Applicable law The prohibition against torture is one of the clearest and strongest norms in international law.461 Torture during armed conflict is both a violation of international humanitarian law and a breach of international criminal law (see chap. I, sect. E). Torture must not be balanced against national security interests or even the protection of other human rights. No limitations are permitted on the prohibition of torture.462In addition, international humanitarian law explicitly prohibits the torture and cruel treatment of persons taking no active part in hostilities - including members of armed forces who have laid down their arms or been rendered hors de combat.463 Such conduct constitutes a war crime.
All persons detained in connection with an armed conflict must be treated humanely.464 At the end of the armed conflict, persons deprived of their liberty enjoy the protection afforded under Articles 5 and 6 of Protocol II until their release.465
Torture can form part of a crime against humanity.466 The “Elements of Crimes” of the ICC sets out the following elements for the crime of torture during armed conflict:
The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
The perpetrator inflicted the pain or suffering for such purposes as:
obtaining information or a confession;
intimidation or coercion;
or for any reason based on discrimination of any kind.
The definitions in the United Nations Convention Against Torture and other human rights instruments (which would apply at all times covered by this report) are substantially the same, reflecting the international consensus on torture’s prohibition.467
The definition provides that “severe” pain must be inflicted.468 International tribunals and human rights bodies have, to date, found the following acts constituted torture: kicking, beating, hitting, “falaqa,” (beating on the soles of the feet), flogging, shaking violently, inflicting electric shocks, burning, subjecting the victim to “water treatment,”469 extended hanging from hand and/or leg chains, and suffocation/asphyxiation.470 Mental torture has been found where the perpetrator threatened the victim with death or simulates an execution, while having the means to carry it out.471 These acts have been held to constitute torture irrespective of any subjectively experienced pain of the victim.
In its General Comment, the Committee Against Torture made clear that there is an obligation on all state authorities with respect to torture.472 Any official who has reasonable grounds to believe that acts of torture or ill-treatment are being committed is obliged to prevent, investigate, prosecute and punish.473 Otherwise, the State bears responsibility and its officials will be individually considered as complicit or otherwise responsible “for acquiescing in such impermissible acts.”474 Investigations should be conducted in accordance with the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.475
The United Nations has developed a comprehensive set of standards to be enforced in places of detention.476 The overriding principles, based in international humanitarian law and international human rights law, are humane treatment and non-discrimination.477 Particularly relevant here is Protection Principle 7 which requires that all maltreatment of detainees is investigated and punished.478