Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment

Note: For practice relating to rape and other forms of sexual violence as torture, cruel or inhuman treatment or as outrages upon personal dignity, see Rule 93.
Geneva Convention (1906)
Article 28 of the 1906 Geneva Convention provides:
In the event of their military penal laws being insufficient, the signatory governments also engage to take, or to recommend to their legislatures, the necessary measures to repress, in time of war, individual acts of … ill treatment of the sick and wounded of the armies. 
Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 6 July 1906, Article 28.
Geneva POW Convention
Article 5 of the 1929 Geneva POW Convention provides:
No pressure shall be exercised on prisoners to obtain information regarding the situation in their armed forces or their country. Prisoners who refuse to reply may not be threatened, insulted, or exposed to unpleasantness or disadvantages of any kind whatsoever. 
Convention relative to the Treatment of Prisoners of War, Geneva, 27 July 1929, Article 5.
IMT Charter (Nuremberg)
Article 6 of the 1945 IMT Charter (Nuremberg) provides:
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(b) “War crimes:” namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, … ill-treatment … of civilian population of or in occupied territory, … ill-treatment of prisoners of war or persons on the seas …
(c) “Crimes against humanity:” namely … inhumane acts committed against any civilian population, before or during the war. 
Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Article 6.
Genocide Convention
According to Article 2 of the 1948 Genocide Convention, “causing serious bodily or mental harm to members of the group” constitutes genocide when “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. 
Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly, Res. 260 A (III), 9 December 1948, Article 2.
Geneva Conventions (1949)
Common Article 3 of the 1949 Geneva Conventions explicitly prohibits “violence to life and person, in particular … cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment” with respect to persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 3; Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 3; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 3; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 3.
Geneva Convention I
Article 12, second paragraph, of the 1949 Geneva Convention I provides that violence to wounded and sick members of the armed forces in the field shall be strictly prohibited, in particular torture. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 12, second para.
Geneva Convention II
Article 12, second paragraph, of the 1949 Geneva Convention II provides that violence to wounded, sick and shipwrecked members of the armed forces at sea shall be strictly prohibited, in particular torture. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 12, second para.
Geneva Convention III
Article 17, fourth paragraph, of the 1949 Geneva Convention III provides:
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 17, fourth para.
Geneva Convention III
Article 87, third paragraph, of the 1949 Geneva Convention III provides: “Any form of torture or cruelty is forbidden.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 87, third para.
Geneva Convention III
Article 89 of the 1949 Geneva Convention III provides: “In no case shall disciplinary punishments be inhuman, brutal or dangerous to the health of prisoners of war.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 89.
Geneva Convention IV
Article 32 of the 1949 Geneva Convention IV provides:
The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering … of protected persons in their hands. This prohibition applies not only to … torture … but also to any other measures of brutality whether applied by civilian or military agents. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 32.
Geneva Conventions (1949)
According to Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III and Article 147 of the 1949 Geneva Convention IV, “torture or inhuman treatment” and “wilfully causing great suffering or serious injury to body or health” are grave breaches of these instruments. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 50; Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 51; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 130; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 147.
European Convention on Human Rights
Article 3 of the 1950 European Convention on Human Rights provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 15(2) adds that Article 3 is non-derogable “in time of war or other public emergency threatening the life of the nation”.  
European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocol No. 11, Strasbourg, 11 May 1994, Articles 3 and 15(2).
International Covenant on Civil and Political Rights
Article 7 of the 1966 International Covenant on Civil and Political Rights provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 7.
Article 4(2) states that there can be no derogation from Article 7. 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 4(2).
American Convention on Human Rights
Article 5(2) of the 1969 American Convention on Human Rights provides: “No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment.” Article 27(2) “does not authorize any suspension” of Article 5(2). 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Articles 5(2) and 27(2).
Protocol to the Agreement on Ending the War and Restoring Peace in Viet-Nam
Article 8(a) and (b) of the 1973 Protocol to the Agreement on Ending the War and Restoring Peace in Viet-Nam provides that all captured military personnel, captured foreign civilians and captured civilian personnel “shall be protected against … torture and cruel treatment, and outrages upon personal dignity”. 
Protocol on Ending the War and Restoring Peace in Viet-Nam concerning the Return of Captured Military Personnel and Foreign Civilians and Captured and Detained Vietnamese Personnel, signed on behalf of the United States of America, the Republic of Viet-Nam, the Democratic Republic of Viet-Nam, and the Provisional Revolutionary Government of South Viet-Nam, Paris, 27 January 1973, Article 8(a) and (b).
Additional Protocol I
Article 75(2) of the 1977 Additional Protocol I prohibits “torture of all kinds, whether physical or mental” and “outrages upon personal dignity, in particular humiliating and degrading treatment”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 75(2). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Additional Protocol II
Article 4(2) of the 1977 Additional Protocol II prohibits “cruel treatment such as torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 4(2). Article 4 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 90.
African Charter on Human and Peoples’ Rights
Article 5 of the 1981 African Charter on Human and Peoples’ Rights provides: “Torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.” 
African Charter on Human and Peoples’ Rights, adopted by the Eighteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Nairobi, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5, Article 5.
Convention against Torture
Article 2(2) of the 1984 Convention against Torture states, after having regard to Article 7 of the 1966 International Covenant on Civil and Political Rights: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” 
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the UN General Assembly, Res. 39/46, 10 December 1984, Article 2(2).
Inter-American Convention against Torture
The 1985 Inter-American Convention against Torture, after recalling the prohibition of torture contained in Article 5 of the 1969 American Convention on Human Rights, states in Article 1 that State parties undertake to prevent and punish torture. Article 5 further stipulates:
The existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of torture. 
Inter-American Convention to Prevent and Punish Torture, adopted by the Fifteenth Regular Session of the OAS General Assembly, Res. 783 (XV-O/85), Cartagena de Indias, 9 December 1985, Articles 1 and 5.
European Convention for the Prevention of Torture
The preamble to the 1987 European Convention for the Prevention of Torture refers to Article 3 of the 1950 European Convention on Human Rights, which provides for the absolute prohibition of torture. 
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Strasbourg, 26 November 1987, preamble.
Convention on the Rights of the Child
Article 37(a) of the 1989 Convention on the Rights of the Child provides that States Parties shall ensure that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”. 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 37(a).
Agreement on Human Rights annexed to the Dayton Accords
According to Article 1(2) of the 1995 Agreement on Human Rights annexed to the Dayton Accords, the parties shall secure to all persons within their jurisdiction the right not to be subjected to torture. 
General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 6, Agreement on Human Rights, signed by the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska, Dayton, 22 November 1995, Article 1(2).
ICC Statute
Pursuant to Article 6(b) of the 1998 ICC Statute, “[c]ausing serious bodily or mental harm to members of the group” constitutes genocide when “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 6(b).
ICC Statute
Pursuant to Article 7(1)(f) of the 1998 ICC Statute, torture constitutes a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 7(1)(f).
ICC Statute
Pursuant to Article 8(2)(a)(ii) and (iii) of the 1998 ICC Statute, “[t]orture or inhuman treatment” and “[w]ilfully causing great suffering, or serious injury to body or health” constitute war crimes in international armed conflicts. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(a)(ii) and (ii).
ICC Statute
Pursuant to Article 8(2)(c)(i) of the 1998 ICC Statute, “[c]ruel treatment and torture” constitute war crimes in non-international armed conflicts. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(c)(i).
ICC Statute
Pursuant to Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute, “[c]ommitting outrages upon personal dignity, in particular humiliating and degrading treatment” constitutes a war crime in both international and non-international armed conflicts. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(b)(xxi) and (c)(ii).
Statute of the Special Court for Sierra Leone
According to Article 3(a) and (e) of the 2002 Statute of the Special Court for Sierra Leone, the Tribunal has jurisdiction over violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II, including “[v]iolence to life, health and physical or mental well-being of persons, in particular … cruel treatment such as torture” and “[o]utrages upon personal dignity, in particular humiliating and degrading treatment”. 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 3(a) and (e).
UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
Article 9 of the 2003 UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea provides:
The subject-matter jurisdiction of the Extraordinary Chambers shall be the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court and grave breaches of the 1949 Geneva Conventions and such other crimes as defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001. 
Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 9.
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Kampala Convention
Article 9(1) of the 2009 Kampala Convention states:
State Parties shall protect the rights of internally displaced persons regardless of the cause of displacement by refraining from, and preventing, the following acts, amongst others:
c. … torture and other forms of cruel, inhuman or degrading treatment or punishment. 
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted in Kampala, Uganda, 23 October 2009, Article 9(1)(c).
Lieber Code
Article 16 of the 1863 Lieber Code states that military necessity does not admit “torture to extort confessions”. 
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 16.
Lieber Code
Article 56 of the 1863 Lieber Code provides:
A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment … or any other barbarity. 
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 56.
Report of the Commission on Responsibility
Based on several documents supplying evidence of outrages committed during the First World War, the 1919 Report of the Commission on Responsibility lists violations of the laws and customs of war which should be subject to criminal prosecution, including torture of civilians, ill-treatment of prisoners of war and internment of civilians under inhuman conditions. 
Report submitted to the Preliminary Conference of Versailles by the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, Versailles, 29 March 1919.
Allied Control Council Law No. 10
Article II(1) of the 1945 Allied Control Council Law No. 10 provides that “ill treatment … of civilian population from occupied territory” is a war crime and that “torture … or other inhumane acts committed against any civilian population” is a crime against humanity. 
Allied Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, enacted by the Allied Control Council of Germany, composed of the United Kingdom of Great Britain and Northern Ireland, France, the United States of America and the Union of Soviet Socialist Republics, Berlin, 20 December 1945, Article II(1).
IMT Charter (Tokyo)
Article 5(c) of the 1946 IMT Charter (Tokyo) established individual responsibility for crimes against humanity, including “inhumane acts committed against any civilian population, before or during the war”. 
Charter of the International Military Tribunal for the Far East, approved by an Executive Order, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, Tokyo, 19 January 1946, amended on 26 April 1946, Article 5(c).
Universal Declaration of Human Rights
Article 5 of the 1948 Universal Declaration of Human Rights provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” 
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 5.
Nuremberg Principles
Principle VI of the 1950 Nuremberg Principles adopted by the International Law Commission provides:
The crimes hereinafter set out are punishable as crimes under international law:
(b) War crimes: Violations of the laws or customs of war include, but are not be limited to, … ill-treatment … of civilian population of or in occupied territory, … ill-treatment of prisoners of war, of persons on the seas …
(c) Crimes against humanity: … inhuman acts done against any civilian population. 
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, adopted by the International Law Commission, UN Doc. A/1316, New York, 5 June–29 July 1950, Principle VI.
UN Command Rules and Regulations
Rule 4 of the 1950 UN Command Rules and Regulations gave Military Commissions of the UN Command in Korea jurisdiction over offences such as ill-treatment of civilians or prisoners of war. 
Rules of Criminal Procedure for Military Commissions of the United Nations Command, Tokyo, 22 October 1950, Rule 4.
UN Declaration on the Protection of Women and Children in Emergency and Armed Conflict
Paragraph 5 of the 1974 UN Declaration on the Protection of Women and Children in Emergency and Armed Conflict provides: “All forms of repression and cruel and inhuman treatment of women and children, including … torture … committed by belligerents in the course of military operations or in occupied territories shall be considered criminal.” 
Declaration on the Protection of Women and Children in Emergency and Armed Conflict, adopted by the UN General Assembly, Res. 3318 (XXIX), 14 December 1974, § 5.
UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Article 2 of the 1975 UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides:
Any act of torture or other cruel, inhuman or degrading treatment or punishment is an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights. 
Declaration on the Protection of All Persons from Being Subject to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the UN General Assembly, Res. 3452 (XXX), 9 December 1975, Article 2.
Code of Conduct for Law Enforcement Officials
Article 5 of the 1979 Code of Conduct for Law Enforcement Officials provides: “No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment.” 
Code of Conduct for Law Enforcement Officials, adopted by the UN General Assembly, Res. 34/169, 17 December 1979, Article 5.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 6 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides:
No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment. 
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly, Res. 43/173, 9 December 1988, Principle 6.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
According to Article 22(2)(a) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind, “acts of inhumanity, cruelty or barbarity directed against life … in particular … torture” are considered as an exceptionally serious war crime and as a serious violation of the principles and rules of international law applicable in armed conflict. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 22(2)(a).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Under Paragraph 1 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, the parties committed themselves to respect and ensure respect for common Article 3 of the 1949 Geneva Conventions. Paragraph 2.3 requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, §§ 1 and 2.3.
ICTY Statute
Under Article 2(b) of the 1993 ICTY Statute, the Tribunal is competent to prosecute torture of persons protected under the provisions of the relevant Geneva Convention. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 2(b).
ICTY Statute
Article 5(f) of the 1993 ICTY Statute provides that torture constitutes a crime against humanity when committed in armed conflict, whether international or internal in character, and directed against any civilian population. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 5(f).
ICTR Statute
According to Article 3(f) of the 1994 ICTR Statute, torture constitutes a crime against humanity, when committed as part of a widespread and systematic attack against any civilian population on national, political, ethnic, racial or religious grounds. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 3(f).
ICTR Statute
Under Article 4(a) and (e) of the 1994 ICTR Statute, the Tribunal is competent to prosecute violations of common Article 3 of the 1949 Geneva Conventions, including “cruel treatment such as torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment”. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 4(a) and (e).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 18(c) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that “[t]orture” is a crime against humanity. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 18(c).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 20(a)(ii)–(iii) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that “[t]orture or inhuman treatment” and “[w]ilfully causing great suffering or serious injury to body or health” are crimes against the peace and security of mankind. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 20(a)(ii)–(iii).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 20(d) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that “[o]utrages upon personal dignity in violation of international humanitarian law, in particular humiliating and degrading treatment” are war crimes.  
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 20(d).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 20(f)(i) and (v) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind stipulates that “[c]ruel treatment such as torture” and “[o]utrages upon personal dignity, in particular humiliating and degrading treatment” constitute war crimes in armed conflicts not of an international character. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 20(f)(i) and (v).
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 2(7) of Part III of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines states that the Agreement seeks to confront, remedy and prevent the most serious human rights violations, including “the right not to be subjected to physical or mental torture, solitary confinement … and other inhuman, cruel or degrading treatment, detention and punishment”. 
Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, Part III, Article 2(7).
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 3(1) of Part IV of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines further provides that physical or mental torture and cruel or degrading treatment shall remain prohibited at any time and in any place whatsoever with respect to persons hors de combat. 
Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, Part IV, Article 3(1).
UN Secretary-General’s Bulletin
According to Section 7(2) of the 1999 UN Secretary-General’s Bulletin, cruel treatment such as torture of persons not, or no longer, taking part in military operations and persons placed hors de combat is prohibited at any time and in any place. 
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 7(2).
UN Secretary-General’s Bulletin
Section 8(d) of the 1999 UN Secretary-General’s Bulletin provides that detained persons “shall under no circumstances be subjected to any form of torture or ill-treatment”. 
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 8(d).
EU Charter of Fundamental Rights
Article 4 of the 2000 EU Charter of Fundamental Rights provides: “No one shall be subject to torture or to inhuman or degrading treatment or punishment.” 
Charter of Fundamental Rights of the European Union, signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000, Article 4.
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(a)(ii), “[t]orture or inhuman treatment” constitutes a war crime in international armed conflicts. According to Section 6(1)(c)(i), “cruel treatment and torture” constitute war crimes in non-international armed conflicts. According to Section 6(1)(b)(xxi) and (c)(ii), “[c]ommitting outrages upon personal dignity, in particular humiliating and degrading treatment”, constitutes a war crime in both international and non-international armed conflicts. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(1)(a)(ii), (c)(i), (b)(xxi) and (c)(ii).
Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan (2005)
The 2005 Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan states:
3. The Participants will treat detainees in accordance with the standards set out in the Third Geneva Convention.
5. The Afghan authorities will accept (as Accepting Power) detainees who have been detained by the Canadian Forces (the Transferring Power) and will be responsible for maintaining and safeguarding detainees, and for ensuring the protections provided in Paragraph 3 above, to all such detainees whose custody has been transferred to them.
10. Recognizing their obligations pursuant to international law to assure that detainees continue to receive humane treatment and protections to the standards set out in the Third Geneva Convention, the Participants, upon transferring a detainee, will notify the International Committee of the Red Cross through appropriate national channels. 
Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan, signed on 18 December 2005 in Kabul by the Afghan Minister of Defence and the Canadian Chief of Defence Staff, §§ 3, 5 and 10.
Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan (2007)
The 2007 Arrangement for the Transfer of Detainees between the Government of Canada and the Government of the Islamic Republic of Afghanistan state:
1. The following supplements the Arrangement for the Transfer of Detainees Between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan of December 18, 2005, which continues in effect.
4. The Afghan authorities will be responsible for treating such individuals in accordance with Afghanistan’s international human rights obligations including prohibiting torture and cruel, inhuman or degrading treatment, protection against torture and using such force as is reasonable to guard against escape.
10. In the event that allegations come to the attention of the Government of Afghanistan that a detainee transferred by the Canadian Forces to Afghan authorities has been mistreated, the following corrective action will be undertaken: the Government of Afghanistan will investigate allegations of abuse and mistreatment and prosecute in accordance with national law and internationally applicable legal standards; the Government of Afghanistan will inform the Government of Canada, the AIHRC [Afghanistan Independent Human Rights Commission] and the ICRC of the steps it is taking to investigate such allegations and any corrective action taken. 
Arrangement for the Transfer of Detainees between the Government of Canada and the Government of the Islamic Republic of Afghanistan, signed on 3 May 2007 in Kabul by the Afghan Minister of Defence and the Canadian Chief of Defence Staff, §§ 1, 4 and 10.
Argentina
Argentina’s Law of War Manual (1969) provides: “You cannot exercise on prisoners physical or mental torture nor any form of coercion to obtain any type of information.” 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.016.
The manual further states: “It is especially prohibited to submit [the wounded and sick] to torture.” 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 3.001.
This prohibition also applies to civilians in occupied territories. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 4.012.
The manual restates common Article 3 of the 1949 Geneva Conventions. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 8.001.
Argentina
Argentina’s Law of War Manual (1989) provides that mental and physical torture against all protected persons is prohibited in international as well as non-international armed conflicts. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, §§ 3.10, 3.25, 4.15, 4.29 and 7.04.
The manual stipulates that torture and inhuman treatment and wilful causing of grievous suffering or serious injury to the body or health of protected persons are grave breaches of the 1949 Geneva Conventions and of the 1977 Additional Protocol I. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 8.03.
Australia
Australia’s Commanders’ Guide (1994) states that civilians shall “not be subjected to harsh, cruel or degrading treatment”. It also states that after the capture of a combatant, “no physical or mental pressure may be exerted in order to extract further information”. With regard to prisoners of war, the manual provides that “no torture or other forms of physical or mental coercion may be employed”. It also states that crimes of torture or inhuman treatment of protected persons warrant the institution of criminal proceedings. 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, §§ 603, 709, 713 and 1305(a).
Australia
Australia’s Defence Force Manual (1994) prohibits physical and mental torture, inhuman treatment or brutality and states that “torturing or inhumanely treating protected persons”, “wilfully causing great suffering or serious injury to body or health of protected persons” and “mistreating PW [prisoners of war] … torturing, subjecting them to inhuman treatment” are grave breaches which warrant the institution of criminal proceedings. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 945, 953, 1022, 1219, 1221 and 1315(a)–(b) and (n).
Australia
Australia’s LOAC Manual (2006) states:
The following acts are prohibited at any time and in any place whatsoever:
• Violence to the life, health or physical or mental well-being of persons, in particular:
– torture of all kinds, whether physical or mental;
• outrages upon personal dignity, in particular humiliating and degrading treatment …; and
• threats to commit any of the foregoing acts. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.46.
The manual also states with regard to the general treatment of protected persons in both their own territory and occupied territory that “torture … [is] forbidden”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.58.
In its chapter on “Prisoners of War and Detained Persons”, the manual states: “No physical or mental torture, or any other form of coercion may be inflicted on PW [prisoners of war] to obtain information of any kind.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 10.34.
In its chapter on “Occupation”, the manual states with regard to inhabitants of occupied territory:
12.37 Any measure of such a character as to cause the physical suffering or extermination of protected persons … is prohibited. That prohibition applies not only to … torture … but also to any other measures of brutality whether applied by civilian or military agents.
12.39 Measures for the control of the population which are prohibited include:
• physical or moral coercion, particularly to obtain information;
• brutality. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 12.37 and 12.39.
In its chapter on “Compliance”, the manual states:
Grave breaches under the Geneva Conventions consist of any of the following acts against persons or property protected under the provisions of the relevant Convention:
• torture or inhuman treatment …
• wilfully causing great suffering or serious injury to body or health. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.25.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commander’s Manual (1994).
Belgium
Belgium’s Manual for Soldiers states that prisoners of war and enemy soldiers who are no longer able to fight shall not be subjected to mental or physical torture. The manual considers this prohibition to be a general principle and specifies that it also applies to prisoners of war. 
Belgium, Droit de la Guerre, Dossier d’Instruction pour Soldat, à l’attention des officiers instructeurs, JS3, Etat-Major Général, Forces Armées belges, undated, pp. 7, 10 and 62, slide 5/1.
Belgium
Belgium’s Law of War Manual (1983) states: “The Detaining Power cannot exercise mental or physical torture on prisoners.” 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, pp. 46 and 55.
The manual adds that torture and inhuman treatment are grave breaches of the 1949 Geneva Conventions. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 55.
Benin
Benin’s Military Manual (1995) provides: “Nobody shall be subjected to physical or mental torture … nor to inhuman or degrading treatment.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 5 and Fascicule III, p. 4.
Bosnia and Herzegovina
The Instructions to the Muslim Fighter (1993) issued by the Army of the Republic of Bosnia and Herzegovina in 1993 state: “Islam likewise forbids the torture and brutalization of prisoners of war.” 
Bosnia and Herzegovina, Instructions to the Muslim Fighter, booklet, ABiH 3rd Corps, 1993, cited in ICTY, Hadžihasanović and Others Case, Amended Indictment, 11 January 2002, § 24(c).
Burkina Faso
Burkina Faso’s Disciplinary Regulations (1994) provides that soldiers are prohibited to submit the wounded, sick and shipwrecked, prisoners and civilians to “inhuman treatment or torture of any kind”. 
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(2).
The Regulations also provide: “Prisoners must be protected against any act of violence, insults and public curiosity.” 
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 36(1).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) lists “torture and inhuman treatment” as a “grave breach” of IHL. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 26; see also Part I bis, pp. 45, 67 and 114, and Part I bis, pp. 26 and 27 (crimes against humanity).
The Regulations also states: “A prisoner of war may not … be subjected to psychological or physical torture for this purpose [to obtain information].” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 24; see also Part I, pp. 10 and 15.
The Regulations further states: “Treat prisoners humanely. Physical or psychological torture is strictly prohibited.” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 26.
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “Combatants who surrender must not be subjected to torture, inhuman or degrading treatment.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 147, § 431; see also p. 103, § 372, p. 147, § 432 and p. 236, § 551.
The manual also states:
The following acts constitute grave breaches [of IHL]:
a) … torture or inhuman treatment;
b) intentionally causing great suffering or grave infringements of physical or psychological integrity;
c) inhuman or degrading practices which result in outrages upon personal dignity. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 295, § 661.
Canada
Canada’s LOAC Manual (1999) provides: “No physical or mental torture, or any other form of coercion, shall be inflicted on PWs [prisoners of wars] or detainees to force them to provide information of any kind”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-3, § 24.
The manual stipulates: “Any form of torture or cruelty, are forbidden.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-7, § 61.
The manual also states that belligerents are forbidden to use physical or moral coercion against protected persons. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-4, §§ 32–33.
The manual further states: “The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents … torture of all kinds, whether physical or mental.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, pp. 11-7/11-8, § 63.
The manual adds that torture is an act against humanity and that “torture and inhumane treatment along with wilfully causing great suffering or serious injury to the wounded, sick and shipwrecked” is a grave breach of the 1949 Geneva Conventions I and II and of the 1977 Additional Protocol I. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-1, § 4, p. 16-2, § 12 and p. 16-3, § 17.
With regard to non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions. It adds that the 1977 Additional Protocol II contains a “statement of fundamental guarantees prohibiting at any time and anywhere … cruel treatment, such as torture”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-2, § 10 and p. 17-3, § 21.
Canada
Canada’s Code of Conduct (2001) states as a general rule the prohibition of “any form of abuse, including torture”. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 6.
Regarding the 1984 Convention against Torture, the manual explains: “It is a service and a criminal offence to torture a PW [prisoner of war] or detained person. Any form of physical or psychological abuse is prohibited.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 6, § 6.
The Code of Conduct further states: “Where interrogation or debriefing is conducted by qualified and authorized personnel, no physical or mental torture, or any other form of coercion, shall be inflicted on PWs or detainees to force them to provide information of any kind”. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 6, § 11.
The Code of Conduct also provides a list of 11 fundamental rules, among which is “any form of abuse, including torture, is prohibited”. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Chapter 3, § 6.
Canada
Canada’s LOAC Manual (2001) provides in its chapter on the treatment of prisoners of war (PWs):
1018. Interrogation
1. A PW may be interrogated but is only required to give name, rank, service number and date of birth. If the PW wilfully refuses to supply such information, the PW may only forfeit privileges due to his or her rank or status.
2. It is forbidden to apply any form of coercion to PWs in an attempt to secure any other information …
3. The interrogation or debriefing of PWs should only be conducted by qualified CF personnel, usually intelligence personnel, in accordance with the relevant UN, coalition or national direction. Where interrogation or debriefing is conducted by qualified and authorized personnel, no physical or mental torture, or any other form of coercion, shall be inflicted on PWs or detainees to force them to provide information of any kind. PWs who refuse to answer shall not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment.
1039. Law applicable to PW
9. Collective punishment for individual acts, corporal punishment, imprisonment in premises without daylight and any form of torture or cruelty, are forbidden. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1018 and 1039.9.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power, and, more specifically, in a section entitled “Provisions common to the territories of the parties to the conflict and to occupied territories”, the manual states:
1. Belligerents are forbidden to use physical or moral coercion against protected persons, in particular with a view of obtaining information from them or from other persons.
2. [The 1949 Geneva Convention IV] prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination. This prohibition applies not only to murder, torture, corporal punishment, mutilation or medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other form of brutality, whether applied by civilians or by military personnel. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1121.1–2.
In the same chapter, in a section entitled “Additional Protocol I”, the manual states:
1. [The 1977 Additional Protocol I] provides that all persons in the power of a party to the conflict are entitled to at least a minimum of humane treatment without adverse discrimination on grounds of race, gender, language, religion, political discrimination or similar criteria. It states in part:
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
a. violence to the life, health, or physical or mental well-being of persons, in particular:
(2) torture of all kinds, whether physical or mental;
b. outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
e. threats to commit any of the foregoing acts. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1135.1, 2.a.2 and 2.b and e.
In its chapter on rights and duties of occupying powers, the manual further states:
1223. Control of persons in occupied territory
3. The following measures of population control are forbidden at all times:
b. physical or moral coercion, particularly to obtain information,
1231. Imprisonment pending trial
2. The Geneva Convention Against Torture expressly prohibits torture or abuse of any kind and at any time against detainees. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1223.3.b and 1231.2.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that torture is a crime against humanity and refers to “torture and inhumane treatment along with wilfully causing great suffering or serious injury to the wounded, sick and shipwrecked” as grave breaches of the 1949 Geneva Conventions I and II. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1604.1.f and 1607.4.
In its chapter on non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:
a. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.
To this end, the following are at any time and in any place prohibited with regard to such persons:
i violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
iii outrages upon personal dignity, in particular, humiliating and degrading treatment. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1708.1.
In the same chapter, the manual also states:
Although [the 1977 Additional Protocol II] contains no provisions relating to enforcement or punishment of breaches, it does contain a statement of fundamental guarantees prohibiting at any time and anywhere:
a. violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
g. threats to commit any of the foregoing. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1713.1.a and g.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
Grave breaches of the [1949 Geneva Conventions] and [the 1977 Additional Protocol I] include any of the following actions.
a. The wilful killing, torture or inhumane treatment (including medical or scientific experimentation) of wounded and sick PW [prisoners of war], or other protected persons, or otherwise wilfully causing them great suffering or serious injury to body and health. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 103.2.a.
With regard to the tactical questioning of prisoners of war at unit headquarters, the manual states:
No physical or mental torture, nor any other form of coercion may be inflicted on a PW in order to secure from them information of any kind whatever. PW who refuse to answer questions may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, p. 3B-3, § B004.4.c (3).
With regard to the key principles governing interrogation and tactical questioning (TQ), the manual states:
a. all interrogation and TQ activity will fully comply with Canadian law and relevant international laws, conventions, and agreements, including the Third Geneva Convention (relative to the treatment of PW), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984);
e. no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 404.
This “no-torture” principle is reiterated in Annex 4A of the manual, governing interrogation and tactical questioning. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 4A04.
Canada
Rule 6 of Canada’s Code of Conduct (2005) instructs: “Treat all detained persons humanely in accordance with the standard set by the Third Geneva Convention. Any form of abuse, including torture, is prohibited.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 6.
The Code of Conduct further states:
6. In accordance with the United Nations Convention Against Torture, Canada has the obligation to set out in the Code of Conduct the prohibition against any form of torture. It is a service and a criminal offence to torture a PW or detained person. Any form of physical or psychological abuse is prohibited. In addition, following the Third Geneva Convention, all PWs must be protected against acts of violence, insults or intimidation. By national direction, all detainees must also be protected against acts of violence, insults or intimidation.
11. The interrogation or debriefing of detainees may only be conducted by qualified personnel such as intelligence personnel in accordance with the relevant UN, coalition or national direction. Where interrogation or debriefing is conducted by qualified and authorized personnel, no physical or mental torture, or any other form of coercion, shall be inflicted on PWs or detainees to force them to provide information of any kind. Detained persons who refuse to answer shall not be threatened, insulted or exposed to unpleasant or ill-treatment of any kind. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 6, §§ 6 and 11.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 1 (Basic and team leader instruction): “Acts of vengeance … are prohibited.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 1: Formation élémentaire toutes armés (FETA), formation commune de base (FCB), certificat d’aptitude technique No. 1 (Chef d’équipe), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section IV.
In Volume 2 (Instruction for group and patrol leaders), the manual states: “No one must be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Fundamental Rules, § 5.
Also in Volume 2, the manual states: “Physically or mentally torturing prisoners of war is prohibited.”  
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter V, Section II, § 7.
In Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police), the manual states: “Causing harm to life, health or physical or mental well-being, for example through … torture, corporal punishment, … [and] degrading treatment, … and threats, is prohibited.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Section I.
Central African Republic
The Central African Republic’s Disciplinary Regulations (2009) states: “During combat, it is also prohibited for servicemen to … commit violence to life and person … , in particular … cruel, inhuman treatment and torture”. 
Central African Republic, Décret 09.411 portant règlement de discipline générale dans les Armées, Ministre de la Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de l’Armée, 10 December 2009, Article 12(11).
Chad
Chad’s Instructor’s Manual (2006) prohibits “torture and humiliating and degrading treatment”. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 92; see also pp. 26 and 47.
The manual also states that “torture and ill-treatment” is a grave breach of the 1949 Geneva Conventions and thus a war crime. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 108.
China
China’s PLA Rules of Discipline (1947) which regulated the behaviour of the Red Army during the Chinese civil war, and were later used by the People’s Liberation Army (PLA), provided that prisoners of war were not to be maltreated. 
China, Order on Re-promulgation of the Three Main Rules of Discipline and the Eight Points for Attention by the Headquarters of the PLA, 10 October 1947, in Selected Works of Mao Zedong, Vol. 4, The People’s Press, p. 1241, Point 8.
Colombia
Colombia’s Circular on Fundamental Rules of IHL (1992) provides: “Nobody shall be subjected to mental or physical torture … cruel or degrading treatment.” 
Colombia, Transcripción Normas Fundamentales del Derecho Humanitario Aplicables en los Conflictos Armados, Circular No. 033/DIPL-SERPO-526, Policía Nacional, Dirección General, Santafé de Bogotá, 14 May 1992, § 5.
Colombia
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. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 29
The manual adds that the civilian population shall not be tortured. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 30.
The manual restates the provisions of common Article 3 of the 1949 Geneva Conventions. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 42.
Congo
The Congo’s Disciplinary Regulations (1986) prohibits torture and inhuman treatment of the wounded and sick, shipwrecked, prisoners of war and civilians. 
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32(2).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
Lesson 3. Rules of behaviour in combat
I.1 Basic rules
[Basic Rule No. 7]:
Treat prisoners humanely. No physical or mental torture is permitted. They are bound to give only information concerning their identity.
I.2 Specific rules
Enemy combatant prisoners
4. Treat them humanely:
- torture and ill-treatment are prohibited,
Lesson 4. Breaches and repression of violations of IHL
I. Grave violations
They are enumerated by the Geneva Conventions and the Additional Protocols, as well as by the Ivorian Penal Code.
They are:
- torture. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 21–22, 23–24 and 29; see also Droit de la guerre, Manuel d’instruction, Livre II: Instruction du gradé et du cadre, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 16; Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 39; Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 66.
In Book II (Instruction of non-commissioned officers and officers), the Teaching Manual provides:
I.1.1. War crimes
They are grave violations of IHL mentioned in the Geneva Conventions and their Additional Protocols, committed during armed conflict.
Examples: … torture … 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre II: Instruction du gradé et du cadre, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 28.
In Book III, Volume 2 (Instruction of second-year trainee officers), the Teaching Manual provides:
I.3. War crimes
This is by far the breach which can take the most varied forms. It relates to the grave breaches of the 1949 Geneva Conventions, namely the following acts directed against the persons or objects protected by these acts:
- torture or inhuman treatment, …;
- wilfully causing great suffering or serious injury to body or health. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 44.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
III.3. Identification of prisoners or war
Prisoners of war must be identified and they are therefore under the obligation to give you their identification number, their rank, their name and first name as well as their date of birth. They are not bound to give other information. This does not mean that one cannot ask them other questions, in particular for tactical information. Prisoners can be a valuable source of information, but no form of coercion or of torture – physical or mental – must be used to force a prisoner to give information. An interrogation requires time and qualified personnel. Therefore, prisoners of war must be rapidly evacuated to the rear, where duly trained interrogators, operating with respect for the law, can do this work in good conditions. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 46.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
II.2.4. Interrogation/Identification
A POW [prisoner of war] can be interrogated, but he is bound to give only his name, rank, matriculation number and date of birth. …
It is prohibited to apply coercion of any kind against the POW in order to try to obtain other information. …
Interrogation of POWs should be carried out only by qualified personnel of the armed forces, normally intelligence personnel, in conformity with relevant directives by the United Nations, the coalition or the country. No physical or mental torture, nor any other form of coercion, may be inflicted on POWs or detainees to force them to give information of any kind whatever. POWs who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 63.
Croatia
Croatia’s LOAC Compendium (1991) provides that “torture, inhumane treatment, acts causing great suffering or serious injury and degrading and inhumane practices” are grave breaches of IHL and war crimes. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, Annex 9, p. 56.
Croatia
According to Croatia’s Instructions on Basic Rules of IHL (1993), detainees must be protected against all acts of violence, including physical or mental torture and cruel or humiliating treatment. 
Croatia, Instructions “Basic Rules of International Humanitarian Law Applicable in Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1993, §§ 4–5.
Denmark
Denmark’s Directive on the Ban on Torture (2008) states that its “purpose … is to make clear to all personnel who are serving in the military that there is an absolute prohibition on torture and other cruel, inhuman or degrading treatment or punishment”. 
Denmark, Forbud Mod Tortur og Anden Grusom, Umenneskelig Eller Nedværdigende Behandling Eller Straf, FKODIR 005-01, Forsvarskommandoen, September 2008, p. 2.
The Directive further states:
4.1.1. The prohibition
Personnel of the Danish armed forces must not engage, instruct, or otherwise contribute to torture or other cruel, inhuman or degrading treatment or punishment.
4.1.2. Duty to act
Personnel of the Danish armed forces must seek to prevent anyone from exercising torture, cruel, inhuman or degrading treatment or punishment, if it can be done without the personnel thereby putting themselves or others at particular risk or self-sacrifice.
4.1.3. Reporting
Personnel shall immediately report to their nearest leader if they have knowledge or reasonable grounds to suspect that someone intends to infringe, is violating or has violated the ban. 
Denmark, Forbud Mod Tortur og Anden Grusom, Umenneskelig Eller Nedværdigende Behandling Eller Straf, FKODIR 005-01, Forsvarskommandoen, September 2008, p. 5.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states: “It is prohibited for combatants to … commit violence to the life and person of … prisoners and civilians, including all forms of … torture and cruel and inhumane treatment”. 
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 30(3).
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states that “torture … , cruel treatment [and] … outrages upon personal dignity (humiliating and degrading treatment) are prohibited”. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 31; see also pp. 35 and 36.
The manual also states: “The fundamental principles concerning detention are as follows: do not use torture or degrading treatment [and] … respect the dignity of the person.” 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 45; see also p. 47.
The manual further states: “Acts prohibited in circumstances of armed conflict [include] torture [and] … corporal punishment (chastisement).” 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 37.
The manual further provides that the following “are currently considered as war crimes … if committed against any person not or no longer participating in hostilities: … torture [and] … inhuman treatment”. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 50; see also p. 51 (genocide).
The manual also provides:
No law enforcement official may inflict, instigate or tolerate an act of torture or cruel, inhuman or degrading treatment or punishment nor may he invoke … exceptional circumstances such as a state of war or a threat of war, a threat against national security, internal political instability or another exceptional state [of affairs] in order to justify torture or cruel, inhuman or degrading treatment or punishment. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 35.
The manual also states with regard to “children in the justice system” that “torture and ill-treatment are prohibited”. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 25.
The manual further states: “Women have … the right under IHL to certain forms of protection specific to their sex, namely the following: … Protection of civilians against … degrading treatment”. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 23.
Dominican Republic
The Dominican Republic’s Military Manual (1980) prohibits torture, threats or other forms of coercion of detained persons to obtain military information. It further states: “Inhuman treatment of civilians is a violation of the law of war.” 
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, pp. 8 and 9.
Ecuador
Ecuador’s Naval Handbook (1989) provides with regard to prisoners of war and civilians that “torture or inhumane treatment, subjection to public insult or curiosity” are representative war crimes. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.5(1)–(2).
El Salvador
El Salvador’s Soldiers’ Manual provides that physical or mental torture is prohibited. 
El Salvador, Manual del Combatiente, undated, p. 10.
El Salvador
El Salvador’s Human Rights Charter of the Armed Forces lists respect for the integrity of persons and their human dignity and the prohibition of torture among the ten basic rules. It also states that torture is a violation of human rights. 
El Salvador, Derechos Humanos. Decálogo de la Fuerza Armada de El Salvador, Ministerio de la Defensa Nacional, Departamento de Derecho Humanitario, Rules 3 and 7, pp. 3, 14 and 18.
France
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, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi, Article 9 bis (2).
France
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, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, §§ 3.2 and 3.4.
France
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, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, pp. 2, 3 and 7.
France
France’s LOAC Manual (2001) provides: “The authorities are responsible for the … physical integrity of persons in their power.” 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 32.
The manual refers to Article 7 of the 1998 ICC statute and stipulates that torture and inhuman and degrading treatment are crimes against humanity. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 45.
The manual further provides that torture is prohibited by the law of armed conflict and in particular by the 1984 Convention against Torture. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, pp. 51 and 52.
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. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 122.
Germany
Germany’s Military Manual (1992) provides that one of the fundamental rules governing the treatment of prisoners of war is the prohibition on treating them inhumanely or dishonourably. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 704.
The manual adds that when questioned, “no physical or mental torture, nor any form of coercion, may be inflicted on prisoners of war”. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 713.
The manual further states that “torture and inhumane treatment … [and] wilfully causing great suffering, serious injury to body or health” are grave breaches of IHL. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1209.
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides: “It is forbidden for members of the armed forces: … To violate the life and physical integrity of sick, wounded as well as citizens by means of … torture.” 
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984 (Military Regulation 20-1), as amended, Article 15(i).
Guinea
Guinea’s Soldier’s Manual (2010), under the heading “Rules of conduct in combat”, states: “No torture, whether physical or mental, is permitted.” 
Guinea, Soldier’s Manual, Ministry of National Defence, 2010, p. 15.
Hungary
Hungary’s Military Manual (1992) provides that “torture, inhumane treatment, acts causing great suffering or serious injury and degrading and inhumane practices” are grave breaches of the 1949 Geneva Conventions and war crimes. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 90.
India
India’s Army Training Note (1995) prohibits ill-treatment, harassment of civilians and torture. 
India, Army Training Note, Chief of Staff, Army Training Command, Ministry of Defence, Government of India, 1995, p. 4/23, §§ 10–12.
Indonesia
Indonesia’s Directive on Human Rights (1995) in Trikora states: “Respect for personal and human dignity consists of no acts of torture, no acts of cruelty, ill-treatment or inhuman punishment.” 
Indonesia, Directive concerning the Respect of Human Rights in Military Operations, issued by the Commander of the Regional Military Command of Trikora, No. Skep/96/XII/1995, 1 November 1995, § 4(a).
Indonesia
Indonesia’s Field Manual (1979) specifies that although the government has the right to use legitimate force against rebels, the fundamental principles of the 1949 Geneva Conventions still apply and the Indonesian armed forces have to ensure that the personal dignity of prisoners of war is respected in all circumstances. 
Indonesia, Field Manual concerning the Treatment of Prisoners of War, Department of Defence, 1979, Section 1, § 4 and Section 3, § 5.
Ireland
Ireland’s Basic LOAC Guide (2005) states: “The following acts are specified as grave breaches under the convention for the treatment of PWs [prisoners of war] [1949 Geneva Convention III]: - … torture or inhumane treatment; [and] wilfully causing great suffering or serious injury to body or health”.  
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 10.
The manual further states that “torture or inhumane treatment; [and] wilfully causing great suffering or serious injury to body or health” are grave breaches of the 1949 Geneva Convention IV relating to the treatment of civilians. 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 12.
The manual also provides a list of “Soldiers Rules”, one of which is: “Do not torture … or abuse prisoners of war.” 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 13.
Israel
Israel’s Manual on the Laws of War (1998) states: “The rationale behind the law of war is that even in the midst of the inferno, there are grave deeds that must not be committed … torture of prisoners”. 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 4.
The manual specifies that a combatant hors de combat is entitled to special rights, i.e. protection against physical and mental harm and that “torture and imprisonment under inhuman conditions are absolutely forbidden”. 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, pp. 46 and 53.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
Even if it appears that in war everything is permissible and there is no differentiating between a moral and an immoral act, even in the heat of battle there are actions that are considered unacceptable (rape, the torturing of prisoners-of-war, medical experiments) and it is on these that the rules of warfare are based. Although the rules of warfare do not entirely prevent the horrors of war, they draw a line in the sand that must not be crossed, even in war. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 8; see also p. 13.
The manual further states: “The disciplinary and punishment rules applicable in the army of the imprisoning country will also apply to the prisoners-of-war … torture and imprisonment under inhumane conditions are absolutely forbidden.” 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 34.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s IHL Manual (1991) provides that, in occupied territories, civilians shall not be subject to brutality and torture. It also stipulates that the ill-treatment of prisoners of war is a war crime. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, §§ 41(e) and 84.
Kenya
Kenya’s LOAC Manual (1997) provides: “No physical or mental torture, nor any form of coercion may be used to obtain [information].” It stipulates: “No physical or mental torture of prisoners is permitted.” The manual restates common Article 3 of the 1949 Geneva Conventions. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, pp. 5–6, and Précis No. 3, pp. 8 and 14.
Madagascar
Madagascar’s Military Manual (1994) provides: “No mental or physical torture of prisoners of war is allowed.” It also states that one of the seven fundamental rules of IHL is that nobody shall be subject to mental or physical torture or to humiliating or degrading treatment. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 5-T, § 7, and p. 91, Rule 5.
Mali
Mali’s Army Regulations (1979) provides that attacks on the physical integrity, in particular torture, of the wounded, sick and shipwrecked, prisoners and civilians are a grave breach of the laws and customs of war. It adds that from the moment of their capture, “prisoners of war must be treated humanely. They must be protected against all acts of violence, against insults and public curiosity. They have the right of respect for their honour.” 
Mali, Règlement du Service dans l’Armée, 1ère Partie: Discipline Générale, Ministère de la Défense Nationale, 1979, Article 36.
Mexico
Mexico’s Army and Air Force Manual (2009) states: “The States party to the [1949] Geneva Conventions undertake to: … prohibit torture [and] inhuman treatment.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 80(C).
In a section on the 1949 Geneva Convention I, the manual also states:
Members of the armed forces and other persons who are wounded or sick must be respected and protected in all circumstances and receive the medical attention required by their condition as promptly as possible. Any attempts upon their lives or violence to their persons are strictly prohibited; in particular, they must not be … subjected to torture. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 88.
In a section on the 1949 Geneva Convention II, the manual further states:
111. The [1949 Geneva] Convention [II] provides that members of the armed forces and other persons at sea who are wounded, sick or shipwrecked must be respected and protected in all circumstances …
113. Any attempts upon their lives or violence to their persons are strictly prohibited; in particular, they must not be … subjected to torture. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, §§ 111 and 113.
In a section on the 1949 Geneva Convention III, the manual also states: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 155.
Mexico
Mexico’s IHL Guidelines (2009) states: “War crimes include … ill-treatment” of protected persons. 
Mexico, Cartilla de Derecho Internacional Humanitario, Ministry of National Defence, 2009, § 5.
In a section entitled “Basic rules of conduct in armed conflict”, the Guidelines also states: “Do not mistreat anyone. It is prohibited to torture people or subject them to cruel, inhuman, humiliating or degrading treatment.” 
Mexico, Cartilla de Derecho Internacional Humanitario, Ministry of National Defence, 2009, § 14(s).
Morocco
Morocco’s Disciplinary Regulations (1974) prohibits the torture and cruel treatment of the sick, wounded and shipwrecked, prisoners and civilians. 
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25(2).
Netherlands
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. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, pp. VII-4, VIII-3, XI-1 and XI-4.
Netherlands
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. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0116.
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.
Examples:
- Torture, cruelty or humiliating punishments or treatment are forbidden. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0224(d); see also § 0603 (wounded and sick).
The manual further provides:
Fundamental guarantees
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). 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0708.
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. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0715, 0717–0718 and 0810; see also § 0807 (protection of the civilian population).
[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”. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1020.
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. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1051.
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. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 1211–1212, p. 197 and § 1226.
New Zealand
New Zealand’s Military Manual (1992) provides, regarding the punishment of prisoners of war, that “cruelty and torture are forbidden”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 931.2.
The manual further provides with regard to internees: “In no case shall disciplinary penalties be inhuman, [or] brutal”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1129.2.
The manual restates Article 75(2) of the 1977 Additional Protocol I. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1137.2.
The manual further stipulates, regarding civilians, that the 1949 Geneva Convention IV prohibits the parties from “taking any measure of such character as to cause the physical suffering … of protected persons in their hands”, including torture. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1321.4.
According to the manual, “torture or inhuman treatment of protected persons” is a grave breach of the 1949 Geneva Conventions I and II. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1702.1.
With regard to non-international armed conflicts, the manual restates the prohibition of torture and cruel treatment contained in common Article 3 of the 1949 Geneva Conventions. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1807.1; see also § 1812.1.
Nicaragua
Nicaragua’s Military Manual (1996) prohibits torture and cruel treatment. 
Nicaragua, Manual de Comportamiento y Proceder de las Unidades Militares y de los Miembros del Ejército de Nicaragua en Tiempo de Paz, Conflictos Armados, Situaciones Irregulares o Desastres Naturales, Ejército de Nicaragua, Estado Mayor General, Asesoría Jurídica del Nicaragua, 1996, Articles 7(1) and 14(31).
The manual also states that prisoners have the right to be protected against all forms of violence, in both internal and international armed conflicts. 
Nicaragua, Manual de Comportamiento y Proceder de las Unidades Militares y de los Miembros del Ejército de Nicaragua en Tiempo de Paz, Conflictos Armados, Situaciones Irregulares o Desastres Naturales, Ejército de Nicaragua, Estado Mayor General, Asesoría Jurídica del Nicaragua, 1996, Articles 6 and 14(18).
Nigeria
Nigeria’s Manual on the Laws of War provides that it is particularly prohibited to torture the wounded and sick. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 35.
The manual specifies that torture or inhuman treatment and wilfully causing great suffering or serious injury to body or health are grave breaches of the 1949 Geneva Conventions and serious war crimes. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6(a).
