As a non-derogable, customary norm of jus cogens, the prohibition against torture et al. applies not only to peacetime or emergency situations under international and regional human rights law, but equally to international and non-international armed conflict situations, as is reflected within the text of the Geneva Conventions and Additional Protocols. As the International Criminal Tribunal for the former Yugoslavia (ICTY) determined in the case of Furundzija (1998):
Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens that is a norm that enjoys a higher rank in the international hierarchy than treaty law and even 'ordinary' customary rules (para. 153).
Under customary international humanitarian law, the prohibition against torture and cruel, inhuman or degrading treatment is treated as a long-standing norm. This is reflected in customary Rule 90 of the International Committee of the Red Cross/Red Crescent's (ICRC) customary international law study (ICRC, Rule 90).
These customary norms are codified in the text of the Geneva Conventions too (see further Module 3). (See Geneva Convention I, article 12, para. 2; Geneva Convention II, article 12, para. 2; Geneva Convention III, articles 17, 87 and 89; Geneva Convention IV, article 32). Common article 3 of the Geneva Conventions 1949, which governs situations of non-international armed conflict, expressly prohibits torture and cruel treatment, as well as "outrages upon personal dignity, in particular humiliating and degrading treatment" of civilians and persons hors de combat. The four Geneva Conventions similarly prohibit these acts in situations of international armed conflict. These provisions should also be read in light of other relevant accompanying provisions, such as article 27 of the Geneva Convention IV which states that: "Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity." (Geneva Convention IV, article 27). Notably, the commission of acts of torture against a prisoner of war or against civilians constitute a grave breach of Geneva Conventions III (article 129-130) and IV (article 147) respectively, as well as being a war crime.
Nonetheless, issues and controversies surrounding the prohibition against torture et al., including the minimum core requirements of Common article 3, have arisen in relation to counter-terrorism efforts in armed conflict situations. For example, some States have argued that these obligations do not apply to detained "unlawful enemy combatants" such as al Qaeda or Islamic State of Iraq and the Levant (ISIL) fighters (see e.g. U.S. Department of Justice, Office of Legal Counsel, 2002) (see Module 6). Despite the fact that such arguments have been rejected judicially (see e.g. Hamdan v. Rumsfeld, 2006, para. 65-68), harsh interrogation techniques and secret detention practices (see Module 10) have sometimes continued within armed conflict contexts (HRW, 2004). Even those States that respect international humanitarian law can occasionally default to a more restrictive interpretative approach to Common article 3. For instance, this may take the form of legislation that excludes the prohibition on humiliating treatment or provides for a narrowing of the extent to which Common article 3 can be penalized as a war crime, which can effectively afford those responsible for such acts immunity from prosecution.
Another significant concern has been the use of torture and other forms of coercion against prisoners of war in order to acquire intelligence. Under article 17 of the Geneva Convention III (governing prisoners of war) any person who refuses to provide information cannot "be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind". Similarly, article 31 of the Geneva Convention IV (governing civilians in occupied territory) prohibits the employment of any moral or physical force against protected persons for any purpose and specifically for intelligence extraction from them or third parties. Those persons undergoing criminal proceedings have the right not to be compelled to testify against themselves or to confess guilt, both during international and non-international armed conflicts, such as through the utilisation of harsh interrogation methods (article 99 Geneva Convention III, article 75 Additional Protocol I, and article 6 Additional Protocol II). Of especial note here is article 75 of the Additional Protocol I, which has been termed a 'mini Convention' in that it summarises fundamental guarantees to "persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions" in order to ensure that they are treated humanely in all circumstances, including in situations where human rights law has permitted derogations. Of especial note here, article 75(2) provides that "the following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents":
(a) violence to the life, health, or physical or mental well-being of persons, in particular ... (ii) torture of all kinds, whether physical or mental; and (iii) corporal punishment;....
(b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault.
As has been noted above, the commission of torture et al. can constitute grave breaches of the Geneva Conventions and war crimes. In addition, where the necessary threshold criteria are met, acts of torture could constitute crimes against humanity whether committed in peacetime or in armed conflict situations (see Module 4).
In this regard, international criminal law also plays an important role in prohibiting torture in the context of international and non-international armed conflicts through its punitive mechanisms which play an important deterrent role. In the context of armed conflict, there is extensive international court and tribunal jurisprudence regarding the interpretation of all aspects of torture and other forms of ill-treatment, as the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and International Criminal Court (ICC) considered below demonstrates.
