OFFENCES AGAINST THE PERSON
5.3 TORTURE AS A CRIME UNDER INTERNATIONAL LAW
The prohibition of torture in international law is regulated by instruments whose primary purpose is the establishment of appropriate preventive and deterrent mechanisms. This forms part of a wider obligation undertaken by States in the context of human rights law.41Although these treaties envisage the application of criminal laws against the perpetrator, the purpose of these instruments is to form the basis of implementing domestic legislation and engage the responsibility of States parties.
It should not, therefore, be assumed that these treaties applymutatis mutandisto assess the criminal liability of the perpetrator under international law. The prohibition of torture as laid down in human rights treaties entails a right from which no derogation is permitted, as well as a norm ofjus cogens. This is confirmed by the fact that: it has been construed as such by domestic and international judicial bodies;42it has not been denied by any country; and, in Europe, at least, States are not permitted to return or extradite to another country persons that are in danger of being subjected to torture, or practices that have the same effect as torture.43TheFurundzijajudgment logically, therefore, concluded that international law not only prohibits torture, but also ‘(i) the failure to adopt the national measures necessary for implementing the prohibition and (ii) the maintenance in force or passage of laws which are contrary to the prohibition’.44
40 RR Churchill and AV Lowe,The Law of the Sea,1999, Manchester: Manchester UP, p 171.
41 ICCPR, Art 7.
42 Human Rights Committee, General Comment No 24 (4 November 1994), para 10;Siderman de Blake v Argentina,965 F 2d 699 (1992)cert denied; Argentina v De Blake,507 US 1017;Xuncax and Others v Gramajo,886 F Supp 162 (1995);ICTY Prosecutor v Furundzija,Judgment (10 December 1998), 38 ILM (1999), 317, paras 153–57.
43 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art 3, 1465 UNTS 85; 1969 Inter-American Convention on Human Rights, Art 13(4);
Soering v UK,Judgment (7 July 1989), EurCtHR, Ser A, No 161, para 91;Chahal v UK,Judgment (5 November 1996), EurCtHR, Ser A, No 22;C v Australia,Human Rights Committee, Com No 900/1999.
44 Furundzija,Judgment (10 December 1998), para 148.
5.3.1 Defining torture
The definition of torture under customary international law remains ambiguous. It is of course contained in one universal and a number of regional treaties, but the precise extra-conventional nature of these treaties and the crystallisation of a customary definition is itself doubtful. While the various instruments enjoy common elements, there is divergence generally on two issues: (a) the range of acts and the effect of acts that constitute torture; and (b) whether torture may be committed by persons other than State agents. We shall examine these issues in the following sections. It is useful, first of all, to consider the definition of torture, under the most widely ratified of the aforementioned instruments, the 1984 UN ConventionAgainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN Torture Convention). Art 1(1) defines the offence to mean:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the 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.
This definition coincides to a very large extent with the 1975 General Assembly Declaration on Torture, which was adopted by consensus.45However, the definition contained in Art 3 of the 1985 Inter-American Torture Convention46is broader than that of the 1984 UN Torture Convention, in that it does not require any threshold of pain or other suffering for an act of ill-treatment to constitute torture. In actual fact, neither physical nor mental suffering is required, if the intent of the perpetrator is ‘to obliterate the personality of the victim or to diminish his physical or mental capacities’.
This definition, moreover, does not contain an exhaustive list of purposes that can be pursued by the perpetrator but instead provides examples of such purposes and adds
‘or any other purpose’. The European Court and Commission of Human Rights have construed torture as constituting an aggravated and deliberate form of inhuman treatment which is directed at obtaining information or confessions, or at inflicting a punishment.47This definition echoes Art 1 of the 1975 Declaration on Torture.
International Criminal Tribunal for the Former Yugoslavia (ICTY) jurisprudence has put forward the proposition that under customary international law there is no requirement that the conduct be solely perpetrated for one of the prohibited purposes.48 Thus, in theFurundzijajudgment, the Court held that the intentional humiliation of
45 GA Res 3452(XXX) (9 December 1975), Declaration on the Protection of All Persons Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
46 25 ILM (1986), 519.