Nigeria
Nigeria’s Military Manual (1994) recalls the content of Article 12 of the 1949 Geneva Convention I and prohibits subjecting the wounded and sick to torture. It adds that military forces “are not allowed to make recourse to physical or mental torture or any form of coercion”. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, Chapter 2, §§ 4 and 9.
Peru
Peru’s Human Rights Charter of the Security Forces (1991) lists the prohibition of torture as one of the ten basic rules. The manual also prohibits the ill-treatment of unresisting wounded persons. 
Peru, Derechos Humanos: Decálogo de las Fuerzas del Orden, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, 1991, Rule 7 and pp. 7–9.
Peru
Peru’s IHL Manual (2004) states that “any form of torture (physical or mental) is prohibited”. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32.h.
The manual also states:
Medical personnel must refrain from any act that can be classed as a war crime against persons or property protected under international humanitarian law. These include:
(2) torture or inhuman treatment, …
(3) wilfully causing great suffering or serious injury to body or health. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 83.f.(2) and (3).
The manual further states that war crimes include:
(2) torture or inhuman treatment;
(3) wilfully causing great suffering;
(4) serious injury to body or health. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 31.a.(2)–(4).
In situations of non-international armed conflict, the manual states that “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment” committed against persons taking no active part in hostilities, or placed hors de combat, are prohibited. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 71.a.(1) and (3).
Peru
Peru’s IHL and Human Rights Manual (2010), in a section on the “Civilian Population”, states that “torture (both physical and mental) … is prohibited”. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 33(h), p. 251.
With respect to prisoners of war, the manual states: “Physical or mental torture or any other form of coercion is prohibited.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 40(b), p. 255.
The manual further states that war crimes include:
(2) torture or inhuman treatment;
(3) wilfully causing great suffering;
(4) serious injury to body or health. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 100(a)(2)–(4), p. 248.
In situations of non-international armed conflict, the manual states that “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment” committed against persons taking no active part in hostilities, or placed hors de combat, is prohibited. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 72(a)(1) and (3), p. 270.
The manual also states with regard to the provision of medical services: “medical personnel must refrain from subjecting protected persons to affronts and insults to their dignity, humiliating or degrading treatment and exposure to public curiosity.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 75(c), p. 274.
In a section on the relationship between IHL and human rights law, the manual states:
There are … principles common to the [1949] Geneva Conventions and human rights law which represent a minimum level of protection to which every human person is entitled … [including] [r]espect for life, physical and mental integrity … [and] each individual’s right to security of the person.
Regarding these fundamental guarantees there is no exception whatsoever and they are binding both in times of peace and in times of armed conflict. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 26, pp. 41–42.
In a section on the human rights obligations of the security forces, the manual further states: “Do not torture kindred human beings.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 102(g), p. 136; see also pp. 145–146.
Philippines
The Rules for Combatants (1989) of the Philippines provides that “prisoners must be respected” and that “it is forbidden to … torture or mistreat them”. 
Philippines, Rules for Combatants, in Handbook on Discipline, Annex C(II), General Headquarters, Armed Forces of the Philippines, Camp General Emilio Aguinaldo, Quezon City, 1989, § 4(a).
Philippines
The Soldier’s Rules (1989) of the Philippines instructs soldiers: “No physical or mental torture of prisoners of war is permitted.”  
Philippines, Soldier’s Rules, in Handbook on Discipline, Annex C(I), General Headquarters, Armed Forces of the Philippines, Camp General Emilio Aguinaldo, Quezon City, 1989, § 7.
Philippines
The Philippine National Police Manual on Ethical Doctrine (1995) provides:
Respect for Human Rights – In the performance of duty, PNP [Philippine National Police] members shall respect and protect human dignity and uphold the human rights of all persons. No member shall inflict, instigate or tolerate extrajudicial killings, arbitrary arrests, any act of torture or other cruel, inhuman or degrading treatment or punishment, and shall not invoke superior orders or exceptional circumstances such as a state-of-war, a threat to national security, internal political instability or any public emergency as a justification for committing such human rights violations. 
Philippines, Manual on Ethical Doctrine, PNPM-0-0-8-95 (DHRDD), Directorate for Human Resource and Doctrine Development, National Headquarters, Philippine National Police, Revised, August 1995 Edition, Section 2.9.
Romania
Romania’s Soldiers’ Manual (1991) provides that captured combatants and civilians “shall not be subjected to physical or mental torture … or cruel, inhuman or degrading treatment”. 
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, p. 34, § 2.
Russian Federation
The Russian Federation’s Military Manual (1990) states that prohibited methods of warfare include “torture aimed at obtaining information of any kind”. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 5(b).
The manual further prohibits the torture and cruel treatment of victims of war, namely the wounded, sick and shipwrecked, prisoners of war and the civilian population. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 8(a).
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
Under any circumstances international humanitarian law ensures humane treatment during an armed conflict of persons not directly involved in combat operations … In particular, the following shall be prohibited with regard to such persons:
- violence to life and person, including murder of any kind, mutilation, cruel treatment, torture and torment;
- outrages upon personal dignity, in particular humiliating and degrading treatment;
..
- threats to commit any of the above acts. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 4.
With regard to prisoners of war, the Regulations states: “Prisoners of war shall be questioned in the language they understand, no torture or any other pressure may be used.” 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 51.
With regard to internal armed conflict, the Regulations states:
The following acts against [all persons who do not take a direct part or who have ceased to take part in hostilities] are and shall remain prohibited at any time and in any place whatsoever: … violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; …outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault [and] threats to commit any of the foregoing acts. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 81.
Senegal
Senegal’s Disciplinary Regulations (1990) provides that it is prohibited for soldiers in combat to make an attack on the integrity or dignity of the wounded, sick, shipwrecked, prisoners and civilians, including cruel treatment or any type of torture. 
Senegal, Règlement de Discipline dans les Forces Armées, Décret 90-1159, 12 October 1990, § 2.
Senegal
Senegal’s IHL Manual (1999) restates the provisions of common Article 3 of the 1949 Geneva Conventions. It points out that one of the fundamental guarantees common to the IHL conventions and the 1948 Universal Declaration of Human Rights is the prohibition of torture and humiliating, cruel and degrading treatment. 
Senegal, Le DIH adapté au contexte des opérations de maintien de l’ordre, République du Sénégal, Ministère des Forces Armées, Haut Commandement de la Gendarmerie et Direction de la Justice Militaire, Cabinet, 1999, pp. 3, 4 and 23.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
[T]here are certain human rights that can never be suspended no matter the situation. These are referred to as hard-core rights and they include … the prohibition of cruel, inhuman and degrading treatment [and] freedom from torture … Hard core rights are protected under the LoAC as well. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 18.
[emphasis in original]
The manual further states: “The torture of prisoners is a war crime.” 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 34.
South Africa
South Africa’s LOAC Manual (1996) provides: “Inhuman and degrading practices are grave breaches of [the 1977 Additional Protocol I].” 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 38(b).
The manual further states that “torture or inhuman treatment and … wilfully causing great suffering or serious injury to body or health” are grave breaches of the 1949 Geneva Conventions. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 40.
Regarding the treatment of prisoners of war, the manual states: “It is forbidden to obtain further information through … physical or mental torture or coercion.” 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 62.
South Africa
South Africa’s Revised Civic Education Manual (2004) states:
The following acts are regarded as grave breaches [of the law of armed conflict and, consequently, war crimes]:
a. … torture, or inhumane treatment of any persons.
b. The causing of great suffering or serious injury to body or health of any person.
c. Inhumane and degrading practices involving outrages upon the personal dignity of an individual or group of persons. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 57.
The manual further provides: “POWs [prisoners of war] are required only to give their name, serial number and date of birth, and no other information. It is forbidden to obtain further information through threats, physical or mental torture, or coercion.” 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 77.
Spain
Spain’s LOAC Manual (1996) lists the obligations of the detaining power, inter alia, that “it is prohibited to use physical or mental torture to obtain information” from prisoners of war. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 6.4.h.(1); see also § 8.3.b.(2).
According to the manual, prisoners of war have the right “not to be subjected to any form of pressure or torture”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 6.4.h.(2).
The manual adds that it is prohibited at all times and in all places to subject prisoners of war to torture, whether physical or mental, whether committed by military or civilian agents. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 8.2.c.
Regarding the penal and disciplinary regime for prisoners of war, the manual states: “It is prohibited … generally speaking, all forms of torture and cruelty.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 8.7.b.
The manual contains the provisions of Article 75 of the 1977 Additional Protocol I. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 8.2.c.
Under the manual, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health and any deliberate act or omission endangering the health or physical and mental integrity committed by medical personnel are war crimes. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 9.2.a.(2).
Spain
Spain’s LOAC Manual (2007) states:
[N]o person who is captured or detained in relation to an armed conflict remains unprotected under the law of armed conflict and is entitled, at all times, to minimum guarantees. [These include] … prohibition of the following acts at any time and in any place, whether committed by civilian or military agents: … any kind of physical or mental torture … [or] outrages upon personal dignity, in particular humiliating and degrading treatment. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.2.c; see also § 1.4.
The manual lists the obligations of the detaining power, inter alia, that “it is prohibited to use physical or mental torture or any other form of coercion to obtain information” from prisoners of war. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 6.4..h.(1).
According to the manual, prisoners of war have the right “not to be subjected to any kind of coercion or torture”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 6.4.h.(2); see also §§ 8.3.b.(2), 8.7.b and 10.3.e.(1).
Under the manual, “torture or inhuman treatment”, “wilfully causing great suffering or serious injury to body or health” and “any wilful act or omission which seriously endangers the physical or mental health or integrity of persons” committed by medical personnel are war crimes. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (E dición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 9.2.a.(2).(b).
Sweden
Sweden’s Military Manual (1976) provides that military persons and civilians in the power of a party to the conflict shall not be tortured or mistreated. 
Sweden, Folkrätten – Internationella regler i krig, Blhang Svensk soldat, 1976, p. 28.
Sweden
Sweden’s IHL Manual (1991) considers that the fundamental guarantees for persons in the power of one party to the conflict as contained in Article 75 of the 1977 Additional Protocol I are part of customary international law. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
The manual provides that “torture or inhuman treatment” is a grave breach of the 1949 Geneva Conventions. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 4.2, p. 93.
The manual also states: “Protected persons may not be exposed to any form of physical or mental coercion.” 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 6.1.3, p. 122.
Switzerland
Switzerland’s military manuals provide that enemy civilians shall have their human dignity and honour respected and not be tortured or subjected to inhuman treatment or mental and physical cruelty. 
Switzerland, Lois et coutumes de la guerre, Manuel 51.7/III dfi, Armée suisse, 1984, p. 34; Droit des gens en temps de guerre, Programme d’instruction fondé sur le Manuel 51.7/III “Lois et coutumes de la guerre”, Cours de base pour recrues de toutes les armes 97.2f, Armée suisse, 1986, p. 43; Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 106.
The Basic Military Manual provides that “torture or inhuman treatment … wilfully causing great suffering or serious injury to body or health” is a grave breach of the 1949 Geneva Conventions. It also provides for the punishment of the ill-treatment of enemy combatants who surrender. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Articles 192(a) and 194.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
5 Restriction of fundamental freedoms
32 Due to the so-called guarantee of the intangible core, the following freedoms are inalienable and can never be restricted:
2 the prohibition of torture, inhuman or degrading treatment and punishment;
36 Due to the mission of the army, fundamental rights and freedoms may be restricted during military service. The inviolable core of fundamental freedoms can never be affected by these restrictions; it must be protected and respected at all times.
13.2 Behaviour with regard to combatants and prisoners
187 Prisoners must be humanely treated at any time and in any place. Any act of torture, physical or mental ill-treatment, degrading treatment or discrimination as well as measures of reprisal are prohibited. The State is responsible for the treatment of prisoners; each individual may be held liable for violations.
13.3 Behaviour with regard to civilians
198 Foreign civilians or civilians of an adverse party to a conflict are specifically protected under the law of armed conflict. If they are in the hands of a military unit, they must at all times be treated humanely. Any act of torture, physical or mental ill-treatment, degrading treatment or discrimination as well as measures of reprisal are prohibited. …
17 Sanctions for violations of the international law of armed conflict
237 The following in particular are criminal offences: … torture[.] 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 32, 36, 187, 198 and 237. The German language version notes in heading 13.2: “Behaviour with regard to surrendering [“sich ergebenden”] combatants and prisoners”.
[emphasis in original]
Togo
Togo’s Military Manual (1996) provides: “Nobody will be subjected to physical or mental torture … nor to inhuman or degrading treatment.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule I, p. 11, Fascicule II, p. 5 and Fascicule III, p. 4.
Uganda
Uganda’s Code of Conduct (1986) requires members of the armed forces not to abuse, insult, shout at or beat any member of the public. 
Uganda, Code of Conduct for the National Resistance Army (NRA), Legal Notice No. 1 of 1986 (Amendment), 23 August 1986, Rule 1.
Ukraine
Ukraine’s IHL Manual (2004) states:
1.8.5. Serious violations of international humanitarian law directed against people include:
- torture and inhuman treatment;
- intentionally causing great suffering, or serious injury to body or health of a person;
- inhuman treatment accompanied by degrading human dignity.
2.5.4.5. … No torture or any other form of coercion may be inflicted on prisoners of war. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, §§ 1.8.5 and 2.5.4.5.
The manual further states that, in non-international armed conflicts, “torture” and “cruel treatment”, or threats of such actions, against the following persons are prohibited:
- persons taking no active part in the hostilities;
- members of armed forces who have laid down their arms;
- those placed hors de combat by sickness, wounds, detention, or any other cause. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.4.10.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) prohibits measures against protected persons (prisoners of war, civilians) which would cause physical suffering, including torture and brutal treatment. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, §§ 42, 205, 282 and 549.
The manual restates the provisions of common Article 3 of the 1949 Geneva Conventions. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 131.
The manual provides that “torture or inhuman treatment” of prisoners of war is a grave breach of the 1949 Geneva Conventions. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 625(a).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides that the “wounded and sick of the opposing forces must not be tortured”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 6, p. 22, § 2.
With respect to prisoners of war, the Pamphlet states that “a PW [prisoner of war] is not required to provide any further information and no physical or mental torture nor any form of coercion may be used to obtain it” and adds that “in no case, may disciplinary punishments be inhumane, brutal or dangerous to health”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 8, p. 29, § 9 and p. 32, § 19(d); see also Annex A, p. 48, § 18(f) and p. 49, § 19(e).
With regard to non-international armed conflicts, the Pamphlet restates common Article 3 of the 1949 Geneva Conventions. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 12, p. 42, § 2.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
The following acts are prohibited “at any time and in any place whatsoever”:
a. violence to the life, health or physical or mental well-being of persons, in particular:
(2) torture of all kinds, whether physical or mental;
b. outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.4.
In its chapter on prisoners of war, the manual states that it is forbidden to use “any form of torture or cruelty” to punish prisoners. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.121.
With regard to internal armed conflict, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
Under the terms of Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply “as a minimum”, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.4.
Lastly, in its chapter on enforcement of the law of armed conflict, the manual states:
Grave breaches under the Geneva Conventions consist of any of the following acts against persons or property protected under the provisions of the relevant convention:
b. torture or inhuman treatment, including biological experiments;
c. wilfully causing great suffering or serious injury to body or health. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.24.
United States of America
The US Field Manual (1956) restates common Article 3 of the 1949 Geneva Conventions.  
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 11.
The manual provides: “In no case shall disciplinary penalties be inhuman, brutal or dangerous for the health of internees.” 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 93, 163, 215, 271 and 326.
The manual specifies that “torture or inhuman treatment” is a war crime under the 1949 Geneva Conventions. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 502.
United States of America
The US Air Force Pamphlet (1976) states that both human rights law and IHL “safeguard such fundamental rights as freedom from torture or cruel and inhuman punishment”. It further refers to Article 12 of the 1949 Geneva Convention II, which provides that sick and wounded members of the opposing forces shall not be subjected to torture. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, §§ 11–5 and 12-2(a).
United States of America
The US Air Force Commander’s Handbook (1980) prohibits “torture, threats, or other coercion against prisoners of war to obtain further information”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(a).
United States of America
The US Soldier’s Manual (1984) and Instructor’s Guide (1985) provide that no physical or mental torture, nor any other form of coercion, may be inflicted on detainees. 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 5; Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 10.
The Soldier’s Manual provides that inhumane treatment of civilians is a violation of the law of war for which every soldier can be prosecuted and that “inhumane treatment of any person is a capital offence prohibited at any time and in any place whatsoever”. 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, pp. 16 and 20.
United States of America
The US Naval Handbook (1995) provides with regard to prisoners of war and civilians that “torture or inhumane treatment, subjection to public insult or curiosity” are representative war crimes. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1–10, October 1989), § 6.2.5.1.
United States of America
The US Manual for Military Commissions (2007) states:
Confessions, admissions, and other statements
(a) General rules.
(1) A statement obtained by use of torture shall not be admitted into evidence against any party or witness, except against a person accused of torture as evidence that the statement was made.
(2) A statement alleged to be the product of coercion may only be admitted as provided in section (c) below.
(3) A statement produced by torture or otherwise not admissible under section (c) may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this rule.
(b) Definitions. As used in these rules:
(1) Confession. A “confession” is an acknowledgment of guilt.
(2) Admission. An “admission” is a self-incriminating statement not comprising an acknowledgment of guilt, whether or not intended by its maker to be exculpatory.
(3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, “torture” is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control. “Severe mental pain or suffering” is defined as the prolonged mental harm caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(4) Cruel, inhuman or degrading treatment. The cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
(c) Statements allegedly produced by coercion. When the degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted in accordance with this section.
(1) As to statements obtained before December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into evidence.
(2) As to statements obtained on or after December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part III, Rule 304(a)-(c), pp. III-8 and III-9.
In Part IV, Crimes and Elements, the manual includes in the list of crimes triable by military commissions:
TORTURE.
a. Text. “Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused inflicted severe physical or mental pain or suffering upon one or more persons;
(2) The accused did so for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind;
(3) The accused intended to inflict such severe physical or mental pain or suffering;
(4) The infliction of pain or suffering was not incidental to lawful sanctions;
(5) Such person or persons were in the custody or under the control of the accused at the time of the alleged offense; and
(6) The conduct took place in the context of and was associated with armed conflict.
c. Explanation.
(1) This offense does not include pain or suffering arising only from, inherent in, or incidental to, lawfully imposed sanctions or punishments. This offense does not include the incidental infliction of pain or suffering associated with the lawful conduct of hostilities.
(2) Severe “mental pain or suffering” is the prolonged mental harm caused by or resulting from:
(a) the intentional infliction or threatened infliction of severe physical pain or suffering;
(b) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(c) the threat of imminent death; or
(d) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(3) “Prolonged mental harm” is a harm of some sustained duration, though not necessarily permanent in nature, such as a clinically identifiable mental disorder.
(4) Element (b)(4) of this offense does not require a particular formal relationship between the accused and the victim. Rather, it precludes prosecution for pain or suffering consequent to a lawful military attack.
d. Maximum punishment. Death, if the death of any person occurs as a result of the torture. Otherwise, confinement for life.
CRUEL OR INHUMAN TREATMENT.
a. Text. “Any person subject to this chapter who commits an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused wrongfully and unlawfully inflicted severe or serious physical or mental pain or suffering upon one or more persons;
(2) The accused intended to inflict such severe or serious physical or mental pain or suffering upon the person;
(3) The infliction of such pain or suffering was not incidental to lawful sanctions;
(4) Such person or persons were in the custody or under the control of the accused at the time of the alleged offense; and
(5) The conduct took place in the context of and was associated with armed conflict.
c. Definitions.
(1) The term “serious physical pain or suffering” means bodily injury that involves—
(A) a substantial risk of death;
(B) extreme physical pain;
(C) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(D) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
(2) The term “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(3) The term “serious mental pain or suffering” means the prolonged mental harm (if the alleged act occurred prior to or on October 17, 2006) or serious and non-transitory mental harm which need not be prolonged (if the alleged act occurred after October 17, 2006) caused by or resulting from—
(A) the intentional infliction or threatened infliction of serious physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, serious physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
d. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.
e. Maximum punishment. Death, if the death of any person occurs as a result of the cruel or inhuman treatment. Otherwise, confinement for life.
INTENTIONALLY CAUSING SERIOUS BODILY INJURY.
a. Text. “Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused caused serious injury to the body or health of one or more persons;
(2) The accused intended to inflict such serious injury upon the person or persons;
(3) The injury was done with unlawful force or violence;
(4) The serious bodily injury inflicted by the accused was in violation of the law of war; and
(5) The conduct took place in the context of and was associated with armed conflict.
c. Definition. SERIOUS BODILY INJURY DEFINED.— the term “serious bodily injury” means bodily injury which involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
d. Comment. For the accused to have been acting in violation of the law of war, the accused must have taken acts as a combatant without having met the requirements for lawful combatancy. It is generally accepted international practice that unlawful enemy combatants may be prosecuted for offenses associated with armed conflicts, such as murder; such unlawful enemy combatants do not enjoy combatant immunity because they have failed to meet the requirements of lawful combatancy under the law of war.
e. Maximum punishment. Death, if the death of any person occurs as a result of the serious bodily injury. Otherwise, 20 years confinement. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(11), (12) and (13), pp. IV-8 to IV-11.
United States of America
The US Naval Handbook (2007) states that “the following acts are prohibited with respect to detainees in DOD [Department of Defense] custody and control: … cruel treatment and torture … [and] [o]utrages upon personal dignity, in particular humiliating and degrading treatment”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2.
The Handbook further states: “All detainees shall … not be subjected to sensory deprivation.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2.
The Handbook also states with respect to prisoners of war: “Torture, threats, or other coercive acts are prohibited.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.3.1.
The Handbook further states that examples of war crimes that could be considered as grave breaches of the 1949 Geneva Conventions include:
1. Offenses against prisoners of war, including … torture or inhumane treatment; subjection to public insult or curiosity …
2. Offenses against civilian inhabitants of occupied territory, including … torture or inhumane treatment.
3. Offenses against the sick and wounded, including … mistreating enemy forces disabled by sickness or wounds. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6(1)–(3).
The Handbook also states: “The inhumane treatment of detainees is prohibited and is not justified by the stress of combat or deep provocations.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2.
United States of America
The US Manual on Detainee Operations (2008) states:
Inhumane treatment of detainees is prohibited by the Uniform Code of Military Justice, domestic and international law, and DOD [Department of Defense] policy. There is no exception to this humane treatment requirement. Accordingly, the stress of combat operations, the need for intelligence, or deep provocation by captured and/or detained personnel does not justify deviation from this obligation. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. vii; see also pp. I-1–I-2.
The manual further states:
Detaining officials must recognize that detained enemy combatants [ECs] who have not satisfied the applicable criteria in the … [1949 Geneva Convention III] will have a status as unlawful ECs, but are still entitled to humane treatment. The inhumane treatment of detainees is prohibited and is not justified by the stress of combat or deep provocation. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. I-4.
The manual also states:
As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts …
… Common Article 3 to the Geneva Conventions of 1949, as construed and applied by U.S. law, establishes minimum standards for the humane treatment of all persons detained by the United States, coalition, and allied forces. Common Article 3 prohibits at any time and in any place: “cruel treatment and torture; … outrages upon personal dignity, in particular humiliating and degrading treatment … ”. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
The manual further states:
DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program] requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949 …
Article 3 Common to the Geneva Convention of 1949
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities … shall in all circumstances be treated humanely …
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) … cruel treatment and torture;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. III-11–III-12.
The manual quotes a statement by the US President to the United Nations on the occasion of the International Day in Support of Victims of Torture, 26 June 2004, as follows:
American personnel are required to comply with all U.S. laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees. The United States also remains steadfastly committed to upholding the [1949] Geneva Conventions, which have been the bedrock of protection in armed conflict for more than 50 years. These Conventions provide important protections designed to reduce human suffering in armed conflict. We expect other nations to treat our service members and civilians in accordance with the Geneva Conventions. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. I-1.
[emphasis in original]
United States of America
The US Manual for Military Commissions (2010), in Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
(11) TORTURE.
a. Text. “Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused inflicted severe physical or mental pain or suffering upon one or more persons;
(2) The accused did so for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind;
(3) The accused intended to inflict such severe physical or mental pain or suffering;
(4) The infliction of pain or suffering was not incidental to lawful sanctions;
(5) Such person or persons were in the custody or under the control of the accused at the time of the alleged offense; and
(6) The conduct took place in the context of and was associated with hostilities.
c. Explanation.
(1) This offense does not include pain or suffering arising only from, inherent in, or incidental to, lawfully imposed sanctions or punishments. This offense does not include the incidental infliction of pain or suffering associated with the lawful conduct of hostilities.
(2) Severe “mental pain or suffering” is the prolonged mental harm caused by or resulting from:
(a) the intentional infliction or threatened infliction of severe physical pain or suffering;
(b) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(c) the threat of imminent death; or
(d) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(3) “Prolonged mental harm” is a harm of some sustained duration, though not necessarily permanent in nature, such as a clinically identifiable mental disorder.
(4) Element (b)(4) of this offense does not require a particular formal relationship between the accused and the victim. Rather, it precludes prosecution for pain or suffering consequent to a lawful military attack.
d. Maximum punishment. Death, if the death of any person occurs as a result of the torture. Otherwise, confinement for life.
(12) CRUEL OR INHUMAN TREATMENT.
a. Text. “Any person subject to this chapter who subjects another person in their custody or under their physical control, regardless of nationality or physical location, to cruel or inhuman treatment that constitutes a grave breach of common Article 3 of the [1949] Geneva Conventions shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused wrongfully and unlawfully subjected another person or persons to cruel or inhuman treatment;
(2) The accused intended to subject another person or persons to cruel or inhuman treatment;
(3) The subjection of such person or persons to cruel or inhuman treatment was a grave breach of common Article 3 of the Geneva Conventions;
(4) The subjection of such cruel or inhuman treatment was not incidental to lawful sanctions;
(5) Such person or persons were in the custody or under the control of the accused at the time of the alleged offense; and
(6) The conduct took place in the context of and was associated with hostilities.
c. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.
d. Maximum punishment. Death, if the death of any person occurs as a result of the cruel or inhuman treatment. Otherwise, confinement for life.
(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.
a. Text. “Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including privileged belligerents, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused caused serious injury to the body or health of one or more persons;
(2) The accused intended to inflict such serious injury upon the person or persons;
(3) The injury was done with unlawful force or violence;
(4) The serious bodily injury inflicted by the accused was in violation of the law of war; and
(5) The conduct took place in the context of and was associated with hostilities.
c. Definition. … [T]he term “serious bodily injury” means bodily injury which involves—
(1) a substantial risk of death;
(2) extreme physical pain;
(3) protracted and obvious disfigurement; or
(4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
d. Comment. For purposes of offenses (13) [intentionally causing serious bodily injury], (15) [murder in violation of the law of war], (16) [destruction of property in violation of the law of war], and (27) [spying] in Part IV of this Manual (corresponding to offenses enumerated in paragraphs (13), (15), (16), and (27) of § 950t of title 10, United States Code), an accused may be convicted in a military commission for these offenses if the commission finds that the accused employed a means (e.g., poison gas) or method (e.g., perfidy) prohibited by the law of war; intentionally attacked a “protected person” or “protected property” under the law of war; or engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.
e. Maximum punishment. Death, if the death of any person occurs as a result of the serious bodily injury. Otherwise, 20 years confinement. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, §§ 5(11)–5(13), pp. IV-9–IV-11.
Zimbabwe
Zimbabwe’s Code of Conduct for Combatants (1993) states: “As a State party to the [1949] Geneva Conventions … your country is bound by these treaties … The States party to the Geneva Conventions pledge to … [p]rohibit torture and inhuman treatment.” 
Zimbabwe, Code of Conduct for Combatants, Joint publication of the Zimbabwe Defence Forces and the International Committee of the Red Cross Regional Delegation in Harare, 1993, pp. 14–16.
The Code of Conduct also states: “Article 3 common to all four Geneva Conventions, which regulates non-international armed conflicts, … prohibits inhuman treatment [and] … torture”. 
Zimbabwe, Code of Conduct for Combatants, Joint publication of the Zimbabwe Defence Forces and the International Committee of the Red Cross Regional Delegation in Harare, 1993, p. 15.
Afghanistan
Afghanistan’s Law on Juvenile Rehabilitation and Training Centres (2009) states regarding the detention of juveniles: “[P]unishments, humiliation and all activities which disturb [the] physical [or psychological] health of [the] child, [whether] suspected, accused [or] convicted to imprisonment, … are prohibited.” 
Afghanistan, Law on Juvenile Rehabilitation and Training Centres, 2009, Article 31(2).
Afghanistan
Afghanistan’s Presidential Decree on Special Operations (2012) states:
Handing over the Special Operations from … NATO to [the] mixed – Mod [Ministry of Defence], MoI [Ministry of the Interior] and NDS [National Directorate of Security] – Afghan security forces was an essential [step] to ensure and guarantee the national sovereignty and rule of law in Afghanistan. Implementation of such operation[s] makes the responsibilities of the judicial and justice bodies harder, and requires them to have a[n] [in-]depth concentration on the fundamental rights and freedom[s] of the citizens, guaranteed in the Constitution and Criminal Procedure Code in [all] phases – inspection, detection, investigation, prosecution and trial.
Thus, I order observance of the following provisions … :
9. All types of torture, … insult and other acts against the human dignity for any purpose is considered as [a] criminal act. Confession obtained with the mentioned means is null and legally invalid. 
Afghanistan, Presidential Decree on Special Operations, 2012, Article 9.
Afghanistan
Afghanistan’s Presidential Decree on the Condition of Detainees (2012) states: “The criminal police of [the] National Directorate of Security (NDS) should take measures preventing torture during the interrogation process”. 
Afghanistan, Presidential Decree on the Condition of Detainees, 2012, Article 3.
Albania
Albania’s Military Penal Code (1995) criminalizes mistreatment of protected persons as a war crime. 
Albania, Military Penal Code, 1995, Articles 73–75.
Argentina
Argentina’s Code of Military Justice (1951), as amended in 1984, provides that the ill-treatment of prisoners of war is an offence. 
Argentina, Code of Military Justice, 1951, as amended in 1984, Article 746.
Argentina
Argentina’s Law on the Protection of Children’s and Adolescents’ Rights (2005) states:
Children and adolescents are entitled to dignity as subjects of international law and developing persons. [They are entitled] to not be subjected to violent, discriminatory, degrading, humiliating, intimidating treatment; [and] not to be subjected to any form of … torture, abuse or negligence …
Children and adolescents are entitled to their physical, sexual, psychological and moral integrity. 
Argentina, Law on the Protection of Children’s and Adolescents’ Rights, 2005, Article 9.
Armenia
Under Armenia’s Penal Code (2003), “torture and inhuman treatment”, and “wilfully causing great suffering or other actions threatening physical or mental health”, during an armed conflict, constitute crimes against the peace and security of mankind. 
Armenia, Penal Code, 2003, Article 390.1(2)–(3) and Article 390.2(1); see also Article 392 (torture or cruel treatment of civilians as crimes against humanity) and Article 393 (inflicting severe damage to health as part of a genocide campaign).
Australia
Australia’s War Crimes Act (1945) provides that the following are war crimes:
(iv) Torture of civilians,
(ix) internment of civilians under inhuman conditions
(xxx) Ill-treatment of wounded and prisoners of war, including –
(a) transportation of wounded and prisoners of war under improper conditions;
(b) public exhibition or ridicule of prisoners of war. 
Australia, War Crimes Act, 1945, Section 3.
Australia
Australia’s War Crimes Act (1945), as amended in 2001, identifies “causing grievous bodily harm” and “wounding” as serious war crimes. 
Australia, War Crimes Act, 1945, as amended in 2001, Sections 6(1) and 7(1).
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach of any of the [1949 Geneva] Conventions … is guilty of an indictable offence.” 
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act 1995.
Australia
Australia’s Crimes (Torture) Act (1988), as amended to 2001, states:
Offence of torture
(1) Where:
(a) at any time after the commencement of this Act, a person who:
(i) is a public official or is acting in an official capacity; or
(ii) is acting at the instigation, or with the consent or acquiescence, of a public official or person acting in an official capacity; does outside Australia an act that is an act of torture; and
(b) that act, if done by the person at that time in a part of Australia, would constitute an offence against the law then in force in that part of Australia;
the person is guilty of an offence against this Act, punishable, upon conviction, by the same penalty as would be applicable if the person were found guilty of the offence referred to in paragraph (b). 
Australia, Crimes (Torture) Act, 1988 as amended to 2001, § 6, p. 3.
The Crimes (Torture) Act (1988) was repealed by the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act (2010), which in part amended the Criminal Code Act (1995). 
Australia, Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act, 2010, Schedule 1, Part 3.
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the crimes defined in the 1998 ICC Statute: “genocide by causing serious bodily or mental harm”, including torture; crimes against humanity, including torture; and war crimes, including torture and inhumane treatment in international armed conflicts, cruel treatment and torture in non-international armed conflicts, and outrages upon personal dignity in both international and non-international armed conflicts. 
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, §§ 268.4, 268.13, 268.25, 268.26, 268.58, 268.72, 268.73 and 268.74.
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to war crimes that are grave breaches of the 1949 Geneva Conventions and of the 1977 Additional Protocol I:
War crimetorture
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(c). 
Australia, Criminal Code Act, 1995, as amended on to 2007, Chapter 8, § 268.25, pp. 320–321.
The Criminal Code Act further provides:
War crimewilfully causing great suffering
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes great physical or mental pain or suffering to, or serious injury to body or health of, one or more persons; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25years.
(2) Strict liability applies to paragraph (1)(b). 
Australia, Criminal Code Act, 1995, as amended on 1 November 2007, taking into account amendments up to Act No. 177 of 2007, Chapter 8, § 268.28, p. 322.
The Criminal Code Act also states with respect to other serious war crimes that are committed in the course of an international armed conflict:
War crimeoutrages upon personal dignity
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of one or more persons; and
(b) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years. 
Australia, Criminal Code Act, 1995, as amended on 1 November 2007, taking into account amendments up to Act No. 177 of 2007, Chapter 8, § 268.58, p. 337.
The Criminal Code Act states with respect to war crimes that are serious violations of common Article 3 of the 1949 Geneva Conventions and are committed in the course of a non-international armed conflict:
268.72 War crimecruel treatment
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
268.73 War crimetorture
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are not taking an active part in the hostilities; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
268.74 War crimeoutrages upon personal dignity
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years. 
Australia, Criminal Code Act, 1995, as amended on 1 November 2007, taking into account amendments up to Act No. 177 of 2007, Chapter 8, §§ 268.72–74, pp. 349–353.
Azerbaijan
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides that in international and non-international armed conflicts, all kinds of torture and outrages upon personal dignity, in particular humiliating and degrading treatment, carried out against civilians are prohibited. It also prohibits cruel treatment and torture, as well as attacks upon personal dignity, including humiliating and degrading treatment of prisoners of war. 
Azerbaijan, Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War, 1995, Articles 17(2) and 21(1)–(2).
Azerbaijan
Azerbaijan’s Criminal Code (1999) punishes anyone who inflicts “severe pain or suffering, whether physical or mental, upon a person detained or whose liberty was restricted in any other way”.  
Azerbaijan, Criminal Code, 1999, Article 113.
Azerbaijan
Azerbaijan’s Criminal Code (1999), as amended to 2007, provides that “torturing” of protected persons is a violation of the laws and customs of war. 
Azerbaijan, Criminal Code, 1999, as amended to Law 522-11QD dated 25 December 2007, Article 115.2.
The Code also punishes anyone who inflicts “severe pain or suffering, whether physical or mental, upon a person detained or whose liberty was restricted in any other way”. 
Azerbaijan, Criminal Code, 1999, as amended to Law 522-11QD dated 25 December 2007, Article 113.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) mentions torture in the list of crimes against humanity. It also provides that ill-treatment of civilians and of prisoners of war is a war crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Article 3(2)(a) and (d).
In addition, the Act states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973), Section 3(2)(e).
Barbados
The Geneva Conventions Act (1980) of Barbados provides:
A person who commits a grave breach of any of the Geneva Conventions of 1949 … may be tried and punished by any court in Barbados that has jurisdiction in respect of similar offences in Barbados as if the grave breach had been committed in Barbados. 
Barbados, Geneva Conventions Act, 1980, Section 3(2).
Belarus
Belarus’s Criminal Code (1999) provides that wilfully causing grievous bodily harm to, or inhumane treatment of, persons who have laid down their arms or are defenceless, of the wounded, sick and shipwrecked, medical and religious personnel, prisoners of war, the civilian population in an occupied territory or in the conflict zone or other persons enjoying international protection is a violation of the laws and customs of war. 
Belarus, Criminal Code, 1999, Article 135(1).
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
The crime of genocide, as defined below, whether committed in time of peace or in time of war, constitutes a crime under international law and shall be punished in accordance with the provisions of the present title. In accordance with the Convention for the Prevention and Punishment of the Crime of Genocide of 9 December 1948, and without prejudice to criminal provisions applicable to breaches committed out of negligence, the crime of genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such: … causing serious bodily or mental harm to members of the group. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 bis, § 2.
The Penal Code further states:
A crime against humanity, as defined below, whether committed in time of peace or in time of war, constitutes a crime under international law and shall be punished in accordance with the provisions of the present title. In accordance with the Statute of the International Criminal Court, crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: … torture; … other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 ter, § 11.
The Penal Code further provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
2. torture or other cruel, inhuman or degrading treatment, including biological experiments;
3. wilfully causing great suffering or serious injury to body or health;
5. other outrages upon human dignity, in particular humiliating and degrading treatment. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 1(2),(3) and (5).
The Penal Code also states:
In the case of an armed conflict as defined in … Article 3 common [to the (1949) Geneva Conventions], the grave breaches of [common] Article 3, … listed below, shall constitute crimes under international law and shall be punished in accordance with the provisions of the present title, when such breaches endanger, by act or omission, persons protected by these Conventions, without prejudice to criminal provisions applicable to breaches committed out of negligence:
1. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
2. outrages upon personal dignity, in particular humiliating and degrading treatment. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 2(1)–(2).
Belgium
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, provides that torture or other inhuman treatment and wilfully causing great suffering or serious damage to physical integrity or health constitute crimes under international law. 
Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Article 1(3)(2); see also Article 1(1)(2)–(3) (genocide).
Belgium
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
The crime of genocide, as defined below, whether committed in time of peace or in time of war, constitutes a crime under international law and shall be punished in accordance with the provisions of the present title. In accordance with the Convention for the Prevention and Punishment of the Crime of Genocide of 9 December 1948, and without prejudice to criminal provisions applicable to breaches committed out of negligence, the crime of genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:
2. causing serious bodily or mental harm to members of the group. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1, § 2.
The Law further states:
A crime against humanity, as defined below, whether committed in time of peace or in time of war, constitutes a crime under international law and shall be punished in accordance with the provisions of the present title. In accordance with the Statute of the International Criminal Court, crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
6. torture;
11. other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 bis, §§ 6 and 11.
The Law further provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
2. torture or other cruel, inhuman or degrading treatment, including biological experiments;
3. wilfully causing great suffering or serious injury to body or health;
3 ter other outrages upon human dignity, in particular humiliating and degrading treatment. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 1(2),(3) and (3 ter).
The Law also states:
In the case of an armed conflict as defined in … Article 3 common [to the (1949) Geneva Conventions], the grave breaches of [common] Article 3, … listed below, shall constitute crimes under international law and shall be punished in accordance with the provisions of the present title, when such breaches endanger, by act or omission, persons protected by these Conventions, without prejudice to criminal provisions applicable to breaches committed out of negligence:
1. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
2. outrages upon personal dignity, in particular humiliating and degrading treatment. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 2(1)–(2).
Bosnia and Herzegovina
The Federation of Bosnia and Herzegovina’s Criminal Code (1998) provides that subjecting civilians, prisoners of war, the wounded, sick and shipwrecked to torture or inhuman treatment and causing great suffering to physical and mental health is a war crime. 
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Articles 154(1), 155 and 156.
The Republika Srpska’s Criminal Code (2000) contains the same provision. 
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Articles 433(1), 434 and 435.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) criminalizes the following as an act of genocide:
Whoever, with an aim to destroy, in whole or in part, a national, ethnical, racial or religious group, orders the perpetration or perpetrates any of the following acts:
b) Causing serious bodily or mental harm to members of the group. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 171(b).
The Criminal Code criminalizes the following as crimes against humanity:
Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack, perpetrates any of the following acts:
f) Torture;
k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to physical or mental health. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 172(1)(f) and (k).
The Criminal Code also states that, in time of war, armed conflict or occupation, ordering or causing “intentional infliction of severe physical or mental pain or suffering upon a person (torture), inhuman treatment … [or] immense suffering or violation of bodily integrity or health”, against civilians, in violation of international law, constitutes a war crime. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 173(1)(c).
The Criminal Code also contains the following war crimes provision:
Whoever, in violation of the rules of international law in time of war or armed conflict, orders or perpetrates in regard to wounded, sick, shipwrecked persons, medical personnel or clergy, any of the following acts:
a) … intentional infliction of severe physical or mental pain or suffering upon persons (torture, inhuman treatment) … ;
b) Causing great suffering or serious injury to bodily integrity or health;
shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 174(a)–(b); see also Article 175(a)–(b) for a similar provision with respect to prisoners of war.
The Criminal Code further states:
An official or another person who, acting upon the instigation or with the explicit or implicit consent of a public official person, inflicts on a person physical or mental pain or severe physical or mental suffering for such purposes as to obtain from him or a third person information or a confession, or to punish him for a criminal offence he or a third person has perpetrated or is suspected of having perpetrated or who intimidates or coerces him for any other reason based on discrimination of any kind,
shall be punished by imprisonment for a term of between one and ten years. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 190.
Botswana
Botswana’s Geneva Conventions Act (1970) punishes “any person, whatever his nationality, who, whether in or outside Botswana, commits, or aids, abets or procures the commission by any other person of, any such grave breach of any of the [1949 Geneva] conventions”. 
Botswana, Geneva Conventions Act, 1970, Section 3(1).
Bulgaria
Bulgaria’s Penal Code (1968), as amended in 1999, provides that ordering and committing acts of torture and inhuman treatment, causing great suffering or other injuries to the body and health of the wounded, sick, shipwrecked, medical personnel, prisoners of war and the civilian population, is a war crime. 
Bulgaria, Penal Code, 1968, as amended in 1999, Articles 410(a), 411(a) and 412(a).
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
A. Grave breaches of the Geneva Conventions of 8 August 1949, namely, any of the following acts aimed at persons or objects protected by the provisions of the Geneva Conventions:
b) torture or inhuman treatment …
c) wilfully causing great suffering, or serious injury to body or health;
B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:
t) committing outrages upon personal dignity, in particular humiliating and degrading treatment;
C. In the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no direct part in hostilities, including members of armed forces who have laid down their arms and persons placed hors de combat by sickness, wounds, detention or any other cause:
a) violence to life and person, in particular … cruel treatment and torture;
b) committing outrages upon personal dignity, in particular humiliating and degrading treatment. 
Burundi, Law on Genocide, Crimes against Humanity and War Crimes , 2003, Article 4(A)(b)–(c), (B)(t) and (C)(a)–(b); see also Article 2(b) (genocide) and Article 3(f) and (k) (crimes against humanity).
Burundi
Burundi’s Penal Code (2009) states:
“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:
1. Any of the following grave breaches of the 1949 Geneva Conventions … :
2°. Torture or inhuman treatment … ;
3°. Wilfully causing great suffering, or serious injury to body or health;
2. Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
21°. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
3. In the case of an armed conflict not of an international character, serious violations of article 3 common to the four 1949 Geneva Conventions … , namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
1°. Violence to life and person, in particular … cruel treatment and torture;
2°. Committing outrages upon personal dignity, in particular humiliating and degrading treatment. 
Burundi, Penal Code, 2009, Article 198(1)(2°)–(3°), (2)(21°) and (3)(1°)–(2°).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001) provides:
The Extraordinary Chambers shall have the power to bring to trial all suspects who committed or ordered the commission of grave breaches of the Geneva Convention[s] of 12 August 1949 … which were committed during the period from 17 April 1975 to 6 January 1979. 
Cambodia, Law on the Establishment of the ECCC, 2001, Article 6.
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides:
Article 4
The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed the crimes of genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, and which were committed during the period from 17 April 1975 to 6 January 1979.
The acts of genocide … mean any acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as:
- causing serious bodily or mental harm to members of the group;
Article 5
The Extraordinary Chambers shall have the power to bring to trial all suspects who committed crimes against humanity during the period 17 April 1975 to 6 January 1979.
Crimes against humanity … are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as:
- torture;
- other inhumane acts.
Article 6
The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed or ordered the commission of grave breaches of the Geneva Conventions of 12 August 1949, such as the following acts against persons or property protected under provisions of these Conventions, and which were committed during the period 17 April 1975 to 6 January 1979:
- torture or inhumane treatment;
- wilfully causing great suffering or serious injury to body or health. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Articles 4–6.
Cameroon
Cameroon’s Penal Code (1967), as amended in 1997, states that torture may not be justified in any circumstance, including a state of war or internal political instability. 
Cameroon, Penal Code, 1967, as amended in 1997, Article 132 bis.
Canada
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides: “Every person who, whether within or outside Canada, commits a grave breach [of the 1949 Geneva Conventions] … is guilty of an indictable offence.” 
Canada, Geneva Conventions Act, 1985, as amended in 2007, Section 3(1).
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that genocide, crimes against humanity and war crimes defined in Articles 6, 7 and 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
Chile
Under Chile’s Code of Military Justice (1925), seriously injuring prisoners of war and committing acts of serious violence against civilians, the wounded, sick and prisoners of war are considered an “offence against international law”. 
Chile, Code of Military Justice, 1925, Articles 261(1) and 262.
China
China’s Law Governing the Trial of War Criminals (1946) provides that “torturing of non-combatants … inflicting on them inhuman treatment [and] ill-treating prisoners of war or wounded persons” constitute war crimes. 
China, Law Governing the Trial of War Criminals, 1946, Article 3(16), (19) and (29).
China
The Criminal Law of the People’s Republic of China (1979), as amended in 1997, states:
Article 247 Any judicial officer who extorts confession from a criminal suspect or defendant by torture or extorts testimony from a witness by violence shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. If he causes injury, disability or death to the victim, he shall be convicted and given a heavier punishment in accordance with the provisions of Article 234 or 232 of this Law.
Article 248 Any policeman or other officer of an institution of confinement like a prison, a detention house or a custody house who beats a prisoner or maltreats him by subjecting him to corporal punishment, if the circumstances are serious shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years.
If he causes injury, disability or death to the victim, he shall be convicted and given a heavier punishment in accordance with the provisions of Article 234 or 232 of this Law.
Any policeman or other officer who instigates a person held in custody to beat or maltreat another person held in custody by subjecting him to corporal punishment, the policeman or officer shall be punished in accordance with the provisions of the preceding paragraph.
Article 446 Any serviceman who, during wartime, cruelly injures innocent residents in an area of military operation or plunders their money or property shall be sentenced to fixed-term imprisonment of not more than five years; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death.
Article 448 Whoever maltreats a prisoner of war, if the circumstances are flagrant, shall be sentenced to fixed-term imprisonment of not more than three years. 
China, Criminal Law of the People’s Republic of China, 1979, as amended in 1997, Articles 247–248, 446 and 448.
China
China’s Prison Law (1994) states:
The people’s police of a prison shall not commit any of the following acts:
(3) to use torture to coerce a confession, or to use corporal punishment, or to maltreat a prisoner;
If the people’s police of a prison commits any act specified in the preceding paragraph and the case constitutes a crime, the offenders shall be investigated for criminal responsibility; if the case does not constitute a crime, the offenders shall be given administrative sanctions. 
China, Prison Law, 1994, Article 14.
China
China’s Public Procurators Law (1995), as amended in 2001, states that no public procurator may “extort confessions by torture”. 
China, Public Procurators Law, 1995, as amended in 2001, Article 35(4).
Colombia
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. 
Colombia, Penal Code, 2000, Articles 136, 173 and 146.
Congo
Under the Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998), “causing serious bodily or mental harm” to the members of an ethnical, racial or religious group, as such, with intent to destroy the group, in whole or in part, constitutes a crime of genocide. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 1.
Moreover, under the Act, “torture”, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, is a crime against humanity. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 6.
The Act further defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.
Cook Islands
The Geneva Conventions and Additional Protocols Act (2002) of the Cook Islands punishes “any person who in the Cook Islands or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions”. 