An important conceptual difference reflected in the interpretative approach of these courts and tribunals, compared with international or regional human rights mechanisms, is that a primary purpose of international criminal law is to determine whether or not a person has committed an international criminal act they should be punished for, rather than determining per se the finer details of whether the crimes alleged amounted to torture or other forms of ill-treatment.
Case law has confirmed the position of the prohibition against torture as a customary norm including in situations of armed conflict. Notably, some differences between the elements required to substantiate allegations of torture in situations of armed conflict compared with those in peacetime have been found to exist. In the case of Kunerac (2001), the Trial Chamber found that:
[T]he definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law. In particular, the Trial Chamber is of the view that the presence of a state official or of any other authority wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law (para 496).
As a starting premise, both ICTY and ICTR regard torture as a war crime and as a crime against humanity, whenever the requirements of those distinct types of crime are met. Indeed, ICTY has found that "[t]he definition of the offence of torture is the same regardless of the Article under which the acts of the Accused have been charged." ( Prosecutor v. Krnojelac, 2002, para. 178). As with the international and regional human rights instruments examined earlier in this Module, the Statutes of neither Tribunal define torture or ill-treatment, nor the crossover point between different forms of mistreatment, leaving this to the Tribunals to determine.
In doing so, both Tribunals have taken the purposive approach to the torture definition, as per article 1 of UNCAT. This is illustrated by the Akayesu (1998) case, in which ICTR specified various purposes that must be fulfilled in order for the perpetration of torture to be established. The purposes include: "(a) to obtain information or a confession from the victim or a third person; (b) to punish the victim or a third person for an act committed or suspected of having been committed by either of them; (c) for the purpose of intimidating or coercing the victim or the third person; (d) for any reason based on discrimination of any kind" (paras. 593-594). This list is, though, non-exhaustive (see Prosecutor v. Kunarac, Kovać and Vuković, 2002, where 'intent' and 'motivation' are discussed). Notably too, the ICTR in Akayesu was also of the opinion that rape came within the scope of torture. In terms of their purposive element, rape can be used to intimidate, degrade, humiliate, discriminate, punish, control or destruct a person ( Prosecutor v. Akayesu, 1998, paras. 596-597; see also Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, 2007, para. 718). Other cases in both tribunals have also discussed and further developed the requirement of purpose within the definition of torture (see e.g. Prosecutor v. Musema, 2000; Prosecutor v Brđanin, 2004).
Furthermore, ICTY has held that "the severity of the pain or suffering is a distinguishing characteristic of torture that sets it apart from similar offences" ( Prosecutor v. Delalić and Others, 1998), which is in line with international customary law. The threshold on severity is not clear, although a former United Nations Special Rapporteur on torture et al. observed that "a juridical definition cannot depend upon a catalogue of horrific practices; for it to do so would simply provide a challenge to the ingenuity of the torturers, not a viable legal prohibition" (Economic and Social Council, Commission on Human Rights report 1995/34). Instead, severity should be examined on a case by case basis, including the personal circumstances of the victim. As with international human rights law, mental as well as physical harm is included within the definition of torture ( Prosecutor v. Kvočka and Others, 2001).
In terms of establishing criminal culpability, under the doctrine of international criminal responsibility, torture and ill-treatment extend beyond those persons who committed the crime. Both the ICTY and ICTR Statutes state that "[a] person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in.… the present Statute, shall be individually responsible for the crime". Notably, in the Kunarac case, ICTY found that not only State officials, but also any individuals acting in their personal capacity may be held responsible for the commission of international crimes, including torture, in situations of armed conflict ( Prosecutor v. Kunarac, Kovać and Vuković, 2002, para. 469-497). Discussion on the 'official capacity' issue can be found predominantly, though not exclusively, in ICTY case law ( Prosecutor v. Furundzija, 1998; see also Prosecutor v. Akayesu, 1998). In contrast, the Rome Statute does not specify a requirement of official capacity in order to assign criminal liability for torture.
