E/CN.4/1992/17
page 102
violently attacked and killed members of the military and even their
relatives. Since "the opponent" was usually well-trained in withstanding
normal interrogation techniques, the only way to extract information vital
for the protection of the lives of one's own group was torture. The
rationalization and the justification for the use of torture are implicitly
given: "it is either them or us". But this also explains the hideous vicious
circle to which torture leads. Since in a situation of civil war or civil
strife the opponent is not readily recognizable, everyone who does not clearly
belong to "us", may be one of "them". Consequently, every innocent citizen or
bystander is exposed to the risk of torture, in particular those who give
voice to their criticism of the incumbent regime or take up the cause of those
whose human rights are violated. Human rights activists and human rights
lawyers are seen as part of "them" since they are not part of "us". Once the
use of torture is rationalized and found justifiable in specific cases, it
becomes justifiable in other cases as well. The circle of potential victims
of torture gradually becomes wider and wider and torture becomes a habit. And
because of its intimate character, the chances that perpetrators of torture
will be held responsible for acts of torture are relatively small, even if the
authorities are willing to prosecute them.
279. In its resolution 1991/29 the Commission on Human Rights reiterated its
deep concern at the adverse effect on the enjoyment of human rights of
persistent acts of violence committed in many countries by armed groups,
regardless of their origin, that spread terror among the population, and by
drug traffickers. It is indeed a matter of deep concern that human rights are
thus violated in the most ruthless way, often by groups which claim they fight
for a better society which is more in conformity with the requisites of
justice. Their acts are in the starkest contrast possible to their claims and
such acts should be condemned unequivocally and without reservation. Such
acts, however, can never serve as an excuse for similar acts on the part of
the authorities. All international instruments explicitly state that there is
no justification whatsoever for torture; not even under a state of emergency
may the prohibition of torture be suspended. There is a very sound reason for
this unreserved prohibition: national security can never be an aim in itself
but has to be achieved for the well-being of the people; national security
which is achieved at the expense of respect for human rights would turn into a
caricature of itself.
280. Under circumstances in which torture is practiced or condoned by the
authorities, it is the judiciary which forms the last bastion for the
protection of the citizen's basic rights. Nevertheless, it is tragic to note
that in many cases the judiciary does not seem to be aware of the role it can
play in upholding the rule of law. From many country reports it is evident
that judicial bodies often believe that their impartiality forbids them from
taking a stand whenever there is a deep rift between the authorities and part
of their subjects who no longer feel protected, but rather threatened by these
authorities. The judiciary, however, should bear in mind that, as stated in
Principle 6 of the Basic Principles of the Independence of the Judiciary,
adopted by the Seventh United Nations Congress on the Prevention of Crime and
the Treatment of Offenders and endorsed by the General Assembly in its
resolutions 40/32 and 40/146, "the principle of the independence of the
judiciary entitles and requires the judiciary to ensure that judicial
proceedings are conducted fairly and that the rights of the parties are
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