PART C: Protection against Torture: Procedures before the African Commission and African Human Rights Court may call witnesses, as provided for under Rule 100 of the Commission’s Rules of Procedure.454 9. Government Justifications As the respondent in an individual communication, the State has the opportunity to put forward its version of events and its interpretation of the law. Under the Commission Rules of Procedure, States are notified of all communications and are given three months to respond, first on the issue of admissibility; if a communication is found admissible, the State responds again on the merits.455 The Commission also provides both parties with the opportunity to present oral arguments on both the admissibility and the merits of a communication. Particularly during the early years of the Commission’s functioning, States often did not participate in the written or oral proceedings before the Commission. The Commission’s lack of visibility, as well as States’ lack of awareness of and knowledge about the Commission, partially explain this cavalier approach. In the 1990s, State participation increased and now, in most cases, States are represented by legal counsel in their written submissions as well as at hearings before the Commission. States have responded in a variety of ways to allegations of torture. Given that the prohibition of torture is accepted as a jus cogens or peremptory norm, and given that all AU member States have committed themselves to comply with the African Charter, no State has attempted to justify torture as such. One State strategy is to dispute or deny the facts as presented by the complainant. The Commission has held that ‘in seeking to refute the allegations, it is not sufficient for the Respondent State to simply argue that they are unsubstantiated when they are supported by a range of documentation. Rather, the Respondent State must provide evidence to the contrary’.456 In Zegveld and Ephrem,457 alleging the incommunicado detention of 11 public figures, the Eritrean Ministry of Foreign Affairs conceded that the 11 persons were being held, but ‘in appropriate government facilities’.458 The Government further denied that they had been ill-treated and stated that the 11 persons had access to medical services. This defence failed, however, as the State did not provide ‘information or substantiation’ in support of these assertions.459 The defence also failed on another ground: it did not address 454 455 456 457 458 459 Ibid., Rule 100. Ibid., Rules 117(4), 119(2). Ibid., para. 159. ACHPR, Zegveld and Ephrem v. Eritrea, Comm. No. 250/02. Ibid., para 54. Ibid. 107