A comparative study of the use of the Istanbul Protocol amongst civil society organizations in low-income countries i

Transcription

1 60 A comparatve study of the use of the Istanbul Protocol amongst cvl socety organzatons n low-ncome countres Tobas Kelly, PhD*, Steffen Jensen, PhD**, Morten Koch Andersen, PhD**, Catrne Chrstansen, PhD***, Jeevan Raj Sharma PhD* Abstract The Istanbul Protocol (IP) s one of the great success stores of the global ant-torture movement, settng out unversal gudelnes for the producton of rgorous, objectve and relable evdence about allegatons of torture and ll-treatment. The IP s explctly desgned to outlne mnmum standards for States. However, t s all too often left to cvl socety organzatons to nvestgate allegatons of torture and ll-treatment. In ths context, mportant questons reman as to how and where the IP can be used best by such organzatons. These questons are partcularly acute n stuatons where human rghts groups may have lmted nsttutonal capacty. Ths paper explores the practcal challenges faced by cvl socety n usng the IP n Low-Income Countres. It s based on qualtatve research n three case studes: Nepal, Kenya and Bangladesh. Ths research nvolved over 80 ntervews wth human rghts practtoners. The conclusons of the paper are that the Istanbul Protocol provdes *) School of Socal and Poltcal Scence, Unversty of Ednburgh, Scotland **) DIGNITY: Dansh Insttute Aganst Torture, Copenhagen, Denmark. *** Independent consultant Correspondence to: toby.kelly@ed.ac.uk Edtors: Pau Pérez-Sales and Llla Hárd. a useful framework for documentaton, but more comprehensve forms of documentaton wll often be lmted to a very small albet mportant - number of legal cases. In many cases, the creaton of precse and standardzed forms of evdence s not necessarly the most effectve form of documentaton for redress or accountablty. In the absence of legal systems wllng and able to respond effectvely to allegatons of torture and ll-treatment, there are severe lmtatons on the practcal effectveness of detaled and techncal forms of documentaton. Keywords: human rghts documentaton, Istanbul Protocol, Low-Income Countres, torture and ll-treatment. Introducton The Istanbul Protocol (IP) represents the nternatonally recognsed standard for the documentaton of torture and ll-treatment. 1 Wth ts orgns n the Turksh human rghts struggle, the fnal verson was the collectve product of over 75 human rghts actvsts, lawyers and health workers from organzatons n at least 15 dfferent countres. The am of the IP s to enable States to brng evdence of torture and ll-treatment to lght so that perpetrators may be held accountable for ther actons and the nterests of justce may be served (p1). The Protocol descrbes,

2 61 For example: OHCHR Resoluton 2003/33 of 23 Aprl 2003; UN Specal Rapporteur on Torture General Recommendatons of 2003; 32nd ordnary sesson of the Afrcan Commsson on Human and People s Rghts, October 2002; Gudelnes to EU Polcy towards Thrd Countres on Torture and Other Cruel, Inhuman or Degradng Treatment or Punshment, General Affars Councl, n great detal, the mnmum standards for legal nvestgaton and the producton of medcal and psychologcal evdence (p2). It recommends obtanng vctm statements, preservng evdence (ncludng medcal evdence), dentfyng possble wtnesses and obtanng statements, n order to determne how, when and where the alleged ncdents of torture occurred (p17). More broadly, the experence of human rghts actvsts tells us that torture and ll-treatment are nherently dffcult to document. 2, 3 Not only can states nflct torture n a way that leaves few marks, but clams of torture are also often met wth cultures of denal. 5, 6 The IP therefore attempts to address these ssues by settng out a clear method through whch torture and ll-treatment can be documented n a consstent, effectve and mpartal manner. There s no doubt that the IP s one of the great success stores of the ant-torture movement. Snce t was adopted by the UN n 1999, t has been recommended by the UN General Assembly, the UN Human Rghts Councl, the UN Specal Rapporteur on Torture and Cruel, Inhuman and Degradng Treatment or Punshment, the Afrcan Commsson on Human and People s Rghts and the European Unon, amongst others. It has been translated nto multple languages. The IP has also spawned numerous gudes and manuals desgned to explan and clarfy ts 76 pages. 6-9 The IP s explctly desgned to outlne mnmum standards for States. However, t s all too often left to cvl socety organzatons to nvestgate and document allegatons of torture and ll-treatment. The most comprehensve forms of documentaton set out n the IP are resource-ntensve, resources that are often unavalable to many cvl socety organzatons. However, as the ntroducton to the IP explans, t s not desgned as: a fxed protocol, but rather as flexble mnmum standards and should be used takng nto account avalable resources (p2). 1 There are therefore mportant questons about how, n practce, to best to use the forms of documentaton set out n the IP. Ths artcle s the product of a two-year research project funded by the UK s Economc and Socal Research Councl and the Department for Internatonal Development, carred out by the Unversty of Ednburgh and Dgnty: Dansh Insttute Aganst Torture. The overall project ams to explore the ssues faced by cvl socety organzatons n documentng torture and ll-treatment n Low-Income Countres (as defned by the OECD). 13 It examnes the ams of cvl socety organzatons n documentng torture, the technques they use, and the problems they face n dong so. The IP s the most wdely recognsed human rghts nstrument used n the documentaton of torture, settng nternatonal standards. It s therefore mportant to explore the potental scope and challenges of usng the IP n practce. Ths partcular paper asks: What role does the Istanbul Protocol play n the documentaton of torture n Low-Income Countres? And what are the challenges and opportuntes nvolved n dong so? ESRC/DfID ES/L005395/1, May Aprl For more detals please see: torturedocumentatonproject.wordpress. com/?s=documentst last accessed 16 January Include n references