47 Ireland v UK,Judgment (18 January 1978) (1978) 2 EHRR 25, para 167;Greekcase (1969) ECHR Yearbook 134, p 186.
48 ICTY Prosecutor v Delalic and Others(Celebicicase), Judgment (16 November 1998), 38 ILM (1998), 57, para 470;ICTY Prosecutor v Kunarac and Others,Judgment (22 February 2001), para 486.
49 Furundzija,Judgment (10 December 1998), para 162. The judgment in the same case recognised that being forced to watch serious sexual attacks inflicted on a female acquaintance was torture for the forced observer, as is the presence of onlookers, particularly family members, on the person being raped, para 267.
the victim is among the possible purposes of torture, since this would be justified by the general spirit of international humanitarian law, whose primary purpose is to safeguard human dignity.49The Trial Chamber further justified this proposition by noting that ‘the notion of humiliation is, in any event, close to the notion of intimidation, which is explicitly referred to in the [1984] Torture Convention’s definition of torture’.50 This statement should be approached with extreme caution, since if true it would render the offences of ‘outrages upon personal dignity’ and ‘inhuman and degrading treatment’ redundant. This is more so because Trial Chamber II in theKrnojelaccase rejected the proposition espoused in the above mentioned judgments that intentional humiliation may constitute torture under customary law.51The common denominator of all the instruments to which reference was made points to the conclusion that the underlying act must be instrumental to achieve a particular purpose set out by the perpetrator. It is contentious whether customary law permits other forms of ill- treatment to constitute torture, but increasingly the use of rape, in particular, in the course of detention and interrogation as a means of intimidating, punishing, coercing or even humiliating the victim, or for obtaining information, or a confession, from the victim or a third person, has been recognised.52In theKrnojelacjudgment, the ICTY held that where confinement of the victim can be shown to pursue one of the prohibited purposes of torture and to have caused the victim severe pain or suffering, the act of putting or keeping someone in solitary confinement may amount to torture, and the same would be true in analogy of the deliberate deprivation of sufficient food.53
The distinguishing characteristic between torture and other lesser forms of ill- treatment is the severity of the pain or suffering of the victim. A precise threshold would be impractical to delineate and thus the task of assessment is left to the discretion of the judge. ICTY and European Court of Human Rights (ECHR) jurisprudence does not clearly set out a single test, whether objective or subjective.
Rather, they are in agreement that: (a) the severity of the harm rests on an objective test; whereas (b) the mental or physical suffering requires subjective assessment, involving consideration of factors such as the victim’s age, health, sex and others.54 The objective test regarding the severity of the harm may be triggered by beating, sexual violence, prolonged denial of sleep, food, hygiene, and medical assistance, as well as threats to torture, rape, or kill relatives, as well as mutilation of body parts.55 Torture in times of armed conflict is specifically prohibited by the 1949 Geneva Conventions56and the two Additional Protocols of 1977.57As we shall see below, the Kunaracjudgment concluded that whether or not international human rights law
50 Ibid,para 162.
51 ICTYProsecutor v Krnojelac,Judgment (15 March 2002), Case No IT-97–25-T, para 186.
52 Aydin v Turkey(1998) 25 EHRR 251, paras 82–84;Fernando and Raquel Mejia v Peru,Decision (1 March 1996), Report No 5/96, Case No 10,970, Annual Report of the IACHR (1995), Doc OEA/Ser L/V/II 91, pp 182–88;Furundzija,Judgment (10 December 1998), para 163.
53 Krnojelac,Judgment (15 March 2002), Case No IT-97–25-T, para 183.
54 Ireland v UK,Judgment (18 January 1978) (1978) 2 EHRR 25, para 162;ICTY Prosecutor v Kvocka and Others,Judgment (2 November 2001), para 143.
55 Kvocka,Judgment,ibid,para 144; confirmed also in the views of the UN Human Rights Committee inGrille Motta,Com No 11/1977;Miango Muiyo v Zaire,Com No 194/85;Kanana v Zaire,Com No 366/89;Herrera Rubio v Colombia,Com No 161/1983.
