Implementing the prohibition of torture: the contribution and limits of national legislation and jurisprudence

Abstract

Legislative reforms and litigation frequently form the focus of strategic interventions by lawyers and civil society. This is reflected in the recent proliferation of anti-torture bills/laws and evolving jurisprudence on the prohibition of torture. The article examines these developments and demonstrates the contribution that these approaches and interventions can make in strengthening the normative framework and promoting accountability and justice. However, the very focus on legal interventions, with its underlying faith in the law and legal systems, may fail to tackle structural factors perpetuating violations and impunity, such as inequalities, discrimination and weak or corrupted institutions. Approaches relying predominantly on legal tools must therefore be mindful of their inherent limitations and consider what complementary strategies are likely to make the prohibition of torture more effective.

Keywords:

• torture
• legislative reforms
• national jurisprudence
• accountability
• effective remedies and reparation

Acknowledgements

With my appreciation to Yusuke Hara and Melanie Horn for their excellent research assistance and contribution to writing this article.

Notes

See Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008).

Articles 1 of the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR) and the African Charter on Human and Peoples' Rights (ACHPR) in conjunction with article 3 ECHR, article 5 ACHR and article 5 ACHPR respectively.

Nigel S. Rodley and Matt Pollard, The Treatment of Prisoners under International Law, 3rd ed. (Oxford: Oxford University Press, 2009), 69, 70.

The reluctance of police officers to report acts of torture and act as witnesses, for example, could be tackled by encouraging confidential complaints and making failure to report a disciplinary offence. See for example, the Northern Ireland Police Code of Ethics 2003 (reviewed most recently in 2008), http://www.nipolicingboard.org.uk/final_code_of_ethics-2.pdf (accessed 7 February 2012).

See on the role of civil society and freedom of expression in the prevention of torture, Courtenay R. Conrad and Will H. Moore, ‘What Stops the Torture?’, American Journal of Political Science 54, no. 2 (2010): 459–76. See also the reference to ‘public scrutiny’ in Guidelines of the Committee of Ministers of the Council of Europe on Eradicating Impunity for Serious Human Rights Violations (30 March 2011).

REDRESS, Reparation for Torture: A Survey of Law and Practices in Thirty Selected Countries (London: The Redress Trust, April 2003), 41–52.

Erik Wendt and Therese Rytter, ‘A Unique Regional Initiative: The Asian Alliance against Torture and Ill-Treatment’, Asian Human Rights Commission, September 15, 2011, http://www.humanrights.asia/news/ahrc-news/AHRC-ART-052-2011 (accessed 7 February 2012).

See for example, Peru's Law amending the Penal Code of 1998 (Law No. 26926, 19 February 1998); Denmark's Civil Criminal Code of 2007 (Consolidation Act No. 1260, 23 October 2007, as amended) and Military Criminal Code of 2005 (Act No. 530, 24 June 2005, amended in June 2008); Morocco's Penal Code of 1963, amended by Law No. 43-04 of 2006; Georgia's Criminal Code of 1999, amended 28 April 2006 by Law No. 2937; for further details and examples, see Association for the Prevention of Torture's Compilation of Torture Laws, http://www.apt.ch/index.php?option=com_k2&view=item&layout=item&id=819&Itemid=266&lang=es (accessed 7 February 2012).

Committee against Torture, Suleymane Guengueng et al. v. Senegal, UN Doc. CAT/C/36/D/181/2001 (2006), paras 7.13–7.17; ‘Loi no. 2007-02 due 12 février 2007 modifiant le Code pénal and Loi no. 96-15 du 28 août 1996 modifiant le Code penal’ were introduced to incorporate universal jurisdiction. See also Amnesty International, Universal Jurisdiction: Improving the Effectiveness of State Cooperation (June 2007), http://www.amnesty.org/en/library/asset/IOR53/006/2007/en/9e5cae70-d388-11dd-a329-2f46302a8cc6/ior530062007en.html (accessed 7 February 2012). For examples in Europe, see REDRESS, Extraterritorial Jurisdiction in the 27 Member States of the EU (London: The Redress Trust, December 2010), http://www.redress.org/downloads/publications/Extraterritorial_Jurisdiction_In_the_27_Member_States_of_the_European_Union.pdf (accessed 7 February 2012).