3 62 More broadly, the research addresses the challenges rased by attempts at standardsaton n human rghts work. Any move towards standardsaton treads a careful lne between prncples that help set a general framework but rsk becomng too broad to be meanngful n a partcular context, on the one hand, and detaled gudelnes that become too nflexble to take nto account context-specfc tactcal demands, on the other. 14 Much human rghts documentaton mplctly assumes that more knowledge s of value. If we can produce rgorous evdence about partcular ncdents of torture, we wll be n a better place to hold perpetrators to account. As such, the underlyng assumpton behnd the IP s that producton of detaled, objectve and relable legal evdence s central to the fght aganst torture. Ths s certanly true. Yet, at the same tme, knowledge should always be thought of as a means to an end, rather than an end n tself; t s mportant because t helps human rghts practtoners realse other more substantve goals, such as the eradcaton of torture. We therefore need to understand the role of partcular forms of knowledge n workng towards context specfc goals. Ths means askng why cvl socety organzatons use human rghts nstruments, what they want to acheve, and the ssues they face when dong so. The conclusons of the paper are that the IP provdes a useful framework for documentaton, but the practcal mpact of comprehensve forms of documentaton wll often be lmted to a small albet mportant - number of legal cases. In a context where legal systems are often unresponsve or neffcent, documentaton s more lkely to be used for advocacy or rehabltaton than legal complants. In the absence of legal systems wllng and able to respond effectvely to allegatons of torture and ll-treatment, there are severe lmtatons on the practcal effectveness of detaled and techncal forms of documentaton. The problem s not smply knowledge but also, poltcal wll. Ths paper does not seek to suggest that fear and rsk should rule out human rghts work. Nether s t suggestng that human rghts standards should be lower n Low-Income Countres. What s beng suggested s that, at a very practcal level, n the face of a state s falure to lve up to ts oblgatons and n an envronment of often scant resources, comprehensve documentaton mght not always be the most effectve way of achevng the broader goals of human rghts organsatons. Methods The project employs three case studes: Kenya, Bangladesh and Nepal. These three countres have been chosen for the followng reasons: Frst, the OECD classfes them all as Low-Income Countres. Second, whle they all have past and present hstores of state-led volence ncludng torture and ll-treatment, none of the countres are currently experencng levels of volence that would make the research unfeasble. Thrd, all three case studes nclude vbrant human rghts communtes that struggle to document wdespread and long-term abuses, and brng perpetrators to account, often under hgh levels of poltcal pressure. All three case studes can therefore tell us a great deal about the ams and methods of human rghts practtoners wth lmted nsttutonal capacty, operatng n hostle poltcal envronments, and ther attempts to grapple wth the dlemmas of human rghts documentaton. In order to ensure that the research addresses the needs and nterests of local and nternatonal stakeholders, the project was carred out n conjuncton wth collaborators n each case study, as well as researchers at

4 63 The Advsory board conssts of: Ngel Rodley, Unversty of Essex; Stephane Davd, FIDH; Mandra Sharma, Advocacy Forum; Mutuma Ruteere, CHRIPS; Sara Khan, Odhkar; Malcolm Evans, Unversty of Brstol. Ther partcpaton should not be taken as endorsement of the vews n ths artcle. DIGNITY (Dansh Insttute aganst Torture) and the Unversty of Ednburgh. Local partners, ncludng human rghts organzatons n all three case studes, were nvolved n research desgn and mplementaton, wth representatves from these organzatons servng on the project advsory board. In Kenya and Nepal, after an ntal mappng of the feld carred out n conjuncton wth our project partners, the man organsatons nvolved n the documentaton of torture were nvted to stakeholder workshops. At the workshops, the project objectves and methods were explaned, and partcpants provded feedback. The workshops also enabled us to dentfy other possble actors n torture documentaton. In Bangladesh, poltcal tensons at the tme of the research meant workshops were not feasble. Bangladesh ntervewees were therefore dentfed on the bass of exstng contacts and recommendatons from human rghts practtoners. Throughout the process, t was mportant to nclude all groups nvolved n the documentaton of torture and ll-treatment, and not to assume that only formal human rghts groups carry out such work. Ths ntal step allowed us to map the organzatons, people and bodes whch are nvolved n documentng torture and ll-treatment, ncludng NGOs, journalsts, medcal doctors, heath workers, lawyers, and paralegals, as well as state offcals. We dentfed 22 organzatons n Kenya, 17 organzatons n Nepal and 6 n Bangladesh. The research used n-depth qualtatve ntervews, n the tradton of the ethnographc and nterpretve ntervew. 15 The ntervews were carred out by CC n Kenya, JRS n Nepal and MKA n Bangladesh. In all three case studes, partcpants were ntervewed from nearly all organzatons dentfed as havng a drect role n the documentaton of torture and ll-treatment. They were dentfed as playng a central role n commssonng, carryng out or usng the documentaton of torture and ll-treatment n the organzaton. In many cases, they were lawyers, but clncans and other human rghts professonals were also ncluded. As above, t was not assumed that t was only lawyers or clncans who used documentaton n practce. We carred out 80 ntervews n total, wth each ntervew lastng between one and three hours. In ths part of the larger project, the focus was on the general experences and perceptons of human rghts practtoners nvolved n the documentaton of torture or ll-treatment wth the am of explorng the percepton of the man ssues and challenges. The ntervews were open-ended and addressed broad themes agreed upon for all three case studes, ncludng: the ams of torture documentaton, the challenges nvolved n documentng torture, the nstruments people use for documentaton and the reasons they are used, and whether and how the IP s used, and by whom. We dd not assume pror knowledge of the IP, but sought to examne how, why and where t was used by human rghts organzatons. Intervews covered the specfc expertse of those nvolved, the nstruments and technques used by the organzatons to document torture and ll-treatment, the organzatons objectves when documentng cases of torture and ll-treatment, the ntervewees vews and experences around usng the IP, and the problems and ssues they face when dong so. In the footnotes we have provded broad

