Forensic Medical Evidence in Torture Cases: Documentation and Law

Introduction: Documenting Torture and Human Rights Violations

International law requires all states to investigate all allegations of torture and bring the perpetrators to justice. Victims of such torture must also be adequately compensated by the state. Many torturers carry out their heinous acts in secret and attempt to conceal all possible evidence, while still aiming to inflict as much pain as possible. There is therefore a need for comprehensive documentation that exposes perpetrators in a manner that leaves them unable to deny their crimes against humanity. The central challenge remains proving that a specific individual committed a specific crime (Wheeler, 2016). Failure to provide evidence of torture may foster a culture of impunity, where torturers continue their acts knowing they will never be arrested, prosecuted, or punished. This essay outlines the potential for comprehensive documentation regarding evidence of human rights violations through torture.

To prevent a climate of impunity from developing, sufficient evidence must be gathered in any case against suspected perpetrators. Torture can indeed be proved through proper documentation. Experienced health practitioners can examine psychological and physical sequelae and provide crucial information on torture cases. These findings are then presented to the judiciary, or any other appropriate body, which will then feel obligated to fully investigate such torture allegations and subsequently compensate the victims.

Forensic Evidence in Torture Cases

Tragic events such as genocides, ethnic cleansing, and massacres are typically accompanied by torture, as well as enforced disappearances and extrajudicial executions. For instance, during La Violencia in Guatemala between 1978 and 1985, widespread counterinsurgency campaigns were carried out in the Altiplano — the mountainous region of Guatemala. Although indigenous communities had formed guerrilla movements, the state military used excessive force in eliminating them (Wheeler, 2016). Soldiers would, for example, round up large numbers of local residents and torture them to death in full view of other community members (Zur, 1995).

Where survivors exist in such instances of torture, they should be immediately subjected to thorough medical examination, preferably by an independent medical examiner. Most of the physical injuries inflicted through torture occur on soft tissue and therefore have a high likelihood of disappearing over time. Furthermore, the memories of torture are still fresh in the victim's mind shortly after the event, and victims can recount them with greater accuracy (Wheeler, 2016; Stan, 2012). For victims who did not survive, autopsies should be conducted as soon as the bodies are received, preferably by an independent forensic pathologist, and ideally before post-mortem changes destroy evidence.

Where torture victims have already been buried — whether in individual or mass graves — exhumation of their bodies for examination is also warranted. Whatever method is used to investigate exhumed bodies should be approved by the judiciary, and examinations should be conducted on one body at a time. Information such as the age, sex, stature, ancestry, and handedness of the victim must be recorded.

Medical Complicity in Torture

Doctors can participate in torture either actively or passively. A doctor may, for instance, approve the use of chemicals to torture a detainee, generate false medical reports, or simply refrain from reporting torture. Such passive participation typically goes unpunished (Mostad and Moati, 2008). Doctors have been known to behave in this manner primarily out of institutional loyalty — prioritizing the interests of the state or their organization over the interests of the patient. This behavior has been challenged by bodies such as the International Committee of the Red Cross (ICRC) and Physicians for Human Rights (PHR), who raise the question: what is the true role of health care professionals when torture is involved? (Rees, 2010).

Both active and passive medical complicity in torture constitute a clear violation of the medical code of ethics as well as human rights law. The medical code of ethics is explicit that no doctor should knowingly inflict unwarranted pain on a patient. Moreover, doctors swear upon the Hippocratic oath to do no harm to any individual. This principle is also reflected in the Nuremberg Code, which arose from the trials of Nazi doctors. The World Medical Association (WMA) declarations of Tokyo and Geneva further support the "do no harm" policy. The United Nations Human Rights Council passed an important resolution regarding the role of health care providers in torture and other dehumanizing acts (Picozzi et al., 2016), a position further reinforced through a BMJ editorial stating that under no circumstances should a doctor be involved in acts of torture. Medical complicity is under close scrutiny by the UN Special Rapporteur on Torture.

Medical complicity in torture is an international concern that must be prevented at all costs. Many organizations fight for ethics and human rights, yet rarely address medical complicity directly. In Chile, as the Pinochet regime drew to a close, scores of citizens were tortured, and some of the doctors who participated in that torture were expelled by the Chilean Medical Association. Likewise, two South African doctors faced professional consequences when they deliberately refused to treat the injuries of Steve Biko, the prominent anti-apartheid activist who died while in police custody (McColl et al., 2012). Eight years after Biko's death, the responsible doctors were brought to account following sustained pressure from the World Medical Association. The South African Medical Association, unwilling to engage with the matter, went so far as to withdraw from the WMA.

These instances of medical complicity are far from isolated. In recent years, Physicians for Human Rights drafted a report titled Aiding Torture, which called for the investigation of health care professionals regarding their role in torture. The report was influenced by a leaked document from the International Committee of the Red Cross, which detailed how doctors employed by the Central Intelligence Agency at Guantanamo Bay were instructed to oversee torture methods including shackling and waterboarding (McColl et al., 2012). It was concluded that the health personnel grossly breached the medical code of ethics by participating in torture, whether directly or indirectly.

Medical Justice UK has documented breaches of 'Rule 35,' which states that vulnerable people — including victims of torture — should not be detained. The organization has also raised concerns about poor documentation of torture by health care practitioners employed in detention centers, and their failure to treat victims. Medact recently published a report titled Preventing Torture, which highlights the serious gap between medical practice and ethical obligations (Augustin et al., 2011). The report offers recommendations to the WMA and National Medical Associations on how to address torture — primarily through supporting victims and responding appropriately to instances of medical complicity. It recommends that health care professionals receive training in diagnostic skills, ethical duties, how to seek confidential advice, and how to contact the UN Special Rapporteur.

Medical complicity in torture is evidently a vice that no properly trained doctor should engage in. One BMJ editorial reported, however, that a majority of doctors enable torture rather than treating its millions of victims. This view is arguably one-sided, given the large number of health professionals who actively work to prevent torture.

Conclusion

Ill treatment and torture are crimes that require thorough documentation if perpetrators are to be convicted and victims are to obtain justice. Victims face the challenge of proving they were tortured, a task made considerably more difficult by the frequent absence of physical evidence to support their claims. This has often caused relevant parties to abandon investigations prematurely. Effective documentation, though essential, cannot by itself bring an end to the torture and ill-treatment of citizens. In addition to improving documentation practices, the following systemic problems must also be addressed:

1. Corruption among senior government officials
2. Production of substandard medical evaluations of ill-treatment and torture
3. Biased forensic documentation
4. Judicial tolerance of torture as a means of extracting confessions
5. Lack of independence between prosecutorial offices and criminal investigations
6. Failure to impose sanctions on perpetrators and health professionals who engage in medical complicity
7. Inadequate police investigations
8. A biased legal defense system
9. Insufficient legal investigations
10. Inadequate monitoring of police practices

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