New Zealand Crimes of Torture Act, 1989; Sri Lankan Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Act No. 22 of 1994.

Nepal Torture Compensation Act, 1996, and US Torture Victim Protection Act, 1991.

Federal Act to Prevent and Punish Torture (Ley Federal Para Prevenir y Sancionar la Tortura), 1991.

Law against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Law No. 2008-008 of 25 June 2008), Madagascar, and Anti-Torture Act, Philippines 2009 (Republic Act No. 9745).

A copy of the Bill to Give Effect to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment (10 September 2009) is available at: http://bangladesh.ahrchk.net/docs/TortureandCustodialDeathBill2009.pdf.

Asian Human Rights Commission, Torture Prevention & Police Law in India (December 2010), http://www.humanrights.asia/resources/journals-magazines/article2/0903 (accessed 7 February 2012).

REDRESS and Advocacy Forum Nepal, Held to Account: Making the Law Work to Fight Impunity in Nepal (London and Kathmandu: Redress Trust and Advocacy Forum Nepal, December 2011), 52–3, http://www.redress.org/downloads/country-reports/Nepal%20Impunity%20Report%20-%20English.pdf (accessed 7 February 2012).

See Human Rights Committee, Core Document Forming Part of the Reports of States Parties: Maldives, UN Doc. HRI/CORE/MDV/2010 (2011), para. 236.

See Human Rights Committee, Third Periodic Report on Kenya, UN Doc. CCPR/C/KEN/3 (2011), para. 143.

Uganda's Parliament adopted a law on the Prevention and Prohibition of Torture on 26 April 2012. See ‘Important Developments in Uganda & South Africa’, APT, May, 11, 2012, http://www.apt.ch/index.php?option=com_k2&view=item&id=1219:uganda-southafrica&lang=en (accessed 17 May 2012).

South Africa Prevention and Combating of Torture Bill. See Bill to Tackle Torture approved by Cabinet, Legalbrief Africa, May 8, 2012, http://www.legalbrief.co.za/article.php?story=20120508111729796 (accessed 17 May 2012).

Committee against Torture, Fourth Periodic Report of Argentina, UN Doc. CAT/C/SR.622 (2004), paras 5, 12.

See for example, article 5 of the 1992 Constitution of Paraguay, article 28 of the 1994 Ethiopian Constitution, article 34 of Serbia's Constitution of 2006 and article 80 of the Ecuadorian Constitution of 2008.

Section 9 Philippines Anti-Torture Act 2009; Australian Witness Protection Act 1994; Colombian Law No. 418 of 1997; German Witness Protection Act 1998; Italian Decree-Law No. 82 of 1991, as amended in 2001; South African Witness Protection Act 112 of 1998. For further details see UNODC, Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crime (2008), http://www.unodc.org/documents/organized-crime/Witness-protection-manual-Feb08.pdf (accessed 7 February 2012); and REDRESS, A Call to Action, Ending Threats and Reprisals against Victims of Torture and Related International Crimes (London: The Redress Trust, December 2009), 32–5.

In the case of Madagascar and the Philippines there was a broader public debate concerning the anti-torture laws in contrast to the 1994 anti-torture law adopted in Sri Lanka.

Committee on Accountability of Non-State Armed Groups (CALASAG), ‘Not Only the State: Torture and Enforced Disappearance by Non-State Armed Groups’ (Position statement on the Proposed Laws Against Torture and Enforced Disappearance, Quezon City, Philippines, CLSASAG, 24 April 2009), http://www.southsouthnetwork.com/calasag/CALASAG%20Position%20Statement-Petition%20re%20Torture%20&%20Enforced%20Disappearance%20Bills.doc (accessed 7 February 2012).

See article 417 of Belgium's Criminal Law, which does not explicitly include acts by officials, and concerns expressed in this regard by the Committee against Torture in its concluding observations, UN Doc. CAT/C/BEL/CO/2 (2009), para. 14. By December 2011, the only two convictions for torture in Belgium concerned non-state actors (as reported during an expert meeting on torture in Europe organised by REDRESS and ECCHR in December 2011).

