Provisions Contained in Human Rights Conventions

Three specific instruments prohibit torture and cruel, degrading, or inhumane treatment:

• At the international level: the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (known as the Convention against Torture, or CAT), adopted on 10 December 1984 by the UN General Assembly and entered into force in 1987. This Convention has 158 States Parties as of June 2015. The Convention created the Committee against Torture, which monitors implementation of the Convention by its States Parties. All States Parties are obliged to submit regular reports to the Committee on how the rights are being implemented nationally. Under certain circumstances, the Committee may also consider individual complaints or communications from individuals claiming that their rights under the Convention have been violated, undertake inquiries, and consider interstate complaints (Arts. 17–24). ▸ State of Ratification of Humanitarian Law and Human Rights Conventions, no. 14
• At the regional level:

—The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, adopted on 26 November 1987 by the Council of Europe and entered into force on 1 February 1989. Forty-seven States have ratified it as of February 2013. ▸ State of Ratification of Humanitarian Law and Human Rights Conventions, no. 15

—The Inter-American Convention to Prevent and Punish Torture, adopted on 9 December 1985 under the aegis of the Organization of American States (OAS) and entered into force on 28 February 1987. It currently has eighteen States Parties. ▸ State of Ratification of Humanitarian Law and Human Rights Conventions, no. 16

The Convention against Torture defines torture as

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” for purposes such as:

• obtaining information or a confession from the individual or a third person;
• punishing an individual for an act he or she, or a third person, committed or is suspected of having committed;
• intimidating or coercing the individual or a third person;
• any reason based on discrimination of any kind.

Such pain and suffering is inflicted by, at the instigation of, or with the express or implicit consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions (Art. 1).

This definition imposes the existence of several cumulative conditions. Indeed, it is completed by the obligation for each State Party to prevent acts of cruel, inhuman, or degrading treatment or punishment that do not amount to torture, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (Art. 16).

The definition provides a broad interpretation of the position of “public official.” Indeed, the acts of torture remain covered by the definition and attributable to the State or its agents, even if they are not directly committed by him or her but with his or her “consent or acquiescence.” This consent or acquiescence can be presumed in cases where the State fails to comply with other essential obligations imposed by the Convention, such as investigating acts of torture, sanctioning the authors of such acts, and ensuring effective remedies for victims.

Indeed, under the international Convention, State Parties shall ensure that education and information regarding the prohibition against torture are fully included in the training of civil or military law enforcement personnel, medical personnel, public officials, and other persons who may be involved in the custody, interrogation, or treatment of any individual subjected to any form of arrest, detention, or imprisonment. States Parties shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person (Art. 10).

States Parties shall keep under systematic review interrogation rules, instructions, methods, and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention, or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture (Art. 11).

States Parties shall also ensure that their competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction (Art. 12).

They shall ensure that any individual who alleges he has been subjected to torture benefits from judicial remedies and receives compensation (Arts. 13–14).

Finally, States Parties shall ensure that any statement that is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made (Art. 15).

The Convention against Torture provides that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture (Art. 2.2). Moreover, an order from a superior officer or a public authority may not be invoked as a justification of torture (Art. 2.3).

The Convention prohibits States Parties to expel, return ( refouler ), or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture (Art. 3).

States Parties shall ensure that all acts of torture are offences under their criminal law (Art. 4), and as such shall put to trial any of their agents who engage in such practices. State Parties shall also take appropriate legislative measures as may be necessary to establish their jurisdiction when the offences are committed in any territory under their jurisdiction, when the alleged offender is a national of that State, or when the victim is a national of that State if that State considers it appropriate (Art. 5).

This is the application of the principle of universal jurisdiction, used at the international level for the most serious crimes.

The circumscription of the definition of torture to acts committed by State agents can be explained by the willingness to concentrate the mechanism of international repression on acts for which the capacity and readiness of national authorities to punish such acts will be deficient. Cruel, inhumane, or degrading treatment perpetrated by individuals or groups who would not be State agents are not covered by the definition of the Convention against Torture (CAT). They remain, however, prohibited and punished under national and international criminal law.

The definition of torture contained in the Inter-American Convention to Prevent and Punish Torture includes the notion of mental or psychological torture, defined as the “use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish” (Art. 2). This Convention restates the main provisions and obligations contained in the Convention against Torture. It specifies and adapts them to the regional framework, notably the obligations linked to extradition and the principle of universal jurisdiction, and those guaranteeing suitable compensation for victims of torture (Art. 9). It does not create any specific committee, but the Inter-American Court and Commission are competent to examine crimes of torture.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment completes the prohibition of torture contained in Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Those two instruments do not give a definition of torture, but they provide mechanisms of prevention and repression. The Convention created a Committee for the Prevention of Torture (CPT, see relevant entry). This Committee is mandated to visit any places of detention in the territory of members of the Council of Europe. The European Court of Human Rights is competent to receive and rule on complaints concerning acts of torture that would constitute violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Torture is also prohibited by international or regional conventions relative to human rights law and in a broader sense by humanitarian law:

• The 1949 Universal Declaration of Human Rights (Art. 5);
• The 1966 International Covenant on Civil and Political Rights (Art. 7);
• The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 3);
• The 1978 American Convention on Human Rights (Art. 5);
• The 1981 African Charter for Human and People’s Rights (Art. 5);
• The 1949 Geneva Conventions (Common Art. 3);
• The 1977 First Additional Protocol to the Geneva Conventions (Art. 75.2);
• The 1977 Second Additional Protocol to the Geneva Conventions (Art. 4.2);
• The 1998 Statute of the International Criminal Court (Arts. 7–8).