5 64 detals of the ntervewees experence and poston, wthout compromsng ther anonymty. It s mportant to acknowledge the mplcatons and lmtatons of the nterpretve and qualtatve methods and framework for analyss used n ths artcle. The data conssts of the opnons and vews of human rghts actors. These are necessarly subject to varaton and dsagreement, and do not necessarly represent actual practce. We have tred to capture these dsagreements, where sgnfcant, but gven lmtatons of space, we cannot represent the full range of opnons. As n all ntervews, responses were also condtoned by the encounter between the ntervewee and ntervewer. It s possble that responses were shaped by, for example, a hope to ncrease fundng. An alternatve research strategy would have been to collect drect nformaton on ndvdual cases, but ths would rase ssues of confdentalty. We used purposve samplng gven the small sample sze. 16 Furthermore, gven the sze and nature of the sample frame, statstcal nformaton would not have been relable or sgnfcant. Whlst t s not possble to generalze the fndngs to all low-ncome settngs, the results rase ssues that mght be applcable n other cases. Indeed, generalzaton s not an am of ths paper, but rather to explore the context-specfc use of the IP. Carryng out research n contexts of volence and nstablty contans very real rsks, both for the partcpants and the researchers. The utmost consderaton was therefore gven to potental negatve repercussons arsng from any research for respondents and researchers. The research went through an ethcal audt and revew by the Research Ethcs Commttee of the School of Socal and Poltcal Scence at the Unversty of Ednburgh, procedures n complance wth the Ethcal Gudelnes of the Assocaton of Socal Anthropologsts. 17 Ths process ncludes an audt of rsk to researchers and partcpants, confdentalty and handlng of data, nformed consent and conflct of nterest. Intervewees have accordngly been kept anonymous. Context In ths secton we brefly set out the legal and poltcal context n all three case studes. Such background nformaton s essental to obtan an understandng of the practcal challenges n usng the IP for more comprehensve forms of documentaton. In Kenya, Artcles 25, 26 and 29 of the 2011 Consttuton guarantee the rght to lfe and the absolute prohbton of torture. There s currently no specfc legslaton crmnalzng torture. Human rghts organzatons report that torture s wdely used as an nterrogaton method n places of detenton , In addton, al-shabab actvtes n Somala have spread nto Kenya, resultng n an often brutal crackdown by Kenyan securty forces on terror suspects. Ethnc Somals have been partcularly vulnerable to the volence of the polce and securty forces. 21 At the tme of wrtng, the government was tryng to expand ts securty powers, and n 2014, new legslaton gave the polce wde powers over suspects, although key clauses have been suspended by the Hgh Court. There are a large number of organzatons n Kenya nvolved n the documentaton of torture and ll-treatment. Key organzatons nclude the Independent lawyer and programme advsor for natonal human rghts NGO, Narob, 6 August 2014; paralegal, natonal human rghts NGO, Narob, 13 August 2014; lawyers and programme drectors, natonal human rghts NGO, Narob, 19 August 2014; head of feld offce of nternatonal human rghts NGO, Narob, 28 August 201; lawyer and drector of natonal human rghts NGO, 22 September 2014.

