings and the
right to seek collective and moral reparations.
In Case Number One, the trial against the former secretary of
the torture center named S21, sixty-six survivors were accepted in
this as civil parties in the first judgment, and then another nine more
were accepted at the final judgment. Recently on February 3, Kaing
Guek Eav (Duch) was sentenced to life imprisonment for crimes
against Cambodian people. And now three other senior Khmer
Rouge figures are currently on trial in what is known as Case
Number Two and 3,866 survivors are recognized as civil parties.
* Dr. Sothara Muny, Medical Doctor and Psychiatrist, works as Project
Coordinator for the “Justice and Relief for Khmer Rouge Survivors
Project” at Transcultural Psychosocial Organization (TPO). Since
2007, TPO has been implementing a project providing psychosocial
support to victims of Khmer Rouge who participate in the criminal
proceedings of the Extraordinay Chamber in the Courts of Cambodia
(ECCC). Working closely with Witness Expert Support Unit as well
as Victims Support Section of the ECCC, TPO aims to support active
involvement of survivors in the justice process through the provision of
a variety of psychological support services including preparatory psychological interventions, on-site support during the ECCC proceedings,
intense psychological and psychiatric follow-up care and basic legal
counseling, self-help groups and truth-telling platforms.
Work of the trans-cultural PsychosocIal
organIzatIon
Now I would like to look at the TPO and then we’ll see how
TPO has been involved in working with the victims in the ECCC
international hybrid court. TPO is a leading non-governmental
56
Experiences from the past international tribunals, national truthtelling, and accountability mechanisms do not always present
relief of psychological distress in the long-term.
organization in the field of mental health since 1995. TPO provides culturally appropriate training, counseling, group therapy,
family therapy, clinical intervention, and implements community mental health and psychological programs at the community and grassroots level. Since 2007, TPO has been involving
in helping victims of torture who are actively participating in the
ECCC in the proceeding. Based on a memorandum of understanding with the tribunal and in cooperation with the Witness
Expert Support Unit, and later with Victim Support Section,
TPO provides comprehensive support service to civil parties.
So what are the experiences of survivors of mass atrocities
in participating in the ECCC criminal proceedings like this? In
order to learn more about Khmer Rouge victim experience in
their participation in Cambodia’s hybrid court, TPO in cooperation with the Human Rights Center Berkley conducted a study
with seventy-five cases, Cambodia cases, civil parties Case
001 in December 2010.2 They used structured questionnaires
to ask the civil parties about their knowledge, opinion, attitude
and reaction to the participation phase, application phase, legal
representation, information about legal proceedings and participation. Those who testified in the court were asked about their
experience of giving testimony. The results are compared with
data from a nation-wide study, a nation-wide survey of the general population, conducted in the same year.
These are the victim support schemes of TPO. We start to
prepare the victim psychologically before the trial. During the
trial, we provide on-site psychological support, and we also do
follow-up care for them after the trial through hotlines as well
as face-to-face counseling. We also provide specialized trauma
treatment such as testimonial therapy and cognitive behavioral
therapy. We got the training from IRCT. In May of last year,
with the support from IRCT experts, we did medical assessments of eleven torture victims and we are waiting for the
result of the reports that we expect to use in the coming trial of
Case Number Two. We also do self-help groups. We organize
different kinds of self-help groups, like Group of Rape, Group
of Forced Marriage, and Group of Torture. And we also do
outreach intervention. We use different kinds of materials such
as a film about the court. We got support from the German
Development Agency to develop a film and we use the film to
screen and at the same time we provide psychological and legal
education to survivors in the community. We also provide training about trauma and its after-affects to the staff of the ECCC,
to the staff of civil society organizations, and also to the public
through regular outreach and IEC materials—information, education, and communication materials.
The results show that the interviewed civil party showed a
higher level of exposure to violence during the Khmer Rouge
regime compared to the general population who live in the
Khmer Rouge regime. We use the post-traumatic-stress disorder
checklist, civilian standard scale, to assess post-traumatic-stress
disorder, and the Hopkins Symptom Scale symptom checklist
to measure depression. So among civil parties, there is a higher
average score in post-traumatic-stress-disorder and depression
than the rest of the population.
This is the general population and this is the population that
lived under the Khmer Rouge, and these are the civil parties. We
can see the level of exposure is still high compared to those of
other members and even the symptoms of post-traumatic-stressdisorder and depression. The results suggest that the civil parties
represent a group of individuals who are more severely affected
by violence compared with members of the overall population.
Look at the motivation to apply as a civil party. 68% of the
individuals want to obtain justice for themselves and for their
relatives. The civil parties define justice in terms of knowing
who is right and who is wrong, being fair and applying the law.
Among them, 43% apply because they want to know the truth
about what happened to their relatives and 32% apply because
they want to honor the memory of their relative.
ExpEriEncE of Victims
Now we’ll look at the experience and perception of victims,
so I can tell this because I have been working closely with the
victims, especially the vulnerable target groups—the “high level
of exposure to trauma in the past” group, because they participate in the tribunal to fight against torture.
Before going to this, I just want to show you some quotes
of the victims I work with. The first one is the quote of the
Mr. Chung Mey, a civil party of Case Number One, from his
testimony in 2009: “My feeling, after I received the summons to
appear before the Chamber, was so exciting and so happy. I was
so clear in my mind that I would testify to shed light before the
Chamber to tell the truth. I felt so relieved. If I were not able to
come before this court to testify before your honor, Mr. Lawyer,
my mind was so disturbed, so battered, and I want to get it off
my chest.” Another case, “It was very painful to me to recall my
past. I felt so hopeless and lonely during that regime. It seemed
like opening an old wound and I feel pain over and over.”
Among the civil parties, twenty-two of them were denied
their status as a civil party at the first day of the judgment. If you
look at the reaction to the rejection, perhaps the most distressing
issue from any civil party in Case 001 was the rejection of their
status by the trial chamber, by the court. Those whose applications were denied reacted with anger, helplessness, shame, and
feelings of worthlessness. I quote some statements of them: “I
feel pain in my chest, my head. I feel so much ashamed. I am
here to find justice for my mother, who was killed when I was
twenty-one. If there is one civil party rejected, we all are feeling
the pain.” It reflects that they come together with the same sense
that just one is rejected, it sends the message to the others to feel
Most statements reflect the psychological risk for victims of severe trauma when participating in a justice process.
57
the same pain even though they are accepted as civil parties and
only one is denied, the whole group feels pain.
No. 002 with the huge amount of civil parties and the same team
numbers of TPO. We are struggling with this difficulty.
Regarding the experience of the civil parties, among the
twenty-five civil parties we interviewed, only seventeen testified
in the Case 001 trial. Participation in the ECCC proceeding does
not guarantee the opportunity to testify before the court. Among
the seventeen, we can see fifteen feel satisfied, received satisfaction with their testimony at the court. Also, fifteen among them
perceived that the lawyer treated them with respect. In general
the majority, almost more than 75% feel that the court treated
them fairly.
Civil party of Case 001 reported that they received an
adequate amount of case support in this study. And when asked
about important moments for survivors when participating, they
said the important moments for them are when they are able
to tell their story when they are recognized as civil parties and
when the accused person was found guilty and in addition if the
accused person said an apology it would effect a lot to the psychology of the victims side. We also asked the participants of the
study about the perceived pyscho-social impact of the participation in the Case 001 trial. Respondents assigned a score from 1-5
to a series of statement with 1 being the most negative and 5 the
most positive. Civil Parties reported a sense of empowerment
through participating in the trial. They also held more negative
attitudes and perceptions than the overall population who lived
under the Khmer Rouge regime especially in the relation to
the resulting impact of the trial on their acceptance of loss and
reaching closure, and on their forgiveness of the perpetrators.
Regarding the perception on the trial as a whole, we can see
that one in three civil party participants perceive that the hearing
did not meet their expectation. A majority of them, 59% of them
believe that the Case 001 trial was conducted fairly and most of
them felt that the court gave the perpetrator too much time to
explain himself whereas the victim did not have enough time to
tell their story. Unlike the victim this morning, they have enough
time and enough space and safety to speak about his own story.
But in the court it is different. Time limits would not allow the
victims express enough what they want.
Figure One. repOrted psychO-sOcial impact OF the
duch trial.
We also looked at the reaction to the verdict in Case 001.
Towards the first verdict the majority of civil parties expressed
disappointment, because the first prison sentence was only
thirty-five years. However, the reduction of 11 years for illegal
imprisonment and another 5 years for his participation (the court
declared his participation) remains only nineteen years in prison
for the accused. So the civil parties were not happy and made
their appeal. And in another area, the reparations, none of the
reparation claims was taken into account by the trial chamber,
especially memorial. Memorial is seen as very important for victims. Most victims want memorials. Towards the final verdict,
most of the victims expressed relief because they saw the final
judgment that Dutch will be imprisoned for life, but they were
still unhappy with the reparations stated by the court. The courts
still have limited statements on the reparations and now civil
society, among civil parties they are working on non-judicial
measures as a form of reparation for victims.
Mean score, maximum of 5 (SD)
CP
Pop lived
under KR
I personally feel stronger
‘mentally’ after the Duch trial.
4.00 (0.9)
3.55 (0.9)
I have more hope for the future
after the Duch trial.
4.03 (1.1)
3.72 (0.9)
The Duch trial helped me in
accepting the loss of my loved ones.
2.41 (1.4)
2.93 (1.2)
The Duch trial has helped me in
finding closure/coming to terms
with my painful past.
3.35 (1.3)
3.62 (1.2)
We can see in Figure One the mean score of the above two
statements. Civil Parties feel stronger after the trial and have
more hopeful future after the trial compared with the general
population. This score has a greater meaning because the victim
who participated closely in the proceeding gained empowerment
from this participation. However, in the last two statements, the
score in accepting the loss of loved ones is lower than the general population, and in finding closure/coming to terms about
the past, the score was also lower than the general population.
This can help explain that the more that they are exposed to
and participate closely in the proceeding, they know and they
feel not enough because the long time waiting, because they are
exposed to recalling the past creates intense feelings inside and
difficulties in reaction of this.
Look at the psycho-social impact of the trial compared to the
participation of survivors in Case No. 2 which is almost 4,000.
It is unlike the relatively small number of civil parties in Case
001. TPO has had the opportunity to build a close relationship
with the civil party a long time before the trial started. Civil society organizations and the victims support section of the ECCC
offered numerous platforms to victims to meet their lawyer,
to get updated information about the case and discuss issues
related to the justice process. For example, a monthly meeting
organized by a human rights organization became an important
platform for civil society to share their concerns to meet their
legal representative to develop a sense of solidarity. This opportunity allowed TPO to get along with the civil party and be well
prepared before the trial started. But it is so different with Case
The general conclusion is that civil parties perceive their participation positively; however, there is no feeling of sustainable
physiological relief from their participation. Civil society organizations have important role in providing services to victims
58
such as providing legal representation, psychological support or
providing court notification.
the criminal proceedings. TPO also provides treatment services
to Civil Parties, such as specialized trauma treatment, conducts
truth-telling sessions, and have also contributed to memorialization as a complementary element to healing. TPO also considers the social and economic needs of victims. We have a small
grant prepared to help victims; so far three victims of Case 001,
who had operations—abdomen operations and another one for
broken leg due to a traffic accident. In another case, a woman’s
house was damaged by a storm and we used the small grant to
start a small house for her.
ConClusion
I would end this presentation with the lessons learned by the
mental health professional TPO staff. Compared to the ECCC
staff or lawyers, TPO staff do not need to follow a specific
agenda shaped by specific judicial framework but can make
use of their neutrality. TPO practices a non-judgmental attitude
towards victims’ needs and opinions and always have an open
ear for the concerns that are not addressed by the legal proceeding. Also, TPO uses hotlines, and the phone hotline tends to
be effective in accompanying victims through the numerous
emotional ups and downs before the trial, during the trial and
especially the time while waiting for the judgment. Emotional
support through the TPO hotlines allows for counteracting the
stress of protraction, reducing anxiety, and reducing frustration. TPO believes that preparing victims effectively before
the proceedings is a key factor. Trustworthy relationships with
civil parties can help in dealing with stress in later phases of
Based on the experience in Case 001, the TPO believes
that close cooperation between legal representation and mental
expert is necessary in providing effective support to the victims.
TPO staff members are frequently challenged by responding to
victim’s legal concerns and questions. Legal follow up information and support is highly needed for both TPO staff and victims.
Moreover, all participants in the judicial process should consider
how they could reduce the psychological burden of civil party
participation without compromising the legal procedure. Thank
you very much for your attention.
Remarks of Dr. Lilla Hardi*
introduCtion
W
e all came from different parts of the world, so I try
to demonstrate a quite different way of working,
doing psychological psychiatric work with asylum
seekers, with torture survivors in Hungary. I will try to describe
the system in which we work in Hungary—in the Cordelia
Foundation—in order to understand how and why, and with
what methods, we document torture.
* Dr Lilla Hardi is a medical doctor licensed at the Semmelwes Medical
University, Hungary, Budapest since 1981. She is a psychiatrist certified
by the Imre Haynal University, Hungary, Budapest since 1985 and was
admitted as a full member of the International Psychoanalytic Association
in 1992. She is a psychotherapist and a rehabilitation psychiatrist. She
has been the chair of the World Psychiatric Association’s Section on
Psychological Consequences of Torture and Persecution since 2008.
She is the European Council member and the Executive member of the
International Rehabilitation Council of Torture Victims (IRCT) since 2008.
She has been working in the field of refugee mental health and clinical
treatment of victims of torture since 1993. She has been the medical director of Cordelia Foundation for the Rehabilitation of Torture Victims since
1996 Budapest, Hungary. She has personally examined several hundred
survivors of torture and human rights abuses, written multiple reports, and
treated and/or supervised the treatment of hundreds of torture survivors.
She has lectured and taught nationally and internationally on this topic and
has published multiple articles, monographs and book chapters relating to
the psychological consequences of torture and refugee mental health.
The organization models of rehabilitation services are greatly
shaped by the general health care system. The applied methods
depend on the professionals’ personal orientation. I think most
of you know that Budapest is the city of the traditional FreudFerenczi School—the psychoanalytical school—so our older
psychiatrists were trained as psychoanalysts, me as well. We
train our younger colleagues in a school for doctors to gain a
special attitude toward psychoanalytic methods. Although, our
59
working methods and how we approach our clients is holistic
and comprehensive, and we have a bio-psychosocial attitude to
our rehabilitation methods.
more positive attitude toward the client, and a more empathetic
attitude toward the client can be built up and can be facilitated
in them. So I think it is very important to have a friendly atmosphere in a refugee shelter not only on our side but on the side
of the social workers, and the staff, and the eligibility officers
as well.
