“global violence: consequences and responses” deprivation of liberty in armed conflict and other...

“Global Violence: Consequences and Responses”

Deprivation of liberty in armed conflict and other situations of violence – Legal Aspects

The Crime of Torture

Manfred NowakProfessor for International Human Rights Protection, University of Vienna

Director, Ludwig Boltzmann Institute of Human Rights, ViennaUN Special Rapporteur on Torture

Sanremo, 10 September 2010

UN Special Rapporteur on Torture


1. Absolute Prohibition of Torture and Ill-Treatment

2. Three Types of Ill-Treatment under IHRL and IHL

3. Torture: Differences between IHRL and IHL

4. International Criminal Law

5. Conclusions

Overview


1. Absolute Prohibition of Torture and Ill-Treatment

The prohibition of torture, cruel, inhuman and degrading treatment and punishment is one of few absolute and non-derogable rights under both IHRL and IHL.

IHRL: Art. 7 and 4 CCPR; Art. 1, 2 and 16 CAT; Art. 3 and 15 ECHR; Art. 5 and 27 ACHR; Art. 5 AfrCHPR.

IHL: Art. 3 GCs; grave breaches provisions of GCs (Arts. 50, 51, 130, 147); Arts 12 GCs I and II; Arts 17(4) and 87(3) GC III; Arts 31 and 32 GC IV; Art. 75 AP I; Art. 4 AP II.


Degrading or humiliating treatment (outrages upon personal dignity): infliction of pain or suffering with a particularly humiliating or insulting effect, such as performing subservient acts, hazing, use of human shields, forced nudity, sexual harassment, humiliating prison conditions, slapping, hair-pulling, light forms of corporal punishment etc.

Cruel/inhuman treatment: infliction of severe pain or suffering without the aggravating circumstances of torture: excessive use of force outside detention, harsh and inhuman prison conditions, cruel treatment by negligence or in a reckless manner, prolonged solitary confinement or incommunicado detention, hard labour, mutilation and similar forms of corporal punishment, biological experiments.

Torture: deliberate infliction of severe pain or suffering, whether physical or mental, on a powerless person (in detention or under the direct control of the perpetrator) for a specific purpose, such as the extraction of a confession or information, intimidation, discrimination.

2. Three Types of Ill-Treatment under IHRL and IHL


Involvement of a public official: IHRL (Art. 1 CAT) requires at least acquiescence by a public official; under IHL also rebel groups are accountable for torture.

Purpose: Under IHRL (Art. 1 CAT), the purpose is the decisive criterion distinguishing torture from inhuman treatment. The same holds true for torture as a war crime (common Art. 3 and grave breaches provisions of the GCs; Arts. 8(2)(a)(ii) and 8(2)(c)(i) ICC Statute), but not for torture as a crime against humanity (Art. 7(2)(f) ICC Statute and Elements of Crime).

Custody or direct control: Explicitly required under IHL and the ICC Statute (Art. 7(2)(f) and the Elements of Crime in relation to torture as a crime against humanity and a war crime) and implicitly required by the criterion of powerlessness under IHRL.

3. Torture: Differences between IHRL and IHL


IHRL: Every single act of torture (but not CIDT) must be criminalized under domestic law with broad criminal jurisdiction, including universal jurisdiction (Arts. 4 to 9 CAT).

Crimes against humanity: If torture (but not CIDT) is practiced as part of a widespread or systematic attack against any civilian population in times of peace or war, the perpetrators must be brought to justice before domestic courts or international criminal tribunals.

War crimes: Every single act of torture and inhuman treatment (not degrading treatment or outrages upon human dignity) constitutes a grave breach under the GCs and perpetrators must be brought to justice before domestic courts (under the principle of universal jurisdiction) or before international criminal tribunals. Degrading treatment (outrages upon human dignity) constitutes a serious violation of the laws and customs applicable in international and non-international armed conflicts, and perpetrators must be brought to justice before domestic or international tribunals.

4. International Criminal Law


In times of armed conflict, both IHRL and IHL are applicable. Partly, IHL provides better protection; in other respects, IHRL provides better protection and shall be applied as ‘lex specialis’.

IHL also creates binding obligations for non-State actors, such as rebel groups, whereas IHRL requires at least acquiescence by a State official.

Under IHL, every single act of torture, cruel, inhuman or degrading treatment constitutes a war crime whereas under IHRL, only torture must be criminalized under domestic law and only torture constitutes a crime against humanity (if practiced as part of a widespread or systematic attack).

Under the Rome Statute, torture as a crime against humanity goes beyond the definition of torture under IHRL as it lacks the requirement of a specific purpose.

5. Conclusions


In certain respects, IHL is more detailed than IHRL and, therefore, provides better protection: e.g. conditions of detention (GC III whereas IHRL lacks a specific convention on the rights of detainees) and corporal punishment (absolute prohibition under various provisions of the GCs, such as Art. 87(3), 89 and 108 GC III; Articles 32, 118 and 119 GC IV; Article 75 AP I; Article 4 AP II; whereas under IHRL corporal punishment is still a highly controversial issue despite clear jurisprudence prohibiting any form of corporal punishment).

In other respects, IHRL is more detailed and provides better protection than IHL: e.g. The obligation to prevent torture and ill-treatment by specific obligations (Art. 2, 10, 11, 12, 15 CAT); the principle of non-refoulement (Art. 3 CAT); and the obligation to provide victims of torture with an effective remedy and adequate reparation for the harm suffered (Art. 13 and 14 CAT).

5. Conclusions (cont’d)

UN Special Rapporteur on TortureUN Special Rapporteur on Torture

Questions & Answers

Discussion


UN Special Rapporteur on Torture, OHCHR, Geneva:http://www.ohchr.org/english/issues/torture/rapporteur/

Ludwig Boltzmann Institute of Human Rights, Vienna:http://univie.ac.at/bim

Atlas of Torturehttp://www.atlas-of-torture.org

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