Torture and Cruel, Inhuman or Degrading Treatment

Humane treatment

The principle of humane treatment is at the core of IHL. The norm, which must be respected in both IACs and NIACs,¹ underpins the absolute prohibition that IHL attaches to two sets of conducts – i.e., torture, on the one hand, and cruel, inhuman or degrading treatment, on the other. Although equally prohibited under IHL,² torture and cruel, inhuman or degrading treatment constitute different forms of ill-treatment, and should be interpreted in light of the definitions and details provided by international human rights law and international criminal law.³

Torture

Torture is defined as the intentional infliction on a person of severe mental or physical pain or suffering for a specific purpose, such as the extraction of information or confession, punishment, intimidation, coercion or discrimination.⁴ Under human rights law, torture must be inflicted, instigated, consented or acquiesced to by a public official or other person acting in an official capacity.⁵ However, IHL (as interpreted in particular by the International Criminal Tribunal for the former Yugoslavia (ICTY)) foresees that torture might also be committed by a member of a non-state armed group⁶ or an individual regardless of their official status.⁷

Cruel and inhuman treatment

Cruel and inhuman treatment refers to acts that cause serious mental or physical suffering or injury, or constitute a serious attack on human dignity that goes beyond mere degradation or humiliation.⁸ The notion of cruel treatment is intrinsically linked to human dignity,⁹ and determining whether a specific behaviour constitutes cruel treatment must be assessed on a case-by-case basis.¹⁰ While torture requires specific intent and purpose, cruel and inhuman treatment may also result from negligence or the general conditions of deprivation of liberty under international human rights law; on its part, international criminal law does not require a specific intent but excludes negligence.¹¹

Degrading treatment

Degrading treatment constitutes the less severe form of ill-treatment, which does not need to cause severe pain or suffering, but intends or results in the humiliation of the victim.¹² The threshold of severity is fulfilled when the conduct inflicts a real and serious humiliation or degradation to the victim or otherwise constitutes a serious attack on human dignity, ICTY, Prosecutor v Kunarac and Others, Judgment, Cases no IT-96-23 and IT-96-23/1 (Trial Chamber), 22 February 2001, paras 501 and 507 which would be so intense ‘as to be generally recognized as an outrage upon personal dignity’.¹³

Grave breach and war crimes

When committed in the context of an IAC and against protected persons, torture or inhuman treatment amounts to a grave breach of the Geneva Conventions.¹⁴ Torture and inhuman/cruel treatment, as well as humiliating and degrading treatment, are listed as war crimes that fall under the jurisdiction of the ICC in both IACs and NIACs.¹⁵ In conformity with these prohibitions, certain forms of punishment are specifically outlawed by IHL.¹⁶

