Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
The Military Manual (1993) of the Netherlands restates the prohibition of torture contained in common Article 3 of the 1949 Geneva Conventions, Article 17 of the 1949 Geneva Convention III, Article 75 of the 1977 Additional Protocol I and Article 4 of the 1977 Additional Protocol II.
The Military Manual (2005) of the Netherlands states:
Starting with the introduction of the UN Charter and the Universal Declaration of Human Rights, followed by many treaties and conventions at world and regional level, there has come into being an extensive corpus of rules and procedures by which States have undertaken to respect and guarantee human rights. A number of these rights are so important that they are binding even on States which are not party to the conventions and permit no deviation from them, even in emergency situations such as war. These core rights, including … the prohibition of torture … are just as relevant in time of armed conflict as in time of peace.
The manual also states:
The individual is entitled to respect for his life, physical, mental and moral integrity and whatever is inseparable from his personality.
- Torture, cruelty or humiliating punishments or treatment are forbidden.
The manual further provides:
What is the right to protection of persons not deemed prisoners of war? Primarily, these are civilians who play a direct part in hostilities, but also to mercenaries … The use of violence against such persons is prohibited (no torture or mutilation, no corporal punishment, etc).
In addition, the manual provides:
0715. First and foremost, captured members of the enemy armed forces must be disarmed and searched. Each member who falls into the hands of the adversary is a potential source of intelligence. A prisoner of war is bound to disclose only his surname, first names, rank, date of birth and registration number …
0717. No physical or mental torture or other form of coercion must be applied when interrogating prisoners of war. No single circumstance may give rise to the torture of prisoners of war. Coercion is prohibited. Coercion may mean the exercise of power, by violence or otherwise, which forces someone to do something. Questioning as such does not constitute “coercion” in the terms of the PoW Convention [1949 Geneva Convention III]. The interrogation of prisoners of war should in principle be carried out by experts trained in this. It is recognized that fewer facilities, at this initial stage after capture and in transit camps, must suffice. What are known as “interrogation camps” are not allowed. Special quarters, for uncooperative prisoners, for example, are not permitted (except for disciplinary penalties and punishments under criminal law); special restrictions on food are also prohibited.
0718. Prisoners of war who refuse to answer may not be threatened or abused. They must not be exposed to unpleasant or detrimental treatment of any kind whatsoever. This not only includes threatening the prisoner of war himself, e.g., with a weapon, but also covers threatening a third party with something if an individual incites somebody else to carry out a certain act. Acts of intimidation are also prohibited. There is no doubt that a mock execution is not permitted.
0810. The following acts are, and remain, prohibited at all times:
- Violence against the life, health or physical or mental wellbeing of persons, especially: murder, torture, corporal punishments and mutilation.
- Affronts to personal dignity, especially humiliating and degrading treatment, rape, forced prostitution and any form of indecent assault, especially: hostage-taking, collective punishment and threatening with one of the above acts or treatments.
[emphasis in original]
In its chapter on non-international armed conflict, the manual states that “[n]o derogation is possible from the [prohibition] of torture”.
In that same chapter, the manual further states:
It is expressly prohibited to carry out the following acts against the civilian population or individual civilians, wounded, sick or prisoners:
- violence or assaults on the life, health or physical or mental wellbeing of persons, especially: killing/murder, cruel treatment, mutilation, torture or corporal punishments;
- outrages upon personal dignity, especially humiliating and degrading treatment, rape, forced prostitution, sterilization and indecent assault;
- threatening anyone with the above-mentioned acts or treatment.
In its chapter on peace operations, the manual states:
Section 2 - Applicability of human rights
1211. Human rights should be respected … However, “in time of war or in case of any other general state of emergency which threatens the existence of the country,” certain human rights may be curtailed as long as the situation strictly necessitates such measures. But the right to life, the prohibition of torture, slavery and forced labour, and the legal principle “no punishment without prior legal provision” cannot be waived …
1212. When carrying out its operational mission, the military may be confronted with the following and other human rights, which may affect what they do. The following is based on ECHR [1950 European Convention on Human Rights] and related protocols ratified by the Netherlands. In view of the detailed rules added by extensive legal precedents, this convention forms a basis for the fulfilment of the human rights established in other treaties, at least those with which the military may be involved in pursuit of their duties. Those human rights are as follows:
ECHR Article 3
- The prohibition of torture. ECHR Article 3 imposes a total ban on torture and on inhumane or degrading treatment. Whether the latter amounts to torture is relative, and depends on various factors.