Cook Islands, Geneva Conventions and Additional Protocols Act, 2002, Section 5(1).
Côte d’Ivoire
Under Côte d’Ivoire’s Penal Code (1981), as amended in 1998, organizing, ordering or carrying out, in time of war or occupation, acts of torture or inhuman treatment of the civilian population constitutes a “crime against the civilian population”. It adds that torture or inhuman treatment or causing great injuries and suffering to prisoners of war and internees is a “crime against prisoners of war”. 
Côte d’Ivoire, Penal Code, 1981, as amended in 1998, Article 139(1).
Croatia
Croatia’s Criminal Code (1997) provides that it is a war crime to subject the civilian population, the wounded, sick and shipwrecked, prisoners of war and medical or religious personnel to acts of torture, inhuman treatment or causing great suffering or serious injury to body or health. 
Croatia, Criminal Code, 1997, Articles 158, 159, 160 and 176.
Croatia
Croatia’s Criminal Code (1997), as amended to 2006, states that it is a war crime to subject the following individuals to torture or inhuman treatment or to great suffering impairing the integrity of their bodies and health:
- civilians … 
Croatia, Criminal Code, 1997, as amended to 2006, Article 158.
- the wounded, sick, shipwrecked persons or medical or religious personnel … 
Croatia, Criminal Code, 1997, as amended to 2006, Article 159.
- prisoners of war … 
Croatia, Criminal Code, 1997, as amended to 2006, Article 159.
The Code also states that “[ordering] that a person deprived of liberty or under supervision be tortured by intentionally inflicting severe bodily or mental harm or suffering” is a crime against humanity. 
Croatia, Criminal Code, 1997, as amended to 2006, Article 157a.
The Code further states that “[intending] to destroy in whole or in part a national, ethnic, racial or religious group … or [ordering] serious bodily injury to be inflicted on them, or [ordering] the physical or mental health of the members of such a group to be impaired” is an act of genocide. 
Croatia, Criminal Code, 1997, as amended to 2006, Article 156.
The Code also criminalizes other acts of torture and other cruel, inhuman or degrading treatment:
An official or another person who, acting upon the instigation or with the explicit or implicit consent of a public official, inflicts on a person physical or mental pain or severe physical or mental suffering for such purposes as to obtain from him or a third person information or a confession, or punishes him for a criminal offence he or a third person has committed or is suspected of having committed or who intimidates or coerces him for any other reason based on discrimination of any kind shall be punished by imprisonment for one to eight years. 
Croatia, Criminal Code, 1997, as amended to 2006, Article 176.
Cuba
Cuba’s Military Criminal Code (1979) punishes anyone who severely ill-treats a wounded or sick prisoner. 
Cuba, Military Criminal Code, 1979, Article 42(1)–(2).
Cyprus
Cyprus’s Geneva Conventions Act (1966) punishes “any person who, whatever his nationality, commits in the Republic or outside the Republic, any grave breach or takes part, or assists or incites another person in the commission of grave breaches of the Geneva Conventions”. 
Cyprus, Geneva Conventions Act, 1966, Section 4(1).
Czech Republic
The Czech Republic’s Criminal Code (1961), as amended in 1999, provides that “a person who violates the provisions … of international law by inhumanly maltreating … members of the enemy’s armed forces who have laid down their weapons” commits a crime. 
Czech Republic, Criminal Code, 1961, as amended in 1999, Articles 259(a)(1) and 263(1).
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Article 103
Any soldier or equivalent person who is guilty of committing grave acts of violence or ill-treatment towards civilian populations, in times of war or during exceptional circumstances, is punished by death.
Article 165
Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.
Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.
Article 166
The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code:
1. Torture or other inhuman treatment, including biological experiments;
2. Wilfully causing great suffering, or serious injury to body or health;
Article 167
The offences contained in the preceding article are punished with penal servitude for life.
If those contained in points 1, 2, 5, 6, 10 to 14 of the same article lead to the death or cause grave injury to the physical integrity or health of one or several persons, the perpetrators are liable to the death penalty.
Article 169
Any of the following acts, perpetrated as part of a widespread or systematic attack knowingly directed against the Republic or the civilian population, equally constitutes a crime against humanity and is punished by death, whether committed in time of peace or in time of war:
6. Torture. 
Democratic Republic of the Congo, Military Penal Code, 2002, Articles 103, 165–167 and 169.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Dominican Republic
The Dominican Republic’s Code of Military Justice (1953) punishes any member of the armed forces who mistreats prisoners of war or causes them severe injuries. 
Dominican Republic, Code of Military Justice, 1953, Article 201(1).
El Salvador
El Salvador’s Code of Military Justice (1934) punishes any soldier who maltreats prisoners of war. 
El Salvador, Code of Military Justice, 1934, Article 69(1).
El Salvador
Under El Salvador’s Penal Code (1997), “anyone who, during an international or a civil war, … causes damage to physical or mental health … of the civilian population … [or] maltreats prisoners of war” commits a crime. 
El Salvador, Penal Code, 1997, Article 362; see also Article 361 (causing physical or psychological damages as part of a genocide campaign).
El Salvador
El Salvador’s Penal Code (1997), as amended to 2008, which contains a section on the violations of the laws or customs of war, states in its general provisions: “No punishment or security measure, … which involves inhuman or degrading treatment, can be imposed.” 
El Salvador, Criminal Code, 1997, as amended to 2008, Article 2.
Estonia
Under Estonia’s Penal Code (2001), acts of torture, mistreatment, inhumane treatment or serious attacks on the physical and mental integrity of combatants who have laid down their arms, civilians, prisoners of war and interned civilians constitute war crimes. 
Estonia, Penal Code, 2001, §§ 97, 98 and 101; see also § 89 (torture as a crime against humanity) and § 90 (torture as part of a genocide campaign).
Ethiopia
Ethiopia’s Penal Code (1957) provides that in time of war, armed conflict or occupation, the organization, ordering or carrying out of “torture or inhuman treatment or other acts entailing dire suffering or physical or mental injury” to civilians, the wounded, sick and shipwrecked or prisoners and interned persons constitutes a war crime. 
Ethiopia, Penal Code, 1957, Articles 282(a), 283(a) and 284(a); see also Article 281 (torture as part of a genocide campaign).
Ethiopia’s Criminal Code (2004) states:
Article 270.- War Crimes against the Civilian Population.
Whoever, in time of war, armed conflict or occupation organizes, orders or engages in, against the civilian population and in violation of the rules of public international law and of international humanitarian conventions:
(a) … torture or inhuman treatment … or any other acts involving dire suffering or bodily harm, or injury to mental or physical health …
is punishable with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death.
Article 271.- War Crimes against Wounded, Sick or Shipwrecked Persons or Medical Services.
(1) Whoever, in the circumstances defined above, organizes, orders or engages in:
(a) … torture …or inhuman treatment or other acts entailing direct suffering or physical or mental injury to wounded, sick or shipwrecked persons, or to members of the medical or first aid service …
is punishable in accordance with Article 270.
Article 272.- War Crimes against Prisoners and Interned Persons.
Whoever, in the circumstances defined above:
(a) organizes, orders or engages in … acts of torture or inhuman treatment or acts entailing dire suffering or injury to prisoners of war or interned persons …
is punishable in accordance with Article 270. 
Ethiopia, Criminal Code, 2004, Articles 270–272.
The Criminal Code of 2004 repealed Ethiopia’s Penal Code of 1957.
Finland
Finland’s Criminal Code (1889), as amended in 2008, provides that any person who “kills another or wounds or tortures him or her or in violation of his or her interests, maims him or her … or in another manner causes him or her considerable suffering or a serious injury or seriously harms his or her health” shall be “sentenced for a war crime to imprisonment for at least one year or for life”. 
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Section 5(1)(1).
(emphasis in original)
France
Under France’s Penal Code (1994), “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, Penal Code, 1994, Article 211-1; see also Article 212-1 (torture and inhuman treatment as crimes against humanity).
France
France’s Code of Defence (2004), as amended in 2008, states: “It is prohibited to torture or inflict inhuman or degrading treatment.” 
France, Code of Defence, 2004, as amended in 2008, Article D4122-9.
France
France’s Penal Code (1994), 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. 
France, Penal Code, 1994, as amended in 2010, Article 461-5.
Georgia
Under Georgia’s Criminal Code (1999), in international or internal armed conflicts, it is a crime to torture or treat inhumanely or to cause great suffering or injuries that threaten the physical and mental health of a person. 
Georgia, Criminal Code, 1999, Article 411(2)(b)–(c); see also Article 407 (torture as part of a genocide campaign).
Germany
Germany’s Law Introducing the International Crimes Code (2002) provides for the punishment of anyone who, in connection with an international or non-international armed conflict,
treats a person who is to be protected under international humanitarian law cruelly or inhumanely by causing him or her substantial physical or mental harm or suffering, especially by torturing … that person, [or] … treats a person who is to be protected under international humanitarian law in a gravely humiliating and degrading manner. 
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 8(1)(3) and (9); see also § 6(1)(2) (torture as part of a genocide campaign) and § 7(1)(5) and (8) (torture as a crime against humanity).
Greece
Greece’s Military Penal Code (1995) contains penalties for members of the Greek armed forces who insult, threaten or commit violent or inhumane acts against prisoners of war. 
Greece, Military Penal Code, 1995, Articles 160–163.
Hungary
Under Hungary’s Criminal Code (1978), as amended in 1998, inflicting “serious bodily or mental injury to the members of a [national, ethnic, racial or religious group]”, as part of a genocide campaign, constitutes a “crime against the freedom of peoples”. 
Hungary, Criminal Code, 1978, as amended in 1998, Section 155(1)(b).
India
India’s Geneva Conventions Act (1960) provides: “If any person within or without India commits or attempts to commit, or abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] Conventions he shall be punished.” 
India, Geneva Conventions Act, 1960, Section 3(1).
Iraq
Iraq’s Military Penal Code (1940) states that causing suffering to wounded persons is an offence. 
Iraq, Military Penal Code, 1940, Article 115(c).
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies “[t]orture or inhuman treatment, including biological experiments” and “[w]illfully causing great suffering, or serious injury to body or health” as grave breaches of the 1949 Geneva Conventions. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13(1)(B) and (C).
Under the Law, “[c]ommitting outrages upon personal dignity, in particular humiliating and degrading treatment” constitutes a serious violation of the laws and customs of war applicable in international armed conflicts. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13 (2)(U); see also Article 13(3)(B).
The Law further characterizes “cruel treatment and torture” as war crimes in any armed conflict when “committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, injury, detention or any other cause”. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13(3)(A).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that grave breaches of the 1949 Geneva Conventions are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 3(1).
In addition, any “minor breach” of the 1949 Geneva Conventions, including violations of common Article 3, Article 12 of the Geneva Convention I, Article 12 of the Geneva Convention II, Articles 17, 87 and 89 of the Geneva Convention III, and Article 32 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 75(2), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 4(2), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Israel
Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950) includes the ill-treatment of the civilian population, of prisoners of war and of persons on the seas in its definition of war crimes. 
Israel, Nazis and Nazi Collaborators (Punishment) Law, 1950, Section 1(b) (this section also includes causing serious bodily or mental harm as a crime of genocide).
Italy
Italy’s Wartime Military Penal Code (1941) provides for the punishment of any member of the military who tortures or ill-treats prisoners of war while escorting, guarding or holding them in custody. It also punishes acts of violence or threats of injuries to prisoners of war, as well as forcing them to provide information which would compromise the interests of their country. 
Italy, Wartime Military Penal Code, 1941, Articles 209, 211 and 212(1).
The Wartime Military Penal Code (1941), as amended in 2002, states:
Except when the fact constitutes a more serious offence, the serviceman who, for reasons associated with the war, is guilty of torture or inhuman treatment … against war prisoners, civilians or other persons protected by international conventions, is punished with two to five years military imprisonment. 
Italy, Wartime Military Penal Code, 1941, as amended on 31 January 2002, Article 185-bis.
Jordan
Jordan’s Military Penal Code (2002) states that the following shall be deemed war crimes when committed in the event of armed conflict:
2. Torture or inhuman treatment, including biological experiments;
3. Wilfully causing great suffering;
4. Causing serious injury to physical or mental integrity or health. 
Jordan, Military Penal Code, 2002, Article 41(a)(2)–(4).
Kazakhstan
Kazakhstan’s Penal Code (1997) provides that inhuman treatment of prisoners of war or the civilian population is a punishable offence. 
Kazakhstan, Penal Code, 1997, Article 159.
Kenya
Kenya’s Geneva Conventions Act (1968) punishes “any person, whatever his nationality, who, whether within or outside Kenya commits, or aids, abets or procures the commission by any other person of any grave breach of any of the [1949 Geneva] Conventions”. 
Kenya, Geneva Conventions Act, 1968, Section 3(1).
Kenya
Kenya’s Constitution (1992) provides that no person shall be subjected to torture or inhuman or degrading punishment or other treatment. 
Kenya, Constitution, 1992, Article 74(1).
Kuwait
Kuwait’s Constitution (1962) states that fundamental rights, including the prohibition on torture or humiliating treatment, apply equally in war time. 
Kuwait, Constitution, 1962, Article 31.
Latvia
Under Latvia’s Criminal Code (1998), acts of torture constitute a war crime. 
Latvia, Criminal Code, 1998, Section 74; see also Section 71 (torture as part of a genocide campaign).
Liberia
Liberia’s National Defense Act (2008) states: “All members of the AFL [Armed Forces of Liberia] shall respect the human rights of all persons at all times. No member of the AFL shall engage in any form of torture, mistreatment, abuse or degrading behavior to other persons at all times.” 
Liberia, National Defense Act, 2008, Section 8.5.
Lithuania
Under Lithuania’s Criminal Code (1961), as amended in 1998, torture and inhumane treatment of protected persons is a war crime. 
Lithuania, Criminal Code, 1961, as amended in 1998, Article 335.
Luxembourg
Under Luxembourg’s Law on the Repression of War Crimes (1947), “acts of violence and cruelty committed against prisoners of war, detainees, deportees, accused, witnesses or persons compelled to work” constitute war crimes. 
Luxembourg, Law on the Repression of War Crimes (1947, Article 2(3).
Luxembourg
Luxembourg’s Law on the Punishment of Grave Breaches (1985) provides that torture or inhuman treatment, wilfully causing great suffering or injuries to the physical and mental integrity or health of protected persons, constitute grave breaches of the 1949 Geneva Conventions. 
Luxembourg, Law on the Punishment of Grave Breaches (1985, Article 1(1)–(2).
Malawi
Malawi’s Geneva Conventions Act (1967) punishes “any person, whatever his nationality, who, whether within or without Malawi commits or aids, abets or procures the commission by any other person of any such grave breach of any of the [1949 Geneva] Conventions”. 
Malawi, Geneva Conventions Act, 1967, Section 4(1).
Malaysia
Malaysia’s Geneva Conventions Act (1962) punishes “any person, whatever his citizenship or nationality, who, whether in or outside the Federation, commits, or aids, abets or procures the commission by any other person of any such grave breach of any of the … [1949 Geneva] conventions”. 
Malaysia, Geneva Conventions Act, 1962, Section 3(1).
Mali
Under Mali’s Penal Code (2001), torture and inhuman treatment, wilfully causing great suffering or injuries to the physical and mental integrity or health of protected persons is a war crime. 
Mali, Penal Code, 2001, Articles 31(b)–(c) and 31(i)(21); see also Article 29(f) and (k) (torture and inhuman treatment as crimes against humanity).
Mauritius
The Geneva Conventions Act (1970) of Mauritius punishes “any person who in Mauritius or elsewhere commits, or is an accomplice in the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions”. 
Mauritius, Geneva Conventions Act, 1970, Section 3(1).
Mexico
Mexico’s Penal Code (1931), as amended to 2000, provides for the punishment of acts of torture and causing suffering to a member of a national, ethnic, racial or religious group, as part of a genocide campaign. 
Mexico, Penal Code, 1931, as amended to 2000, Article 149 bis.
The Penal Code adds that “compelling the accused to confess by [using] incommunicado, intimidation or torture” is a crime committed against the administration of justice. 
Mexico, Penal Code, 1931, as amended to 2000, Article 225(XII).
Mexico
Mexico’s Code of Military Justice (1933), as amended in 1996, provides penalties for persons who mistreat or otherwise cause physical or mental injuries to prisoners and detainees. 
Mexico, Code of Military Justice, 1933, as amended in 1996, Article 324.
Morocco
Morocco’s Penal Code (1962) provides:
Article 231
Any magistrate, public official, agent or holder of public authority or power who, without lawful motive, in the exercise or by occasion of the exercise of his functions, uses or makes another use of violence against persons, is punished for this violence, according to its gravity, following the provisions in articles 401 to 403; but the applicable penalty is aggravated as follows:
In the case of a police offence or a correctional offence, the applicable penalty is twice that provided for the offence;
Article 399
Punished with death is anyone who, for the execution of an act classified as crime, employs torture or acts of barbarity.
Article 400
Whoever deliberately injures or beats another person or commits any other acts of violence or assault, whether they have caused neither illness nor incapacity, or have led to an illness or incapacity to work not exceeding twenty days, is punished with imprisonment for one month to one year and with a fine of 200 to 500 dirhams or with one of these penalties alone.
If there was premeditation or ambush or if a weapon was used, the penalty is imprisonment for between six months and two years and a fine of 200 to 1000 dirhams.
Article 401
If the injuries or beatings or other acts of violence or assault have led to incapacity exceeding twenty days, the penalty is imprisonment for between one and three years and a fine of 200 to 1000 dirhams.
If there was premeditation or ambush or if a weapon was used, the penalty is imprisonment for two to five years and a fine of 250 to 2000 dirhams.
Article 402
If the injuries or beatings or other acts of violence or assault have led to mutilation, amputation or deprivation of the use of a limb, to blindness, loss of an eye or any other permanent infirmity, the penalty is imprisonment for five to ten years.
If there was premeditation or ambush or if a weapon was used, the penalty is imprisonment for ten to twenty years.
Article 403
If the injuries or beatings or other acts of violence or assault, carried out deliberately but without intention to kill, nevertheless have occasioned death, the penalty is imprisonment for ten to twenty years.
If there was premeditation or ambush or if a weapon was used, the penalty is life imprisonment. 
Morocco, Penal Code, 1962, Articles 231 and 399–403.
Mozambique
Mozambique’s Military Criminal Law (1987) provides that cruel acts against the civilian population, the wounded and sick, or prisoners is a criminal offence. 
Mozambique, Military Criminal Law, 1987, Article 83(b).
Myanmar
Myanmar’s Defence Services Act (1959) provides for the punishment of “any person subject to this law who … is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind”. 
Myanmar, Defence Services Act, 1959, Section 45(a).
Netherlands
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. 
Netherlands, Definition of War Crimes Decree, 1946, Article 1.
Netherlands
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”. 
Netherlands, International Crimes Act, 2003, Article 5(1)(b) and (c); see also Article 3(1)(b) (causing serious bodily or mental harm to members of a group as part of a genocide campaign), Article 4(1)(f) and (k) (torture and inhumane acts which intentionally cause great suffering or serious injury to body or to mental or physical health as crimes against humanity) and Article 8 (torture committed by a public servant or other person working in the service of the authorities in the course of his duties).
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. 
Netherlands, International Crimes Act, 2003, Article 6(1)(a).
New Zealand
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides: “Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions … is guilty of an indictable offence.” 
New Zealand, Geneva Conventions Act, 1958, as amended in 1987, Section 3(1).
New Zealand
New Zealand’s Crimes of Torture Act (1989), as amended to 2007, states:
Acts of torture
(1) Every person is liable upon conviction on indictment to imprisonment for a term not exceeding 14 years who, being a person to whom this section applies or acting at the instigation or with the consent or acquiescence of such a person, whether in or outside New Zealand,—
(a) Commits an act of torture; or
(b) Does or omits an act for the purpose of aiding any person to commit an act of torture; or
(c) Abets any person in the commission of an act of torture; or
(d) Incites, counsels, or procures any person to commit an act of torture.
(2) Every person is liable upon conviction on indictment to imprisonment for a term not exceeding 10 years who, being a person to whom this section applies or acting at the instigation or with the consent or acquiescence of such a person, whether in or outside New Zealand,—
(a) Attempts to commit an act of torture; or
(b) Conspires with any other person to commit an act of torture; or
(c) Is an accessory after the fact to an act of torture.
(3) This section applies to any person who is a public official or who is acting in an official capacity. 
New Zealand, Crimes of Torture Act, 1989, as amended to 2007, § 3.
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), genocide includes the crimes defined in Article 6(b) of the 1998 ICC Statute, crimes against humanity include the crimes defined in Article 7(1)(f) of the 1998 ICC Statute and war crimes include the crimes defined in Article 8(2)(a)(ii), (b)(xxi) and (c)(i) and (ii) of the 1998 ICC Statute. 
New Zealand, International Crimes and ICC Act, 2000, Sections 9(2), 10(2) and 11(2).
Nicaragua
Nicaragua’s Military Penal Law (1980) provides for the punishment of persons found guilty of seriously mistreating prisoners. 
Nicaragua, Military Penal Law, 1980, Article 80.
Nicaragua
Nicaragua’s Military Penal Code (1996) provides for the punishment of acts of torture, inhuman and degrading treatment and causing grave injuries and suffering to prisoners of war, the wounded, sick and shipwrecked and civilians. 
Nicaragua, Military Penal Code , 1996, Articles 54 and 55(3).
Niger
According to Niger’s Penal Code (1961), as amended in 2003, “torture or other inhuman treatment” and “wilfully causing great suffering or injury to the physical integrity or health” of persons protected under the 1949 Geneva Conventions or their 1977 Additional Protocols, constitute war crimes. 
Niger, Penal Code, 1961, as amended in 2003, Article 208.3(2)–(3); see also Article 208.1 (wilfully causing great injury to the physical integrity as part of a genocide campaign) and Article 208.2 (torture or inhuman acts as crimes against humanity).
Nigeria
Nigeria’s Geneva Conventions Act (1960) punishes any person who “whether in or outside the Federation, … whatever his nationality, commits, or aids, abets or procures any other person to commit any such grave breach of any of the [1949 Geneva] Conventions”. 
Nigeria, Geneva Conventions Act, 1960, Section 3(1).
Nigeria
Nigeria’s Armed Forces Act (1993), as amended in 1994, states:
93. Disgraceful conduct
A person subject to service law under this Act who is guilty of a disgraceful conduct of a cruel, indecent or unnatural kind is liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act. 
Nigeria, Armed Forces Act, 1993, as amended in 1994, Article 93.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Norway
Norway’s Penal Code (1902), as amended in 2008, states:
Any person is liable to punishment for a war crime who in connection with an armed conflict:
(b) inflicts on a protected person great suffering or serious injury to body or health, particularly by torture or other cruel or inhuman treatment,
(j) grossly violates the dignity of a protected person by subjecting that person to humiliating or degrading treatment/commits outrages upon the dignity of a protected person, in particular humiliating or degrading treatment. 
Norway, Penal Code, 1902, as amended in 2008, § 103(b) and (j).
The Penal Code further states: “A protected person is a person who does not take, or who no longer takes, active part in hostilities, or who is otherwise protected under international law.” 
Norway, Penal Code, 1902, as amended in 2008, § 103.
Papua New Guinea
Papua New Guinea’s Geneva Conventions Act (1976) punishes any “person who, in Papua New Guinea or elsewhere, commits a grave breach of any of the Geneva Conventions”. 
Papua New Guinea, Geneva Conventions Act, 1976, Section 7(2).
Paraguay
Paraguay’s Penal Code (1997) provides for the punishment of anyone who, in violation of the international laws of war, armed conflict or military occupation, subjects civilians, prisoners of war and the wounded and sick to inhumane treatment. 
Paraguay, Penal Code, 1997, Article 320(2); see also Article 309 (torture by a public official) and 319(2) (inhuman treatment as part of a genocide campaign).
Peru
Peru’s Penal Code (1991), as amended in 1998, provides for the punishment of acts of torture. 
Peru, Penal Code, 1991, as amended in 1998, Article 321.
Peru
Peru’s Law on the Disciplinary Regime of the National Police (2004) states that “inflicting, instigating or tolerating acts of torture or inhuman or degrading acts” constitute “very grave offences”. 
Peru, Law on the Disciplinary Regime of the National Police, 2004, Article 3.3.20.
Peru
Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons who return to their places of habitual residence or who have resettled in another part of the country have a right to:
f) Be protected against torture, cruel, inhuman or degrading treatment. 
Peru, Regulations to the Law on Internal Displacement, 2005, Article 6(f).
Peru
Peru’s Code of Military and Police Justice (2006) states:
Any member of the military or police who in the context of an international or non-international armed conflict:
3. Subjects a person protected by international humanitarian law to cruel or inhuman treatment thereby causing pain or physical or mental harm, in particular by torturing him or her, shall be imprisoned for a period of no less than six and no more than 12 years.
9. Subjects a person protected by international humanitarian law to seriously humiliating or degrading treatment shall be imprisoned for a period of no less than three and no more than eight years. 
Peru, Code of Military and Police Justice, 2006, Article 90(3) and (9).
This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because it does not stipulate a crime committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
Peru
Peru’s Decree on the Use of Force by the Armed Forces (2010) states:
With respect to the persons mentioned above [i.e. persons not directly participating in hostilities or who have laid down their arms as well as persons placed hors de combat by illness, wounds, detention or any other reason], the following actions are prohibited anytime and anywhere:
a. … [C]ruel treatment [or] torture.
f. Threats to carry out any of the aforementioned acts. 
Peru, Decree on the Use of Force by the Armed Forces, 2010, Article 8.1.a and 8.1.f.
Philippines
Under the War Crimes Trial Executive Order (1947) of the Philippines, applicable to acts committed during the Second World War, “ill-treatment of … the civilian population of or in occupied territory” or “ill-treatment of prisoners of war or internees or persons on the seas or elsewhere; improper treatment of hostages” are violations of the laws and customs of war. 
Philippines, War Crimes Trial Executive Order, 1947, Part II(b)(2).
The Executive Order adds that “inhumane acts committed against civilian populations before or during … [the Second World War]” also constitute war crimes whether or not in violation of the local laws. 
Philippines, War Crimes Trial Executive Order, 1947, Part II(b)(3).
Philippines
The Philippines’ Act No. 2711 (1917) states:
Any member of the Constabulary who whips, maltreats, abuses, subjects to physical violence, or tortures by the so-called “water cure” or otherwise, any native of the (Philippine Islands) Philippines or other person, or who causes such whipping, maltreatment, abuse, or torture of any native of the (Philippine Islands) Philippines or other person for the purpose of extorting from him any confession or inducing him to give any information whatsoever, shall be punished by imprisonment at hard labor for a term not exceeding five years or by a fine not exceeding ten thousand pesos, or both. Final conviction of any such offense shall by and of itself constitute a dismissal of the offender from the Constabulary service and shall make him ineligible to any position of trust or confidence in the Government of the (Philippine Islands) Philippines. 
Philippines, Act No. 2711, 1917, Section 2685.
Philippines
The Philippines’ Executive Order No. 8 (1986), creating the Presidential Committee on Human Rights, states that the Committee shall have the following functions:
Investigate complaints it may receive, cases known to it or to its members and such cases as the President may, from time to time assign to it, of unexplained or forced disappearances, extra-judicial killings (salvaging), massacres, torture … and other violations of human rights, past or present, committed by officers or agents of the national government or persons acting in their place or stead or under their orders, express or implied. 
Philippines, Executive Order No. 8, 1986, Section 4a.
Philippines
The Philippines’ Republic Act No. 8438 (1997) provides: “The regional government [of the Cordillera Autonomous Region] shall take measures to prevent torture; other cruel, inhuman, and degrading treatment or punishment; and illegal detention and extra-judicial executions.” 
Philippines, Republic Act No. 8438, 1997, Section 27.
Philippines
The Philippines’ Republic Act No. 9344 (2006), the Juvenile Justice and Welfare Act of 2006, provides:
Sec. 5. Rights of the Child in Conflict with the Law. – Every child in conflict with the law shall have the following rights, including but not limited to:
(a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment;
Sec. 61. Other Prohibited Acts. – The following and any other similar acts shall be considered prejudicial and detrimental to the psychological, emotional, social, spiritual, moral and physical health and well-being of the child in conflict with the law and therefore, prohibited:
(b) Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary confinement;
(c) Employment of degrading, inhuman and cruel forms of punishment such as shaving the heads, pouring irritating, corrosive or harmful substances over the body of the child in conflict with the law, of forcing him/her to walk around the community wearing signs which embarrass, humiliate, and degrade his/her personality and dignity. 
Philippines, Republic Act No. 9344, 2006, Sections 5(a) and 61(b)–(c).
Philippines
The Philippines’ Republic Act No. 9372 (2007) states:
No Torture or Coercion in Investigation and Interrogation. – No threat, intimidation, or coercion, and no act which will inflict any form of physical pain or torment, or mental, moral, or psychological pressure, on the detained person, which shall vitiate his freewill, shall be employed in his investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism; otherwise, the evidence obtained from said detained person resulting from such threat, intimidation, or coercion, or from such inflicted physical pain or torment, or mental, moral, or psychological pressure, shall be, in its entirety, absolutely not admissible and usable as evidence in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing. 
Philippines, Republic Act No. 9372, 2007, Section 24.
Poland
Poland’s Constitution (1997) states: “No one may be subjected to torture or cruel, inhuman, or degrading treatment or punishment.” 
Poland, Constitution, 1997, Article 40.
Poland
Poland’s Penal Code (1997) provides for the punishment of any person who, in violation of international law, causes “serious harm to [the] health [of persons hors de combat, protected persons and persons enjoying international protection], [and] subjects them to torture or cruel or inhumane treatment”. 
Poland, Penal Code, 1997, Article 123(2); see also Article 118(1) (causing serious harm to health as part of a genocide campaign).
Portugal
Portugal’s Penal Code (1996) provides for the punishment of anyone who, in times of war, armed conflict or occupation, commits torture or cruel, degrading or inhumane treatment or injures the physical or mental integrity of the civilian population, the wounded and sick or prisoners of war. 
Portugal, Penal Code, 1996, Article 241(1)(b)–(c).
Qatar
Qatar’s Constitution (2004) states: “[N]o person may be subjected to torture, or any degrading treatment; and torture shall be considered a crime punishable by law”. 
Qatar, Constitution, 2004, Article 36.
Qatar
Qatar’s Code of Criminal Procedure (2004) states:
No individual may be arrested or detained except by virtue of a relevant order from competent authorities and in legally defined cases. Said individual should be treated in a manner that preserves human dignity and may not be physically or morally harmed. 
Qatar, Code of Criminal Procedure, 2004, Article 40.
Qatar
Qatar’s Penal Code (2004) states:
Any civil servant who uses torture, force, or threats against a defendant, witness, or expert, or orders such to coerce same to confess a crime, testify or provide information regarding such or to conceal a matter relevant thereto, shall be imprisoned for a period not exceeding 5 years.
If the action of the civil servant resulted in injury to the victim, the perpetrator shall be imprisoned for 10 years.
If said action resulted in death of the victim, the perpetrator shall be sentenced to death or life imprisonment. 
Qatar, Penal Code, 2004, Article 159.
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides for the punishment of crimes listed in the 1998 ICC Statute, including genocide by “causing serious bodily or mental harm to members of the group”; “[t]orture of a person in the custody or under the control of the perpetrator by inflicting upon that person severe physical or mental pain or suffering” and “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to physical or mental health” as crimes a against humanity; as well as the war crimes of “[c]ausing a person substantial physical or mental harm or suffering, especially by torturing … that person” and “[treating] a person who is to be protected under international humanitarian law in a gravely humiliating or degrading manner” in both international and non-international armed conflicts. 
Republic of Korea, ICC Act, 2007, Articles 8(2)(1), 9(2)(5), 9(2)(9), 10(2)(2) and 10(4).
Republic of Moldova
The Republic of Moldova’s Penal Code (2002) punishes the ordering or commission of acts of torture and inhuman treatment of the wounded, sick, prisoners, civilians, civilian medical personnel or members of the Red Cross and other similar organizations. 
Republic of Moldova, Penal Code, 2002, Article 137.
Romania
Romania’s Law on the Punishment of War Criminals (1945) provides that “criminals of war” are persons who:
inhumanely treated prisoners and hostages of war, … ordered or committed acts of cruelty with regard to the population of the territory affected by war, … [treated inhumanely the supervised] prisoners [in camps], including those interned, deported, imprisoned for political purposes, or who have been convicted and are doing forced labour. 
Romania, Law on the Punishment of War Criminals, 1945, Article I(a)–(b) and (e).
Romania
Romania’s Penal Code (1968) provides for the punishment of inhuman treatment or torture of the wounded, sick and shipwrecked, members of civil medical services, the Red Cross or similar organizations, prisoners of war, or of all persons in the hands of the adverse party. 
Romania, Penal Code, 1968, Article 358.
Russian Federation
Under the Russian Federation’s Criminal Code (1996), the cruel treatment of civilians or prisoners of war is a “crime against the peace and security of mankind”. 
Russian Federation, Criminal Code, 1996, Article 356(1); see also Article 357 (causing injuries as part of a genocide campaign).
Rwanda
Rwanda’s Constitution (2003) provides:
Article: 137
A state of emergency and a state of siege shall be governed by the law and declared by the President of the Republic, following a decision of the Cabinet.
A declaration of a state of siege or of a state of emergency shall not under any circumstances violate the right to life and physical integrity of the person. 
Rwanda, Constitution, 2003, Article 137.
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 8
A war crime is one of the following acts, committed during armed conflicts against persons or property protected under the Geneva Conventions of 12 August 1949 and its Additional Protocols I and II of 8 June 1977:
2° torture or other inhuman treatment, including biological experiments;
3° wilfully causing great suffering, or serious injury to body or health;
Article: 9
Shall be punished by one of the following penalties any person having committed one of the war crimes provided for in Article 8 of this law:
1° the death penalty or life imprisonment where he has committed a crime provided for in point 1°, 2°, 3°, 9°, 11° or 16° of Article 8 of this law;
Article: 10
“War crime” shall also mean any of the following acts committed in armed conflicts:
12° mistreatment of persons detained or interned.
Article: 11
Anyone who commits one of the war crimes provided for in Article 10 of this law shall be punished by the following penalties:
2° imprisonment for ten (10) to twenty (20) years, where he has committed a crime provided for in point 3°, 8°, 11° or 12° of Article 10 of this law. 
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Articles 8–11.
Acts constituting the crime of genocide perpetrated against Tutsi and other crimes against humanity which are in the jurisdiction of the Primary Court
The following offences shall be tried at the first instance by the Primary Court:
Senegal
Senegal’s Penal Code (1965), as amended in 1996, states:
Acts of torture are injuries, blows, physical or mental violence or other forms of assault intentionally 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 either for the purpose of obtaining information or a confession, imposing punishment by way of a reprisal or making threats or for any reason based on discrimination of any kind.
Attempt shall be punished like the completed offence.
Persons referred to in the first paragraph who are found guilty of torture or attempted torture shall be punishable by imprisonment of five to ten years and by a fine of 100,000 to 500,000 francs.
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
An order from a superior officer or a public authority may not be invoked as a justification of torture. 
Senegal, Penal Code, 1965, as amended in 1996, Article 295-1.
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states:
[a)] Any of the following acts constitutes a war crime if it concerns members of the armed forces, the wounded, sick or shipwrecked, prisoners of war, or civilians or objects protected by the provisions of the Geneva Conventions of 12 August 1949:
2. torture or inhuman treatment … or intentionally causing great suffering to the physical or psychological integrity;
b) other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts [also constitute war crimes]:
18. committing outrages upon personal dignity by [inflicting] humiliating and degrading treatment;
c) in case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no direct part in hostilities, including members of the armed forces who have laid down their arms and persons placed hors de combat by sickness, wounds, detention or any other cause [also constitute war crimes]:
1. … violence to the person … cruel treatment and torture;
2. committing outrages upon personal dignity by [inflicting] humiliating and degrading treatment. 
Senegal, Penal Code, 1965, as amended in 2007, Articles 431-3(a)(2) and 434-3(b)(18) and (c)(1)–(2); see also Article 431-1(2) (genocide) and Article 431-2(7) (crimes against humanity).
Serbia
Serbia’s Law on Enforcement of Penal Sanctions (2005) states: “Any treatment subjecting a prisoner to any form of torture … [or] degrading … treatment is forbidden and punishable.” 
Serbia, Law on Enforcement of Penal Sanctions, 2005, Article 6.
Serbia
Serbia’s Criminal Code (2005) states that ordering or committing serious bodily or mental harm “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” constitutes an act of genocide. 
Serbia, Criminal Code, 2005, Article 370.
The Criminal Code also states that ordering or committing torture “as part of a wider and systematic attack against the civilian population”, in violation of international law, constitutes a crime against humanity. 
Serbia, Criminal Code, 2005, Article 371.
The Criminal Code further states that, in time of war, armed conflict or occupation, ordering or committing “torture [or] inhuman treatment” against the civilian population, in violation of international law, constitutes a war crime. 
Serbia, Criminal Code, 2005, Article 372(1).
The Criminal Code further states that ordering or committing “torture [or] inhuman treatment” against the wounded and sick or prisoners of war, in violation of international law, constitutes a war crime. 
Serbia, Criminal Code, 2005, Articles 373 (1) and 374(1).
The Criminal Code also states:
(1) Whoever in violation of international law in time of war or armed conflict kills or wounds an enemy who has laid down his weapons or has surrendered unconditionally or has no means of defence, shall be punished by imprisonment of between one to fifteen years.
(3) If the murder specified in paragraph 1 of this Article is committed in a cruel manner … the offender shall be punished by imprisonment of between ten years … to forty years. 
Serbia, Criminal Code, 2005, Article 378(1) and (3).
Seychelles
The Geneva Conventions Act (1985) of the Seychelles punishes “any person, whatever his nationality, who whether in or outside Seychelles, commits, or aids, abets or procures the commission by any other person of, any such grave breach of any of the [1949 Geneva] Conventions”. 
Seychelles, Geneva Conventions Act, 1985, Section 3(1).
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
2. Grave breaches of the [1949 Geneva] Conventions and the [1977] First [Additional] Protocol.
(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone[,] commits, aids, abets or procures any other person to commit a grave breach specified in –
(a) article 50 of the First Geneva Convention [on, inter alia, the grave breach of torture or inhuman treatment];
(b) article 51 of the Second Geneva Convention [on, inter alia, the grave breach of torture or inhuman treatment];
(c) article 130 of the Third Geneva Convention [on, inter alia, the grave breach of torture or inhuman treatment];
(d) article 147 of the Fourth Geneva Convention [on, inter alia, the grave breach of torture or inhuman treatment]. 
Sierra Leone, Geneva Conventions Act, 2012, Section 2(1)(a)–(d).
Singapore
Singapore’s Geneva Conventions Act (1973) punishes “any person, whatever his citizenship or nationality, who, whether in or outside Singapore, commits, aids, abets or procures the commission by any other person of any such grave breach of any [1949 Geneva] Convention”. 
Singapore, Geneva Conventions Act, 1973, Section 3(1).
Slovakia
Slovakia’s Criminal Code (1961), as amended, provides that “a person who, during the war, violates the provisions … of international law by inhumanly maltreating … members of the enemy’s armed forces who have laid down their weapons” commits a crime. 
Slovakia, Criminal Code, 1961, as amended, Articles 259(a)(1) and 263(1).
Slovenia
Under Slovenia’s Penal Code (1994), subjecting civilians, the wounded, sick and shipwrecked, prisoners of war and medical and religious personnel to acts of torture and inhuman treatment or the infliction of great suffering and injury to their physical and mental health is a war crime. 
Slovenia, Penal Code, 1994, Articles 374(1), 375 and 376.
Somalia
Somalia’s Military Criminal Code (1963) states:
382. Arbitrary refusal to recognize the status of lawful belligerent. – A commander who causes serious harm to lawful enemy belligerents who have fallen into his power, or to the sick, wounded or shipwrecked, by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years.
393. Torture or ill-treatment. – A soldier charged with escorting, supervising or guarding prisoners of war who abuses this position and, for any reason, tortures or ill-treats a prisoner of war, shall be punished by military confinement for 2 to 10 years.
395. Violence, intimidation or abuse, in general. – 1. Except in the cases provided for in the two preceding articles, a soldier who uses violence or intimidation or who abuses a prisoner of war shall receive the same penalties as those prescribed by law for such acts when they are committed by a soldier against a subordinate.
2. The same provision shall apply to a prisoner of war appointed by the Somali military authority to be in charge of discipline in a squad or unit if he commits any of the above-mentioned acts against a prisoner of war in the squad or unit. 
Somalia, Military Criminal Code, 1963, Articles 382, 393 and 395.
South Africa
South Africa’s ICC Act (2002) reproduces the crimes listed in the 1998 ICC Statute, including genocide by “causing serious bodily or mental harm to members of the group”, and “torture” as well as “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” as crimes against humanity, and the war crimes of “torture or inhumane treatment” and “wilfully causing great suffering, or serious injury to body or health” of persons protected under the 1949 Geneva Conventions, as well as “committing outrages upon personal dignity, in particular humiliating and degrading treatment” in international armed conflicts, and “cruel treatment and torture” and “committing outrages upon personal dignity, in particular humiliating and degrading treatment” of “persons taking no active part in the hostilities” in non-international armed conflicts. 
South Africa, ICC Act, 2002, Schedule 1, Part 1, § (b), Part 2, §§ 1(f) and 1(k), and Part 3, §§ (a)(ii), (a)(iii), (b)(xxi), (c)(i) and (c)(ii).
Spain
Spain’s Military Criminal Code (1985) punishes military personnel who ill-treat or wilfully torture surrendered or helpless enemy combatants. It also punishes the soldier who treats inhumanely or causes serious injury to the wounded, sick and shipwrecked, prisoners of war or the civilian population. 
Spain, Military Criminal Code, 1985, Articles 69, 76 and 77(5).
Spain
Spain’s Penal Code (1995) punishes anyone who, during an armed conflict, commits the following acts against a protected person: ill-treatment, torture, inhuman treatment or causing great suffering. 
Spain, Penal Code, 1995, Articles 609 and 612(3).
Spain
Spain’s Penal Code (1995), as amended in 2003, states:
Any person who is found guilty of torture shall be punished with two to six years’ imprisonment, if the case is deemed grave, or one to three years’ imprisonment if it is not. All penalties shall include an absolute disqualification from holding public office for a period between eight and twelve years. 
Spain, Penal Code, 1995, as amended on 25 November 2003, Article 174(1).
Spain
Spain’s Royal Ordinances for the Armed Forces (2009) states that members of the armed forces “[m]ust not subject prisoners and detainees to torture or abuse”. 
Spain, Royal Ordinances for the Armed Forces, 2009, Article 110.
Sri Lanka
Sri Lanka’s Convention against Torture Act (1994) states: “Any person who tortures any other person shall be guilty of an offence under this Act.” 
Sri Lanka, Convention against Torture Act, 1994, Section 1.
Sri Lanka
Sri Lanka’s Geneva Conventions Act (2006) includes the grave breach of “torture or inhuman treatment” as an indictable offence. 
Sri Lanka, Geneva Conventions Act, 2006, Schedule I: Article 50, Schedule II: Article 51, Schedule III: Article 130, and Schedule IV: Article 147.
Sri Lanka
Sri Lanka’s Prisons Ordinance (1878), as amended to 2005, states:
37. (1) Every Visitor [from the Board of Prison Visitors established pursuant to Article 35 of this Ordinance] shall be entitled-
(a) to visit any prison at any time;
(b) to have free access to any part of any prison or to any prisoner therein;
(e) to inquire into the general condition and treatment of the prisoners in any prison;
41. (1) Every Visitor appointed under this Ordinance shall hear all complaints which may be made to him by any prisoner … respecting any ill-treatment that he may have received in the prison.
87. (1) Any jailer or subordinate prison officer charged with ill-treating a prisoner, … may be dealt with in accordance with the regulations for the time being in force relating to the dismissal or other punishment of public officers,
(2) Every jailer or subordinate prison officer, who ill-treats a prisoner … shall be guilty of an offence and may, where he is not in the discretion of the Commissioner-General deal with under subsection (1), be prosecuted in the Magistrate’s Court having jurisdiction over the place where the offence is alleged to have been committed, and punished by such court on conviction after summary trial with a fine not exceeding two hundred rupees, or with imprisonment of either description for a term not exceeding three months or with both such fine and such imprisonment. 
Sri Lanka, Prisons Ordinance, 1878, as amended to 2005, Articles 37(1)(a)–(b) and (e), 41(1) and 87(1)–(2).
These articles apply to persons deprived of their liberty under Sri Lanka’s Emergency Regulations (2005) pursuant to section 19 of these regulations.
Sudan
Sudan’s Armed Forces Act (2007) provides:
(2) Subject to provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding ten years, whoever commits, within the framework of a methodical direct and widespread attack, directed against civilians, any of the following acts:
(c) torture … of any person. 
Sudan, Armed Forces Act, 2007, Article 151(2).
Sweden
Sweden’s Penal Code (1962), as amended in 1998, provides that causing severe suffering to persons enjoying special protection under international law is a crime against international law. 
Sweden, Penal Code, 1962, as amended in 1998, 1962, Article 22(6).
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
Art. 111
1 The penalty shall be a custodial sentence of not less than five years for any person who commits, in the context of an international armed conflict, a grave breach of the Geneva Conventions of 12 August 1949, namely one of the following acts against persons or objects protected under one of these Conventions:
c. causing great suffering or serious injury to body or physical or mental health, in particular by torture, [or] inhuman treatment …
2 Acts covered by paragraph 1 committed in the context of a non-international armed conflict are equivalent to grave breaches of international humanitarian law if they are directed against a person or object protected by that law.
Art. 112a
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
c. commits severe outrage upon the dignity of a person protected by international humanitarian law by treating him in a humiliating or degrading manner. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110, 111(1)(c) and (2) and 112a (1)(c).
[footnote in original omitted]
The Code also states:
Art. 5
1 In times of war, in addition to the persons mentioned in art. 3 [Personal conditions] and 4 [Extension in case of active service], the following are subject to military criminal law:
1. Civilians who make themselves culpable of one of the following offences:
d. … crime against humanity [Art. 109] (Part 2, chapter 6) …;
5. foreign military persons who make themselves culpable of … a crime against humanity [Art. 109] (Part 2, chapter 6)[.]
Chapter 6 – Genocide and crimes against humanity
Art. 109
1 The penalty shall be a custodial sentence of not less than five years for any person who, as part of a widespread or systematic attack directed against the civilian population:
f. inflicts severe suffering or a serious injury to body or physical or mental health on a person in his custody or under his control;
j. commits any other act of a comparable gravity to the crimes addressed in this paragraph and thereby inflicts on a person severe suffering or a serious injury to body or to physical or mental health. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 5(1)(1)(d) and (5) and 109(1)(f) and (j).
[footnotes in original omitted]
Switzerland
Switzerland’s Penal Code (1937), as amended in 2009, states:
Any person who, with the intent to destroy, in whole or in part, a national, racial, religious or ethnic group, [commits any of the following acts,] is to be punished with life imprisonment, 10 years’ imprisonment or less:
a. … causing serious bodily or mental harm [to members of the group]. 
Switzerland, Penal Code, 1937, as amended in 2009, Article 264(1)(a).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
Art. 264c
1 The penalty shall be a custodial sentence of not less than five years for any person who commits, in the context of an international armed conflict, a grave breach of the Geneva Conventions of 12 August 1949, namely one of the following acts against persons or objects protected under one of these Conventions:
c. causing great suffering or serious injury to body or physical or mental health, in particular by torture, [or] inhuman treatment …
2 Acts covered by paragraph 1 committed in the context of a non-international armed conflict are equivalent to grave breaches of international humanitarian law if they are directed against a person or object protected by that law.
Art. 264e
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
c. commits severe outrage upon the dignity of a person protected by international humanitarian law by treating him in a humiliating or degrading manner. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b, 264c (1)(c) and (2), and 264e (1)(c).
[footnote in original omitted]
Switzerland
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states:
Article 3
1. The criminal justice authorities shall respect the dignity of the persons affected by the proceedings at all stages of the proceedings.
2. They shall in particular comply with:
d. the prohibition, when taking evidence, of using methods that violate human dignity. 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 3(1) and (2)(d).
The Code further states:
Article 140
1. The use of coercion, violence, threats, promises, deception and methods that may compromise the ability of the person concerned to think or decide freely are prohibited when taking evidence.
2. Such methods remain unlawful even if the person concerned consents to their use. 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 140(1) and (2).
