Part I: Recognition and usage
18
Bringing medical evidence of torture
to international tribunals
By Renate Winter
President of the Special Court for
Sierra Leone
International law imposes the responsibility to take effective and appropriate measures to prevent and punish acts
of torture and to proceed to a prompt and impartial investigation when confronting allegations of torture. The Istanbul
Protocol, compiled by leading medical and other professionals, provides extensive guidelines for the effective investigation and documentation of torture. As stated in the Istanbul
Protocol, the purpose of investigation and documentation is,
in part, the facilitation of prosecutions or, as appropriate, disciplinary sanctions for those indicated by the investigation as
being responsible. Medical experts can play a crucial role in
generating evidence. They can support the work of the prosecution and the court by examining alleged victims of torture,
compiling medico-legal reports and presenting their findings
as expert witnesses during the legal proceedings.
In cases before the international criminal tribunals, evidence must meet basic requirements before it can be admitted
and considered by the judge. The assessment is generally flexible and the touchstone for admissibility is the relevance and
probative value of the evidence. Evidence may be excluded if its
probative value is considered to be substantially outweighed
by the need to ensure a fair trial. It may also be excluded if it
was obtained in a way which raises substantial doubt about its
reliability or if its admission would damage the integrity of the
proceedings. As a matter of law, corroboration is not required
generally nor in particular in relation to testimony of victims
of sexual violence, which is significant to cases alleging acts of
sexual violence that amount to torture.
Use of expert medical evidence
Additional rules apply to the admissibility of expert evidence
at the international criminal tribunals. An expert is a person
who by virtue of some specialised knowledge, skills or training
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