There are degrees of torture. Torture is more serious than inhumane treatment which, in turn, is more serious than degrading treatment. Torture has a high threshold. In the case of Tomasi v. France, a large number of blows, and very hard blows, constituted “only” inhumane treatment. In the case of Aksoy v. Turkey, in which a prisoner was exposed to “Palestinian hanging” (hanging naked by the arms, with the arms tied behind the back), the European Court [of Human Rights] ruled that this amounted to torture.
1226. … Interrogation of detainees is permitted, but physical or mental torture or exposure to any form of coercion whatsoever is not permitted. As a rule, interrogation should take place by, or with the cooperation of, the police or legally trained personnel. This does not apply to prisoners of war, but to personnel presumed to have committed criminal acts.
The Definition of War Crimes Decree (1946) of the Netherlands includes “torture of civilians” “internment of civilians under inhuman conditions” and “ill-treatment of … prisoners of war” in its list of war crimes.
Under the International Crimes Act (2003) of the Netherlands, it is a crime to commit “in the case of an international armed conflict, one of the grave breaches of the Geneva Conventions”, including “torture … or inhuman treatment [and] intentionally causing great suffering or serious injury to body or health”.
Furthermore, it is also a crime to commit, “in the case of an armed conflict not of an international character, a violation of Article 3 common to all of the Geneva Conventions”, including “cruel treatment and torture” of persons taking no active part in the hostilities.
In its judgment in the Motomura case
the Temporary Court Martial at Makassar of the Netherlands considered the accused, a second-in-command of a force of Japanese naval police stationed in the Dutch East Indies during the belligerent occupation of the islands by Japanese armed forces of having, as member of a group, carried out mass arrests, systematic terrorism and ill-treatment of the civilian population. The Court found the accused guilty of using methods of interrogation consisting of psychological and physical compulsion of arrested persons.
In its judgment in the Notomi case
in 1947, the Temporary Court Martial at Makassar of the Netherlands sentenced four of the accused to death and two others to imprisonment. The accused were in charge of a prisoner of war camp. The Court found that the well-being of the prisoners depended to a large extent on the camp’s chief and the head of the kitchen – two of the accused – whose orders were uncontested. The accused was found guilty of corporal and disciplinary punishments of prisoners of war, which went far beyond legitimate disciplinary measures, and of having subjected the prisoners to labour for which they were not suited. The Court thus considered that Articles 29, 30 and 46 of the 1929 Geneva POW Convention, which reflected customary international humanitarian law, had been violated.
In its judgment in the Sebastien case in 2004, the Rotterdam District Court of the Netherlands stated:
Torture is a very serious offence, which creates widespread indignation and unease, not only in Congo, but internationally as well. The seriousness of the torture is to be found in the fact that it was carried out by the authorities, or by a civil servant, causing the victim to believe, whether or not justified, that there was nothing he could do about it, because if he wanted to file a complaint or report a crime, he would have to turn to those same authorities.
In its judgment in the Hesammudin case in 2005, the Hague District Court of the Netherlands stated:
The penalization of complicity to torture pursuant to Dutch law arises from the provision in Article 91 of the Netherlands Criminal Code that inter alia declares Article 48 of the Netherlands Criminal Code applicable to other criminal statutes as well, unless otherwise provided for by such other statutes. The Torture Convention Implementation Act does not provide for an exclusion of penalization of complicity whereas the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Trb. 1985, 69) (the so-called UN Torture Convention that became effective on 10 December 1984 in New York) on which the Torture Convention Implementation Act according to the preamble is based, even explicitly in Article 4, first paragraph, stipulates that, apart from the torture itself, every state should also make the attempt at and complicity and participation in torture punishable. This Convention was signed by both Afghanistan and the Netherlands on 25 February 1985. Since the Torture Convention Implementation Act came into effect on 20 January 1989, apart from torture itself, the attempt at and complicity and the participation in torture are also punishable pursuant to Dutch law by means of Article 91 of the Netherlands Criminal Code.
During the period from end 1985 to the end of 1990 the suspect was guilty of war crimes and torture in Kabul, in Afghanistan at the time of the communist regime. During that period the suspect, a high-ranking general … in the Afghan army was the head of the military intelligence, the KhAD-e Nezami, and vice minister of the Ministry of State Security (WAD).
The suspect was guilty of very serious offences: complicity in torture and violation of the laws and practices of war. His victims were for instance kicked, beaten, forced to stand outside when it was cold outside and put in a barrel filled with cold water without any clothes on. The victims were kept awake for days on end and they were not allowed to sit down, lie and sleep. One of the victims had electric wires attached to his body after which he was subjected to electric current through these electric wires.