Both section 3(a) of the Philippines Anti-Torture Act (PATA) and article 2(1) of Madagascar's Anti-Torture Law (MATL).

See section 4 PATA.

See article 3 MATL and article 5 PATA, according to which: ‘Other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim.’

Section 13 PATA specifically provides for command/superior responsibility while article 17 MATL refers to complicity. Section 6 PATA and article 15 MATL affirm that superior orders do not constitute a justification for torture. Article 16 MATL provides that the refusal to follow such orders should not be punishable.

Articles 10–13 MATL and section 14 PATA provide for a wide range of punishments depending on the consequences of the act. MATL provides for a maximum punishment of five years for acts of torture other than in aggravating circumstances and PATA for six months maximum punishment for inhuman treatment.

Article 18(6) MATL provides for the presence requirement whereas PATA is silent on universal jurisdiction.

Both PATA and MATL contain several provisions to this effect. For example, in PATA: section 7 (prohibited detention); section 8 (exclusionary rule); section 10 (habeas corpus, amparo and habeas data); section 11 (assistance in filing a complaint); section 12 (right to physical, medical and psychological examination); section 17 (non-refoulement); section 21 (education and information campaign); and in MATL: article 4 (right to contact a member of family, right to medical examination, right of access to a lawyer of one's choice, obligation on authorities to properly record date, time and reason for detention); article 5 (prohibited detention); article 6 (exclusionary rule); article 7 (separation of vulnerable groups such as women and children); article 8 (education and training); article 9 (monitoring of detention); article 19 (non-refoulement).

Office of the High Commissioner for Human Rights, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Geneva and New York: United Nations, 2004), http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf (accessed 7 February 2012).

Sections 9–11 and section 16 (amnesties) PATA and article 20 (victim protection) MATL.

See Committee against Torture, Draft General Comment on Article 14 (2011), para. 20.

Section 3(c) PATA.

Sections 18, 19 PATA and article 21 MATL.

See for example, sections 18 and 19 PATA.

Sections 11 (assistance in filing a complaint), 16 (amnesty) PATA and article 20 (victim protection) MATL.

Sections 18 (compensation) and 19 (rehabilitation) PATA; article 21 (reparation) MATL.

Section 20 (monitoring compliance) PATA.

Section 17 PATA and article 19 MATL.

Committee against Torture, General Comment 2: Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2 (2008), para. 6; and Human Rights Committee, General Comment No. 20: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), 44th Session (1992), para. 9.

Although the mandate of the Police Ombudsman is not torture specific (but includes torture), its modus operandi provides a good model of investigations by an independent body. See for a further analysis, REDRESS, Taking Complaints of Torture Seriously: Rights of Victims and Responsibilities of Authorities (London: The Redress Trust, September 2004), 56–9.

Human Rights Council, Report Submitted by the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez, UN Doc. A/HRC/16/52 (2011), paras 47–9.

Kishali Pinto-Jayawardena, The Rule of Law in Decline: Study on the Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka (Copenhagen: The Rehabilitation and Research Centre for Torture Victims, 2009), 92–4; Committee against Torture, Concluding Observations on Sri Lanka, UN Doc. CAT/C/LKA/CO/3-4 (2011), para. 18.

Basil Fernando and Sanjeewa R. Weerawickrame, A Baseline Study on Torture in Sri Lanka (Hong Kong: Asian Human Rights Commission, 2009), 71–4, 78.

See Advocacy Forum, Hope and Frustration: Assessing the Impact of Nepal's Torture Compensation Act-1996 (26 June 2008).

Naomi Roht-Arriaza and Javier Mariezcurrena, Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice (Cambridge: Cambridge University Press, 2006); for an analysis of Northern Ireland police reform, see for example, David H. Bayley, ‘Post-conflict Police Reform: Is Northern Ireland a Model?’, Oxford Journal of Policing 2, no. 2 (2008): 233–40.