The Work of The Cordelia foundaTion
The Cordelia Foundation was set up in 1996, with the
objective to liberate the trauma of uprooting and torture, and
to increase our clients’ capacity and ability to cope with the
challenges of integration into Hungarian society. It is itself
a great challenge, first of all due to the Hungarian language,
which is impossible to learn. It is even impossible to learn for
us sometimes. Just imagine a person who used to survive horrible trauma, how they can study or how they can go forward in
their studies or in the labyrinth of the Hungarian language. What
we all know, but those who don’t know have to know, that the
experience of the trauma is not compatible with the individual’s
picture about reality, and therefore, the trauma cannot be fit into
the person’s experience about the world.
The “STay and go” Model
When I am in the United States, I am enchanted buying
coffee that the automatic question is: “coffee to stay or coffee
to go?” So, when I went home after my first visit to the United
States, I figured out that Cordelia is working on the “stay and
go” model. What is the go model? There are refugee shelters all
over Hungary. Most of the refugee shelters are quite far from
the capital of Budapest, so we visit regularly—once or twice
a week—with our mobile team at these refugee shelters. In
this scenario, we are the guests and the patients are hosting us
in their own place, as this is their first secure place in the host
country. These secure places are very good places for family
therapies as well.
What do we treat in the Center? Post-trauma reactions are
based on a multifactorial model, which depends on pre-morbid
personality, ego vulnerability, and political meaning. What sort
of symptoms do we treat? We treat complex PTSD, or disorders
of extreme stress that are not otherwise specified—DESNOS,
containing disturbed regulation of effects, attention problems,
self-perception problems. It is different from the traditional concept of PTSD, involving relations with others, trust and intimacy
issues, somatization problems, and some cognitive problems
that changes the systems of meaning.
The refugees, during their asylum process, are relocated from
the first center to the second, from the second to the third shelter in the certain grades of their process. We follow them. We
secure them. We are the stable personnel around them. We try
to hold them, to contain them, during their process. Of course,
we have local psychiatrists in the centers so if our patients cannot wait for our arrival, they can turn to the local psychiatrists.
Now for the stay part of our model. The clients have started
to find us on their own. They visit us in our local units as
well. They want to schedule an appointment for therapy, and
they use the community room of the facility to wait for their
turn. It is progress in the therapeutic process if they can wait
because doing so often evokes trauma for torture survivors.
This stay model provides the client with a sense of independences and empowerment. This is the last stop of the client in
the refugee shelter before facing the challenges of integration
into the Hungarian society. Here, in the therapeutic units, stable
therapeutic units, the methods are more direct and they focus
on creativity, productivity, inner strength and empowerment,
to enhance the supportive network of the clients for their future
independent life. Without going into much detail, we have different verbal, nonverbal, group and individual methods.
In 2010, the Cordelia Foundation treated 683 clients. About
40% of our clients belong to the classical torture survivor
groups, including primary and secondary victims, and about
60% of our clients are seriously traumatized refugees.
STaff Training
We like if our coworkers are trained in psychoanalysis
because of the attitude it creates; we have a certain attitude
toward our clients and they know in their own psychoanalytic
training our expectations as well and the general expectations
toward the team. I think it’s very important to have the team
together because regular care and supervision of the persons
in charge of the clients is very, very important. As you know,
we might suffer serious vicarious trauma during a working day
and without having a mutual attitude, without having the same
attitude toward our colleagues that we should hold and regularly
support each other and the team itself, the foundation breaks into
pieces. Answering your first question, because it’s the step-bystep and continuity is, the models are the following. Of course,
being an NGO, there is a great resistance from the government
and the social workers—the border guards of course they are
employed by the government and at first sight they are very
mistrustful and are used to being very mistrustful of us. But we
never show them the weak points; we never refer to their weak
points. We just try to help and through that help and our positive
attitude they can be moderated somehow and they can form a
The foundaTion’S neTWork
Some words about the Cordelia Foundation’s network. We
have realized that alone you cannot be on the battlefield, and
you have to liaise with other NGOs. To that end, we have built
up a very constructive relationship the lawyers of the Helsinki
Committee, the social workers of the Asylum Association, the
caretakers of UNHCR, and officers of the Hungarian government. It might sound quite strange, from an NGO perspective,
that we liaise with officers from the government. With the
stay and go model, in the first years we had to build up a good
relationship with the staff of the social workers and with the
60
New INItIatIves: the Protect Project
eligibility officers located in the refugee shelters. They meet our
clients every day. These governmentally employed persons have
their own needs, their own psychological needs, so we turn to
them like we came here not simply for the refugees, but to offer
them help or care as well. This is how training and supervision was spread all over Hungary among NGOs and among the
governmental persons, who began to collaborate with us and
support our daily work.
We have collaborated with our colleagues to create a special
questionnaire for identifying vulnerable groups in the refugee
shelters and detention centers. The attitude of the authorities is
not very positive, but step-by-step, we will go forward.
By training and supervision, it is very important to write
medical legal reports for the legal process or for the court process. We have organized several trainings for us and for our
colleagues how to not only adopt, but actually implement the
Istanbul Protocol in the proper way in the description and documentation of torture.
The first important issue was to elaborate a manual, titled
Care for Caregivers. I was regularly invited to York University
in Toronto, Canada to teach summer courses on Care for
Caregivers. After five years of going to Toronto, it became more
and more popular in Hungary as well.
That is an ongoing debate as to whether we are the proper
persons to write a medical legal report. We are not forensic
experts, and we are not officially specialized in the documentation of torture. At certain points of this process, we have the real
tools, facilities, and knowledge to document what our clients
have suffered prior to arriving in Hungary. Of course, when a
client or lawyer introduces a report in court, very many times
the court asks for a forensic expert, and subsequently there are
open debates between the forensic experts and our specialists
about certain components of the reports. Often times, we ascertain that both parties are right and that we simply have different
aspects, different attitudes. So, this is an open question. What
is the real medical-legal report. Who knows? I will discuss that
question later.
We have elaborated on special training for interpreters,
the key persons in the therapeutic process and in the writing
of medical-legal report. At the Cordelia Foundation, we never
ask a person to interpret for us who is him- or herself a trauma
survivor, as we try to emphasize the importance of avoiding the
traumatization or the re-traumatization of the interpreters.
Step by step, we have tried to demonstrate that we are working for the refugees, and we are working for the torture survivors. We come to offer support. We reinforce these ideas during
regular trainings of NGOs, social workers, health professionals
of refugee shelters, and eligibility officers. We also elaborate a
new system for training border guards, policemen, and lawyers
and judges as well. So, this is how the whole idea of the psychosocial complex rehabilitation and the care with the torture survivors came to grow more and more digestible for the authorities.
In most of the cases, the collaboration is becoming increasingly stable between the legal and medical professions in
Hungary. Because of the Istanbul Protocol, medical reports
are highly respected in the legal process. There were groups
for which we made a medical-legal report for every person,
Somalian refuges for example, and there was one year when
nearly one hundred percent of the Somalian refugees were given
refugee status based on these medical-legal reports. But times
change and attitudes change permanently so continuity doesn’t
exist for the victims. But the victims must create continuity
for themselves and we must create continuity for ourselves.
Multidimensional and multileval therapies with multidimensional teams are needed to lead the victim from the “life before”
to the “life after.” Thank you for your patience.
The step-by-step model opens a path to the continuity
model. Through regular communication, support, permanent
discussions, collaboration, we try to build a constant working
relationship on the NGO and on the governmental level. Of
course, criticism is also allowed, so we try to open up lines of
direct communication among us. Care for Caregiver programs
are particularly important here, and they not only seek to prevent
persons from vicarious traumatization, but they also increase
the level of psychological mindedness. In certain countries the
general psychological mindedness is not at an ideal level.
61
Remarks of Carlos Mauricio*
IntroductIon
T
hank you so much. It is an honor to be invited and to
come here to talk. I love this topic of having the voices
of the survivors. It is so important for we the victims to
be allowed to say what happened. It is so important because
what happened to us is that in many ways the real fight has been
looking for justice. But you know, on the way to find justice,
we have to find the truth first. But in order to find the truth, the
survivors must be allowed to speak. Otherwise it is impossible,
and that is what I have been doing for many years.
EvEnts In El salvador
I was kidnapped by the National Police members in El Salvador
back in 1983. I was kidnapped from my classroom. I was a Professor
at the University in El Salvador, when a group of armed men came
to my classroom, and I was just abducted from my classroom. First
I was badly, badly beaten with the butts of the rifles, and then, after
being beaten, I was taken into a waiting car. I was blindfolded, and
I was handcuffed, and I was bleeding from a big gash in my head.
After I was placed in the floor of the car, I knew that I was going to
be killed, I knew it, I knew my fate, because I had been witnessing
my friends and my colleagues, relatives, being kidnapped by the
Salvadorian armed forces, and then a few days later, their corpses,
mutilated, thrown on the streets. And I knew that I was a person who
they were looking for. So when I was taken to that car, and they drove
away with me, I knew that I was going to be killed. I knew because
I’d seen so many cases of my friends being kidnapped and then later,
their bodies, dumped on the streets. I was taken to a place and didn’t
know where I was because I was blindfolded. You know that for the
eleven days that I spent in the chamber of torture I was blindfolded,
so I couldn’t see anybody, because I was blind. After being there, in
the chamber of torture, the worst, the worst, the really bad days, of
the torture, probably the tenth, or the, I mistake, the seventh or eighth
days in the chamber of torture, was so incredible, the pain that I was
given. And I remember that because I couldn’t, I couldn’t take any
more torture. And then, after being badly, badly tortured, and not
confessing, and refusing to say what the torturer was asking me to
confess, because I didn’t do it, finally, after ten days, or eleven days
of being tortured, I accepted it. And I said, ok, I did it. I didn’t do it,
but I said, ok, I did it. Please stop torturing me. They did not believe
me, and they continued torturing me, because when they accepted
it, they wanted me to accept that I went to Cuba. I’ve never been to
Cuba, never ever in my life, never been to Cuba. But they wanted
me to admit that I’d been to Cuba getting training, I’d never been
to Cuba, never ever. And they said, you won’t confess, because you
have been trained not to confess. And finally, I repeated myself, I
said, ok, I’ve been to Cuba. The guy says, “OK, you see, you are
an idiot. Why didn’t you confess from the very beginning? Look at
yourself.” I said, “Yeah, I went to Cuba. That’s alright. I did it. OK.”
The guy says, “Now you’ve got to tell who gave you the money.
You’ve got to tell me who went with you. You’ve got to tell me in
which military training camp you have been in Cuba.” And I said,
“I’ve never been in Cuba.” What can I do?
* Carlos Mauricio is the Executive Director of the Stop Impunity Project,
which he founded in 2002. It works to bring an end to the impunity enjoyed
by human rights abusers in El Salvador. Carlos has worked closely with the
School of the Americas Watch to close the Pan American training facility.
Last year, for the sixth time, he took a caravan from San Francisco through
twelve cities across the country to the annual vigil to close the School of the
Americas at Fort Benning, Georgia. Carlos has also taken part in SOAW
delegations to Argentina, Uruguay, Bolivia, Ecuador, Peru and Chile in 2006,
and Guatemala, El Salvador and Honduras in 2007. He was instrumental in
persuading the governments of Argentina, Uruguay and Bolivia to stop sending
troops to the School of the Americas. In 2006 and 2007, Carlos lived in Burma,
closely monitoring the human rights situation. In 2007, he visited Cambodia, to
meeting with representatives of human rights and museums of historical memory to research the Cambodian struggle against impunity. In 2008 and 2009, he
lived in Peru, closely following the trial of ex-president Fujimori, as well as the
indigenous uprising in the Amazon. In November 2009, as a member of a delegation invited by President Mauricio Funes, and together with representatives
of Amnesty International, the Center for Justice and Accountability, he attended
ceremonies in San Salvador to commemorate the assassinations of the six Jesuit
priests and their two housekeepers. In his efforts to build a Museum of Memory
in El Salvador, he is currently working with an organization of former political
prisoners and torture survivors and returns to El Salvador regularly.
They continued torturing me because they didn’t believe me.
Finally, because I am a very lucky, lucky, lucky guy, and because of
many things that happened when I was in prison—a big campaign
happened in the newspapers and international organizations were
62
down, there is Cuba there.” And I looked. It was Cuba! A green long
island, a coast line made of serene white sand beaches. It was like,
wow, that’s Cuba. So, what the Cubans are doing? I was tortured
because of a visit that I never made. Why did the police torture me? I
kept looking down at Cuba, a long, very long green island.
asking for me, including the University of El Salvador etc.— I was
finally transferred from the torture chamber to the common cells.
And in that cell my blindfold was taken off and then I was able to
see the surroundings and perhaps I was there in the National Police
Headquarters. And the guys who came to kidnap me and torture
me were indeed members of the National Police. I was able to see
everybody there and to see the other prisoners there. The second day,
I was able to see everything. I was taken down to the underground
cells of the National Police Headquarters in San Salvador. This was
horrible. This was really, really, really horrible. In the underground
cells, I was there waiting to be killed because I knew that that’s the
place where the police killed the prisoners. I was waiting there to be
killed. It’s a horrible, horrible place. It’s underground and I knew
that it was underground not only because I stepped down, but also
because I remember that I saw above my head a huge, huge ball of
cucarachas [cockroaches], all of them alive—a big ball close to my
head. So I knew that I was underground. I was there for two days.
And then the guard came back for me and took me upstairs again. So
I asked myself, “Why did they take me down two days ago, now I
am back?” Then I was able to see everything.
I came to the United States and stayed with my family, but
the nightmares never left me. Every night I had bad nightmares; I
couldn’t sleep and I was afraid of going to sleep because I knew
that I was going to have a nightmare. But finally, finally one night
I dreamed of one of the streets of San Francisco and I dreamed of
Dolores Street and I said: now, something is changing here.
But this story of mine, I couldn’t tell it. I was not able to tell
what happened to me. I refused to say a word about it. Now I understand a lot of people who have been victims of torture or a violent
situation. I know the reason why they do not want to talk about it.
I know that. And I didn’t want to talk either. I refused to talk about
my experience in the prison for eleven years. I couldn’t. However,
the experience was pushing itself up. The story was coming out and
I couldn’t suppress it anymore. When it surfaced I began to tell the
story. I began to tell people what happened to me. Although I may
say that at the very beginning tears could not allow me to continue.
By a mistake of the guards—because they forgot to take me
down again—that’s why I’m alive. The evening of that day a
member of the International Committee of the Red Cross came and
found me. He said, “What are you doing here?” And I said, “Well I
was here.” “No, no, no,” he said. “We came yesterday and you were
not here.” I said, “Well, I was down there in the underground cell.”
So by mistake, the guards allowed him to find me. And he told my
family that I was there, because the military denied that I was there,
although I always was there. So, my family began to send friends
asking for me and then finally, I was allowed to leave the prison.