ICTY and ICTR Statutes do outline acts that constitute other forms of ill-treatment within the jurisdiction of the Tribunals. The purpose and gravity of the act is important in distinguishing between torture and other ill-treatment offences. Where a prohibited purpose, such as the extraction of information, is absent, the Tribunals have categorised the act as ill-treatment. More specifically, inhuman treatment, as an offence under the ICTY Statute, is "an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity" ( Prosecutor v. Delalić and Others, 1998, para. 563). In determining this mental element of intent, the approach of the ICTY has been that "the perpetrator must have acted deliberately or deliberately omitted to act but deliberation alone is insufficient. While the perpetrator need not have had the specific intent to humiliate or degrade the victim, he must have been able to perceive this to be the foreseeable and reasonable consequence of his actions" ( Prosecutor v. Aleksovski, 1999, para. 56).
Notably too, whilst all acts of torture constitute inhuman treatment, the reverse is not true, since inhuman treatment is much broader and includes acts that cause serious mental and physical pain and suffering, but which fall short of the severe mental and physical suffering required to establish torture. Severity is therefore clearly a factor in the distinction.
Under the 1998 Rome Statute creating the International Criminal Court (ICC), torture is categorized as a crime against humanity and as a war crime. With respect to the former, article 7(1)(f) of the Rome Statute includes torture as a crime against humanity falling under the jurisdiction of the ICC "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". More specifically, article 7(2)(e) defines torture as "the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions".
There are some important differences between the definition of torture under the Rome Statute compared with the previously considered international and regional instruments as well as those of the ad hoc tribunals. One feature is that the definitional approach is narrower in requiring that torture is "upon a person in the custody or under the control of the accused", which could exclude certain acts of torture, such as in one-off or informal cases, from its legal scope.
With respect to war crimes, article 8(2)(a)(ii) of the Rome Statute categorizes "torture or inhuman treatment" as a "grave breach" of the Geneva Conventions. In terms of the elements of these crimes, these have been specified by the ICC as follows (ICC, 2011):
War crime of torture:
War crime of inhuman treatment:
As is evident from these criteria, an important distinction between 'torture' and 'inhuman treatment' as a war crime is the purposive element which is required for torture, namely "obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind" which is similar to that considered under a number of human rights law treaties earlier in the Module.
In addition, in situations of both international and non-international armed conflicts, ill-treatment can also fall into the category of "[o]ther serious violations of the laws and customs applicable". With respect to international armed conflict, under article 8(2)(b)(xxii), "[c]ommitting outrages upon personal dignity, in particular humiliating and degrading treatment" fall into this category.
Similarly, in situations of non-international armed conflict, the relevant provisions are article 8(2)(c)(i) "[v]iolence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture", and article 8(2)(c)(ii) "[c]ommitting outrages upon personal dignity, in particular humiliating and degrading treatment". In this context these acts must be "committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause".
Another sensitive matter in which issues of torture and ill-treatment has arisen, including in relation to convicted terrorist, relates to the award of the death penalty by way of punishment. As was discussed in Module 8, the international community is generally moving towards the universal abolition of the death penalty, whether de jure or at least de facto, although a number of States have retained their ability to impose this punishment, including under national anti-terrorism laws.
In some instances, these have created a further layer of complexity for those States wishing to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) yet wishing to retain the death penalty as a punishment option. This dilemma is illustrated by a recently published report by the Law Commission of India (2017), a country which has retained the death penalty. In recommending that the Government of India ratify and implement UNCAT into domestic legislation (through draft legislation developed by the Law Commission), the Commission sought to distinguish between different forms of execution as to whether or not the threshold for torture would be crossed:
In 2012 the U.N. Special Rapporteur presented his Report on Death Penalty and Prohibition of Torture in the United Nations General Assembly. The report noted that while death penalty is not violative of the prohibition of torture and cruel, inhuman and degrading treatment, certain aspects related to it such as certain methods of execution and the incident of being on a death row may be covered under this convention. However, it must be noted that such a view on Torture and death penalty is applicable to only those countries which carry out under the guise of lawful sanctions, barbaric execution (e.g. death by stoning) which clearly have traits of torture. (Para. 1.16).