6 65 Medcal Legal Unt (IMLU), Kenya Human Rghts Commsson, Amnesty Internatonal - Kenya and the Kamukunj Paralegal Unt. IMLU s the only organzaton that solely works on torture amongst the general Kenyan populaton. Four organzatons offer medcal examnaton and rehabltaton servces for torture survvors, and three of these focus on specfc populatons such as chldren or refugees. Full-tme, pad human rghts workers are largely, but not solely, traned lawyers. Clncans for medco-legal reports are largely recruted on a voluntary or consultancy bass and traned by IMLU. Indvdual cases are usually dentfed through meda reports or by paralegals workng n local communtes. The documentaton of securty-related cases s wdely perceved by human rghts actors to be a more poltcally senstve ssue than the documentaton of crmnal cases. In Bangladesh, custodal torture became a specfc crme n 2013, wth the approval of the Torture and Custodal Death (Protecton) Act The Bangladesh securty servces have recently proposed amendng the law to exclude mental sufferng, to omt purposes ncludng punshment, ntmdaton, coercon and dscrmnaton, and to requre that the polce carry out the nvestgaton of any complant. 22 Human rghts practtoners report that torture and ll-treatment s a product of two processes. The frst s harassment, extorton and nterrogaton by polce offces. 23 Torture, custodal lawyer and drector of natonal human rghts NGO, Narob, 22 September See also: Wrtten statement submtted by ODHIKAR - Coalton for Human Rghts, Twenty-seventh sesson, Agenda tem 4: Human rghts stuatons that requre the Councl s attenton, 25 August Avalable at: odhkar.org/wp-content/uploads/2014/09/statement- Wrtten_UN-HRC_Odhkar_25-August-14_Eng.pdf, last accessed 20 January death, extra judcal kllngs known as cross fres and enforced dsappearances are wdespread. The second s on-gong poltcal tensons between supporters of the Awam League government and ts opponents, manly n the Bangladesh Natonal Party and the Jamaat-e- Islam There are three man organzatons n Bangladesh nvolved n the documentaton of torture and ll-treatment. An o Salsh Kendra provdes legal ad, documentaton and advocacy, and operates n just under a thrd of Bangladesh s dstrcts. BLAST acts as a legal servces organzaton, specalzng n women s and consttutonal ssues, and operates n under a thrd of the country s dstrcts. 23 Odhkar specalzes n the documentaton of torture and extrajudcal kllngs and has a network of supporters n two thrds of Bangladesh s dstrcts. Snce 10 August 2013, Odhkar has come under ncreasng poltcal and economc pressure from the Bangladesh government. 29 Wth the excepton of BLAST, human rghts organzatons rarely have branch offces, and rely on referrals by thrd partes and volunteer members of human rghts networks. Human rghts workers are usually ether lawyers or journalsts. Clncans for medco-legal reports are recruted on a consultancy or voluntary bass. It s often dffcult to persuade doctors to take up such work. v In Nepal, the Consttuton of 1990, as well as the Interm Consttuton of 2007, prohbts torture. The 1996 Torture Compensaton Act (TCA) provdes formal redress for vctms of torture n places of detenton. Besdes the TCA, the Natonal Human Rghts Commsson Act, 2068 (2012), drector of nvestgaton unt, natonal human rghts NGO, Dhaka, 9 September v drector of human rghts organsaton 24 March 2015, drector human rghts organsaton 11 September 2014.

7 66 head of documentaton, natonal human rghts NGO, Kathmandu, 11 June 2014; founder of natonal human rghts NGO, Kathmandu, 2 September ntervew wth head of documentaton, natonal human rghts NGO, Kathmandu, 11 June 2014; lawyer and head of natonal human rghts NGO, Kathmandu, 3 June 2014; drector, natonal human rghts NGO, Kathmandu, 7 August lawyer, natonal human rghts NGO, Kathmandu, 13 June 2014; programme offcer, woman s rghts organzaton, Kathmandu, 4 August 2014; head of documentaton, natonal human rghts NGO, 13 February v programme drector, chldren s rghts NGO, Kathmandu, 28 August 2014; drector, natonal human rghts NGO, Kathmandu, 7 August Evdence Act, 2031 (1974), and the Natonal Code, 1963 (Muluk An, 2020) also contan mportant provsons aganst torture. There s no specfc legslaton that crmnalses torture. Human rghts practtoners report that torture was wdespread durng the Maost nsurgency of , 31 Snce ths perod, poltcsed torture has generally, but far from completely, declned. 32 The polce regularly use torture as an nterrogaton technque. There are a wde varety of organzatons nvolved n the documentaton of torture, many of them wth roots n human rghts work durng the nsurgency. Only the Centre for Vctms of Torture (CIVICT) specalzes n torture, but several others, such as Advocacy Forum, INSEC and Tera Human Rghts Defenders Allance, have made torture a focus of ther work. Other sgnfcant organzatons nvolved n the documentaton of torture nclude the Natonal Human Rghts Commsson, and the Forum for the Protecton of People s Rghts. All the above organzatons focus on documentaton, montorng, advocacy, psychosocal counselng and legal cases. CIVICT, Transcultural Psychologcal Organzaton-Nepal, and the Centre for Mental Health and Counsellng-Nepal provde rehabltatve servces. The dentfcaton of cases s largely carred out by dstrct level caseworkers, networks of human rghts defenders and journalsts. Lawyers were ntally promnent n the Nepal human rghts movement, but an ncreasng number of therapsts are now nvolved n rehabltaton. v Clncans for medco-legal reports are recruted on a consultancy or voluntary bass. v Much of the most detaled documentaton of torture takes place n order to produce evdence for ltgaton under the Torture Preventon Act, wth the am of obtanng compensaton and not for the purpose of holdng perpetrators accountable. Results and Dscusson In all three case studes, our ntervews suggest that human rghts organzatons document torture and ll-treatment for a wde range of often overlappng objectves. The reasons for documentaton predomnantly nclude, but are not lmted to, meda advocacy, ssung urgent appeals, developng tranng and educaton projects, alternatve reports and complants before regonal and nternatonal mechansms. v Several organzatons document solely as a way of dentfyng the medcal needs of survvors. v Crucally, the eventual end to whch documentaton wll be put s not necessarly known at the start of the process. v Our ntervews also suggest that n all three case studes, levels of awareness about v head of documentaton, natonal human rghts NGO, Kathmandu, 11 June 2014; programme drector, chldren s rghts NGO, Kathmandu, 28 August v lawyer, nternatonal NGO, Narob, 18 August; lawyer and programme advsor for natonal human rghts NGO, 13 August; 12 August v psychologst at nternatonal NGO, Narob, 26 August; ntervew wth lawyer and drector, natonal human rghts NGO, Kathmandu, 18 November v medcal professonal and drector of natonal human rghts NGO, Kathmandu, 5 August 2014; drector nvestgaton unt, natonal human rghts NGO, Dhaka, 9 September 2014.