Tajikistan
Tajikistan’s Criminal Code (1998) provides for the punishment of anyone who commits acts of torture, inhuman treatment, causes great suffering or threatens the physical or mental state of protected persons. 
Tajikistan, Criminal Code, 1998, Article 403(2)(b)–(c); see also Article 398 (causing harm to health as part of a genocide campaign).
Thailand
Thailand’s Prisoners of War Act (1955) provides for the punishment of “whoever threatens, insults or subjects a prisoner of war to humiliating or degrading treatment” or “whoever inflicts physical or mental torture or any other form of coercion on prisoners of war to secure information of any kind whatsoever, or threatens, insults, or exposes a prisoner of war who refuses to answer to any unpleasant or disadvantageous treatment of any kind”. This prohibition also extends to persons protected by common Article 3 of the 1949 Geneva Conventions. 
Thailand, Prisoners of War Act, 1955, Sections 13–14 (prisoners of war) and Section 18 (persons protected by common Article 3).
Turkey
Under Turkey’s Criminal Code (2004), torture and the infliction of severe suffering constitutes a crime against humanity when committed “systematically under a plan against a sector of a community for political, philosophical, racial or religious reasons”. Furthermore, causing serious bodily or mental harm constitutes genocide when committed “under a plan against members of national, racial or religious groups with the intention of destroying the complete or part of the group”. 
Turkey, Criminal Code, 2004, Articles 76(b) and 77(c).
Ukraine
Ukraine’s Criminal Code (2001) provides for the punishment of cruel treatment and ill-treatment of prisoners of war or civilians. 
Ukraine, Criminal Code, 2001, Articles 434 and 438(1); see also Article 442 (causing grave injuries as part of a genocide campaign).
Uganda
Uganda’s Geneva Conventions Act (1964) punishes “any person, whatever his nationality, who, whether within or without Uganda commits or aids, abets or procures the commission by any other person of any grave breach of the [1949 Geneva] Conventions”. 
Uganda, Geneva Conventions Act, 1964, Section 1(1).
United Kingdom of Great Britain and Northern Ireland
The UK Geneva Conventions Act (1957), as amended in 1995, punishes “any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] conventions”. 
United Kingdom, Geneva Conventions Act as amended, 1957, Section 1(1).
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit genocide as defined in Article 6(b) of the 1998 ICC Statute, a crime against humanity as defined in Article 7(1)(f) of the 1998 ICC Statute, and a war crime as defined in Article 8(2)(a)(ii), (b)(xxi) and (c)(i) and (ii) of the 1998 ICC Statute. 
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
United Kingdom of Great Britain and Northern Ireland
The UK Armed Forces Act (2006) states:
23 Disgraceful conduct of a cruel or indecent kind
(1) A person subject to service law commits an offence if—
(a) he does an act which is cruel or indecent; and
(b) his doing so is disgraceful.
(2) In this section “act” includes an omission and the reference to the doing of an act is to be read accordingly. 
United Kingdom, Armed Forces Act, 2006, Section 23.
United States of America
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region I (1945) established military commissions which had jurisdiction over offences such as torture and ill-treatment of prisoners of war or persons on the seas and ill-treatment of hostages or civilians of or in an occupied territory. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region I, 1945, Regulation 5.
United States of America
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region II (1945) established military commissions which had jurisdiction over offences such as ill-treatment of the civilian population of or in occupied territory, prisoners of war or internees, or persons on the seas or elsewhere or improper treatment of hostages. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region II, 1945, Regulation 2(b).
United States of America
In 1961, the US Congress adopted an act on foreign assistance (1961), as amended in 1974, to other nations in which it defined torture, cruel, inhuman or degrading treatment or punishment as “gross violations of internationally recognized human rights” that would call into question whether or not a country should receive military aid. 
United States, Foreign Assistance Act, 1961, as amended in 1974, Sections 116 and 502 B.
United States of America
Under the US War Crimes Act (1996), violations of common Article 3 and grave breaches of the 1949 Geneva Conventions are war crimes. 
United States, War Crimes Act, 1996, Section 2441(c).
United States of America
The US Intelligence Reform and Terrorism Prevention Act (2004) states in Title V—Border Protection, Immigration and Visa Matters; Subtitle E—Treatment of Aliens Who Commit Acts of Torture, Extrajudicial Killings or Other Atrocities Abroad:
§ 5501. Inadmissibility and Deportability of Aliens Who have Committed Acts of Torture or Extrajudicial Killings Abroad
(a) INADMISSIBILITY.—Section 212(a)(3)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) is amended—
(1) in clause (ii), by striking “has engaged in conduct that is defined as genocide for purposes of the International Convention on the Prevention and Punishment of Genocide is inadmissible” and inserting “ordered, incited, assisted, or otherwise participated in conduct outside the United States that would, if committed in the United States or by a United States national, be genocide, as defined in section 1091(a) of title 18, United States Code, is inadmissible”;
(2) by adding at the end the following: ‘‘(iii) COMMISSION OF ACTS OF TORTURE OR EXTRAJUDICIAL KILLINGS.—Any alien who, outside the United States, has committed, ordered, incited, assisted, or otherwise participated in the commission of—
(I) any act of torture, as defined in section 2340 of title 18, United States Code; or
(II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note), is inadmissible.; and
(3) in the subparagraph heading, by striking “PARTICIPANTS IN NAZI PERSECUTION OR GENOCIDE” and inserting “PARTICIPANTS IN NAZI PERSECUTION, GENOCIDE, OR THE COMMISSION OF ANY ACT OF TORTURE OR EXTRAJUDICIAL KILLING”
(b) DEPORTABILITY.—Section 237(a)(4)(D) of such Act (8 U.S.C. 1227(a)(4)(D)) is amended—
(1) by striking “clause (i) or (ii)” and inserting “clause (i), (ii), or (iii)”; and
(2) in the subparagraph heading, by striking “ASSISTED IN NAZI PERSECUTION OR ENGAGED IN GENOCIDE” and inserting “PARTICIPATED IN NAZI PERSECUTION, GENOCIDE, OR THE COMMISSION OF ANY ACT OF TORTURE OR EXTRAJUDICIAL KILLING”. 
United States, Intelligence Reform and Terrorism Prevention Act, 2004, Public Law 108-458, 17 December 2004, Title V, Subtitle E, § 5501(a) and (b).
United States of America
The US Detainee Treatment Act (2005) states:
Sec. 1003. Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government
(a) In General – No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. 
United States, Detainee Treatment Act, 2005, Title X of Public Law 109-148 (the 2006 Department of Defense Appropriations Act), 119 Stat 2680, 30 December 2005, § 1003(a).
United States of America
In July 2006, the US Deputy Secretary of Defense issued a memorandum to senior military and civilian personnel in the Department of Defense (DoD) on the subject of common Article 3 of the 1949 Geneva Conventions and its application to the treatment of detainees:
The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3. 
United States, Department of Defense, Deputy Secretary of Defense, Gordon England, Memorandum, Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense, 7 July 2006.
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(11) TORTURE.—
“(A) OFFENSE.—Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) SEVERE MENTAL PAIN OR SUFFERING DEFINED.— In this section, the term “severe mental pain or suffering” has the meaning given that term in section 2340(2) of title 18.
“(12) CRUEL OR INHUMAN TREATMENT.—
“(A) OFFENSE.—Any person subject to this chapter who commits an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) DEFINITIONS.—In this paragraph:
(i) The term “serious physical pain or suffering” means bodily injury that involves—
(I) a substantial risk of death;
(II) extreme physical pain;
(III) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(IV) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
(ii) The term “severe mental pain or suffering” has the meaning given that term in section 2340(2) of title 18.
(iii) The term “serious mental pain or suffering” has the meaning given the term “severe mental pain or suffering” in section 2340(2) of title 18, except that—
(I) the term “serious” shall replace the term “severe” where it appears; and
(II) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.
“(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—
“(A) OFFENSE.—Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) SERIOUS BODILY INJURY DEFINED.—In this paragraph, the term “serious bodily injury” means bodily injury which involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.  
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2626–2627, § 950v(b)(11)–(13).
The Military Commissions Act further provides:
Sec. 6. Implementation of Treaty Obligations
“ …
“(b) REVISION OF WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.—
“(1) IN GENERAL.—Section 2441 of title 18, United States Code, is amended—
“ …
“(B) by adding at the end the following new subsection:
“(d) COMMON ARTICLE 3 VIOLATIONS.—
“(1) PROHIBED CONDUCT.—In subsection (c)(3), the term ‘grave breach of common Article 3’ means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
“(A) TORTURE.—The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
“(B) CRUEL OR INHUMAN TREATMENT.—The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
“ …
“(F) INTENTIONALLY CAUSING BODILY INJURY.—The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2633 and 2634, Sec. 6(b)(1)(B)(d)(1)(A), (B) and (F).
United States of America
In July 2007, and in accordance with section 6(a)(3) of the Military Commissions Act (2006), the US President George W. Bush issued an Executive Order which stated that a “Program of Detention and Interrogation Operated by the Central Intelligence Agency” complied with US obligations under common Article 3 of the 1949 Geneva Conventions. The Executive Order stated in part:
Sec. 2. Definitions. As used in this order:
(c) “Cruel, inhuman, or degrading treatment or punishment” means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3.
(a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(A) torture, as defined in section 2340 of title 18, United States Code;
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;
(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 148 and section 1403 of Public Law 109 163);
(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual. 
United States, Executive Order 13440, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, 20 July 2007.
United States of America
In 2009, the US President issued Executive Order 13491, Ensuring Lawful Interrogations, which stated:
By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the [1949] Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:
Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order.
Sec. 2. Definitions. As used in this order:
(f) … “cruel treatment,” “torture,” “outrages upon personal dignity,” and “humiliating and degrading treatment” refer to, and have the same meaning as, those same terms in Common Article 3 [to the 1949 Geneva Conventions].
Sec. 3. Standards and Practices for Interrogation of Individuals in the Custody or Control of the United States in Armed Conflicts.
(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340–2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.
(b) Interrogation Techniques and Interrogation-Related Treatment. Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2–22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.
(c) Interpretations of Common Article 3 and the Army Field Manual.
From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2–22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation –including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2–22.3, and its predecessor document, Army Field Manual 34–52 – issued by the Department of Justice between September 11, 2001, and January 20, 2009. 
United States, Executive Order 13491, Ensuring Lawful Interrogations, 2009, Sections 1, 2(f) and 3.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(11) TORTURE.—
“(A) OFFENSE.—Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) SEVERE MENTAL PAIN OR SUFFERING DEFINED.—In this paragraph, the term “severe mental pain or suffering” has the meaning given that term in section 2340(2) of title 18.
“(12) CRUEL OR INHUMAN TREATMENT.—Any person subject to this chapter who subjects another person in their custody or under their physical control, regardless of nationality or physical location, to cruel or inhuman treatment that constitutes a grave breach of common Article 3 of the [1949] Geneva Conventions shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.
“(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—
“(A) OFFENSE.—Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including privileged belligerents, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) SERIOUS BODILY INJURY DEFINED.—In this paragraph, the term “serious bodily injury” means bodily injury which involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. 
United States, Military Commissions Act, 2009, § 950t(11)–(13).
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
A person who commits any of the following acts with the intention to destroy in whole or in part a national, ethnic, religious, political, or trade union group or a group with their own identity based on gender, sexual orientation, cultural or social reasons, age, disability or health, is punished with fifteen to thirty years’ imprisonment:
B) Torture … , inhuman or degrading treatment or causing serious bodily or mental harm to one or more members of the group. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 16(B).
The Law also lists the following crime under the heading “Crimes against Humanity – Isolated Acts”:
Any person who is a State agent or who is not a State agent but acts with the authority, support or acquiescence of one or more State agents and who imposes any form of torture on a person who is deprived of their liberty, in the perpetrator’s custody or under the perpetrator’s control or who appears before authorities as expert witness or other kind of witness must be punished with twenty months’ to eight years’ imprisonment. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 22.1.
The Law further states:
26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.
26.3. The following are war crimes:
2. Torture or inhuman treatment. 
Uruguay, Law on Cooperation with the ICC, 2006, Articles 26.2 and 26.3.2.
Uzbekistan
Under Uzbekistan’s Criminal Code (1994), ordering or carrying out acts of torture constitutes a violation of the laws and customs of war. 
Uzbekistan, Criminal Code, 1994, Article 152.
Vanuatu
Vanuatu’s Geneva Conventions Act (1982) provides:
Any grave breach of the Geneva Conventions that would, if committed in Vanuatu, be an offence under any provision of the Penal Code Act Cap. 135 or any other law shall be an offence under such provision of the Penal Code or any other law if committed outside Vanuatu. 
Vanuatu, Geneva Conventions Act, 1982, Section 4(1).
Venezuela
Venezuela’s Code of Military Justice (1998), as amended, provides for the punishment of anyone who commits grave attempts against persons who surrender or against women, the elderly or children in the territories occupied by national forces … and other acts of cruelty”. 
Venezuela, Code of Military Justice, 1998, as amended, Article 474(2).
Venezuela
Venezuela’s Penal Code (2005) states:
Any public official in charge of the custody or transfer of a detained or convicted person who commits arbitrary acts against such person or acts not authorized by the applicable regulations shall be punished with fifteen days’ to twenty months’ imprisonment. The same penalty shall be imposed on a public official who, because of his or her functions, holds a position of authority over such person and commits any of the [aforementioned] … acts. Injuries, offences against human dignity, ill treatment, torture, physical or moral humiliation committed against detainees shall be punished with three to six years’ imprisonment of the guardians or prison guards or of whoever gave the order to commit such acts which are contrary to the individual rights enshrined in Article 46(2) of the Constitution of Venezuela. 
Venezuela, Penal Code, 2005, Article 181.
Venezuela
Venezuela’s Law on the Protection of Children and Adolescents (2007) states:
Every boy, girl and adolescent has the right to personal integrity. This right includes physical, psychological and moral integrity.
1. Boys, girls and adolescents must not be subjected to torture, cruel, inhuman or degrading punishment or treatment.
2. The State, families and society must protect every boy, girl and adolescent against any form of … torture. 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 32.
Venezuela
Venezuela’s Constitution (2009) states:
The President of the Republic, at a meeting of the Cabinet of Ministers, shall have the power to decree states of exception. … In such cases, the guarantees contained in this Constitution may be temporarily restricted, with the exception of those relating to the … prohibition of … torture. 
Venezuela, Constitution, 2009, Article 337.
The Constitution further states: “A state of internal or external commotion may be declared in the event of an internal or external [armed] conflict seriously endangering the security of the Nation, its citizens or its institutions.” 
Venezuela, Constitution, 2009, Article 338.
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … Not to be subjected to torture or other cruel, inhuman or degrading treatment.” 
Venezuela, Penal Procedure Code, 2009, Article 125(10).
Viet Nam
Viet Nam’s Penal Code (1990) provides for the punishment of “anyone who maltreats prisoners of war or soldiers”. 
Viet Nam, Penal Code, 1990, Article 275.
Viet Nam
Viet Nam’s Penal Code (1999) provides for the punishment of those “who ill-treat prisoners of war and/or enemy deserters”. 
Viet Nam, Penal Code, 1999, § 340.
Yemen
Under Yemen’s Military Criminal Code (1998), the following acts constitute war crimes: “torture or maltreatment of prisoners or causing them intentionally great suffering” or “committing grave attempts to the physical and mental integrity and health of prisoners of war and civilians”. 
Yemen, Military Criminal Code, 1998, Article 21(2)–(3).
Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia’s Criminal Offences against the Nation and State Act (1945), during war or enemy occupation, “any person who ordered, assisted or otherwise was the direct executor of … torture” committed a war crime. 
Yugoslavia, Socialist Federal Republic of, Criminal Offences against the Nation and State Act, 1945, Article 3(3).
Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia Penal Code (1976), as amended in 2001, subjecting civilians, the wounded, sick and shipwrecked, prisoners of war and medical and religious personnel to acts of torture, inhuman treatment, infliction of great suffering and injury to their physical and mental health is a war crime. 
Yugoslavia, Socialist Federal Republic of , Penal Code, 1976, as amended in 2001, Articles 142(1), 143, 144 and 150; see also Article 141 (causing grave injuries as part of a genocide campaign).
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
THE DECLARATION OF RIGHTS
15 Protection from inhuman treatment
(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.
26 Interpretation and other savings
(7) No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights. 
Zimbabwe, Constitution, 1979, as amended to 2009, Sections 15(1) and 26(7).
Zimbabwe
Zimbabwe’s Geneva Conventions Act (1981), as amended in 1996, punishes “any person, whatever his nationality, who, whether in or outside Zimbabwe, commits any such grave breach of [any of the 1949 Geneva] Conventions”.  
Zimbabwe, Geneva Conventions Act, 1981, as amended in 1996, Section 3(1).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
53. Freedom from torture or cruel, inhuman or degrading treatment or punishment
No person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment.
86. Limitation of rights and freedoms
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(c) the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment;
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 53, 86(3)(c), and 87(1) and (4).
Australia
In the Tanaka Chuichi case before Australia’s Military Court at Rabaul in 1946, the accused had ill-treated Sikh prisoners of war, had cut their hair and beards and had forced some of them to smoke a cigarette, acts contrary to their culture and religion. The Court found the accused guilty of violations of, inter alia, the 1929 Geneva POW Convention. 
Australia, Military Court at Rabaul, Tanaka Chuichi case, Judgment, 12 July 1946.
Australia
In its judgment in the Baba Masao case in 1947, Australia’s Military Court at Rabaul found the accused, a Commanding General of the Japanese 27th Army in Borneo guilty of ill-treatment of Allied prisoners of war, as a result of the hardship that they were subjected to while transferring them to another camp. Indeed, many of the prisoners had a precarious state of health, owing to the meagre rations which they had been receiving over a long period and they were also severely ill-treated during the march. 
Australia, Military Court at Rabaul, Baba Masao case, Judgment, 2 June 1947
Australia
In the WBR case in 2006, Australia’s Administrative Appeals Tribunal noted:
25. The applicant has acknowledged in his evidence that prisoners being held at Katei Ganai prison [Afghanistan], in the period 1992–1994 when he was working there as a watchman, were tortured during interrogation sessions by their interrogators, and he does not dispute that the infliction of such torture constituted a crime against humanity and a war crime, within the meaning of Article 1F(a) of the Refugees Convention.
26. The Tribunal is satisfied, on the basis of the whole of the evidence before it, that there are “serious reasons for considering” that, in Katei Ganai prison in the period 1992–1994 when the applicant was working there as a watchman, torture was inflicted on prisoners by certain members of the Wahdat party in the course of interrogation sessions, and that, by inflicting that torture, those Wahdat party members committed crimes against humanity and war crimes, within the meaning of Article 1F(a) of the Refugees Convention (see, for example, Articles 7 and 8(2)(c) of the Rome Statute). 
Australia, Administrative Appeals Tribunal, WBR case, Decision of 5 September 2006, §§ 25–26.
Australia
In 2009, in the Snedden case – an action for defamation related to an article in a national newspaper alleging that the plaintiff had committed or condoned atrocities in Bosnia-Herzegovina in 1991 – the New South Wales Supreme Court held:
102. The plaintiff’s submissions distinguish torture from acts of cruelty, assaults and beatings. That much is accepted. However, the distinction is fundamental to the plaintiff’s contention that, even if certain witnesses who gave evidence of receiving beatings at the hands of, or in the presence of, the plaintiff are accepted, that treatment fell short of torture. The assumption underlying this proposition is that the acts of violence and the mistreatment (if any) meted out by the plaintiff and/or the men under his command are to be considered in isolation, that is, without regard to the physical and mental condition of the victims of these assaults …
103. The defendant’s witnesses on this topic were permitted, over objection, to give evidence of what had happened to them before they arrived at Knin and at the prison, on the basis that their resulting poor state of mental and physical health would have been obvious to anyone who had dealings with them. More importantly, the defendant’s allegation was that the further infliction of pain and suffering on prisoners in this weakened condition constituted torture, not that the assaults alone necessarily did so in every case. That is the basis upon which the evidence of these witnesses falls to be assessed.
126. The evidence … establishes that the plaintiff committed torture and the war crime of torture, either on the basis that the plaintiff himself seriously assaulted [two of the named victims] … both of whom were in a very weak physical and psychological condition, or on the basis that the plaintiff instigated or consented to the infliction of severe pain or suffering upon them and upon [a third named victim]. 
Australia, New South Wales Supreme Court, Snedden case, Judgment, 18 December 2009, §§ 102–103 and 126.
Australia
In 2010, in the Habib case, the Full Court of Australia’s Federal Court unanimously held that the “act of state doctrine” did not bar a claim for damages based on the alleged complicity of Australian officials in the alleged acts of torture committed on the applicant by officials of the governments of the United States, Egypt and Pakistan. Black CJ stated:
[8] Torture offends the ideal of a common humanity and the parliament has declared it to be a crime wherever outside Australia it is committed. Moreover, and critically in this matter, the Crimes (Torture) Act [1988] is directed to the conduct of public officials and persons acting in an official capacity irrespective of their citizenship and irrespective of the identity of their government. The circumstance that a prosecution may only be brought against an Australian citizen or a person present in Australia and requires the consent of the Attorney-General of the Commonwealth has evident practical consequences, but prohibited conduct is not thereby deprived of its character as a crime nor is the strength of the parliament’s emphatic disapproval of such conduct in any way thereby diminished.
[9] The Crimes (Torture) Act reflects the status of the prohibition against torture as a peremptory norm of international law from which no derogation is permitted and the consensus of the international community that torture can never be justified by official acts or policy.
[10] As well, and again consistently with Australia’s obligations under the [1984] Torture Convention, the parliament has spoken with clarity about the moral issues that may confront officials of governments, whether foreign or our own, and persons acting in an official capacity. It has proscribed torture in all circumstances, answering in the negative the moral and legal questions whether superior orders can absolve the torturer of individual criminal responsibility and whether, in extreme circumstances, torture may be permissible to prevent what may be apprehended as a larger wrong: see the Crimes (Torture) Act, s 11; the Torture Convention, Art 2.
[11] In these circumstances, if – contrary to the view that I share with Jagot J – the question were finely balanced and the common law were faced with a choice, congruence with the policy revealed by the Crimes (Torture) Act and its intended reach to the officials of foreign governments, even when acting within their own territory and under superior orders, points against the application of the act of state doctrine in the circumstances alleged by Mr Habib in the present proceeding.
[12] Consideration of the relevant sections of the Criminal Code, the Geneva Conventions Act and the Third and Fourth Geneva Conventions also, in my view, support these observations. 
Australia, Federal Court, Habib case, Judgment, 25 February 2010, §§ 8–12.
Perram J stated:
Section 6 of the Crimes (Torture) Act 1988 (Cth) makes it an offence for a public official outside of Australia to torture a person. Until 26 September 2002, s 7(1) of the Geneva Conventions Act 1957 (Cth) made it an offence of extraterritorial operation to torture a person protected by the Convention relative to the Treatment of Prisoners of War adopted at Geneva on 12 August 1949 (the Third Geneva Convention) or the Geneva Convention relative to the Protection of Civilian Persons in Time of War adopted at Geneva on 12 August 1949 (the Fourth Geneva Convention). On 26 September 2002, a date of no particular significance, the Commonwealth Parliament determined to relocate the offences relating to the Geneva Conventions from the Geneva Conventions Act 1957 to ss 268.26 and 268.74 of the Criminal Code Act 1995 (Cth). 
Australia, Federal Court, Habib case, Judgment, 25 February 2010, § 20.
Jagot J stated:
[108] The Commonwealth’s approach is superficially attractive. Whether the language of limitation should be preferred to that of exception, nevertheless, it is apparent that the test which the Commonwealth posits reflects the reasoning in Underhill [Underhill v Hernandez (1897) 168 US 250], a decision made in 1897. But the foregoing discussion shows that the jurisprudence of the US and the United Kingdom developed after 1897 in tandem with international law, particularly international law following the exposure of the horrors of the Nazi regime in Europe at the end of the Second World War. Specifically, international humanitarian law has been codified through the Geneva Conventions of 1949 and Additional Protocols of 1977, the Torture Convention has been rapidly and almost universally acceded to, and certain violations of international law (including torture) are recognised to involve contraventions of peremptory norms, or jus cogens, being norms about which all nations agree or are taken to agree and from which no derogation is permitted.
[112] The Crimes (Torture) Act creates an offence of torture. The effect of the legislation is to render torture unlawful under Australian law no matter who engages in it or where it is engaged in, and regardless of whether a prosecution may be commenced and sustained against the alleged torturer. The statute thus reflects and embodies our parliament’s endorsement of the common law’s “extreme revulsion … for the practice and fruits of torture”: Jones at [15]. [Jones v Ministry of the Interior of the Kingdom of the Saudi Arabia [2007] 1 AC 270; [2007] 1 All ER 113; [2006] UKHL 26]. As submitted for Mr Habib, if proved, his allegations would constitute grave violations of international human rights law. The weight of authority discussed above does not support the protection of such conduct from judicial scrutiny other than in the face of a valid claim for sovereign immunity.
[117] The claim is founded on allegations of torture. The prohibition on torture is an absolute requirement of customary international law. The prohibition is codified in the Torture Convention to which each of the states in question is party (other than Pakistan which is a signatory). It is conduct which the Commonwealth Parliament has proscribed by legislation expressed to apply throughout the world and to all persons, consistent with the international consensus that the torturer must have no safe haven. In terms of the “degree of codification or consensus concerning a particular area of international law” … the prohibition on torture is an agreed absolute value from which no derogation is permitted for any reason. The prohibition is a clearly established principle of international law … . The international community has spoken with one voice against torture. 
Australia, Federal Court, Habib case, Judgment, 25 February 2010, §§ 108, 112 and 117.
Bosnia and Herzegovina
In the Drago case in 1997, the Cantonal Court in Tuzla in Bosnia and Herzegovina convicted a person of causing serious bodily harm, ill-treatment and inhuman acts against detained civilians and military personnel. In its judgment, the Court referred to the 1949 Geneva Conventions and the 1977 Additional Protocol I and to the protection afforded to certain categories of persons in international armed conflicts. 
Bosnia and Herzegovina, Cantonal Court in Tuzla, Drago case, Judgment, 13 October 1997.
Canada
In the Brocklebank case in 1996, the Court Martial Appeal Court of Canada acquitted a Canadian soldier accused of torture and negligent performance of a military duty in respect of acts committed while serving as a member of the peacekeeping mission in Somalia. 
Canada, Court Martial Appeal Court, Brocklebank case, Judgment, 2 April 1996.
Canada
In the Suresh case before the Supreme Court of Canada in 2002, the appellant challenged an order for his deportation, inter alia, on the grounds that the Canadian Charter of Rights and Freedoms precludes deportation to a country where a refugee faces torture. The judgment of the Supreme Court held:
50. It can be confidently stated that Canadians do not accept torture as fair or compatible with justice. Torture finds no condonation in our Criminal Code; indeed the Code prohibits it (see, for example, s. 269.1). The Canadian people, speaking through their elected representatives, have rejected all forms of state-sanctioned torture. Our courts ensure that confessions cannot be obtained by threats or force … While we would hesitate to draw a direct equation between government policy or public opinion at any particular moment and the principles of fundamental justice, the fact that successive governments and Parliaments have refused to inflict torture and the death penalty surely reflects a fundamental Canadian belief about the appropriate limits of a criminal justice system.
51. When Canada adopted the Charter [the Canadian Charter of Rights and Freedoms] in 1982, it affirmed the opposition of the Canadian people to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12. A punishment is cruel and unusual if it “is so excessive as to outrage standards of decency”: see R. v. Smith, [1987] 1 S.C.R. 1045, at pp. 1072–73, per Lamer J. (as he then was). It must be so inherently repugnant that it could never be an appropriate punishment, however egregious the offence. Torture falls into this category. The prospect of torture induces fear and its consequences may be devastating, irreversible, indeed, fatal. Torture may be meted out indiscriminately or arbitrarily for no particular offence. Torture has as its end the denial of a person’s humanity; this end is outside the legitimate domain of a criminal justice system … Torture is an instrument of terror and not of justice. As Lamer J. stated in Smith, supra, at pp. 1073–74, “some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment”. As such, torture is seen in Canada as fundamentally unjust.
61. It has been submitted by the intervener, Amnesty International, that the absolute prohibition on torture is a peremptory norm of customary international law, or jus cogens. Articles 53 and 64 of the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, provide that existing or new peremptory norms prevail over treaties. Article 53 defines a peremptory norm as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. This raises the question of whether the prohibition on torture is a peremptory norm. Peremptory norms develop over time and by general consensus of the international community. This is the difficulty in interpreting international law; it is often impossible to pinpoint when a norm is generally accepted and to identify who makes up the international community …
62. In the case at bar, there are three compelling indicia that the prohibition of torture is a peremptory norm. First, there is the great number of multilateral instruments that explicitly prohibit torture …
63. Second, Amnesty International submitted that no state has ever legalized torture or admitted to its deliberate practice and that governments accused of practising torture regularly deny their involvement, placing responsibility on individual state agents or groups outside the government’s control. Therefore, it argues that the weight of these domestic practices is further evidence of a universal acceptance of the prohibition on torture. Counsel for the respondents, while not conceding this point, did not refer this Court to any evidence of state practice to contradict this submission. However, it is noted in most academic writings that most, if not all states have officially prohibited the use of torture as part of their administrative practices …
64. Last, a number of international authorities state that the prohibition on torture is an established peremptory norm …
65. Although this Court is not being asked to pronounce on the status of the prohibition on torture in international law, the fact that such a principle is included in numerous multilateral instruments, that it does not form part of any known domestic administrative practice, and that it is considered by many academics to be an emerging, if not established peremptory norm, suggests that it cannot be easily derogated from. 
Canada, Supreme Court, Suresh case, Judgment, 11 January 2002, §§ 50–51 and 61–65.
Canada
The Mahjoub case concerns a Mr Mahjoub, an Egyptian national found to be a refugee under the 1951 Refugee Convention in Canada in 1996, and detained in Canada under a security certificate issued by Canadian authorities in 2000.
In 2005, Canada’s Federal Court allowed judicial review of a decision by a delegate of the Canadian Minister of Citizenship and Immigration to remove Mr Mahjoub to Egypt, holding that that decision had been based on incomplete evidence, and the matter was remitted for redetermination by another delegate.
In 2006, Canada’s Federal Court dealt with the application for judicial review of the redetermined decision to remove Mr Mahjoub to Egypt. Finding that the “delegate’s decision with regard to the substantial risk of torture faced by Mr. Mahjoub on his return to Egypt was patently unreasonable”, 
Canada, Federal Court, Mahjoub case, Reasons for Judgment and Judgment, 14 December 2006, § 109.
the Federal Court again allowed the application for judicial review and remitted the matter for redetermination by another delegate. The Federal Court also made the following statement:
i. Reliance on evidence likely to have been obtained by torture
[22] In Lai v. Canada (M.C.I.), 2004 FC 179, [2004] F.C.J. No. 113 (QL) (Lai FCTD), my colleague Justice Andrew MacKay held at paragraph 24:
I agree … that evidence obtained by torture, or other means precluded by the International Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, ought not to be relied upon by a panel considering a refugee application. […]
[23] This view was confirmed by the Federal Court of Appeal in Lai v. Canada (M.C.I.), 2005 FCA 125, [2005] F.C.J. No. 584 (QL) (Lai FCA), where Justice Brian Malone concluded at paragraph 95 sub-paragraph (a) that “[…] [s]tatements obtained by torture or other cruel, inhumane or degrading treatment or punishment are neither credible or trustworthy.”
[24] In Re Charkaoui, 2004 FC 1031, [2004] F.C.J. No. 1236 (QL) (Charkaoui), my colleague Justice Simon Noël considered challenges to the evidence on the grounds that it had been obtained by torture. At paragraphs 28 and 29 of Charkaoui, above, he essentially found that the evidence at issue from Mr. Rezzam had not been tainted by torture, and that it could form part of the evidentiary record. However, Justice Noël was not satisfied that information against Mr. Charkaoui from Mr. Abu Zubaida had not likely been obtained by torture/mistreatment, as there was contradictory evidence surrounding the circumstances of its production (Charkaoui, above, at paragraphs 30, 31). With regard to this particular evidence, Justice Noël stated at paragraph 31 of Charkaoui, above:
[…] bearing in mind the objectives of the Convention Against Torture and the conflicting evidence presented by the two parties, it is the Court’s intention not to take into consideration the statement of Mr. Zubaida and not to assign it any importance for the time being in my analysis of the facts. However, the Court is not withdrawing this statement as presented from the record, in view of the type of evidence presented by the parties and the contradiction that exists in the evidence in support of the respective submissions of the parties.
[25] Another colleague, Justice Eleanor Dawson, considered a similar argument made on behalf of Mr. Harkat that torture had tainted evidence obtained from Mr. Abu Zubaida and therefore that it should be inadmissible (re Harkat, 2005 FC 393, [2005] F.C.J. No. 481 (QL) at para. 115) (Harkat 2005). Mr. Harkat referred to indirect and direct evidence of mistreatment likely suffered by Mr. Abu Zubaida in support of his position, and the Court held that there was “[…] significant concern about the methods used to interrogate Abu Zubaida” (Harkat 2005, above, at para. 120). It may be relevant to note that aside from the torture/mistreatment issue there was an “additional pressing concern” of the weight to accord the information from Mr. Abu Zubaida, as there was no evidence before the Court of the specific questions and answers used in producing the information (Harkat 2005, above, at para. 122). Ultimately, Justice Dawson concluded that she was “[…] left in doubt as to how Mr. Abu Zubaida came to provide information about Mr. Harkat” and she decided to “give no weight to the information provided to the Court through Abu Zubaida” (Harkat 2005, above, at para. 123).
[26] In light of the above, I agree with the applicant that reliance on evidence likely to have been obtained by torture is an error in law. Though not been explicitly articulated, I am persuaded that this general principle has essentially been applied and adopted in Canada in recent cases. It is also consistent with Canada’s signing of the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (G.A. res. 39/46, U.N. Doc. A/39/51 (1984)). This view is also consonant with a recent House of Lords decision which held that reliance on evidence likely to have been obtained by torture is an error in law (A (FC) and others (FC) v. Secretary of State for the Home Department, [2005] UKHL 71), [2005] H.L.J. No. 13 (QL) (A(FC)).
[27] However, it is also important to note that there must be a credible evidentiary basis linking torture to the specific evidence at issue in order to justify its exclusion (Lai FCTD, above, at paras. 28, 50; aff’d Lai FCA, above, at paras. 38-42; Charkaoui, above, at paras. 27–31). The Federal Court of Appeal has held that general country condition information citing the use of torture should not inevitably lead to a finding that all specific evidence from that country should be excluded, without further substantiation (Lai FCA, above, at para. 42). On this point Justice Malone concluded at paragraph 42 of Lai FCA, above, “[…] the very general evidence offered by the appellants about torture by Chinese investigators was not specific and certainly not specific to the statements offered by the Minister in this appeal. […]”
ii. Burden of proof
[28] The respondents submit that a party alleging that specific evidence was obtained by torture bears the onus of adducing proof to establish the claim, on a balance of probabilities standard, though no authorities were submitted on this point. I am not convinced this is the proper burden in the special circumstances of the present matter.
[29] In a proceeding where evidence is public, the person concerned has the ability to challenge specific evidence. Thus, it is appropriate to impose such a burden in the circumstances, as this person has the opportunity and means to properly discharge it. For instance, in India v. Singh, [1996] B.C.J. No. 2792 (QL), the British Colombia Supreme Court had the role of determining if there was sufficient evidence to order Mr. Singh to surrender for extradition to India where India relied upon confessional statements of five individuals detained there.
[30] In that case, Mr. Singh submitted that the statements were obtained by torture, and should be excluded. In this context, he knew the content of the statements and the identities of those who made them, and had the opportunity to produce specific evidence attempting to prove the statements were obtained under torture. The Court concluded at paragraph 21 that “[t]he burden of proving that the confessional statements were obtained as a result of the commission of an offence under this torture section [section 269.1 of the Criminal Code of Canada rests upon the Fugitive who makes the allegation … [and] must be proved upon a balance of probabilities”. Due to the nature of the proceedings, Mr. Singh was aware of all of the evidence against him, and therefore had the opportunity to adduce evidence necessary to meet the burden placed upon him. In contrast, due to the special nature of the present matter, where part of the evidence is not disclosed to Mr. Mahjoub, this opportunity is somewhat limited. This is a crucial distinction of which I am particularly mindful, and one which I believe is reflected in existing jurisprudence.
[31] In Harkat 2005, above, the Ministers submitted that Mr. Harkat had the burden of proving, on a balance of probabilities, that evidence from Mr. Abu Zubaida had been obtained by torture (Harkat 2005, above, at para. 116). Mr. Harkat responded that as the location and condition of Mr. Abu Zubaida were unknown, he was limited to putting public material before the Court and inferring the occurrence of torture; some of this public material related directly and indirectly to Mr. Abu Zubaida (Harkat 2005 at para. 117). After reviewing the public evidence, Justice Dawson stated that “[t]he evidence before the Court satisfies me that better evidence about conditions Mr. Abu Zubaida has been subjected to is not likely to be available to Mr. Harkat” and then concluded that it did raise “significant concern” about the methods used to obtain the evidence (Harkat 2005 at para. 120). In light of her doubt with regard to this evidence, she gave it no weight (Harkat, above, at para. 123).
[32] In a similar vein, Justice Noël decided not to rely on potentially suspect evidence where there was a specifically founded “possibility that such mistreatment occurred” (Charkaoui, above, at para. 31). Thus, the Court’s doubt was resolved by giving no weight to the evidence.
[33] In my view, my colleagues’ approaches to the burden of proof suggest an appropriate consideration of the special nature of matters such as these, and a recognition of the inherent limitations placed upon individuals such as the applicant. I find such an approach preferable to that proposed by the respondents in the special circumstances of the present context.
[34] In my opinion, in light of the preceding jurisprudence, where the issue is raised by an applicant offering a plausible explanation why evidence is likely to have been obtained by torture, the decision-maker should then consider this issue in light of the public and classified information. Where the decision-maker finds there are reasonable grounds to suspect that evidence was likely obtained by torture, it should not be relied upon in making a determination.
[35] This view is reflected in A(FC), above, where the House of Lords found, in a substantively similar context, that a conventional burden of proof should not be placed on the detainee (at paras. 55, 80, 98, 116, 155). Lord Hope of Craighead, in the majority, wrote at paragraph 116:
[…] It would be wholly unrealistic to expect the detainee to prove anything, as he is denied access to so much of the information that is to be used against him. He cannot be expected to identify from where the evidence comes, let alone the persons who have provided it. All he can reasonably be expected to do is to raise the issue by asking that the point be considered by SIAC. There is, of course, so much material in the public domain alleging the use of torture around the world that it will be easy for the detainee to satisfy that simple test. All he needs to do is point to the fact that the information which is to be used against him may have come from one of the many countries around the world that are alleged to practise torture, bearing in mind that even those who say that they do not use torture apply different standards from those that we find acceptable. Once the issue has been raised in this general way the onus will pass to SIAC. It has access to the information and is in a position to look at the facts in detail. It must decide whether there are reasonable grounds to suspect that torture has been used in the individual case that is under scrutiny. If it has such a suspicion, there is then something that it must investigate as it addresses its mind to the information that is put before it which has been obtained from the security services. [My emphasis]
[36] Ultimately, I believe that the determination of whether evidence is likely to have been obtained by torture is a fact-driven inquiry. It is unequivocally a conclusion that requires the decision-maker to weigh the evidence in the record, to determine if it was likely the product of torture or not. Thus, I agree with the reasoning of my colleague Justice MacKay in Jaballah, above, at paragraphs 40–42, that this issue is essentially one of the weight given to evidence by the delegate. As a fact-driven inquiry that involves weighing the available evidence, as with the other aspects of the decision, this element would be subject to considerable deference by a reviewing court. 
Canada, Federal Court, Mahjoub case, Reasons for Judgment and Judgment, 14 December 2006, §§ 22–36.
[emphasis in original]
Canada
On 9 February 2007, in the Afghanistan Public Interest (MPCC-2007-003) case, the Canadian Military Police Complaints Commission announced a decision to initiate a public interest investigation into allegations that Canadian Forces (CF) military police in Afghanistan failed to safeguard the well-being of three persons in their custody, in particular by allegedly failing to “investigate the causes of various injuries which may have been sustained while in CF, as opposed to military police, custody”. 
Canada, Military Police Complaints Commission, Afghanistan Public Interest (MPCC-2007-003) case, Letter serving as notice of Chairperson’s decision to initiate public interest investigation, 9 February 2007, p. 1.
Canada
In the Charkaoui case before the Supreme Court of Canada in 2007, in which the three appellants challenged the constitutionality of the provisions of the Canadian Immigration and Refugee Protection Act (IRPA) under which they had been detained for suspected links to terrorist activities, the Court held:
I conclude that the [Canadian Charter of Rights and Freedoms] s. 7 principles of fundamental justice and the s. 12 guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. Such persons must have meaningful opportunities to challenge their continued detention or the conditions of their release. 
Canada, Supreme Court, Charkaoui case, Judgment, 23 February 2007, § 107.
Canada
In 2008, in the Amnesty International Canada case, Canada’s Federal Court dismissed an application for judicial review on the basis of the Canadian Charter of Rights and Freedoms with respect to persons detained by the Canadian Forces (CF) in Afghanistan and their transfer to Afghan authorities. The Federal Court stated:
[1] The issue to be determined on this motion is whether the Canadian Charter of Rights and Freedoms applies to the conduct of Canadian Forces personnel in relation to individuals detained by the Canadian Forces in Afghanistan, and the transfer of those individuals to the custody of Afghan authorities.
[2] For the reasons that follow, I have concluded that while detainees held by the Canadian Forces in Afghanistan have the rights accorded to them under the Afghan Constitution and by international law, and, in particular, by international humanitarian law, they do not have rights under the Canadian Charter of Rights and Freedoms.
[3] Furthermore, although the actions of the Canadian Forces in Afghanistan in relation to the detention of non-Canadian individuals are governed by numerous international legal instruments, and may also be governed by Canadian law in certain clearly defined circumstances, the Canadian Charter of Rights and Freedoms does not apply to the conduct in issue in this case.
[4] As the application for judicial review rests exclusively on the Charter for its legal foundation, it follows that the application must be dismissed.
I. Introduction
[5] Amnesty International Canada and the British Columbia Civil Liberties Association (“the applicants”) have brought an application for judicial review with respect to “the transfers, or potential transfers, of individuals detained by the Canadian Forces deployed in the Islamic Republic of Afghanistan”.
[7] The applicants allege that the formal arrangements which have been entered into by Canada and Afghanistan do not provide adequate substantive or procedural safeguards to ensure that individuals transferred into the custody of the Afghan authorities, as well as those who may be transferred on to the custody of third countries, are not exposed to a substantial risk of torture.
[13] To assist in resolving this dispute in a timely and efficient manner, the parties have jointly agreed to have the issue of whether the Charter applies in the context [of] Canada’s military involvement in the armed conflict in Afghanistan determined on the basis of the following questions, pursuant to Rule 107(1) of the Federal Courts Rules:
1. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities?
2. If the answer to the above question is “NO” then would the Charter nonetheless apply if the Applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture?
[16] For the reasons that follow, I have determined that the answer to both of the questions posed by the motion is “No”. As a result, the applicants’ application for judicial review must therefore be dismissed.
II. Background
[44] Even before the Afghan Compact was concluded, the governments of Canada and Afghanistan had signed a document outlining the nature of Canada’s involvement and powers within Afghanistan: see the “Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan”, dated December 18, 2005.
[47] The Technical Arrangements further provide that:
Canadian personnel may need to use force (including deadly force) to ensure the accomplishment of their operational objectives, the safety of the deployed force, including designated persons, designated property, and designated locations. Such measures could include the use of close air support, firearms or other weapons; the detention of persons; and the seizure of arms and other materiel. Detainees would be afforded the same treatment as Prisoners of War. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer . …
[59] Theatre Standing Order 321A further provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”.
[64] Before transferring a detainee into Afghan custody, General Laroche [the Canadian Commander of Task Force Afghanistan] must be satisfied that there are no substantial grounds for believing that there exists a real risk that the detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities.
[66] On December 19, 2005, the Afghan Minister of Defence and the Chief of the Defence Staff for the Canadian Forces signed an agreement entitled “Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan” (the “first Detainee Arrangement”).
[67] The first Detainee Arrangement was intended to establish procedures to be followed in the event that a detainee was to be transferred from the custody of the Canadian Forces to a detention facility operated by Afghan authorities. The Arrangement reflects Canada’s commitment to work with the Afghan government to ensure the humane treatment of detainees, while recognizing that Afghanistan has the primary responsibility to maintain and safeguard detainees in their custody.
[70] On May 3, 2007, Canada and Afghanistan concluded a second Arrangement governing the transfer of detainees held by the Canadian Forces (the “second Detainee Arrangement”). This Arrangement supplements the first Detainee Arrangement, which continues to remain in effect.
[74] … [T]he second Detainee Arrangement provides that any allegations of the abuse or mistreatment of detainees held in Afghan custody are to be investigated by the Government of Afghanistan, and that individuals responsible for mistreating prisoners are to be prosecuted in accordance with Afghan law and internationally applicable legal standards.
[75] On January 22, 2008, the applicants were advised by the respondents that the Canadian Forces had suspended detainee transfers until such time as transfers could be resumed “in accordance with Canada’s international obligations”.
[76] The decision to suspend detainee transfer came about as a result of a “credible allegation of mistreatment” having been received on November 5, 2007 by Canadian personnel monitoring the condition of detainees transferred to Afghan authorities.
[81] … [W]hile the decision in this matter was under reserve, the Court was advised that as of February 26, 2008, the Canadian Forces had resumed transferring detainees to Afghan custody.
IV. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian forces or their transfer to Afghan authorities to be dealt with by those authorities?
c) Has the Government of Afghanistan Consented to the Application of Canadian law, Including the Charter?
[162] Insofar as the relationship between the Governments of Afghanistan and Canada is concerned, the two countries have expressly identified international law, including international humanitarian law, as the law governing the treatment of detainees in Canadian custody.
[166] … [I]n relation to the treatment of detainees, Article 1.2 of the Technical Arrangements provides that detainees are to be afforded “the same treatment as Prisoners of War”, and are to be transferred to Afghan authorities “in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.” …
[173] This conclusion is reinforced by a review of the wording of the detainee transfer Arrangements agreed to by both Canada and Afghanistan.
[179] The understanding between the Governments of Afghanistan and Canada that Afghan and international law are the legal regimes to be applied to the detainees in Canadian custody is also reflected in Canadian documents dealing with the treatment of detainees.
[180] In particular, Task Force Afghanistan’s Theatre Standing Order 321A recognizes international law as the appropriate standard governing the treatment of detainees. In this regard, Article 3 states that it is Canadian Forces policy that all detainees be treated to the standard required for prisoners of war, which it describes as being the highest standard required under international law.
[181] Moreover, Article 18 of TSO 321A provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”. …
d) “Effective Military Control of the Person” as a Test for Charter Jurisdiction
[274] Whatever its appeal may be, … the practical result of applying such a ‘control of the person’ based test would be problematic in the context of a multinational military effort such as the one in which Canada is currently involved in Afghanistan. Indeed, it would result in a patchwork of different national legal norms applying in relation to detained Afghan citizens in different parts of Afghanistan, on a purely random-chance basis.
[276] This would be a most unsatisfactory result, in the context of a United Nations-sanctioned multinational military effort, further suggesting that the appropriate legal regime to govern the military activities currently underway in Afghanistan is the law governing armed conflict – namely international humanitarian law.
[277] Indeed, international humanitarian law is a highly developed branch of international law comprised of both customary international law and treaties “that regulates the conduct of military operations and operated to protect civilians and other persons not actively participating in hostilities, and to mitigate harm to combatants themselves” …
[278] In particular, international humanitarian law prohibits the mistreatment of captured combatants …
[279] Moreover, international humanitarian law applies not only during times of war, but applies as well, albeit with some modifications, to non-international armed conflicts within the territory of High Contracting Parties …
e) Conclusion with Respect to the First Question
[301] As a consequence, the answer to the first question is “No”.
V. If the answer to the above question is “No” then would the Charter nonetheless apply if the applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture?
[310] Surely Canadian law, including the Canadian Charter of Rights and Freedoms, either applies in relation to the detention of individuals by the Canadian Forces in Afghanistan, or it does not. It cannot be that the Charter will not apply where the breach of a detainee’s purported Charter rights is of a minor or technical nature, but will apply where the breach puts the detainee’s fundamental human rights at risk.