There are three primary issues on which torture in this context generally arises:
The first relates to what is termed as the 'death row phenomenon' and accompanying 'death row syndrome', referring to the harmful effects of death row conditions. The former can include exposure to extended periods of solitary confinement and the mental anxiety as well as emotional distress that prisoners experience whilst waiting for their death; whilst 'death row syndrome' is used to describe the consequential psychological illness that can occur as a result of death row phenomenon. This is illustrated by the leading ECtHR case of Soering v. UK, discussed in the case study box below. As the Privy Council observed in the case of Pratt and Morgan v. Attorney General for Jamaica (1993),
There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity …To execute these men now after holding them in custody in an agony of suspense so many years would be inhuman punishment within the meaning of [the constitution of Jamaica].
On such matters, the Law Commission of India has referred to the principle articulated in Shatrughan Chauhan v. Union of India (2014, para. 54) . In that case, the Supreme Court, while discussing the scope of torture in the execution of death sentence, observed that "... undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture ... However, the nature of delay i.e. whether it is undue or unreasonable must be appreciated based on the facts of individual cases and no exhaustive guidelines can be framed in this regard".
Related to this is the means by which the convicted person is executed, which can vary between States from the use of lethal injection, hanging, electric chair, firing squad, to stoning. Human Rights Committee General Comment No. 20 is relevant here. First, it reiterates the scope of article 7 the International Covenant on Civil and Political Rights (ICCPR), namely that it applies to both physical pain and mental suffering (para. 5). Second, in restating the general desirability to abolish the death penalty completely (referring to OHCHR, Human Rights Committee General Comment No. 6), it emphasized that "when the death penalty is applied by a State party for the most serious crimes, it must not only be strictly limited in accordance with article 6 but it must be carried out in such a way as to cause the least possible physical and mental suffering" (para. 6).
The other key issue here relates to solitary confinement, focusing here on those who are also facing the death penalty. States often seek to hold detainees suspected of terrorism-related offences or convicted on such charges in special detention regimes, including in solitary confinement, to prevent them from communicating with fellow detainees or other members of their terrorist organization outside the prison, from seeking to recruit other prisoners to their cause, or from preparing an escape.
A number of human rights bodies have held that solitary confinement may cross the threshold for torture et al. For example, in its General Comment No. 20 the Human Rights Committee also "notes that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7" (para. 6). The approach of the Council of Europe is to be pragmatic, recognizing the challenges posed by such persons together with the "imperatives of the fight against terrorism". Its approach is therefore one of permissibility so long as certain safeguards are met, namely that: "A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity" (para. 1); and "the measure taken is proportionate to the aim to be achieved" (para. 2). Permissible restrictions may relate to:
The Special Rapporteur on torture et al. has dedicated a report to the question of solitary confinement. He noted that "[t]here is no universally agreed upon definition of solitary confinement. The Istanbul Statement on the Use and Effects of Solitary Confinement defines solitary confinement as the physical isolation of individuals who are confined to their cells for 22 to 24 hours a day. In many jurisdictions, prisoners held in solitary confinement are allowed out of their cells for one hour of solitary exercise a day. Meaningful contact with other people is typically reduced to a minimum." The Istanbul Statement is concerned with the use and effects of solitary confinement, especially from a psychological trauma perspective (see Solitary Confinement).
The Special Rapporteur took the view that the use of solitary confinement of indefinite duration or of prolonged solitary confinement, which he defined as solitary confinement exceeding two weeks, constituted a violation of the prohibition on torture, inhuman or degrading treatment, noting that: "the longer the duration of solitary confinement or the greater the uncertainty regarding the length of time, the greater the risk of serious and irreparable harm to the inmate that may constitute cruel, inhuman or degrading treatment or punishment or even torture" (General Assembly report 66/268, para. 58). While there is no international agreement on what constitutes 'prolonged' solitary confinement, also the European Committee for the Prevention of Torture has taken the view that fifteen days should be the maximum permissible duration of solitary confinement (Council of European, Committee for the Prevention of Torture, 2011, pp. 39-50).
With regard to the criminal justice response to terrorism, he observed with concern that:
The use of prolonged or indefinite solitary confinement has increased in various jurisdictions, especially in the context of the 'war on terror' and 'a threat to national security'. Individuals subjected to either of these practices are in a sense in a prison within a prison and thus suffer an extreme form of anxiety and exclusion, which clearly supersede normal imprisonment. Owing to their isolation, prisoners held in prolonged or indefinite solitary confinement can easily slip out of sight of justice, and safeguarding their rights is therefore often difficult, even in States where there is a strong adherence to rule of law. (Para. 57).