U.N. Commission on Human Rights, Report of the Special Rapporteur on torture and cruel, inhuman or degrading treatment or punishment, U.N. Doc. E/CN.4/1994/31 (1994)(Nigel Rodley, Special Rapporteur).



666. As in previous years, it must be concluded that torture occurs, lamentably, in a significant number of countries. It is virtually axiomatic that situations where torture is systematically practised are characterized by one or both of the following phenomena:

(a) The legal system does not provide the institutional safeguards needed to restrain law enforcement officials and members of security forces from resorting to abusive and illegal behaviour to achieve their aims. In particular, persons suspected of crimes or of possessing information relevant to the detection of crime are left in the hands of their interrogators without access to the outside world or other authoritative external supervision. In effect, they are detained incommunicado. They cannot call the outside world to their aid and their captors and interrogators presume they are insulated from external interference. Indeed, in this sense, this element is connected with the second one.

(b) Those conducting the torture enjoy de jure or de facto impunity. De jure impunity generally arises where legislation provides indemnity from legal process in respect of acts to be committed in a particular context or exemption from legal responsibility in respect of acts that have in the past been committed, for example, by way of amnesty or pardon. De facto impunity occurs where those committing the acts in question are in practice insulated from the normal operation of the legal system. Such immunity may begin with the absence of safeguards of the sort mentioned in (a) above. Sometimes the safeguards may be formally in place and applicable, but those charged with maintaining public order are allowed to become "a law unto themselves" or, more accurately, the law is prevented from reaching their acts. Legality and the rule of law are dispensed with. In the case of torture, grave crimes are committed in the name of maintaining public order. Nothing can be more corrosive of general respect for law, without which no organized society can in the long term be secure.

667. The United Nations is aware of these phenomena. It was in the context of its efforts to combat torture that the General Assembly, in its resolutions 3218 (XXIX) and 3453 (XXX), set in motion the drafting of the instrument that was to become the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. This instrument constitutes a compilation of safeguards, respect for which would radically inhibit the incidence of torture in the world. Of crucial importance in this respect are Principles 15, 16, 18, 19, 24, 25, 29, 32 and 33. In this context, the Special Rapporteur recalls the words of Principle 15 whereby "communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days".

668. As regards impunity, the World Conference on Human Rights evinced a general concern with the problem in the Vienna Declaration and Programme of Action, part II, paragraph 91 of which states:

"91. The World Conference on Human Rights views with concern the issue of impunity of perpetrators of human rights violations, and supports the efforts of the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities to examine all aspects of the issue."

In addition, concerning the specific issue of torture, part II, paragraph 60 states:

"60. States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law."

669. Furthermore, in resolution 1993/40, under which the Special Rapporteur was appointed, the Commission on Human Rights endorsed the recommendation of his predecessor that whenever a complaint of torture is found to be justified, the perpetrators should be severely punished, especially the official in charge of the place of detention where the torture is found to have taken place. (E/CN.4/1992/17, para. 294 (i)).

670. In the final analysis, the elimination of torture is a matter of political will. Its persistence is testimony to the failure of political will. Where it occurs the absence of safeguards and the prevalence of impunity is the measure of the gap between the commitment to its eradication and the political will required to enforce the commitment.

671. The Special Rapporteur appreciates the spirit of cooperation shown by those Governments that have responded to information he has transmitted to them. Yet he cannot conceal his disappointment at the incidence of responses that seem designed more to camouflage rather than deal with serious situations characterized by torture, such as flat denials, references to unspecified or unsubstantiated investigations, references to legal procedures that have already been so compromised as to be incapable of affording the inquiry or information or remedy they are alleged to be able to afford. There is no dearth of recommendations that may be made to Governments seriously committed to ending torture. Most of them have been made by the previous Special Rapporteur and endorsed by the Commission. The Special Rapporteur confirms his own view as to their value and commends them for serious action by Governments.


Home || Treaties || Search || Links