Committee against Torture, Concluding Observations on Sri Lanka, UN Doc. CAT/C/LKA/CO/3-4 (2011), para. 10.

See ‘Assessing Damage, Urging Action’ (Report of the Eminent Panel on Terrorism, Counter-terrorism and Human Rights, International Commission of Jurists, Geneva, 2009), http://ejp.icj.org/IMG/EJP-Report.pdf (accessed 7 February 2012).

See Asian Human Rights Commission, India: Human Rights a Utopia Without Justice (Asian Human Rights Commission, 2011), 2.

Conor Fonley, Combating Torture: A Manual for Judges and Prosecutors (Colchester: University of Essex, Human Rights Centre, 2003), http://www.essex.ac.uk/combatingtorturehandbook/english/index.htm (accessed 7 February 2012); Human Rights Council, Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Carina Knaul de Albuquerque e Silva, UN Doc. A/HRC/14/26 (2010), para. 27; see for example, Committee against Torture, Concluding Observations on Uzbekistan, UN Doc. CAT/C/UZB/CO/3 (2008), para. 20; Committee against Torture, Concluding Observations on Tajikistan, UN Doc. CAT/C/TJK/CO/1 (2006), para. 14.

UN Human Rights Committee, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 4.

For an overview, see REDRESS, Universal Jurisdiction Trial Strategies: Focus on Victims and Witnesses; Extraterritorial Jurisdiction in the 27 Member States of the EU (London: The Redress Trust, December 2010); Non-Refoulement Under Threat, May 2006, all available at http://www.redress.org/reports/reports (accessed 7 February 2012).

REDRESS, Reparation for Torture. REDRESS is currently undertaking a major research project on the law and practice on the prohibition of torture worldwide.

See Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; see comments made by the Committee against Torture, Concluding Observations on Canada, UN Doc. CAT/C/CR/34/CAN (2005), para. 4.

Public Committee Against Torture v. State of Israel H.C. 5100/94 (1999), paras 23–32 and 36–40.

Ibid., paras 33–5. See Committee against Torture, Concluding Observations on Israel, UN Doc. CAT/C/ISR/CO/4 (2009), para. 14.

Gäfgen v. Germany, Application No. 22978/05, ECtHR Grand Chamber judgement of 1 June 2010, paras 24–46.

Ibid., paras 47–52.

A v. Secretary of State for the Home Department (No. 2) [2005] UKHL 71. See Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/61/259 (2006), paras 60–5. See also the case of Ahmed v. R, discussed in Sarah Fulton's article, ‘Cooperating With the Enemy of Mankind: Can States Simply Turn a Blind Eye to Torture?’, The International Journal of Human Rights 15, no. 5 (2012), in this volume.

Suleiman Al-Adsani v. Government of Kuwait and Others (1996), 107 ILR 536 (Eng., CA); Al-Adsani v. The United Kingdom (2002) 34 EHRR 11; Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) [2006] UKHL 26, now pending before the ECtHR (case no. 34356/06).

See Human Rights Committee, Concluding Observations on the United States of America, UN Doc. CCPR/C/USA/CO/3/Rev.1 (2006), para. 16.

Azanian Peoples Organization (AZPO) and Others v. The President of South Africa and Others, Constitutional Court of South Africa, Case CCT 17/96 (1996). See in this context, John Dugard, ‘International Law and the South African Constitution’, European Journal of International Law 8, no. 1 (1997): 77–92.

See Naomi Roht-Arriaza and Lauren Gibson, ‘The Developing Jurisprudence on Amnesty’, Human Rights Quarterly 20 (1998): 843–85, and for a review of recent jurisprudence, Gomes Lund et al v. Brazil, Judgement of the Inter-American Court of Human Rights, 24 November 2010, Preliminary Objections, Merits, Reparations and Costs, Series C No. 219, paras 134–6, 149, and 163–9.

See Lisa Laplante, ‘Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes’, Virginia Journal of International Law 49, no. 4 (2009): 915–84, 944–64.

