ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ____________________________________ Prohibition and punishment of torture and other forms of ill-treatment There is an absolute ban on torture and other cruel, inhuman or degrading treatment and outrages upon personal dignity under international humanitarian law (IHL) and international human rights law (IHRL). The prohibition of torture and other forms of ill- treatment derives from the Geneva 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 war crimes 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 pain or treaties, including the 1984 that the prohibition on torture, cruel suffering, 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, confession, or consent or acquiescence of a including torture and other inhuman (b) punishing him/her for an act public official 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 Protocol I 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 humiliation. 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 crime 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 criminal law, including breaches, and to bring such Punishment; the 2004 Arab Charter attempts to commit torture, as well persons, regardless of nationality, 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 complicity 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 international law b) Jurisdiction 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- Geneva Conventions and such persons are not extradited to treatment are grave breaches of Additional Protocol I to exercise another State. the Geneva Conventions (GC) and universal jurisdiction 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 extradition treaty 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, military 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