[328] As a consequence, the Charter would not apply to restrain the conduct of the Canadian Forces in Afghanistan, even if the applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture. The answer to the second question is, therefore, “NO”.
VI. Conclusion
[336] … [A] number of concerns … flow from the Court’s finding that the Charter does not apply in the circumstances of this case.
[337] As was noted by Justice Binnie in Hape, the content of human rights protections provided by international law is weaker, and their scope more debatable than Charter guarantees …
[338] Moreover, the enforcement mechanisms for those standards may not be as robust as those available under the Charter, and have even been described as “rather gentle” …
[340] It is also troubling that while Canada can prosecute members of its military after the fact for mistreating detainees under their control, a constitutional instrument whose primary purpose is, according to the Supreme Court, to limit the exercise of the authority of state actors so that breaches of the Charter are prevented, will not apply to prevent that mistreatment in the first place.
[342] That said, the Supreme Court of Canada has carefully considered the scope of the Charter’s extraterritorial reach in R. v. Hape, and has concluded that its reach is indeed very limited. Applying the Supreme Court’s reasoning in Hape to the facts of this case leads to the conclusion that the Charter does not apply to the actions of the Canadian Forces in Afghanistan in issue here.
[343] Before concluding, it must be noted that the finding that the Charter does not apply does not leave detainees in a legal “no-man’s land”, with no legal rights or protections. The detainees have the rights conferred on them by the Afghan Constitution. In addition, whatever their limitations may be, the detainees also have the rights conferred on them by international law, and, in particular, by international humanitarian law.
[344] It must also be observed that members of the Canadian Forces cannot act with impunity with respect to the detainees in their custody. Not only can Canadian military personnel face disciplinary sanctions and criminal prosecution under Canadian law should their actions in Afghanistan violate international humanitarian law standards, in addition, they could potentially face sanctions or prosecutions under international law.
[345] Indeed, serious violations of the human rights of detainees could ultimately result in proceedings before the International Criminal Court, pursuant to the Rome Statute of the International Criminal Court. 
Canada, Federal Court, Amnesty International Canada case, Judgment, 12 March 2008, §§ 1–5, 7, 13, 16, 44, 47, 59, 64, 66–67, 70, 74–76, 81, 162, 166, 173, 179–181, 274, 276–279, 301, 310, 328, 336–338, 340 and 342–345.
[emphasis in original]
The Federal Court of Appeal subsequently upheld the findings of the Federal Court. It stated:
[36] I conclude that the motions judge made no errors in answering the way she did the two questions that were before her. The Charter has no application to the situations therein described. There is no legal vacuum, considering that the applicable law is international humanitarian law. As found by the motions judge (at para. 64 of her reasons):
64 Before transferring a detainee into Afghan custody, General Laroche must be satisfied that there are no substantial grounds for believing that there exists a real risk that the detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities. 
Canada, Federal Court of Appeal, Amnesty International Canada case, Judgment, 17 December 2008, § 36.
Canada
In 2009, in the Munyaneza case, Canada’s Superior Court of Québec found a Rwandan national who had been residing in Canada guilty of genocide, crimes against humanity and war crimes committed in Rwanda in 1994. The Court held:
3.2 Genocide
(A) Indictment
[68] The first two counts allege that the accused committed an act of genocide in two ways:
- by the intentional killing of;
- by causing serious bodily or mental harm to;
members of an identifiable group of people, the Tutsi.
[71] The Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (the “1948 Convention”) is the foundation of conventional international law as it pertains to genocide. Article 2 of the 1948 Convention defines genocide:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(b) Causing serious bodily or mental harm to members of the group;
[72] This convention was ratified by Canada on September 3, 1952 and by Rwanda on April 26, 1975. It applied to Rwanda in 1994.
[75] Even without that conventional definition, the crime of genocide in 1994 was in contravention of all the peremptory rules of customary international law.
(C) Serious bodily or mental harm
[84] The ICTR and the ICTY agree to include the following acts, in particular, as causing a person serious bodily or mental harm:
- physical or mental torture;
- inhumane or degrading treatment;
- rape;
- sexual violence;
- persecution.
[85] The notion of causing serious bodily or mental harm is found in Article 2(b) of the 1948 Convention, Article 4(2)(b) of the [1993] ICTY Statute, Article 2(2)(b) of the [1994] ICTR Statute and Article 6(b) of the [1998] Rome Statute.
...
[87] It is recognized by the international tribunals that each case is sui generis, but a certain number of principles emerge from the jurisprudence:
(a) the harm may be physical or mental;
(b) the physical harm need not be permanent or irreversible, but must be likely to prevent the victim from living a normal life over a relatively long period;
(c) the mental harm must go beyond slight or temporary deterioration of mental faculties;
(d) the harm must be so serious that it threatens to destroy the targeted group in whole or in part.
[88] Rape, sexual violence, mutilation and interrogation accompanied by blows or threats are recognized as acts causing serious physical harm.
[89] Subjecting a person to intense fear, terror, intimidation or threats is recognized as an act causing serious mental harm.
(D) Inhumane or degrading treatment
[91] The expression “inhumane or degrading treatment” is also found in the Rome Statute, the 1949 Geneva Conventions, the ICTY Statute and the ICTR Statute.
[92] Such treatment is considered cruel and requires proof of the following elements:
(a) an intentional act or omission causing serious mental or physical suffering or constituting outrages on personal dignity;
(b) committed against a protected person or a person who did not take a direct part in the hostilities;
(c) a lesser degree of suffering is required than for torture, but the same degree as for serious bodily or mental harm to the person.
[93] Each case is also sui generis, but the jurisprudence has accepted the following in particular:
(a) piling prisoners into buses and beating them as they pass between two rows of soldiers when they get out of the buses;
(b) beating prisoners held in a shed;
(c) detaining men of a targeted group and beating them in public.
(E) Act of sexual violence
[94] Rape and sexual violence constitute serious bodily or mental harm to a person and, therefore, be acts constituting genocide if they are committed with the intent to destroy the group to which the victim belongs …
3.3 Crime against humanity
(A) Indictment
[108] Counts 3 and 4 allege that the accused committed crimes against humanity:
- by intentional killing;
- by the act of sexual violence.
[110] Subsection 6(3) of [Canada’s 2000 Crimes Against Humanity and War Crimes] Act defines a crime against humanity as follows:
“crime against humanity” means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
[112] The Act confirms a consensus of the League of Nations, prior to 1945, that crimes against humanity were part of customary international law. Killing, sexual violence and the other crimes listed in subsection 6(3) of the Act constituted crimes before 1945 and, therefore, in Rwanda in 1994.
3.4 War crime
(A) Indictment
[129] Counts 5, 6 and 7 allege that the accused committed a war crime by means of:
(a) intentional killing;
(b) an act of sexual violence;
(c) pillage.
(B) War crime
[135] As for customary international law, Article 4 of the ICTR Statute, regarding non-international armed conflicts, provides that it applied on Rwandan territory in 1994 and that the list of war crimes included killing, outrages upon personal dignity, rape and pillage.
(D) Act of sexual violence
[141] It is accepted that an act of sexual violence is part of “inhumane acts”, “outrages upon personal dignity” and “serious bodily or mental harm” as regards the victim.
[142] The elements essential to this offence are the same as those described under genocide and crimes against humanity.
[2087] While an armed national conflict raged in Rwanda between the RAF [Rwandan Armed Forces] and the RPF [Rwandan Patriotic Front], Désiré Munyaneza intentionally killed dozens of people in Butare and the surrounding communes who were not participating directly in the conflict, sexually assaulted dozens of people and looted the homes and businesses of individuals who had nothing to do with the armed conflict.
[2088] In doing so, he committed a war crime according to the Act.
[2089] Désiré Munyaneza is guilty of the seven counts filed against him by the Crown. 
Canada, Superior Court, Criminal Division, Province of Québec, Munyaneza case, Judgment, 22 May 2009, §§ 68, 71–72, 75, 84–85, 87–89, 91–94, 108, 110, 112, 129, 135, 141–142 and 2087–2089.
[footnotes in original omitted]
Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.” 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
Chile
In its judgment in the Benado Medwinsky case in 1980, Chile’s Appeal Court of Santiago denounced the torture inflicted on the plaintiff. It held that the state of emergency could not justify the torture in question, which was an assault on the life and physical integrity of the person. 
Chile, Appeal Court of Santiago, Benado Medwinsky case, Judgment, 29 July 1980.
Chile
In its judgment in the Videla case in 1994 concerning the abduction, torture and murder of Lumi Videla in 1974, Chile’s Appeal Court of Santiago stated that common Article 3 of the 1949 Geneva Conventions obliged parties to non-international armed conflicts “to extend humanitarian treatment to persons taking no active part in the hostilities or who have placed themselves hors de combat for various reasons, and prohibits at any time and in any place … cruel treatment and torture, humiliating and degrading treatment”. The Court found that the acts charged constituted grave breaches under Article 147 of the 1949 Geneva Convention IV and that the prison order issued against the defendant should therefore be upheld. 
Chile, Appeal Court of Santiago (Third Criminal Chamber), Videla case, Judgment, 26 September 1994.
Chile
In its judgment in the Contreras Sepúlveda case in 2004, Chile’s Supreme Court stated that “there is no legal basis whatsoever for detaining persons and taking them to secret detention centres, nor [is it lawful] to torture them”. 
Chile, Supreme Court, Second Chamber, Contreras Sepúlveda case, Case No. 2182-98, 17 November 2004, § 24.
China
In its judgment in the Takashi Sakai case in 1946, the Chinese War Crimes Military Tribunal of the Ministry of National Defence at Nanking found the accused, a military Commander of the Japanese 29th Infantry Brigade, guilty of having incited his subordinates to commit acts of torture against prisoners of war, wounded soldiers, and nurses and doctors of the Red Cross, thereby violating the 1907 Hague Regulations and the 1929 Geneva Conventions. 
China, War Crimes Military Tribunal of the Ministry of National Defence at Nanking, Takashi Sakai case, Judgment, 29 August 1946.
Colombia
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. 
Colombia, Constitutional Court, Constitutional Case No. C-225/95, Judgment, 18 May 1995.
Colombia
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. 
Colombia, Constitutional Court, Constitutional Case No. C-148/05, Judgment of 22 February 2005, § 3.3.2.1.
Colombia
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. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 4.6.2; see also § 4.2.5.
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. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 4.2.5.1.15.
(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 [1949] 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. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 5.4.2.2.
Colombia
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. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 70.
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. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[footnote in original omitted]
Democratic Republic of the Congo
In 2010, in the Barnaba Yonga Tshopena case, the Military Garrison Court of Ituri-Bunia convicted a leader of the Front for Patriotic Resistance in Ituri (FRPI) for several war crimes, including inhuman and cruel treatment. The Court stated:
128 … [T]he constitutive elements of the war crime of inhuman or cruel treatment provided for in article 8(2)(c)(i)-3 of the … [1998 ICC] Statute … require that: the perpetrator inflicted severe physical or mental pain or suffering upon one or more persons; such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no part in the hostilities; [and] the perpetrator was aware of the facts that established this status.
129 … [I]n the night from 25 to 26 December 2007, after raping [a victim] in the village Talolo in reprisal against the arrest of the defendant … by members of the FARDC [Armed Forces of the Democratic Republic of Congo], seven combatants poured hot embers in her sexual organ causing burns until her thighs. In view of the scars of the victim … , there is sufficient evidence to establish substantial grounds to believe that, after the arrest of the defendant, these serious injuries were inflicted upon the above-mentioned victim by FRPI Ngiti combatants. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, §§ 128–129.
Regarding the applicable law, the Court stated:
[T]he constitutional provisions of the Democratic Republic of the Congo, namely articles 153(4) and 215 of 18 February 2006 [Constitution (2006)], authorize both civil and military courts and tribunals to apply duly ratified international agreements and treaties, and give them higher authority than domestic legislation. This constitutional authorization combined with the self-executing nature of the … [1998 ICC] Statute justify the direct application of this treaty by Congolese courts and tribunals. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, § 63.
Germany
In 2003, in the El Motassadeq case, the Third Criminal Law Senate of Germany’s Hanseatic Higher Regional Court Hamburg found the accused guilty of aiding and abetting murder in 3,066 cases, as well as attempted murder and causing bodily harm with dangerous means in five cases, in coincidence with membership in a terrorist organization, for contributions to the attacks of 11 September 2001. He was sentenced to 15 years in prison. The Senate held that the circumstance that the witness Binalshibh could not be examined was no violation of the right to a fair trial under Article 20, paragraph 3 of the Basic Law. 
Germany, Hanseatic Higher Regional Court Hamburg, Third Criminal Law Senate, El Motassadeq case, Judgment, 19 February 2003, pp. 56–61.
In 2004, on the accused’s appeal on points of law (Revision), the Federal Court of Justice overturned the judgment and remanded the case to another Senate of the Hanseatic Higher Regional Court for a new consideration of the evidence. 
Germany, Federal Court of Justice, El Motassadeq case, Judgment, 4 March 2004, pp. 7–21.
In 2005, the Fourth Criminal Law Senate of the Hanseatic Higher Regional Court Hamburg found the accused guilty of membership in a terrorist organization and sentenced him to seven years in prison. The Senate found that it had not been proven that the accused had aided and abetted murder, attempted murder and causing bodily harm with dangerous means. With regard to the consideration of summaries of witness statements received from the United States as evidence, the Senate stated:
m) Consideration of evidence relating to the summaries of statements made by Binalshibh, Khalid Sheikh Mohammed and Ould Slahis after their arrest, transferred from the United States to the Senate
The Senate considers the summaries of statements made by Binalshibh, Khalid Sheikh Mohammed and Ould Slahi, described above, as usable. A prohibition on their use according to Article 15 of the 1984 UN Anti-Torture Convention or Section 136 a of the Criminal Procedure Code, in analogous application, is not given. However, the Senate ultimately has not based any conclusions on the summaries of the statements made by Binalshibh, Khalid Sheikh Mohammed and Slahi, introduced into the main hearing by their being read out …
Article 15 of the Convention, entered into force for the Federal Republic of Germany on 31 October 1990, provides that each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. According to Article 1, paragraph 1 of the Convention, torture within the meaning of that provision means 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, when such pain or suffering is 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
In the view of the Senate, the prohibition on the use of statements under Article 15 of the UN Anti-Torture Convention is domestically directly applicable law and therefore is to be taken into account and applied here …
However, the application of the prohibition on the use of statements requires that it is established that the statements in question were made as a result of torture. Based on the information available to the Senate and introduced by way of informal taking of evidence, it has not been possible to establish this in the criminal proceedings against the accused.
The competent US authorities, also in response to several enquiries by the Senate on this issue, have given no information on the whereabouts of Binalshibh, Khalid Sheikh Mohammed as well as Slahi … In response to the specific enquiry by the Senate regarding the circumstances of the examinations of the persons mentioned, the competent US authorities, by letter of 9 May 2005, gave the concluding notification that no information would be given … The authorities of the Federal Republic of Germany asked by the Senate for information, the Federal Chancellery, the Federal Ministry of the Interior and the Federal Ministry of Justice, issued blocking declarations in response to several enquiries by the Senate for further information inter alia regarding the persons mentioned above, in which they pointed out that they had not been authorized by the competent authorities of the United States to make the information, given to them solely for intelligence service purposes, available in the present criminal proceedings against the accused …
Ultimately, as regards the question of the use of torture measures within the meaning of Article 1 of the UN Anti-Torture Convention in connection with the examinations of Binalshibh, Khalid Sheikh Mohammed and Slahi on which the transferred summaries were based, the Senate analysed the publicly accessible sources therefore solely available to it, and by way of informal taking of evidence introduced numerous publications, those originally in English in translation, into the main hearing …
In the view of the Senate, the analysis of the articles and reports introduced ultimately showed that the Government and Ministry of Defense of the United States, on the one hand, denied the use or tolerance of torture, that however, on the other hand, the Government (the White House) at least acknowledged that Al Qaida detainees were not regarded as subject to the protection of international human rights conventions such as the Geneva Convention relative to the Treatment of Prisoners of War. Apart from that, there were indeed indications in the articles and reports introduced into the main hearing that alleged Al Qaida members were subjected to torture measures within the meaning of Article 1 of the UN Anti-Torture Convention. However, such measures cannot be proven by this, since none of the introduced articles and reports give verifiable sources.
…[I]n conclusion, the Senate does not regard as established within the meaning of Article 15 of the Convention the use of torture measures within the meaning of Article 1 of the UN Anti-Torture Convention in connection with the examinations of Binalshibh, Khalid Sheikh Mohammed and Slahi, on which the summaries transferred from the United States are based.
The Senate is aware that in the present case it is the State organs of the United States, the State accused of torture in the introduced articles and reports, themselves, from which more reliable and verifiable information, compared to the available articles and reports, could be expected. Admittedly, due to the lack of information regarding individual cases to be assessed here, this circumstance suggests that one infers from other cases or a general practice a corresponding handling in the relevant individual cases and regards the use of torture as established. However, in the present case, apart from the weak evidentiary situation caused by the blocking by the US authorities, there is another essential circumstance due to which the Senate in the present case does not infer from the practice in other cases or a general practice a corresponding handling in the cases of interest here and, in conclusion, regards the use of torture measures as not established.
The essential circumstance, further to the bad evidentiary situation, on the basis of which the use of torture is ultimately regarded as not established, is that, according to the summaries made available to the Senate, all three persons examined made both inculpating and exculpating statements with respect to various other persons …
Since the content of the summaries of statements by Binalshibh, Khalid Sheikh Mohammed and Slahi, transferred by the US authorities, could, due to the numerous statements exculpating other persons contained in them, speak against the use of torture, the Senate overall has come to the conclusion not to regard as established a violation of Article 15 UN Anti-Torture Convention which would give rise to a prohibition on the use of evidence.
As regards the summaries of statements by Binalshibh, Khalid Sheikh Mohammed and Slahi made available to the Senate by the USA, a prohibition on the use of evidence also does not follow from an analogous application of Section 136 a of the Criminal Procedure Code in conjunction with Section 69, paragraph 3, Section 163 a, paragraphs 1, 2 and 4 of the Criminal Procedure Code. Section 136 a of the Criminal Procedure Code prohibits the use of such statements which were obtained under the employment of the impermissible measures listed in detail in paragraphs 1 and 2, and, according to paragraph 3, even if the accused consents to their use. According to the correct view, the prohibition, if applicable, applies without distinction for both inculpating and exculpating statements.
However, the provision of Section 136 a of the Criminal Procedure Code primarily is directed to the State organs responsible for criminal prosecution and covers only measures of public prosecution organs of the Federal Republic of Germany. As a principle, the provision of Section 136 a of the Criminal Procedure Code does not have a third-party effect for persons not belonging to this circle. According to the correct predominant view, an analogous application of Section 136 a of the Criminal Procedure Code with regard to third persons not directly covered by the norm only comes into consideration if such persons produced the information whose usability is in question in connection with an especially crass violation of the dignity of the human being. Among such crass violations are in particular also torture measures falling under Article 15 of the UN Anti-Torture Convention …
In the view of the Senate, the principles developed by the courts on the analogous application of Section 136 a Criminal Procedure Code demanded in exceptional cases in view of impermissible examination measures by private persons … also apply if nationals of foreign States use such examination measures. An analogous application of the prohibition on the use of evidence under Section 136 a of the Criminal Procedure Code to the present summaries of the statements by Binalshibh, Khalid Sheikh Mohammed and Slahi therefore would come into consideration, provided that the further requirements on the application of Section 136 a of the Criminal Procedure Code are fulfilled. Ultimately, however, this is not the case.
Section 136 a of the Criminal Procedure Code does not expressly regulate the evidentiary principles and standards to be applied in the establishment of a violation of the prohibition [contained in Section 136 a of the Criminal Procedure Code]. These principles and standards, however, follow from the position of the norm within the system of norms applicable to domestic criminal proceedings and from the object and purpose of Section 136 a of the Criminal Procedure Code. Essential in this context is the understanding of the transgressions regulated in Section 136 a of the Criminal Procedure Code as procedural violations, which, like generally all procedural requirements and violations, must be proven in order to be taken into account. If a violation of the prohibition on the use of evidence is not proven, the statement in question therefore can be used … The reason for this correct view is in particular that on the basis of the judicial obligation to establish the truth the non-usability of given evidence must be the exception and must not be made the rule. Unlike in connection with facts relevant for the guilt of an accused, the principle of in dubio pro reo does not apply to the establishment of the existence of a prohibition on the use of evidence … The facts giving rise to a prohibition on the use of evidence must, after the necessary informal clarification, be established to the conviction of the court. If important doubts remain, a potential violation is not proven and the statement in question can be used. This is the case here with regard to a potential use of torture measures, also falling under Section 136 a of the Criminal Procedure Code, against Binalshibh, Khalid Sheikh Mohammed and Slahi. Admittedly, there are points indicating the use of such measures, but, on the other hand, there are also circumstances speaking against it.
Insofar as with regard to Binalshibh, Khalid Sheikh Mohammed and Slahi, beyond the use of torture measures, a violation of Section 136 a of the Criminal Procedure Code comes into consideration on the basis of the fact of their long-lasting detention without trial and without access to defence counsel or other external persons, it admittedly seems more likely to regard these circumstances as proven, in comparison to potential torture measures. Whether, however, this would ultimately have to be assumed, need not be decided. According to the correct view, an analogous application of the prohibition on the use of evidence codified in Section 136 a of the Criminal Procedure Code comes into consideration only in cases of especially grave human rights violations. The denial of an orderly trial as well as the non-granting of liberty and external contacts does not yet fall under that, at least after the time span of three years to be assumed here, in the case of Binalshibh arrested in September 2002 and in the case of Khalid Sheikh Mohammed arrested in March 2003. In this context, it is to be borne in mind that the American legal order apparently permits such a treatment of the Al-Qaida members.
According to the explanations above, the summaries of the statements of Binalshibh, Khalid Sheikh Mohammed and Slahi can be used. They must be subjected to a thorough consideration of evidence. However, no changes of the findings made by the Senate without taking into account these summaries, or of their assessment, result from them. 
Germany, Hanseatic Higher Regional Court Hamburg, Fourth Criminal Law Senate, El Motassadeq case, Judgment, 19 August 2005, pp. 298, 305–309 and 310–314.
In 2006, on the appeal on points of law (Revision) by the Federal Prosecutor General and private accessory prosecutors, the Federal Court of Justice overturned the conviction, finding the accused guilty of aiding and abetting murder in 246 cases (passengers and crews of the hijacked planes), in conjunction with membership in a terrorist organization, and, with regard to sentencing, remanded the case to another Senate of the Hanseatic Higher Regional Court. 
Germany, Federal Court of Justice, El Motassadeq case, Judgment, 16 November 2006, p. 3.
On 8 January 2007, the Seventh Criminal Law Senate of the Hanseatic Higher Regional Court Hamburg sentenced the accused to 15 years in prison. 
Germany, Hanseatic Higher Regional Court Hamburg, Seventh Criminal Law Senate, El Motassadeq case, Judgment, 8 January 2007, p. 2.
By decision of the Federal Constitutional Court of 10 January 2007, the accused’s constitutional complaint against the 2005 judgment of the Hanseatic Higher Regional Court Hamburg and the 2006 judgment of the Federal Court of Justice was not accepted for decision, for being partially inadmissible due to lack of substantiation, and furthermore unfounded. 
Germany, Federal Constitutional Court, El Motassadeq case, 2 BvR 2557/06, Decision, 10 January 2007, paras. 1–14.
By decision of 2 May 2007, the Federal Court of Justice dismissed as unfounded the accused’s appeal on points of law (Revision) against the 2007 judgment of the Hanseatic Higher Regional Court Hamburg, the judgment thereby becoming binding. 
Germany, Federal Court of Justice, El Motassadeq case, Decision, 2 May 2007.
Germany
In 2004, in the Daschner case, Germany’s Regional Court of Frankfurt/Main held:
The accused E. is guilty of coercion according to Section 240, paragraph 1 of the Criminal Code. By threatening G., in the morning of 1 October 2002, with subjecting him to pain, under medical supervision, without injuries, in order to force him to disclose the location of the abducted child, he announced serious harm, making clear that he would not be the person acting but that he was speaking by order and in representation of the leadership of the office and therefore had influence on the realization of the threat.
The accused D. is guilty of inciting a subordinate to this crime, in accordance with section 357, paragraph 1 of the Criminal Code in conjunction with Section 240, paragraph 1 of the Criminal Code. As deputy-chief [of the Frankfurt police], D. was E.’s superior and bindingly directed him to commit this act, which E. also did.
… The threat led to the desired result. It was causal for G. giving up his resistance and disclosing the location of the child. …
Both the accused knew what they were doing and wanted the result. There are no legal grounds justifying their acts, and the threat of harm was to be deemed inappropriate for the purpose of achieving the desired outcome (Section 240, paragraph 2 of the Criminal Code).
There are no legal bases authorizing their acts. The police law provisions of the Security and Order Law of the State of Hesse [Hessisches Gesetz für Sicherheit und Ordnung] do not offer a legal basis authorizing the coercive attainment of a statement, but prohibit it. The general protection obligation of the State and its institutions, e.g. the police, does not grant such an authorization either. The protection obligation of the State to rescue human life only ever exists within the limits that are set for the actions of the State. Disrespect of legal norms by the executive is, due to Article 20, paragraph 3 of the Basic Law, not only a violation of the law, but also a violation of the Constitution. …
Even if one follows the legal view which applies the criminal law justification grounds excluding unlawfulness that are applicable to private persons also to actions of the State, the action of the two accused is neither justified as self-defence in the form of defence of a third person (Section 32 of the Criminal Code), nor as necessity (Section 34 of the Criminal Code).
[…T]he action was neither demanded within the meaning of Section 32 of the Criminal Code nor was it an adequate means within the meaning of Section 34 of the Criminal Code, since it violated Article 1, paragraph 1, sentence 1 of the Basic Law.
This fundamental constitutional provision is also reflected in Article 104, paragraph 1, sentence 2 of the Basic Law, according to which persons in custody may not be subjected to mental or physical mistreatment. According to Article 1, paragraph 1, sentence 1 of the Basic Law, human dignity shall be inviolable. No person must be made into an object by State authority, into an embodiment of fear of pain.
This legal concept has also found expression in international treaties and conventions with legal force in Germany, such as for example in Article 3 of the European Convention on Human Rights.
Respect of human dignity is the basis of this State which is based on the rule of law. …
The accused E. also cannot invoke his duty to obey superior instructions under Section 56, paragraph 1, sentence 1 of the Security and Order Law of the State of Hesse, because according to Section 56, paragraph 1, sentence 2 of the Security and Order Law of the State of Hesse this duty precisely does not exist if the instruction violates human dignity.
The same applies to the inappropriateness clause in Section 240, paragraph 2 of the Criminal Code. The threat with pain for the purpose of obtaining information was inappropriate. The internal nexus between the coercive means and the purpose of the coercion (purpose-means-relation) relates to a heightened degree of moral disapproval and anti-social behaviour. This notion of values also contains the imperatives of the Basic Law and therefore also the unalterable value of Article 1, paragraph 1 of the Basic Law. A violation of the imperative of respect for human dignity is therefore also to be considered as inappropriate if it – subjectively – was undertaken with the purpose of saving the life of a child.
An exception to the unambiguous legal situation would mean that the constitutional protection of human dignity in its absoluteness would be broken up and made accessible to a weighting of values; this would be tantamount to the breaking of a taboo.
Such an exception has been discussed in the context of case constellations involving terrorist attacks. There have been descriptions of borderline cases, in which the protection of the perpetrator’s human dignity was contrasted with the protection of the lives of thousands of human beings (“ticking-bomb-cases”). In the context of that discussion it has been contended that the victims’ human dignity demands that the State do everything, if necessary also apply mental or physical pressure, to save the lives of the human beings in danger. When weighting the values, the perpetrator’s human dignity being lower-ranking.
In the opinion of this chamber, Hecker (KJ 2003, p. 210) is correct in pointing out that, in view of today’s professional standards of police examination and interrogation techniques, a threat with or the application of pain is a regress to the techniques of the Middle Ages.
There are also no legal grounds excluding guilt.
The two accused cannot invoke an error in the form of a mistake of the law within the meaning of Section 17 of the Criminal Code, because, at the time of the commission of the act, they anticipated the possibility of acting unlawfully and, at the least, willingly accepted this risk. …
Both the accused are experienced officers in superior positions and knew the relevant norms of the police law and Section 136a of the Criminal Procedure Code. They knew that the threat was a prohibited method of interrogation. …
Duress as a legal ground excluding guilt within the sense of Section 35 of the Criminal Code is not given here. …This provision only exculpates relatives and persons close to a victim, due to their personal relation and conflicted situation, not however police officers.
There was no situation of duress excluding guilt not regulated by law. There was no unsolvable collision of duties, excluding guilt. … [I]t must be kept in mind that the application of duress not regulated by law in the context of powers of State organs can lead to a breakup of the existing law of organization and competences (cf. Böckenförde, NJW 1978, p. 1881). When applying it to constitutional law there is the danger that duress not regulated by law “leads to supra-constitutional duress, and that an open, general authorization for dealing with situations of duress and emergency” develops. Any constitutional or statutory limitation of powers would then be only provisional.
No other legal grounds excluding guilt can be seen; criminal responsibility according to Section 240, paragraph 1 of the Criminal Code is established. 
Germany, Regional Court of Frankfurt/Main, Daschner case, Judgment, 20 December 2004.
Israel
In its judgment in the Eichmann case in 1961, Israel’s District Court of Jerusalem held that the following behaviour caused serious bodily or mental harm and, therefore, amounted to a violation of Israel’s Nazis and Nazi Collaborators (Punishment) Law: “detention [of Jews] in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings and to suppress them and cause them inhumane suffering and torture”. 
Israel, District Court of Jerusalem, Eichmann case, Judgment, 12 December 1961.
In its judgment in 1962, the Supreme Court of Israel upheld the District Court’s finding and found the accused guilty of crimes against humanity in the form of torture against the civilian population. 
Israel, Supreme Court, Eichmann case, Judgment, 29 May 1962.
Israel
In its landmark judgment in the General Security Service case in 1999 dealing with the interrogation methods of the General Security Service, Israel’s High Court held:
A reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever … There is a prohibition on the use of “brutal or inhuman means” in the course of an investigation … This conclusion is in perfect accord with (various) International Law treaties – to which Israel is a signatory – which prohibit the use of torture, “cruel, inhuman treatment” and “degrading treatment” … These prohibitions are “absolute”. There are no exceptions to them and there is no room for balancing. 
Israel, High Court, General Security Service case, Joint Judgment, 6 September 1999, § 23.
Israel
In its decision in the State of Israel v. Mustafa Dirani case in 2005, Israel’s District Court of Tel Aviv stated:
Article 8 of the Universal Declaration of Human Rights, of 1948 … prohibits, in article 5, torture and cruel, inhuman, and degrading treatment … The Universal Declaration … is recognized in Israel as part of binding customary law (see HCJ 103/67, The American-European Beth-El Mission v. Minister of Welfare, P. D. 21 (2) 325, 333).
The prohibition on torture appears also in article 7 of the International Covenant on Civil and Political rights, of 1966, which was ratified by Israel (31 Treaty Instruments 1040, p. 169), and is also recognized in Israel as part of international customary law (see HCJ 103/67, The American-European Beth-El Mission, supra, 325). 
Israel, District Court of Tel Aviv, State of Israel v. Mustafa Dirani case, Decision, 9 December 2005, § 43.
Malaysia
In its judgment in the Malek case in 2007, Malaysia’s High Court in Kuala Lumpur stated:
In the present case, the behavior of the defendants is inhumane, cruel and despicable, as the plaintiff was not just arrested and detained unlawfully for 57 days but was also subjected to a vile assault, unspeakable humiliation, and prolonged physical and mental ill-treatment. The Special Branch Department of the Police Force must not only be neutral but must also be seen to be neutral and non partisan. It must be above politics. The practice of torture of any kind is to be detested. The despicable conduct of the then Inspector General of Police, Tan Sri Rahim Noor, was shameful and a disgrace. He had shown an extremely bad example to the thousands of men under his charge. … The practice of torturing detainees by the police force can never and should never be condoned by the courts. The court must show its utmost disapproval in no uncertain terms. 
Malaysia, High Court (Kuala Lumpur), Malek case, Judgment, 18 October 2007, § 56.
Nepal
In 2007, in the Bajracharya case, which concerned restrictions of personal liberty imposed by the Nepalese army, Nepal’s Supreme Court held:
[No]body should be … [subjected to] physical and inhuman torture in a civilized country [enjoying the] rule of law. In our context of discarding torture, the act of inflicting torture to anybody by any authority of the State is itself [prohibited] and disgraceful. [Detention and requiring individuals to periodically present themselves at the Army Barrack] … is to be taken as a sort of torture. Such activities eventually … impact on the [enjoyment] of the individual rights guaranteed by the constitution.
As per the principle of rule of law, no agency or authority of the State should cross the demarcation allocated to them by law. … [T]he act of inflicting torture by putting somebody in detention or … [requiring them to periodically present themselves at the Army Barrack] has restricted … the [enjoyment] of rights [by] citizens, [the order of Mandamus] is therefore hereby issued … in the name of [the] defendants not to [undertake] or [order] to [undertake] such acts in the future. 
Nepal, Supreme Court, Division Bench, Bajracharya case, Order, 31 August 2007.
Netherlands
In its judgment in the Motomura case in 1947, 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. 
Netherlands, Temporary Court-Martial at Makassar, Motomura case, Judgment, 18 July 1947
Netherlands
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. 
Netherlands, Temporary Court-Martial at Makassar, Notomi Sueo case, Judgment, 4 January 1947
Netherlands
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. 
Netherlands, Rotterdam District Court, Sebastien case, Judgment, 24 March 2004.
Netherlands
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). 
Netherlands, Hague District Court, Hesammudin case, Judgment, 14 October 2005.
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. 
Netherlands, Hague Court of Appeal, Hesammudin case, Judgment, 29 January 2007, §§ 5.4.3 and 13.
Norway
In its judgment in the Bruns case in 1946, the Court of Appeal found the accused, German police officials, guilty of having tortured civilians during the belligerent occupation of Norway by Germany. The Court found that the accused employed means of interrogation amounting to torture, performing atrocious acts to extort from victims information which could subsequently be used for the purpose of punishing other persons. 
Norway, Court of Appeal, Bruns case, Judgment, 20 March 1946.
Norway
In its judgment in the Repak case in 2008, concerning crimes committed against civilian non-combatant Serbs in an internment camp in Bosnia-Herzegovina in 1992, resulting from which the defendant was convicted on 11 counts of the war crime of unlawfully confining a protected person, the District Court of Oslo held:
199. The Court finds it has been proved that the defendant participated in the arrest of DD and [his] transport to Dretelj [internment camp], and that the defendant interrogated him once. During the interrogation headed by the defendant, DD was tortured by the use of a needle until he wrote down the list of Serbs in Caplinja. The defendant himself did not commit any acts of violence against him, but he did not prevent the multiple needle insertions under DD’s nails in connection with the interrogation that was headed by the defendant. …
245. The Court finds it has been proved that the defendant interrogated her [AA – a female civilian non-combatant] twice; during the first interview that was headed by the defendant she was subjected to various kinds of torture as described above, including blows to her hands and body, and needle-pricks under her nails. The defendant himself hit her once with an open hand in the face. …
253. … [I]in fixing the sentence the Court can as an aggravating circumstance attach importance to the torture as part of the defendant’s complicity in the deprivation of AA’s liberty …
258. The defendant has been found guilty of eleven counts of war crime in the form of deprivation of liberty of civilian non-combatant Serbs with subsequent internment in the Dretelj camp. The internment lasted substantially longer than one month and/or the detainees were subjected to abnormal suffering. As regards violence and/or torture of particular importance for the sentencing, the defendant is linked directly to two instances in connection with interrogations headed by him.
263. A significant aggravating circumstance is the torture to which AA was subjected during the interrogation in Dretelj that the defendant was in charge of. He personally gave her a slap in the face, but the Court finds that he as the one in charge of the interrogation must bear the main responsibility for all violence taking place during the interrogation, which amongst other things included several blows with a baton, scratching with a knife, needle insertions under her nails and undressing. 
Norway, District Court of Oslo, Repak case, Judgment, 2 December 2008, §§ 199, 245, 253, 258 and 263.
Peru
In 2003, in the Marcelino Tineo Silva and Others case, Peru’s Constitutional Court stated:
… in no circumstances can the degrading of a human being be justified because otherwise, the State, far from promoting the re-education, rehabilitation and reincorporation of the convicted person into society (Article 139(22) of the Constitution), would … deny his or her human condition. 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Judgment, 3 January 2003, § 220.
Peru
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether the former Peruvian president was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations. [The accused] was found guilty of various offences under domestic criminal law, including the abduction of Gustavo Andrés Gorriti Ellenbogen and Samuel Dyer Ampudia after [the] coup d’état in 1992. The Court considered whether there were any circumstances aggravating these abductions, such as the cruel treatment of the abducted individuals. The Court held:
The cruel conduct of those who ordered and carried out the abduction and of the authorities who supported the abduction manifested itself in the following ways: (i) in the detention being carried out by State officials … ; (ii) in the way in which the victims were transferred to the SIE [Army Intelligence Service] – firing weapons, hiding the captors’ identity, preventing the detainees’ identification by other military personnel; and (iii) in the circumstances of the detention, namely the initial isolation of the detainees, the threatening of severe consequences which the victims would have to face for conduct they allegedly committed, and in the absence of a definition of their legal situation. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 694(4).
The court concluded that the victims “were subjected to cruel treatment”. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 694(5).
Philippines
In the Manliguez case before the Philippine Supreme Court in 1992, in which the appellant appealed a lower court decision that had found him guilty of kidnapping, the Court reversed and set aside the appealed decision, acquitted the appellant of the crime charged and ordered his immediate release from custody. In its judgment, the Court criticized the use of torture by certain police involved with the case:
The Court sympathizes with the appellant, Julio Manliguez and his co-accused, Shirley Ignacio y Agatia and Lucia Guiral, who suffered horrible torture in the hands of some members of the Talomo Police Force on account of false accusations levelled against them by the child’s mother, Priscilla Ali, and sister, Lori Jean Ali. We cannot conclude this decision without recommending to the Commission on Human Rights and the Philippine National Police that they undertake a thorough and speedy investigation of, and impose proper disciplinary sanctions on, Police Lieutenant Obrero and Patrolmen Plaza and Miranda members of the Police Force of Talomo, Davao City in April 1988, for the alleged torture of the three (3) accused, Julio Manliguez, Shirley Ignacio and Lucia Guiral, to extort confessions from them during the investigation of the alleged kidnapping of the child, Mary Grace Ali. Inhuman physical torture is the easiest means of obtaining “evidence” from helpless civilians when police investigators are neither sufficiently trained for detective work, nor adequately equipped, with the scientific tools of criminal investigation. An end should be put to such police brutality. 
Philippines, Supreme Court, Manliguez case, Judgment, 4 March 1992.
Sri Lanka
In 2010, in its judgment in the Sivalingam case, the Supreme Court of Sri Lanka stated:
The Petitioner alleged that he was brutally assaulted with clubs at the Criminal Investigations Department (hereinafter referred to as the CID) and within the first week he suffered an injury to his right arm. After about two weeks in the custody of the CID he claims that his right arm was badly wounded and dislocated with severe [pain] … and swelling. He also had received back and head injuries. The Petitioner alleges that an officer, whose name was not known to him, assaulted him while the 1st Respondent subjected him to interrogation.
He claimed that he was assaulted as he was being forced by such officers to say that three others persons arrested were suicide cadres of the LTTE [Liberation Tigers of Tamil Eelam].
When considering the allegations made by the Petitioner against officers of the CID it is important to bear in mind that the burden of proving these allegations lies with the Petitioner. This court has held repeatedly that the standard required is not proof beyond reasonable doubt but must be of a higher thresh hold than mere satisfaction. The standard of proof employed is on a balance of probabilities test and as such must have a high degree of probability and where corroborative evidence is not available it would depend on the testimonial creditworthiness of the Petitioner.
… Section 114 of the Evidence Ordinance operates in favour of the police. This presumption is rebutted only by cogent, concise and consistent evidence which creates a strong case in favour of the Petitioner. Additionally there must be Uberrima fides evident in the disclosures made and there must be an overall credibility and creditworthiness attached to the Petitioner’s testimony based on the affidavits and documents submitted before Court.
… [W]here the Petitioner’s allegation of torture is supported by documents and records … maintained by the various officials who came into contact with the Petitioner since his arrest, … then the presence of such documents would militate against the presumption in favour of the validity of official acts and help the court reach a verdict in favour of the Petitioner on the cumulative value, even if his testimony taken independently, may be weak and contain minor inconsistencies.
However, it must be stressed that material inconsistencies in the Petitioner’s testimony before Court, which indicate palpable falsehood and improbable assertions will militate against the Petitioner and may result in his testimony being discarded in its entirety. 
Sri Lanka, Supreme Court, Sivalingam case, Judgment, 10 November 2010, pp. 3–6.
Sweden
In its judgment in the Arklöf case in 2006, Sweden’s Stockholm District Court stated:
[F]rom an international law perspective this is a matter of … cruel treatment, torture as well as humiliating and degrading treatment (articles 3 of Geneva Conventions I–IV, Additional Protocol II article 4). The compulsion that Arklöf exercised when he forced Tabakovic to walk out into a supposed minefield and to walk over a body can primarily be referred to as mental torture.
As previously stated, the international law rules that have been violated have customary status. These are serious transgressions. 
Sweden, Stockholm District Court, Arklöf case, Judgment, 18 December 2006, p. 61.
Uganda
In the Ojera case before the Uganda Human Rights Commission at Gulu in 2004, the complainant sought compensation for being detained and beaten by members of the Uganda People’s Defence Forces (UPDF) in 2001. The Commission stated:
10. Next to be considered is whether Ojera’s freedom from torture was violated. Freedom from torture, cruel, inhuman or degrading treatment or punishment is protected under Article 24 of the Constitution which provides as follows:
24 No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.
In addition to Article 24, Article 44 of the Constitution lists freedom from torture, cruel, inhuman and degrading treatment or punishment among the absolute rights which are non-derogable.
12. On the basis of this general understanding of the meaning of torture, the Tribunal finds that there is ample evidence to support the complainant’s contention that his freedom from torture was violated. Evidence show that he was extensively beaten and he experienced severe pain and suffering. … There is simple evidence to show that the soldiers inflicted pain and suffering on Ojera and that the purpose was to get him [to] admit that he was either a killer or that he possessed an illegal gun. These acts constituted torture and violated the complainant’s right contrary to Article 24 and 44 of the Constitution. 
Uganda, Uganda Human Rights Commission at Gulu, Ojera case, Decision, 12 May 2004, §§ 10 and 12.
United Kingdom of Great Britain and Northern Ireland
In its judgment in the Heering case in 1946, the UK Military Court at Hanover found that acts of “ill-treatment of prisoners of war in violation of the laws and usages of war causing their death, for example by forced marches with insufficient food or medical supplies,” amounted to war crimes. 
United Kingdom, Military Court at Hanover, Heering case, Judgment, 25–26 January 1946.
United Kingdom of Great Britain and Northern Ireland
In 2005, in A and others v. Secretary of State for the Home Department (No 2), the UK House of Lords was called upon to decide whether the UK Special Immigration Appeals Commission (SIAC), when hearing an appeal by a person certified and detained under the 2001 Anti-terrorism, Crime and Security Act, was permitted to receive evidence which was or may have been procured by means of torture by foreign State officials, without the complicity of UK authorities.
In a 2004 judgment (A and others v. Secretary of State for the Home Department, [2004] EWCA Civ 1123, Judgment of 11 August 2004), a majority of the England and Wales Court of Appeal had dismissed appeals against the admission of such evidence by the SIAC.
The House of Lords unanimously reversed the decision of the Court of Appeal, holding that, first, the SIAC was not permitted to admit evidence of the kind described above, and that, second, where there were reasonable grounds for suspecting that material had been obtained in such a way, the onus was upon the SIAC to make further inquiries. Third, with regard to the test to be applied by the SIAC in deciding whether material could be admitted, the majority (Lord Bingham, Lord Nicholls and Lord Hoffmann dissenting) held that only where it was established, on the basis of practicable inquiries, that, on the balance of probabilities, material had indeed been obtained through torture by foreign State officials, it had to be excluded.
With regard to the first issue, the admissibility as evidence, Lord Bingham stated, the other Lords agreeing:
1. May the Special Immigration Appeals Commission (“SIAC”), a superior court of record established by statute, when hearing an appeal under section 25 of the Anti-terrorism, Crime and Security Act 2001 by a person certified and detained under sections 21 and 23 of that Act, receive evidence which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities? That is the central question which the House must answer in these appeals. The appellants, relying on the common law of England, on the European Convention on Human Rights and on principles of public international law, submit that the question must be answered with an emphatic negative. The Secretary of State agrees that this answer would be appropriate in any case where the torture had been inflicted by or with the complicity of the British authorities. He further states that it is not his intention to rely on, or present to SIAC or to the Administrative Court in relation to control orders, evidence which he knows or believes to have been obtained by a third country by torture. This intention is, however, based on policy and not on any acknowledged legal obligation. Like any other policy it may be altered, by a successor in office or if circumstances change. The admission of such evidence by SIAC is not, he submits, precluded by law. Thus he contends for an affirmative answer to the central question stated above …
The Anti-terrorism, Crime and Security Act 2001
3. The 2001 Act was this country’s legislative response to the grave and inexcusable crimes committed in New York, Washington DC and Pennsylvania on 11 September 2001, and manifested the government’s determination to protect the public against the dangers of international terrorism. Part 4 of the Act accordingly established a new regime, applicable to persons who were not British citizens, whose presence in the United Kingdom the Secretary of State reasonably believed to be a risk to national security and whom the Secretary of State reasonably suspected of being terrorists as defined in the legislation. By section 21 of the Act he was authorised to issue a certificate in respect of any such person, and to revoke such a certificate. Any action of the Secretary of State taken wholly or partly in reliance on such a certificate might be questioned in legal proceedings only in a prescribed manner.
4. Sections 22 and 23 of the Act recognised that it might not, for legal or practical reasons, be possible to deport or remove from the United Kingdom a suspected international terrorist certified under section 21, and power was given by section 23 to detain such a person, whether temporarily or indefinitely. This provision was thought to call for derogation from the provisions of article 5(1)(f) of the European Convention, which it was sought to effect by a Derogation Order, the validity of which was one of the issues in the earlier stages of the proceedings.
5. Section 25 of the Act enables a person certified under section 21 to appeal to SIAC against his certification …
SIAC
6. SIAC was established by the Special Immigration Appeals Commission Act 1997, which sought to reconcile the competing demands of procedural fairness and national security in the case of foreign nationals whom it was proposed to deport on the grounds of their danger to the public …
7. The rules applicable to these appeals are the Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034). Part 3 of the Rules governs appeals under section 25 of the 2001 Act … Rule 44(3) provides that SIAC “may receive evidence that would not be admissible in a court of law” …
The Common Law
10. The appellants submit that the common law forbids the admission of evidence obtained by the infliction of torture, and does so whether the product is a confession by a suspect or a defendant and irrespective of where, by whom or on whose authority the torture was inflicted.
11. It is, I think, clear that from its very earliest days the common law of England set its face firmly against the use of torture. Its rejection of this practice was indeed hailed as a distinguishing feature of the common law, the subject of proud claims by English jurists such as Sir John Fortescue …, Sir Thomas Smith …, Sir Edward Coke … Sir William Blackstone …, and Sir James Stephen … That reliance was placed on sources of doubtful validity, such as chapter 39 of Magna Carta 1215 and Feltons Case as reported by Rushworth … did not weaken the strength of received opinion. The English rejection of torture was also the subject of admiring comment by foreign authorities such as Beccaria … and Voltaire … This rejection was contrasted with the practice prevalent in the states of continental Europe who, seeking to discharge the strict standards of proof required by the Roman-canon models they had adopted, came routinely to rely on confessions procured by the infliction of torture … In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the common law was moved by the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice.
12. Despite this common law prohibition, it is clear from the historical record that torture was practised in England in the 16th and early 17th centuries. But this took place pursuant to warrants issued by the Council or the Crown, largely (but not exclusively) in relation to alleged offences against the state, in exercise of the Royal prerogative … Thus the exercise of this royal prerogative power came to be an important issue in the struggle between the Crown and the parliamentary common lawyers which preceded and culminated in the English civil war. By the common lawyers torture was regarded as … “totally repugnant to the fundamental principles of English law” and “repugnant to reason, justice, and humanity.” One of the first acts of the Long Parliament in 1640 was, accordingly, to abolish the Court of Star Chamber, where torture evidence had been received, and in that year the last torture warrant in our history was issued. Half a century later, Scotland followed the English example, and in 1708, in one of the earliest enactments of the Westminster Parliament after the Act of Union in 1707, torture in Scotland was formally prohibited …
As Jardine put in (op. cit., p 13):
“As far as authority goes, therefore, the crimes of murder and robbery are not more distinctly forbidden by our criminal code than the application of the torture to witnesses or accused persons is condemned by the oracles of the Common law.”
