When is VAW a crime of torture in Afghanistan?
Updated: Jan 6, 2019
When we think of torture or inhuman, degrading and cruel treatment and punishment, we typically think of acts committed by States against individuals in prison and detention facilities. Is rape, domestic battering, virginity testing, forced sterilisation, forced and early marriage, domestic servitude and other forms of sexual violence a form of torture and ill-treatment?
Indeed, violence by private actors have often been dressed with euphemisms like "domestic violence" or "family violence" which mask the severity of grave acts and soften the urgency for immediate State intervention. Does it matter that we use the label, "torture" and "inhuman, degrading or cruel treatment and punishment", for gender-based violence? It does matter. Violence which meet torture's minimum level of severity, are considered amongst the most abhorrent of crimes, to be dealt with strictly and without reservation. Under the Torture Convention, the right to be free from torture and inhuman and degrading treatment and punishment is absolute. No situation nor reason of culture, national security or public order can prevail over this fundamental right. It is absolute. So the right legal label is important.
Collecting evidence of torture may prompt authorities to open up an investigation into systemic abuses. If the State fails to adequately investigate, then that failure should be recorded and taken up to a higher authority. The evidence may also be used one day to support a claim for compensation/reparation against the State. The evidence is before us. But unless we collect evidence systematically in our day-to-day work, plenty of violations which occur before us, will fall off the radar.
Of note is the collection of medical evidence. The Istanbul Protocol sets out guidelines for obtaining medical evidence and recommend the content of medical reports. This generally encompasses the facts, physical evidence of torture, psychological evidence of torture and consequences. There are also specialised diagnostics test that medics can carry out.
Lawyers should develop close links with State assigned hospitals and doctors and have regular professional exchanges on how lawyers and medics can better cooperate. Lawyers should know how torture is medically documented and how to recognise key symptoms. If medical investigations are done by the State, lawyers need to assess whether the investigations were done diligently and whether medical evidence was properly accounted for. In my experience in Afghanistan and this might be true elsewhere, medics often miss important markers in their medical reports. And prosecutors are not checking the medical reports thoroughly. By doing so, they risk the perception of inconsistency in the victim's version of events or a dismissal for lack of evidence.
Personal variables such as cultural notions, gender, age and family situation may shape what traumatises victims. Torture is a cumulative experience as much as it is an act. So it would be wise to document the experience (cumulative acts) and not focus on identifying a single grave act. A repeated humiliation or a threat to the life of the victim's child may have a more profound effect on the victim than a severe physical beating. So it is important to keep a tab on the victim's specific experience and what the victim was actually traumatised by. We can then start to ask the right questions and collect relevant evidence.
To work in the field of gender-based violence, it is also critical for lawyers and activists to have some knowledge in mental health and the varied behavioural responses that victims display during and after a traumatic episode. Victims react in all sorts of ways, some irrational and unexpected. Some victims may appear blank and cold. Some victims are incoherent or inconsistent. Some victims appear courageous, haughty or revengeful. Some victims don't "display" the signs we may expect of someone who has experienced torture. This may affect their credibility and in turn their case. When we are educated about behavioural responses during and after a traumatic episode, the victim's survival mechanisms, need for agency OR attention (for that matter), then we can educate the courts and explain the behavioural responses of victims and why it is most rational or understandable that they react the way they do.