‘RECURSO DE HECHO Simón, Julio Héctor y otros s/privación ilegítima de la libertad’, Causa Nº 17.768 (Poblete), Corte Suprema de Justicia de la Nación, 14 June 2005 (Argentina). The Supreme Court upheld a ruling of the National Appeal Court for Federal Criminal and Correctional Cases finding the Due Obedience and Clean Slate Acts unconstitutional.

Margarita K. O'Donnell, ‘New Dirty War Judgments in Argentina: National Courts and Domestic Prosecutions of International Human Rights Violations’, New York University Law Review 84 (2009): 333–74, http://law.nyu.edu/ecm_dlv4/groups/public/@nyu_law_website__journals__law_review/documents/documents/ecm_pro_061541.pdf (accessed 7 February 2012).

Gomes Lund et al v. Brazil, paras 163–9.

Gustava Gallón y otros (18 May 2006), Sentencia C-370/2006, Expediente D-6032 (Colombian Constitutional Court).

Article 3 of Law 975/2005.

Gustava Gallón y otros, para. 6.2.1.5.2, as cited in Julián Guerrero Orozco and Mariana Goetz, ‘Reparations for Victims in Colombia: Colombia's Law on Justice and Peace’, in Reparations for Victims of Genocide, War Crimes and Crimes against Humanity, Systems in Place and Systems in the Making, ed. Carla Ferstman, Mariana Goetz and Alan Stephens (Leiden and Boston, MA: Martinus Nijhoff Publishers, 2009), 435–58, 442.

Ibid., 443.

See for example, Prosecutor v. Morris Kallon & Ors, Decision on Constitutionality and Lack of Jurisdiction- SCSL-04-15-AR72(E) [2004] SCSL 4 (13 March 2004).

For example, Uganda's Amnesty Act 2000, which is currently being challenged in the case of Thomas Kwoyelo.

See for example, in Sudan, article 52(3) of the National Security Act, 2010, article 45(2) of the Police Act 2008, and article 34(2) of the Armed Forces Act, 2007; articles 197 of the Criminal Procedure Codes of India (1889 as amended 1997), Pakistan (1973) and Bangladesh (1898); also, section 49, India's Unlawful Activities Prevention Act 1967 Amendment Ordinance 2004; section 6 Armed Forces (Special Powers) Act 1958; section 22 Jammu and Kashmir Public Safety Act 1978.

Farouq Mohamed Ibrahim Al Nour v. (1) Government of Sudan; (2) Legislative Body; Final order by Justice Abdallah Aalmin Albashir President of CC, 6 November 2008.

See Committee against Torture, Concluding Observations on Turkey, UN Doc. CAT/C/CR/30/5 (2003), para. 4 (c); and Yöyler v. Turkey, application no. 26973/95, ECtHR Judgement of 24 July 2003, para. 93.

Prosecutor v. Furundzija, ICTY Judgement of 10 December 1998, IT-95-17/1, para. 157; Barrios Altos v. Peru, Judgement of the Inter-American Court of Human Rights, 14 March 2001, Merits, Series C No. 75, para. 41; Human Rights Committee, General Comment 31, para. 18; Committee against Torture, Concluding Observations on Turkey, UN Doc. CAT/C/CR/30/5 (2003), para. 7(c).

Corte Suprema de Justicia [CSJN], 24 August 2004, ‘Arancibia Clavel, Enrique Lautaro s/ homicidio calificado y asociación ilícita y otros – causa no 259’, La Ley [L.L] (2004-F-292) (Arg.), http://www.law.uoregon.edu/org/oril/docs/10-1/Brunner.pdf (accessed 7 February 2012).

Czech Constitutional Court Pl. US 19/9321 (December 1993) and Hungarian Constitutional Court, 53/1993 (13 October 1993).

D.K. Basu v. State of West Bengal (1997), 1 SCC 416; Bangladesh Legal Aid and Services Trust (BLAST) and others v. Bangladesh and others, High Court Division (Special Original Jurisdiction), The Supreme Court of Bangladesh, Writ Petition No. 3806 of 1998; 55 DLR (2003) 383.

Asian Human Rights Commission, ‘India's Prevention of Torture Bill Requires a Thorough Review’, Article 2 9, nos 3–4 (2010): 2–13, http://www.article2.org/mainfile.php/0903/380/ (accessed 7 February 2012).