This condemnation is more aptly categorised as a constitutional principle than as a rule of evidence.
13. Since there has been no lawfully sanctioned torture in England since 1640, and the rule that unsworn statements made out of court are inadmissible in court was well-established by at latest the beginning of the 19th century …, there is an unsurprising paucity of English judicial authority on this subject. In Pearse v Pearse (1846) …, Knight Bruce V-C observed:
“The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination … Truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much …”
That was not a case involving any allegation of torture. Such an allegation was however made in R (Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134 where the applicant for habeas corpus resisted extradition to India on the ground, among others, that the prosecution relied on a statement obtained by torture and since retracted. The Queen’s Bench Divisional Court (Rose LJ and Newman J) accepted the magistrate’s judgment that fairness did not call for exclusion of the statement, but was clear (para 60 of the judgment) that the common law and domestic statute law (section 78 of the Police and Criminal Evidence Act 1984) gave effect to the intent of article 15 of the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990, Cm 1775), “the Torture Convention”, to which more detailed reference is made below.
Involuntary confessions
14. The appellants relied, by way of partial analogy, on the familiar principle that evidence may not be given by a prosecutor in English criminal proceedings of a confession made by a defendant, if it is challenged, unless the prosecution proves beyond reasonable doubt that the confession had not been obtained by oppression of the person who made it or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof. This rule is now found in section 76 of the Police and Criminal Evidence Act 1984, but enacts a rule established at common law and expressed in such decisions as Ibrahim v The King [1914] AC 599, 609−610, R v Harz and Power [1967] AC 760, 817, and Lam Chi-ming v The Queen [1991] 2 AC 212, 220.
15. Plainly this rule provides an inexact analogy with evidence obtained by torture. It applies only to confessions by defendants, and it provides for exclusion on grounds very much wider than torture, or even inhuman or degrading treatment. But it is in my opinion of significance that the common law … has refused to accept that oppression or inducement should go to the weight rather than the admissibility of the confession. The common law has insisted on an exclusionary rule. See, for a clear affirmation of the rule, Wong Kam-ming v The Queen [1980] AC 247.
16. In R v Warickshall (1783) 1 Leach 263, 168 ER 234, this rule was justified on the ground that involuntary statements are inherently unreliable. That justification is, however, inconsistent with the principle which the case established, that while an involuntary statement is inadmissible real evidence which comes to light as a result of such a statement is not. Two points are noteworthy. First, there can ordinarily be no surer proof of the reliability of an involuntary statement than the finding of real evidence as a direct result of it, as was so in Warickshalls case itself, but that has never been treated as undermining the rule. Secondly, there is an obvious anomaly in treating an involuntary statement as inadmissible while treating as admissible evidence which would never have come to light but for the involuntary statement. But this is an anomaly which the English common law has accepted, no doubt regarding it as a pragmatic compromise between the rejection of the involuntary statement and the practical desirability of relying on probative evidence which can be adduced without the need to rely on the involuntary statement.
17. Later decisions make clear that while the inherent unreliability of involuntary statements is one of the reasons for holding them to be inadmissible there are other compelling reasons also. In Lam Chi-ming v The Queen [1991] 2 AC 212, 220, in a judgment delivered by Lord Griffiths, the Privy Council summarised the rationale of the exclusionary rule:
“Their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody.”
Lord Griffiths described the inadmissibility of a confession not proved to be voluntary as perhaps the most fundamental rule of the English criminal law. The rationale explained by Lord Griffiths was recently endorsed by the House in R v Mushtaq … It is of course true, as counsel for the Secretary of State points out, that in cases such as these the attention of the court was directed to the behaviour of the police in the jurisdiction where the defendant was questioned and the trial was held. This was almost inevitably so. But it is noteworthy that in jurisdictions where the law is in general harmony with the English common law reliability has not been treated as the sole test of admissibility in this context. In Rochin v California 342 US 165 (1952) Frankfurter J, giving the opinion of the United States Supreme Court, held that a conviction had been obtained by “conduct that shocks the conscience” (p 172) and referred to a “general principle” that “States in their prosecutions respect certain decencies of civilized conduct” (p 173). He had earlier (p 169) referred to authority on the due process clause of the United States constitution which called for judgment whether proceedings “offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.” In The People (Attorney General) v OBrien [1965] IR 142, 150, the Supreme Court of Ireland held, per Kingsmill Moore J, that “to countenance the use of evidence extracted or discovered by gross personal violence would, in my opinion, involve the State in moral defilement.” The High Court of Australia, speaking of a discretion to exclude evidence, observed (per Barwick CJ in R v Ireland (1970) 126 CLR 321, 335), that “Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.” In R v Oickle [2000] 2 SCR 3, a large majority of the Supreme Court of Canada cited with approval (para 66) an observation of Lamer J that “What should be repressed vigorously is conduct on [the authorities’] part that shocks the community” and considered (para 69) that while the doctrines of oppression and inducements were primarily concerned with reliability, the confessions rule also extended to protect a broader concept of voluntariness that focused on the protection of the accused’s rights and fairness in the criminal process.
Abuse of process
18. The appellants submit, in reliance on common law principles, that the obtaining of evidence by the infliction of torture is so grave a breach of international law, human rights and the rule of law that any court degrades itself and the administration of justice by admitting it. If, therefore, it appears that a confession or evidence may have been procured by torture, the court must exercise its discretion to reject such evidence as an abuse of its process.
19. In support of this contention the appellants rely on four recent English authorities. The first of these is R v Horseferry Road Magistrates Court, Ex p Bennett [1994] 1 AC 42. This case was decided on the factual premise that the applicant had been abducted from South Africa and brought to this country in gross breach of his rights and the law of South Africa, at the behest of the British authorities, to stand trial here, and on the legal premise that a fair trial could be held. The issue, accordingly, was whether the unlawful abduction of the applicant was an abuse of the court’s process to which it should respond by staying the prosecution. The House held, by a majority, that it was. The principle laid down most clearly appears in the opinion of Lord Griffiths at pp 61−62:
“… In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. …”
Counsel for the Secretary of State points out that the members of the majority attached particular significance to the involvement of the British authorities in the unlawful conduct complained of, and this is certainly so … But the appellants point to the germ of a wider principle. Thus Lord Lowry (p 74G) understood the court’s discretion to stay proceedings as an abuse of process to be exercisable where either a fair trial is impossible or “it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case.” He opined (p 76C):
“that the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court’s process has been abused.”
Lord Lowry’s opinion did not earn the concurrence of any other member of the House, but the appellants contend that this wider principle is applicable in the extreme case of evidence procured by torture. In United States v Toscanino 500 F 2d 267 (1974) the US Court of Appeals reached a decision very similar to Bennett.
20. In R v Latif [1996] 1 WLR 104 the executive misconduct complained of was much less gross than in Bennett, and the outcome was different. Speaking for the House, Lord Steyn (at pp 112−113) acknowledged a judicial discretion to stay proceedings as an abuse if they would “amount to an affront to the public conscience” and where “it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place.” In that case the conduct complained of was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed.
21. The premises of the Court of Appeal’s decision in R v Mullen [2000] QB 520 were similar to those in Bennett, save that a fair trial had already taken place and Mullen had already been convicted of very serious terrorist offences, and sentenced to 30 years’ imprisonment, before he was alerted to the misconduct surrounding his abduction from Zimbabwe. Despite the fairness of the trial, his conviction was quashed. Giving the reserved judgment of the court, Rose LJ said (at pp 535–536):
“This court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the I.R.A. and other terrorist organisations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the defendant in the manner which has been described represents, in the view of this court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy to which, as appears from R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR 104, very considerable weight must be attached.”
22. The fourth authority relied on for its statements of principle was R v Looseley, Attorney General’s Reference (No 3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060, which concerned cases of alleged entrapment. At the outset of his opinion (para 1) my noble and learned friend Lord Nicholls of Birkenhead declared that:
“every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state.”
A stay is granted in a case of entrapment not to discipline the police (para 17) but because it is improper for there to be a prosecution at all for the relevant offence, having regard to the state’s involvement in the circumstances in which it was committed. To prosecute in a case where the state has procured the commission of the crime is (para 19) “unacceptable and improper” and “an affront to the public conscience.” Such a prosecution would not be fair in the broad sense of the word. My noble and learned friend Lord Hoffmann, having referred to Canadian authority and to Bennett, accepted Lord Griffiths’ description of the power to stay in the case of behaviour which threatened basic human rights or the rule of law as (para 40) “a jurisdiction to prevent abuse of executive power”.
The European Convention on Human Rights
23. If, contrary to their submission (and to the opinion of the Divisional Court in R (Saifi) v Governor of Brixton Prison: see para 13 above) the common law and section 78 of the 1984 Act are not, without more, enough to require rejection of evidence which has or may have been procured by torture, whether or not with the complicity of the British authorities, the appellants submit that the European Convention compels that conclusion.
24. It is plain that SIAC (and, for that matter, the Secretary of State) is a public authority within the meaning of section 6 of the Human Rights Act 1998 and so forbidden to act incompatibly with a Convention right. One such right, guaranteed by article 3, is not to be subjected to torture or to inhuman or degrading treatment. This absolute, non-derogable prohibition has been said (Soering v United Kingdom (1989) 11 EHRR 439, para 88) to enshrine “one of the fundamental values of the democratic societies making up the Council of Europe”. The European Court has used such language on many occasions (Aydin v Turkey (1997) 25 EHRR 251, para 81).
25. Article 6 of the Convention guarantees the right to a fair trial. Different views have in the past been expressed on whether, for purposes of article 6, the proceedings before SIAC are to be regarded as civil or criminal. Rather than pursue this debate the parties are agreed that the appellants’ challenge to their detention pursuant to the Secretary of State’s certification in any event falls within article 5(4). That provision entitles anyone deprived of his liberty by arrest or detention to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. It is well-established that such proceedings must satisfy the basic requirements of a fair trial: Garcia Alva v Germany (2001) 37 EHRR 335; R (West) v Parole Board, R (Smith) v Parole Board (No 2) [2005] UKHL 1, [2005] 1 WLR 350. Sensibly, therefore, the parties are agreed that the applicability of article 6 should be left open and the issue resolved on the premise that article 5(4) applies.
26. The Secretary of State submits that under the Convention the admissibility of evidence is a matter left to be decided under national law; that under the relevant national law, namely, the 2001 Act and the Rules, the evidence which the Secretary of State seeks to adduce is admissible before SIAC; and that accordingly the admission of this evidence cannot be said to undermine the fairness of the proceedings. I shall consider the effect of the statutory scheme in more detail below. The first of these propositions is, however, only half true. It is correct that the European Court of Human Rights has consistently declined to articulate evidential rules to be applied in all member states and has preferred to leave such rules to be governed by national law: see, for example, Schenk v Switzerland (1988) 13 EHRR 242, para 46; Ferrantelli and Santangelo v Italy (1996) 23 EHRR 288, para 48; Khan v United Kingdom (2000) 31 EHRR 1016, para 34. It has done so even where, as in Khan, evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. But in these cases and others the court has also insisted on its responsibility to ensure that the proceedings, viewed overall on the particular facts, have been fair, and it has recognised that the way in which evidence has been obtained or used may be such as to render the proceedings unfair. Such was its conclusion in Saunders v United Kingdom (1996) 23 EHRR 313, a case of compulsory questioning, and in Teixeira de Castro v Portugal (1998) 28 EHRR 101, para 39, a case of entrapment. A similar view would have been taken by the Commission in the much earlier case of Austria v Italy (1963) 6 YB 740, 784, had it concluded that the victims whom Austria represented had been subjected to maltreatment with the aim of extracting confessions. But the Commission observed that article 6(2) could only be regarded as being violated if the court subsequently accepted as evidence any admissions extorted in this manner. This was a point made by my noble and learned friend Lord Hoffmann in the much more recent devolution case of Montgomery v H M Advocate, Coulter v H M Advocate [2003] 1 AC 641, 649, when he observed:
“Of course events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6(1) lies not in the use of torture (which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge. If the evidence had been rejected, there would still have been a breach of article 3 but no breach of article 6(1).”
Lord Hoffmann, in R v Governor of Brixton Prison, Ex p Levin [1997] AC 741, 748, did not exclude the possibility (he did not have to decide) that evidence might be rejected in extradition proceedings if, though technically admissible, it had been obtained in a way which outraged civilised values. Such was said to be the case in R (Ramda) v Secretary of State for the Home Department [2002] EWHC 1278 (Admin), unreported, 27 June 2002, where the applicant resisted extradition to France on the ground that the evidence which would be relied on against him at trial had been obtained by torture and that he would be unable to resist its admission. The Queen’s Bench Divisional Court concluded (para 22) that if these points were made out, his trial would not be fair and the Secretary of State would be effectively bound to refuse to extradite him. In the very recent case of Mamatkulov and Askarov v Turkey (App Nos 46827/99 and 46951/99, unreported, 4 February 2005) Judges Bratza, Bonello and Hedigan delivered a joint partly dissenting opinion, in the course of which they held in paras 15−17:
“15. As in the case of the risk of treatment proscribed by Article 3 of the Convention, the risk of a flagrant denial of justice in the receiving State for the purposes of Article 6 must be assessed primarily by reference to the facts which were known or should have been known by the respondent State at the time of the extradition.
16. The majority of the Court acknowledge that, in the light of the information available, there ‘may have been reasons for doubting at the time’ that the applicants would receive a fair trial in Uzbekistan (judgment, § 91). However, they conclude that there is insufficient evidence to show that any possible irregularities in the trial were liable to constitute a flagrant denial of justice within the meaning of the Court’s Soering judgment.
17. We consider, on the contrary, that on the material available at the relevant time there were substantial grounds not only for doubting that the applicants would receive a fair trial but for concluding that they ran a real risk of suffering a flagrant denial of justice. The Amnesty International briefing document afforded, in our view, credible grounds for believing that self-incriminating evidence extracted by torture was routinely used to secure guilty verdicts and that suspects were very frequently denied access to a lawyer of their choice, lawyers often being given access to their client by law enforcement officials after the suspect had been held in custody for several days, when the risk of torture was at its greatest. In addition, it was found that in many cases law enforcement officials would only grant access to a lawyer after the suspect had signed a confession and that meetings between lawyers and clients, once granted, were generally infrequent, defence lawyers rarely being allowed to be present at all stages of the investigation.”
The approach of these judges is consistent with the even more recent decision of the Court in Harutyunyan v Armenia (App No 36549/03, unreported, 5 July 2005) where in paras 2(b) and (f) the Court ruled:
“(b) As to the complaint about the coercion and the subsequent use in court of the applicant’s confession statement, the Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.
(f) As to the complaint about the use in court of witness statements obtained under torture, the Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.”
Had the Court found that the complaints of coercion and torture appeared to be substantiated, a finding that article 6(1) had been violated would, in my opinion, have been inevitable. As it was, the Court did not rule that these complaints were inadmissible. Nor did it dismiss them. It adjourned examination of the applicant’s complaints concerning the alleged violation of his right to silence and the admission in court of evidence obtained under torture.
Public international law
27. The appellants’ submission has a further, more international, dimension. They accept, as they must, that a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of customary international law … But they rely on the well-established principle that the words of a United Kingdom statute, passed after the date of a treaty and dealing with the same subject matter, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the treaty obligation and not to be inconsistent with it … The courts are obliged under section 2 of the 1998 Act to take Strasbourg jurisprudence into account in connection with a Convention right, their obligation under section 3 is to interpret and give effect to primary and subordinate legislation in a way which is compatible with Convention rights so far as possible to do so and it is their duty under section 6 not to act incompatibly with a Convention right. If, and to the extent that, development of the common law is called for, such development should ordinarily be in harmony with the United Kingdom’s international obligations and not antithetical to them. I do not understand these principles to be contentious.
28. The appellants’ argument may, I think, be fairly summarised as involving the following steps:
(1) The European Convention is not to be interpreted in a vacuum, but taking account of other international obligations to which member states are subject, as the European Court has in practice done.
(2) The prohibition of torture enjoys the highest normative force recognised by international law.
(3) The international prohibition of torture requires states not merely to refrain from authorising or conniving at torture but also to suppress and discourage the practice of torture and not to condone it.
(4) Article 15 of the Torture Convention requires the exclusion of statements made as a result of torture as evidence in any proceedings.
(5) Court decisions in many countries have given effect directly or indirectly to article 15 of the Torture Convention.
(6) The rationale of the exclusionary rule in article 15 is found not only in the general unreliability of evidence procured by torture but also in its offensiveness to civilised values and its degrading effect on the administration of justice.
(7) Measures directed to counter the grave dangers of international terrorism may not be permitted to undermine the international prohibition of torture.
It is necessary to examine these propositions in a little detail.
(1) Interpretation of the Convention in a wider international context.
29. Article 31 of the Vienna Convention on the Law of Treaties, reflecting principles of customary international law, provides in article 31(3)(c) that in interpreting a treaty there shall be taken into account, together with the context, any relevant rules of international law applicable in the relations between the parties. The European Court has recognised this principle … and in Al-Adsani v United Kingdom (2001) 34 EHRR 273, para 55, it said (footnotes omitted):
“55. The Court must next assess whether the restriction was proportionate to the aim pursued. It recalls that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, and that Article 31(3)(c) of that treaty indicates that account is to be taken of ‘any relevant rules of international law applicable in the relations between the parties’. The Convention, in including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity.”
The Court has in its decisions invoked a wide range of international instruments, including the United Nations Convention on the Rights of the Child 1989 and the Beijing Rules …, the Council of Europe Standard Minimum Rules for the Treatment of Prisoners … and the 1975 Declaration referred to in para 31 below … More pertinently to these appeals, the Court has repeatedly invoked the provisions of the Torture Convention … In Soering v United Kingdom (1989) 11 EHRR 439, para 88, the Court said (footnotes omitted):
“Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. This absolute prohibition on torture and on inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard. The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3. That the abhorrence of torture has such implications is recognised in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that ‘no State Party shall … extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention. It would hardly be compatible with the underlying values of the Convention, that ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article.”
(2) The international prohibition of torture.
30. The preamble to the United Nations Charter (1945) recorded the determination of member states to reaffirm their faith in fundamental human rights and the dignity and worth of the human person and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. The Charter was succeeded by the Universal Declaration of Human Rights 1948, the European Convention 1950 and the International Covenant on Civil and Political Rights 1966, all of which (in articles 5, 3 and 7 respectively, in very similar language) provided that no one should be subjected to torture or inhuman or degrading treatment.
31. On 9 December 1975 the General Assembly of the United Nations, without a vote, adopted Resolution 3452 (XXX), a Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This included (in article 1) a definition of torture as follows: …
Action was then taken to prepare a convention. This action culminated in the Torture Convention, which came into force on 26 June 1987. All member states of the Council of Europe are members with the exception of Moldova, Andorra and San Marino, the last two of which have been signed but not yet ratified.
32. The Torture Convention contained, in article 1, a definition of torture: …
It is noteworthy that the torture must be inflicted by or with the complicity of an official, must be intentional, and covers treatment inflicted for the purpose of obtaining information or a confession.
33. It is common ground in these proceedings that the international prohibition of the use of torture enjoys the enhanced status of a jus cogens or peremptory norm of general international law. For purposes of the Vienna Convention, a peremptory norm of general international law is defined in article 53 to mean “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. In R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, 197−199, the jus cogens nature of the international crime of torture, the subject of universal jurisdiction, was recognised. The implications of this finding were fully and authoritatively explained by the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Furundzija [1998] ICTY 3, 10 December 1998 …:
There can be few issues on which international legal opinion is more clear than on the condemnation of torture. Offenders have been recognised as the “common enemies of mankind” (Demjanjuk v Petrovsky 612 F Supp 544 (1985), 566, Lord Cooke of Thorndon has described the right not to be subjected to inhuman treatment as a “right inherent in the concept of civilisation” (Higgs v Minister of National Security [2000] 2 AC 228, 260), the Ninth Circuit Court of Appeals has described the right to be free from torture as “fundamental and universal” (Siderman de Blake v Argentina 965 F 2d 699 (1992), 717) and the UN Special Rapporteur on Torture (Mr Peter Koojimans) has said that “If ever a phenomenon was outlawed unreservedly and unequivocally it is torture” (Report of the Special Rapporteur on Torture, E/CN.4/1986/15, para 3).
(3) The duty of states in relation to torture.
34. As appears from the passage just cited, the jus cogens erga omnes nature of the prohibition of torture requires member states to do more than eschew the practice of torture. In Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19, [2002] 2 AC 883, paras 29, 117, the House refused recognition to conduct which represented a serious breach of international law. This was, as I respectfully think, a proper response to the requirements of international law. In General Comment 20 (1992) on article 7 of the ICCPR [International Covenant on Civil and Political Rights], the UN Human Rights Committee said, in para 8:
“The Committee notes that it is not sufficient for the implementation of article 7 to prohibit such treatment or punishment or to make it a crime. States parties should inform the Committee of the legislative, administrative, judicial and other measures they take to prevent and punish acts of torture and cruel, inhuman and degrading treatment in any territory under their jurisdiction.”
Article 41 of the International Law Commission’s draft articles on Responsibility of States for internationally wrongful acts (November 2001) requires states to cooperate to bring to an end through lawful means any serious breach of an obligation under a peremptory norm of general international law. An advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004, General List No 131), para 159 explained the consequences of the breach found in that case: …
There is reason to regard it as a duty of states, save perhaps in limited and exceptional circumstances, as where immediately necessary to protect a person from unlawful violence or property from destruction, to reject the fruits of torture inflicted in breach of international law. As McNally JA put it in S v Nkomo 1989 (3) ZLR 117, 131: “It does not seem to me that one can condemn torture while making use of the mute confession resulting from torture, because the effect is to encourage torture.”
(4) Article 15 of the Torture Convention.
35. Article 12 of the 1975 Declaration provided:
“Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceedings.”
Article 15 of the Torture Convention repeats the substance of this provision, subject to a qualification:
“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
The additional qualification makes plain the blanket nature of this exclusionary rule. It cannot possibly be read, as counsel for the Secretary of State submits, as intended to apply only in criminal proceedings. Nor can it be understood to differentiate between confessions and accusatory statements, or to apply only where the state in whose jurisdiction the proceedings are held has inflicted or been complicit in the torture. It would indeed be remarkable if national courts, exercising universal jurisdiction, could try a foreign torturer for acts of torture committed abroad, but could nonetheless receive evidence obtained by such torture. The matter was succinctly put in the Report by Mr Alvaro Gil-Robles, the Council of Europe Commissioner for Human Rights, in his Report on his visit to the United Kingdom in November 2004 (8 June 2005, Comm DH (2005)6):
“torture is torture whoever does it, judicial proceedings are judicial proceedings, whatever their purpose the former can never be admissible in the latter.”
(5) State practice.
36. A Committee against Torture was established under article 17 of the Torture Convention to monitor compliance by member states. The Committee has recognised a duty of states, if allegations of torture are made, to investigate them … The clear implication is that the evidence should have been excluded had the complaint been verified.
37. In Canada, article 15 of the Torture Convention has been embodied in the criminal code: see India v Singh 108 CCC (3d) 274 (1996), para 20. In France, article 15 has legal effect (French Republic v Haramboure, Cour de Cassation, Chambre Criminelle, 24 January 1995, No. de pourvoi 94−81254), and extradition to Spain was refused where allegations that a witness statement had been procured by torture in Spain was judged not to have been adequately answered (Le Ministère Public v Irastorza Dorronsoro, Cour d’Appel de Pau, No 238/2003, 16 May 2003). In the Netherlands, it was held by the Supreme Court to follow from article 3 of the European Convention and article 7 of the ICCPR that if witness statements had been obtained by torture they could not be used as evidence: Pereira, 1 October 1996, nr 103.094, para 6.2. In Germany, as in France, article 15 has legal effect: El Motassadeq, decision of the Higher Regional Court of Hamburg, 14 June 2005, para 2.
38. In the United States, torture was recognised to be prohibited by the law of nations even before the Torture Convention was made: Filartiga v Peña-Irala 630 F 2d 876 (1980). Earlier still, it had been said to be “unthinkable that a statement obtained by torture or by other conduct belonging only in a police state should be admitted at the government’s behest in order to bolster its case”: LaFrance v Bohlinger 499 F 2d 29 (1974), para 6.
(6) The rationale of the exclusionary rule.
39. In their work on The United Nations Convention against Torture (1988), p 148, Burgers and Danelius suggest that article 15 of the Torture Convention is based on two principles:
“The rule laid down in article 15 would seem to be based on two different considerations. First of all, it is clear that a statement made under torture is often an unreliable statement, and it could therefore be contrary to the principle of ‘fair trial’ to invoke such a statement as evidence before a court. Even in countries whose court procedures are based on a free evaluation of all evidence, it is hardly acceptable that a statement made under torture should be allowed to play any part in court proceedings.
In the second place, it should be recalled that torture is often aimed at ensuring evidence in judicial proceedings. Consequently, if a statement made under torture cannot be invoked as evidence, an important reason for using torture is removed, and the prohibition against the use of such statements as evidence before a court can therefore have the indirect effect of preventing torture.”
It seems indeed very likely that the unreliability of a statement or confession procured by torture and a desire to discourage torture by devaluing its product are two strong reasons why the rule was adopted. But it also seems likely that the article reflects the wider principle expressed in article 69(7) of the Rome Statute of the International Criminal Court, which has its counterpart in the Rules of Procedure and Evidence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda:
“Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if:
(a) the violation casts substantial doubt on the reliability of the evidence; or
(b) the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.”
The appellants contend that admission as evidence against a party to legal proceedings of a confession or an accusatory statement obtained by inflicting treatment of the severity necessary to fall within article 1 of the Torture Convention will “shock the community”, infringe that party’s rights and the fairness of the proceedings (R v Oickle: see para 17 above), shock the judicial conscience (United States v Hensel 509 F Supp 1364 (1981), p 1372), abuse or degrade the proceedings (United States v Toscanino 500 F 2d 267 (1974), p 276), and involve the state in moral defilement (The People (Attorney General) v OBrien: see para 17 above).
(7) The impact of terrorism
40. The European Court has emphasised that article 3 of the European Convention is an absolute prohibition, not derogable in any circumstances. In Chahal v United Kingdom (1996) 23 EHRR 413, para 79, it ruled:
“79. Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.”
That the Torture Convention, including article 15, enjoys the same absolute quality is plain from the text of article 2, quoted in para 32 above.
41. It is true, as the Secretary of State submits, that States Members of the United Nations and the Council of Europe have been strongly urged since 11 September 2001 to cooperate and share information in order to counter the cruel and destructive evil of terrorism. But these calls have been coupled with reminders that human rights, and international and humanitarian law, must not be infringed or compromised. Thus, while the Council of Europe’s Parliamentary Assembly recommendation 1534 of 26 September 2001 refers to co-operation “on the basis of the Council of Europe’s values and legal instruments”, it also refers to Parliamentary Assembly Resolution 1258, para 7 of which states:
“These attacks have shown clearly the real face of terrorism and the need for a new kind of response. This terrorism does not recognise borders. It is an international problem to which international solutions must be found based on a global political approach. The world community must show that it will not capitulate to terrorism, but that it will stand more strongly than before for democratic values, the rule of law and the defence of human rights and fundamental freedoms.”
The Council of Europe Convention on the Prevention of Terrorism of 16 May 2005, recalling in its preamble
“the need to strengthen the fight against terrorism and reaffirming that all measures taken to prevent or suppress terrorist offences have to respect the rule of law and democratic values, human rights and fundamental freedoms as well as other provisions of international law, including, where applicable, international humanitarian law”,
went on to provide:
“Article 3 − National prevention policies
1 Each Party shall take appropriate measures, particularly in the field of training of law enforcement authorities and other bodies, and in the fields of education, culture, information, media and public awareness raising, with a view to preventing terrorist offences and their negative effects while respecting human rights obligations as set forth in, where applicable to that Party, the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other obligations under international law.”
Other similar examples could be given.
42. The United Nations pronouncements are to the same effect. Thus Security Council resolution 1373 of 28 September 2001 called for co-operation and exchange of information to prevent terrorist acts, but also reaffirmed resolution 1269 of 19 October 1999 which called for observance of the principles of the UN Charter and the norms of international law, including international humanitarian law. By Security Council resolution 1566 of 8 October 2004 states were reminded
“that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, and in particular international human rights, refugee and humanitarian law.”
Again, other similar examples could be given. The General Assembly has repeatedly made the same point: see, for example, resolution 49/60 of 9 December 1994; resolution 51/210 of 17 December 1996; and resolution 59/290 of 13 April 2005. The Secretary General of the UN echoed the same theme in statements of 4 October 2002, 6 March 2003 and 10 March 2005.
43. The events of 11 September prompted the Committee against Torture to issue a statement on 22 November 2001 (CAT/C/XXVII/Misc 7) in which it said:
“The Committee against Torture condemns utterly the terrorist attacks of September 11 and expresses its profound condolences to the victims, who were nationals of some 80 countries, including many State parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee is mindful of the terrible threat to international peace and security posed by these acts of international terrorism, as affirmed in Security Council resolution 1368. The Committee also notes that the Security Council in resolution 1373 identified the need to combat by all means, in accordance with the Charter of the United Nations, the threats caused by terrorist acts.
The Committee against Torture reminds State parties to the Convention of the non-derogable nature of most of the obligations undertaken by them in ratifying the Convention.
The obligations contained in Articles 2 (whereby ‘no exceptional circumstances whatsoever may be invoked as a justification of torture’), 15 (prohibiting confessions extorted by torture being admitted in evidence, except against the torturer), and 16 (prohibiting cruel, inhuman or degrading treatment or punishment) are three such provisions and must be observed in all circumstances.
The Committee against Torture is confident that whatever responses to the threat of international terrorism are adopted by State parties, such responses will be in conformity with the obligations undertaken by them in ratifying the Convention against Torture.”
A statement to similar effect was made by the Committee against Torture, the Special Rapporteur on Torture, the Chairperson of the 22nd session of the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture and the Acting United Nations Commissioner for Human Rights on 26 June 2004 (CAT Report to the General Assembly, A/59/44 (2004), para 17). In its Conclusions and Recommendations on the United Kingdom dated 10 December 2004 (CAT/C/CR/33/3), having received the United Kingdom’s fourth periodic report, the Committee welcomed the Secretary of State’s indication that he did not intend to rely upon or present evidence where there is a knowledge or belief that torture has taken place but recommended that this be appropriately reflected in formal fashion, such as legislative incorporation or undertaking to Parliament, and that means be provided whereby an individual could challenge the legality of any evidence plausibly suspected of having been obtained by torture in any proceeding.
44. This recommendation followed the judgment of the Court of Appeal in these appeals. Concern at the effect of that judgment was also expressed by the International Commission of Jurists on 28 August 2004, which declared that “Evidence obtained by torture, or other means which constitute a serious violation of human rights against a defendant or third party, is never admissible and cannot be relied on in any proceedings,” and by the Council of Europe Commissioner for Human Rights, Mr Gil-Robles in his Report cited in para 35 above. In a Report of 9 June 2005 on a visit made to the United Kingdom in March 2004, the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT/Inf (2005) 10), para 31, observed:
“31. During the 2004 visit, several persons whom the delegation met were very concerned that the SIAC could apparently take into consideration evidence that might have been obtained elsewhere by coercion, or even by torture. Such an approach would contravene universal principles governing the protection of human rights and the prohibition of torture and other forms of ill-treatment, to which the United Kingdom has adhered.”
In Resolution 1433, adopted on 26 April 2005, on the Lawfulness of Detentions by the United States in Guantanamo Bay, the Council of Europe Parliamentary Assembly called on the United States to cease the practice of rendition and called on member states to respect their obligation under article 15 of the Torture Convention.
45. The House has not been referred to any decision, resolution, agreement or advisory opinion suggesting that a confession or statement obtained by torture is admissible in legal proceedings if the torture was inflicted without the participation of the state in whose jurisdiction the proceedings are held, or that such evidence is admissible in proceedings related to terrorism.
The Secretary of States Case
46. While counsel for the Secretary of State questions the effect and applicability of some of the material on which the appellants rely, he founds his case above all on the statutory scheme established by Part 4 of the 2001 Act. He builds on the appellants’ acceptance that the Secretary of State may, when forming the reasonable belief and suspicion required for certification under section 21, and when acting on that belief to arrest, search and detain a suspect, act on information which has or may have been obtained by torture inflicted in a foreign country without British complicity. That acceptance, he submits, supports the important and practical need for the security services and the Secretary of State to obtain intelligence and evidence from foreign official sources, some of which (in the less progressive countries) might dry up if their means of obtaining intelligence and evidence were the subject of intrusive enquiry. But it would create a mismatch which Parliament could not have intended if the Secretary of State were able to rely on material at the certification stage which SIAC could not later receive. It would, moreover, emasculate the statutory scheme, which is specifically designed to enable SIAC, constituted as it is, to see all relevant material, even such ordinarily inadmissible material as may be obtained on warranted intercepts. This is reflected in rule 44(3) of the applicable Rules, which dispenses with all rules of evidence, including any that might otherwise preclude admission of evidence obtained by torture in the circumstances postulated. This is not a negligible argument, and a majority of the Court of Appeal broadly accepted it. There are, however, in my opinion, a number of reasons why it must be rejected.
47. I am prepared to accept (although I understand the interveners represented by Mr Starmer QC not to do so) that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6. Yet the Secretary of State accepts that such evidence would be inadmissible before SIAC. This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings.
48. This is not an unusual position. It arises whenever the Secretary of State (or any other public official) relies on information which the rules of public interest immunity prevent him adducing in evidence: Makanjuola v Commissioner of Police of the Metropolis [1992] 3 All ER 617, 623 e to j; R v Chief Constable of West Midlands Police, Ex p Wiley [1995] 1 AC 274, 295F−297C. It is a situation which arises where action is based on a warranted interception and there is no dispensation which permits evidence to be given. This may be seen as an anomaly, but (like the anomaly to which the rule in R v Warickshall gives rise) it springs from the tension between practical common sense and the need to protect the individual against unfair incrimination. The common law is not intolerant of anomaly.
49. There would be a much greater anomaly if the duty of SIAC, hearing an appeal under section 25, were to decide whether the Secretary of State had entertained a reasonable belief and suspicion at the time of certification. But, as noted above in para 5, SIAC’s duty is to cancel the certificate if it considers that there “are” no reasonable grounds for a belief or suspicion of the kind referred to. This plainly refers to the date of the hearing. The material may by then be different from that on which the Secretary of State relied. He may have gathered new and better information; or some of the material on which he had relied may have been discredited; or he may have withdrawn material which he was ordered but was unwilling to disclose. SIAC must act on the information lawfully before it to decide whether there are reasonable grounds at the time of its decision.
50. I am not impressed by the argument based on the practical undesirability of upsetting foreign regimes which may resort to torture. On the approach of the Court of Appeal majority, third party torture evidence, although legally admissible, must be assessed by SIAC in order to decide what, if any, weight should be given to it. This is an exercise which could scarcely be carried out without investigating whether the evidence had been obtained by torture, and, if so, when, by whom, in what circumstances and for what purpose. Such an investigation would almost inevitably call for an approach to the regime which is said to have carried out the torture.
51. The Secretary of State is right to submit that SIAC is a body designed to enable it to receive and assess a wide range of material, including material which would not be disclosed to a body lacking its special characteristics. And it would of course be within the power of a sovereign Parliament (in breach of international law) to confer power on SIAC to receive third party torture evidence. But the English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention. I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all. Counsel for the Secretary of State acknowledges that during the discussions on Part 4 the subject of torture was never the subject of any thought or any allusion. The matter is governed by the principle of legality very clearly explained by my noble and learned friend Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131:
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”
It trivialises the issue before the House to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflicted. To that question I would give a very clear negative answer.
52. I accept the broad thrust of the appellants’ argument on the common law. The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention. The answer to the central question posed at the outset of this opinion is to be found not in a governmental policy, which may change, but in law.
Inhuman or degrading treatment
53. The appellants broaden their argument to contend that all the principles on which they rely apply to inhuman and degrading treatment, if inflicted by an official with the requisite intention and effect, as to torture within the Torture Convention definition. It is, of course, true that article 3 of the European Convention (and the comparable articles of other human rights instruments) lump torture and inhuman or degrading treatment together, drawing no distinction between them. The European Court did, however, draw a distinction between them in Ireland v United Kingdom (1978) 2 EHRR 25, holding that the conduct complained of was inhuman or degrading but fell short of torture, and article 16 of the Torture Convention draws this distinction very expressly:
“Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed 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 particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.”
Ill-treatment falling short of torture may invite exclusion of evidence as adversely affecting the fairness of a proceeding under section 78 of the 1984 Act, where that section applies. But I do not think the authorities on the Torture Convention justify the assimilation of these two kinds of abusive conduct. Special rules have always been thought to apply to torture, and for the present at least must continue to do so. It would, on the other hand, be wrong to regard as immutable the standard of what amounts to torture. This is a point made by the European Court in Selmouni v France (1999) 29 EHRR 403, paras 99−101 (footnotes omitted):
“99 The acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. The Court therefore finds elements which are sufficiently serious to render such treatment inhuman and degrading. In any event, the Court reiterates that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3.
100 In other words, it remains to establish in the instant case whether the ‘pain or suffering’ inflicted on Mr Selmouni can be defined as ‘severe’ within the meaning of Article 1 of the United Nations Convention. The Court considers that this ‘severity’ is, like the ‘minimum severity’ required for the application of Article 3, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.
101 The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture. However, having regard to the fact that the Convention is a ‘living instrument which must be interpreted in the light of present-day conditions’, the Court considers that certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.”
It may well be that the conduct complained of in Ireland v United Kingdom, or some of the Category II or III techniques detailed in a J2 memorandum dated 11 October 2002 addressed to the Commander, Joint Task Force 170 at Guantanamo Bay, Cuba, (see The Torture Papers: The Road to Abu Ghraib, ed K Greenberg and J Dratel, (2005), pp 227–228), would now be held to fall within the definition in article 1 of the Torture Convention. 
United Kingdom, House of Lords, A and others v. Secretary of State for the Home Department (No 2), Judgment, 8 December 2005, §§ 1, 3–7 and 10–53.
With regard to the second issue, the SIAC’s obligation to initiate inquiries in the way given material had been obtained, Lord Bingham stated, the other Lords agreeing:
The burden of proof
54. The appellants contend that it is for a party seeking to adduce evidence to establish its admissibility if this is challenged. The Secretary of State submits that it is for a party seeking to challenge the admissibility of evidence to make good the factual grounds on which he bases his challenge. He supports this approach in the present context by pointing to the reference in article 15 of the Torture Convention to a statement “which is established to have been made as a result of torture.” There is accordingly said to be a burden on the appellant in the SIAC proceedings to prove the truth of his assertion.
55. I do not for my part think that a conventional approach to the burden of proof is appropriate in a proceeding where the appellant may not know the name or identity of the author of an adverse statement relied on against him, may not see the statement or know what the statement says, may not be able to discuss the adverse evidence with the special advocate appointed (without responsibility) to represent his interests, and may have no means of knowing what witness he should call to rebut assertions of which he is unaware. It would, on the other hand, render section 25 appeals all but unmanageable if a generalised and unsubstantiated allegation of torture were in all cases to impose a duty on the Secretary of State to prove the absence of torture. It is necessary, in this very unusual forensic setting, to devise a procedure which affords some protection to an appellant without imposing on either party a burden which he cannot ordinarily discharge.
56. The appellant must ordinarily, by himself or his special advocate, advance some plausible reason why evidence may have been procured by torture. This will often be done by showing that evidence has, or is likely to have, come from one of those countries widely known or believed to practise torture (although they may well be parties to the Torture Convention and will, no doubt, disavow the practice publicly). Where such a plausible reason is given, or where SIAC with its knowledge and expertise in this field knows or suspects that evidence may have come from such a country, it is for SIAC to initiate or direct such inquiry as is necessary to enable it to form a fair judgment whether the evidence has, or whether there is a real risk that it may have been, obtained by torture or not. All will depend on the facts and circumstances of a particular case. 
United Kingdom, House of Lords, A and others v. Secretary of State for the Home Department (No 2), Judgment, 8 December 2005, §§ 54–56.
With regard to the third issue, the test to be applied by the SIAC in deciding whether, based on its inquiries, given material could be admitted, the majority stated:
Lord Hope of Craighead
(b) The standard of proof
117. Guidance needs to be given on this point too. Do the facts need to be established beyond a reasonable doubt or do they need to be established only on a balance of probabilities? To answer this question we must know what it is that has to be established. It is at the point of defining what SIAC must inquire into that, with the greatest of respect, I begin to differ from Lord Bingham. He says that it is for SIAC to initiate or direct such inquiry as is necessary to enable it to form a fair judgment whether the evidence has, or whether there is a real risk that it may have been, obtained by torture or not. But it is one thing if what SIAC is to be required to do is to form a fair judgment as to whether the evidence has, or may have been, obtained by torture. It is another if what it is to be required to do is to form a fair judgment as to whether it has not, or may not, have been obtained by torture.
118. Lord Bingham then says that SIAC should refuse to admit the evidence if it is unable to conclude that there is not a real risk that the evidence has been obtained by torture. My own position, for reasons that I shall explain more fully in the following paragraphs, is that SIAC should refuse to admit the evidence if it concludes that the evidence was obtained by torture. I am also firmly of the view that, if it approaches the issue in this way, it should apply the lower standard of proof. The liberty of the subject dictates this. So SIAC should not admit the evidence if it concludes on a balance of probabilities that it was obtained by torture. In other words, if SIAC is left in doubt as to whether the evidence was obtained in this way, it should admit it. But it must bear its doubt in mind when it is evaluating the evidence. Lord Bingham’s position, as I understand it, is that if it is left in doubt SIAC should exclude the evidence. That, in short, is the only difference between us.
(c) The test
119. I must now explain why I believe that the question which SIAC must address should be put positively rather than negatively. The effect of rule 44(3) of the Procedure Rules is that sources of all kinds may be relied upon, far removed from what a court of law would regard as the best evidence. SIAC may be required to look at information coming to the attention of the security services at third or fourth hand and from various sources, the significance of which cannot be determined except by looking at the whole picture which it presents. The circumstances in which the information was first obtained may be incapable of being detected at all or at least of being determined without a long and difficult inquiry which would not be practicable. So it would be unrealistic to expect SIAC to demand that each piece of information be traced back to its ultimate source and the circumstances in which it was obtained investigated so that it could be proved piece by piece, that it was not obtained under torture. The threshold cannot be put that high. Too often we have seen how the lives of innocent victims and their families are torn apart by terrorist outrages. Our revulsion against torture, and the wish which we all share to be seen to abhor it, must not be allowed to create an insuperable barrier for those who are doing their honest best to protect us. A balance must be struck between what we would like to achieve and what can actually be achieved in the real world in which we all live. Articles 5(4) and 6(1) of the European Convention, to which Lord Bingham refers in para 62, must be balanced against the right to life that is enshrined in article 2 of the Convention.
120. I would take as the best guide to what is practicable the approach that article 15 of the Torture Convention takes to this issue … First, the exclusionary rule that it lays down applies to statements obtained under torture, not to information that may have been discovered as a result of them. Logic might suggest that the fruits of the poisoned tree should be discarded too. But the law permits evidence to be led however it was obtained, if the evidence is in itself admissible … Secondly, the exclusionary rule applies to “any proceedings”. Mr Burnett QC for the Secretary of State suggested that this phrase should be read as extending to criminal proceedings only, but I would not so read it. The word “any” is all-embracing and it is perfectly capable of applying to the proceedings conducted by SIAC.
121. Thirdly, and crucially, the exclusionary rule extends to any statement that “is established” to have been made under torture. The rule does not require it to be shown that the statement was not made under torture. It does not say that the statement must be excluded if there is a suspicion of torture and the suspicion has not been rebutted. Nor does it say that it must be excluded if there is a real risk that it was obtained by torture. An evaluation of risk is appropriate if the question at issue relates to the future … The rule that article 15 lays down looks at what has happened in the past. It applies to a statement that is established to have been made under torture. In my opinion the test that it lays down is the test that should be applied by SIAC. It too must direct its inquiry to what has happened in the past. Is it established, by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? If that is the position, article 15 requires that the information must be left out of account in the overall assessment of the question whether there were no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1) (a) or (b) of the Anti−terrorism, Crime and Security Act 2001. The same rule must be followed in any other judicial process where information of this kind would otherwise be admissible.
122. Support for this approach is to be found in a decision in the case of El Motassadeq of the Hanseatisches Oberlandesgericht (the Hanseatic Court of Appeals, Criminal Division), Hamburg of 14 June 2005, NJW 2005, 2326 …
126. There is a fourth element in article 15 which ought to be noticed, although the issue has not been focussed by the facts of this case. The exclusionary rule that article 15 of the Torture Convention lays down extends to statements obtained by the use of torture, not to those obtained by the use of cruel, inhuman or degrading treatment or punishment. That is made clear by article 16.1 of the Convention. The borderline between torture and treatment or punishment of that character is not capable of precise definition. As John Cooper, Cruelty − an analysis of Article 3 (2003), para 1-02 points out, the European Committee for the Prevention of Torture are unwilling to produce a clear and comprehensive interpretation of these terms, their approach being that these are different types of ill-treatment, more or less closely linked. Views as to where the line is to be drawn may differ sharply from state to state. This can be seen from the list of practices authorised for use in Guantanamo Bay by the US authorities, some of which would shock the conscience if they were ever to be authorised for use in our own country. SIAC must exercise its own judgment in addressing this issue, which is ultimately one of fact. It should not be deterred from treating conduct as torture by the fact that other states do not attach the same label to it. The standard that it should apply is that which we would wish to apply in our own time to our own citizens.
127. For these reasons, although I take a different view from my noble and learned friend Lord Bingham as to the advice that should be given to SIAC, I too would allow the appeals and make the order that he proposes.
Lord Rodger of Earlsferry
138. The courts’ deep-seated objection is to torture and to statements obtained by torture. The rejection of such statements is an exception to the general rule that relevant evidence is admissible even if it has been obtained unlawfully. On the other hand, the public interest does not favour SIAC rejecting statements that have not in fact been obtained by torture. More particularly, the public interest does not favour rejecting statements merely because there is a suspicion or risk that they may have been obtained in that way. Reports from various international bodies may well furnish grounds for suspicion that a country has been in the habit of using torture. That cannot be enough. To trigger the exclusion, it must be shown that the statement in question has been obtained by torture.
139. I draw support for that general approach from the judgment of the Grand Chamber of the European Court of Human Rights in Mamatkulov and Askarov v Turkey, 4 February 2005 …
140. As my noble and learned friend, Lord Hope of Craighead, has explained, the Hanseatic Oberlandesgericht in Hamburg adopted a somewhat similar approach in El Motassadeq NJW 2005, 2326 …
144. In the nature of the case and with the best will in the world, there is likely to be a limit to what can be discovered about what went on during an investigation by the authorities in another country. Foreign states can be asked, but cannot be forced, to provide information. How far such requests can be pushed without causing damage to international relations must be a matter for the judgment of the Government and not for SIAC or any court.
145. When everything possible has been done, it may turn out that the matter is left in doubt and that, using their expertise, SIAC cannot be satisfied on the balance of probabilities that the statement in question has been obtained by torture. If so, in my view, SIAC can look at the statement but should bear its doubtful origins in mind when evaluating it …
Lord Carswell
153. The issue on which I have found it most difficult to reach a satisfactory principled conclusion is that of the approach which SIAC should take to deciding when a statement should be rejected, an issue on which your Lordships have not found it possible to speak with one voice. I have been much exercised by the difficulties inherent in the acceptance of either of the views which have been expressed, but I am conscious of the importance of laying down a clearly defined and workable rule which can be applied by SIAC (or similar bodies which may have to deal with the same problem).
155. I agree with your Lordships that consideration of this question by the conventional approach to the burden of proof is both unhelpful and inappropriate … I accordingly agree with the view expressed by Lord Bingham (para 56 of his opinion) and Lord Hope (para 116) that once the appellant has raised in a general way a plausible reason why evidence adduced may have been procured by torture, the onus passes to SIAC to consider the suspicion, investigate it if necessary and so far as practicable and determine by reference to the appropriate test whether the evidence should be admitted and taken into account.