1
Common Art 3 GCs; Art 12(1) GC I; Art 12(1) GC II; Art 13 GC III; Arts 5 and 27(1) GC IV; Art 75(1) AP I; Art 4(1) AP II; ICRC, Customary IHL Rule 87: ‘Humane Treatment’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule87
2
Torture, cruel, inhuman or degrading treatment are prohibited under Geneva Conventions I–IV in Common Article 3(1)(a); Art 12(2) GCs I and II; Arts 13(1), 14(1), 17(4), 87(3), 89(3) and 108 GC III; Arts 27, 31, 32, 118 and 119 GC IV; Art 75(2) AP I; Art 4 AP II; ICRC, Customary IHL Rule 90: ‘Torture and Cruel, Inhuman or Degrading Treatment’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule90
3
M. Nowak and R. Janik, ‘Torture, Cruel, Inhuman, or Degrading Treatment or Punishment’, in A. Clapham et al (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press (Oxford, 2015), pp 319–320, paras 5–7; C. Droege, ‘“In Truth the Leitmotiv”: The Prohibition of Torture and Other Forms of Ill-Treatment in International Humanitarian Law’, 89 IRRC 867 (2007), pp 515–541, at p 517
4
Art 1(1), Convention against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment (CAT). See also Art 7(2)(e), ICC Statute (crime against humanity); ICC, Elements of crimes, Arts 8(2)(a)(ii)–1 and 8(2)(c)(i)–4, ‘War crime of torture’. See also M Nowak and R Janik, ‘Torture, Cruel, Inhuman, or Degrading Treatment or Punishment’, in A. Clapham et al (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press (Oxford, 2015), pp 320, 324, 326 and 341, paras 8, 17, 24 and 93
5
Art 1(1) CAT
6
See the wording of Common Art 3 GCs (‘each party to the conflict’); ICTY, Prosecutor v Kunarac and Others, Cases no IT-96-23 and IT-96-23/1 (Trial Chamber), 22 February 2001, para 491, confirmed by the Appeals Chamber Judgment, 12 June 2002, para 148; ICTY, Prosecutor v Kvočka et al, Case no IT-98-30/1-A (Appeals Chamber), 28 February 2005, para 284.
7
ICTY, Prosecutor v Kunarac and Others, Cases no IT-96-23 and IT-96- 23/1 (Trial Chamber), 22 February 2001, paras 494 and 496, confirmed by the Appeals Chamber Judgment, 12 June 2002, para 148. See also M Nowak and R Janik, ‘Torture, Cruel, Inhuman, or Degrading Treatment or Punishment’, in A. Clapham et al (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press (Oxford, 2015), pp 324–326 and 336, paras 19–24 and 68
8
ICTY, Prosecutor v Delalić and Others, Judgment, Case no IT-96-21 (Trial Chamber), 16 November 1998, para 543; ICTY, Prosecutor v Naletilic and Martinovic, Judgment, Case no IT-98-34-T (Trial Chamber) 31 March 2003, para 246; ICTY, Prosecutor v Kordic and Cerkez, Judgment, Case no IT-95- 14/2 (Trial Chamber), 26 February 2001, para 256; ICTY, Prosecutor v Blaškić, Judgment, Case no IT-95-14 (Trial Chamber), 3 March 2000, paras 154–155. See also C. Droege, ‘“In Truth the Leitmotiv”: The Prohibition of Torture and Other Forms of Ill-Treatment in International Humanitarian Law’, 89 IRRC 867 (2007), pp 515–541, p 520
9
ICRC, Updated Commentary on GC I, 2016, para 557; ICRC, Updated Commentary on GC III, 2020, paras 1570 and 1574–1575. See also C. Droege, ‘“In Truth the Leitmotiv”: The Prohibition of Torture and Other Forms of Ill-Treatment in International Humanitarian Law’, 89 IRRC 867 (2007), pp 515–541, at p 521.
10
ICRC, Updated Commentary on GC I, 2016, para 553; Human Rights Committee, Vuolanne v Finland, 2 May 1989, UN Doc CCPR/C/35/D/265/1987, para 9.2; European Court of Human Rights, Kudła v Poland, Judgment, 26 October 2000, paras 90–94; African Commission on Human and Peoples’ Rights, Huri-Laws v Nigeria, Comm no 225/98, Fourteenth Activity Report, (2000) AHRLR 273, para 41; ICTY, Prosecutor v Limaj and Others, Judgment, Case no IT-03-66-T (Trial Chamber), 30 November 2005, para 232. See also C. Droege, ‘“In Truth the Leitmotiv”: The Prohibition of Torture and Other Forms of Ill-Treatment in International Humanitarian Law’, 89 IRRC 867 (2007), pp 515–541, at pp 522–52
11
Human Rights Committee, Deidrick v Jamaica, Views (Comm no 619/1995), 9 April 1998, para 9.3; ICC Statute and Elements of Crimes, Arts 8(2)(a)(ii) and 8(2)(c)(i). See also M Nowak and R Janik, ‘Torture, Cruel, Inhuman, or Degrading Treatment or Punishment’, in A. Clapham et al (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press (Oxford, 2015), pp 321, 329–330, 332 and 341, paras 10, 36, 45–46 and 94
12
European Court of Human Rights, Tyrer v United Kingdom, Judgment, 25 April 1978, para 32; Human Rights Committee, Osborne v Jamaica, Comm no 759/1997, UN Doc CCPR/C68/D/759/1997 (2000); Inter-American Court of Human Rights, Winston Caesar v Trinidad and Tobago, Judgment, 11 March 2005, Series C, no 123 (2005). See also M Nowak and R Janik, ‘Torture, Cruel, Inhuman, or Degrading Treatment or Punishment’, in A. Clapham et al (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press (Oxford, 2015), paras 11–12, 49, 53 and 93
13
ICC, Elements of Crimes, Arts 8(2)(b)(xxi) and 8(2)(c)(ii), ‘War crime of outrages upon personal dignity’. See also ICTY, Prosecutor v Zlako Aleksovski, Judgment, Case no IT-95-14/I-T (Trial Chamber), 25 June 1999, para 54; ICTY, Prosecutor v Kunarac and Others, Judgment, Case no IT-96-23 and IT-96-23/1 (Trial Chamber), 22 February 2001, para 507
14
Arts 50, 51, 130 and 147 Geneva Conventions I–IV, respectively
15
Arts 8(2)(a)(ii), 8(2)(b)(xxi) and (8)(2)(c)(i)-(ii), ICC Statute
16
Arts 17, 87, 89 and 108 GC III; Arts 32 and 118 GC IV