Provisions of International Humanitarian Law (IHL)

In armed conflict, the Convention against Torture remains applicable since it authorizes no derogation, even in times of war.

Humanitarian law also prohibits all forms of torture or cruel, inhumane, or degrading treatment. Nonetheless, it does not reproduce the restrictive conditions contained in the Convention against Torture concerning the specific intention of torture or the position of State agents of the torturer.

Indeed, in armed conflict, the prohibition and the prevention of torture is intended to apply to all parties to the conflicts, not only State actors but also non-state armed groups who control and detain individuals, whatever the nationality or the nature of this non-state actor.

The Geneva Conventions strictly prohibit torture, at all times and in all circumstances. They provide that no physical or mental torture, nor any other form of coercion, may be inflicted on protected persons (civilians, wounded and sick, prisoners of war, or detained persons), notably to secure from them information of any kind whatever (GIII Art. 17, GIV Art. 31).

IHL includes in its definition of torture intentional violence to the life, health, physical or mental well-being, but also “outrages upon personal dignity, in particular humiliating and degrading treatments” toward persons who are not, or no longer, taking part in the hostilities (GIII Art. 17, API Art. 75.2, APII Art. 4.2). Those acts are prohibited at any time and in any place (GCI–V Common Art. 3). This definition covers torture under all its forms, physical or psychological. The 1977 Additional Protocols to the Geneva Conventions applicable to international and non-international armed conflicts reinforced this prohibition, reaffirming that such acts could be physical or mental (API Art. 75, APII Art. 4).

Common Article 3 to the four Geneva Conventions places on the same level of formal prohibition outrages on physical integrity, including murder of all kinds; mutilation; cruel treatment and torture; and outrages on personal dignity, in particular humiliating and degrading treatments (GIV Art. 3.1.a, c). Humanitarian law prohibits but does not define ill treatments. This category embraces outrages on personal dignity, as well as humiliating, inhumane, or degrading treatments.

Rule 90 of the study on the rules of customary international humanitarian law published by the ICRC in 2005 provides that “torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited.” This rule is applicable in international and non-international armed conflicts.

Humanitarian law organizes the prevention of torture by setting up minimal guarantees for all persons deprived of their liberty, whatever their status. These are fundamental and judicial guarantees as well as guarantees of treatment in case of detention.

The 1949 Geneva Conventions clearly establish that torture is a grave breach of humanitarian law, that is, a war crime, if committed in an international armed conflict (GCI Arts. 12, 50; GCII Arts. 12, 51; GCIII Arts. 17, 87, and 130; GCIV Arts. 31, 32, and 147). In non-international armed conflicts, humanitarian law does not provide such a mechanism of international repression. This vacuum has, however, partially been filled by the Statute of the International Criminal Court.

▸ Detention ▸ Fundamental guarantees ▸ Ill treatment ▸ Judicial guarantees ▸ Prisoners of war ▸ Universal jurisdiction

Provisions of International Criminal Law

The Statute of the International Criminal Court (ICC), which was adopted in July 1998 and entered into force in 2002, also includes physical and psychological torture in the definition of war crimes and crimes against humanity over which it has jurisdiction. 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” constitutes a crime against humanity under Article 7.e of the Statute when committed as part of a plan or policy or a large-scale attack against the population. It is also a war crime if it is committed in an armed conflict and in relation to it (Art. 8.2.a.ii-iii; 8.2.c.i of ICC Statute).

War crimes also include outrages upon personal dignity and humiliating and degrading treatment, which are not considered as torture (Art. 8.2.c.ii).

The definition of torture contained in the ICC Statute does not make reference to the criterion of public official or State agent nor to the criterion relative to the specific intention of the torturer, two criteria contained in the Convention against Torture.

▸ War crimes/Crimes against humanity

Provisions of Refugee Law

Fleeing from torture or fear thereof is a legitimate ground for refugees to seek asylum in another State. In laying out the principle of non-refoulement, the 1951 Convention Relating to the Status of Refugees clearly posits that “no Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” (Article 33 of Refugee Convention).

The Torture Convention reaffirms this by establishing that “no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” (Article 3.1 of the Convention against Torture). It also notes that torture is one of the extraditable offenses in any extradition treaty between States.