8 67 the IP vared amongst human rghts practtoners. Awareness was hgh amongst those organzatons that explctly dealt wth cases of torture, and wth hgher levels of awareness amongst more senor employees. In general, awareness also seems greatest for those wth strong relatonshps wth nternatonal human rghts organzatons, as ths s the man source of tranng on the topc. In Kenya and Nepal, there has been a programme of tranng n the use of the IP, funded by nternatonal donors, and supported by nternatonal organzatons. In Nepal, these tranng sessons have been amed at clncans, lawyers and other human rghts workers. In Kenya, organzatons report lmted tranng for non-clncans, apart from that reported by the IRCT. 33 There has been vrtually no tranng n Bangladesh. The general consensus amongst many of the human rghts organzatons we ntervewed was that the IP provdes a useful general set of gudelnes for ther work. Human rghts practtoners also report that medco-legal reports n partcular can have a crucal role to play n ensurng accountablty and reparatons for survvors. In those cases that go to court, cases wthout medco-legal reports wll rarely get very far. Ths s especally the case n Nepal, where the Torture Compensaton Act (TCA) provdes a framework for cvl compensaton for people tortured n places of detenton. Of the lawyer and head of natonal human rghts NGO, Kathmandu, 3 June 2014; medcal professonal and drector of natonal human rghts NGO, Kathmandu, 5 August 2014; head of documentaton, natonal human rghts NGO, Kathmandu, 11 June head of documentaton, natonal human rghts NGO, Kathmandu, 14 August 2014; head of documentaton, natonal human rghts NGO, Kathmandu, 11 June 2014; lawyer and head of natonal human rghts NGO, Kathmandu, 3 June lawyer and drector of natonal human rghts NGO, Narob, 27 June 2014; ntervew wth human rghts practtoner, Dhaka, 26 September total number of cases of ltgaton led by one Nepal human rghts organzaton, 32.9% of cases were dsmssed due to lack of medcal evdence and nsuffcent documentaton. 34 Those organzatons wth a specfc focus on torture report that ther documentaton and screenng processes are nformed by the IP. However, ntervewees also reported that there were severe lmtatons to usng the more comprehensve forms of documentaton set out n the IP. As one senor Nepal human rghts actvst put t "the IP does not work n Nepal wthout contextualzng t n the Nepal context". v Intervewees reported that gven lmtatons of tme and resources, IP prncples have been adapted to local condtons. v In practce, few ntervewees reported that ther organsatons followed the IP n any level of detal, although t remans a framework. Intervewees reported four man ssues, whch are outlned below. Frst, n all three case studes, ntervewees reported that vctms can be extremely reluctant to report ther experences. v There s a wdespread fear of negatve, perhaps even volent reprsals for torture survvors. v In all three countres there are long hstores of mpunty for polce volence, wth lttle protecton offered to those makng complants about the polce or mltary. v The v medcal professonal and drector of natonal human rghts NGO, Kathmandu, 5 August v medcal professonal and drector of natonal human rghts NGO, Kathmandu, 5 August 2014; drector, natonal human rghts NGO, Kathmandu, 7 August v lawyer and drector of natonal human rghts NGO, Narob, 27 June 2014; head of documentaton, natonal human rghts NGO, Kathmandu, 13 February 2015; medcal professonal and drector of natonal human rghts NGO, Kathmandu, 5 August 2014; Nepal Stakeholder Workshop, 4 September 2014; ntervew wth drector of nvestgaton unt, natonal human rghts NGO, Dhaka, 26 February 2015; documentaton offcer, natonal human rghts NGO, Dhaka, 11 September 2014; drector nvestgaton unt, natonal human rghts NGO, Dhaka, 9 September 2014.

