National prosecutions key to breaking cycle of impunity for torture: UN expert

GENEVA (14 March 2023) – States must pursue justice “at home” for crimes of torture, to achieve meaningful accountability, healing and reconciliation, the UN independent expert on torture said today.

In a report to the 52nd session of the Human Rights Council, the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, Alice Edwards, urged national authorities to take ownership of justice processes and operate as primary responders in cases of torture and other inhuman treatment.

“Despite the impressive growth in international criminal courts and tribunals and our collective commitment to those entities, their capacity to deal with the scale and scope of torture crimes being perpetrated today will never be enough,” Edwards said, emphasising the importance of national proceedings.

In her report, the Special Rapporteur pointed at a “glaring gap” between the promise and reality of the international prohibition of torture and recalled that every State has a duty to criminalise and investigate crimes of torture in national law, prosecute or extradite suspects, and sentence offenders with penalties that reflect the gravity of the offence.

“The national duty to investigate torture is alarmingly, universally, under-implemented,” she said.

The report highlighted the main obstacles hindering full and prompt investigations into allegations of torture, including institutional, regulatory, political, and practical challenges. The report also shared promising State practices to implement the duty to investigate torture, including documenting that at least 105 countries have adopted an explicit criminal offence of torture.

Despite this progress, Edwards said too few incidents of torture and other ill-treatment are officially reported, and – of those that are reported – cases regularly collapse or are withdrawn before a satisfactory conclusion.

“The difference between a crime of torture and an ordinary crime is that torture is first and foremost a crime committed or enabled by public officials. This power asymmetry between the accuser and the accused puts the alleged victim in a situation of particular precarity,” the Special Rapporteur said.

Edwards’ report documented how victims were often threatened and intimidated into withdrawing their allegations, risking vexatious counter-allegations and associated reputational damage, or distrusting the wheels of justice. "Complainants may still be in custody or under the control of the very authorities they are making allegations against," she said. "The risks of retaliation and violence - including further torture or 'disappearance' - are real. The stakes are high.”

The expert called on States to establish independent investigative bodies that ensure that victims and survivors were ‘given voice’, fully empowered and could actively participate in any legal proceedings involving torture. She urged States to treat complainants with due respect, compassion and dignity and to offer appropriate rehabilitation and protection measures. “Early access to trauma counselling and other forms of rehabilitation are not only in the interests of complainant’s mental health, but they also help them become more reliable witnesses in court proceedings,” she said.

"National torture trials are not a threat to state authority. On the contrary, what threatens a government’s legitimacy is torturing persons, refusing to investigate and try the perpetrators, and allowing the torturers to go unpunished," Edwards said. “A state’s legitimacy will be enhanced if they indeed defend truth and justice, rather than be seen as accomplices in the crime of torture.”ENDS

Dr. Alice Jill Edwards, Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, is part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent of any government or organisation and serve in their individual capacity.