ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ______

Prohibition and of and other forms of ill-treatment

There is an absolute ban on torture and other cruel, inhuman or degrading treatment and outrages upon personal under international humanitarian law (IHL) and international law (IHRL). The prohibition of torture and other forms of ill- treatment derives from the Conventions of 1949, their Additional Protocols of 1977, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, and other international instruments. Both IHL and IHRL converge and complement each other in establishing a comprehensive legal framework for the prevention and punishment of acts of torture and other forms of ill-treatment.

1. Definition of torture and other person to such a degree as to be treatment to be in both forms of ill-treatment generally recognized as an outrage international and non-international upon personal dignity. Unlike armed conflicts (Art. 8(2)(a)(ii) and Under international humanitarian torture, there is no requirement that 8(2)(c)(i) and (ii)) as well as crimes law (IHL) and international human these acts be inflicted for a specific against humanity (Art. 7(1)(f) and rights law (IHRL), the definition of purpose. (k)). torture comprises three main aspects: IHL applies to all parties to an Rule 90 of the ICRC study on armed conflict. In contrast IHRL customary IHL (2005) establishes 1. Any act by which severe or , including the 1984 that the prohibition on torture, cruel , whether physical or Convention against Torture and or inhuman treatment and outrages mental, is inflicted on a person; Other Cruel, Inhuman or Degrading upon personal dignity, in particular 2. The act must be intentionally Treatment or Punishment (CAT), humiliating and degrading inflicted; apply exclusively to States. As treatment, in both international and 3. The act must be instrumental for such, Article 1 of the CAT contains non-international armed conflicts is such purposes as: the additional requirement that the a norm of customary international (a) obtaining from the individual or prohibited acts be “inflicted by or at law. Further, Rule 156 provides a third person information or a the instigation of or with the that serious violations of IHL, , or or acquiescence of a including torture and other inhuman (b) punishing him/her for an act public or other person acting treatment, constitute war crimes in he/she or a third person has in an official capacity.” both international and non- committed or is suspected of international armed conflicts.1 having committed, or (c) intimidating him/her or a third 2. Key international instruments person, or b) IHRL (d) coercing him/her or a third a) IHL person, or The prohibition on torture is (e) for any reason based on The main IHL instruments that enshrined in international human discrimination of any kind. prohibit torture and other forms of rights instruments, such as the ill-treatment include: the 1907 1948 Universal Declaration of What distinguishes torture from Hague Regulations respecting the Human Rights (Art. 5), the 1966 other forms of ill-treatment, which Laws and Customs of War on Land International Covenant on Civil and include other cruel, inhuman or (Art. 4); the four Geneva Political Rights (Art. 7), the 1984 degrading treatment and outrages Conventions of 1949 (GC I, Art. 12; Convention against Torture, and upon personal dignity, is the third – GC II, Art. 12; GC III, Arts 13, 17 the 1989 Convention on the Rights purposive – aspect. and 87; GC IV, Arts 27 and 32; of the Child (Art. 37(a)). GC I-IV common article 3 and arts Inhuman and cruel treatment is 50, 51, 130 and 147 respectively; The prohibition on torture is also defined as the infliction of severe Additional of 1977 contained in regional human rights physical or mental pain or suffering, (Art. 75(2)(a)(ii)); and Additional which goes beyond mere Protocol II of 1977 (Art. 4(2)(a)). degradation or . 1 See ICRC Customary Law Outrages upon personal dignity are The 1998 Rome Statute of the database at acts that humiliate, degrade or International Criminal Court (ICC) http://www.icrc.org/customary- otherwise violate the dignity of the deems torture and other inhuman ihl/eng/docs/home

