Child Victims of Torture and Cruel, Inhuman or Degrading Treatment

Abstract

This paper addresses the legal framework and medical and psychological impacts of torture on children. Part One, Legal Framework, begins by showing the three characteristics that legally distinguish torture from child abuse, by definition: Torture is committed by an agent of the state or someone acting with the encouragement or acquiescence of the state. Torture is committed for the purpose of obtaining information or a confession; to intimidate, coerce or punish the immediate victim or a third person; or as part of discrimination. Torture must cause severe pain or suffering. Because of these differences, torture should be treated differently to child abuse, in particular with regard to law enforcement. The fact that torture is committed by a representative of the state justifies a stronger response. That it involves severe pain or suffering is another reason that the response must be proportionate. International law prohibits both torture and „cruel, inhuman or degrading treatment‟, although the distinction between them is not clearly defined. When the victim is a child, his or her greater vulnerability must be taken into account in determining whether the acts inflicted constitute torture or cruel, inhuman or degrading treatment, according to jurisprudence of international courts and other bodies. The obligations of states regarding torture are different from those regarding child abuse. Under international law suspected torturers must be prosecuted, and if they are convicted, the sentence must reflect the gravity of the crime. In contrast, prosecution is not always the most appropriate response to child abuse, especially when it takes place in the home. Most states have accepted an obligation to cooperate with one another in investigating and prosecuting torture, and to prosecute any torturer found in their territory, regardless of where the crime took place. No similar obligation exists with regard to child abuse. The torture of children occurs in different contexts, including police operations against children seen as a threat to public order or safety; children confined in prisons or detention facilities; and children seen as linked to subversive groups, including the children of militants States have special obligations under international humanitarian law when torture or inhuman treatment are committed during armed conflict or foreign occupation. They must search for and extradite or prosecute persons alleged to have committed such “grave breaches” of humanitarian law. Individuals also may be prosecuted before the International Criminal Court for torture or cruel or degrading treatment committed during armed conflict. The obligation to bring torturers to justice in order to prevent impunity must be reconciled with the right of child victims to psychological recovery and the principle that the best interests of the child must be a primary concern in all decisions and proceedings that affect children. The United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of Crimes can help reconcile these concerns. They provide that victims should be treated in a caring and sensitive manner that takes into account their personal situation and needs, and respects their physical, mental and moral integrity; that interviews and examinations should be conducted by trained professionals; and that all interactions should be conducted in a child-sensitive manner in a suitable environment. Part Two of the working paper addresses the medical and psychological impacts. States have an inescapable responsibility not only to prevent torture and punish torturers but also to assist the victims. These duties have special implications for health professionals. Yet the torture of children has low visibility and recognition among health workers. Methods of torture range from the most brutally traditional to complex, sophisticated modern methods. Some do not cause perceptible physical injuries, and some are intended to cause psychological harm. The method used, however, is of limited relevance to diagnosis and identification of appropriate strategies for recovery. It is necessary to analyses the damage caused by the torture holistically, from a physical-psychosocial viewpoint and in relation to the processes of growth, development, maturing and social integration, or „building citizenship‟. It is an unfortunate fact that health workers may also be involved in torture. States must lay down strict rules and standards to prevent and deter torture. Civil society, including professional associations, must establish codes of conduct that reinforce the seriousness of involvement in acts of torture against children and to ensure appropriate training for professionals to ensure preventive intervention, assistance and rehabilitation, in accordance with the needs and best interests of the child. The 1999 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) establishes invaluable guidelines for the documentation and investigation of alleged cases of torture and ill-treatment, as well as ethical standards for health professionals.