I was able to get therapy for several years. My therapist was a
very good and very nice person. As I was telling the story and getting
treatment, she told me something very, very important for me. She
said, “Listen Carlos, therapy can explain to you why you are so sad,
therapy can explain to you why you have bouts of sadness, or why
you behave in such and such way. But Carlos, what you really need
is justice. That’s the situation in your case—you need justice.” And it
happened, by chance, one week after I spoke with my therapist, that
the Center for Justice and Accountability approached me and said,
“You know Carlos, we have found two Salvadoran generals, both
former Ministers of Defense, General Vides Casanova and General
García, responsible for the killing of thousands in El Salvador and
we found them in Florida. Would you like to participate in a lawsuit
against them?” And I wanted to, but I had to think about it because of
the safety of my family in El Salvador. After one week I said, “Yes,
I want to do it. I want to come to Florida.” This was Florida in 2002.
“I want to come. I want to come to Florida.” And I think that is one of
the best things that happened to me as a torture survivor and victim.
I had my day in court. That’s very important, very, very important.
There are other facts that indeed allowed me to get out, but I
want to be short with this long story. I came out of the prison and
I went into hiding. I was badly, badly wounded. I was so wounded
that I decided to leave the country. And one of the things that I
want to tell you is that one evening at my home, probably the third
or fourth day after leaving the prison, I came out of the house,
probably to buy the newspaper or something, and this is what happened to me: as I was walking toward the store, I saw a big truck
with soldiers and I couldn’t look at them. It was impossible for me
to look at them because of what happened. And I have seen this
only in the cartoons—what happened to me when I saw the soldiers. My hair completely stood on end. You see, it grew like this.
[gesturing with hands] And I didn’t know why. The huge trauma
that I had inside was working at that moment but I didn’t know.
Seeking JUStice
The case is Romagoza v. García.3 You can find it on the Center
for Justice and Accountability website. It’s a seminal case. It’s so
important because it is the very first time that the two Salvadoran
generals were taken to the courtroom, because nobody, nobody in
El Salvador ever had been accused of human rights abuses in El
Salvador. The only two cases had been the four North American
religious women killed in 1980, where foot soldiers were brought to
trial in San Salvador, and the case of the Jesuits killed in November,
1989. Again, lower ranking officers of the Salvadoran army were
brought to trial, but not the masterminds, not the guy who ordered
the killings, not the generals or colonels. So it was the very first
Move to United StateS
I came to the United States. Before coming to the United States
I went to Mexico first. I had gotten my Master’s degree in Mexico
so I went back to Mexico, Mérida, Yucatán, for a while to heal my
wounds. And then my idea was to go to Europe to continue studying there. But I stayed in Mérida, Yucatán, and then my sister from
California asked me to come to visit. So I took a plane from Mérida,
Yucatán to Miami. After thirty minutes of taking off, the captain of
the plane said, “The passengers in the right side of the plane, look
63
time that the two Salvadoran generals were in the court, and I was
there. It was so good that I went because in those days I was able
to confront the perpetrators. I was able to confront General Vides
Casanova and General García. When I spoke, I asked General
Vides Casanova, “Why did you do nothing to prevent me from
being tortured? Why did you do nothing? Because you should have
known what happened.” They gave the orders, they were participants, it was planned. The whole killing of the Salvadoran people
was their plan. It was so good that I went to that place, and after I
was in the courtroom and I confronted General Vides Casanova it
was really good for me. I felt vindicated in many ways. I felt good
and I may say that after I left the courtroom I felt like it was worth
maybe a hundred hours of therapy. Finally, after a trial of four
weeks, the jurors found the Generals responsible for what happened
to us—Dr. Juan Romagoza, Neris Gonzalez, and myself. That’s the
icing on the cake. They were found guilty for many, many things,
and they were asked to pay $54.6 million.
had three main centers of torture: la Policía Nacional, la Policía
de Hacienda y la Guardia Nacional. So I want a museum in San
Salvador and now I am working with former political prisoners in
San Salvador and we are pushing for a museum.
Just one year ago, I got into the National Police Headquarters in
San Salvador. It was so difficult for me to enter a place in which people have been tortured. But I had to do it in San Salvador. But when I
went to visit the National Police Headquarters in San Salvador, at that
time Chief of the Police was a very friendly person. He’s a former
guerrilla commander and a doctor. When I told him my idea of having a museum there, the main center of torture in San Salvador, he
agreed. He asked one of his subordinates, a lieutenant, to take me on a
tour in the National Police Headquarters. I was very, very afraid, you
know, I couldn’t. But I had to do it anyway. I went with this young
man and he was telling me about what the past government did. They
destroyed all the areas of torture. There is no longer an area of torture
in that place. And in the area in which I was taken in which the men
parked, that is no longer a parking lot there. Now they have a garden
and also a big and beautiful fountain. So they are trying to erase the
whole proof of the areas of torture there. But this is important and I
want to finish with this: You know what happened? As I was there,
as this guy was telling me about what the government did to change
the place, I began to remember what happened to me in 1983 when
I went there and I said, “Well I was here but I was blindfolded. I
couldn’t see anything because I was blindfolded.” Although, the only
thing that I was allowed to see was the floor because of the space
left between the cheek bone and blindfold. And I told the lieutenant, “Wait a second, wait a second, this is the same floor that I saw
twenty-eight years ago. The same! They forgot to change the floor!”
And I saw it. And then I began to follow the floor and I found the
places to which I was taken. That’s what is so important: that we are
given a voice. That’s why it’s so important that torture survivors can
come and say something. This is the place in which I was tortured.
They took away so many things, but myself, as a victim, as a person
who was there in the chamber of torture, I have been able to find the
clues and the places to which I was taken.
It is for me a very important question when I am asked what
happened in the courtroom, because when as I was talking in the
courtroom, I was not alone at any moment, I felt the company
of many who died under torture, who were therefore unable to
come. After I left Florida and came back to teach again in San
Francisco—because I am a high school teacher—a lot of people
were asking me about my experience and a lot of organizations
were wanting me to talk about it. So I gave up my teaching position in San Francisco and began to do activism. And I became an
activist. I am a human rights activist. I gave up my teaching position and I began to do tours in the United States and elsewhere.
Stop ImpunIty project
But what is important is that the next year after the trial,
torture survivors from El Salvador—myself and six other victims—we decided to organize ourselves in an organization: The
Stop Impunity Project. It’s an organization made of Salvadoran
torture survivors. And we are pushing for justice, but also
against torture and impunity, because it’s been said here, and it’s
clear, the main supporter of torture is impunity, indeed, and if
nothing happens to the torturers, they will do it again.
concluSIon
Several months ago, last May, I went to Orlando, Florida to
witness General Vides Casanova coming to an immigration court
there. I went to see him and remind him that we have not forgotten, that he’s still on my mind. General Vides Casanova came
to what is called a deportation hearing. Today or tomorrow, the
immigration judge is going to make a decision if General Vides
Casanova is going to be deported. I was there in Florida to remind
him that I was the guy who was in the chamber of torture and
now things have changed. I am the guy who has the power. I am
the guy who came to bear witness of him. Probably he’s been
deported to San Salvador. Thank you so much.
I’ve been working at this for many, many years now, and I’ve
been in many places. I went to South America, Asia, and Europe.
Also, as I was working in South America, I went to Paraguay and
met torture survivors in Paraguay. I went to Buenos Aires and met
torture survivors there and also in Chile, Cambodia and Peru. In
those countries I have seen something that I want for San Salvador.
I have seen in those countries a museum of Historical Memory.
And I want that in San Salvador. I know that we can do it. In
every place I went, Paraguay, Argentina, Chile, or Cambodia, the
museum is located at the main center of torture. In El Salvador we
EndnotEs: session three: Voices of the survivors
1
U.N. Office of the High Comm’r for Human Rights, Manual on the Effective
Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Istanbul Protocol), 2004, HR/P/PT/8/
Rev.1, available at: http://www.unhcr.org/refworld/docid/4638aca62.html.
2
64
University of California, Berkeley, School of Law Human Rights Center,
After the First Trial: A Population-Based Survey on Knowledge and Perception
and the Extraordinary Chambers in the Courts of Cambodia (2011).
3 Romagoza v. García, 400 F.3d 1340 (11th Cir. 2005).
SESSION FOUR: INSTITUTIONALIZING MEDICAL
DOCUMENTATION AT THE NATIONAL LEVEL
Opening Remarks of Victor Madrigal*
G
ood morning. We are now starting a panel on
institutionalizing medical documentation at the national
level.
I would like to start by mentioning how glad I am to be
here. My first association with the IRCT was over eleven
years ago, when I headed a delegation that was working with
the Mexican government to attempt to implement the Istanbul
Protocol1 and institute it at a local level. It was by no means
a completed exercise, but it left me with one absolute lesson,
and that is that no matter how much civil society is engaged,
active, capable and outspoken, the elimination and justicability
of torture is ultimately the responsibility of the State. There are
constant reminders of this fact. The day before yesterday, a fire
in a Honduran prison killed 365 inmates who had not been sentenced, were awaiting pretrial detention, and were surviving on
an allocated budget of 22 cents per person per day. It is a stark
reminder of the fact that while we are listening today to testimonies of survivors, torture, and undue conditions of detention are
occurring as we speak, and it is likely, I am sure, that dozens if
not hundreds of persons will have been tortured since the start
of the session this morning.
At the very root of the notion of state responsibility lies
the idea of creating mechanisms to institutionalize the tools to
eradicate torture. Joining us in this panel, which will continue
through lunch, are five remarkable women that are undertaking
these tasks at local level with great ambition and oftentimes
under very challenging circumstances. Loraine Dela Cruz from
the Balay Rehabilitation Centre in the Philippines and Sebnem
Korur Financi, from the Human Rights Foundation in Turkey.
After lunch we will be joined by Rusudan Beriashvili, from
Tbilisi State Medical University of Georgia, and by Suzanne
Jabbour and Sana Hamzeh from RESTART Lebanon. We have
agreed with the speakers that they will keep their presentations
to a maximum of twenty minutes. We are starting late and therefore it may be that we will not have too much time for discussion
now, yet we hope that in the session in the afternoon we will be
able to take any questions that are not addressed this morning.
* Victor Madrigal-Borloz is Head of the Registry Section of the
Inter-American Commission on Human Rights (Washington D.C.,
USA) since 2007. He oversees in this capacity the initial examination of all petitions received, and manages the Commission’s programme for elimination of procedural delay. He is also the Head of
the Commission’s Plan of Action for the Rights of Lesbians, Gays
and Trans, Bisexual and Intersex Persons. On an annual basis since
2002, he chairs the international sessions of the International Centre
for the Rehabilitation of Torture Victims (Copenhagen, Denmark)
and chaired its General Assemblies of 2006 and 2009. He is a
Member of the Board of the International Justice Resource Centre
(www.ijrcenter.org) and co-founded the Costa Rican Association
of International Law (1992) and the Latin American Council of
International and Comparative Law (1994), and was co-editor of its
Law Review Foro Latinoamericano from 1994 to 1996.
Without further introduction, I would like to give the floor to
Loreine Dela Cruz from the Balay Rehabilitation Centre.
65
Remarks of Loreine Dela Cruz*
IntroductIon
G
ood morning to everyone. This morning I will tackle
the topic of making transformative engagements work
in a country like the Philippines. This, despite the
continuing challenges we face in torture prevention work. The
crucial thing in transformative engagement is to have a mindset
vis-a-vis the system that we are working with. We need to have
a positive, collaborative framework in order for transformative
engagement to work. It may be a long and tedious process but
surely success is in sight.
the PhIlIPPIne legal SyStem
As a starting point, it is important to understand our very
own legal system. There are three important features in the context of the Philippines. First, is the unique blend of the common
law and civil law principles in one legal system. The public law
is substantially patterned after the common law doctrines, while
the private law system follows the civil law tradition of Spain.
This can be attributed to our long history of colonization—three
centuries from Spain and half a century from the Americans.
Second is the separation of powers between branches of government. The current constitution has clear imprints of the U.S.
Constitution. This doctrine of separation of powers helps to
prevent the tyranny of concentrating all the sovereign powers of
the state in one body. As such, for civil society organizations,
we can utilize and undertake transformative engagement along
the lines of the three branches of government. The third and last,
is the power of judicial review and bill of rights in the constitution. Under our present constitution, the certiorari power of the
Supreme Court has been expanded to include the determination of whether or not there has been grave abuse of discretion
amounting to a lack or excess of jurisdiction on the part of any
branch or instrumentality of the government.
the rights that we can effectively utilize, which are enshrined
in our constitution, include: the right to due process; freedom
of speech, expression and of the press; right to counsel; right
to bail; liberty of abode; etcetera, etcetera. Over the years, our
supreme court has taken the lead in making landmark decisions
interpreting and expounding the meaning and scope of constitutionally guaranteed rights. It is actually the exercise of its power
of judicial review.
Now comes the new law that we have, which is a by-product
of transformative engagement. In the long battle toward the
enactment of this law, the anti-torture law, or what we call
Republic Act 9745 (RA 9745),2 there is a notion that torture is
a political act of the state authorities to suppress dissent. It has
been widely practiced under martial law in our country from
1972 to 1986, until the crucial toppling of the dictatorship by the
people power revolution in 1986. The CAT was ratified in that
same year, June 18, 1986. Although we can say that our constitution already contains the prohibition of torture, and despite the
restoration of democracy, the violent tradition of security forces
remained unchanged and, therefore, it is sad to note that impunity still remains. The anti-torture law, which is a by-product
of transformative engagement, clearly defines and criminalizes
torture; it imposes punishment on torturers or perpetrators, and it
prohibits secret detention places. Torture is treated as a separate
criminal act; there is no special amnesty to the perpetrator and
there is application of command responsibility. This is a result
of the long lobby and policy engagement efforts by engaged
civil society in the Philippines, primarily by the United Against
Torture Coalition (UATC), where the Balay Centre serves as
the lead convener. It has achieved this landmark policy decision
As a democratic and republican state, there is an entire article
in our constitution devoted to the bill of rights. Examples of
* Loreine Dela Cruz is a staunch human rights defender for more
than three decades. She, along with fellow human rights defenders in
the Philippines battled the dictatorship in the 70’s until the People
Power Revolution in 1986. She continued with her human rights
advocacy and peace building work to date as she still sees lots of
areas to work on in terms of changes. These include, legal, policy and
judicial reforms; torture rehabilitation and prevention even more,
with the enactment of the anti-torture law; access to justice; peace
building and humanitarian protection. Aside from human rights and
peace building, she is also very much into disaster risk reduction and
climate justice because of the Philippines’ nature of being prone to
disasters. Her other areas of specialization are organizational
development, research and program evaluation.
66
up to us to seize every opportunity open to us, as if they are up
for grabs.
twenty years after ratification of the CAT. On top of it all, there
is a comprehensive rehabilitation program for the victims of
torture and their families, and a parallel rehabilitation program
for the perpetrators. The transformative engagement remains as
impunity still remains. There is still a lot of work to do in terms
of testing the law.
