Documenting torture: A torture survivor’s right. Reaffirming the principles of the Istanbul Protocol, ten years on

The 1951 Refugee Convention does not require a torture-surviving asylum seeker to provide concrete evidence of past persecution or torture. Increasingly, however, for survivors to be able to claim their right to protection as refugees, they must corroborate their testimony with independent evidence of their torture.

In 1999, in a landmark move that recognised the importance of investigating and documenting torture, the United Nations published seminal guidelines on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (also known as the Istanbul Protocol). Several doctors from the Medical Foundation for the Care of Victims of Torture (MF) participated in drafting this Protocol.

The Protocol is intended primarily as a field manual to enable those conducting legal investigations to do so promptly and impartially. Crucially, it recognises that "an investigation culminating in the trial of an alleged perpetrator will require the highest level of proof, whereas a report supporting an application for political asylum in a third country need provide only a relatively low level of proof of torture".

However, ten years on, this guidance is being undermined by the Home Office's systematic efforts to discredit the claims of torture survivors in a bid to deny them their right to refuge.

Despite the UN's insistence that a "low level of proof" should be applied when assessing evidence of torture in the context of asylum claims, in practice medico-legal reports prepared by the MF are being subjected to an ever higher standard of proof by Home Office decision-makers, as well as, increasingly, the UK courts.

For example, the UK's Asylum and Immigration Tribunal has decided that in order for a medico-legal report to be accepted as evidence of injuries sustained during torture, it must assess other possible causes of any scars, unless the doctor can say that the scars are "diagnostic" of torture. It is extremely difficult in practice to conclude that a scar is "diagnostic" of torture, because, according to the Protocol, this means that the scar "could not have been caused in any way other than that described".

While the MF agrees that a rigorous methodology must be applied, the risk is that this decision will be taken to mean that where there are no scars or where scars are found merely to be "consistent with" the torture account, the medico-legal report should not necessarily be accepted as evidence supporting this account. This is despite the fact that the Protocol recognises that a finding that scars are "consistent with" the torture account qualifies as valid evidence of the torture, and also its caution that "... the absence of [physical evidence of torture] should not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no marks or permanent scars". This latter point has become especially important in light of increasing reliance by some states on "clean" methods of torture, such as waterboarding, favoured precisely because they leave no scars.

"Our reports are based on objective findings by doctors who have been rigorous and discerning in evaluating medical evidence against what the individual tells us. This is in accordance with the strict methodology laid down by the Istanbul Protocol," says Dr Juliet Cohen, a leading doctor at the MF. "Yet decision-makers still persist in their aim to destroy credibility, even where there is objective medical evidence and even where there are scars that attest to the torture."

Home Office decision-makers are also guilty of challenging the findings in the MF's medico-legal reports by substituting their own clinical judgements, despite the Government's recognition that they are unqualified to make such judgements and written policies which accordingly forbid this. The MF has raised this matter with the Office of the Chief Inspector of the UK Border Agency (the UK Border Agency is the part of the Home Office that deals with asylum claims among other things).

Despite the detailed guidance contained in the Protocol and the Home Office's own policies on asylum decision-making, letters refusing protection consistently show a lack of understanding of the principles of documentation. Problems include a persistent failure to recognise the reasons why torture survivors may not immediately disclose details of sexual assault or rape, owing to powerful feelings of shame or guilt or to the inhospitable interviewing environment and the nature of questioning, and the lack of regard for the impact of torture on a person's ability to accurately recall every detail of their history. Clinical publications on these issues by experienced doctors at the MF and elsewhere are continuously overlooked.

In one case involving a woman detained and tortured for 13 months in Ethiopia, the Home Office refused to grant asylum on the basis that the MF medico-legal report documenting her allegation of torture was based "solely on testimony". And despite the evidence of the physical pain and intense anxiety, assessed against the scars she bore, the Home Office decided that the evidence was "inconclusive". It fell to the MF to remind the Home Office that the Government's own interviews and decisions are themselves based on testimony - to then set a higher standard of proof by suggesting documentary evidence should be based on something more is both contradictory and unacceptable.

Other cases reveal inconsistencies in the rationale applied by Home Office decision-makers when determining a survivor's asylum claim. In the case of an Afghani torture victim, whose scars and psychological problems were found by the MF to corroborate his account of torture, the Home Office said it was a point of discrepancy that the injuries he reported to the MF were different to those reported at the time of his asylum interview. In actual fact, the terms and descriptions used by the examining doctor simply clarified the initial account, providing the required level of accuracy in documenting medical evidence.

Other decisions have concluded that a survivor could not have been tortured because there was no conclusive proof of why the torture happened, missing the point of medico-legal reports, which is to verify a claim of torture with medical evidence, not to account for the motivations of the torturer.

However, the picture is not unremittingly bleak. For example, an Iranian man who remained deeply disturbed and suicidal even 20 years after he was tortured was initially accused by the Home Office of fabricating his case, given the discrepancies in his testimony and his inability to recall every detail of his history. His clinician at the MF, who had worked with him over a number of years, was able to verify that the beatings he had been subjected to had significantly impaired his memory. The Asylum and Immigration Tribunal placed significant weight on the findings of the MF in overturning the Home Office decision.

The MF also submitted evidence in the case of a woman who had more than 50 scars resulting from repeated torture at the hands of the Tanzanian authorities, yet whose testimony was rejected by the Home Office as not consistent with the medical evidence. The MF's medico-legal report was successfully used to highlight the flaws in the Government's decision and the woman's asylum claim was subsequently accepted.

The Istanbul Protocol was a landmark step in recognising the importance of effective torture documentation in securing the rights of torture survivors to rehabilitation, reparation and protection. It also confirmed the role of documentation in efforts to prevent torture by providing tested evidence to corroborate the accounts of victims who have suffered at the hands of torturing states.

The Protocol has since been endorsed by the European Court of Human Rights and by experts around the world. The benchmark standards it established have proved pivotal in validating the testimonies of torture survivors and ensuring that survivors are given the protection most require because of the risk that torture or persecution will be repeated if they are forced to return to their countries of origin.

In this year of the tenth anniversary of the Istanbul Protocol, the MF calls on the Home Office and the Asylum and Immigration Tribunal to improve the training of decision-makers and immigration judges to enable them to constructively engage with medico-legal reports rather than to sidestep this important responsibility.