Combating torture: Beware of “false victories”

Brussels/Bukavu/Kathmandu, 26 June 2012 – On the occasion of the International Day in Support of Victims of Torture on 26 June, Avocats Sans Frontières (ASF) reiterates the need to ensure torturers do not escape punishment. ASF highlights two “false legal victories”: defining the term “torturer” (too) broadly and compensating victims so that they are dissuaded from seeking prosecution.

Under the 1984 United Nations Convention against Torture, torture is defined as any act whereby a public official or any other person acting in an official capacity intentionally inflicts severe pain or suffering on a person. This violence must be exercised for the purpose of obtaining information or a confession, punishing the person for an act he is suspected of having committed or intimidating him. “The State is actually considered to be responsible for this violence perpetrated in its name,” explains Jean-Charles Paras,  ASF expert in civil and political rights.

Progress has undoubtedly been made in several countries. Torture and other cruel, inhumane or degrading treatment is prohibited by laws criminalising these practices. However, a broad definition of perpetrators of torture does not necessarily support prosecuting genuine “state torturers”.  This is the case in Uganda, which has just passed a law defining torture in national law but applying it to any individual, not just agents of the State. “There is therefore a high risk that the State will only prosecute private individuals to show that it is proactive in combating torture but refrain from prosecuting its own police officers or soldiers,” warns Jean-Charles Paras.

ASF finds the same phenomenon in the Democratic Republic of Congo. “Before the Torture Act was passed in 2011, it was difficult to convince judges to prosecute torturers,” recalls Sylvestre Biswima, a lawyer working with ASF in Bukavu. Even today, the judicial system shows a certain tolerance for the practice of torture and successful prosecution of agents of the State remains all too rare. “Trials can be long and drawn out. For instance, I’ve been following a torture trial for three years where the accused – a security guard – has not attended a single hearing!” reports the lawyer.

Copyrights ASF / Myriam Khaldi

Compensation, a temptation for victims

A second “victory” that is a cause for concern for ASF in its fight against torture is compensation for victims when it is designed to dissuade them from seeking prosecution of the perpetrators.

For instance, in 1996, Nepal passed a law allowing victims to receive compensation from the State if they could prove the crime suffered by them. However, the aim of this Act is not to prosecute the criminals responsible. “In practice, this Act has only led to compensation for a few dozen people, out of the thousands of victims of torture during and after the conflict,” says Jean-Charles Paras. Victims are tempted to take advantage of this legislation to obtain financial compensation. As they are mainly poor people, they do not believe that the State will prosecute the torturers and therefore do not file a complaint. So, in practice, this Act changes nothing for the police officers and soldiers who still escape punishment.

Until legislation criminalising torture is passed, ASF, together with several Nepalese NGOs, is engaged in advocacy and supporting lawyers combating torture. “This support helps us to use the existing system and legislation more effectively to bring cases of torture to the attention of the police and judges,” believes Rajendar Ghimire, a Human Rights lawyer in Kathmandu. “In this way, we hope to help to protect, defend and restore victims’ human rights.

Torture is now recognised as one of the worst international crimes. Of course, the efforts made and results achieved, such as the passing of laws criminalising torture in the national legislation of certain countries and compensation for victims, deserve praise. However, there can be no lasting change while torturers generally go unpunished. “We need to beware of ‘false victories’ that are measures taken by States to hide the reality of torture which is, above all, a ‘crime of State’,” concludes Jean-Charles Paras.