Using forensic medical evidence in court It is a requirement by the International law for all states to carry out investigations for all allegations of torture and bring to book the culprits. The victims of such torture also need to be compensated adequately by the state. Many torturers perform their heinous acts in the dark, and try to conceal all possible evidence, but still aim at inflicting as much pain as possible. There is therefore need for comprehensive documentation that will expose the perpetrators in such a way that they cannot dare deny their crimes against humanity. The challenge here remains in proving that so and so committed such and such a crime (Wheeler, 2016). Failure to provide evidence of torture may foster a culture of impunity, where torturers can continue carrying out their acts knowing well that they will never be arrested, prosecuted and punished. This essay seeks to outline the potential for comprehensive documentation regarding evidence on human rights violation through torture.

To prevent that climate of impunity from developing, sufficient evidence must be gathered on any case against suspected perpetrators. Torture can indeed be proved by proper documentation. Experienced health practitioners can normally examine some psychological and physical sequel and give crucial information on torture cases. These findings are then presented to the judiciary, or any other appropriate body, who will then feel obligated to fully investigate such torture allegations and subsequently compensate the victims.

Forensic evidence in torture cases

Unfortunate events such as genocides, ethnic cleansing and massacres are normally characterized with torture, as well as strange disappearances and extrajudicial executions. For instance, during the La Violencia in Guatemala between 1978 and 1985, widespread counterinsurgency campaigns were witnessed in the Altiplanos, that is the mountainous region of Guatemala. Though the indigenous population formed unlawful guerrilla movements, the state military used uncalled for force in eliminating them (Wheeler, 2016). The militia could for instance round up a sizable number of locals and torture them to death, in the eyes of the other locals (Zur, 1995).

If there be survivors in such instances of torture, they should be immediately subjected to thorough medical examination, preferably by an independent medical examiner. This is because most of the physical injuries inflicted through torture are normally on soft tissue, and thus have a high likelihood of disappearing as time goes by. Also, the memories of torture are still fresh to the victim’s mind and they can narrate them flawlessly (Wheeler, 2016; Stan, 2012). For the deceased victims of torture, autopsies should be conducted immediately the bodies are received, preferably by an independent forensic pathologist. This should be preferably done before post-mortem so that no evidence is destroyed.

In case the torture victims are already buried, whether in single or mass graves, it would also pay to exhume their bodies for examination. Whatever method is used for investigation on exhumed bodies should be approved by the judiciary. The examinations should also be done for one body at any particular time. Information such as age, sex, stature, ancestry and handedness of the victim must be recorded.

Complicity of forensic in torture

Doctors can participate in torture either actively or passively. A doctor may for instance approve the use of chemicals to torture someone, generate false medical reports, or refrain from reporting torture. Such passive participation normally goes unpunished (Mostad and Moati, 2008). Doctors have been known to behave in such manner mainly because of due loyalty. This is where the doctor prioritizes on the the interests of the state or their organization in lieu of the patient’s interests. This behavior by doctors has been questioned by bodies such as the International Committee of the Red Cross (ICRC), and PHR. What is the role of health care professionals in torture? (Rees, 2010).

Both active and passive medical complicity in torture are an outright violation of the medical code of ethics as well the human rights laws. The medical code of ethics have it clear that no doctor should knowingly inflict unwarranted pain on a patient. More so, the doctors, as they take the Hippocratic oath, swear to do no harm to any individual. This is also reflected in the Nuremberg Code, which was as a result of the trial of the Nazi doctors. The WMA declarations of the cities of Tokyo and Geneva also support the “do no harm” policy. The United Nations Human Rights Council passed one important law regarding the role of health care providers in torture and other dehumanizing...

The law was further emphasized through a BMJ article, stating that under no circumstances should a doctor involve himself in acts of torture. Medical complicity is under close watch by the UN special rapporteur.
Medical complicity in torture is an international concern which ought to be prevented at all costs by the various organizations. Many organizations actually fight for ethics and human rights, but rarely do they touch medical complicity. Take the example of Chile, as the country was coming to a close of the Pinochet regime - scores of citizens were tortured, and some of the doctors who played part in the torture were expelled by the Chilean Medical Association. Likewise, two South African doctors faced the law when they deliberately refused to treat the injuries of Steve Biko, the famous anti-apartheid activist who passed on while under arrest by the police (McColl et al. 2012). Eight years later, the responsible doctors were brought to book after pressure from the World Medical Association. The South African Medical Association did not want to get involved in this matter and even went a step further to withdraw from the WMA.

The above mentioned instances of medical complicity in torture are not the only ones. In recent times, the PHR drafted a report titled ‘Aiding Torture’, which lobbied for the investigation of health care professionals regarding their role in torture. The report was influenced by a leaked document from the International Committee of the Red Cross, which detailed how doctors employed by the Central Intelligence Agency in Guantanamo were instructed to oversee torture by such methods as shackling and water boarding (McColl et al., 2012). It was concluded that the health personnel grossly breached the medical code of ethics by participating in torture, whether directly or indirectly.

The Medical Justice of the UK have documented a breach of ‘Rule 35’ which states that vulnerable people, including victims of torture should in no way be detained. The same have also seconded the claims of poor documentation of torture by health care practitioners employed in detention centers and their failure to treat the victims. Medact recently drafted a report titled ‘Preventing Torture’, which expounds the wanting gap between medical practice and the ethical codes (Augustin et al. 2011). The report also also gives suggestions to the WMA and National Medical Associations on how to deal with torture, basically through supporting the victims and responding appropriately to medical complicity. It is recommended that the health care professional be coached in diagnostic skills, ethical duties, how to get confidential advice and how to reach the UN special rapporteur.

Medical complicity in torture is evidently a vice that should never be practiced by any properly trained doctor. One BMJ editorial however reported that majority of doctors abet torture instead of treating the millions of victims. The view is however biased, taking into account the numerous health professionals who prevent torture.

Evidence admissibility and expert reliability

In 1993, the Daubert test was introduced after the supreme court case between Daubert and Merrell Dow Pharmaceuticals. The test basically determines how relevant and reliable expert forensic testimony is, based on these five factors: use of control standards, theory test-ability, error rate, peer review and acceptance by the concerned scientific community (Daubert v. Merrell Dow Pharmaceuticals, 1993). Page et al. (2011) studied 81 cases that followed the Daubert test, and identified the five outlined factors as reasons why judges excluded forensic evidence. Another important factor was the failure by experts to correctly explain the methodology and produce detailed documentation of torture.

In the recent past, commercial vendors have come up with reliable methodologies to examine digital evidence (Garrie, 2014). This is a great step from the initial manual analysis which required many years of experience and extensive training to be able to produce some digital forensic report. Such hardware and software solutions have raised the number of forensic experts and reduced the costs of coining forensic reports. The depth of knowledge required for an average forensic examiner has however reduced.

The challenge with this is production of flawed and unreliable forensic reports by under qualified forensic examiners. You will find quacks who quickly train themselves in handling the forensic digital software and start their practice before gaining the in-depth knowledge required for this field. The reviewer of these reports should therefore be on the lookout for such substandard reports. There…