06/2014 instruments, such as the 1950 To give effect to the principle of European Convention for the complementarity, States party to Protection of Human Rights and the ICC Statute must adopt Fundamental Freedoms (Art. 3); domestic legislation to incorporate c) Prosecuting or extraditing the 1969 American Convention on all crimes under the Statute, alleged offenders Human Rights (Art. 5.2); the 1981 including the of torture. African Charter on Human and (i) IHL Peoples’ Rights (Art. 5); the 1985 (ii) IHRL Inter-American Convention to States also have an obligation to Prevent and Punish Torture; the Article 4(1) of the CAT obliges all search for persons alleged to have 1987 European Convention for the States Parties to ensure that all committed, or to have ordered to Prevention of Torture and Inhuman acts of torture are offences under be committed, such grave or Degrading Treatment or their , including breaches, and to bring such Punishment; the 2004 Arab Charter to commit torture, as well persons, regardless of , on Human Rights (Art. 8); and the as acts by any person that before the State’s own courts, if 2012 Human Rights Declaration by constitute or participation such persons are not extradited to the Association of Southeast Asian in torture. States Parties are also another State. This is reflected in Nations (Art. 14) required to make these offences Articles 49/50/129/146 of GC I-IV, punishable by appropriate penalties respectively, and in AP I, Articles 3. Key legal obligations deriving that take into account their grave 85(1) and 86(1). from the prohibition of torture nature. and other forms of ill-treatment (ii) IHRL under b) over acts of torture According to Article 7(1) of the a) Enacting criminal sanctions CAT, States are required to (i) IHL prosecute the alleged perpetrators (i) IHL of the offence of torture in any States are required under the territory within their jurisdiction, if Torture and other forms of ill- and such persons are not extradited to treatment are grave breaches of Additional Protocol I to exercise another State. the Geneva Conventions (GC) and over grave their additional Protocols (AP), as breaches, including acts of torture Under Article 8 of the CAT, States well as being serious violations of and other forms of ill-treatment must make torture, including international humanitarian law and committed during international complicity or participation therein, war crimes in both international and armed conflicts. Thus, States have an extraditable offence in any non-international armed conflicts. an obligation to search for and between States The relevant provisions include: prosecute alleged perpetrators, Parties. Under Article 8(2), where Articles 50/51/130/147 of GC I-IV, regardless of their nationality and States make extradition conditional respectively, and their common of where the act was committed. upon the existence of an extradition Article 3(1)(a); Article 85 of AP I; Under Rule 157 of the ICRC study treaty, the CAT may serve as a Article 4(2)(a) of AP II; on customary IHL, States also have legal basis for extradition if a State Article 8(2)(ii) of the ICC Statute; the right to vest universal does not have an extradition treaty and Rule 90 of the ICRC study on jurisdiction in their national courts with the requesting State. customary IHL. for war crimes, including torture and other forms of ill-treatment d) Non-refoulement States have a duty to enact committed in non-international legislation prohibiting acts of torture armed conflicts. The CAT (Art. 3) provides that no and other forms of ill-treatment and State Party shall expel, return punishing those who commit them (ii) IHRL ("refouler") or extradite a person to or order them to be committed. another State where there are Individuals can be held criminally Under the CAT, States Parties substantial grounds for believing responsible for committing these must establish jurisdiction over acts that he would be in danger of being war crimes. Further, of torture where the offences are subjected to torture. The CAT commanders are required to committed in any territory under further states that, for the purposes prevent, repress and take action their respective jurisdiction, or of determining whether there are against those under their control where the alleged offender or the such grounds, the competent who commit acts of torture and victim is a national of the State. authorities shall take into account other forms of ill-treatment. These all relevant considerations protections are listed under Articles In addition, the CAT specifies in including, where applicable, the 49/50/129/146 of GC I-IV, Article 5(2) that a State can also existence in the State concerned of respectively, and their common establish universal jurisdiction over a consistent pattern of gross, Article 3(1)(a); AP I, Articles 86 and the crime of torture where the flagrant or mass violations of 87; AP II, Article 4(2)(a); and Rules offender is present in any territory human rights. 