TORTURE BY NON-STATE ACTORS
A PRIMER
REDREES – Seeking reparation for toture survivors
1. Introduction
The struggle to end torture has generally focused on the conduct of States- for good reason. Torture, which continues to be prevalent worldwide, constitutes the negation of one of the core functions of the state to guarantee the rights of those coming within its jurisdiction, and to ensure their security and well-being. The responsibility of the state is reflected in the international system for the protection of human rights. This system is not only largely made by states but also addressed to states as duty-holders and does not traditionally contemplate the responsibility of actors other than States. Yet non-state actors are increasingly engaged in conduct that violates human rights, including torture as one of the integral coercive means used to gain or exercise power.
The term “non-state actor” covers a wide spectrum of individuals, but those within this categorisation who have been responsible for the bulk of the reported torture cases are the following:
• De facto regimes: These may be defined as entities exercise the functions of a sovereign government in maintaining law and order. The nature of such regimes and the circumstances under which they operate differ widely;
• Armed opposition groups: This category encompasses rebel groups and liberation groups hostile to the government in the territory concerned;
• Groups with close links to the State: This category includes paramilitaries and militias, and they are characterized by their dual nature i.e. being at once distinct from official State structures and having close links with the government of the country concerned.
Other entities which have reportedly been responsible for human rights violations include private security companies, multinational corporations and military components of missions operated by intergovernmental operations. [1]
2. Responsibility of the State for the actions of non-State actors
A State may be involved where non-state actors are the actual perpetrators of torture. The State may be liable for torture in circumstances where the violations are attributed to it under the rules of State responsibility.
(i) State responsibility for non-state actors “acting under their control”
A State incurs responsibility for any breach of an international obligation, such as the prohibition of torture under international human rights and international humanitarian law, which can be attributed to it. [2] This will be the case where the act has been committed by the organs of the government, such as the armed forces. [3] It also includes violations by “others who have acted under the direction, instigation or control of those organs, i.e. agents of the State.” [4] This rule will encompass private actors who act under the specific instructions of the government concerned. Responsibility will also be incurred by States where they act jointly with non-state actors. [5]
Beyond such direct links, international jurisprudence is not clear on the nature and degree of State ‘control’ that triggers responsibility for the conduct of armed groups. Following the decision of the International Court of Justice (ICJ) in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), however, it appears that the ICJ will look to see if the State had “effective control” of the armed group, following the test set out in the Military and Paramilitary Case. “Effective control”, will be established where the group was acting under a “State’s instructions in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.” [6] In the Military and Paramilitary Case, the Court held that the conduct of the USA in “financing, organizing, training, supplying and equipping” the Contras, a paramilitary force in Nicaragua accused of serious human rights abuses, including torture, was not sufficient to amount to the requisite “effective control.” [7]
The European Court of Human Rights (ECHR) applies a lower threshold and has found States responsible for violations where they exercised control over de facto regimes established on foreign territory and falling within the jurisdiction of the Court. The Court found that Turkey incurred State responsibility for human rights violations, including torture, attributed to the Turkish Republic of Northern Cyprus (TRNC) authorities in Northern Cyprus, a de facto regime that has close links to Turkey. [8] As a result of Turkish forces exercising effective overall control over Northern Cyprus, it was not necessary to determine whether Turkey actually exercised “effective control over the policies and actions of the authorities of the ‘TRNC’.” [9]
(ii) State responsibility arising out of positive obligations: “due diligence”
International human rights law has long recognised that, in addition to the negative obligations imposed upon States to refrain from violating the human rights of those within its jurisdiction, States also have a positive obligation to exercise “due diligence” in securing the enjoyment of human rights against violations by non-state actors. [10] States are required to “prevent, punish, investigate or redress the harm caused by such acts [violations] by private persons or entities.” [11]
The “due diligence” principle in the case of torture entails a duty for States “to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by Article 7 [of the ICCPR], whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.” [12] Such measures include the adoption of legislation affording effective protection in practice and ensuring criminal and civil accountability of non-state actors responsible for torture. [13]
In responding to violations, States are obliged to investigate allegations of torture promptly, impartially and thoroughly, irrespective of whether the perpetrators are State officials or non-state actors. [14] Where sufficient evidence is found, States are duty-bound to prosecute those responsible and, where found guilty, impose a punishment commensurate with the gravity of the crime. [15]
A State which does not have control over part of its territory due to, for example, military occupation or the installation of a separatist State in its territory may have fewer responsibilities as part of its due diligence obligations. The exact nature of the measures to be taken depends on the circumstances in any given case. [16]
(iii) State responsibility for violating the prohibition of refoulement in cases of risk of torture by non-state actors
States may incur responsibility for sending persons to countries where there are substantial grounds for believing that they would be in danger of being subjected to torture at the hands of non-state actors. There is agreement among human rights bodies that the prohibition of refoulement applies where the threat emanates from actors that exercise de facto authority in a country. [17] This applies in particular to those entities that qualify as “failed states”, such as Afghanistan and Somalia during much of the 1990s.