156. What that test should be is the issue on which your Lordships are divided. Lord Bingham is of the opinion (para 56) that if SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture, it should refuse to admit it. Lord Hope, on the other hand, has propounded a different test, which he describes as putting the question which SIAC has to decide positively rather than negatively. It has to be established on the balance of probabilities that the particular piece of evidence was obtained by the use of torture; and unless it has in SIAC’s judgment been so established, after it has completed any investigation carried out and weighed up the material before it, then it must not reject it on that ground.
157. I have found the choice between these tests the most difficult part of this case. Lord Bingham has cogently described the difficulties facing an appellant before SIAC and the potential injustice which he sees as the consequence if the Hope test is adopted. Lord Hope for his part places some emphasis on the severity of the practical problems which would face SIAC in negativing the use of torture to obtain any given statement, and expresses his concern that it would constitute “an insuperable barrier for those who are doing their honest best to protect us”. In support of his view Lord Hope points in particular to the terms of article 15 of UNCAT, which requires states to ensure that any statement “which is established to have been made as a result of torture” shall not be invoked in any proceedings.
158. After initially favouring the Bingham test, I have been persuaded that the Hope test should be adopted by SIAC in determining whether statements should be admitted when it is claimed that they may have been obtained by the use of torture. Those who oppose the latter test have raised the spectre of the widespread admission of statements coming from countries where it is notorious that torture is regularly practised. This possibility must of course give concern to any civilised person. It may well be, however, that the two tests will produce a different result in only a relatively small number of cases if the members of SIAC use their considerable experience and their discernment wisely in scrutinising the provenance of statements propounded, as I am confident they will. Moreover, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in para 166 of his opinion, intelligence is commonly made up of pieces of material from a large number of sources, with the consequence that the rejection of one or some pieces will not necessarily be conclusive. While I fully appreciate the force of the considerations advanced by Lord Bingham in paras 58 and 59 of his opinion, I feel compelled to agree with Lord Hope’s view in para 118 that the test which he proposes would, as well as involving fewer practical problems, strike a better balance in the way he there sets out.
159. On this basis I would accordingly allow the appeals and make the order proposed.
Lord Brown of Eaton-under-Heywood
172. … I agree with Lord Hope of Craighead (at para 121 of his opinion) that SIAC should ask itself whether it is “established, by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture.” Only if this is established is the statement inadmissible. If, having regard to the evidence of a particular state’s general practices and its own inquiries, SIAC were to conclude that there is no more than a possibility that the statement was obtained by torture, then in my judgment this would not have been established and the statement would be admissible.
173. The difficulty I have with the “real risk” test espoused by certain of your Lordships, apart from the fact that classically such a test addresses future dangers (as, for example, the risk of torture or other article 3 ill-treatment which the European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439 understandably refused to countenance) rather than past uncertainties, is that it would require SIAC to ignore entirely (rather than merely discount to whatever extent it thought appropriate) any statement not proved to have been made voluntarily. That, at least, is how I understand the “real risk” test to apply: if SIAC were left in any substantial (ie other than minimal) doubt as to whether torture had been used, the statement would be shut out, however reliable it appeared to be and notwithstanding that SIAC concluded that it had probably been made voluntarily. That seems to me a surprising and unsatisfactory test. If I have misunderstood the proposed test and if all that it involves is SIAC shutting out a statement whenever they simply cannot decide one way or the other on the balance of probabilities whether it has been extracted by torture (a rare case one would suppose given the expertise of the tribunal) then my difficulty would be substantially lessened although I would still prefer the test favoured by Lord Hope of Craighead and Lord Rodger of Earlsferry.
174. It is one thing to say, as in Soering, that someone cannot be deported whilst there exists the possibility that he may be tortured – or, indeed, as the dissentient minority said in Mamatkulov and Askarov v Turkey (Application Nos 46827/99 and 46951/99, unreported, 4 February 2005), if they run a real risk of suffering a flagrant denial of justice – quite another to say that the integrity of the court’s processes and the good name of British justice requires that evidence be shut out whenever it cannot be positively proved to have been given voluntarily.
175. For these reasons, and for the reasons given by Lord Bingham and others of my noble and learned friends, I too would allow these appeals and make the order proposed. 
United Kingdom, House of Lords, A and others v. Secretary of State for the Home Department (No 2), Judgment, 8 December 2005, §§ 117–122, 126–127, 138–139, 144–145, 153, 155–159 and 172–175.
[emphasis in original]
The minority favoured the following test:
Lord Bingham of Cornhill
56. … If SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture, it should refuse to admit the evidence. Otherwise it should admit it. It should throughout be guided by recognition of the important obligations laid down in articles 3 and 5(4) of the European Convention and, through them, article 15 of the Torture Convention, and also by recognition of the procedural handicaps to which an appellant is necessarily subject in proceedings from which he and his legal representatives are excluded.
57. Since a majority of my noble and learned friends do not agree with the view I have expressed on this point, and since it is of practical importance, I should explain why I do not share their opinion.
58. I agree, of course, that the reference in article 15 to “any statement which is established to have been made as a result of torture” would ordinarily be taken to mean that the truth of such an allegation should be proved. That is what “established” ordinarily means. I would also accept that in any ordinary context the truth of the allegation should be proved by the party who makes it. But the procedural regime with which the House is concerned in this case, described in paragraphs 6–7 and 55 above, is very far from ordinary. A detainee may face the prospect of indefinite years of detention without charge or trial, and without knowing what is said against him or by whom. Lord Woolf CJ was not guilty of overstatement in describing an appellant to SIAC, if denied access to the evidence, as “undoubtedly under a grave disadvantage” (M v Secretary of State for the Home Department [2004] EWCA Civ 324, [2004] 2 All ER 863, para 13). The special advocates themselves have publicly explained the difficulties under which they labour in seeking to serve the interests of those they are appointed to represent …
59. My noble and learned friend Lord Hope proposes, in paragraph 121 of his opinion, the following test: is it established, by means of such diligent enquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? This is a test which, in the real world, can never be satisfied. The foreign torturer does not boast of his trade. The security services, as the Secretary of State has made clear, do not wish to imperil their relations with regimes where torture is practised. The special advocates have no means or resources to investigate. The detainee is in the dark. It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet. The result will be that, despite the universal abhorrence expressed for torture and its fruits, evidence procured by torture will be laid before SIAC because its source will not have been “established”.
60. The authorities relied on by my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry to support their conclusion are of questionable value at most …
62. I regret that the House should lend its authority to a test which will undermine the practical efficacy of the Torture Convention and deny detainees the standard of fairness to which they are entitled under article 5(4) or 6(1) of the European Convention. The matter could not be more clearly put than by my noble and learned friend Lord Nicholls of Birkenhead in the closing paragraph of his opinion.
Lord Nicholls of Birkenhead
80. … I associate myself with the observations of Lord Bingham of Cornhill on the burden of proof where the admissibility of evidence is challenged before SIAC on the ground it may have been procured by torture. The contrary approach would place on the detainee a burden of proof which, for reasons beyond his control, he can seldom discharge. In practice that would largely nullify the principle, vigorously supported on all sides, that courts will not admit evidence procured by torture. That would be to pay lip-service to the principle. That is not good enough.
Lord Hoffmann
98. That leaves the question of the burden of proof, on which I am in agreement with my noble and learned friend Lord Bingham of Cornhill. In proceedings in which the appellant to SIAC may have no knowledge of the evidence against him, it would be absurd to require him to prove that it had been obtained by torture. Article 15 of the Torture Convention, which speaks of the use of torture being “established”, could never have contemplated a procedure in which the person against whom the statement was being used had no idea of what it was or who had made it. It must be for SIAC, if there are reasonable grounds for suspecting that to have been the case (for example, because of evidence of the general practices of the authorities in the country concerned) to make its own inquiries and not to admit the evidence unless it is satisfied that such suspicions have been rebutted. One of the difficulties about the Secretary of State’s carefully worded statement that it would not be his policy to rely upon evidence “where there is a knowledge or belief that torture has taken place” is that it leaves open the question of how much inquiry the Secretary of State is willing to make. It appears to be the practice of the Security Services, in their dealings with those countries in which torture is most likely to have been used, to refrain, as a matter of diplomatic tact or a preference for not learning the truth, from inquiring into whether this was the case. It may be that in such a case the Secretary of State can say that he has no knowledge or belief that torture has taken place. But a court of law would not regard this as sufficient to rebut real suspicion and in my opinion SIAC should not do so. 
United Kingdom, House of Lords, A and others v. Secretary of State for the Home Department (No 2), Judgment, 8 December 2005, §§ 56–60, 62, 80 and 98.
[emphasis in original]
United Kingdom of Great Britain and Northern Ireland
In 2010, in the Wheelhouse case, a UK Court Martial considered the case of a captain of the 45 Commando Royal Marines and a sergeant of the Commander Training Centre Royal Marines who were charged with committing a civil offence contrary to section 70 of the 1995 Army Act, namely assault occasioning actual bodily harm contrary to section 47 of the 1861 Offences against the Person Act, because they assaulted a detainee in a detention facility of UK armed forces in Afghanistan in 2009. The accused were found guilty and sentenced to dismissal with disgrace (captain of 45 Command Royal Marines) and dismissal (sergeant of Commander Training Centre Royal Marines). The Judge Advocate stated:
This was a sustained assault on an injured and unarmed prisoner, a middle aged Afghan man who was suspected of being part of a group who were attempting to lay an improvised explosive [device] … It is understandable that those who have seen the effects of these devices should feel a degree of hatred or emotion towards those who plant them especially when, as in Sergeant Leader’s case, they have lost friends. But acts such as these against unarmed prisoners are not only against the values and standards of our armed forces, they undermine everything which our armed forces are trying to achieve in Afghanistan and place the lives of personnel in even greater danger. 
United Kingdom, Court Martial, Wheelhouse case, Sentencing, 7 April 2010, 13.
United States of America
In its judgment in the List case (The Hostages Trial) in 1948, the US Military Tribunal at Nuremberg found the accused, former high-ranking German army officers, guilty of having tortured civilians as a form of retaliation for attacks by non-combatants. 
United States, Military Tribunal at Nuremberg, List case (The Hostages Trial), Judgment, 19 February 1948.
United States of America
In the Filartiga case in 1984, a civil lawsuit filed in a US court against an official from Paraguay who had allegedly tortured the applicant – a national of Paraguay – in Paraguay, the US Government, acting as amicus curiae, submitted that the practice of official torture amounted to a violation of customary international law. 
United States, District Court of the Eastern District of New York, Filartiga case, Judgment, 10 January 1984.
United States of America
In 2002, in the Mehinovic case, a civil lawsuit filed on behalf of four Bosnian Muslims who were tortured by a Bosnian-Serb soldier in Bosnia-Herzegovina in 1992, the US District Court Northern District of Georgia found the defendant liable for: torture; cruel, inhuman and degrading treatment; arbitrary detention; war crimes; crimes against humanity; and genocide. The Court awarded the plaintiffs US$ 140 million in damages. In its judgment, the Court stated:
Torture
Plaintiffs have shown that defendant Vuckovic acted with the intent required to establish that his acts constituted torture. Vuckovic’s anti-Muslim statements, and the entire context in which the beatings occurred, evidence the fact that the defendant beat and threatened plaintiffs for discriminatory reasons. Plaintiffs have also established that the acts of defendant Vuckovic were carried out with the intent of intimidating or terrorizing them because of their ethnicity, pursuant to the Bosnian Serb government’s campaign of ethnic cleansing.
Finally, the beatings carried out by Vuckovic and his accomplices were clearly perpetrated, instigated, and acquiesced in, by persons acting in an official capacity as part of the police or military forces of Republika Srpska. Vuckovic himself was a soldier in a unit tied to and supported by the Bosnian Serb and Serbian governments. He often carried out beatings with other soldiers. The beatings inflicted by Vuckovic all were committed in official or designated detention facilities, guarded by Bosnian Serb or Serbian police or soldiers. Without their permission or acquiescence, and that of those in the political and military hierarchy above him, Vuckovic could not have perpetrated abuses against plaintiffs. Plaintiff Subasic described frequently hearing guards scheduling beatings in advance. The fact that the beatings carried out by Vuckovic and others were routine, daily occurrences at these facilities also indicates that the beatings were, in fact, ordered, authorized, and perpetrated as part and parcel of official policy.
For these reasons, defendant Vuckovic is liable for torture under the ATCA [Alien Tort Claims Act, 28 U.S.C. § 1350 (1988)].
The TVPA [Torture Victim Protection Act of 1991] also provides a cause of action for official torture. The TVPA provides in relevant part:
An individual who, under actual or apparent authority, or color of law, of any foreign nation—(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual.
TVPA § 2(a).
As set out in the section above, defendant Vuckovic clearly committed abuses against plaintiffs under official authority. In light of the de facto governmental authority of the Republika Srpska, under which Vuckovic served as a soldier, and the control exerted over it by the Serbian government, Vuckovic may be considered also to have been acting under the authority of a “foreign nation.” Kadic v. Karadzic, 70 F.3d at 244-46 Additionally, as the definition of torture under the TVPA closely follows the definition of torture under the Torture Convention in all relevant respects, for the same reasons as above, Vuckovic’s actions also constitute torture under the TVPA. Accordingly, defendant Vuckovic also is liable to plaintiffs for torture under the TVPA.
Cruel, Inhuman or Degrading Treatment
Cruel, inhuman, or degrading treatment is a discrete and well-recognized violation of customary international law and is, therefore, a separate ground for liability under the ATCA. Abebe-Jira, 72 F.3d at 847; Estate of Cabello v. Fernandez-Larios, 157 F.Supp.2d 1345, 1362 (S.D.Fla.2001); Xuncax, 886 F.Supp. at 187. In particular, the Eleventh Circuit and other courts have recognized cruel, inhuman, or degrading treatment as a violation of customary international law, at least to the extent that the conduct also would be prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the U.S. Constitution. Abebe-Jira, 72 F.3d at 847; Cabello, 157 F.Supp.2d at 1362; Paul, 901 F.Supp. at 330; Xuncax, 886 F.Supp. at 187-89. These courts, accordingly, have allowed defendants to be held liable for the infliction of cruel, inhuman or degrading treatment. International instruments and decisions also recognize cruel, inhuman and degrading treatment as a distinct violation of international law.
War Crimes
Acts of torture, inhuman treatment, and arbitrary detention of civilians committed in the course of hostilities violate the international law of war as codified in the Geneva Conventions and, hence, are a proper basis for liability under the ATCA. Kadic v. Karadzic, 70 F.3d at 24243. Such acts, whether committed in an international armed conflict or a non-international armed conflict, violate customary international law and are enforceable under the ATCA. 
United States, District Court Northern District of Georgia, Mehinovic case, Judgment, 29 April 2002.
United States of America
In 2007, in the Charles Emmanuel case, in which the defendant was indicted on conspiracy to commit and the commission of acts of torture in the country of Liberia, the US District Court for the Southern District of Florida denied the defendant’s motion to dismiss the indictment based on the unconstitutionality of the US Torture Statute. The Court stated:
The prohibition against official torture has attained the status of a jus cogens norm, not merely the status of customary international law. In reaching the not surprising conclusion that prohibition of official torture was a jus cogens norm, the Ninth Circuit Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) explained:
[W]e conclude that the right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens. The crack of the whip, the clamp of the thumb screw, the crush of the iron maiden, and, in these more efficient modern times, the shock of the electric cattle prod are forms of torture that the international order will not tolerate. To subject a person to such horrors is to commit one of the most egregious violations of the personal security and dignity of a human being. That states engage in official torture cannot be doubted, but all states believe it is wrong, all that engage in torture deny it, and no state claims a sovereign right to torture its own citizens.
It is beyond peradventure that torture and acts that constitute cruel, inhuman or degrading punishment, acts prohibited by jus cogens, are similarly abhorred by the law of nations … Certainly the numerous international treaties and agreements, and several domestic statutes that contain varying proscriptions against torture, addressing both civil and criminal reparation, demonstrate the law of nations’ repudiation of torture.
The Torture Statute contains specific intent as one of its elements, as it defines “torture” to be “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering …” The Indictment informs Defendant that he and his co-conspirators, acting under color of law and with the specific intent to inflict severe physical pain and suffering, burned the alleged victim’s flesh with a hot iron, forced the alleged victim at gunpoint to hold scalding water in his hands, burned parts of the victim’s body with scalding water, repeatedly shocked the genitalia and other parts of the body with an electrical device, and rubbed salt into the alleged victim’s wounds. Such allegations, coupled with the statutory language contained in the Torture Statute, certainly advise the ordinary person of prohibited conduct with sufficient definiteness. The Torture Statute, enacted to fulfill the United States’ treaty obligations with most of the countries of the world, certainly put the Defendant, a person born in the United States, on notice of conduct prohibited not only in this country, but in much of the civilized world. 
United States, District Court for the Southern District of Florida, Charles Emmanuel case, Judgment, 5 July 2007.
United States of America
In 2008, in the Travis case, the US Court of Appeals for the Armed Forces affirmed the judgment of a lower court that had found the accused, a former Marine guard, who had been a supervisor at a detention facility in Iraq, guilty of various crimes including wilful dereliction of duty, conspiracy to commit cruelty and maltreatment of an Iraqi detainee. In doing so, the Court stated: “The offenses in this case are serious. Travis’s conduct reflects disdain for the human dignity of detainees under American control and custody, as well as an abandonment of his supervisory role as a non-commissioned officer.” 
United States, , US Court of Appeals for the Armed Forces, Travis case, Judgment, 15 May 2008, p.3.
United States of America
In 2008, in the Harman case, in which the appellant appealed the finding of a military court that had convicted her of conspiracy to maltreat detainees, dereliction of duty by wilfully failing to protect detainees from abuse, and maltreatment of detainees – charges that had arisen from a series of incidents that had occurred at the US Baghdad Central Confinement Facility at Abu Ghraib, Baghdad, Iraq, in 2003 – the US Army Court of Criminal Appeals upheld the finding of the lower court and its sentence of rank reduction, forfeiture of pay and allowances, confinement for six months and a bad-conduct discharge. The Court of Appeals stated:
Charge III accuses appellant of cruelty and maltreatment in violation of Article 93. To obtain a conviction of this offense, the government must prove beyond a reasonable doubt: “(1) That a certain person was subject to the orders of the accused; and (2) That the accused was cruel toward, or oppressed, or maltreated that person.” MCM Manual for Courts-Martial, United States (2005 ed.)], Part IV, para. 17b. The MCM does not define cruelty, oppression, or maltreatment, other than to say that the offending conduct is “not necessarily physical” and that it “must be measured by an objective standard.” Id. at para. 17c(2).
Specification 1 of Charge III alleges that appellant “at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003 did maltreat several detainees, persons subject to her orders, by taking two or more photographs of the naked detainees in a pyramid of human bodies.” Specification 2 alleges that appellant “at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003, did maltreat a detainee, a person subject to her orders, by photographing another guard, Corporal [CG], with one arm cocked back as if he was going to hit the detainee in the neck or back.”
In the totality of the circumstances, we conclude that appellant’s actions described in Specifications 1 and 2 constitute maltreatment. Taking the photographs reasonably could have caused the detainees mental suffering. No reasonable detainee would want to be abused and, more importantly here, would wish his abusers to record this pointless, humiliating conduct. The detainees, in addition, had no ability to leave or to object or to do anything but what they were told. Appellant abused her authority as a guard in photographing the detainees.
Specification 3 of Charge III alleges that appellant “at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 6 November 2003, did maltreat a detainee, a person subject to her orders, by placing wires on the detainee’s hands while he stood on a Meals Ready to Eat box with this (sic) head covered and then telling him if he fell off the box he would be electrocuted.”
[A]ppellant argues, consistent with her sworn statement, that she believed they were joking when they put the wires on the detainee and that she did not believe he suffered any harm. This argument also has no merit. … Any reasonable observer would conclude that the conduct was so abusive that it constitutes maltreatment in violation of Article 93 [of the Uniform Code of Military Justice].
Specification 4 of Charge III alleges that appellant “at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003 did maltreat a detainee, a person subject to her orders, by writing the word ‘rapeist [sic]’ on the detainee’s leg who was then made to pose naked with other detainees.” Appellant admitted in her sworn statement that she wrote the word on the detainee. But she contends that this act does not constitute maltreatment.
Appellant argues that it was not unusual to write words and figures on the bodies of detainees. Testimony established that the MPs at the prison sometimes used markers to write prisoners’ cell numbers on their arms. In at least one instance, the MPs also wrote the word “knife” on the hand of a detainee who had been caught with a knife. Appellant further argues that the detainee upon whom she wrote the word was in fact a suspected rapist. She points out that there is no evidence that this detainee knew what was written on him, objected to it, or suffered any harm from it.
We disagree. Again, under Carson [United States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002)], it is the objective perspective of a reasonable person, rather than the subjective reaction of the victim, that determines whether maltreatment has occurred. From an objective perspective, appellant’s action constituted maltreatment. Staff Sergeant IF testified that guards did not write the names of crimes on detainees. No evidence showed that guards wrote on parts of the body observable only when the detainee was naked. Writing the word on the detainee could serve no purpose other than to humiliate him for the sake of amusement. Specialist JS confirmed this conclusion. He testified that during the incident, appellant was “kind of happy, like it was a joke.” For these reasons, we conclude that the evidence was legally and factually sufficient. 
United States, US Army Court of Criminal Appeals, Harman case, Judgment, 30 June 2008.
Venezuela
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
In case of national armed conflict, Article 3 [common to the 1949 Geneva Conventions] establishes as a minimum the obligation to treat non-combatants “humanely”, thus prohibiting … in particular … cruel treatment … The standards of Article 3 are considered to be a part of customary law and constitute the minimum – in terms of obligations – that belligerents must always respect. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 8.
Afghanistan
In 1990, it was reported that the Government in Afghanistan had admitted that it practised torture and that it needed to reform its policy. 
AFP, Communiqué, 28 June 1990.
Algeria
In 2006, in its third periodic report to the Human Rights Committee, Algeria stated:
57. Since 1991, Algeria has had to confront terrorism in an atmosphere of indifference and suspicion. Efforts to combat this scourge, requiring the implementation of special measures, have always been deployed within the framework of the law and respect for human dignity.
58. In order to deal with this exceptional situation, in February 1992 the Algerian authorities decided to declare – as they are entitled to do under the Constitution – a state of emergency. Although the state of emergency did impose some restrictions on the exercise of civil rights and liberties, it did not relieve the State of its obligations to guarantee the right to exercise the fundamental civil liberties provided for in the existing domestic constitutional order and in the international agreements ratified by Algeria.
59. The exceptional measures taken during the state of emergency were all accompanied by guarantees for the protection of human rights. No restrictions were placed on the rights and freedoms enshrined in [inter alia, article 7] of the International Covenant on Civil and Political Rights. 
Algeria, Third periodic report to the Human Rights Committee, 7 November 2006, UN Doc. CCPR/C/DZA/3, submitted 22 September 2006, §§ 57–59.
Algeria
In 2007, in its comments on the concluding observations of the Human Rights Committee, Algeria stated: “The Government informed the Committee that torture was prohibited in all places and in all circumstances and that the perpetrators of ill-treatment faced criminal prosecution.” 
Algeria, Comments by the Government of the People’s Democratic Republic of Algeria to the concluding observations of the Human Rights Committee, 7 November 2007, UN Doc. CCPR/C/DZA/CO/3/Add.1, 19 November 2007, § 4.
Australia
On 9 August 2005, in response to a Question on Notice in the Senate regarding the impending trial of Australian citizen, David Hicks, before a US Military Commission, “Can the Minister confirm that Australia supports international action against torture and deplores torture whenever and wherever it can?”, the Minister representing the Attorney-General stated: “Yes. The Attorney-General [Mr Philip Ruddock] has publicly stated that the Australian Government does not condone the use of torture or cruel or inhumane or degrading treatment in any form.” 
Australia, Senate, Minister representing the Attorney-General, Question on Notice: Mr David Hicks, Hansard, 9 August 2005, p. 173.
Australia
On 4 October 2005, in response to a Question on Notice in the Senate regarding Australia’s policy on rendition, “Does the Government approve or disapprove of the United States of America’s policy of rendition, that is, kidnapping people for transfer to, and interrogation in, third countries which permit torture?”, the Minister representing the Attorney-General stated: “The Government’s policy is that persons should only be transferred to another country through recognised legal means or where legal authority exists, such as extradition.” 
Australia, Senate, Minister representing the Attorney-General, Question on Notice: Rendition Policy, Hansard, 4 October 2005, p. 86.
Australia
On 7 November 2005, following a Question on Notice in the Senate regarding the impending trial of Australian citizen, David Hicks, before a US Military Commission, the Minister representing the Attorney-General responded, in part, to criticisms that statements obtained from detainees under alleged torture may be admitted in evidence:
The Military Commission is required to consider the weight of any evidence before it. Any evidence obtained under duress would have minimal probative value. We would expect that any allegations of mistreatment which may be raised by Mr Hicks in his defence will be properly analysed and determined in accordance with accepted principles and Military Commission procedures. United States authorities have previously advised that the manner in which evidence was obtained will be relevant to determining whether it is admissible. In accordance with the Military Commission rules regarding the review of trials, there is also scope for a case to be dismissed on the grounds that a conviction based on evidence obtained as a result of torture is unfair or insufficiently based on reliable evidence.
The Australian Government does not condone the use of torture. It supports international action against torture and deplores such behaviour wherever and whenever it can. Australia has ratified the International Covenant on Civil and Political Rights, which proscribes torture and other cruel, inhuman or degrading treatment or punishment. Australia has also ratified the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. 
Australia, Senate, Minister representing the Attorney-General, Question on Notice: Mr David Hicks, Hansard, 7 November 2005, pp. 202–3.
Azerbaijan
In 1993, Azerbaijan’s Ministry of the Interior ordered that troops “in zones of combat, during military operations … must not subject an enemy taken prisoner to acts of violence or torture”. 
Azerbaijan, Ministry of the Interior, Command of the Troops of the Interior, Order No. 42, Baku, 9 January 1993, § 2.
Azerbaijan
In 2007, in its third periodic report to the Human Rights Committee, Azerbaijan stated:
Pursuant to the provisions of article 15 of the Code of Criminal Procedure of the Republic of Azerbaijan, the following acts are prohibited in criminal prosecutions:
“(a) Torture, the use of physical and psychological force, including medication, forced starvation, hypnosis, withholding of medical assistance, or the use of any other cruel, inhuman or degrading treatment or punishment ...”. 
Azerbaijan, Third periodic report to the Human Rights Committee, 10 December 2007, UN Doc. CCPR/C/AZE/3, submitted 4 October 2007, § 126.
Belgium
In 2001, in its initial report to the Committee against Torture, Belgium stated: “The courses organized for the armed forces on armed conflict law and the rules of engagement … provide for the prohibition of torture and other cruel, inhuman or degrading treatment.” 
Belgium, Initial report to the Committee against Torture, 8 July 2002, UN Doc. CAT/C/52/Add.2, submitted 14 August 2001, § 156.
Bosnia and Herzegovina
In 2004, in its initial report to the Committee against Torture, Bosnia and Herzegovina stated: “Torture is one of the worst crimes and violations of human rights. It is the attack against the essence of human personality and dignity.” 
Bosnia and Herzegovina, Initial report to the Committee against Torture, 29 July 2005, UN Doc. CAT/C/21/Add.6, submitted 4 October 2004, § 42.
The report also stated:
No exceptional circumstance may be invoked as the justification of torture, including the state of war in our country within the period 1992–1995, nor the decision on cease of the state of war dated 22.12.1995, nor the state of threat of war that lasted until 22.12.1996. No regulation whatsoever prescribes that the orders of a superior officer or authority may be invoked as justification of torture. 
Bosnia and Herzegovina, Initial report to the Committee against Torture, 29 July 2005, UN Doc. CAT/C/21/Add.6, submitted 4 October 2004, § 151.
Canada
In 2004, in response to a question relating to the abuse and torture of prisoners by US forces in Iraq, Canada’s Minister of Foreign Affairs stated:
Canadians, the House and the government condemn, absolutely, the treatment of those prisoners in Iraq.
We welcome the fact that the United States government, the Senate, the House of Representatives and other American authorities are doing their best to rectify a terrible situation and one that has had an impact on the difficult situation in Iraq.
We in the House and we in the government urge all of us to look at the fact that what we need are clear international norms and international rules with enforceability so that all people can be protected at all times, which is why this government has the international policy that it has. 
Canada, House of Commons Debates, Statement by the Minister of Foreign Affairs, 11 May 2004, Canadian Yearbook of International Law, 2004, volume XLII, p. 561.
Canada
In 2004, in its fifth periodic report to the Human Rights Committee, Canada stated regarding its Anti-terrorism Act:
Nothing in any of the new offences, investigative powers or other provisions affects any of the safeguards already in place against torture and related activities. Criminal Code subsection 269.1(4) which bars the use of any statement obtained by torture for any purpose except as evidence that it was in fact obtained by torture, applies in full to all of the new procedures. 
Canada, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/CAN/2004/5, 18 November 2004, § 67.
Canada
In 2005, in a statement before the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, the representative of Canada stated: “To our dismay, serious abuses of human rights and international humanitarian law have become common place in Darfur, including … torture”. 
Canada, Statement by the representative of Canada before the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, 2005, p. 1.
Canada
In 2005, in response to a question during a House of Commons debate relating to Canada’s position on alleged extraordinary renditions involving Canadian territory, Canada’s Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness stated:
Canada is of course in full compliance with both domestic and international law as it relates to extraordinary rendition. We have never deported anyone to a country where they faced a substantial risk of torture. 
Canada, House of Commons Debates, Statement by the Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness, 21 November 2005, Canadian Yearbook of International Law, 2006, volume XLIV, pp. 634–635.
Canada
In September 2006, in the “Report of the Events Relating to Maher Arar – Analysis and Recommendations”, which resulted from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, it was stated:
In a recent address, the Secretary-General of the United Nations said, “Let us be clear: torture can never be an instrument to fight terror, for torture is an instrument of terror.” That statement succinctly captures the special nature of the right to be free from torture: it is absolute. Some human rights, such as the right to privacy, may be lawfully suspended under certain conditions in the name of public emergency. This is made explicit in international human rights treaties such as the International Covenant on Civil and Political Rights and is implicit in Canada’s constitutional standards. But the right to be free from torture is different, in a very important way.
The infliction of torture, for any purpose, is so fundamental a violation of human dignity that it can never be legally justified. Article 5 of the Universal Declaration of Human Rights provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The same prohibition is found in the International Covenant on Civil and Political Rights and all regional human rights instruments. Torture is specifically prohibited in times of armed conflict by international humanitarian law, including the Geneva Conventions of 1949 and their two Additional Protocols. Two international instruments deal specifically with torture: the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations Torture Declaration) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture). In adhering to these treaties, Canada has manifested its commitment to uphold the right to be free from torture.
Under the Convention Against Torture, a state party is bound to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. But the prohibition in the Convention Against Torture extends beyond the act of torture itself. States party may contravene their treaty obligations when they consent to or acquiesce in torture inflicted by another state. For example, article 3 prohibits a state party from expelling, returning or extraditing a person to another state where there are substantial grounds for believing that the person would be in danger of being subjected to torture. In addition, as Professor Peter Burns, an expert on the international prohibition against torture, testified at the Inquiry, a state may contravene the Convention Against Torture if it shares information with a regime known to practice torture with the knowledge that the transfer of information would be used for the purpose of torture.
Article 2, paragraph (2) of the Convention Against Torture makes the absolute nature of the prohibition against torture very clear: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Indeed, the prohibition against torture in international law is so fundamental that it has reached the level of a jus cogens norm – a pre-emptory norm, which overrides any contradictory customary international law, treaty law, or state practice.
Domestically, the Canadian Charter of Rights and Freedoms confirms the absolute rejection of the use of torture. In a recent case [Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1 at paras. 51, 52], the Supreme Court of Canada characterized torture as “so inherently repugnant that it could never be an appropriate punishment, however egregious the offence.” Torture is also a criminal offence in Canada. Subsection 269.1(1) of the Criminal Code of Canada provides that “Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.” The Criminal Code in fact does more than criminalize specific acts of torture, in that its provisions relating to attempts, conspiracies, counselling and parties apply to the offence of torture in the same way they apply to other criminal offences. 
Canada, Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar – Analysis and Recommendations, 18 September 2006, pp. 51–53.
The 14th of the 23 recommendations contained in the report stated:
The RCMP [Royal Canadian Mounted Police] and CSIS [Canadian Security Intelligence Service] should review their policies governing the circumstances in which they supply information to foreign governments with questionable human rights records. Information should never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture. Policies should include specific directions aimed at eliminating any possible Canadian complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability.
In amplification of that recommendation, the report stated:
Article 2, paragraph (2) of the Convention against Torture provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Article 4, paragraph (1) moreover requires that a state party to the Convention “ensure that all acts of torture are offences under its criminal law” and that the same apply to any “attempt to commit torture” or any “act by any person which constitutes complicity or participation in torture.” Finally, under Article 3, paragraph (1), no state party shall send a person to a country where there are “substantial grounds for believing that he would be in danger of being subjected to torture.” Clearly, the prohibition against torture in the Convention against Torture is absolute. Canada should not inflict torture, nor should it be complicit in the infliction of torture by others.
… According to Article 3, paragraph (2) of the Convention against Torture, relevant considerations for determining whether there are grounds for believing in a danger of torture include the existence of a “pattern of gross, flagrant or mass violations of human rights.” Reliable public reports of patterns of human rights violations in a country must be considered when assessing whether there is or was a credible risk of torture. Canadian officials should not wait for “verification” or unequivocal evidence of torture in a specific case before arriving at a conclusion of a likelihood of torture. 
Canada, Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar – Analysis and Recommendations, 18 September 2006, pp. 346–347.
[emphasis in original]
Canada
In 2007, in a report to Parliament on Canada’s mission in Afghanistan, the Government of Canada stated: “With Canadian assistance, Afghanistan is … working to increase its capacity to comply with, and report on, its human rights treaty obligations, and to develop procedures aimed at preventing … torture”. 
Canada, Canada’s Mission in Afghanistan: Measuring Progress, Report to Parliament, Government of Canada, 26 February 2007, p. 12.
Canada
In 2007, in a report on “Canadian Forces in Afghanistan”, the Standing Committee on National Defence of Canada’s House of Commons notes:
Since 2001, the Canadian Forces have captured and subsequently transferred numerous individuals suspected of committing crimes or planning to commit terrorist acts against international forces or Afghans themselves. These apprehended individuals are referred to as “detainees” and they are routinely handed over to Afghan national security forces by Canadian troops. The Committee heard early testimony that highlighted significant concern over the practice of transferring detainees to Afghan authorities because it was thought that they will be mistreated or tortured by ill-trained Afghan police.
Public allegations subsequently surfaced that claimed three detained Afghans may have even been mistreated while in Canadian custody. The allegations came from University of Ottawa law professor Amir Attaran, based on government documents he obtained under the Access to Information Act. The Canadian Forces launched a Board of Inquiry to investigate the treatment and processing of detainees by the Canadian Forces in Afghanistan, and the circumstances regarding the transfer of the three detainees from a Canadian field unit to Military Police at Kandahar Airfield in the period 6–8 April 2006.
The Board of Inquiry is distinctly different from a separate ongoing Canadian Forces National Investigation Service (CFNIS) investigation, in which trained investigators determine whether or not a criminal offence has occurred, and whether or not there is sufficient evidence to lay charges.
In addition to these proceedings, the Military Police Complaints Commission announced it was launching a second public interest investigation into a complaint regarding the transfer of detainees by Military Police in Afghanistan. This decision relates to a joint, Amnesty International Canada and British Columbia Civil Liberties Association, complaint letter received on 21 February 2007. In the complaint, it is alleged that the Canadian Forces Provost Marshal and unidentified members of the CF Military Police, on at least 18 occasions transferred detainees to Afghan authorities notwithstanding alleged evidence that there was a likelihood they would be tortured.
Detainee handling and transfer involves certain diplomatic issues too. Afghanistan is a sovereign country and is responsible for the handling of all detainees captured on its own territory. Canada, and other nations, are in Afghanistan at the invitation of the Afghan government and so, detainees captured by the Canadian Forces were originally turned over to Afghan authorities, subject to conditions found in an arrangement between the Canadian Forces and the Afghan ministry of defence, signed on 18 December 2005.
The document in question is entitled, “Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan”. The first section of the arrangement establishes the technical nature of the document when it says, “This arrangement establishes procedures in the event of a transfer …” It is an agreement between two government agencies, not an agreement between two countries per se.
According to Ms. Colleen Swords, the DFAIT [Department of Foreign Affairs and International Trade] Assistant Deputy Minister International Security Branch and Policy Director, the arrangement is not a formal treaty and is not legally binding. It simply reaffirms existing legally binding commitments, in particular those in the Third Geneva Convention, as well as obligations undertaken by both Canada and Afghanistan under international law with respect to detainees. In these circumstances, it was felt, there was no need to enter into a separate legally binding agreement with the Government of Afghanistan. Ms. Swords also pointed out that the mechanisms for the transfer of detainees concluded between Afghan authorities and other NATO allies such as Denmark, the Netherlands, and the United Kingdom are also not legally binding.
The transfer arrangement establishes the procedures to be followed in the event of a detainee transfer. It is intended primarily to provide commanders on the ground with clarity on what to do in the event of a transfer, the arrangement lays out two key principles:
a. Recognition of the need for detainees to be treated humanely under any circumstance and in accordance with the standards set out for prisoners of war [footnote 23 to the text adds: “Note that detainees are not considered to be “prisoners of war” and that the term is used only to describe the level and nature of treatment detainees will be afforded.”] in the Third Geneva Convention;
b. Afghan authorities, in exercising sovereignty over their own territory, should have the ultimate responsibility for detainees transferred and held within Afghanistan.
The agreement acknowledges the right of the International Committee of the Red Cross (ICRC) to visit detainees at any time during their custody and an obligation for both parties to notify the ICRC upon transferring a detainee, in accordance with their obligations pursuant to international law. It also establishes a commitment that persons transferred from the Canadian Forces to Afghan authorities will not be subject to the application of the death penalty. Finally, it features recognition, by both parties, of the legitimate role of the Afghan Independent Human Rights Commission (AIHRC) with regard to the treatment of detainees. Canada notifies the ICRC in a timely manner each time a detainee transfer occurs and Canada also notifies ISAF of any detainees transferred. The information shared with NATO is similar to that provided to the ICRC.
Professor Michael Byers … also appeared before us on 11 December 2006, and expressed strong concern that the transfer agreement was not as robust as it could be. He, like Mr. Alex Neve of Amnesty International Canada was deeply concerned that when the Canadian Forces transfer a prisoner into Afghan custody, torture or ill treatment by Afghan police will occur. They felt that the transfer agreement was not sufficient to prohibit such abuse and that it therefore left Canada and Canadian Forces personnel liable to be in violation of their international human rights obligations.
Professor Byers, cited the detainee transfer agreement between the Netherlands and Afghanistan as a good model, suggested a number of amendments be made to strengthen the transfer agreement. First, he wants Canada to insist on a right to conduct follow-up checks on detainees transferred to Afghan authorities. Second, in addition to ensuring that the death penalty is not applied to any transferred detainees, Canada should also insist that no transferred detainees are sent to any third country. Finally, Professor Byers thinks the agreement ought to be elevated to the status of a legally binding undertaking, so that Afghanistan can be held to account if they violate any aspect of international law.
Being sensitive to the debate surrounding the handling of detainees, Canadian military leaders in Afghanistan worked to ensure this issue was being handled appropriately. A Canadian Press article described how Brigadier-General Tim Grant, the Commander of JTF-Afg, reached an agreement with the Kandahar office of the AIHRC, to have the AIHRC act as watchdog for detainees captured by Canadians to ensure that valid complaints of abuse are investigated.
Nonetheless, there was continuing concern over the transfer of detainees to Afghan security authorities. The Minister of National Defence subsequently visited Kandahar to discuss the details of detainee transfer and the role of AIHRC in monitoring the subsequent treatment of detainees held in Afghan prisons. Minister O’Connor returned to Canada and confirmed that the AIHRC will monitor the treatment of detainees transferred by Canada to Afghan authorities.
On May 3, 2007, the government went one step further and signed a supplemental arrangement between the government of Canada and the Afghan Ministry of Defence, in which both parties agreed to additional and more stringent criteria for the treatment, supervision and access to detainees in Afghan prisons. This supplemental arrangement addresses the major concerns voiced in previous testimony and, in fact, is now being held up as the best arrangement of its kind in Afghanistan. In combination, the two Canadian-Afghan arrangements on detainee transfer are being touted as an example for all other national contingents.
However, one preferred step remains and that would be to have NATO ISAF develop a common detainee transfer arrangement between ISAF and the Government of Afghanistan, so that all detainees are handled and transferred in a consistent manner and common expectations of follow-up are known and understood by all parties.
Recommendation 18
The government should attempt to convince NATO to establish a general arrangement with the Government of Afghanistan to ensure the consistent treatment of detainees, but in the meantime, the Government of Canada should ensure that, in all combined operations conducted by Canadian and Afghan military and/or police forces, all detainees captured by Canadian Forces are treated in accordance with the December 18, 2005 and May 3, 2007 arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan in the spirit of the Geneva Conventions and the Convention against Torture. 
Canada, House of Commons, Report of the Standing Committee on National Defence, Canadian Forces in Afghanistan, 39th Parliament, 1st session, June 2007, pp. 101–105.
[emphasis in original]
Canada
In 2011, in an address to the House of Commons on the situation in Libya, Canada’s Minister of Foreign Affairs stated:
Canada has been vocal in condemning the targeting of civilians by the Qadhafi regime, and the impact of that regime’s actions on the hundreds of thousands of people who have been trapped in Libya or forced to flee its borders … In the face of this blatant disregard for both human rights and international law, Canada has demanded that the regime halt its attacks against its own people and that perpetrators of crimes are brought to justice. We have been particularly disgusted by abhorrent reports [of] torture and sexual violence as weapons against the Libyan population. Such actions are international crimes and may be war crimes or crimes against humanity. Canada calls for a full and impartial investigation of these allegations so that the perpetrators can be brought to justice. 
Canada, House of Commons, Address by the Minister of Foreign Affairs to the House of Commons on the situation in Libya, 14 June 2011.
Canada
In 2012, in its written replies to the issues raised by the Committee against Torture with regard to Canada’s sixth periodic report, Canada stated:
The CAHWCA [the 2000 Crimes Against Humanity and War Crimes Act] criminalizes torture as an underlying offence for crimes against humanity and war crimes committed either inside or outside Canada, as provided in sections 4(3) and 6(3) of the CAHWCA. The CAHWCA also criminalizes cruel, inhumane or degrading treatment, as such conduct may constitute a crime against humanity (which includes “other inhumane acts”) or a war crime (which includes inhuman treatment or wilfully causing great suffering, or serious injury to body or health, violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; committing outrages upon personal dignity, in particular humiliating and degrading treatment are war crimes). 
Canada, Written replies by the Government of Canada to the Committee against Torture concerning the list of issues to be taken up in connection with the sixth periodic report of Canada, 2012, § 176.
Chad
In 1997, in its initial report to the Committee on the Rights of the Child, Chad stated:
In Chad, the prohibition on torture is a constitutional principle (art. 18) and a number of legislative measures have been taken to give full effect to this prohibition (Penal Code, art. 247). Specific provisions punish persons guilty of using violence against juveniles and jeopardizing their health by depriving them of food or care (Penal Code, art. 254). 
Chad, Initial report to the Committee on the Rights of the Child, 24 July 1997, UN Doc. CRC/C/3/Add.50, submitted 14 January 1997, § 89.
Chad
In 2007, in its initial report to the Committee against Torture, Chad stated:
10. Since the early years of independence the Republic of Chad has had a long tradition of … torture … , fed by intercommunal conflicts and bloody internecine civil wars in the struggle for power.
11 … [T]orture is not a separate offence in our current national legal instruments.
12. This situation is linked to the lack of harmonization of our domestic legal framework with the Convention that is the subject of this report [1984 Convention against Torture]. However, the 1967 legislature defined torture as an aggravating circumstance in criminal proceedings.
13. The Constitution, the supreme law of the country, reaffirms in its preamble Chad’s attachment to the general principles of human rights as defined by the [1945] Charter of the United Nations, the [1948] Universal Declaration of Human Rights and the [1981] African Charter on Human and Peoples’ Rights; the principle of the inviolability of the human person is also affirmed. Thus, the Constitution, in its article 17, paragraph 1, stipulates that: “The human person is sacred and inviolable.”
14. In thus establishing through its Constitution some provisions that prohibit the practice of torture, Chad unquestionably adheres to the perception of international law to the effect that torture is a crime and as such destroys the victim’s personality and is no less than a negation of the dignity inherent in the human person.
17 … [A]fter independence Chad entered a period of political instability that favoured the systematic practice of torture and inhuman and degrading treatment of civilians, captured soldiers and political detainees among others.
18. The regime of President Ngarta Tombalbaye was marked by the 1965 uprising of the population of Mangalmé, which was brutally put down. The emergence of the armed rebellion in 1966 marks the starting-point of political instability that became virtually institutional and led to the outbreak of civil war in 1979. This civil war eventually brought FRONILAT (Chad National Liberation Front) to power in November 1979. A government of national union and transition was set up and headed by President Goukouni Weddeye, who, unfortunately, had to resort to martial law and public executions in order to put a stop to widespread banditry.
19. That respite was brief, for on 21 March 1980 Hissène Habré’s Armed Forces of the North (FAN) and Goukouni Weddeye’s Popular Armed Forces (FAP) clashed in N’Djamena …
20. After Hissène Habré returned to N’Djamena and seized power on 7 June 1982 human rights violation was to reach its apogee in Chad with the creation of the formidable political police, known as the Documentation and Security Directorate (DDS), created by Decree No. 005/PR/83 of 26 January 1983 and answerable directly to the Office of the President of the Republic.
21. The powers of the DDS were to:
- Collect and collate all information emanating from the country and abroad concerning foreign or foreign-instigated activities likely to jeopardize national unity;
- Identify foreign agents;
- Detect possible networks (information or action) and their organization;
- Identify the immediate or future aims being pursued;
- Prepare counter-espionage, counter-interference and, if necessary, counter-propaganda measures;
- Collaborate in enforcement by establishing files on individuals, groups and communities suspected of activities that ran counter to or were merely injurious to the national interest;
- Provide security protection for Chad’s embassies abroad and for diplomatic mail.
22. These powers, as envisaged, were no different from those of similar bodies in countries where democracy and respect for human rights are guaranteed. The eloquence of the text creating the DDS was a front for the dangerous mission to terrorize the population the better to enslave them. One of the methods systematically used to accomplish this macabre mission was torture.
23. The report of the Commission of Inquiry into former President Habré’s crimes and abuses of power, created by Decree No. 014/PR/P.CE/CJ/90 of 29 December 1990, showed that DDS agents used various forms of torture, such as:
- A form of binding hands and feet together known as “arbatachar”;
- Forced swallowing of water;
- Spraying with gas (in the eyes, nose, etc.);
- Exhaust pipe (in the mouth, etc.);
- Burning with red-hot substances;
- Cohabitation with corpses;
- Stick torture;
- The “black diet”;
- Pulling out of fingernails;
- Poisoning;
- Withholding of medical care; and
- Electric shocks.
65. Harmful traditional practices and the lessons drawn from the torture practised by President Habré’s political police … were the inspiration for the promulgation of Act No. 6/PR/2002 of 15 April 2002 … , article 9 of which states that:
All persons have the right not to be subjected to torture and to cruel, inhuman and degrading treatment of their body in general. 
Chad, Initial report to the Committee against Torture, 22 September 2008, UN Doc. CAT/C/TCD/1, submitted 4 September 2007, §§ 10–14, 17–23 and 65.
Chad further stated:
The Commission of Inquiry of the Ministry of Justice into the crimes and abuses of power of former President Habré and his accomplices
112. The determination of the Chadian people to turn the final page on torture, and the foundation of the Government’s actions to that end, are manifest in the report of the aforesaid Commission, in which the key phrase is: “Never again”. Although the Commission was established prior to Chad’s ratification of the [1984] Convention [against Torture], its report is just as relevant today. It is, in fact, the principal basis for the trial of Habré and his accomplices and for the fight against torture. The acts attributed to Habré and his accomplices are precisely those referred to in article 4 of the Convention which is the subject of the present report.
113. The Commission of Inquiry was created by Decree No. 014/P.CE/CJ/90 of 29 December 1990 at the end of Hissène Habré’s dictatorship and entrusted with the task of assessing the reign of terror that had cost so many human lives.