ChaLLenges ahead
Lastly, I will address the continuing challenges despite
reform engagement. Despite a more conducive environment
provided by reforms, many challenges continue to prime civilsociety groups and freedom-from-torture advocates, like all
of us here. First is the security sector reform. Security matters
to the poor and other vulnerable groups, most especially the
women and children. Bad policing, weak justice and penal systems and corrupt military men mean that citizens will be made
to suffer disproportionately from crime and insecurity and fear.
Security sector reform is a core of government responsibility
and vital for the protection of the human rights. It is important
for improved governance and a key component for a broader
human-security agenda. It relates to the second challenge, which
is the rights-focused governance. Working on a rights-focused
governance guarantees greater freedom and liberty on the part
of the victims and, more so, for the larger citizenry in a country.
It is a reflection of the level of development and progress of the
state and its citizenry. The third is building the human rights
consciousness which is a continuing challenge for human rights
defenders and advocates towards engaging the wider citizenry
on efforts of civil society. The deeper and wider the human
rights consciousness of the citizenry can be attributed to the
efforts of civil society. Fourth is the forensic training for purposes of torture documentation toward access to justice that contributes to healing and achieving justice for the victims and their
families. On the other hand, such require protection on the part
of the professionals engaged in both rehabilitation and prevention of the occurrence of torture. Lastly is the bio-psychosocial
support and sanctuary: a good and better understanding of the
victim’s psychological and social situation facilitates their faster
healing process, thus, the significance of bio-psychosocial support that may be provided by both the state and non-state actors.
A positive mental state contributes to fast healing and recovery
at the same time that victim safety and security are immediately
addressed through sanctuaries and safe places to stay. The widest and strongest possible support is needed for the protection of
the victims. The broad human rights constituency can contribute
to the needed protection of victims at the same time that network
building complements the human rights constituency for the
victim’s protection.
Part of testing the law is this case, the case of Lenin Salas.
We took it as a pilot test in relation to the enforcement of the
new law. A torture complaint was filed but dismissed. There
was a motion of reconsideration filed with the Department of
Justice. It only proves that despite reforms such as this, impunity
still remains.
Lessons Learned
So what are the lessons from transformative engagement,
which is a product of long years of efforts by civil society in the
Philippines? First, reform engagement has a different approach.
Its value can only be seen in the long run and not in the immediate, short-term. Reform engagement needs time and flexibility.
You cannot readily see what works and what does not. Second,
there’s a need to creatively invest in justice delivery. Delivery of
justice, as said by Victor, is primarily the role and responsibility of the government. Only governments can credibly provide
it. It will benefit society as a whole by increasing the citizens’
access to institutions that protect their liberties. There is a kind
of thinking now in our country that it would be useful to subsidize the delivery of justice rather than subsidizing utilities like
water and electricity. Third, ownership of reforms is critical and
crucial. Access to justice reforms must result in greater respect
for civil liberties. It must likewise have impacts on the ground.
Fourth, strong leadership is a key in this kind of work. Reforms
are usually painful. Strong leaders in the different branches of
government are the key to inspiring individual members in that
government. Former Chief Justices Davide and Panganiban in
our Supreme Court have displayed leadership and tenacity in
setting the stage for judiciary reforms. Fifth is consensus building among government branches: meaningful reforms, even for
those in the judiciary, require action from both the executive
and legislative branches of the government. The legislature
plays an important role in ensuring judicial independence and
accountability, as is the case right now where we have the
impeachment of our Chief Justice. Many of you may have seen
this on the Internet. Sixth, reforms are an ongoing process. There
are reforms that will likely address the institutional culture,
and there are reforms that contribute to creating new capabilities in the different branches of government. All these reforms
necessitate change management. And last, the need for sectorwide approaches to reform. In the past, judicial reform only
involved training of judges. We have trained many judges in the
Philippines about the existence and phenomenon of torture. In
the process, there is a need for police reform, there’s a need to
train public attorneys, and the importance of creating paralegals
to help aid the victims. Now, the need becomes a sector-wide
reform or it may become a branch-wide reform. There are wide
avenues open for reforms and transformative engagement. It is
True enough, transformative engagement brings about
reforms in various areas and branches of government. It provides relief, some alleviation, and a certain level of justice and
reparation for the victims. This coming 21st of February, we are
hoping that the OP CAT in our country will be ratified. It’s the
third reading and hopefully the final, and the majority of senators will really pass it, will ratify it.
ConCLusion
It’s a continuing challenge for all of us. In closing, you are
probably aware of some developments in our country on the
67
last part of last year—our former president was arrested while
trying to fly out of the country and we have the impeachment of
Corona, our chief justice. Additionally, Palparan the notorious
killer and torturer of human rights defenders and justice advocates, is being hounded. All these events have given us hope that
things might finally change for us. This is the first time that we
are seeing these happening—righting the wrongs and undoing
the mistakes of the past—and hopefully, this paves the way for a
better future. I think this is a triumph of vision, a triumph of will,
and a triumph of justice. To close, I would just like to share my
favorite line from the film The Shawshank Redemption: “Hope
is a good thing, and a good thing never dies.”
Remarks of Sebnem Korur Fincanci*
IntroductIon
T
hank you my dear chair. Actually, I want to start with
thanking BALAY and Medical Action Group and to
express the gratitude and privilege that I feel in working with them. But actually thanks to the minimized staff of
IRCT for bringing us together, and for bringing together this
huge accumulation of knowledge and experience. And of course
thanks to Washington College of Law for collaborating with us
to have this whole gathering and being together for two days.
With regards to institutionalization, I’m not sure at all what
we could achieve but I will try to describe what the environment
is in Turkey, what has changed and what we couldn’t change all
together. Of course this large scale of training is a really successful story for us, but it didn’t start with that.
* Sebnem Korur Fincanci is the chair of Human Rights Foundation
of Turkey and Professor at Istanbul University, Istanbul Faculty
of Medicine, Department of Forensic Medicine. Fields of interest
include: human rights, torture, women’s rights, domestic violence,
violence against women, violence against children, postmortem
interval, postmortem histopathological and biochemical changes.
Participation of International studies: On behalf of the United
Nations International War Crimes Tribunal (ICTY UN); the autopsies of bodies from mass graves in Bosnia Kalesija, 29 September
to 19 October 1996; UN Istanbul Protocol, 1999 - UN international
education, EC, WMA, IRCT; World Medical Association, Physicians
for Human Rights Dual Loyalty of Physicians – Preparatory work
of a Guideline for Physicians, South Africa, 2000; WHO Sexual
Violence Against Women Survey and the manual work, Switzerland,
2002; Istanbul Protocol Implementation Project; 2003-2005 Medical
Trainer November 2004, Georgia; 2005 – Training Coordinator;
Survey of Human Rights Violations in the Philippines, 2005. She
has received several awards, including “The International Medical
Peace” award by International Medical Peace Work Network,
“Medicine and Conscience” by 4 International Prevention of Nuclear
War International Physicians (IPPNW), Congress, 14 October 2011,
Germany. She is a master trainer of Istanbul Protocol; she has developed an Istanbul Protocol training module and trained at national
and international training programs since 2001.
Many years ago in the middle of the 1990s, the Turkish
Medical Association together with Human Rights Foundation
of Turkey and the Society of Forensic Medicine Specialist came
together because we realized that human rights abuses were
pervasive and we could not document them. Without documentation, we could not prevent them. In preventive medicine it
is very important to show the severity of the problem, and we
worked to figure out how to do this. It was very important to
collaborate with general practitioners who usually examined the
victims of these human rights violation cases, and we started
trainings. Of course we were inexperienced in the beginning—
there was much we didn’t know 15 years ago. At the same time
we started to write a textbook and for the first time in Turkey
there was a chapter in a forensic medicine textbook dedicated to
human rights violations. It was really a success for us; even we
couldn’t manage to discuss human rights violations in the first
days of this project. But from 1996 to 1998, we had the common
knowledge, we had the common understanding, we had a chapter on human rights violations. Then, of course we had already
started a course for fifth-year medical students in Istanbul
Faculty of Medicine and then came the Istanbul Protocol.3 I
have to thank Physicians for Human Rights (PHR), because they
took the lead in this process, particularly Vincent Iacopino, and
68
was very similar to the I.P.I.P. and P.T.D. projects and we used
all the documents that were prepared for those projects. It was
not easy to start, of course, because of all the extensive discussions. We first started in 2005 and for four years we discussed
who should be in the project, who should collaborate in this
project with the Ministry of Justice and Ministry of Health. At
the end of 2008, we could only collaborate with the Ministry
of Health, we weren’t able to collaborate with the Ministry of
Justice, unfortunately.
of course someone who is not with us now, Chicago medical
examiner Robert Kirschner. To be Bob Kirschner’s colleague
is the biggest privilege in my life and I just want to remember
him once more.
Training ProjecTs
We started our work in 1996, and in 1999 we all came
together in the department that I work, and had been the head of
the department then. Then of course from within our department
the document came to the United Nations and was accepted as a
United Nations document in 1999. From then on, our trainings
were Istanbul Protocol trainings. Before the Istanbul Protocol,
all the trainings were called human rights violations trainings
and medical doctors against human rights violations trainings,
but immediately after 1999 they became Istanbul Protocol
trainings for Human Rights Foundation of Turkey. Throughout
2001-2007 we learned a lot, but we weren’t alone of course,
we worked together with International Rehabilitation Council
for Torture Victims (IRCT). First came the Istanbul Protocol
implementation project, then the prevention through documentation project. Throughout 2003 to 2008, we had trainings in
10 countries. But these weren’t the only 10 countries—these
are only the project countries. There are several other countries
that we don’t count in this project, but we have worked with
all of the members of IRCT. This was a huge project because
it didn’t just promote these guidelines but rather it promoted a
new understanding of human rights violations and a new understanding of documentation. Before this project, we tried to rehabilitate but we couldn’t document the violations. We couldn’t
prove that there was torture at all. Afterward, there were other
success stories, for instance in Georgia which will be discussed
this afternoon when my colleague Rusudan will present how
they implemented a huge curriculum at a university. And then
my dear colleagues from Egypt, from Cairo University, they
have also implemented a curriculum at the university. This is
of course the history of our large-scale training. Without these
achievements, without these successful stories, we couldn’t have
achieved such large-scale training in Turkey.
The project was very important because we would train
half of the general practitioners who worked in the emergency
departments and who examined individuals who had been
detained. This was a very valuable result for all of us. In addition, one quarter of the judges and prosecutors would be trained.
Because of the discussions, our time for the training was very
limited and we needed to run all over the country. In only 4
months, we had 120 trainings in 30 cities. Sometimes we forget
the way to our own homes, all of us. Of course, there were 163
trainers, but we had to accompany the trainers, we had to supervise them and there were only 25-30 of us. We had immense
support from IRCT and their experts. Lilla Hardi was with us as
a master trainer and international trainer; Rusudan Beriashvili
was with us along with many of our colleagues from IRCT. It
was a huge support. We had five days to train all of our trainers
and the training for our users was three days; of course the only
difference was the interactive methodologies imbedded in these
trainings.
It was very helpful that these were all adult trainings. Before
the trainings took place, we also tested these methodologies
through ToT trainings. In these trainings, all the participants
were very active and improved a lot throughout the training.
For example, during a role-play exercise in an interview session, all our participants were very dedicated and they prepared
themselves by practicing at home each night. They prepared
themselves to play the role of a torture survivor; they tried to be
a torture survivor, a real torture survivor. It was a really a very
helpful experience for all of us. We had working groups and
cases that we had prepared. Our participants presented and we
evaluated their presenting skills to give them feedback so that
they could improve their trainings skills.
Before this project in Turkey, the government or the Turkish
State would dismiss us as terrorists, and I have been called
many different names and claimed to be affiliated with leftist
groups. Because of the stigmatization they did not want me as a
trainer in the beginning. They refused to work with me and, as
a result, they refused the Human Rights Foundation, because I
was the chair. They refused to work with the Society of Forensic
Medicine because I was the founding member and had been the
chair for 10 years.
effecTs of The Trainings
What changed throughout these trainings? Could we see
what was the impact of the trainings? We had pre-test and posttests throughout these trainings and, according to the tests, we
began with 30% of general practitioners justifying torture before
the training while only 2% doing so after the trainings. The
30% starting point was a shame, but true. We couldn’t make it
zero, unfortunately, because there were political involvements
in a certain sense. This progress is very important for all of us.
Only 2/3 of the general practitioners had an understanding of
the value of psychological evaluation, but by the end nearly all
of them were using psychological evaluation and this was an
important result. Many of our colleagues thought of the Turkish
Despite this, we decided to move forward and we said that
we are all Turkish Medical Association members, we are all
medical doctors and we can move forward with the Turkish
Medical Association. After all, it was a very precious project for
us because we could then reach many of our colleagues. You can
see the numbers, we had 250 trainers in the project and 5,500
users, including judges, prosecutors, and general practitioners. It
69
Medical Association as an organization that somehow did not
belong to them; an organization that would not support them.
But at the end of the training they understood that the Turkish
Medical Association exists for general practitioners and all
medical doctors who have an ethical medical attitude. I think
this was a very successful result.
immediately, as you may recall there was the Mavi Marmara,
the Blue Marmara occasion, and the official institute of forensic medicine stated that all the medical examinations would be
conducted according to the Istanbul Protocol and they requested
help. Thus, after a long time of exile from the official institute
of forensic medicine, I have been invited back to organize the
medical examinations.
What was the situation before the training? We tried to
understand the situation we were starting from; there were more
than 1200 medical-legal reports randomly selected from the
reports of one year. We reviewed all the reports and realized
that there are no standard forms; there are no diagrams for the
reports. Even in the official forensic units they didn’t use any
standardized forms, they didn’t use any diagrams at all. They
didn’t have any medical history from the cases. Around 99%
of the cases didn’t have medical history. There were no complaints for 92% of the cases. Given this lack of information,
how could they make decisions based on these reports? How
could they document the events? What would they document at
all? Medical examinations for 82% of the cases were conducted
with the clients fully dressed. How could they conduct a full
examination of a person when he or she is dressed at all? We
didn’t understand this methodology. We knew about these situations but we couldn’t prove they existed beforehand. To observe
the situation, however, was good proof for us. They didn’t have
any referrals, further tests, or interpretations or comments. Some
had vague findings but no comments. This was an example;
even they were very tired of these cases. They would produce
some stamps, the stamps of reports, but what would they write?
There were no complaints documented during detention. We
didn’t have medical histories, we didn’t have documentation of
complaints during detention, but we had a stamp. Afterwards, a
physical examination while fully-dressed revealed no injuries.
This was another stamp. These reports were really incredible;
they claimed that everyone was physically fit despite the fact
that they were in detention. After the training, one of our participants had just written a report saying that the client was
physically fit and then he crumpled up that paper and wrote out
a truthful and exact report. It was a success story and afterwards
they built a special unit for forensic cases, particularly those
cases coming from detention, in the emergency units in hospitals. This was a success of course, to build these kind of units,
and they invited us to see. One of our trainees was the head of
one of these units at a hospital we visited. It was really great for
us to see this success.