There is no uniform approach among international human rights bodies with regard to the risk of torture by non-state actors not part of a de facto regime. The protection approach, which focuses on the actual risk of torture irrespective of the nature of its source, is followed by the ECHR and the United Nations High Commissioner for Refugees. [18] This approach better reflects the rationale of the prohibition of refoulement than an approach focusing on the status of the perpetrator which recognises the risk from non-state actors only if it emanates from de facto regimes.
3. Responsibility of non-state actors
(i) National law
States have traditionally regarded torture and other abuses committed by non-state actors as crimes to be dealt with under the criminal law. National laws often do not criminalise torture in line with international standards and in such cases perpetrators can only be prosecuted for ordinary crimes. In practice, States rarely hold non-state actors accountable for torture, being unable or unwilling to do so. There is often a lack of political will to do so where those responsible have close links with the State concerned.
In relation to armed groups hostile to the government, it is frequently difficult for the authorities to investigate torture during a conflict due to dysfunctional local institutions and the general reluctance of individuals to collaborate with State authorities. Counter-insurgency tactics and outright war are frequently preferred to judicial processes in combating violent groups.
(ii) International legal framework
International Human Rights Law
As a general rule, non-state actors are neither party to international human rights treaties nor do such treaties (or customary international law for that matter) stipulate obligations for them. [19] The main reason for this is that international human rights law chiefly addresses the relationship between States and individuals subject to their jurisdiction and operates largely on the basis of State responsibility.
However, non-state actors do incur responsibility as a matter of general international law where they succeed in becoming a government or a new State. [20]
Several human rights instruments emphasise the duty and responsibility of individuals and groups, and not only the State, to respect human rights. However, this has not given rise to concrete obligations and human rights [21]monitoring mechanisms traditionally only inquire into the actions of States. Attempts to bring non-state actors closer into the fold of international human rights law have met with little progress. However, de facto regimes or armed groups may recognise international human rights obligations as binding, for example in peace agreements, and arguably incur responsibility in case of breach.
International Humanitarian Law
Common Article 3 of the 1949 Geneva Conventions prohibits the use of torture during an armed conflict and applies to and directly binds State and those non-state actors that are party to a conflict, in particular armed groups. However, the applicability of international humanitarian law is limited to parties to armed conflicts, thereby excluding many de facto regimes and armed groups not party to an armed conflict, in particular during times of relative peace.
Moreover, the importance of the prohibition of torture as a common minimum standard binding on parties to a conflict is not matched by any supervisory system under international law. There is no permanent mechanism which allows victims to bring complaints against State or non-state actors alleging a violation of international humanitarian law by parties to an armed conflict. [22]
International Criminal Law
International criminal law governs the criminal responsibility of individuals for acts that constitute international crimes. [23] The mandate of international tribunals and mixed courts as well as the relevant international and national practice demonstrate clearly that non-state actors can incur individual responsibility for any international crime, whether committed individually or jointly, either as actual perpetrators or on the ground of command responsibility. [24]
Torture is an international crime giving rise to an obligation to prosecute or extradite those accused of the crime irrespective of the nationality of the perpetrator or the victim, or indeed the location of the crime. Torture also comes within the listed elements of crimes within the ICC jurisdiction: genocide, crimes against humanity and war crimes. [25]
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia(ICTY) has confirmed that “the public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention.” [26]
Torture committed in a widespread or systematic manner constitutes a crime against humanity if underpinned by an organisational policy, [27] whether committed in the course of an armed conflict or not. [28] The applicability of international criminal law to ‘peace-time’ systematic torture is particularly relevant to crimes committed by a rebel group within the areas under its control or by de facto officials in a failed State.
