The prohibition of torture is a peremptory norm in public international law—meaning that it is forbidden under all circumstances—as well as being forbidden by international treaties such as the United Nations Convention Against Torture.
United Nations Convention Against Torture The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into force in June 1987. The 4 most relevant articles are Articles 1, 2, 3, and 16.
Note several points: Article 1: Torture is "severe pain or suffering".ECHR Ireland v. United Kingdom judgment pp. 40,42, ¶ 167 "Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood." The European Court of Human Rights (ECHR) influences discussions on this area of international law. See the section Other conventions for more details on the ECHR ruling. Article 2: There are "no exceptional circumstances whatsoever where a state can use torture and not break its treaty obligations."PDF file of United Nations Committee Against Torture second report on United States of America (CAT/C/48/Add.3/Rev.1) 18 May 2006, Paragraph 14 Article 16: Obliges signatories to prevent "acts of cruel, inhuman or degrading treatment or punishment", in all territories under their jurisdiction.When ratifying the treaty the United States added a reservation that the definition of "cruel, inhuman or degrading treatment or punishment" meant "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."(Yee, Sienho (2004). International crime and punishment: selected issues, University Press of America, , p. 208, Footnote 18. cites Convention Against Torture, Annex I,I.). See also Torture and the United States.The unanimous Law Lords judgment on 8 December 2005 ruled that, under English law tradition, "torture and its fruits" could not be used in court (Torture evidence inadmissible in UK courts, Lords rules by Staff and agencies in The Guardian 8 December 2005). But the information thus obtained could be used by the British police and security services as "it would be ludicrous for them to disregard information about a ticking bomb if it had been procured by torture." (Torture ruling's international impact by Jon Silverman BBC 8 December 2005)
Optional Protocol to the UN Convention Against Torture The Optional Protocol to the Convention Against Torture (OPCAT) entered into force on 22 June 2006 as an important addition to the UNCAT. As stated in Article 1, the purpose of the protocol is to "establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment."Optional Protocol to the Convention Against Torture, United Nations, 18 December 2002. Each state ratifying the OPCAT, according to Article 17, is responsible for creating or maintaining at least one independent national preventive mechanism for torture prevention at the domestic level.
UN Special Rapporteur on Torture The United Nations Commission on Human Rights in 1985 decided to appoint an expert, a special rapporteur, to examine questions relevant to torture. The position has been extended up to date. On 1 November 2016, Prof. Nils Melzer, took up the function of UN Special Rapporteur on Torture. He warned that specific weapons and riot control devices used by police and security forces could be illegal.
Rome Statute of the International Criminal Court
The Rome Statute, which established the International Criminal Court (ICC), provides for criminal prosecution of individuals responsible for genocide, war crimes, and crimes against humanity. The statute defines torture as "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". Under Article 7 of the statute, torture may be considered a crime against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".Article 7 of the Rome Statute. Retrieved 11 June 2008. Article 8 of the statute provides that torture may also, under certain circumstances, be prosecuted as a war crime.Article 8 of the Rome Statute. Retrieved 11 June 2008.
The ICC came into existence on 1 July 2002Amnesty International, 11 April 2002. The International Criminal Court — a historic development in the fight for justice. Retrieved 11 June 2008. and can only prosecute crimes committed on or after that date.Article 11 of the Rome Statute. Retrieved 11 June 2008. The court can generally exercise jurisdiction only in cases where the accused is a national of a state party to the Rome Statute, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council.Articles 12 and 13 of the Rome Statute. Retrieved 11 June 2008. The court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.Articles 17 and 20 of the Rome Statute. Retrieved 11 June 2008. Primary responsibility to investigate and punish crimes is therefore reserved to individual states.International Criminal Court. Office of the Prosecutor. Retrieved 11 June 2008.
Geneva Conventions The four Geneva Conventions provide protection for individuals who fulfills the criteria of protected persons in an international armed conflict. The conventions do not clearly divide people into combatant and non-combatant roles. The conventions refer to: "wounded and sick combatants or non-combatants" "civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character"Fourth Geneva Convention, Article 15. "Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces" "Members of other militias and members of other volunteer corps, including those of organized resistance movements belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied" "Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power" "Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces" "Members of crews, including masters, pilots, and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict" "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units".Third Geneva Convention, Article 4
The first (GCI), second (GCII), third (GCIII), and fourth (GCIV) Geneva Conventions are the four most relevant for the treatment of the victims of conflicts. All treaties states in Article 3, in similar wording, that in a non-international armed conflict, "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms... shall in all circumstances be treated humanely." The treaty also states that there must not be any "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" or "outrages upon personal dignity, in particular, humiliating and degrading treatment".First Geneva Convention, 12 August 1949.Second Geneva Convention, 12 August 1949.Third Geneva Convention, 12 August 1949.Fourth Geneva Convention, 12 August 1949.
GCI covers wounded combatants in an international armed conflict. Under Article 12, members of the armed forces who are sick or wounded "shall be respected and protected in all circumstances. They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments".
GCII covers shipwreck survivors at sea in an international armed conflict. Under Article 12, persons "who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances, it being understood that the term "shipwreck" means shipwreck from any cause and includes forced landings at sea by or from aircraft. Such persons shall be treated humanely and cared for by the Parties to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments".
GCIII covers the treatment of prisoners of war (POWs) in an international armed conflict. In particular, Article 17 says that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind." POW status under GCIII has far fewer exemptions than "Protected Person" status under GCIV. Captured combatants in an international armed conflict automatically have the protection of GCIII and are POWs under GCIII unless they are determined by a competent tribunal to not be a POW (GCIII Article 5).
GCIV covers most civilians in an international armed conflict, and says they are usually "Protected Persons" (see exemptions section immediately after this for those who are not). Under Article 32, civilians have the right to protection from "murder, torture, corporal punishments, mutilation, and medical or scientific experiments...but also to any other measures of brutality whether applied by civilian or military agents."
Geneva Convention IV exemptions GCIV provides an important exemption:
Also, persons under their own national authority and nationals of a State not bound by the convention are not protected by it, and nationals of a neutral State in the territory of a combatant State and nationals of a co-belligerent State also cannot claim the protection of GCIV if their home state has normal diplomatic representation in the State that holds them (Article 4), as their diplomatic representatives can take steps to protect them. In other words, atrocities committed by belligerent troops against these non-protected persons in an international armed conflict are not war crimes.