Representing Victims of Torture

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People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.[1]. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been tortured either for confessions or for extra-judicial punishment.

Identifying Victims of Torture

It is important for criminal defense attorneys to identify victims of torture because specific groups, such as children, women, the elderly, or religious persons may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. Identifying and keeping track of torture cases will also help identify patterns of abuse being directed at a particular group of victims. For example, regarding children, the International Covenant on Civil and Political Rights states that "every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State" [2]. Similarly, the UN Convention on the Rights of the Child (UNCRC) states that "no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age" [3]. At this point, the Convention does not provide for individual complaint mechanisms, however, thus CAT may provide the only method of redress for individual children.

In certain cases, systematic torture of a particular group will allow the criminal defense attorney to utilize additional international mechanisms. The Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, included "acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group" as part of its definition of genocide [4]. The Rome Statute of the International Criminal Court (ICC) incorporates this definition of genocide as well a definition of crimes against humanity which includes torture. As soon as a State becomes a party to the Statute, it accepts ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. THe ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already [5].

Istanbul Protocol

In 1999, the United Nations developed the first set of international standards for documenting torture, the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol.

According to the Convention Against Torture, the State should ensure that its "competent authorities proceed to a prompt and impartial investigation" of any torture allegations [6]. Similarly, according to the Istanbul Protocol, the State should appoint a primary investigator (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as the following information to produce a comprehensive evaluation of the alleged torture victim:

  1. Circumstances leading up to the torture
  2. The dates and times of the torture
  3. Descriptions, and if possible names of the perpetrators
  4. Description of the torture, including methods and any other general patterns of abuse, including sexual abuse
  5. Description of any physical injuries
  6. Description of detention facilities

The State should also provide the following information to the alleged torture victim during the investigation:

  1. Updates on the progress of the investigation
  2. Information on all key hearings in the investigation and prosecution of the case
  3. Updates on the suspected perpetrator (whether he/she has been identified, arrested etc.)
  4. Contact information for advocacy and treatment groups that might assist the victim
  5. The right to refuse questioning, to stop the investigation, or to take a break
  6. Protection, not only to the victim but also to the victim's family
  7. Psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. [7]. Detainees or their lawyers relatives also have a right to request a medical evaluation to seek evidence of torture and ill-treatment. The detainees" lawyers should be present during the request for examination and post-examination transport of the detainee [8].

Physical Evidence of Torture

As the Istanbul Protocol noted, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified, it should be secured and only the investigator should have access. All evidence must be properly collected and labelled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.

The investigator should also order a physical examination of the alleged torture victim as soon as possible. If possible, the medical examiner should have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur, since many violent acts frequently leave no marks or permanent scars. The medical examiner should take photographs if possible, and should note if the examination was not done under bright light [9].

Psychological Evidence of Torture

Studies show that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD) [10]. Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses [11]. To prevent the victim from re-experiencing the trauma, the investigator should explain what he or she should expect prior to the medical examination.

Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.

Victims may also suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders. [12]

Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment [13].

Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, the child should be examined by an expert in child abuse. Caregivers should be sure to care for the child, even if the child did not experience torture directly, but indirectly witnessed torture of a loved one. [14].

Interviewing Torture Victims and Gathering Evidence

The lawyer has a right to interview his client in private without any police officer or prison officer present. The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client. The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language.

During this interview the lawyer must find out all relevant information including:

  • The client's response to the allegations leveled against him
  • The names of the officers who arrested him and the investigating officer
  • What the arresting officers said to him at the time of the arrest
  • What questioning, if any, the client has been subjected to since he was arrested and by whom the questioning was done
  • Whether he has made any sort of statement and, if he has, what was it (i.e. was it made orally or was it a handwritten statement; was it a warned and cautioned statement which was typed and read over to him before he signed it; has the statement been confirmed before a magistrate? etc.)
  • If a statement has been made, whether it was made freely and voluntarily (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)
  • If a medical practitioner has already given medical treatment to his client, the lawyer should ask the police for a copy of the medical report (where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to allow him to see this recorded statement and he should request that he be provided with a copy of this statement).

Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.

Client Interview Checklist:

  • Exact time and date of arrest
  • Details of the arrest: number of people, role of each in the arrest and, if possible, name and occupation of each
  • Words exchanged, rights evoked
  • Details of placement into custody, whether or not the client knowledge of the infraction when being placed into custody
  • Language used, how the client understood the language used
  • Visits: conditions and treatment after the arrest and during custody: doctor visits, lawyer visits, whether there was an interpreter, details on interrogators, rest, food, and family
  • Judicial follow-up: transfers to courtroom, summons, notifications, right to a lawyer

When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. A good interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details (for example, colour and brand of the police car, weather that day, what people nearby were wearing). These details may initially seem insignificant, however, giving small details often makes it easier to speak of violence. Also, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details--the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narration is over to ask further questions. With the victims, come up with an inventory of the visible marks that resulted. Ask if there were witnesses to the arrest (especially the family or colleagues), for descriptions and even possibly names, of the perpetuators (first names are often given during physical interrogations).

