Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
France’s Disciplinary Regulations (1975), as amended, prohibits any kind of cruel treatment and torture of the wounded, sick and shipwrecked, prisoners and civilians.
France’s LOAC Summary Note (1992) provides: “No one shall be subject to physical or psychological torture … nor cruel or degrading treatment.” It lists torture, inhuman treatment and inhuman and degrading practices among war crimes.
France’s LOAC Teaching Note (2000) includes torture among prohibited criminal acts and behaviour which are criminally prosecuted. It provides: “Every captured combatant shall be protected from torture.” It further stipulates that “torture, … inhuman and degrading treatment, attacks on physical integrity or on health” are grave breaches and war crimes under the law of armed conflict.
France’s LOAC Manual (2001) provides: “The authorities are responsible for the … physical integrity of persons in their power.”
The manual refers to Article 7 of the 1998 ICC statute and stipulates that torture and inhuman and degrading treatment are crimes against humanity.
The manual further provides that torture is prohibited by the law of armed conflict and in particular by the 1984 Convention against Torture.
The manual also states that one of the three main principles common to IHL and human rights law is the principle of inviolability, which guarantees every human being the right to respect for his or her physical and mental integrity.
Under France’s Penal Code (1992), “causing serious bodily or mental harm” to members of a group constitutes genocide when “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
France’s Code of Defence (2004), as amended in 2008, states: “It is prohibited to torture or inflict inhuman or degrading treatment.”
France’s Penal Code (1992), as amended in 2010, states in its section on war crimes common to both international and non-international armed conflicts:
Engaging in humiliating and degrading treatment against persons from the adverse party and causing serious injury to their physical or mental integrity is punishable by 15 years’ imprisonment.
The instructions given to the French armed forces for the conduct of Opération Mistral, simulating a military operation under the right of self-defence or a mandate of the UN Security Council, state: “Captured combatants and civilians in the hands of the enemy, as well as inhabitants of occupied territory, shall be subject neither to torture (physical or mental), nor to cruel or degrading treatment.”
In 2005, in its third periodic report to the Committee against Torture, France stated:
14. Acts of torture committed by officials would come in particular under articles 222-1 and 222-3 of the new Criminal Code:
Article 222-1: “The subjection of persons to torture or to acts of barbarity shall be punishable by 15 years’ rigorous imprisonment”;
Article 222-3: “The offence referred to in article 222-1 shall be punishable by 20 years’ rigorous imprisonment if committed:
In or in connection with the performance of his or her functions or duties by a person vested with public authority or a public servant.”
16. More specifically, acts of torture ascribed to military personnel (who in France include gendarmes) are prosecuted under Act No. 99-929 of 10 November 1999, reorganizing the military system of justice. ...
17. Therefore, the law prohibits and sets penalties for torture; the judiciary punishes it. The mere existence of this punitive system has an obvious preventive and deterrent effect. ...
18. A state of war cannot be invoked in France in order to justify torture. Article 383 of the Code of Military Justice states that acts contrary to the laws and customs of war constitute ordinary crimes or offences and by that token are subject to criminal penalties. The Code also punishes purely military offences, including “incitement to commit acts contrary to duty or discipline” (art. 441). Similarly, the Act of 13 July 1972, amended by Act No. 75-1000 of 30 October 1975 establishing the general military regulations, specifies that military personnel may not carry out acts that are contrary to the law, the customs of war or international conventions or acts that constitute crimes or offences (art. 15). Lastly, the general disciplinary regulations for the armed forces, as governed by amended Decree No. 75-675 of 28 July 1975, state explicitly in article 9 bis, on respect for the rules of international law applicable to armed conflicts, that, pursuant to duly ratified or approved international conventions, military personnel are prohibited from “violating the life, person or personal dignity of the sick, the wounded or the shipwrecked or of prisoners or civilians, in particular through murder, mutilation, cruel treatment or any form of torture”.
19. Ordinance No. 59-147 of 7 January 1959, on the general organization of the defence system, defines the conditions for mobilization and state of alert in the event of a threat of war. The Code of Criminal Procedure (art. 699-1) provides that, if mobilization or a state of alert is ordered, the Code of Military Justice may be rendered applicable by decree in the Council of Ministers.
20. French law sets forth very strict definitions for the various states of exception:
(a) The state of siege is defined by the Act of 9 August 1849, amended by the Act of 3 April 1878. It may be declared in cases of imminent danger resulting from a foreign war, a civil war or an armed uprising. Under article 36 of the Constitution, the decision on declaration must be taken in the Council of Ministers. A state of siege may not be maintained for more than 12 days without the approval of Parliament. It involves mainly the transfer of police powers and powers relating to the maintenance of law and order to the military authority;
(b) The state of emergency is regulated by the Act of 3 April 1955. It may be ordered by the Council of Ministers in cases of imminent danger resulting from serious breaches of law and order or from public disasters. It involves an extension of police powers that is counterbalanced by specific guarantees. Article 700 of the Code of Criminal Procedure states that “In the event of a declared state of siege or emergency, a decree in the Council of Ministers (...) may establish territorial courts of the armed forces under the conditions provided for by the Code of Military Justice. The jurisdiction of these courts derives from the Code of Military Justice for time of war and specific provisions of the legislation on states of emergency and states of siege”;
(c) The main effect of recourse to article 16 of the Constitution is to strengthen the powers of the President of the Republic, who must then take action to restore the constitutional authorities to normal operation.