Examination and training Logistics
How did we organize the medical examinations? We
requested help from all the trainees from the field, because there
were 400 cases that needed to be examined. We called all the
trainees and we hosted a short course for psychiatric professionals who hadn’t been a part of the project. We examined all the
people. Human Rights Foundation had planned a framework for
a world without torture so we started a helpline. Our trainees
work shifts on this helpline and the helpline is available 24 hours
a day for all the medical doctors who experience a problem with
the government authorities or with the police. For instance, if
a medical doctor has a problem during their nightshift in the
hospital, a police wants to stay in the medical examination room
or refuses to take handcuffs of, they can call this hotline to ask
whether there is anything that should be done or if there are any
questions.
Additionally, we will soon start an e-learning program of
which I’m sorry that the trainings are all in Turkish for the time
being, but I hope they will be in English in the near future. We
have the first trainees, 29 trainees in all, participating in the first
phase of the training and of course this is another success story.
But is it a true success story? Not at all. There continue to be
problems because the health policy has changed in Turkey and
most of the trainees that worked for the emergency units of the
hospitals are now family doctors. This is a problem of course.
concLusion
We were only a few people working to document torture,
now we are many. Now our trainees are having their own trainings in their communities, in the districts where they work. Even
though they don’t work directly with torture survivors, they train
the medical doctors who work for the emergency units. This is
a wave, just getting larger throughout the country. As you may
remember, we couldn’t have the training with the Ministry of
Justice then. But it is important that just last week the constitutional court invited me for a lecture on the right to life. And next
week, just after I go back to Turkey, I will be there again for
a lecture on torture and the Istanbul Protocol so it’s changing.
We can change the world, I think. We can change it together in
solidarity. Thank you all for your attention.
The state often condemned the Istanbul Protocol and the
Minnesota Autopsy Protocol4 in Turkey. “What is Minnesota
Autopsy Protocol? What is Istanbul Protocol?” They would ask,
and then claim that we didn’t need such kinds of protocols. But
70
Remarks of Rusudan Beriashvili*
IntroductIon
G
ood Afternoon. Thank you, first of all, to the organizers
of this event for giving me a chance to participate in
this meeting.
Before continuing to the forensic items, I would like to continue our lunch spirit and introduce Georgia as a country. This is
a country situated in the easternmost part of Europe, in between
Russia and Turkey. As all Georgians believe, we are the first
European people. We know this according to our archaeology
excavations, and we know that we are mentioned in mythology,
which means Georgia is a very old country. We have our own
alphabet, which is among the fourteen main alphabets of the
world. And we have grapes and wine, so you are welcome to the
wine touring in Georgia. We have good resources, high mountains, we have lakes and the Black Sea. We have old churches
and old monuments of Christianity. Our capital city is 1,500
years old and we have old buildings still preserved. Welcome to
Georgia. We will show our hospitality to everybody.
the ForensIc system In GeorGIa
field of forensic medicine. After the ‘Sovietization’ of Georgia,
everything changed. It eventually resulted in the creation of
the forensic medicine bureau that we have now. In 1921, the
real ‘Sovietization’ of Georgia happened, which arose from the
Soviet inheritance.
About the forensic system in Georgia. We believe that our
system comes from the European school. Our forensic school
once belonged to the former Russian or German school. It is
based on Napoleonic law, and many peculiarities of our forensic
system stem from this fact. The first and most important reform
was performed in the 19th century in 1864, when justice system
reform in Georgia resulted in the institutionalization of forensic
investigations. Before, it had special physicians working in the
The first department of forensic medicine as an institute
was founded in 1941, and in 1952, the Bureau of Forensic
Medicalizations within the Ministry of Health was founded. It
consisted of three departments according to the main forensic
medicine. Until now, ‘forensic medicine’ is that term that we use
so we do not substitute forensic pathology and forensic science.
But still forensic medicine consists of forensic pathology that
consists of the autopsy rooms and the laboratory, the forensic
ambulance or clinic that we call for living examination or past
examination, and forensic laboratories for evidenced examination, examination of collaborations of evidence. This was the
beauty of the first forensic bureau in Georgia, and I can say that
in this building, the forensic medical examination bureau was
situated until 2004. In 2004, the Bureau of Forensic Medical
Examinations moved from the medical system to the justice
system and joined to other forensic examinations institutions, so
nowadays we have finished the Forensic Bureau which consists
of lots of other forensic examinations partly with engineering,
computing, chemical analysis, and forensic medicine included.
The main structure and system reflected how it worked in
Georgia in the past. In 2009, the mission of forensic bureau
belonged to the Ministry of Justice and the Ministry of the
Interior had some small criminal investigation laboratory, but
did not include the forensic medical department. All the forensic medical work was performed under the Ministry of Justice
* Rusudan Beriashvili has worked in the field of Forensic Medicine
since 1996. She began as an Assistant Professor of Forensic Medicine
at Tbilisi State Medical University (TSMU), then as an Associate
Professor of Forensic Medicine at TSMU (since 2003 up to date).
Since 2005, Ms. Beriashvili has worked in National Forensics Bureau
of Georgia as DNA Consulting Scientist. In 2009, she became Head
of Forensic Biology (DNA) of National Forensics Bureau of Georgia.
From 2009–2011, she served as Head of Forensic Medicine of
National Forensics Bureau of Georgia. She was involved in IPIP in
2003 when the Project in Georgia was started. In 2004, she participated in IPIP ToU training in Georgia and, in 2007, in IPIP ToT
training as a local trainer. Since 2007, she has been participating
in several international IPIP trainings in Georgia, Egypt, Turkey,
and Uzbekistan as an international trainer and an Expert in Forensic
Medicine. In 2008, with support of IRCT, Ms. Beriashvili elaborated
the Syllabus in Prevention and Documentation of Torture for undergraduate and postgraduate medical curriculum of Tbilisi State Medical
University that was later implemented not only in TSMU, but in universities of Cairo, Ain Shamps, Beni Suif and others in Egypt. Since 2009,
she has been a member of the Forensic Experts Group of IRCT.
71
attend these conferences. In Georgia, the population sits at four
million or less, though forensic medical professionals number
no more than 150. We think that this is very low number of
professionals, especially because these people work in all parts
of Georgia.
during these five years. Most of the orders and official appointment of forensic examination came from prosecutors and from
the court. Here I must mention that the first great jump and first
great step was the reform of the judiciary and the criminal system in Georgia, in 2001, when the independent forensic examination was elevated. Before 2001, there was no independent
forensic examination in Georgia. Now, the national forensic
bureau is the outermost agency which in Georgian government
means that it does not belong to any ministerial control. It does
not belong to the Ministry of Justice or Health, and is only under
immediate supervision by the Prime Minister. So formally, this
is independent. And it was founded as an independent entity in
2009, starting from the general one.
Challenges FaCing the ngO seCtOr
Challenges we have in the nongovernmental sector.
Nongovernmental organizations have a very limited capacity.
There is a lack of funding and laboratory access. So, for the
most party, they can only perform the evaluation part of the
forensic examination. The factual parts are based mostly on the
primary examination. They can likewise perform the clinical
examination by themselves. They participate in joint commissions with the state system, and what is most important are that
are responsibilities, obligations, and possibilities of the NGO are
not clearly undermined by domestic legislation. Last year, legislation had been changed so that the control of forensic examination is by the Ministry of Health. The Ministry of Health issued
the special regulated document that does recognize any institution as a forensic medical institution, except the state-run one.
This of course resulted in a very serious discussion, and now
NGOs work for change in this regulation and the association
works together in a positive way.
All the other forensic departments are located in the new
building, including biology, DNA, and chemistry. There are
fourteen different stops on these two parts of this building, and
forensic psychiatry facility and forensic medicine are situated
in different buildings. Now, the system works with the president and government-initiated bureau that is an independent
legal entity of public law. As such, the orders come from court,
ministry of interior, ministry of defense and private bodies. Due
to the reform I already mentioned, private orders for forensic
examination are possible. In those cases, private bodies mostly
request examinations related to sexual cases.
Here, I would like to point out that we are involved in implementing the Istanbul Protocol. Since 2003, fifty physicians and
twenty-five legal professionals from this country have been
trained in local implementations. 2004 marked the first training
of users, and 2007 marked the training of trainers.
Another part of the forensic system in Georgia includes
forensic NGOs that appeared just after the reform I mentioned
in 2001. The first NGOs appeared mostly between 2002 and
2004, after the change of criminal law and possibilities on independent alternate forensic reports to the present. One forensic
NGO exists in Georgia. This is a victory, though it is of limited
capacity. They have just a few rooms, mainly just the cabinet tile
rooms and the office tile rooms. This organization is dedicated
to document examination and, sometimes, forensic clinical
examinations as well. They communicate very fruitfully with
other NGOs. So, before it was just forensic medical NGOs doing
everything. Now, other forensic organizations have been established, so they can perform forensic engineering examinations
as well. In 2005, the Georgina Forensic Medical Association
was founded as a continuation of already existing forensic
medical associations that existed during the Soviet period. If we
add here the university part, we receive the total existence of
forensic examination, especially formal forensic examinations
in Georgia.
Other challenges are the difference between international
and national legislation. I cannot say unfortunately that every
of this thing is fulfilled now completely, but we work very
hard to change the situation. The follow up is guidelines and
documentations that were translated into Georgian and issued
for the further use. The Georgian Medical Association and the
Public Defender’s Office contributed significantly in this. I can
say very proudly that the Public Defender’s Office is really the
body that is sometimes the last defense for cases related to torture. In 2005, in our criminal code, the special articles appeared
with a definition of torture. Unfortunately, the UN definition is
not reflected in our code, but we are working on it. Prohibition
of torture was included in Article 17 of the Constitution of
Georgia in 2008, and the anti-torture plan of action in Georgia
was elaborated. Of course, the plan of action included the implementation of the Istanbul Protocol as well. So, this was a process
of discussion.
Together, we have four parts. We have the state system,
NGOs, universities, and associations. Interrelations between
these four exist. Once a year, the scientific practical conference
for forensic medical profession is organized. Mostly this is in
June because this is the date founding of university department
of forensic medicine. And here something happens. Everybody
comes and they start to talk about the problems and challenges,
try not to blame each other and finish with a big festivities and
kissing and drinking wine. We are proud that we have the interrelationships. Officially and non-officially, we discuss many
cases. So this is just an example of how many people usually
Then we began the training of trainers, examining how trainers were used in other countries. I have already mentioned that I
participated in great projects in Turkey, Egypt, and Uzbekistan.
In these countries, it was our first chance to participate and
gain information about the Istanbul Protocol and torture. It was
very fruitful, a very good meeting. For example, Azerbaijani
and Armenian professionals have a tense relationship. In the
72
beginning, they didn’t even want to discuss the same things
together, but in the concluding portion of our trainings, they had
finally formed common groups to discuss the issues. So, it was
a really fruitful meeting. So this is the training.
forensic medicine contains a special chapter on torture and special forms of injury. The practical work in forensic medicine is
minimal, but we are working on methodology and science. We
release books, guidelines, and protocols. What is important is
that we recruit new generations, the new generation of forensic
medicine postgraduate students. The challenges for Georgia are
the documentation of injuries, the interpretation of damages, and
impartial professionalism. There are also problems related to
awareness and education, plus some technical problems like the
prohibition of cameras in prisons so on. We have interpretation
problems, related to the fear held by professionals in interpreting
accurately.
The next step was preparation of the new Syllabus for a
University curriculum, created in 2008 to facilitate a medical university. This is also when it was mentioned today.
Undergraduate and past graduate levels and the syllabus was
admitted and adopted for Egyptian universities, so I had great
honor to work with Cairo University and Adie University
people. This is how the process of learning Istanbul Protocol
advances. We included the Istanbul Protocol in pre-diploma,
post-diploma curricula, not only for forensic medicine but also
for psychology as well. Released in 2011, the new textbook in
All of this is not so easy. It is a step-by-step movement, and
we must simply try out best. Thank you very much.
Remarks of Suzanne Jabbour*
I
would like to start by thanking the organizer of this event for
giving me the chance to be here and to share with you our
experience with Restart, which started in 2010 until 2013 in
partnership with the International Committee for the Red Cross
(ICRC). Before starting this project, we analyzed the legal and
forensic system in Lebanon.
Lebanon ratified the UN CAT on October 5, 2000. So now
our national civil code can fully adopt its provisions. The UN
CAT was ratified 5th of September also 2008. Lebanon does
not recognize the right of the individual to submit complaints
under any of the international frameworks set forth in UN CAT
Article 22. The lack of a national human rights system prevents
torture victims in Lebanon from accessing any international
judicial remedies. Medical evidence of both a physical and psychological nature is generally accepted in criminal proceedings,
but there are no specific guidelines on how to evaluate this type
of evidence according to, for example, the Istanbul Protocol.
Incorporation of the provisions of the UN CAT into the
domestic law includes: criminalizing all forms of torture within
the penal law; establishing independent national preventative
mechanism according to the obligation foreseen by the UN
CAT; creating a case law and opening up to prosecution allegations of torture; revising the definition of torture and include it
into the domestic law, developing more accredited curriculum
for medical experts and forensic evidence, under the responsibility of the ministry of justice; establishing a cooperation mechanism between judges and forensic doctors to allow adequate
application of the legal procedures of allegations of torture
cases; raising public awareness on torture practices in Lebanese
place of deprivation of liberty, and during interrogation; creating groups in support of raising doctor’s mandate through civil
society advocate network; developing an official accountability
system to disseminate disciplinary reports to the public; developing a system to record forensic evidence and issue creditability of doctor’s reports defining an ad hoc criteria according to
the Istanbul protocol; and legislating for a mandatory medical
examination to be executed by official forensic doctors on all
detainees.
* Suzanne Jabbour is the Executive Director of Restart Center for
Rehabilitation of Victims of Violence and Torture, Vice-President
of the UN Sub-Committee on Prevention of Torture (UN SPT), and
executive committee member of the International Rehabilitation
Council for Torture Victims (IRCT). She has served as the leader of
many projects implemented with the financial support of the European
Commission, the UNHCR, Drosos Foundation and others.
73
European commission, judges, lawyers, forensic doctors, human
rights activists as well as a number of international organizations
and local NGOs involved in the field. The conference ended
with a debate on the role played by NGOs in the prevention
of torture. Particular attention was drawn on Restart expertise
and on evaluating the growing project, including its potential
expected impact on its beneficiaries. Many follow-up meetings
took place with the concerned parties with the presence of the
subcommittee in order to discuss the methodology and to set a
work plan.
The general objective of the FEET project is to fight against
torture by advocating the recognition of forensic examination
of the legal evidence of torture before Lebanese national and
regional courts, as well as human rights institutions, and to give
free execution of international standards mechanisms as obligation contracted by Lebanon in the fight against torture.
FEET activities include meetings and round tables with civil
society actors, including judges, lawyers, forensic doctors, and
human rights activists during 2010, 2011, and 2012; establishing a subcommittee as the responsible body on the advocacy
component to follow up on the working mechanism and the
implementation of the project.