9 68 drector of a Kenyan human rghts NGO, for example, reported very hgh levels of ntmdaton by perpetrators, wth the polce routnely threatenng to kll or detan survvors f they fle an allegaton. A paralegal at a Kenyan human rghts NGO based n a slum area smlarly reported that n order to lodge an allegaton of torture and ll-treatment survvors must report to a polce staton. They are reluctant to do so, as they have already been vctms of polce brutalty. The head of documentaton at one Nepal human rghts NGO reported several cases where survvors had been tortured agan followng allegatons resultng n a loss of trust amongst survvors wth the legal process. In such contexts, the ntervewees reported that survvors often are extremely reluctant to seek justce through formal v lawyer and drector of natonal human rghts NGO, Narob, 22 September 2014; ntervew wth drector of nvestgaton unt, natonal human rghts NGO, Dhaka, 26 February 2015; documentaton offcer, natonal human rghts NGO, Dhaka, 11 September 2014; drector nvestgaton unt, natonal human rghts NGO, Dhaka, 9 September 2014; paralegal, natonal human rghts NGO, Narob, 31 July 2014; head of natonal human rghts NGO, Kathmandu, 3 June 2014; natonal human rghts NGO, Kathmandu, 10 February v programme drector, chldren s rghts NGO, Kathmandu, 28 August 2014; lawyer and project offcer, natonal human rghts NGO, Dhaka, 3 March 2015; ndependent human rghts lawyer, Dhaka, 24 February 2015; ndependent human rghts lawyer, Dhaka, 28 February lawyer and drector of natonal human rghts NGO, Narob, 22 September lawyer and drector of natonal human rghts NGO, Narob, 27 June head of documentaton, natonal human rghts NGO, Kathmandu, 11 June v paralegal, natonal human rghts NGO, Narob, 6 August; lawyer and programme advsor for natonal human rghts NGO, Narob, 13 August 2014; ntervew ntervew wth lawyer and drector, natonal human rghts NGO, Kathmandu, 18 November 2014; ntervews wth ndependent human rghts lawyer, Dhaka, 24 February 2015; ndependent human rghts lawyer, Dhaka, 28 February mechansms. v The drector of a Bangladesh human rghts organzaton reported that torture survvors are often more nterested n beng released from detenton that ganng compensaton or accountablty, and most survvors do not see remedy as a vable opton. v Our ntervewees reported that human rghts organzatons can therefore face great dffculty n persuadng people to provde the level of detal that s necessary n order to document torture and ll-treatment accordng to IP prncples. v Ironcally, t s relatvely more straghtforward to produce a forensc medcal report f the vctm has ded. v The man reason for ths s that vctms, and by defnton the man wtness, can no longer be ntmdated. Second, n all three countres studed the ntervewees reported there was a shortage of medcal professonals who are wllng and able to produce medco-legal reports for human rghts organzatons. Wrtng medcolegal reports s seen as carryng lmted professonal prestge. There can also be hgh levels of ntmdaton and fear among medcal professonals. v If doctors wrte reports, they may be asked to gve oral evdence, and therefore become vsble to the polce. A Nepal human rghts actvst, for example, reported that medcal personnel are under pressure from the polce and don t want to take actve steps. x Furthermore, v drector of natonal human rghts NGO, Dhaka, 11 September v medcal professonal and drector of natonal human rghts NGO, Kathmandu, 5 August 2014; ntervew human rghts actvst, Dhaka, 11 September v lawyer and drector of natonal human rghts NGO, Narob, 22 September v drector nvestgaton unt, natonal human rghts NGO, Dhaka, 9 September 2014; ntervew wth founder of natonal human rghts NGO, Kathmandu, 2 September x drector, natonal human rghts NGO, Kathmandu, 7 August 2014.

10 69 many clncans are drectly employed by government-funded hosptals, and therefore fear losng ther jobs f they are crtcal of the state. The drector of a Bangladesh human rghts NGO reported that doctors are often reluctant to become nvolved n lengthy legal cases and fear possble repercussons. In Bangladesh, Kenya and Nepal, the ndependence of reports produced by government doctors s wdely crtcsed by human rghts organzatons. One Kenyan paralegal, for example, reported that as prson doctors are also prson employees, they are reluctant to provde crtcal evdence supportng allegatons of torture and ll-treatment. For those ndependent doctors who are wllng to wrte medco-legal reports, t can be very dffcult to access the medcal records of survvors. Thrd, the ntervewees reported that followng the IP can be very expensve and tme consumng. One Nepal clncan descrbed the IP as a "gold standard", but sad that he smply dd not have the capacty or the equpment to follow t step by step. v The expenses nvolved n documentng cases can be so great that one Nepal human rghts organzaton requres survvors to sgn a document statng they wll not back out of brngng a legal case. v Ths fndng has been reflected n other work. One unoffcal drector of natonal human rghts NGO, Dhaka, 11 September senor nvestgator, natonal human rghts NGO, Dhaka, 16 September 2014; ntervew wth lawyer, woman s rghts NGO, Narob; drector, natonal human rghts NGO, Kathmandu, 8 August 2014; ntervew wth ntervew wth lawyer and drector, natonal human rghts NGO, Kathmandu, 18 November 2014; ntervew wth medcal doctor, Kathmandu, 18 November paralegal, natonal human rghts NGO, Narob, 6 August v head of documentaton, natonal human rghts NGO, Kathmandu, 17 November v drector, natonal human rghts NGO, Kathmandu, 8 August estmate puts the tme for an IP style examnaton at seven hours, leadng some human rghts organzatons to develop less tme-ntensve screenng methods that buld on the IP, but do not requre the same level of detal (p7). 11, 12 Fourth, and perhaps most mportantly, the ntervewees reported that the level of detal n the most comprehensve forms of documentaton set out n the Istanbul Protocol s often not needed. v One Kenyan human rghts practtoner commented that detaled documentaton was somethng they dd manly for donors. v Ths s partly because ndvdual legal cases are relatvely rare. Only Nepal has sgned up to ndvdual complants under the UN Human Rghts Commttee montorng process, and even then only a handful of cases have been able to go forward. 35 Domestcally, wth the partal excepton of Nepal, cvl or crmnal legal cases are also relatvely rare. Delays are common n the domestc legal system, meanng that the few cases that do make t to the courts, take years to do so. v One senor lawyer wth a Kenyan human rghts organsaton reported that many survvors prefer to settle cases out of court as they get frustrated wth the long delays. x A senor lawyer at a Bangladesh woman s rghts organsaton explaned that the length of the legal process means that many survvors wll prefer to make nformal settlements wth perpetrators, f at all. x If cvl or crmnal cases do reach v programme drector, chldren s rghts NGO, Kathmandu, 28 August v lawyer and programme coordnator, natonal human rghts NGO, Narob, 20 August v head of feld offce of nternatonal human rghts NGO, Narob, 28 August 2014; lawyer and project offcer, natonal human rghts NGO, Dhaka, 3 March x senor lawyer, natonal human rghts organzaton, Narob, 13 August 2014.