Rajendra Ghimire v. Council of Ministers et al., Supreme Court of Nepal, 17 December 2007.

See Mikheyev v. Russia, [2006] ECHR 78, paras 36–55, 80, 114. See also Council of Europe, 16 Cases against the Russian Federation Mainly Concerning Ill-treatment of the Applicants While in Custody and the Lack of an Effective Investigation, Committee of Ministers 1100th DH Meeting (2 December 2010).

REDRESS, Call to Action.

See REDRESS, Bringing the International Prohibition of Torture Home: National Implementation Guide for the UN Convention against Torture (London: The Redress Trust, January 2006), 70, http://www.redress.org/downloads/publications/CAT%20Implementation%20paper%2013%20Feb%202006%203.pdf (accessed 7 February 2012), for further references; Pinto-Jayawardena, Rule of Law, 166–71.

See for example, the trial of Sudanese journalist Amal Habani and her colleague Fatima Ghazali, who called for a full investigation into allegations made by a student activist, Safia Ishag, that she had been raped by security officials. They were sentenced to one month in jail for defamation. See ‘UN Decries Jailing of Sudanese Journalists’, Sudan Tribune, August 3, 2011, http://www.sudantribune.com/UN-decries-jailing-of-Sudanese,39729 (accessed 7 February 2012).

The Queen on the Application of Ali Zaki Mousa v. Secretary of State for Defence & Anr [2011] EWCA Civ. 1334, Case No. C1/2011/0524.

Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights and the Activities of her Office in the Democratic Republic of the Congo, UN Doc. A/HRC/13/64 (2010); ‘Verdicts in Latest DR Congo Rape Trial Show Justice is Possible – UN Envoy’, UN News Centre, March 10, 2011, http://www.un.org/apps/news/story.asp?NewsID=37728&Cr=sexual+violence&Cr1 (accessed 7 February 2012).

In 2009, former Peruvian President Alberto Fujimori was convicted of human rights violations, including ordering two massacres, see for a translation of the judgement, American University International Law Review, 25 (2010): 657–842, http://www.auilr.org/pdf/25/25-Fujimori-Translation.pdf (accessed 7 February 2012).

Former Guatemalan dictator Efraín Ríos Montt will face trial on charges of genocide and crimes against humanity for his responsibility as commander-in-chief in 1982–1983 when more than 1700 people were killed and soldiers used rape, torture and arson to drive out insurgents. See ‘Guatemalan Dictator Efraín Ríos Montt To Go On Trial For Genocide’, The Guardian, January 27, 2012, http://www.guardian.co.uk/world/2012/jan/27/guatemala-rios-montt-genocide-trial (accessed 7 February 2012).

Ethiopia's former leader Mengistu Haile Mariam was tried in absentia in 2006, along with other officials, for their part in the ‘Red Terror’ Campaign. See ‘Mengistu Found Guilty of Genocide’, BBC News, December 12, 2006, http://news.bbc.co.uk/1/hi/world/africa/6171429.stm (accessed 7 February 2012).

See ‘Observation of Genocide Trials before the Gacaca Tribunals by Advocates Sans Frontiers’, http://www.asf.be/en/publications#RwandaEN (accessed 7 February 2012).

In Egypt, criminal charges have been brought against former President Hosni Mubarak, the former Interior Minister and several senior policemen for complicity in the killing of protestors. See ‘Mubarak Trial: Egypt's Ex-president Denies All Charges’, BBC News, August 3, 2011, http://www.bbc.co.uk/news/world-middle-east-14382997 (accessed 7 February 2012).

The intention to try Saif Ghaddafi in Libya has been made clear, though there are concerns about the likelihood of him receiving a fair trial and the International Criminal Court is also currently investigating his conduct. See ‘A Show Trial for Saif Gaddafi Would Only Promote Discord in Libya’, The Guardian, January 24, 2012, http://www.guardian.co.uk/law/2012/jan/24/show-trial-saif-gaddafi-libya (accessed 7 February 2012).