In the light of those provisions, it appears that when a State tries to escape the prohibition of torture by transferring detainees to the territory of States where torture is authorized constitutes an obvious violation of the prohibition of the imperative principle of non-refoulement and the Convention against Torture.

▸ Refoulement (forced return) and expulsion

Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

These principles were adopted by the UN General Assembly on 18 December 1982 (Resolution 37/194). They go beyond the principles of medical ethics established by the Nuremberg Code in 1947, which was limited to the issue of medical experiments on prisoners. They reinforce the rules relative to medical action contained in the Standards Minimum Rules for the Treatment of Prisoners adopted by the UN in 1977, as well as international and national rules of medical ethics.

Besides, they complete the provisions of humanitarian law applicable in international and non-international armed conflicts, which regulate the performance of medical duties toward all persons detained or deprived of their liberty, whatever the reason for their detention or the nature of the detaining authorities.

This document lists six core principles specifically applicable in situations of detention.

• It imposes on health personnel a rule of non-discrimination and equal medical treatment regardless of the condition of the persons concerned: “health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained” (Principle 1).
• It specifies the circumstances in which those practices constitute a violation of medical ethics and give rise to the responsibility of health personnel. This responsibility is incurred including as a result of passive complicity in the ill treatments. Passive complicity is acquired as soon as health personnel follow goals other than evaluating, protecting, or improving the physical and mental health of the persons concerned: “It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment” (Principle 2).
• “It is a contravention of medical ethics for health personnel, particularly physicians, to be involved in any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect or improve their physical and mental health” (Principle 3).
• “It is a contravention of medical ethics for health personnel, particularly physicians: (a) To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments; (b) To certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, or to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant international instruments” (Principle 4).
• “It is a contravention of medical ethics for health personnel, particularly physicians, to participate in any procedure for restraining a prisoner or detainee unless such a procedure is determined in accordance with purely medical criteria as being necessary for the protection of the physical or mental health or the safety of the prisoner or detainee himself, of his fellow prisoners or detainees, or of his guardians, and presents no hazard to his physical or mental health” (Principle 5).
• Finally, the document recalls that “there may be no derogation from the foregoing principles on any ground whatsoever, including public emergency” (Principle 6).

▸ Detention ▸ Medical ethics

Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol)

In 2004, the Office of the High Commissioner for Human Rights adopted a Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, known as the Istanbul Protocol. This document recalls the international rules concerning the prohibition of torture and the specific obligation of States with regard to prevention and repression (paras. 1–47). It develops tangible elements relative to the obligation of States to investigate these situations in an effective and impartial manner. It gives practical guidelines concerning the collection of testimonies and other judicial and medical evidence on the documentation of torture. It also specifies the ethical obligations that rest on legal professions (paras. 49–50) and medical professions (paras. 51–56) confronted in their work with victims of torture.

The Manual enumerates the obligations of physicians in the documentation of torture and ill treatment and the prohibition of any participation in this type of practice. The rules specify the list of medical activities that constitute a participation of the physician in torture. “Participation in torture” includes (1) evaluating an individual’s capacity to withstand ill treatment; (2) being present at, supervising, or inflicting maltreatment; (3) resuscitating individuals for the purposes of further maltreatment or providing medical treatment immediately before, during, or after torture on the instructions of those likely to be responsible for it; (4) providing professional knowledge or individuals’ personal health information to torturers; and (5) intentionally neglecting evidence and falsifying reports, such as autopsy reports and death certificates (para. 53).

Finally, these rules recall that physicians can be confronted by dual obligations that they must arbitrate. This is particularly the case between the duty to provide care and the duty not to participate in ill treatment, but also between medical confidentiality and the obligation to report certain medical information to the authorities for security or judicial reasons (paras. 66–73).

The Manual enumerates the rules and ethical principles that must be used to resolve those dilemmas. Those principles are:

• The absolute prohibition of doing harm to the patient;
• The obligation for the physician to inform the patient in every circumstance of the nature of his or her mission and any external pressures or constraints;
• The obligation to obtain the patient’s consent for all medical or medico-legal acts; and
• The obligation to respect medical confidentiality in case of doubt, if alerting the authorities on a situation can put the patient at risk.

The Manual also gives advice concerning the best way to investigate those situations and to visit places of detention to ensure quality of care and avoid putting victims and witnesses at risk (paras. 74–119, 120–60). It also provides guidelines for medical evaluation of torture and ill treatment (Annex IV), as well as templates of physical and psychological medical examinations, which help to document torture and ill treatment (paras. 161–233, 234–315).

▸ African Commission and Courts on Human Rights ▸ Committee against Torture ▸ Corporal punishment ▸ European Committee for the Prevention of Torture ▸ European Court of Human Rights ▸ Fundamental guarantees ▸ Human Rights Committee ▸ Ill treatment ▸ Individual recourse ▸ Inter-American Court of, and Commission on, Human Rights ▸ International Criminal Court ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity

▸ List of States Party to International Humanitarian Law and Human Rights Conventions (nos. ▸ 14, 15, and 16)