21. Through specific procedures particular to each one, the various states of exception modify the normal division of authority, in particular in police matters and certain judicial procedures. They do not, however, affect the legal provisions and regulations prohibiting torture. Any acts of torture committed under them would therefore be punished as severely as in normal times.
225. Other acts of cruel, inhuman or degrading treatment or punishment are covered in France by the charges applicable to torture. The information given above relating to torture generally thus also applies to them. The obligations set forth in connection with articles 10, 11, 12 and 13, in particular, are valid under the same conditions.
In 2008, in its fourth to sixth periodic reports to the Committee against Torture, France stated:
170. With regard to the Committee’s question concerning the implementation of the Convention [against Torture] in territories outside the jurisdiction of the State party where its armed forces are deployed, the Government wishes to provide the following information.
171. Generally speaking, military regulations prohibit the use of torture. Article L 4122-2 of the Defence Code, deriving from the Act of 24 March 2005 establishing the general military regulations, states that: “military personnel must obey the orders of their superior officers and are responsible for executing the missions entrusted to them. However, they may not be ordered to perform and may not perform acts that are contrary to the law, the customs of war or international conventions”.
For its part, article D 4122-9 states that “it ... is prohibited to torture or to inflict inhuman or degrading treatment ...”.
174. Soldiers taking part in foreign military operations remain subject to French criminal law, which punishes acts of torture.
175. Article 113-6 of the Criminal Code stipulates that “French criminal law shall be applicable to any serious offence that is committed by a French national outside the territory of the Republic ...” This includes French military personnel deployed in a foreign country.
176. Under article 222-1 of the same Code, torture and acts of barbarity constitute an offence punishable by 15 years’ criminal imprisonment. In addition, the commission of such acts by a person vested with public authority is considered to be an aggravating circumstance. In such cases, the offence is punishable by 20 years’ criminal imprisonment, as prescribed by article 222-8, number 7, of the Criminal Code.
178. Measures are also taken to ensure that military personnel subject to legal proceedings are not themselves subjected to ill-treatment. In view of the geographical isolation involved in detachment to a foreign country, article 212-221 of the Code of Military Justice provides for the designation, at the site of each foreign military operation, of a number of military defence counsels. One of these volunteers, chosen by the soldier facing prosecution, is given the brief – much like professional lawyers on French territory – of ensuring that the rights of defence are safeguarded. The presence of the military defence counsel also plays a part in preventing any ill-treatment.
France’s LOAC Manual (2001) refers to the 1984 Convention against Torture and defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind.
In 2005, in its third periodic report to the Committee against Torture, France stated:
9. French legislation does not contain any definition of torture within the meaning of the Convention. However, the Ministry of Justice circular of 14 May 1993 on the new Criminal Code that came into force on 1 March 1994 refers expressly to article 1 of the Convention:
“Generally speaking, there may be qualified as torture within the meaning of article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted at New York on 10 December 1984, ‘any act whereby severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’. It should be noted, however, that the provisions of the new Criminal Code are far wider in scope than those of the Convention, which concern only acts committed by a public official for specified purposes.”
10. Articles 689-1 and 689-2 of the new Code of Criminal Procedure that came into force on 1 March 1994 together give French courts jurisdiction to prosecute and try anyone in France who has committed torture outside French territory. Article 689-2, indeed, refers to the definition in article 1 of the Convention:
“For the purposes of the application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted at New York on 10 December 1984, any person guilty of torture within the meaning of article 1 of the Convention may be prosecuted and tried under the conditions stated in article 689-1.”
51. As already stated, acts of torture are classified as a distinct crime by article 222-1 of the new Criminal Code that came into force on 1 March 1994. Under the previous Code, they merely constituted an aggravating circumstance in connection with certain offences. The first paragraph of the new article 222-1 provides that “the subjection of persons to torture or to acts of barbarity shall be punishable by 15 years’ rigorous imprisonment”.
52. The classification of torture and acts of barbarity as a crime has eliminated shortcomings in the punishment of torture. Before the new provisions came into effect, how violations of the person were classified depended directly on the degree of injury. Now what counts is that such violations are inherently serious, irrespective of their outcome. In particular, a person may now be prosecuted for attempted voluntary injury; that was not the case before. The result is that nowadays attempted mutilation may be classified as attempted torture.
53. Moreover, article 222-3 of the new Criminal Code, which enumerates aggravating circumstances relevant to torture and acts of barbarity, refers expressly to the commission of such acts by public officials:
“The offence defined in article 222-1 shall be punishable by 20 years’ rigorous imprisonment if committed:
7. In or in connection with the performance of his/her functions or duties by a person vested with public authority or a public servant;”
Should a public official commit acts of torture on instructions from representatives of the “lawful authorities”, article 122-4 of the new Criminal Code precludes his/her exoneration if the acts are “manifestly unlawful” – as would, clearly, be the case.
54. The new provisions of the Criminal Code concerning torture are also applicable to members of the armed forces. That is so pursuant to article 27, paragraph 1, of Act No. 72-662 of 13 July 1972, which states that “members of the armed forces are subject to the provisions of ordinary criminal law and to those of the Code of Military Justice”. In addition, article 441 of the Code of Military Justice punishes incitement to commit acts that are contrary to duty or to discipline.
55. Articles 121-4 to 121-7 of the new Criminal Code make attempted torture and complicity in torture punishable in the same way as torture itself: ...
225. Other acts of cruel, inhuman or degrading treatment or punishment are covered in France by the charges applicable to torture. The information given above relating to torture generally thus also applies to them.