Criminal law has become an important if not the main vehicle for ensuring accountability of non-state actors. Examples are the prosecution of members of various factions accused of crimes committed in the conflict in the former Yugoslavia before the ICTY and of RUF members before the Sierra Leone Special Court. Further examples are investigations by the ICC into the conduct of the Lord’s Resistance Army in Uganda, the UPDF in the Democratic Republic of Congo, and the Janjaweed militia and others in Sudan, as well as the conviction of an Afghan warlord for torture in the United Kingdom.
4. The Role of lawyers
(i) Protective and preventative measures
Where an individual is placed at risk, direct but informal engagement with the group in question may be the most efficient method to secure release of the individual.
Engagement with non-state actors as a matter of course should also be carried out with a view to upholding international standards:
• The International Committee of the Red Cross (ICRC) should be alerted if there is a risk of violation as it often has access to non-state actors as parties to the conflict, and is often the sole body with access to armed rebel groups;
• Lawyers and NGOs should consult and coordinate with international bodies such as the UN and the ICRC to formulate an appropriate policy of engagement with non-state actors. This should include as a minimum the training of members of groups in relevant international standards of human rights and humanitarian law and encouraging them to allow external bodies to monitor compliance of detention conditions and treatment of prisoners in accordance with international standards.
The following steps should be explored when dealing with a de facto regime, particularly one with a degree of permanence:
• Utilise any independent bodies which have been set up to monitor and investigate allegations of serious violations by regime authorities. [29] It is likely they will have an established line of communication with the relevant non-state actors. A regime should be urged to establish an independent monitoring body if none exists;
• Utilise any legal institutions which have been set up as there may be procedures to provide protection. If the authority has made public commitments to human rights it may have passed relevant legislation (as was for example the case in Somaliland, the authorities in the Kurdish areas in Northern Iraq and the Palestinian National Authority). Reference to these commitments may aid in securing the release of an individual.
Lawyers should also consider requesting the UN Special Rapporteur on Torture to take action in the following contexts:
• To communicate with non-state actors as part of his urgent action procedure, requesting them to ensure the physical and mental integrity of any persons at risk. The Special Rapporteur does not have any enforcement powers but may have persuasive power when dealing with a regime seeking to establish its legitimacy. More information on the urgent appeals procedure, including the address to send appeals may be found at http://www.ohchr.org/english/issues/torture/rapporteur/appeals.htm;
• As part of his country visits, to contact non-state actors in individual cases and stress their commitments under the applicable international law i.e. not to use torture, to undertake training on human rights practices in places of detention and to accept monitoring mechanisms.
States should be lobbied to strengthen enforcement of the prohibition of torture in relation to non-state actors as well as adopting preventative measures in response to torture by non-state actors in order to meet their positive obligations. Specific measures should include:
• Prohibiting torture committed by non-state actors, in particular by making it a crime carrying adequate punishments;
• Setting up national bodies and/or allowing national and international bodies, whether intergovernmental or non-governmental, to monitor the conduct of non-state actors and to engage with de facto regimes and armed groups and others with a view to preventing torture.
States should also not support non-state actors that use torture, such as paramilitaries, whether operating on their own territory or elsewhere.
(ii) Reparation and accountability
If torture at the hands of non-state actors has taken place, there are various legal avenues lawyers may take in order to seek redress for victims. It is important to remember that remedies are frequently ineffective in countries during conflict and the possibility of seeking justice and reparation will often only arise a considerable time after the violation. It is therefore particularly important to document allegations of torture by non-state actors in accordance with internationally recognised standards such as the Istanbul Protocol, for use in later proceedings.