56 Common Art 3; Arts 12 and 50, Geneva I; Arts 12 and 51, Geneva II; Arts 13, 14 and 130, Geneva III;
Arts 27, 32 and 147, Geneva IV.
57 Protocol I, Art 75; Protocol II, Art 4.
generally recognises that only public officials or State agents can commit the crime of torture, international humanitarian law makes no such distinction, thus rendering any individual culpable of the offence, as long as the appropriatemens reaandactus reushave been satisfied.58
5.3.2 The ‘public official’ requirement of torture
As already examined, the definition of torture in Art 1 of the 1984 UN Torture Convention requires that the offence was perpetrated at the instigation, consent, or acquiescence of a public official. If this constitutes a generally mandatory requirement under treaty and customary law, the ambit of the offence becomes very narrow, with the result of excluding all cases of torture committed by non-State actors, such as guerrillas, paramilitaries and terrorists. We must distinguish between torture in the context of international humanitarian law and torture generally.
Under international humanitarian law, in particular the 1949 Geneva Conventions and the two 1977 Protocols, the presence, involvement or acquiescence of a State official or any other authority-wielding person is not required for the offence to be characterised as torture. The same is true of Arts 3 and 5 of the ICTY Statute. This conclusion was correctly drawn by theKunaracjudgment, which examined in detail all the relevant provisions of humanitarian law.59Moreover, Art 7(2)(e) of the International Criminal Court (ICC) Statute, concerning torture as a crime against humanity, does not impose the State actor requirement.
The inclusion, on the other hand, of non-State actors outside the ambit of humanitarian law is less clear. In a recent decision, the UN CommitteeAgainst Torture (CAT) held that a civilian pogrom against Roma settlers in Yugoslavia, which was tolerated by the police, constituted a violation of Art 16 of the 1984 UN Torture Convention (inhuman and cruel treatment). In a common dissenting opinion, two Committee members expressed the view that the acts could also be described as torture underArt 1.60The jurisprudence of the ECHR61and the UN Human Rights Committee62 clearly articulates that Arts 3 and 7 of the European Convention on Human Rights and of the ICCPR respectively may also apply in situations where organs or agents of the State are not involved in the violation of the rights protected under these provisions.
Although both the European Convention on Human Rights and the ICCPR are primarily human rights instruments and the jurisprudence of their respective enforcement mechanisms does not directly involve reference to criminal liability, it would be absurd to uphold one definition for human rights purposes and another with regard to international criminal law. The only doubtful issue in this scenario is whether the perpetration of torture by non-State agents would entail the responsibility of the State in which the offence took place. This question has been answered in the
58 Kunarac,Judgment (22 February 2001), paras 490–96.
59 Ibid;the following concurred with this statement:Krnojelac,Judgment (15 March 2002), para 187;
Kvocka,Judgment (2 November 2001), paras 138–39.
60 Hajrizi and Others v Yugoslavia,Com No 161 /2000, CAT Doc CAT/C/29/D/161/2000.
61 HLR v France,Judgment (29 April 1997) (1997) 26 EHRR 29, para 40;Costello-Roberts v UK,Judgment (25 March 1993) (1993) 19 EHRR 112, paras 27–28;A v UK,Judgment (23 September 1998) (1998) 27 EHRR 611, para 22.
62 General Comment No 7/16 (27 July 1982), para 2.
affirmative by the UN Human Rights Committee, in all cases where the State does not protect individuals from interference by private parties.63
Finally, mention should be made to the distinction made by theFurundzija judgment between complicity in torture and complicity in other offences. It held that co-perpetrators of torture are persons participating in an integral part of the torture process and who partake in the purpose behind its infliction (that is, confession, punishment, etc), whereas aiders and abettors in acts of torture assist the principal in a way that has a substantial effect on the perpetration of the crime, with knowledge that torture is taking place. In that case, the accused was held liable as co-perpetrator of a rape by virtue of his interrogation of the victim, which was found to constitute an integral part of the rape.64