Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
Colombia’s Circular on Fundamental Rules of IHL (1992) provides: “Nobody shall be subjected to mental or physical torture … cruel or degrading treatment.”
Colombia’s Basic Military Manual (1995) provides that persons hors de combat
, the wounded and sick, and detained persons shall not be subjected to torture or cruel or humiliating treatment.
The manual adds that the civilian population shall not be tortured.
The manual restates the provisions of common Article 3 of the 1949 Geneva Conventions.
Colombia’s Penal Code (2000) punishes anyone who, during an armed conflict, carries out or orders the carrying out of acts of torture, serious wounding of protected persons or inhuman and degrading treatment.
In 1995, Colombia’s Constitutional Court held that the prohibitions contained in Article 4(2) of the 1977 Additional Protocol II coincided with the protection of human dignity and life and the prohibition of cruel, inhuman and degrading treatment established by Articles 11 and 12 of the Constitution.
In 2005, in the Constitutional Case No. C-148/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
[T]he objective of preventing and punishing torture is an ethical and legal imperative for States and democratic societies because such practice violates the very essence of human dignity, human nature and the fundamental rights inherent in it. Therefore, torture is expressly proscribed at the international level.
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments.
The Court also found:
Rule 17 [of the ‘Beijing Rules’] states that … (f) minors shall not be subject to corporal punishment, thereby specifying the more general prohibition against cruel, inhuman or degrading treatment or punishment as established by international human rights law and the Constitution.
(footnote in original omitted )
The Court further held:
As members of the civilian population affected by internal armed conflicts, children and adolescents have the right to respect for the fundamental guarantees granted to all persons not actively participating in hostilities, as established by Article 3 common to the  Geneva Conventions … In accordance with this article, in cases of non-international armed conflicts in the territory of one of the Parties, each party to the conflict shall be bound to apply certain minimum guarantees without affecting their legal status as parties to the conflict, including: (1) Persons taking no active part in the hostilities shall be treated humanely in all circumstances without adverse distinction based on discriminatory criteria; (2) To this end, the following acts are prohibited at any time and in any place whatsoever with respect to the above-mentioned persons (including children): (a) Violence to life and person, in particular … cruel treatment and torture.
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
[T]he essential principles of international humanitarian law have acquired ius cogens
status, based on the fact that the international community as a whole has recognised their peremptory and imperative nature in the same way it has recognised this for other cardinal provisions such as … the prohibition of torture.
The Court also held:
Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens
status, … [include] the prohibition of torture, cruel, inhuman or degrading treatment, itself a ius cogens
norm, … [and] the prohibition of corporal punishment.
[footnote in original omitted]