Establishing State responsibility
• Where the State is implicated in violations - in particular in cases of torture by paramilitaries – the remedies are essentially the same as those available in relation to State torture provided that linkage between the State and the paramilitary groups can be shown; thus victims should bring claims in the State concerned, and also look to existing national human rights institutions. If claims at the national level fail and the State in question has accepted individual complaints mechanisms, victims can bring the case before a regional or an international human rights body once all local remedies have been exhausted;
• Where it is claimed that a State failed to meet the necessary due diligence standard with respect to the torture of individuals by de facto regimes and armed groups hostile to the government, a complaint to this extent could be made in national and then international bodies or courts. This may result in a ruling that the State has to provide protection, to investigate allegations of torture by non-state actors and to prosecute the perpetrators, but it will not address the responsibility of the non-state actors themselves (even though there would be factual findings as to the acts committed and the perpetrators).
Legal action against non-state actors
• Where there is no recourse against the State, victims and lawyers acting on their behalf will need to bring claims before domestic courts. As outlined above, it is likely that domestic remedies will be ineffective, especially during conflict. However, it is important to test existing avenues and possibly change practice by bringing complaints and suits, where possible. Setting precedents and contributing to the development of jurisprudence are key elements in creating remedies or making existing ones more effective.
• An alternate avenue is to bring claims before courts in third countries on the basis of universal jurisdiction. States’ obligation to prosecute encompasses acts of torture (as defined in article 1 of the UN Convention against Torture) committed in third countries unless the alleged perpetrator is extradited to stand trial (aut dedere aut judicare). [30] This duty includes torture committed by non-state actors deemed to have acted “in an official capacity”, especially de facto regimes. [31] In respect of civil claims, there have been several cases against non-state actors in third countries, in particular where there were no effective remedies in the domestic legal system in the country where the violation took place. The majority of the cases have been brought in the United States’ courts as the US’ Alien Tort Claims Act allows foreign nationals to sue for damages in relation to torts violating the law of nations. [32]
• National human rights institutions or commissions should also be considered. Such commissions have in some instances monitored and reported on violations by non-state actors, for example in Colombia and Nepal. [33] However, many commissions do not investigate torture by non-state actors mainly because their work solely focuses on violations by State authorities. Equally, practical considerations, including security concerns, may prevent them from adequately following up complaints.
• Where feasible, victims and NGOs might be in a position to directly approach de facto regimes or armed groups to seek reparation, in cases where the regime has a degree of organisation and sophistication, and the security situation permits. This can be a means of raising awareness and obtaining some degree of acknowledgment and even monetary compensation under favourable circumstances.
• International or internationalised courts are important mechanisms to seek criminal accountability and/or reparation for torture by non-state actors. The jurisdiction of these courts covers only a few conflicts and international(ised) tribunals will most likely be unable to prosecute more than those perpetrators bearing the greatest responsibility and to award largely symbolic reparation. However, cases, such as those against individuals in Uganda and Sudan before the ICC at the time of writing, can serve as precedents on specifying victims’ rights. Victims may receive financial assistance from the ICC Trust Fund for Victims. The funds can be allocated either to individuals or to a group. The fund may make payments directly to victims or to other bodies, such as an aid organisation working in support of victims. [34]
Advocacy for truth
• Due to the common difficulty of filing individual court claims and having them heard before the authorities, lawyers should consider calling for other mechanisms such as truth commissions. Several States have set up truth and reconciliation commissions (TRCs) in the period following conflicts to determine the truth of violations and recommend reparations, or to set up reparation programmes intended to benefit a large number of victims. A request for such a commission may be made by victims of crimes committed by non-state actors. This approach was taken by PATH (Peace Advocates for Truth, Healing and Justice) in the Philippines. Several TRCs, including Peru, Sierra Leone and South Africa, have recommended reparation for acts of torture committed by non-state actors.