11 70 court, judges can also be antpathetc to clams of torture, or themselves placed under poltcal pressure. In Bangladesh, at the tme of wrtng, no one has been convcted under the Torture and Custodal Death (Protecton) Act 2013, although several cases of custodal death are pendng. Nepal stands n partal contrast, where the Torture Compensaton Act has resulted n vctms flng relatvely large numbers of cvl cases n the courts. However these are for compensaton and do not nclude the possblty of holdng perpetrators to account. A report publshed n 2014 by a local human rghts organzaton n Nepal shows that out of 146 cases fled under Torture Compensaton Act by the organzaton snce 2003, 31 (21%) were granted compensaton, 48 (32.9%) were dsmssed, 61 (41.8%) were awatng decson and 6 (4.1%) were wthdrawn. 34 In Kenya and Bangladesh, even when cases are won, the government can fal to pay the agreed compensaton. More broadly, rather than formal legal acton, the moblzaton of poltcal and economc pressure often seems to be the most practcally effectve form of accountablty for local human rghts organzatons concerned wth addressng perpetraton n the absence of the wder rule of law. In Bangladesh and Nepal, for example, human rghts practtoners report perpetrators to the UN Department of Peacekeepng Operatons (DPKO). Both countres are amongst the x senor lawyer, woman's rghts organzaton, Dhaka, 25 March head of feld offce of nternatonal human rghts NGO, Narob, 28 August; socal worker, natonal human rghts and refugee NGO, Narob, 19 August 2014; ntervew wth lawyer and drector, natonal human rghts NGO, Kathmandu, 18 November lawyer, nternatonal NGO, Narob, 18 August 2014; lawyer and drector natonal human rghts NGO, Dhaka, 24 March largest contrbutors of personnel to UN Peacekeepng Mssons and the armed forces earn a great deal of ncome through ths work. Crucally, the reports used by human rghts organzatons n such cases are often very short, and requre only a very lmted level of detal to be effectve. Human rghts organzatons n Nepal n partcular, have used ths tactc successfully; resultng n the removal of polce and army offcers from UN mssons. At the tme of wrtng, the tactc has not resulted n acton aganst ndvdual polce offcers n Bangladesh, but has seen an ncrease n poltcal pressure aganst human rghts organzatons. v More broadly, n Kenya, Nepal and Bangladesh, the most effectve forms of documentaton help human rghts organzatons to moblze poltcal connectons, often, but not always, n the shape of lobbyng the meda and nternatonal donors. The drector of one Nepal human rghts organzaton, for example, reported that lobbyng donors and local poltcans was the most effectve way to get a response from the Nepal state. v Crucally, ths work can be done wth relatvely lmted evdence. Concluson The central objectve of the IP s to provde gudelnes for States for the effectve nvestgaton and documentaton of allegatons of torture and ll-treatment. In so dong, t s hoped that such documentaton wll establsh facts, dentfy those responsble, facltate protecton, and/or human rghts practtoner, Kathmandu, 19 November v Human Rghts Watch. World Report 2016: Bangladesh. Avalable at: country-chapters/bangladesh. Accessed 21 September v lawyer and head of natonal human rghts NGO, Kathmandu, 3 June 2014.

