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Prohibition of Torture in International Law

Torture cannot be justified under any circumstances. The UN has condemned torture as a denial of the purposes of its Charter and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights. Torture is also prohibited by most domestic legal systems in the world. Even where there is no specific crime of torture in domestic law, there are usually other laws under which the perpetrators can be held to account. Nevertheless, acts of torture and ill-treatment remain widespread across the world.

The international community has developed standards to protect people against torture that apply to all legal systems in the world. The standards take into account the diversity of legal systems that exist and set out minimum guarantees that every system should provide. Judges and prosecutors have a responsibility to ensure that these standards are adhered to, within the framework of their own legal systems. Even if a country has not ratified a particular treaty prohibiting torture, the country is in any event bound on the basis of general international law, because the prohibition of torture is so fundamental.[1]

The prohibition of torture in international law is notable in that it is absolute, applying at all times and in all circumstances. Article 5 of the 1948 Universal Declaration of Human Rights states: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ The right to be free from torture and other ill-treatment is taken up in major international and regional human rights treaties, including the International Covenant on Civil and Political Rights (1966), the European Convention on Human Rights (1950), the American Convention on Human Rights (1978) and the African Charter on Human and People’s Rights (1981). In 1984 the UN adopted the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, highlighting the particular attention given to this absolute prohibition, and providing additional rules to assist in prevention and investigation.

The prohibition of torture is the concern not only of those countries which have ratified particular treaties, but is also a rule of general or customary international law, which binds all states even in the absence of treaty ratification. In fact, the prohibition of torture is generally regarded as having the special status of a ‘peremptory norm’ of international law, and states cannot choose to disregard or derogate from it.

In addition to international law, many national laws will also include a prohibition of torture. However, the lack of a clear prohibition in domestic law will not release the state from its international legal obligations to refrain from and prevent torture under all circumstances, and to investigate allegations, punish perpetrators, and provide reparations to victims.

The prohibition against torture and other ill-treatment extends even to times of armed conflict, whether the conflict is international (between countries) or internal (within a single country). In times of conflict all parties have to refrain from subjecting anyone in their hands to torture and other ill-treatment, whether they are combatants taking part in the fighting, whether they no longer take part in the fighting (e.g. due to being detained, or being wounded or sick) or whether they are civilians. International humanitarian law, of which the Geneva Conventions form a part, contains laws protecting people in times of armed conflict. The prohibition against torture in humanitarian law is expressly found in a number of provisions of the four 1949 Geneva Conventions and their Additional Protocols of 1977. An act of torture committed in the context of an armed conflict is a war crime.

Torture is also considered to be a crime against humanity when the acts are perpetrated as part of a widespread or systematic attack against a civilian population, whether or not they are committed in the course of an armed conflict.

Under international law, the use of torture can be regarded as both the responsibility of the state itself and the individual criminal responsibility of persons involved. Those who carry out the act of torture can be tried in domestic and international courts.

In summary, the strong and unequivocal prohibition of torture means that torture can never be justified, in any situation, including public emergencies and even war. No case of torture, whatever the circumstances, can be ignored.

A number of UN bodies have been created by particular conventions to monitor compliance with these standards and provide guidance on how they should be interpreted. These bodies generally issue general comments and recommendations, review reports by states parties and issue concluding observations on the compliance of a state with the relevant convention. Some also consider complaints from individuals who claim to have suffered violations. In this way they can provide authoritative interpretations of the treaty provisions and the obligations that these place on states parties.

[1] Article 38 of the Statute of the International Court of Justice lists the means for determining the rules of international law as: international conventions establishing rules, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations and judicial decisions and the teaching of eminent publicists. General international law (customary international law) consists of norms that emanate from various combinations of these sources.