Moreover, it appeared from the file that these offences constituted a fixed pattern of behaviour within the (military) intelligence service of Afghanistan.
The war crime of torment and torture belongs to international crimes alongside genocide and crimes against humanity and are regarded as ‘the most serious crimes which are cause for concern for the entire international society’ (explanatory memorandum to the International Crimes Act, parliamentary documents II, 2001–2002, 28 337, no. 3, page 1).
In its judgment in 2007, the Hague Court of Appeal stated:
5.4.3 The court of appeal points out that, against the background of the afore concluded prohibition of comparing, according to the explanatory memorandum to the UFV … that the legislator in 1987 obviously already was of the opinion that “torture committed in the case of internal or international armed conflict, constitutes a violation of the laws of the war, …. penalized in article 8 of the Criminal War Act.” The regulation of punishability (and of the jurisdiction) of torture in the WOS [Wet Oorlogsstrafrecht/Act on criminal law in time of war] concerned in his opinion also the violation of common Article 3. This regulation seems rather far-reaching; thus stated the (then) advocate general Van Dorst in his conclusion (§ 10) preceding a decision of the Supreme Court dated November 11, 1997 NJ 1998.463 (Knesevic II) that our country has an exceptional position not only because it penalizes “grave breaches”, but also less serious violations, with universal jurisdiction. Support for the establishment of secondary universal jurisdiction (not trial by default) may however be found in the development of the conventional law after the Second World War, as this is represented in separate points of view of judges in the decision of the ICJ [International Court of Justice] on February 14, 2002 in the Yerodia case (Congo vs Belgium). The ICJ itself did not get to answer the question about the legitimacy pertaining to international law of the (unrestricted) universal jurisdiction exercised by Belgium “in absentia” in view of the ultra-petita provision.
13. … The accused was in the period of the end of 1983 up to and including May 1990 in Kabul, in Afghanistan, at the time of the communist regime supported by the Soviets, head of the military intelligence service, the KhAD-e-Nezami and deputy minister of the ministry of state security (WAD) and he was therefore a powerful and influential person. During the exercise of this duty/these duties the accused has been guilty, as can be proven, of very serious crimes with regard to three victims: being a co-perpetrator to torture and the violation of the laws and practices of war.
It has appeared from the file that one of his victims was, for days in succession, for some time, partly undressed, put outside – while it was cold (outside) – in a barrel with (cold) water. This victim was also threatened. Another victim was punched in his face and had to stand for some hours with his bare feet in the snow. Also electric wires were several times attached to his body and he was subsequently subjected to electric current through these wires.
The third victim was kicked and beaten and had to stand outside for days while it was cold. Apart from that the fingers of this witness were put between a door and the frame of this door, after which the door was shut closed. Subsequently one of these fingers was cut off without any anaesthetic.
Furthermore all of these victims have been kept awake for days on end. All this happened with the apparent purpose to make the victims, political opponents of the ruling regime, “confess”.
It has also become plausible from the file that these facts formed part of a consistent pattern of acting within the (military) intelligence service, in which the accused was in command.
As appeared from the file the above-described acts have had dramatic and traumatic (psychological) consequences for the victims who, as it seems, are of a permanent nature.
The facts proven are regarded, apart from genocide and crimes against humanity, as “the gravest breaches that fill the entire international community with concern” (explanatory memorandum to the International Crimes Act, parliamentary documents II, 2001–2—2, 28 337, no. 3, page 1).
The war crime consisting of acts of torture and torment arouses worldwide indignation and anxiety on a broad scale; these crimes also disturb the international legal order. Moreover, they concern the Dutch legal order as the accused has, because of his flight to the Netherlands, become part of the Dutch community.
According to the Explanatory Memorandum to the Act Implementing the 1984 Convention against Torture presented to the Parliament of the Netherlands, torture is an “offence under civil criminal law, but, if committed in times of armed conflict, it is considered a violation of the international law of armed conflict and therefore an offence under section 8 of the Criminal Law in Wartime Act”.
In 2005, in letter concerning the outcome of an informal meeting of NATO and EU foreign ministers on 7 December 2005, the Minister of Foreign Affairs of the Netherlands stated:
The Lower Chamber has also asked to what extent I share the opinion of the American government with regard to torture. The Dutch point of view is that torture, cruel, inhumane and degrading treatment and punishment are not allowed in any circumstance, regardless of the nationality of the persons concerned or the place where this treatment or punishment would take place.