151-153 and 156 of the ICRC study under its jurisdiction. These on customary IHL.2 provisions are in keeping with the e) Non-use of information underlying object and purpose of obtained from torture the Convention, namely, as stated in its preamble, “to make more Article 15 of CAT provides that any effective the struggle against statement made as a result of 2 See Advisory Service Factsheet torture and other cruel, inhuman or torture shall not be invoked as “Penal Repression: degrading treatment or punishment in any proceedings, Punishing War Crimes,” at throughout the world.” except against a person accused of www.icrc.org/eng/resources/docum torture as evidence that the ents/legal-fact-sheet/national- statement was made. In addition, implementation-legal-fact- all essential judicial guarantees sheets.htm must be provided to ensure that The ICRC uses the information accused persons receive a fair trial, collected from detention visits to as stipulated in Articles 49/50/102- engage in confidential dialogue 108/66-75 of GC I-IV, respectively, with the authorities. Among other b) IHRL and in Article 75(4) of AP I and things, it strives to prevent torture Article 6(2) of AP II. and other forms of ill-treatment. Article 10 of the CAT requires States Parties to ensure that education and information f) Remedies and reparations b) IHRL regarding the prohibition against torture and other forms of ill- (i) IHL To ensure the effective treatment are fully included in the implementation of the prohibition training of law enforcement Article 91 of AP I, as reflected in on committing torture and other personnel, civil or military medical Rules 149 and 150 of the ICRC forms of ill-treatment, a number of personnel, public and other study on customary IHL, requires independent mechanisms are persons who may be involved in that a party to the conflict that provided for under IHRL. These the custody, or violates the provisions of the include national preventive treatment of any individual Conventions or of the Protocol – mechanisms (Art. 3 of the 2002 subjected to any form of arrest, which by inference includes torture Optional Protocol to the CAT), the detention or imprisonment. and other forms of ill-treatment – Committee against Torture (CAT, shall be liable to pay Art. 17), and the Subcommittee on Moreover, Article 11 of the CAT compensation. It shall be Prevention of Torture and Other requires States Parties to keep responsible for all acts committed Cruel, Inhuman or Degrading under systematic review by persons forming part of its Treatment or Punishment (Art. 2 of interrogation rules, instructions, armed forces. the Optional Protocol to the CAT). methods and practices as well as Members of these bodies should arrangements for the custody and (ii) IHRL be of high moral character with treatment of persons subjected to proven professional experience in any form of arrest, detention, Similarly, under Article 14 of the the administration of justice, in detention or imprisonment in any CAT, each State Party is to ensure particular criminal law, or territory under their jurisdiction, with in its legal system that the victim of administration, or in other a view to preventing any cases of an act of torture can obtain redress fields related to the treatment of torture. and has an enforceable right to fair persons deprived of their . and adequate compensation, The members shall serve in their including the means for as full individual capacity, shall be rehabilitation as possible. independent and impartial and shall Dependants of deceased victims of be available to serve the torture are likewise entitled to mechanism efficiently. compensation. Article 19 of the CAT also requires States to submit reports on the 4. Monitoring and reporting measures they have taken to give mechanisms effect to their obligations under the Convention. a) ICRC detention visits According to Article 13 of the CAT, Through the 1949 Geneva any individual who alleges that he Conventions, in particular has been subjected to torture in Article 126 of GC III and Article 143 any territory under a State’s of GC IV (and the Statutes of the jurisdiction has the right to have his International Red Cross and Red case promptly and impartially Crescent Movement), the examined by that State’s international community has competent authorities. mandated the ICRC to visit both prisoners of war and interned during international armed 5. Prevention of torture and conflicts. The ICRC also visits other forms of ill-treatment people detained in connection with non-international armed conflicts a) IHL and situations of violence not reaching the threshold of an armed The Geneva Conventions require conflict. that States Parties, in times of peace as in times of war, The ICRC assesses the physical disseminate as widely as possible and mental well-being of detainees in their respective countries the text through visits to places of of the Geneva Conventions, which detention, dialogue with the refer to the prohibition of torture detaining authorities and private and other forms of ill-treatment. interviews with the detainees Under Articles 47/48/ 127/144 of themselves. All this helps to ensure GC I-IV, respectively, as well as that detainees’ treatment and Article 83 of AP I and Article 19 of conditions of detention meet IHL AP II, States Parties are also and/or internationally recognized obliged to include the Geneva human rights standards. Conventions in military instruction.

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