treatment was “severe” enough to constitute torture in order to bring about the rest of the safeguards in the Convention. the possibility of torture in the specific cases. The reality is that states normally do not carry out effective investigations so it is easier to prove a violation of Article 5 of the American Convention in this way. Similarly, when victims are under the control of the state—that is in prisons or in any other form of detention—there is a presumption of vulnerability of the individual and generally this presumption applies in cases before the Court and Commission. Mario [López-Garelli] will mention the issue of hearings, which are very important when proving facts and showing evidence. I think in this regard it is important to think of the Committee against Torture that does not allow these types of hearings. Therefore, the victims’ lawyers are forced to convince the Committee of the appearance of torture or ill-treatment only in their initial Petition and in the Response to the State’s Report, which I think is another hurdle to proving torture and ill-treatment before this mechanism. The other important issue to discuss is the shift of the burden of proof, which is more developed in other systems. In particular, the criterion on the shift of the burden of proof is well developed in the Inter-American and European Human Rights Systems. Even the UN Human Rights Committee has ample jurisprudence in this regard. However, the Committee against Torture does not seem to have a clear rule on this regard or it tends to be more restrictive regarding the shift of the burden of proof. I also think the flexibility of the Inter-American System is quite interesting in regard to torture. I have a little anecdote about this specific point. When I was in a meeting discussing the difference between torture and ill-treatment, which became quite a big issue during the “war on terror,” I referred to the definition in the Inter-American Convention [on Human Rights],3 specifically to the fact that it did not contain a “severity” element. There was a UN official in the meeting who basically said, “Oh, you Latin Americans, you never say what things are and there is absolutely no way of differentiating between one type of treatment and the other.” While I understand his point, that is, there is a difference between torture and other CIDT, focusing on the severity element as the main element to differentiate the types of prohibited treatments makes “real” life very difficult. For those of us who have litigated cases of torture, we know that proving injury or damage is very hard in cases of ill-treatment. Proving objectively that such injury was severe enough to constitute torture is even harder. Sometimes impossible! I think that the Inter-American System had to respond to a reality of a continent that dealt with systematic violations constantly. Its flexibility probably stems out of this fact. It would have been otherwise almost impossible to prove violations of this sort. Finally, I think it’s evident that it is hard to bring a case of torture. It is not only the systematic circumstances surrounding torture cases in places like Nepal (about which Hari Phuyal will speak) but also the actual challenges of obtaining for example a medical report. I remember one time I was in Mexico discussing the possibility to implement the Istanbul Protocol with the Office of the Prosecutor. The meeting involved medical personnel working for the prosecutor’s office and some of them said, “Even if we see signs of torture, we are afraid of putting that in a report.” So obviously it is a big challenge! But from my experience, I think is quite important to include medical and psychological reports. It is known that post-traumatic stress syndrome can last for a long time in victims of torture, even when there are no physical traces. At the end of the day it is a matter of proving a human rights violation, not a criminal case. This is something important to remember and that is why it is essential to also show how the state has failed to investigate, prosecute, and afford adequate remedies to the victims. Presumptions are also very important. While it is difficult to prove torture, it is easier for victims to show that there was a failure to comply with the state’s procedural obligations in regard to torture. Under certain circumstances, states need to show that they have complied with their obligations to investigate and prosecute. They need to rule out Our final speaker is Juan Méndez, who is currently a visiting professor here at the American University Washington College of Law and the UN Special Rapporteur on Torture. He will talk about his experiences as the UN Rapporteur on Torture and the challenges of bringing cases of torture. Remarks of Mario López-Garelli* Introduction I will share some of the views and the perspectives of the InterAmerican System of Human Rights (System) regarding torture and mention some cases and the application of the burden of proof as was mentioned. First of all, I would say that the origin of the concept or the provision of torture in the System comes from the American Declaration in 1948, which is at the very beginning of what we considered to be the Inter-American Human Rights * Mario López-Garelli is a Senior Human Rights Specialist at the Inter-American Commission on Human Rights. 34