Conversely, when victims are talkative, it is important to allow for an initial 'purging' phase during the interview, where the client is able to 'get it all out.' Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Also explain how certain details may aid or inform the creation of a defense (nullity, absolute defence, legal action against the perpetuators). Third, have the client make precise lists of people, of blows given, of clothing worn, and so on in order to regulate the flow. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties or legislation which exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as above.

Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. ?In both of the above cases, by the end of the interview the lawyer should have the following information:

  • The time and place of the events
  • The details of anyone present during the torture (whether or not they participated)
  • The exact role of each person or party involved, and especially, the nature and number of blows
  • The details of all pressures or threats constituting mental or psychological torture
  • The details of all marks personally seen
  • The details of all possible witnesses (bystanders, co-prisoners)

Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite, and then the defense should be prepared.

Representing Victims of Torture

Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: "Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession." [15]

Defense strategies are the methods by which a criminal defense attorney decides to try his/her client"s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer"s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy.

Lawyers have an implicit duty of communication, as being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to maintain the strategy throughout representation in this manner. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.

The earlier a defendant has access to counsel, the less likely he is to become a victim of torture for confessions. Unfortunately, in some countries, an attorney is not appointed to represent the defendant until trial. In other cases, such as the United States and India, the defense lawyer is first appointed at arraignment. In theory the defendant may have a right to counsel that begins before arraignment. For instance, in the United States, a defendant has the right to counsel during police interrogation (See, Right to Counsel), but they must invoke the right themselves. The United States Supreme Court adopted the famous "Miranda Warnings" in the landmark case, Miranda v. Arizona, when the court ruled that when a suspect is arrested, the suspect must be provided with a advisory warning of his constitutional rights. Despite the success of this rights awareness campaign, academics are still struggling to determine why so few people actually invoke their right to counsel during interrogation.[16]

In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend their client in many ways. Given the state's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.

Available remedies

A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible.

The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”[17] This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.

These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.

National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.[18]

The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.

Common Law Remedies

The following is a list of some of the ways criminal defense lawyers in a common law system can represent victims of torture who are accused of crimes:

  • Exclusion of confessions - The most common method of defense is to argue that the defendant"s confession should be excluded because it was produced by illegal means.[19] The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations.[20] There are several opportunities to raise this defense in a common law system:
    • Arraignment / Bail " This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant"s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.
    • Pre-trial motions - The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judges determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.
    • Trial " In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.
    • At Appeal " If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.

Civil Law Remedies

In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.

Nullity of Procedure- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.

Absolute Defense - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.

Disciplinary Action Against Perpetrators - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.

Collateral Remedies

In both civil and common law countries, a defendant may have an independent civil action for damages against the state or the police. For instance, in the United States, a defendant who is tortured by a police officer may have a separate civil law remedy for violation of their constitutional rights under 42 USC " 1983 [21]. Similarly, a victim of torture may have a tort action under a theory of battery.

Requesting medical and psychological treatment for client

The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.

Recourse to National Human Rights Institutions and/or Ombudsman Institutions

International Remedies

Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.

The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.

Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).[22] This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.[23]

In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.[24] This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.

The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.

International Mechanisms

International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission[25]), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights[26] or the Committee against Torture monitoring the U.N. Convention Against Torture.

Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.[27] After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.[28]

Codes

Convention Against Torture

International Covenant on Civil and Political Rights

Rome Statute of the International Criminal Court

Standard Minimum Rules for Treatment of Prisoners

File:Istanbulprotocol.pdf

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Inter-American Convention to Prevent and Punish Torture

References

  1. http://thereport.amnesty.org/facts-and-figures
  2. The International Covenant on Civil and Political Rights, Article 24
  3. The UN Convention on the Rights of the Child, Article 37
  4. Convention on the Prevention and Punishment of the Crime of Genocide, Art. 2
  5. The Rome Statute of the International Criminal Court
  6. Convention Against Torture, Article 12
  7. http://www.kspope.com/torvic/torture1.php
  8. Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
  9. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  10. http://www.kspope.com/torvic/torture1.php
  11. International Rehabilitation Council for Torture Victims
  12. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  13. ttp://www.kspope.com/torvic/torture1.php
  14. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  15. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  16. Leo, Richard A., Miranda's Revenge: Police Interrogation as a Confidence Game. Available at SSRN: http://ssrn.com/abstract=1134050
  17. On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.
  18. http://french.cri.cn/781/2010/06/02/57s220326.htm
  19. Brown v. Mississippi, 297 U.S. 278 (1936)
  20. See, exclusionary rule
  21. The rules surrounding state liability under 42 USC 1983 are extremely complex and outside the scope of Defense Wiki.
  22. Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.
  23. Prosecutor v. Furundzija (ICTY, 1998)
  24. In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue.  For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).
  25. For Further information refer to http://www.achpr.org/.
  26. On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.
  27. Convention Against Torture, Article 20
  28. Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/