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The role of judges and prosecutors in
combatting torture and other ill-treatment in
the MENA region

Saïd Benarbia
Director of the Middle East and North Africa
programme, International Commission of Jurists

An independent and impartial judiciary and
prosecutorial authority are crucial to ensuring the
effective enforcement of the absolute prohibition
of torture and other cruel, inhuman or degrading
treatment or punishment. However, in most of the
Middle East and North Africa (MENA) region, judges
and prosecutors have systematically failed to ensure
that cases of torture and other ill-treatment are
effectively investigated, prosecuted and punished.
This article highlights certain aspects of this
failure, including by referring to a limited number
of examples from MENA countries for illustrative
purposes. This Article does not provide a
comprehensive review of the matter.
In most MENA countries, detainees are rarely
provided with adequate guarantees against torture
and other ill-treatment, including the right to legal
counsel from the moment of arrest and the right
to challenge the lawfulness of detention. Many
detainees are subject to prolonged incommunicado
detention and sometimes to prolonged solitary
confinement, both of which can amount to torture
or other ill-treatment. In situations where the fact
and/or location of the detention is undisclosed, the
situation may amount to an instance of enforced
disappearance, which is a crime under international
law. Allegations of torture and other ill-treatment
made by detainees are rarely investigated. Those
responsible are almost never held to account,
criminally or civilly, and victims’ rights to effective
remedies and to reparation continue to be largely
denied. Further, where a detainee alleges, or where

there are otherwise reasonable grounds to believe
that he or she has been subjected to torture and
other ill-treatment, the authorities generally will
not provide independent medical examinations
conforming to international standards, including
those set out in the Manual on the Effective
Investigation and Documentation of Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment (the Istanbul Protocol). In addition,
“confessions” obtained as a result of torture or other
ill-treatment are regularly admitted as evidence by
courts. Before such evidence is admitted, courts
generally fail to require prosecution services
to prove beyond reasonable doubt that the
“confessions” were obtained by lawful means and
voluntarily from the accused.
For MENA countries to meet their obligations under
international law, including the UN Convention
against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) and
the International Covenant on Civil and Political
Rights (ICCPR), to prevent, investigate, prosecute
and punish acts of torture and other ill-treatment,
they should end policies and practices of secret
detention and prolonged incommunicado and
other arbitrary detention, which are common in the
region.
In Syria, the use of secret and prolonged
incommunicado detention has been widespread
and systematic, and includes holding detainees
in unofficial and secret places of detention and
denying their right to contact family members
and to have access to legal counsel and to a court.
In Libya, unofficial detention facilities continue
to operate under the effective control of armed
groups and outside any rule of law framework. Acts
of torture and other ill-treatment are widespread in
these facilities. Detention in these facilities might
amount to an instance of enforced disappearance.
The Working Group on Arbitrary Detention has
stressed that “secret and/or incommunicado
detention constitutes the most heinous violation of
the norm protecting the right to liberty of human
being under customary international law. The
arbitrariness is inherent in these forms of deprivation
of liberty as the individual is left outside the cloak of
any legal protection.” [§60 of the Working Group on

This article was originally published in the Middle & East-North Africa e-bulletin
N°6 of summer 2014, published by the Association for the Prevention of Torture
(APT). The article reflects the view of the author alone and not necessarily those
of the APT. For a full archive of MENA e-bulletins see www.apt.ch/en/resources/
mena-e-bulletin/

The Middle East and North Africa: A Torture-Free Zone

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