See for the trial against former President Zine al-Abidine, ‘Ben Ali and Several Military Officers, Tunis Court Finds Former Leaders Guilty of Torture’, Reuters, November 30, 2011, http://af.reuters.com/article/topNews/idAFJOE7AT05Y20111130 (accessed 7 February 2012).

Several hundred people accused of human rights violations committed during the ‘Dirty Wars’ are facing criminal proceedings in Argentina and many have already been convicted, including Reynaldo Bignone, a former military general, was found guilty of torture, murder and several kidnappings. See Amnesty International, ‘Former Argentine President Jailed For Crimes against Humanity’, April 21, 2010, http://www.amnesty.org/en/news-and-updates/former-argentine-leader-gets-25-years-crimes-against-humanity-2010-04-21.

Human Rights Watch, ‘Iraq: Saddam Hussein Put to Death: Hanging after Flawed Trial Undermines Rule of Law’, December 30, 2006, http://www.hrw.org/news/2006/12/29/iraq-saddam-hussein-put-death (accessed 7 February 2012).

See overview provided by Human Rights Watch, http://www.hrw.org/en/habre-case (accessed 7 February 2012).

Pablo De Greiff, ed., The Handbook of Reparations (Oxford: Oxford University Press, 2006).

A pertinent example of a quasi-judicial procedure is Uganda's Human Rights Commission. Torture victims have in practice preferred approaching the commission, which has awarded compensation, albeit often after some delay, in a number of cases. However, its awards have repeatedly not been honoured by the responsible Attorney-General, which undermines if not negates the effectiveness of the remedy provided. See REDRESS, Torture in Uganda: A Baseline Study on the Situation of Torture Survivors in Uganda (London: The Redress Trust, 2007), 9 and 33–5.

See in particular Human Rights Committee decisions in Vicente et al. v. Colombia, Communication No. 612/1995, UN Doc. CCPR/C/60/D/612/1995 (1994), para. 5.2. and Coronel et al. v. Colombia, Communication No. 778/1997, UN Doc. CCPR/C/76/D/778/1997 (2002), para. 6.2.

See Lutz Oette, ‘India's International Obligations Towards Victims of Human Rights Violations, Implementation in Domestic Law and Practice’, in Human Rights, Justice & Constitutional Empowerment, ed. C. Raj Kumar and Haryana K. Chockalingam (New Delhi: Oxford University Press, 2007), 462–85, 478–82.

REDRESS, Waiting for Justice: The Politics of Delay in the Administration of Justice in Torture Cases: Practice, Standards and Responses (London: The Redress Trust, May 2008), http://www.redress.org/downloads/publications/WAITING_FOR_JUSTICE_Mar%20O8%20Fin%20_2_.pdf (accessed 7 February 2012); Committee against Torture, Concluding Observations on Moldova, UN Doc. CAT/C/MDA/CO/2, 29 March 2010, para. 19.

See Satur C. Ocampo, ‘Still a Long Haul for Marcos Human Rights Violations Victims’, The Philippine Star, January 22, 2011, http://www.philstar.com/Article.aspx?articleId=650321&publicationSubCategoryId=

See REDRESS, Call to Action, 10.

See above III. Accountability (i).

See ‘Report of the Baha Moussa Inquiry, Closed 31 December 2011’, http://www.bahamousainquiry.org/.

‘Dutch State “Responsible for Three Srebrenica Deaths”’, BBC News, July 5, 2011, http://www.bbc.co.uk/news/world-europe-14026218; Nuhanović v. The Netherlands (case no. 200.020.173/01) and Mustafić-Mujić et al. v. The Netherlands (case no. 200.020.174/01), both judgements of the Hague Court of Appeal, 5 July 2011. English translation of the judgements available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5388 and http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5386.

See for example, Elias, CJ, in Taunoa and Ors v. The Attorney General and Anor, Supreme Court of New Zealand, [2007] NZSC 70 SC6/2006/2007. See on New Zealand also Falwasser v. Attorney-General [2010] NZHC 410.