12 71 obtan redress for vctms. In the face of the all too common falure of States to carry out sutable nvestgatons, cvl socety organzatons often take the lead. The questons therefore are what s the best way for cvl socety organzatons to document torture and ll-treatment, and what role can the IP play n ths process? If human rghts documentaton s to be treated as a means to an end, rather than an end n tself, t s mportant to examne how effectve partcular forms of documentaton are n partcular contexts. Lookng at the ntervews as a whole, we can nfer that several processes have to come nto lne for comprehensve forms of documentaton to be practcal and effectve: the survvor must have documentable sequelae and be wllng and able to make contact wth a human rghts organzaton; a traned clncal professonal must be wllng and able to provde a comprehensve medcolegal report; the survvor must be wllng and able to pursue a case over an often lengthy perod; and, above all, there must be empowered legal actors who are wllng and able to respond to documented allegatons of torture and ll-treatment, as well as act aganst the perpetrators and provde redress to the survvors. In the three countres studed, all these factors were the excepton rather than the rule. Ths research has potental mplcatons for how the IP s used for documentng torture and ll-treatment n low-ncome countres. Whlst the IP provdes a useful broad framework for torture documentaton and sets standards to whch States can be held to account, the practcal sgnfcance of more comprehensve forms of documentaton appear restrcted to a small albet perhaps strategcally mportant - number of legal cases. Hgh levels of evdence are often of lmted practcal use, as documentaton s actually beng carred out for reasons other than legal redress, such as lobbyng nternatonal donors, that n practce requre less detal. Gven that the major obstacles to accountablty and redress are poltcal, rather than lnked to knowledge and expertse, the mpact and role of tranng around more comprehensve forms of documentaton wll therefore lkely reman lmted. The overall problem s not one of professonalzed expert knowledge, but of poltcal wll. In ths context, one possble future avenue s to thnk systematcally about forms of human rghts documentaton that are not amed at crmnal prosecutons or ltgaton. Rather than developng unversal standards, ths could nvolve sharng the myrad of examples of effectve good practce that already exst around the world whch can be adopted to local contexts. The research upon whch ths s based should be seen as an ntal attempt to explore the practcal use of the IP n low-ncome settngs. It can possbly be extended n several ways. Studes could move beyond the opnons and vews of human rghts practtoners, to explore f, when and how the IP s used n the documentaton of partcular cases, and the factors that mpact upon ths - although ths could rase confdentalty ssues. The three case studes could also be compared wth other contexts, for example, how relatve forms of poverty, nsttutonal capacty, human rghts awareness and the rule of law mpact on the effectve use of the IP. Addtonally, the relatve mpact of certan factors, such as mprovements n the rule of law, human rghts awareness and tranng of human rghts practtoners amongst other thngs, could be tracked over tme, although causaton wll be extremely hard to measure.

13 72 Acknowledgements We wsh to thank all the partcpants and partners n the research for ths artcle, partcularly Peter Kama, Therese Rytter, Jo-Anne Prud homme, and Adlur Rahman Khan. All errors and omssons are our responsblty alone. The research upon whch ths artcle s based was made possble by the generous support of an Economc and Socal Scence Research Councl/Department for Internatonal Development Jont Poverty Allevaton Grant (ES/L005395/1, May ). References 1. Offce of the Unted Natons Hgh Commssoner for Human Rghts. Istanbul Protocol: Manual on the Effectve Investgaton and Documentaton of Torture and Other Cruel, Inhuman or Degradng Treatment or Punshment. New York and Geneva: Unted Natons; Jensen S, Hapal K, Modvg J. Volence n Bagong Slang. DIGNITY, Internatonal Seres on Torture and Organzed Volence 2, Copenhagen; Kelly T. Ths Sde of Slence: Torture, Human Rghts and the Recognton of Cruelty. Phladelpha; Unversty of Pennsylvana Press; Rejal D. Torture and Democracy. Prnceton: Prnceton Unversty Press; Fassn D. Compasson and Represson: The Moral Economy of Immgraton Polces n France. Cultural Anthropology (3): Internatonal Rehabltaton Councl for Torture Vctms (IRCT). Medcal Physcal Examnaton of Alleged Torture Vctms: A Practcal Gude to the Istanbul Protocol For Medcal Doctors. Copenhagen: IRCT; 2009a. 7. Peel M, Lubell N. Medcal Investgaton and Documentaton of Torture. Colchester: Human Rghts Centre, Unversty of Essex; [Cted 24 May 2915] Avalable from: manuel%20d'essex.pdf. 8. Internatonal Rehabltaton Councl for Torture Vctms (IRCT). No date. Model Currculum on the Effectve Medcal Documentaton of Torture and Ill-Treatment - Educatonal Resources for Health Professonal Students. Copenhagen: IRCT. Avalable from: model-medcal-currculum.aspx 9. Redress. A Practcal Gude to the Istanbul Protocol for Lawyers n Georga. London: Redress; Internatonal Rehabltaton Councl for Torture Vctms (IRCT). 2009b. Sheddng Lght on a Dark Practce: Usng the Istanbul Protocol to document torture. Copenhagen: IRCT; 2009b. [Cted 24 May 2014] Avalable from: org/fles/fler/publcatons/pp/sheddng_lght_ on_a_dark_practce.pdf 11. Ofcna de Derechos Humanos del Arzobspado de Guatemala. Consultoría para la ratfcacón del OPCAT en Guatemala. Recoplacón de Informes I Y II. Guatemala Cty; Ofcna de Derechos Humanos del Arzobspado de Guatemala. See also:

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