A study on the judicial system and the forensic investigation and evaluation methods has been developed by lawyer Jeff
Tommy, published in the Journal of Torture, Volume 3. The
study on conforming Lebanese law with international standards
has been conducted by Judge Nazir Kehaty. A wide coordination has been established with judges from different districts,
lawyers, forensic doctors, ISF members, and human rights
activists with the aim to fight against torture and identify a case
study. Training sessions on the Istanbul Protocol have been
conducted with forensic doctors, legal experts, and human rights
activists. With the launch of its course in forensics, Belmont
University is collaborating with Restart to target the definition
of torture, Istanbul Protocol, physical and psychological evidence of torture, international standards on torture, UN CAT and
the Lebanese legal framework, and field studies. The collaboration is also focused on increasing capacity and professional
upgrading to include forensic doctors and lawyers, who develop
a technical vocabulary and a more effective methodology while
addressing torture cases. A booklet on the use of forensic evidence for the prevention of torture has also been published. The
sitting committee has appointed a lawyer to monitor cases of
torture in Tripoli court, north of Lebanon. Also created is a multidiscipline monitory team composed by independent network of
experts who are free to cooperate without the official approval
of the institution. A center of physiological and forensic medicine for the prevention of torture has been established in the
Palace of Justice to ensure the right to a medical examination
for all person during the investigation. A project under consideration with a support of German Embassy in Beirut would detect
and document cases of torture, and submit a report for investigation and prosecution. Lebanon must also focus on creating case
law that affirms the legal value of forensic evaluation before
Lebanese national courts.
Several meetings were here held before Restart staff, lawyers,
and judges on August 17, 23, and 31, and on September 6 and 16.
The meeting recommended developing a concept note for imposing a monitoring mechanism for the detection of torture and the
human rights violation perpetrated in places of detention during
the course of the investigation; and advocating for the effectiveness of the general prosecution and accountability process irrespective of the rights of the person deprived of liberty.
During the round table held on September 30, 2010, participants adopted the recommendations previously discussed
that were drafted by the top committee. On December 15, 2010,
participants adopted the concept note as drafted by the subcommittee and started to develop a joint action plan for the year
2011. The plan includes: lobbying for the ratification of OMU
before the Ministry of Justice to create a committee of human
rights representatives; establishing a hotline system for torture
survivors and prisoner victims to report allegation of torture;
and establishing a national observatory for human rights violations. The body should be composed in order to receive collect,
analyze, investigate, track, and disseminate information. The data
collected should be submitted to the general prosecutor. The plan
also includes: encouraging judges, lawyers, forensic doctors,
and human rights activists to produce written documentation on
the human rights violations and to disseminate it among media;
launching an international media campaign; introducing a human
right curriculum and a forensic medicine curriculum at university
level; coordinating with the training institute of the judicial sector to introduce the curriculum of forensic medicine; organizing
training on the Istanbul Protocol and implementation of the UN
CAT; coordinating with the Ministry of Justice and Ministry of
House to organize training about the Istanbul Protocol for judges,
lawyers, forensic doctors, internal security forces, and human
rights activists; amending the penal code by working with the
committee of law; amending the bar association to introduce the
definition of torture and having the medical detection impose
mandatory forensic consultation; and reactivating the provisions
of the Lebanese law concerning the conduction of monthly visits
to the prison by judges and by the committee of lawyers as well
as the reporting procedures.
Restart’s challenges include properly identifying torture
cases. Victims have lost confidence in the Lebanese judicial
system. They have developed a feeling of fear of potential
revenge against themselves and need to be protected. There is
no national preventive system and a lack of awareness. We need
to raise awareness among individuals to overcome the general
denial sense developed by the general judicial system around
the presence of torture cases. There must also be governmental
awareness. The Lebanese government needs to break away from
the governmental stalemate faced while fighting against torture
in Lebanon, and produce a more consistent and effective legislation in line with its international obligations.
On April 6 2011, Restart organized a press conference,
attended by representatives from European embassies, the
74
While creation of a monitoring system is feasible, the main
issues remain the protection of the victim, since the domestic
law does not provide an effective legal framework for a protection mechanism for during and after trial and judicial sentence.
The working group was an added value for Restart, for it helped
us to develop a deeper understanding of the function of forensic
evidence in juridical systems and of their weaknesses and challenges. Thank you for your attention.
Remarks of Dr. Sana Hamzeh*
I
would like to add a bit about our experience with Belmont
University. We had made a lot of training there. Our main
objective was to introduce a new curriculum about torture to
sensitize the graduate students who later on will be indirectly in
contact with victims.
of torture. Participants also learned about the specific Lebanese
context to torture, rehabilitation of victims, and advocacy in
prohibiting torture, the different diagnosis passed, and the
guidelines for the medical evaluation of torture according to the
forensic perspective.
One other objective is to sensitize and to raise awareness
among the students on how to deal with torture cases, to both
upgrade their professional skills as mental health specialists and
guarantee the sustainability of FEAT project. This three-day
block course aimed at providing participants with an overview
of what torture is and how it could be prevented. Here there are
issues addressed by relevant international conventions such as
the Istanbul Protocol, including the definition of torture, as well
as physical and physiological effects. Physiological and medical
components of the Istanbul Protocol were discussed during the
first day. The legal parts of the Istanbul Protocol—monitoring, advocacy systems—were tackled during the second day.
Forensic medical diagnosis, judicial and legal points of view,
and scope were explored during the third day. Tools for investigating and reporting torture were discussed together with the
way of monitoring and preventing mechanism. Target groups
include high school students, practitioners and professionals in
the field of nursing medicine, health promotion, social work,
socio-medical work, public health, and development.
Presence was compulsory for the whole three-day course.
Ethical and professional behaviors were expected from participants. The University of Belmont is committed to a policy
of honesty in learning the academic course. According to their
internal code of conduct, students can be subjected to disciplinary penalties. Moreover, they can also be expelled from the
course if guilty of cheating and plagiarism.
When we started approaching the health science faculty of
the University of Belmont to propose a course of torture, we did
not realize the deep need for developing such knowledge among
youth. We could not find the academic justification for the course
to be a core course resulting in a fruitful credit for the students.
We considered whether it could be an elective course, since at
that time the academic year had already started and the different
courses were closed. Hence, we decided to offer the course as
part of a continuing study program, with graduates of the program receiving a certificate upon completion. The final accreditation through a certificate makes it the equivalent of an elective
course for those students who are interested in attending one.
As a result, the course was adopted by Belmont University. A
partnership will now be developed between Belmont University
and the University of Copenhagen’s Department of Forensic
Medicine with the support of IRCT.
Participants developed a basic understanding on what torture
is: when, where and how, by whom it is practiced, who are the
torturers, who are the victims of torture the physical and psychological evidence of torture, the international legal standards,
legal investigation processes, ethical codes relevant to the issue
I would now like to end my presentation with a testimonial
from one of our students:
* Dr. Sana Hamzeh is currently a Doctorate in Counseling of Grief
and Trauma at Breyer State University. She holds a B.S. degree in
clinical psychology and a masters degree in psychology from the
Lebanese University. In 1996, Dr. Hamzeh founded (along with
other mental health professionals in Lebanon) the Restart Center for
Rehabilitation of Victims of Violence and Torture. She was then nominated to be Head of the Rehabilitation Unit at the center. Dr Hamze
holds 17 years of experience as a psychotherapist working with
victims of torture. She is considered as a pioneer in introducing the
“care for caregivers” concept among mental health and psychosocial
associations in Lebanon. Her reputation is also well appreciated on
the international level, having been elected to serve as a member of
the International Rehabilitation Council for Torture Victims (IRCT).
“As a Belmont student, I have learned about diseased
people, about the poor. However, we have never tackled
the issue of torture and victims of torture and the impact of
torture on these people. As public health workers, we really
need to know this information in order to be empowered
and to be able to change later on. This course gave us an
opportunity to know more about the subject. Moreover, we
talked a lot yesterday about the psychological aspects of
torture of victims. It showed us that torture does not stop
when the prison time stops, however it can damage victims’
whole lives and it is something that is really important, not
only concerning Lebanon, but worldwide.”
75
Follow Up Remarks of Victor Madrigal
A
t the Inter-American Commission, we deal with many
instances where justice has been denied because the
judge has not acknowledged or recognized a possible
case of torture. I think since about ten years ago, the work
around promoting understanding of the Istanbul Protocol is
aimed at having legal practitioners understand the boundaries of
their knowledge and their competency. And understanding when
it is so that medical health professionals and psychologists have
to come in and actually assess a situation that may be outside
the limits of all pure legal evaluation. I think the great value of
understanding the Istanbul Protocol is that it marries, in such
a seamless way, medical and legal disciplines and it actually
represents a full understanding of a human phenomenon that is
not only legal. I think that at least has been our aim in relation to
training justice systems in promoting non-repetition.
that all of us are standing on the shoulder of giants who came
before us and who persevered for years and years in ensuring
impact. All of us are working for agencies that are pressured
constantly with showing impact within three years. What
Sebnem and Loreine are showing to us very clearly, is that
these are ten-year scenarios that we are talking about. And it
is important I believe that agencies and governmental agencies
understand that these are not necessarily the same rhythm as
governments that are in place.
Second, there was a great message of sustainability. All
of these great capacities are finding themselves entrenched in
state institutions. There are progressive pockets within regressive institutions, or there may be progressive institutions within
regressive governments. So those are the opportunities that are
to be maximized.
Let me quickly mention, it is kind of an inspirational note
that we are ending on, even though it was very stark in the
beginning. And it is so because all of these initiatives show, I
think, a great deal of success. And Sebnem you were so introspective in saying this may be looked at as a success, but also
that there are things that are left to be done. And yet one cannot
deny all of the enormous achievements in all of these initiatives,
be it in training, be it insertion in curricula, a full strategic understanding of how to implement it, an understanding of the system
and an exercise of law reform.
Finally, and with this I think the question raised by Asker
Kjaerum was quite relevant, is how do you ensure that you
maintain independence at all times. We said this morning, and
I think this is exactly the case, we are looking and listening to
stories of thirty and twenty and ten years ago, and probably
stories of five years ago. And we know for a fact that ten years
from now we are going to be listening to the stories that happen
today. Now the question is whether twenty years from now, we
are going to be listening to stories of ten years from now. And I
think with initiatives like this maybe we can all learn to try and
avoid that.
This trip around the world of implementation was to be
completed with the experience of Ecuador, but our dear friend
Yadira could not be here. But I think the whole understanding
and the panoramic version is actually very complete.
Thank you very much to all of our speakers for an extremely
interesting series of presentations. Sebnem, you also remarked
that it is five women that I am surrounded by. I happen to belong
to a commission that now has a majority of women for the first
time in history, so let us also work for a world where that is not
noteworthy and it is just a normal thing. Thank you very much.
I think three key messages come through and I cannot actually leave this without saying them. One of them is persistence.
It is very clear to me that this did not happen overnight. And
Sebnem you did a great job, and so did all of you, in signaling
EndnotEs: session Four: Institutionalizing Medical documentation at the national Level
1
3
U.N. Office of the High Comm’r for Human Rights, Manual on
the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul
Protocol), 2004, HR/P/PT/8/Rev.1, available at: http://www.unhcr.
org/refworld/docid/4638aca62.html.
2 An Act Penalizing Torture and Other Cruel, Inhuman, and
Degrading Punishment and Prescribing Penalties Therefor, Rep. Act
No. 9745 (July 27, 2009), available at http://www.lawphil.net/statutes/repacts/ra2009/ra_9745_2009.html.
Istanbul Protocol, supra note 1, available at: http://www.unhcr.
org/refworld/docid/4638aca62.html.
4 U.N. Manual on the Effective Prevention and Investigation
of Extra-Legal, Arbitrary and Summary Executions (Minnesota
Protocol), U.N. Doc. E/ST/CSDHA/.12 (1991), available at http://
www1.umn.edu/humanrts/instree/executioninvestigation-91.html.
76
SESSION FIVE: EXPERT PANEL ON FIGHTING IMPUNITY
Opening Remarks of Dr. Jonathan Beynon*
J
ust to conclude on the final session, we are very pleased to
invite some of the people we have already met over the last
two days for a final panel discussion. I will not introduce
all of the panelists except to mention that they are here again,
but I will introduce the panelists who are new. We are pleased
to welcome Professor Diane Orentlicher from the faculty of law
here at the Washington College of Law on my far right, who will
* Dr Jonathan Beynon is an independent expert in the prevention
of torture, and monitoring conditions of detention and health in
detention, based in Geneva, Switzerland. Previously coordinator for
health in detention at the HQ of the International Committee of the
Red Cross (ICRC), United Nations Human Rights officer, and senior
medical examiner for Medical Foundation for the Care of Victims
of Torture in London. He was a member of the WHO Task Force on
Prison Health and has also acted as a medical expert for the UN
Special Rapporteur on Torture, and for the UN Sub-Committee for the
Prevention of Torture. Over the last 18 years has assessed places of
detention and the treatment of prisoners in many countries, throughout South, South East and Central Asia, the Middle East, Africa, the
Caribbean and Europe—including Ethiopia, Uganda, Benin, Guinea
Conakry, Israel, Palestine, Iran, India, Pakistan, Nepal, Afghanistan,
Cambodia, Myanmar, East Timor, Armenia, Haiti and Guantanamo
Bay. He has contributed to numerous publications on criminal justice
systems, health in prisons—including HIV and TB in prisons, mental
health in prisons—and the documentation of torture from the World
Health Organization, United Nations/UNODC, the University of
Essex and NGOs. He currently acts as an independent medical expert
to the Council of Europe for the National Preventive Mechanisms of
the UN Optional Protocol to the Convention Against Torture.
join us. Next to her of course is Suzanne Jabbour, from Lebanon
and Vice-Chair of the UN Subcommittee on the Prevention of
Torture. Next to her is Victor Madrigal from the Inter-American
Commission on Human Rights who we have already met. Next
to Victor is Professor Vivienne Nathanson, who is from the
British Medical Association in the UK and who very importantly does a lot of work with the World Medical Association, a
body that is charged with producing ethical guidance and various other guidance for doctors around the world. And again we
have Professor Duarte Nuno from the University of Coimbra in
Portugal. Diane would you like to begin?
77
Remarks of Professor Diane F. Orentlicher*
IntroductIon
I
t is an honor to join this distinguished group. While my
remarks will focus on key challenges ahead, I want to first
mention several relevant considerations that are reflected
in the United Nations’ Set of Principles for the Protection
and Promotion of Human Rights through Action to Combat
Impunity, which the French jurist Louis Joinet drafted in the
1990s and which I was appointed by the UN Secretary-General
to update in 2004.1 These Principles address, among other subjects, the duty of governments to preserve memory in terms that
are highly pertinent to this conference. Principle 3 begins: “A
people’s knowledge of the history of its oppression is part of its
heritage and, as such, must be ensured by appropriate measures
in fulfillment of the State’s duty to preserve archives and other
evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations…”
Principle 4 separately addresses “the imprescriptible right of
victims and their families to know the truth about the circumstances in which violations took place and, in the event of death
or disappearance, the victims’ fate.”