See for example, in Tonga, Fa'aoso v. Paongo & Ors, [2006] TOSC 37 ($10,000 for violation of article 37 Convention of the Rights of the Child) and Government of the Republic of Namibia v. Getachew (SA 21/2006) [2008] NASC 4 (N$10,000 for unlawful detention and inhuman treatment).

Figures provided by Advocacy Forum, on file with author.

REDRESS, Reparation for Torture (and subsequent cases reported to REDRESS).

Committee against Torture, Concluding Observations on Austria, UN Doc. CAT/C/AUT/CO/4-5 (2010), para. 21. The committee highlighted the case of Mr Bakary Jassay, a Gambian national, who was abused and severely injured by policemen in Vienna on 7 April 2006, and who has not yet received any compensation, not even the €3,000 awarded by the court for the damages resulted from the pain and suffering.

See on the systemic problem of execution of judgements in Russia, Burdov v. Russia (No. 2), (Application no. 33509/04), Judgement of the European Court of Human Rights, 4 May 2009.

See for example, concerns by the Human Rights Committee concerning ‘the low number of cases where compensation for non-pecuniary damage’ was awarded to victims of trafficking (which arguably falls within the definition of torture and ill-treatment) in Macedonia, UN Doc. CCPR/C/MKD/CO/2 (2008), para. 13.

See for the text of the State Compensation Law of the Peoples' Republic of China (PRC) (revised in 2010): http://www.china.org.cn/china/LegislationsForm2001-2010/2011-02/12/content_21905705.htm; and ‘State Law Amended to Protect Rights’, China Daily, April 30, 2010, http://www.chinadaily.com.cn/china/2010-04/30/content_9794794.htm (both accessed 7 February 2012).

In the case of Gäfgen v. Germany, Application no. 22978/05, Grand Chamber judgement of 1 June 2010, Gäfgen, a convicted child murderer, who had suffered treatment contrary to article 3 ECHR, was awarded €3,000 compensation by a German civil court. It was only made after the Grand Chamber of the European Court of Human Rights found that the lengthy delay in the civil case was unjustifiable.

In the US, this practice is based on the Alien Tort Claims Act (28 U.S.C. §1350), beginning with the landmark case of Filártiga v. Peña-Irala, 577 F. Supp. 860, 967 (EDNY 1984) (approximately $10 million awarded).

See ‘Report of the Baha Moussa Inquiry, Closed 31 December 2011’, http://www.bahamousainquiry.org/ (accessed 7 February 2012). The Ministry of Defence paid $2.8 million out of court to the relatives of Baha Mousa and nine other detainees who suffered torture and other violations at the time, see ‘Army Suspends Baha Mousa Soldiers As More Prosecutions Are Considered; See Also in Relation to Maher Arar Case’, The Guardian, September 9, 2011, http://www.guardian.co.uk/world/2011/sep/08/army-suspends-baha-mousa-soldiers (accessed 7 February 2012); and on the Mahar Arar case, ‘Ottawa Reaches $10M Settlement with Arar’, CBC News, January 25, 2007, http://www.cbc.ca/news/canada/story/2007/01/25/arar-harper.html (accessed 7 February 2012).

See for example, Fifth Periodic Reports of States Parties Due in 2010: Russian Federation, UN Doc. CAT/C/RUS/5 (2011), for an overview of compensation paid by Russia between 2004 and 2009.

See on this point Lorna McGregor, ‘The Role of Supranational Human Rights Litigation in Strengthening Remedies for Torture Nationally’, The International Journal of Human Rights 16, no. 5 (2012): in this collection.

See Council of Europe, 16 Cases.

Ibid.

Basu v. West Bengal, BLAST v. Bangladesh, and Rajendra Ghimire v. Council of Ministers.

Inter-American Commission, Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and First Judicial Proceedings, OEA/Ser.L/V/II.129 (2007), http://www.cidh.org/countryrep/ColombiaAUC2007eng/Colombiadesmovilizacion2007indice.eng.htm (accessed 7 February 2012).

See Morten Koch Anderson and Basil Fernando, The Phantom Limb, Failing Judicial Systems, Torture and Human Rights Work in Sri Lanka (Denmark: RCT and Hong Kong: AHRC, 2009).