Rule 90. Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The prohibition of torture was already recognized in the Lieber Code.
The Charter of the International Military Tribunal at Nuremberg included “ill-treatment” of civilians and prisoners of war as a war crime.
Common Article 3 of the Geneva Conventions prohibits “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment” of civilians and persons hors de combat
Torture and cruel treatment are also prohibited by specific provisions of the four Geneva Conventions.
In addition, “torture or inhuman treatment” and “wilfully causing great suffering or serious injury to body or health” constitute grave breaches of the Geneva Conventions and are war crimes under the Statute of the International Criminal Court.
The prohibition of torture and outrages upon personal dignity, in particular humiliating and degrading treatment, is recognized as a fundamental guarantee for civilians and persons hors de combat
by Additional Protocols I and II.
Torture, cruel treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, constitute war crimes in non-international armed conflicts under the Statutes of the International Criminal Court, of the International Criminal Tribunal for Rwanda and of the Special Court for Sierra Leone.
The prohibition of torture, cruel or inhuman treatment and outrages upon personal dignity is contained in numerous military manuals.
This prohibition is also set forth in the legislation of a large number of States.
It has been upheld in national case-law,
as well as in international case-law.
It is also supported by official statements and other practice.
The case-law of the International Criminal Tribunal for the former Yugoslavia in the Furundžija case
and Kunarac case
provides further evidence of the customary nature of the prohibition of torture in both international and non-international armed conflicts.
Allegations of torture, cruel or inhuman treatment, whether in international or non-international armed conflicts, have invariably been condemned by the UN Security Council, UN General Assembly and UN Commission on Human Rights, as well as by regional organizations and International Conferences of the Red Cross and Red Crescent.
Such allegations have generally been denied by the authorities concerned.
The prohibition of torture and cruel, inhuman or degrading treatment or punishment is to be found in general human rights treaties,
as well as in specific treaties that seek to prevent and punish these practices.
This prohibition is non-derogable under these instruments.
The Elements of Crimes for the International Criminal Court provides that the war crime of torture consists of the infliction of “severe physical or mental pain or suffering” for purposes such as “obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind”.
Contrary to human rights law, e.g. Article 1 of the Convention against Torture, the Elements of Crimes does not require that such pain or suffering be 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”.
In its early case-law in the Delalić case
and Furundžija case
in 1998, the International Criminal Tribunal for the former Yugoslavia considered the definition contained in Article 1 of the Convention against Torture to be part of customary international law applicable in armed conflict.
In its subsequent case-law in the Kunarac case
in 2001, however, the Tribunal concluded that “the definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law”. In particular, the Tribunal held that “the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law”. It defined torture as the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, in order to obtain information or a confession, or to punish, intimidate or coerce the victim or a third person, or to discriminate on any ground, against the victim or a third person.
The International Criminal Tribunal for the former Yugoslavia, as well as regional human rights bodies, have held that rape can constitute torture.
On the prohibition of rape and other forms of sexual violence, see Rule 93.
The term “inhuman treatment” is defined in the Elements of Crimes for the International Criminal Court as the infliction of “severe physical or mental pain or suffering”.
The element that distinguishes inhuman treatment from torture is the absence of the requirement that the treatment be inflicted for a specific purpose. The International Criminal Tribunal for the former Yugoslavia has used a wider definition determining that inhuman treatment is that which “causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity”.
The element of “a serious attack on human dignity” was not included in the definition of inhuman treatment under the Elements of Crimes for the International Criminal Court because the war crime of “outrages upon personal dignity” covers such attacks.
In their case-law, human rights bodies apply a definition which is similar to the one used in the Elements of Crimes for the International Criminal Court, stressing the severity of the physical or mental pain or suffering. They have found violations of the prohibition of inhuman treatment in cases of active maltreatment but also in cases of very poor conditions of detention,
as well as in cases of solitary confinement.
Lack of adequate food, water or medical treatment for detained persons has also been found to amount to inhuman treatment.
The notion of “outrages upon personal dignity” is defined in the Elements of Crimes for the International Criminal Court as acts which humiliate, degrade or otherwise violate the dignity of a person to such a degree “as to be generally recognized as an outrage upon personal dignity”. The Elements of Crimes further specifies that degrading treatment can apply to dead persons and that the victim need not be personally aware of the humiliation.
The last point was made in order to cover the deliberate humiliation of unconscious or mentally handicapped persons. The Elements of Crimes adds that the cultural background of the person needs to be taken into account, thereby covering treatment that is humiliating to someone of a particular nationality or religion, for example.
The notion of “degrading treatment” has been defined by the European Commission of Human Rights as treatment or punishment that “grossly humiliates the victim before others or drives the detainee to act against his/her will or conscience”.