As the field of transitional justice has matured, we have a
better appreciation of the fact that both the capacity and will of
societies to address violations of the past may evolve significantly, and in unforeseen ways, over time—sometimes over a
long, long period. (One speaker this morning described how he
was unable to come to terms with his own torture for 11 years—
and then, pursuing justice became critical.) Thus, for example,
prosecutions for past violations may not occur in the immediate
aftermath of a transition from repression to democratic governance; often they take place after the passage of time, and the
resulting breathing room for democratic consolidation, has made
it easier to reckon with crimes of the past.
In updating the Principles, I thought it important to make
this larger idea of preserving memory very concrete. Of special
relevance to this conference, I believed it was important, among
other things, to insist that governments, whatever else they do
to establish accountability for serious violations, whatever their
timetable for addressing those violations, have an inalienable
responsibility to preserve evidence.
* Diane F. Orentlicher is professor of international law and codirector of the Center for Human Rights and Humanitarian Law at
Washington College of Law. From 1995 to 2004, she served as faculty
director of the law school’s War Crimes Research Office, which has
provided legal assistance to international criminal tribunals since
1995. Described by the Washington Diplomat as “one of the world’s
leading authorities on . . . war crimes tribunals,” Orentlicher has
lectured and written extensively on the scope of states’ obligations
to address mass atrocities and on the law and policy issues relating
to international criminal tribunals and universal jurisdiction. She
has served in several public positions, including most recently as
Deputy for War Crimes Issues in the U.S. Department of State, upon
appointment by Secretary of State Hillary Rodham Clinton. She has
previously served as an Independent Expert and consultant to the
United Nations in various capacities relating to the UN’s efforts to
combat impunity. In September 2004, for example, Orentlicher was
appointed by the United Nations Secretary-General as Independent
Expert to update the UN’s Set of Principles for the protection and
promotion of human rights through action to combat impunity. She
previously served as Special Advisor to the High Commissioner on
National Minorities of the Organization for Security and Cooperation
in Europe.
This pattern has brought into sharper focus the critical challenges of reconstructing evidence of crimes, including torture,
that may have occurred years earlier.
The other panelists know more than I do about advances in
techniques for reconstructing evidence long after violations have
taken place. What I would like to highlight is several practical
challenges that are also relevant and which I observed in my
recent work in what is now called the Office of Global Criminal
Justice in the State Department.
challenges ahead
One challenge that we encountered repeatedly is to ensure the
deployment of forensics experts to countries that are prepared to
deal with human rights crimes quickly enough for the experts to
be able to do an effective job, and this was particularly important
with respect to torture. In a number of situations where the U.S.
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government was supportive of a country’s efforts to document
recent instances of torture, the time that it could take to assemble
and deploy a team of forensics experts could have a significant
impact on how confidently the team could reach conclusions
about the occurrence or extent of torture. In some instances with
which I am familiar, forensics teams were able to put to rest
doubts about whether torture really had occurred, but they were
unable to reach as extensive conclusions as they could have if
they had been deployed just two months earlier.
and center in the way we use our evolving repertoire of tools.
One model has evolved out of pressing needs in the Democratic
Republic of Congo, where a hospital that specialized in treating
survivors of sexual violence developed a legal services program
in the hospital. I was curious about this because providing legal
services was not a role I would have expected this particular
hospital to provide. The doctor who launched the initiative
explained that the women whom he treated needed medical
attention most urgently following their experience of rape.
After their medical needs were addressed, they urgently needed
psychological and social support. And once those needs were
addressed, they focused intensively on their economic and social
situation. Then, the doctor told me, once these rape survivors
had gone through those successive cycles of recovery, very
often they needed justice. But they were not able to identify that
need until their earlier needs had been addressed.
A related issue that we encountered in many countries still
in a state of armed conflict had to do with context-appropriate
forensics capacity. For example, in a country like the Democratic
Republic of Congo (DRC), where sexual violence has reached
staggering proportions, having context-appropriate rape kits that
can be used in a timely way is vitally important. Developing
local capacity to use such forensics tools is equally important.
By that time, many of this doctor’s former patients had found
it difficult to seek justice in a supportive environment outside the
hospital, but they knew there was a supportive, sensitive environment in the hospital. And out of this experience, the hospital
decided to create a legal services program that would enable rape
survivors to seek justice within a supportive, sensitive environment. Helpfully in terms of preserving evidence of rape so that it
would be available when women were ready to seek justice, the
doctors who treated these patients had been able to document the
nature of the violence the women had endured when they came to
the hospital for medical treatment of their injuries.
By the same token, sometimes it is important to encourage
societies going through significant ruptures to wait until qualified forensics experts can arrive on the scene to assist them in
documenting crime scenes. I am sure many of you followed—
some of you may have been involved in—a situation that led
Human Rights Watch to call upon the Transitional National
Council in Libya to wait to exhume mass graves in Abu Salim
to ensure that evidence of the 1996 massacre there was not
destroyed. Again, preserving evidence may need to be a priority
in a context where it may take time to deploy an expert forensics
team, and perhaps even more time before it is possible to use the
forensics evidence in court.
This example is an extraordinary response to an extraordinary situation, which arose out of the peculiar needs of a
war-ravaged society. It would be challenging to replicate this
model elsewhere, but I think it is a useful illustration of how
one particularly caring, innovative doctor was able to address
the particular challenges surrounding rape in a context-specific,
sensitive and effective fashion. Thank you.
I want to make a final point, which I suspect has been made
many times today and yesterday: It is critically important in all
of these efforts to ensure that whatever technology we deploy,
we must use it in a way that fully respects the psychological and
social needs of torture survivors. Their welfare has to be front
Remarks of Suzanne Jabbour
I want to raise something now. I put on the hat of the
Subcommittee on the Prevention of Torture (SPT). I want to
highlight a little bit the Optional Protocol of the UN Convention
Against Torture (UN CAT) because it’s a big relationship
between documentation and the optional protocol as an operational treaty body. This operational treaty body breaks new
ground within the UN human rights system, based on two
mechanisms: the SPT and the National Preventive Mechanism
(NPM). The NPM is composed of experts, forensic doctors,
psychiatrics, mental health professionals, judges, and lawyers.
We should lobby to have states ratify this protocol because we
guarantee a very, very essential mechanism on the national level
that can document and detect torture. For this reason, my only
concern is really to put in mind when the Optional Protocol
gives a legal framework for a specialist and for a national
mechanism to have access to all places of detention, and to
interviewing prisoners and to document torture and, through
that documentation, to identify whether torture is practiced systematically. For this reason, one of the main recommendations
in my opinion is to work in parallel on the Istanbul Protocol and
to lobby for the ratification of the Optional Protocol because
like this we can guarantee a NPM to follow all these cases. Not
only to follow, but to give the recommendations to the national
government and report on violations. For this reason, one of my
recommendations is to lobby for the ratification of the Optional
Protocol, and to keep states parties tied to the requirement of the
Optional Protocol. That’s what I need to mention in these last
few minutes.
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Remarks of Professor Duarte Nuno Vieira
IntroductIon
O
ne of the main objectives of this final session is, according to the program, to help to identify the achievements
that we have obtained, the shortfalls in the fight against
torture, and to identify the efforts that can be directed to achieve
a world free of torture. As I only have two minutes, I will focus
my attention in my specific area of work, medicine, and specifically in forensic medicine.
recent AchIevements
If we look to the achievements that we have attained we
can identify several very significant ones. For example, today
we have a very increased medical knowledge and expertise in
the assessment and documentation of torture—that’s something
that no one will contest. We have well defined protocols for the
medical assessment and documentation of torture that we didn’t
have 10 or 20 years ago. We have a wide variety of scientific
literature for the assessment and documentation of torture. We
have now frequent meetings and training programs, at national
and international levels, on human rights and the assessment and
documentation of torture and of cruel, inhuman and degrading
treatments or punishments. We have the inclusion of scientific
sessions in the main international scientific meetings in the area
of humanitarian forensic sciences and namely in the area of
documentation and assessment of torture. We have a wide and
strong recognition of the fundamental role of forensic sciences
and forensic medicine in the assessment and documentation of
torture. We saw that in the last year one of the main international
forensic scientific associations, the international association of
forensic sciences, has created a specific award, an international
forensic award, in the field of human rights, to be given to a
professional or to an institution or organization that promotes
the use of forensic sciences in the protection and promotion of
human rights. We now have the first international network of
forensic experts in the assessment and documentation of torture,
etc. So I think that in recent years we have achieved a large
number of things that are really important, and I am sure that
the panorama we have today in the area of forensic sciences is
totally different from the panorama and from what we had 10-20
years ago.
concludIng remArks
* Duarte Nuno Vieira (MD, MSc, PhD) is the current President of
the International Academy of Legal Medicine and of the European
Council of Legal Medicine. He is the Past-President of the
International Association of Forensic Sciences, of the World Police
Medical Officers, of the Mediterranean Academy of Legal Medicine
and of the Latin-American Association of Medical Law, and member
of the Executive Board of the Iberoamerican Network of Forensic
Medicine and Forensic Sciences Institutions. He is full professor of
Forensic Medicine and Forensic Sciences and of Ethics and Medical
Law at the University of Coimbra and invited professor in several
European and South-America universities. He is also the Director of
the National Institute of Forensic Medicine and Forensic Sciences of
Portugal and a member of the Portuguese National Council of Ethics
for Life Sciences. He has published extensively and he has been
awarded 11 scientific prizes and 14 honorary fellowships from scientific associations, governments and municipalities, from European,
Asian and Central and South American countries. He has participated
in many international missions as forensic consultant, especially in
the field of Human Rights.
But of course much remains to be done. There is still a lot, I
think there will be always a lot to be done. In fact, this is a mission that will never be complete and will never be ended and if I
have to choose some things and some efforts that can be directed
to help to achieve a world–I don’t know if free of torture, but at
least with less torture than we have today–I would choose probably these six points:
First, I think that we must increase the teaching at undergraduate level of medicine and human rights, and namely in the
identification of signs of torture and other cruel, inhuman and
degrading treatments or punishments. That’s something that we
have to include in the medicine faculties and the law faculties.
Second, we have to increase the training on medicine and human
rights at the post-graduate level. I think that some training in this
area should even be included in the residences of the different
medical specialties, from traumatology to dermatology, from
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that we should promote scientific research in this specific field
of the assessment and documentation of torture, and especially
we should try to convince the international financing institutes
for research, to create and to open specific programs for research
in the area of the assessment and documentation of torture.
neurology to general practitioner. In every specialty, I think
there is a place to include in the residence program some training in this specific area. Third, I think we should try to create a
single international post graduate diploma on human rights and
the assessment and documentation of torture, under the umbrella
of a some international organization, and involving several
universities around the world. That’s something that we should
create by e-learning, for example, because it would be easy to
do it, with practical classes after. Fourth, I think that one of the
efforts that we should promote for the future is to consolidate
and intensify the role of the expert network that was initiated by
the IRCT and that is giving very good results. Fifth, I think also
Finally, I would indicate that as efforts that directed towards
achieving a world free of torture, the World Medical Association
and all the national medical associations in this specific area of
the medical profession and, of course, also of the main international associations in the area of forensic sciences, should be
more profoundly involved in this area. Thank you.
Remarks of Dr. Vivienne Nathanson*
T
hank you very much. That was a great hand over. I’ll start
off by talking about the world medical association which
has now got 100 members from around the world. There
are some areas of the world where it is lacking in members, but
nevertheless it’s 100 members. And it’s interested in human
rights, it’s doing some work on this, fairly basic work, but it’s
trying. But and, it’s a big but, what I can’t understand is why
of those 100 members I think there are only 4 national medical
associations that are really engaged in this work and I’m going
to mention them because I think we should be very proud of who
they are. This is the Danish Medical Association, the Norwegian
Medical Association, the Turkish Medical Association and the
British Medical Association. There may be one or two others,
but they’re doing very little and when I say very little, they don’t
even necessarily write letters, say over the Bahrain situation of
the imprisonment of doctors, arguably just for treating people
on the basis of good ethics. And that leads me on to perhaps my
most important issue here: we need passion. This is a group that
is passionate about changing the world. What I can’t understand
is why when I go to meetings of national medical associations in
many countries; they’re not passionate about changing the world
as organizations. So there are many doctors in all their own
countries who are passionate as doctors. Why don’t they take
over their medical associations and say, “you will be involved.”
So I’m going to start a series of revolutions.
I think this is really important and I say that because there
is strength in organization and in numbers. It isn’t impossible to
attack a medical association, but it is a great deal more difficult
than attacking individual doctors. Medical associations tend to
be respected because doctors are respected and it’s a very good
way of organizing. And I think we need to do that. And this
need for passion about this issue. Doctors are deeply passionate,
nurses are deeply passionate; it’s not about the quality of care
that people get. And yet this is one of the most basic issues. And
let me give you one thing that might actually give us a route in.
There is a global movement looking at social determinants of
health. The World Health Organization’s been involved in it,
there’s been an international conference, a global summit in Rio
last year. It happens to be somebody who is the BMA’s president
two years ago who wrote the report to various bodies, Michael
Marmot. Somebody described him as a quiet revolutionary. I
would take away the word ‘quiet.’ He’s just a revolutionary. He
wants to change the world and he’s quite right. He doesn’t want
to see poverty; he doesn’t want to see people’s lives blighted.
* Professor Vivienne Nathanson qualified at Middlesex Hospital
Medical School in London, 1978 and then spent five and a half years
in various hospital medical posts before joining the British Medical
Association staff in 1984. She is now Director of Professional
Activities at the BMA, which encompasses all the professional areas
of work of the BMA including Ethics, Science, Medical Education,
Public Health, Doctors’ Health, Equal Opportunities, International
Affairs and Conferencing. She is Honorary Professor of Ethics in
the School for Health at Durham University. Professor Nathanson
chaired the BMA Steering Group on Human Rights and was a
member of Council and Council Executive of the International
Rehabilitation Council for the Care of Victims of Torture between
1996 and 2009. She lectures extensively (Including at Cambridge
and Durham) on ethics and human rights and has contributed chapters to textbooks on ethics and human rights. She has taught several
programs with the International Committee of the Red Cross, e.g. on
ethics for doctors new to ICRC missions and human rights in prison
settings. She has been an expert witness to Select Committees of the
Houses of Lords and of Commons on wide variety of issues, including
the rights of refugees to health care and medical ethics issues such as
abortion law, euthanasia and assisted suicide, and to public enquiries
on the abuse of prisoners of the UK military, and viral transmission in
blood products.
But that also relates to what we’re talking about here because
so often it is the people at the bottom end of the social ladder
who are the most likely to be victimized. They’re not the only
ones, but they’re often the people who lack a voice. When I’m
lecturing on ethics, which is what I do a lot of my time, I will
talk to students about patient centered care. Terrible phrase, but
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you understand that it’s about patients at the center. My second
question is: how do we make sure that the client, the victim, the
survivor, the families, society are at the center of everything we
do? Because there’s no point in just having wonderful systems,
if we don’t deal with the fact that what we are as doctors and
lawyer is technicians with an expertise to serve people. That
technical expertise must be based upon passion and empathy and
that doesn’t rule out expertise. I think sometimes the difficulty is
we can let expertise get in the way of passion and empathy and
I wonder if sometimes we are creating an “us and them” situation. We are all together here, we are all trying to work together.
and they need to know who can help, who they can refer to. If
as a clinician you see someone with a condition that you can’t
treat medically, you must know how to send them to someone
who can treat. That’s what we’re looking for, being able to make
a possible diagnosis and to be able to refer on, and to do that
empathically. So let’s get in early.
Jack Wild, who I know has left asked what we should do to
train judges? I’d like judges to know something about the reality
of people’s lives. There’s a big joke in England that judges, who
are fantastic and very interesting a lot of the time, will occasionally say something like “but who is this person?” They’ll hear
about somebody who has been stalking a superstar and they’ll
go “who is Paul McCartney or Mick Jagger or whoever?” And
you’re all going “what?!” They need to get real. But more basic
than that, they need to understand. They need to understand
something about the emotional and societal problems of the people they’re dealing with. And that’s particularly true of immigration law. If they live comfortably in London, how much do they
really know about the person seeking to become an immigrant,
an asylum seeker, who’s coming from another part of the world?
And they need to understand that. I’ll leave it to that because of
time but to me the center of this is “let’s make sure we always
inject passion and passion to make a difference.” Thank you.
But I’m not dismissing the fantastic developments we’ve
heard about today, I think that’s really important. And it seems
to me that the other thing that we need to do is to get to the students. I want to go to the World Health Student Assembly and
there must be the equivalent for the lawyers and other groups
and say: how are you going to learn about this? How are you
going to commit at least some part of your professional life to
helping in this struggle? So that nobody should qualify in medicine and nursing or any of the other health professions without
knowing at least something about torture. They don’t need to
be the experts, but they need to know when they’re doing their
normal clinical work enough to recognize what they’re seeing
Remarks of Victor Madrigal
I
agree with everything Vivian said. Done. But I do, actually.
And it’s not only said very rightly, but also very beautifully.
I thought I would choose a number of points that are based
upon my experience.
Past successes
I started my career in a place, the Inter-American Court of
Human Rights, where the victim was a romantic idea, far away,
somebody that all of us were very passionately working for, but
who was never there. The Inter-American System was born a
system of States, but I think one of the things that has been done
greatly over the last ten, fifteen, twenty years is that the victim
has come into the center of the process. And from a situation
when I remember, six or seven years after I started working at the
court, that the first victim that was alive came to testify at a case,
and we really didn’t know what to do procedure-wise because
we’d never had that situation. We do now, when the voice of the
victim has not only been acknowledged as the motor behind the
process but also all the different perspectives of support, empowerment, and acknowledgement have to reside around the victim.
There are many people around this room whose faces I see, who
have now been part of that process. When twelve years ago, it
was said to a number of judges and lawyers who worked at the
court that we would have to actually deal with psychologists
being with the witnesses, a number of us were quite scandalized
that the monopoly had been taken from us in terms of righteousness. It turns out that that’s exactly what needed to happen.
And I think that has been a very right development. Although I
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acknowledge that a lot has to be done still to ensure that there
is not a phenomenon of “otherness” (i.e this is something that
happens to others, rather than to me as a human).
IRCT struggle for their finances and that is something that
should disgust each and every one of us. I think we need to look
for new means of accountability. We know that a number of
these instances are being paid for with donor countries, well, we
also need to look to countries that produced victims of survivors
twenty and 25 years ago and say “okay, Brazil, Argentina and
Chile now have democratic governments that produced refugees
25 years ago that were rehabilitated with funds from Sweden,
why not rehabilitate people in Africa with funds from Argentina
now.” It’s a concept of burden sharing; we need to start thinking
in these terms. It is not decent that centers of rehabilitation of
torture victims should actually be needing for funds.
The second thing that I wanted to touch upon is the Istanbul
Protocol. I mentioned that I was part of an experience which
was under a lot of challenges for twelve years and which was
an unfinished exercise that we must finish at some stage. That’s
not the case right now. We have heard today of great experiences of implementation and I don’t think by any means this is
a foreign word to anybody who is in the field of human rights.
We did our bit by litigating the case of Gutiérrez Soler, in which
the Colombian government accepted to include this protocol in
its curricula of training. And then we realized that that wasn’t
enough. Not only training, but procedures and manuals and
enforceability have to be developed.
On the Inter-amerICan system
I was saying before in the previous panel that sometimes
change relies on progressive individuals within regressive
institutions. Sometimes there are progressive institutions within
regressive governments. Governments are conservative by
nature because you’re not necessarily in the business of changing things. But a number of these dynamics actually trigger
change that is significant.
The third thing that has been done right, and it hasn’t been
done right by me, but by others in this room, is perseverance. I
think it’s very important, it must be realized that these are not
processes that run over three years. Just to give you an example,
we are receiving claims today of justiciability of dictatorships
in Argentina and Chile which regained democracy a number of
years ago and what people are saying is that they do not have
access to civil reparation commissions because the crimes have
expired. Statutes of limitations are operating and they are saying
that these are crimes of human rights violations and we need to
deal with that. These are not five-year cycles, they are more than
ten-year cycles.
And we have a number of examples in the Inter-American
system that are very encouraging. I can provide a few, some
of them are not necessarily linked to torture, but they are very
much related to the phenomenon of ending impunity. One of
them relates to the dismantling of amnesty legislation throughout the Americas. Which was a pervasive phenomenon after the
dictatorships, a sort of blanket self-pardoning that was effectuated. And little by little, with many actions from many concerted
actors and to the great credit of civil society that brought the
cases, litigated them, persevered and utilized the mechanism
at national and regional level, we have the dismantling of legislation of amnesty in Peru and Argentina, and military codes
and military legislations that have been dismantled as well.
Reopening of processes is another example. When you have a
situation that international, regional pronouncements can lead to
reopening of processes, that’s another example. And there will
be moments in which the system is operating under a mechanic
that allows them to break through. Dean Claudio Grossman and
Professor Juan Mendez are here—they’re the great strategists
that have thought about how the system is going to behave for
the last twenty years. And it depends on strategizing around
how to use different mechanisms and how to see opportunities.
And there are people who came and thought about the same
end and kept a lot of dynamism in how to use opportunities and
openings.
Future Challenges
What remains to do and what we have done wrong – clearly
there’s still impunity; we have only scratched the surface. And
again, every coin has its counterface. We have, I think, victims
at the center of many processes. But there are others who have
less voice, the ones who have a lesser voice of all the people
who have less voice. People deprived of liberty: I gave a terrible
example this morning about this 360 persons dying in a fire in a
jail in Honduras, and this comes a month before we have a meeting with Honduras concerning a fire in a jail where 118 persons
died several years ago. So it is repeating itself. Migrants: we
know that all of the corridors for migrants are having enormous
instances of torture and not much is done in relation to that.
Trans people, lesbians, and gays are being victimized every day,
and they are also quite invisible and quite voiceless.
Second thing where we need to work in the next ten years is
more associations of survivors setting the agenda for this work.
A lot of us are working in the medical field, in the legal field, but
I find there is a lack of associations of survivors in policy making initiatives and I think that is something that we need to nurture, allow them their spaces if they want to occupy them and,
if that is the case, then also know how to and when to retreat.
I insist on the issue of accountability, not only of states, but
of individuals as well. And the Commission and the Court are
in the business of adjudicating the responsibility of states. But
local courts or other mechanisms are talking about individuals.
In the Philippines, I was very motivated to hear a few years ago
that there were a great number of mechanisms that were trying
to get a very high amount—hundreds of millions—from the
Marcos millions that were distributed in different places and had
One the last things that I think we are doing ludicrously
wrong is I cannot understand why a lot of the centers in the
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been frozen. And this is part of a movement of accountability
that is very important. So, I think all of these dynamics are the
ones that help to end impunity.
them that he had. I think, in doing that, he finalized a fantastic
virtue cycle that, of course, had taken many years to start. I
am not the owner of his story, but I understand, the way that
he presents it, as a very successful process of reparation. Very
quickly, in relation to the bias: I think the bias is directly related
to the fact that it’s the voiceless persons, the powerless persons
that are the most frequent victims of torture. When one has the
notion that somebody who is labeled a terrorist or a trans person
who comes out at night to do sex work or a person that is in the
fringes of society, as we understand it, in one or another way,
there is always that little bit of a social understanding that maybe
people deserved it. I think, twenty years before, it would have
been the kind of thinking that said if a woman wears a too-short
skirt, she deserved it. And now, we are thinking this about certain types of persons, including those that we think are terrorists
or those that we consider to be on the fringe.
When the question is raised as to the duration of proceedings,
right now, if you present a complaint to the Inter-American system today, my team will provide you with an initial answer three
and a half years from now and that is because we have 7,000
petitions, and my team has four lawyers to examine those petitions. So, when I was speaking of my outrage before, you might
as well say that that is an outrage that I also feel toward the
financing of the Inter-American system. And yes, it is absolutely
unacceptable that we should last what we last in the examination. Having said that, three points that I would very quickly like
to reference: in relation to the different types of reparation and
whether there are alternatives to legal reparation, I understand
that what is being asked is if there are other things other than
justice that actually, in our experience, bring this idea of returning the person as much to a whole as they will be.
I think, one of the things that outrages me the most (I happen
to also be the link of the Commission with the political organs
of the organization, something that gives me great pleasure),
and I happen to go very often to the Committee on Juridical and
Political Matters, and I hear states’ representatives talking about
how victims are now coming to the system to make money and
how they are making these indescribable amounts of money
and creating gain out of the Inter-American System of Human
Rights. I think that mentality has to be combated in every corner,
and people have to be taken to task when they say such a thing.
So yes, the bias exists; I think it exists because of people being
invisible. The more we make them visible and, again, give them
spaces that they can occupy, then we will see that bias will make
us understand that it’s not happening to others.
I have the privilege of having worked with a person who
was a victim of torture in the Inter-American system, and he has
encouraged me to use his story in venues like this. His name
is Luis Alberto Cantoral Benavides; he is a survivor of torture
from Peru. The judgment of the Inter-American court entered
into a very wide range of reparations in his case. It was encouraged that he should be provided not only legal rehabilitation but
also an educational fund that he used to become a lawyer. After
becoming a lawyer, he came and worked at the Inter-American
Commission of Human Rights, examining petitions for people
who are claiming to have the same type of violations against
Concluding Remarks of Dr. Jonathan Beynon
I think we’ve got many issues that have been thrown out
there for the audience perhaps starting with the idea of a
people’s right to know, and the right to understand past human
rights violation and perhaps, as mentioned by Diane, avoiding
the rush to justice. The rush to justice example being given
was the rush to exhume bodies that we saw, for example in
Iraq [after Saddam Hussein was deposed]. In many situations, where mass graves that had been known to be there for
years but had not been touched, but following the collapse
of a regime, they were simply dug up, often by hand, people
identifying what they thought was a relative killed ten or fifteen years before, but in fact often wrongly identified simply
because of the passion and heat of the moment. But the need
to deploy experts in such situations in a rapid response is still
fraught with problems after decades. I think even the UN
Office of the High Commissioner for Human Rights has had a
list of forensic experts for many, many years, but there is still
a problem with rapid deployment of such teams.
We also heard from Victor on the need to have, perhaps, a
more victim centered approach, but also actually involve victims
themselves in setting the agenda and priorities for the future.
Perhaps part of that we can discuss later under the difficulty in
access to justice for many individuals.
Suzanne has mentioned, when it comes to the prevention
of torture the importance, of preventive visits. And I think a
landmark step forward in the last five or six years is the coming
into force of the OPCAT; many states have therefore been under
an obligation to set up a national preventive mechanism and
to have regular visits to their places of detention by both their
own preventive mechanism and the international mechanism,
the Subcommittee on Prevention of Torture. The importance of
this is not to simply document cases post event, but by having a
regular presence to prevent torture.
We heard this morning from Carlos Maurice from El
Salvador who very poignantly mentioned that when he was
84
brought up from the cellar of the central police station in El
Salvador, one of the reasons he thinks he survived was because
he was met by the Red Cross, who probably would have registered Carlos, taken his name and all his details, and given him a
specific identification number, so that the next time they come
to visit they ask “we want to see Carlos, where is he?” And if
he’s been transferred to another police station or another prison,
they’ll say: “Okay, we’ll go to that police station or prison, and
try to find him and if he’s not there, we’ll be asking further about
his whereabouts.” Clearly this is another preventive mechanism
that perhaps in your case, Carlos, if it’s not too much to say, may
have saved your life. As well as a lot of luck in other respects
perhaps.
say the resurgence because it has been around since the Middle
Ages and has just been resurrected. The idea being that while
professionals can readily document physical symptoms and
signs, mental scars, psychological trauma is possible to document but let’s say more difficult to prove. And for many states
we understand that they interpret that if there are no physical
marks then torture cannot have happened. So that is perhaps one
negative effect of our increased competence in documenting
physical signs.
We also heard from Prof. Vivienne Nathanson about the role
of doctors. Perhaps we can return later to their obligations and
duties when it comes to being confronted by acts of violence,
torture, cruel, inhumane and degrading treatment. And we
heard in one of the sessions yesterday about doctors, turning a
blind eye to cases where clearly somebody’s been tortured and
effectively falsifying or omitting facts from their reports. There
are many such cases, some of which came before the European
Court of Human Rights, cases in Turkey for example, where
victims were standing in front of the court in Turkey, unable
to use their arms from being suspended for many days by their
arms, and yet even the judge did nothing to request an examination and it was only in the European Court where that the facts
actually came to light. Clearly, there can be failings not just of
the medical system, but also of the legal system.
And also from Professor Duarte Nuno we heard about the
important steps that have been made in terms of the documentation of torture. I’ve been in this field for 18 years now, and
there’s definitely been a massive leap forward in the availability of access to proper documentation. One side effect of
this is that, although the Istanbul Protocol weighs heavily upon
psychological evidence, perhaps more emphasis has been given
to the documentation of physical evidence, while there is less
emphasis given to the documentation of the psychological. One
consequence may be the increased use of psychological methods
of torture or let’s say the resurgence of psychological torture. I
Endnotes: Session Five: Expert Panel on Fighting Impunity
1
Comm. on Human Rights, Updated Set of Principles for the
Protection and Promotion of Human Rights through Action to Combat
Impunity, E/CN.4/2005/102/Add.1 (Feb. 8, 2005).
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