114. Placed under the authority of the Ministry of Justice, the Commission of Inquiry’s tasks were to:
- Investigate the … acts of torture and barbarism, ill-treatment, other attacks on physical and moral integrity and all human rights violations …
- Determine the amount of the contribution to the war effort and its use as of 1986. 
Chad, Initial report to the Committee against Torture, 22 September 2008, UN Doc. CAT/C/TCD/1, submitted 4 September 2007, §§ 112–114.
Chad also stated: “The endemic and recurrent state of war in the country often gives the forces of law and order the opportunity to commit innumerable acts of torture during their investigations for the identification of a perpetrator or accomplice.” 
Chad, Initial report to the Committee against Torture, 22 September 2008, UN Doc. CAT/C/TCD/1, submitted 4 September 2007, § 391.
Chad
In 2009, in its written replies to the issues raised by the Human Rights Committee with regard to Chad’s initial report, Chad stated:
31. There is no law in Chad specifically criminalizing the act of torture; torture can only be an aggravating factor …
32. The Government’s commitment to the respect and protection of its citizens in this regard is demonstrated by its ratification of the [1984] Convention against Torture … on 9 June 1995 and the establishment of the National Human Rights Commission in 1994. Steps are being taken to align domestic law and these could lead in the very near future to the implementation of the Convention against Torture. The Criminal Code and the Code of Criminal Procedure date back to 1967, however, and will have to be amended to include the new offences. 
Chad, Written replies by the Government of Chad to the Human Rights Committee concerning the list of issues to be taken up in connection with the initial report of Chad, 20 January 2009, UN Doc. CCPR/C/TCD/Q/1/Add.1, submitted 12 January 2009, §§ 31–32.
Chile
In 1994, in its second periodic report to the Committee against Torture, Chile stated under the heading “Definition and Punishment of Torture under the Internal Legal Order”:
11. … the prohibition of any ill-treatment is embodied in article 19 (1) (4) of the Political Constitution of the State. Torture is defined in article 150 of the Penal Code, which, under the section entitled “Crimes and ordinary offences affecting the rights guaranteed by the Constitution”, refers to public officials who “apply torture or practise unnecessary severity” subjecting them to penalties varying from 61 days to 5 years.
12. In addition, article 330 of the Code of Military Justice imposes penalties ranging from 41 days (if no injuries or only light injuries are inflicted) to 15 years (if the injured party dies as a result) on members of the armed forces who use or arrange for the use of unnecessary violence.
13. Section IV, article 19, of the Chilean Police Department Organization Act (Decree-Law No. 2460) “prohibits officials of the Chilean Police Department from committing any act of violence designed to obtain statements from a prisoner”. The penalties imposed on persons breaking this rule are of the same range as those laid down in the above-mentioned article of the Code of Military Justice.
23. Article 6 of the Regulations provides that “no prisoner shall be subjected to torture or cruel, inhuman or degrading treatment, whether verbal or physical, nor to unnecessary severity in the application of the present Regulations”. Articles 69 and 70 indicate that breaches of discipline by Gendarmería [prison service] officials which might constitute offences, and the application “of punishments other than those stipulated, or administered by officials other than those empowered by these Regulations”, shall give rise to administrative penalties, without prejudice to any criminal liability deriving from such acts. 
Chile, Second periodic report to the Committee against Torture, 1 March 1994, UN Doc. CAT/C/20/Add.3, submitted 16 February 1994, §§ 11–13 and 23.
Chile
In 1994, during the consideration of the second periodic report of Chile before the Committee against Torture, a representative of Chile stated:
With regard to domestic legislation to define and punish torture, … a bill … [has] been introduced in 1993 to amend the Code of Penal Procedure and the Penal Code with regard to detention, safeguards for detainees and severer punishment for the use of illegal pressure or torture. That legislation … would also require the Public Prosecutor to institute proceedings against any persons accused of committing such offences. 
Chile, Statement by the delegation of Chile before the Committee against Torture during the consideration of the second periodic report of Chile, 14 November 1994, UN Doc. CAT/C/SR.191, § 8.
Chile
In 2002, in its third periodic report to the Committee against Torture, Chile stated:
[There is] an obligation to display in a clearly visible place in every detention centre a separate placard showing the rights of the detainee … The placard must mention the following rights [including]: … (5) The right not to be subjected to torture or cruel, inhuman or degrading treatment. 
Chile, Third periodic report to the Committee against Torture, 28 October 2002, UN Doc. CAT/C/39/Add.14, submitted 18 February 2002, § 34.
Chile further stated:
[C]ertain forms of cruel, inhuman or degrading treatment or punishment which do not amount to torture are provided for and punished in the old article 150 of the Penal Code. In addition to the new article 150 A, which punishes the offence of torture as such, this amendment added to the Penal Code article 150 B, which is applicable to private individuals participating in the offences characterized both in article 150 and in article 150 A … In addition, article 255 of the Penal Code establishes the penalties of suspension from employment and a fine for any public employee who, in the course of his duties, perpetrates ill-treatment or unlawful or unnecessary coercion against an individual. 
Chile, Third periodic report to the Committee against Torture, 28 October 2002, UN Doc. CAT/C/39/Add.14, submitted 18 February 2002, § 116.
Chile also stated:
[S]since 1995 the Code of Professional Ethics has been in force. These are regulations which are binding on Investigaciones [Investigations] Police officers. Article 3 of the Code states: “In the performance of their duties, Chilean Investigaciones Police officers shall respect and protect the dignity of persons and human rights. In no circumstances may the police investigator inflict, instigate or tolerate any type of physical or psychological ill-treatment of persons with the aim of obtaining information or confessions in order to clarify offences. Unlawful, inhuman or degrading treatment or torture may not be accepted in any circumstances. …”. 
Chile, Third periodic report to the Committee against Torture, 28 October 2002, UN Doc. CAT/C/39/Add.14, submitted 18 February 2002, §91.
Chile further stated:
The regulations relating to states of emergency were amended in 1989. One of the changes made through the constitutional reform of that year permitted … applications for protection, which safeguards a person’s right to protection from physical and mental injury, during states of alert and states of siege, the first relating to situations of external war and the second to internal war or internal disturbances. 
Chile, Third periodic report to the Committee against Torture, 28 October 2002, UN Doc. CAT/C/39/Add.14, submitted 18 February 2002, § 49; see also § 55(a).
Chile
In 2004, during the consideration of the third periodic report of Chile before the Committee against Torture, a representative of Chile stated:
[T]he definition of the offence of torture in the Chilean Penal Code (art. 150) might give the impression that it [does] … not correspond to that given in the first article of the Convention [1984 Convention against Torture], as it … [is] separated into three different parts: the old article 150, which … [makes] only indirect reference to torture, and the two new provisions (arts. 150 A and 150 B), which … [contain] the elements of the definition. According to the Penal Code, the perpetrators of the offence of torture … [can] be not only public servants but also any other persons who committed such acts. Torture and ill-treatment … [can] be inflicted in respect of a person deprived of his liberty, but the physical place where torture … [can] be committed … [is] not limited to prison compounds or detention centres.  
Chile, Statement by the delegation of Chile before the Committee against Torture during the consideration of the third periodic report of Chile, 21 May 2004, UN Doc. CAT/C/SR.605, § 5.
Chile
In 2006, in its fifth periodic report to the Human Rights Committee, Chile stated:
126. The offence of torture together with penalties commensurate with its gravity did not exist in Chilean criminal legislation until the reform of the Criminal Code in July 1998. Prior to this reform, torture was not a criminal offence. In order to punish acts constituting torture, recourse was had to article 150 of the Criminal Code, which punished persons who “order or unduly prolong the incommunicado detention of unconvicted prisoners, cause them physical suffering or treat them with unnecessary severity”, and also persons who “arbitrarily cause them to be arrested or detained in places other than those designated by law”. These offences cover physical harm only and do not provide for the possibility that torture may involve acts causing psychological harm.
127. As a result of the reform, article 150 A was added to the Criminal Code, laying down specific punishments for the offence of torture by establishing appropriate penalties for public employees who practise it. The provision covers physical and mental harm and punishes anyone who orders torture, consents to its use or, being aware of the situation, does not prevent or put a stop to it when he or she has the power to do so.
128. Article 330 of the Code of Military Justice, which is applicable to personnel of the armed forces and the Carabineros [police], punishes all such personnel who “in executing an order from a superior or in the exercise of their military duties employ, or cause to be employed, without due reason, unnecessary violence in the execution of the acts which they are required to perform”. …
131. Under the new Code of Criminal Procedure, accused persons enjoy various rights from the moment proceedings are initiated … One such right is the right “not to be subjected to torture or other cruel, inhuman or degrading treatment”. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, §§ 126–128 and 131; see also §§ 133 and 149.
[footnotes in original omitted]
Chile
In 2006, in its fifth periodic report to the Human Rights Committee, Chile stated:
126. The offence of torture together with penalties commensurate with its gravity did not exist in Chilean criminal legislation until the reform of the Criminal Code in July 1998. Prior to this reform, torture was not a criminal offence. In order to punish acts constituting torture, recourse was had to article 150 of the Criminal Code, which punished persons who “order or unduly prolong the incommunicado detention of unconvicted prisoners, cause them physical suffering or treat them with unnecessary severity”, and also persons who “arbitrarily cause them to be arrested or detained in places other than those designated by law”. These offences cover physical harm only and do not provide for the possibility that torture may involve acts causing psychological harm. [Footnotes omitted.]
127. As a result of the reform, article 150 A was added to the Criminal Code, laying down specific punishments for the offence of torture by establishing appropriate penalties for public employees who practise it. The provision covers physical and mental harm and punishes anyone who orders torture, consents to its use or, being aware of the situation, does not prevent or put a stop to it when he or she has the power to do so. …
128. Article 330 of the Code of Military Justice, which is applicable to personnel of the armed forces and the Carabineros [police], punishes all such personnel who “in executing an order from a superior or in the exercise of their military duties employ, or cause to be employed, without due reason, unnecessary violence in the execution of the acts which they are required to perform”. …
131. Under the new Code of Criminal Procedure, accused persons enjoy various rights from the moment proceedings are initiated … One such right is the right “not to be subjected to torture or other cruel, inhuman or degrading treatment”. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, §§ 126–128 and 131; see also §§ 133 and 149.
China
During the Chinese civil war, the People Liberation Army’s (PLA) policy forbade the killing, torture and insulting of prisoners of war. 
China, Political Report on the United Government to the 7th Plenary Session of National Representatives of the Chinese Communist Party by Mao Zedong, 24 April 1945, Selected Works of Mao Zedong, Vol. 4, The People’s Press, Beijing, p. 1039.
The same policy was adopted in the context of the conflict between China and Japan. 
China, Instruction on Implementing the Works of Land Reform and Consolidation of the Party by Deng Xiaoping, 6 June 1948, Selected Works of Deng Xiaoping, Vol. 1, The People’s Press, Beijing, p. 122.
In an interview conducted by a British journalist in 1937, the Chairman of the Chinese Communist Party stated:
We still leniently treat the captured ordinary Japanese soldiers and those lower ranking officers who were forced to fight, they shall not be insulted or condemned and would be set free after being informed of the consistency of the interests of the Japanese and the Chinese people. 
China, Mao Zedong talking with British journalist Bertram on 25 October 1937, Selected Works of Mao Zedong, Vol. II, Foreign Language Press, Beijing, 1967, pp. 47–59.
China
In 2004, in a white paper on “Progress in China’s Human Rights Cause in 2003”, China stated:
Public security organs have practiced strict enforcement of the law and emphasized law enforcement in the interests of the people. They have … firmly dealt with violations of human rights involving the extortion of confessions by torture … and seriously dealt with law and discipline violations, so as to ensure that law enforcement by public security organs is strict, just and humane, and to protect and guarantee human rights. 
China, White Paper of the Government of the People’s Republic of China: Progress in China’s Human Rights Cause in 2003, March 2004.
China
In 2005, in a white paper on “China’s Progress in Human Rights in 2004”, China stated:
Since May 2004, the Supreme People’s Procuratorate has carried out a special campaign to severely deal with criminal cases involving government functionaries’ infringement upon human rights by misusing their powers, focusing on cases of illegal detention and search, extorting confessions by torture, gathering evidence with violence, [and] abusing people in custody. 
China, White Paper of the Government of the People’s Republic of China: China’s Progress in Human Rights in 2004, April 2005.
Croatia
In 2001, in its third periodic report to the Committee against Torture, Croatia stated:
Even in the case of a direct threat to the existence of the State, the implementation of the constitutional provisions cannot be restricted regarding … the prohibition of torture and other cruel or degrading treatment or punishment. 
Croatia, Third periodic report to the Committee against Torture, 22 July 2002, UN Doc. CAT/C/54/Add.3, submitted 3 December 2001, § 9; see also § 23.
Croatia
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated:
Not even in the case of an immediate threat to the existence of the State may restrictions be imposed on the application of the provisions of the Constitution concerning the … prohibition of torture, cruel or degrading treatment or punishment. 
Croatia, Second periodic report to the Human Rights Committee, 2 December 2008, UN Doc. CCPR/C/HRV/2, submitted 28 November 2007, § 70.
Cuba
In 2009, in a statement before the Sixth Committee of the UN General Assembly on the obligation to extradite or prosecute and treaties over time, the representative of Cuba stated:
The Cuban delegation would like to emphasise that the obligation to extradite or prosecute is aimed at combating impunity, by ensuring that persons accused of certain crimes are denied safe haven and are brought to trial for their criminal acts.
… [I]n the case of certain crimes of the most serious nature, [the obligation to extradite or prosecute] has acquired a character that may be considered customary.
Some of the crimes that include this obligation include genocide, war crimes, crimes against humanity … [and] torture. 
Cuba, Statement by the representative of Cuba before the Sixth Committee of the UN General Assembly on Item 81: Report of the International Law Commission on the Work of its 64th Session – Part IV: The Obligation to Extradite or Prosecute and Treaties Over Time, 2 November 2009, p. 1.
Cuba
In 2010, in its second periodic report to the Committee against Torture, Cuba stated:
53. Given the definition of torture contained in article 1 of the Convention, any act of torture is prohibited and punishable under Cuban law. Actions involving torture are punishable under various sections of the Criminal Code in relation to a wide range of offences, such as:
(g) Maltreatment of prisoners of war (Military [Criminal Code (1979)], art. 42.1); violence against the population in a region of military operations (art. 44.1); dishonourable conduct (art. 36); looting (art. 43.1).
104. Article 42.1 of the Military [Criminal Code] provides that “any person who seriously mistreats a prisoner of war” is liable to a penalty of six months’ to three years’ imprisonment. Article 42.2 of that Act provides that “the same penalty shall apply to anyone who mistreats an injured prisoner in any way (…)”.
105. Article 36 of the Military [Criminal Code] includes the offence of dishonourable conduct, and provides that any member of the armed forces who commits an act which, while not constituting torture, may constitute ill treatment of another person is liable to a penalty of between three months’ and three years’ imprisonment.
108. Article 44.1 of the Military [Criminal Code], which establishes the offence of violence against the civilian population in a region of military operations, provides that “Anyone who performs acts of violence against the civilian population in a region of military operations … is liable to a penalty of one to eight years’ imprisonment”. Paragraph (2) of this article establishes that if such acts are performed repeatedly or with cruelty, or cause considerable material damage, the penalty shall be between eight and 20 years’ imprisonment or death.
109. In the case of offences committed as a prisoner of war, article 47.1 of the Military [Criminal Code] establishes that “a prisoner given a position of authority who performs acts of violence against the other prisoners, or mistreats them, shall be liable to a penalty of between five and 20 years’ imprisonment”. Paragraph (2) of this article increases the penalty to between eight and 20 years’ imprisonment, or death, “if serious injury or death of a prisoner results from the acts described in paragraph (1)”. 
Cuba, Second periodic report to the Committee against Torture, 22 March 2011, UN Doc. CAT/C/CUB/2, submitted 18 January 2010, §§ 53(g), 104–105 and 108–109.
Democratic Republic of the Congo
In 2005, in its third periodic report to the Human Rights Committee, the Democratic Republic of the Congo stated:
56. Article 134, paragraphs 1 and 3, of the transitional Constitution provide that: “In accordance with the provisions of article 73 of the present Constitution, the President of the Republic declares war on a decision of the Council of Ministers on the recommendation of the National Defence Council and authorization of the National Assembly and Senate. The rights and duties of citizens in time of war or in the event of invasion or attack on the country by foreign forces shall be governed by an organization act.”
57. Although the Constitution does not explicitly state which rights may be derogated from, in the event of the proclamation of a state of war or emergency, by constitutional tradition there is no authorization for derogation from the following fundamental rights: the right to life, the right to physical integrity (right not to be tortured), the right to equality, the right not to be kept in slavery or servitude, the right not to be imprisoned for acts of commission or omission which did not constitute offences when they were perpetrated, freedom of thought, conscience and religion, and recognition of legal personality. 
Democratic Republic of the Congo, Third periodic report to the Human Rights Committee, UN Doc. CCPR/C/COD/2005/3, 3 May 2005, §§ 56–57.
Denmark
In 2006, in a report on the detention and transfer of persons in Afghanistan in 2002, Denmark’s Ministry of Defence stated: “Anyone who is detained, whatever his status under the Geneva Conventions, must as a minimum be treated humanely, this includes not being subjected to torture or other forms of mistreatment.” 
Denmark, Report on Factual and Legal Matters Relating to Danish Forces’ Detention and Transfer of Persons in Afghanistan in the First Half of 2002, Ministry of Defence, 13 December 2006, p. 2.
The Ministry further stated:
International humanitarian law contains in Additional Protocol I to the Geneva Conventions a series of basic fundamental guarantees which apply to any person in a conflicting party’s custody. The persons to whom it applies, for example people who do not have the status of prisoners of war, must always be treated humanly and guaranteed right to personal integrity, honour, belief and religion. The following acts, which involve violence against persons’ life, health or physical or mental well being, are without exception prohibited, this is regardless of whether they relate to civilian or military officials:
- Torture of any kind, physical or mental
- Violation of personal dignity, in particular by humiliating and degrading treatment. 
Denmark, Report on Factual and Legal Matters Relating to Danish Forces’ Detention and Transfer of Persons in Afghanistan in the First Half of 2002, Ministry of Defence, 13 December 2006, p. 3.
On the possibility of transferring detainees to another State, the Ministry stated:
In relation to transfer to other states, under Article 12 of the Third Geneva Convention, prisoners of war can be transferred to another state if that state has acceded to the Convention, and if it is assessed that this state has the willingness and ability to bring its provisions into effect. A similar provision for the transfer of civilians is found in Article 45 of the Fourth Geneva Convention. The state that transfers a detainee is therefore obliged by international law to ensure that the state to which the detainee is transferred has both the willingness and ability to bring its provisions into effect.
For example, there can be no doubt that one cannot transfer prisoners of war or civilians to another state if there are specific reasons to believe that they will be subjected to torture, because it is, as mentioned, forbidden to expose both combatants or civilians to torture under the Third and Fourth Geneva Conventions. This must be regarded as one of the key obligations under the Conventions.  
Denmark, Report on Factual and Legal Matters Relating to Danish Forces’ Detention and Transfer of Persons in Afghanistan in the First Half of 2002, Ministry of Defence, 13 December 2006, pp. 4–5.
The Ministry concluded:
In summary, it can be concluded that the Danish forces detained and handed over a total of 34 persons to the Americans in connection with two operations – on 13 February and 17 March 2002. All persons detained by the Danish Special Forces were subsequently released in Afghanistan. … Finally, it can be concluded that no person held by the Danish Special Forces at any time had the status of prisoner of war. It should also be noted that the issue of detainees’ legal status had no effect on the protection against torture and other inhuman or degrading treatment, which they were entitled to under international humanitarian law. 
Denmark, Report on Factual and Legal Matters Relating to Danish Forces’ Detention and Transfer of Persons in Afghanistan in the First Half of 2002, Ministry of Defence, 13 December 2006, p. 15.
Djibouti
In 1998, in its initial report to the Committee on the Rights of the Child, Djibouti stated: “By law, the child enjoys the same protection against torture or other cruel, inhuman or degrading treatment or punishment as any person.” 
Djibouti, Initial report to the Committee on the Rights of the Child, 3 August 1998, UN Doc. CRC/C/8/Add.39, submitted 17 February 1998, § 48; see also § 50.
Djibouti
In 2007, in its second periodic report to the Committee on the Rights of the Child, Djibouti stated: “Criminal legislation provides for sentences of 15 years’ imprisonment for torture or acts of barbarism (art. 324); it is an aggravating circumstance when the victim is a minor under 15 years of age (art. 325).” 
Djibouti, Second periodic report to the Committee on the Rights of the Child, 11 December, UN Doc. CRC/C/DJI/2, submitted 26 October 2007, § 138.
Djibouti
In 2010, in its initial report to the Committee against Torture, Djibouti stated:
46. Following independence in 1977, Djibouti experienced a difficult period of internal tension, which led to a visible, steady rise in violations of human rights and individual freedoms. This state of affairs reached its height during the civil war between government forces and the armed opposition of the Front pour la restauration de l’unité et de la démocratie [Front for the restoration of unity and democracy] (FRUD).
47. With the signing of peace agreement between the warring parties in 1994 and again in 2001, the human rights situation improved dramatically. …
50. … [A]ctions have been taken to abolish torture and other cruel, inhuman or degrading treatment. These include:
- The dismantling of Villa Christophe, the infamous detention centre where, in the past, anyone suspected of engaging in subversive political activity or holding anti-government views was systematically tortured;
- Efforts to eliminate … ill-treatment in police stations, military police barracks and army and other camps, through a policy of staff training and awareness raising on human rights;
82. Article 40 of the 1992 Constitution provides that
when the institutions of the Republic, the independence of the nation, the integrity of its territory or the fulfilment of its international commitments are threatened and the regular functioning of the governmental authorities is interrupted, the President of the Republic may, after consulting the President of the National Assembly and the President of the Constitutional Council and after informing the nation in a message, take any measure, except for a constitutional amendment, designed to restore the regular functioning of the governmental authorities and ensure the safeguarding of the nation.
Within 15 days of their promulgation, the National Assembly, convening as of right, is seized of the legislative measures put into effect by the President, with a view to their ratification.
83. These exceptional measures cannot justify violations of the right to … physical and psychological integrity … accorded to individuals. In theory, their application must be in keeping with administrative legality and human rights. 
Djibouti, Initial report to the Committee against Torture, 18 January 2011, UN Doc. CAT/C/DJI/1, submitted 21 July 2010, §§ 46–47, 50 and 82–83.
Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, under the heading “Basic rules of IHL” and in a section on “Treatment”, stated that “torture and cruel or degrading treatment or punishment are prohibited”. 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 194.
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training, under the heading “[O]ffences related to violations of humanitarian law”, listed “torture and inhumane treatment”. 
Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 210.
Under the heading “Codes and wisdom”, the ministry also stated: “Humiliation is prohibited.” 
Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 214.
The ministry further stated that “one of the objectives of the judicial system is to prevent abuse by demonstrating that violations such as … torture … will not go unpunished (fear of prosecution).” 
Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 222.
Egypt
In a note submitted to the ICRC in 1967, Egypt qualified “torture of captives, wounded and civilians by barbaric means” as a “flagrant violation of the elementary principle of humanity, and a serious breach of the laws of war and the Geneva Conventions of 1949”. 
Egypt, Note to the International Committee of the Red Cross, 7 July 1967, annexed to Letter dated 17 July 1967 to the UN Secretary-General, UN Doc. S/8064, 17 July 1967, p. 3, §§ 1 and 1(B).
El Salvador
In 2007, in its second periodic report to the Committee against Torture, El Salvador stated:
The Office of the Inspector-General of the National Civil Police reported that when inspecting police units it did not observe any systematic use of torture during questioning, noting that the National Civil Police Organization Act, chapter IV (Code of Conduct), article 13, paragraph 4, states:
No police officer may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment; and may not invoke the order of a superior or special circumstances such as a state of war or the threat of war, a threat to national security, domestic political instability or any other public emergency as a justification for torture or other cruel, inhuman or degrading treatment or punishment.
Any officer who violates this provision is subject to disciplinary investigation and proceedings, depending on the gravity of the offence, generally leading to disciplinary sanctions. 
El Salvador, Second periodic report to the Committee against Torture, 12 December 2007, UN Doc. CAT/C/SLV/2, submitted 23 July 2007, § 91.
Finland
In 2003, in its fifth periodic report to the Human Rights Committee, Finland stated:
111. The Emergency Powers Act (1080/1991) requires that the basic necessities of the population, the maintenance of law and order and the protection of the territorial integrity and independence of Finland be ensured in emergency situations … The Emergency Powers Act may not be applied with a view to restricting the right to life and integrity of person. Furthermore … no one may be subjected to inhuman or degrading treatment …
Prohibition of torture and other cruel, inhuman or degrading treatment and punishment
125. Section 7, subsection 2, of the Constitution provides for a prohibition of death penalty, torture and other inhuman treatment, supplementing the general provision guaranteeing integrity of person. Although the repealed Constitution Act of Finland did not contain any explicit provision guaranteeing the right to human treatment, the right to integrity of person was also meant to provide protection against such inhuman treatment as would be carried out by interference with the physical integrity of a person without his or her consent. The specific prohibition of torture in the existing Constitution underlines that treatment inflicting physical or mental suffering upon a person may not be allowed in any circumstances.
126. The prohibition of inhuman treatment refers to both physical and mental treatment. The provision is meant to cover any forms of cruel, inhuman or degrading treatment or punishment. The wording of the provision corresponds to the provisions of Article 7 of the Covenant and those of Article 3 of the European Convention on Human Rights.
127. The prohibition of inhuman treatment has further been taken into account in the provisions of the Aliens Act relating to expulsion. 
Finland, Fifth periodic report to the Human Rights Committee, 24 July 2003, UN Doc. CCPR/C/FIN/2003/5, submitted 17 June 2003, §§ 111 and 125–127.
Finland
In 2003, in its third periodic report to the Committee on the Rights of the Child, Finland stated:
H. The right not to be subjected to torture or other form[s] of cruel, inhuman or degrading treatment or punishment (art. 37 (a) [of the Convention on the Rights of the Child])
247. Finland does not accept torture in any form. Prohibition of torture is absolute and no exceptions to this prohibition are possible in any circumstances. In accordance with the Constitution of Finland, no one may be sentenced to death, tortured or otherwise treated in a manner violating human dignity. Capital punishment in times of peace was removed from the Finnish penal system in 1949 (Act 728/1949) and totally in 1972 (Act 343/1972). The prohibition of treatment violating human dignity applies to both physical and mental treatment.
250. The Government of Finland considers it important that the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment be enforced as soon as possible. 
Finland, Third periodic report to the Committee on the Rights of the Child, 5 January 2005, UN Doc. CRC/C/129/Add.5, submitted 26 November 2003, §§ 247 and 250.
France
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.” 
France, Etat-major de la Force d’Action Rapide, Ordres pour l’Opération Mistral, 1995, Section 6, § 63.
France
In 2005, in its third periodic report to the Committee against Torture, France stated:
Article 2
Paragraph 1
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. ...
Paragraph 2
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.
...
Article 16
Paragraph 1
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.  
France, Third periodic report to the Committee against Torture, UN Doc. CAT/C/34/Add.19, 10 January 2005, submitted 7 November 2003, §§ 14, 16–21 and 225.
France
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, Fourth to sixth periodic reports to the Committee against Torture, 23 July 2009, UN Doc. CAT/C/FRA/4-6, submitted 30 June 2008, paras 170–171, 174–176 and 178.
Georgia
In 2012, in its fourth periodic report to the Human Rights Committee, Georgia stated:
During the reporting period, the Government of Georgia has been consistently continuing its policy aimed at ensuring full enjoyment of the rights provided in the Covenant for the entire State population. To this end, the obstacles of outstanding gravity were imposed by the war with the Russian Federation in August 2008 and subsequent occupation of two regions – Abkhazia, Georgia and the Tskhinvali region/South Ossetia, Georgia. From the early 2008, the security and human rights situation in the mentioned regions tangibly aggravated … The terrorizing and discriminatory acts included, but were not limited to the occasional incidents of armed attacks on the ethnic Georgian villages [and] instances of … ill-treatment of their residents[.] 
Georgia, Fourth periodic report to the Human Rights Committee, 1 November 2012, UN Doc. CCPR/GEO/4, submitted 25 June 2012, § 3.
Germany
In 2003, in a speech before the UN Commission on Human Rights, Germany’s Federal Minister for Foreign Affairs stated:
In spite of all efforts to outlaw torture worldwide, the extent to which it is practised is still horrifying. It is a matter of concern that a growing number of states tacitly or even explicitly tolerate the use of torture in the fight against terrorism. The prohibition of torture is absolute. Even in extreme situations there can be no exceptions. To put this clearly: any legitimation of torture would undermine the foundation established by decades of hard work aimed at enshrining human rights in international law. 
Germany, Speech by Joschka Fischer, Federal Minister for Foreign Affairs, at the UN Commission on Human Rights, 25 March 2003.
Germany
In 2005, in a speech at the UN Commission on Human Rights, Germany’s Federal Minister for Foreign Affairs stated:
One of the global challenges outlined in the report by the High-level Panel is international terrorism with its totalitarian ideology. All forms of this major threat which again claimed countless lives in the last 12 months – I am thinking here of the horrific tragedy in Beslan or the almost daily attacks in Iraq – must be fought resolutely.
However, experience in recent years shows that terrorism can only be combated successfully with human rights – not without or even against them. Terrorists must not be allowed to force us to question our own values. Human rights norms must retain their full validity. This is true, above all, of the ban on torture which is absolute and must on no account be watered down. 
Germany, Speech by Joschka Fischer, Federal Minister for Foreign Affairs, at the UN Commission on Human Rights, 22 March 2005.
Germany
In 2005, in its Annual Disarmament Report 2004, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
A proposal by the European Commission for a Council Regulation concerning trade in certain equipment which can be used for capital punishment, torture or other human rights violations, first submitted in December 2002 and amended in May 2004, provides prohibitions or licensing obligations regarding exports or imports of such equipment. Germany strongly supports the aim of this proposal as a contribution to the protection of human rights. For a part of that equipment Germany domestically has already introduced a licensing requirement for exports and thereby leads the way in Europe. 
Germany, Federal Government, Annual Disarmament Report 2004, 17 June 2005, p. 38.
Germany
In 2005, in its Seventh Human Rights Policy Report, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
Despite the use or threat of torture being contrary to international law (Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights) and despite long-time efforts to ban it globally, the magnitude of this human rights violation is still appalling …
Against the background of the public debate whether and in which circumstances exceptions to the prohibition on torture might be justified, the Federal Government has repeatedly taken an unequivocal position and in this context has made clear that the prohibition on torture and on inhuman and degrading treatment is absolute and applies without exception also in states of emergency.
The case of the former deputy chief of the Frankfurt police Wolfgang Daschner, who gave instructions to threat a suspect with infliction of pain during an interrogation, caused a stir both in Germany and abroad and led to a contentious public debate on the prohibition on torture.
Object of the public discussion in Germany was the question whether and in which circumstances exceptions on the prohibition on torture might be justified. The Federal Government in this context made clear in unequivocal terms that the prohibition on torture and inhuman and degrading treatment applies absolutely, i.e. without exception also in states of emergency. The Federal Government is of the conviction that the prohibition on torture is one of the elementary and inalienable basic and human rights of the international community of States. The prohibition on torture is today recognized as ius cogens under customary international law and has been incorporated in numerous human rights treaties.
The Federal Government therefore welcomes that the decision of the Regional Court Frankfurt/Main of 20 December 2004 in the case Daschner clarified that there were no legal grounds justifying the behaviour of the deputy chief of police and his colleague.
Apart from military equipment and dual-use goods, German law on foreign trade provides for a licensing requirement also for the export of certain goods which can be used for violations of human rights, such as for example electric-shock batons and devices … In contrast to other EU member States, Germany thereby already has established domestic control provisions. On the European level, there are currently negotiations on a proposal by the European Commission, first submitted in December 2002 and then again in June 2004, for a Council Regulation concerning trade in certain equipment which can be used for capital punishment, torture or other human rights violations … Germany strongly supports the objective of the Commission’s proposal and in the context of the negotiations actively participates in its drafting and finalization. The aim is to adopt a binding Regulation, directly applicable in all member States in 2005.
3. Priorities of the German human rights policy 2005–2006
3.2. Fighting against torture and enforced disappearance
The Federal Government will commit itself emphatically to respect for the absolute prohibition on torture …
3.20. Applying human rights as a criterion in foreign trade
In order to avoid that traded goods and services are used to commit or facilitate human rights violations abroad, respect for human rights is relevant to the Federal Government also in the context of foreign trade. It will therefore
- promote the “EU Council Regulation concerning trade in certain equipment and goods which can be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment”, so it can be adopted as soon as possible. 
Germany, Federal Government, Seventh Human Rights Policy Report, 17 June 2005, pp. 38, 41–42, 105, 201 and 206.
Germany
In 2006, in a report in response to a request by the Parliamentary Control Panel (parliamentary body controlling intelligence services) regarding incidents relating to the Iraq war and the fight against international terrorism, Germany’s Federal Government stated:
2. Capture and transport of detainees by foreign authorities outside a formal legal procedure; reports of secret prisons and torture
abb) Assessment of the allegations under international law by the Federal Government
All measures taken to fight international terrorism must be in accordance with international law. Resolution 1566 (2004), unanimously adopted in the UN Security Council on 8 October 2004, in this context reminds States:
“that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law” (preambular paragraph 6).
The obligation to adhere to international law also applies when States, fighting off a terrorist attack, an ongoing terrorist attack or an imminent attack, in a legally permissible manner invoke the right to self-defence according to Article 51 of the UN Charter.
If the right to self-defence is exercised in the context of an armed conflict, the rules of international humanitarian law, in particular the law of the 1949 Geneva Red Cross Conventions as well as the minimum human rights standards are to be respected. When fighting international terrorism outside an armed conflict, the rules of peacetime international law, in particular those on the protection of human rights, apply. This can lead to differing international law bases for capture, detention and the treatment of detainees.
With regard to the five following thematic issues, the details of the position of the Federal Government under international law are:
Prohibition on torture
The prohibition on torture and other cruel, inhuman or degrading treatment is part of indispensable customary international law. It demands absolute application, i.e. under no circumstances are exceptions permitted.
In a series of conventions, the prohibition on torture and other cruel, inhuman or degrading treatment is anchored also as international treaty law. Mention is to be made in particular of the 1966 International Covenant on Civil and Political Rights, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1950 European Convention on Human Rights and the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The prohibition on torture and other cruel, inhuman or degrading treatment expressly also applies to persons detained in armed conflicts, i.e. both for prisoners of war and civilian internees.
The prohibition on torture and other cruel, inhuman or degrading treatment is absolutely “emergency-safe”, also in connection with the interrogation of terrorists. This has, not least, been confirmed by the European Court of Human Rights in the case Ireland v. United Kingdom (judgment of 18 January 1978, Series A 25, No. 163), with regard to interrogation techniques of British security authorities dealing with suspected terrorists.
On the occasion of the public discussion in Germany regarding the case of the deputy chief of the Frankfurt police, the Federal Government has made clear in unequivocal terms that the prohibition on torture and inhuman or degrading treatment applies absolutely, i.e. without exception also in states of emergency. The Federal Government is of the conviction that the prohibition on torture is one of the elementary and inalienable basic and human rights of the international community of States.
Like the Federal Republic of Germany, the United States is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, which in its Article 1 defines the term “torture” and in its Article 16 the term “other cruel, inhuman or degrading treatment”.
When ratifying the Convention, the United States made an interpretative declaration regarding its Article 1 and made a reservation against the prohibition on “cruel, inhuman and degrading treatment” in its Article 16. For years, inter alia the Committee Against Torture, the treaty body of the Convention against Torture, has criticized the declaration and the reservation.
The United States has, however, never contested the applicability of the Torture Convention also outside the US territory, i.e. for example in US prisons in Cuba, Iraq or Afghanistan. It also has never questioned the prohibition on deportation in view of a risk of torture (“non-refoulement”).
g) Procedure for future questioning by members of German intelligence services of persons detained abroad by local security authorities
Questioning persons detained abroad is an indispensable element of the acquisition of information by intelligence services for the clarification of dangers stemming from international terrorism …
Questioning by the intelligence services takes place independently of measures of consular assistance and formal examinations in the context of international assistance in criminal matters; they serve the acquisition of information relevant for the intelligence services. Such questioning does not aim to introduce the information gathered into criminal law proceedings.
Already in the past, questionings have taken place in close coordination with the competent security authorities of the States concerned. Voluntariness and express consent of the persons concerned are indispensable requirements. A questioning does not take place if in the individual case there are concrete indications that the person concerned is subjected to torture in the country where he finds himself. If something indicating this arises during the questioning, the questioning is immediately cancelled. 
Germany, Federal Government, Report in response to request by Parliamentary Control Panel (2006), 23 February 2006, pp. 55, 69–70, 73–75 and 82–83.
Germany
In 2006, in its Annual Disarmament Report 2005, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
During the period under report, the proposal by the European Commission for a Council Regulation concerning trade in certain equipment which can be used for capital punishment, torture or other human rights violations, submitted in 2002, has been adopted on 27 June 2005 after thorough consultations in which Germany was closely involved (Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, Official Journal of the European Union, L 200/1, 30 July 2005). The Regulation will come into force on 30 June 2006 and provides prohibitions or licensing requirements for the ex-/import of such goods. For a part of these goods Germany domestically had already introduced a licensing requirement for exports and thereby led the way in Europe. By adopting the Regulation a directly applicable rule binding in all member States has now been created. The adoption of the Regulation, whose aims Germany strongly supports, is a decisive, concrete step towards the protection of human rights and is a practical consequence of the implementation of the guidelines on the abolishment of torture and the death penalty, adopted by the EU and the United Nations. 
Germany, Federal Government, Annual Disarmament Report 2005, 12 May 2006, p. 32.
Germany
In 2006, in its Report on the Cooperation between the Federal Republic of Germany and the United Nations in the Years 2004 and 2005, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
Focal points of the Federal Government in the furtherance of civil and political rights in the context of the United Nations are, inter alia, the fight against torture and capital punishment. Together with the EU partners, the Federal Government had actively participated in the development of an optional protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The objective of the “Optional Protocol to the Convention against Torture” (OPCAT) is to create preventative mechanisms by establishing independent international and national control bodies at places where persons are deprived of their liberty. Although currently neither on the federal level nor on the Länder level bodies exist which would fulfill the requirements of the Optional Protocol, it has in the meantime been possible to come to an agreement with the Länder based on a model developed by the Federal Government. On 20 September 2006, Federal Minister of Foreign Affairs Steinmeier signed the OPCAT for Germany in New York … In the period under report Germany together with the EU partners co-sponsored resolutions against torture both in the Commission on Human Rights and in the General Assembly, and in 2004 successfully advocated an extension of the mandate of the special rapporteur on torture for further three years. 
Germany, Federal Government, Report on the Cooperation between the Federal Republic of Germany and the United Nations in the Years 2004 and 2005, 7 December 2006, p. 33.
Germany
In 2007, in its Annual Disarmament Report 2006, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
The Council Regulation concerning trade in certain equipment which can be used for capital punishment, torture or other human rights violations (Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, Official Journal of the European Union, L 200/1, 30 July 2005) has come into force on 30 June 2006. It provides prohibitions or licensing requirements for the ex-import of such goods. For a part of these goods Germany domestically had already introduced a licensing requirement for exports and thereby led the way in Europe. This Regulation now has created a directly applicable binding rule in all member States. With the 76th Ordinance Amending the Foreign Trade and Payments Ordinance of 13 June 2006 and the 105th Ordinance Amending the Export List of 10 July 2006, the necessary adaption of the national legislation has taken place. The adoption of Council Regulation (EC) No 1236/200[5] is a decisive, concrete step towards the protection of human rights and is a practical consequence of the implementation of the guidelines on the abolishment of torture and the death penalty, adopted by the EU and the United Nations. 
Germany, Federal Government, Annual Disarmament Report 2006, 27 April 2007, pp. 34–35.
Hungary
In 2004, in its second periodic report to the Committee on the Rights of the Child, Hungary stated:
221. According to the Constitution, nobody is to be subjected to torture or cruel, inhuman or humiliating treatment or punishment.
226. Act XXXIV of 1994 on the police also stipulates the prohibition of torture, extorting testimonies, and cruel, inhuman or humiliating treatment in line with international requirements, and regulates the most important guarantee provisions applicable to the use of means of extortion at the level of laws. According to the law, police officers shall not use torture, extortion of testimonies, or cruel, inhuman or humiliating treatment and shall refuse instructions to this effect given by their superiors. In addition, police officers shall take measures against persons exhibiting such behaviour for the sake of prevention, and initiate legal proceedings and investigations. Pursuant to the Decree of the Minister of the Interior No. 19/1995 on the procedures in police jails, the detainee shall be treated with respect for his human dignity in the course of any action. It is prohibited to subject detainees to torture or to treat them in a cruel, inhuman or humiliating way. No medical experiments or scientific tests may be performed on detainees, even with their consent. 
Hungary, Second periodic report to the Committee on the Rights of the Child, 24 May 2005, UN Doc. CRC/C/70/Add.25, submitted 17 February 2004, §§ 221 and 226; see also §§ 517 and 522.
Hungary
In 2004, in its fourth periodic report to the Committee against Torture, Hungary stated:
121. Section 16, subsection 3, of the Police Act and section 11, subsection 3, of Act CVII of 1995 on the organization of penitentiary institutions expressly prohibit torture and inhuman treatment.
122. Section 16, subsection 3, of the Police Act provides: “Members of the police shall not use torture, forced interrogation, cruel, inhuman or degrading treatment. They shall deny compliance with orders to this effect. In order to prevent such conduct members of the police shall take measures against the performer of such conduct without regard to post, rank or person.”
123. Section 11, subsection 3, of Act CVII of 1995 on the organization of penitentiary institutions provides: “When taking measures members of the penitentiary shall not use torture, forced interrogation, inhuman or degrading treatment. They shall deny compliance with orders to this effect. Members of the staff shall call upon the performer of such conduct to stop his conduct immediately, they shall be entitled to take measures or report to the person authorized to take measures.”
124. Torture within the meaning of the Convention violates section 226 (ill-treatment in official proceedings) or 227 (forced interrogation) of the Hungarian Criminal Code. If in addition to these offences bodily assault is also committed, the conduct is evaluated as constituting a cumulative crime.
126. In respect of such conduct, or the use of unauthorized bodily force, or orders calling for the commission of bodily assault, it has to be mentioned that official members of the armed forces and the police are supposed to know the legal provisions that govern their operation, rights and obligations. In the case of such offences, a subordinate member of the police or the armed forces shall not successfully allege that he acted upon an order. A knowledge of the above-cited legal provisions and regulations and of the relevant provisions of the Criminal Code is a prerequisite for admission into the service for official members. Therefore, in practice, official members of the police or the armed forces shall not use an excuse of non-familiarity with the relevant laws.  
Hungary, Fourth periodic report to the Committee against Torture, 14 February 2005, UN Doc. CAT/C/55/Add.10, submitted 16 June 2004, §§ 121–124 and 126; see also § 106.
Ireland
In 2008, in a written response to a question on human rights issues, Ireland’s Minister for Foreign Affairs stated:
[US] [c]ommitments are also being sought in regard to the closure of Guantanamo Bay and to the prohibition of intensive interrogation techniques, such as water-boarding, that are internationally considered to constitute torture. These techniques are in clear violation of international human rights and humanitarian law. The closure of Guantanamo Bay has been called for by the Government consistently and from an early point and is now the agreed position of the EU. 
Ireland, Dáil Eireann (House of Deputies), Minister for Foreign Affairs, Written Answers –Human Rights Issues (2), Dáil Eireann debate Vol. 666 No. 3, 11 November 2008.
Ireland
In 2009, in its initial report to the Committee against Torture, Ireland stated:
Irish law does not allow any justification for the use of torture. The Criminal Justice (United Nations Convention against Torture) Act 2000 Act does not provide for a defence in exceptional circumstances such as a state of war or a threat of war, internal political instability or any other public emergency. Ireland, in enacting the Act has given effect to the prohibition of the practice of torture. 
Ireland, Initial report to the Committee against Torture, 26 January 2010, UN Doc CAT/C/IRL/1, submitted 31 July 2009, § 97.
Japan
In 2007, in its initial report to the Committee against Torture, Japan stated:
Article 36 of the Constitution absolutely prohibits the infliction of torture by any public official and cruel punishment, and there is no domestic law that allows anyone to invoke, as a justification of torture, exceptional circumstances such as a state of war, a threat of war, internal political instability or any other public emergency. 
Japan, Initial report to the Committee against Torture, 21 March 2007, UN Doc. CAT/C/JPN/1, submitted 20 December 2005, § 138.
The report also states:
Article 53 of the Immigration Control and Refugee Recognition Act [paragraph 1] stipulates that any person subject to deportation shall be deported to a country of which he is a national or citizen. Paragraph 2 of that Article stipulates that, if a person cannot be deported to such a country as provided for in paragraph 1, such person shall be deported to one of the following countries in accordance with his wishes: … Therefore, when it is judged that there are substantial grounds for believing that he would be in danger of being subjected to torture in the country provided for in paragraph 1 of that Article, his case would fall under the provision of paragraph 2 of that Article where the “person cannot be deported” and therefore he will be deported, in accordance with his wishes, to any one of the countries provided for in paragraph 2. 
Japan, Initial report to the Committee against Torture, 21 March 2007, UN Doc. CAT/C/JPN/1, submitted 20 December 2005, § 22.
The report further states:
Any person who commits an act of torture, including an attempt to commit torture, an act which constitutes complicity or participation in torture, is punishable under the Penal Code and other criminal laws for various offences and their complicity … including violence and cruelty by a special public official or causing death or injury thereby … and depending on the kinds of acts, abuse of authority by a public official, violence, injury, abandonment, arrest, detention, intimidation, and murder, forcible obscenity, rape, coercion and attempts thereof. These offences punish a wider range of acts of torture in that they do not require as their constituent element the “purposes” or “reason” referred to in paragraph 1 of Article 1 of the Convention [against Torture]. In this regard, it can be said that a wider range of acts of torture is punishable. 
Japan, Initial report to the Committee against Torture, 21 March 2007, UN Doc. CAT/C/JPN/1, submitted 20 December 2005, § 31.
Japan
In 2007, in its fifth periodic report to the Human Rights Committee, Japan stated: “In the Japanese legal system torture is strictly prohibited.” 
Japan, Fifth periodic report to the Human Rights Committee, 25 April 2007, UN Doc. CCPR/C/JPN/5, submitted 20 December 2006, § 138.
Jordan
The Report on the Practice of Jordan states that Article 75 of the 1977 Additional Protocol I embodies customary law. 
Report on the Practice of Jordan, 1997, Chapter 5.
Libyan Arab Jamahiriya
In 2006, in its fourth periodic report to the Human Rights Committee, the Libyan Arab Jamahiriya stated: “The Libyan Criminal Code guarantees respect for the human person and prohibits all forms of physical and mental torture.” 
Libyan Arab Jamahiriya, Fourth periodic report to the Human Rights Committee, 10 May 2007, UN Doc. CCPR/C/LBY/4, submitted 5 December 2006, § 25.
Malaysia
In 2012, during the consideration of the status of the 1977 Additional Protocols by the Sixth Committee of the UN General Assembly, a statement of the delegation of Malaysia was summarized by the Committee in its records as follows:
[The delegate of Malaysia] said that … Israel, as the [O]ccupying Power in the Occupied Palestinian Territory, had failed to ensure that the people of Palestine lived a life free of misery, by blatantly disregarding international law, including the [1949] Geneva Conventions … Its list of violations included … mistreatment … [and] torture … of Palestinians in Israeli prisons. 
Malaysia, Statement by the delegation of Malaysia before the Sixth Committee of the UN General Assembly on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 22 October 2012, as published in the summary record of the 15th meeting, 24 December 2012, UN Doc. A/C.6/67/SR.15, § 47.
Mexico
In 2004, in its fourth periodic report to the Committee against Torture, Mexico stated:
The Federal Code of Criminal Procedure was reformed in 1994 to include torture in the category of serious offences; it was also established that “the authorities shall in no event and on no account use solitary confinement, intimidation or torture in order to obtain statements from a suspect or for any other purpose” (art. 289). 
Mexico, Fourth periodic report to the Committee against Torture, 28 February 2005, UN Doc. CRC/C/55/Add.12, submitted 20 December 2004, § 132.
[footnote in original omitted]
Morocco
In 2003, in its third periodic report to the UN Committee against Torture, Morocco stated:
26. “No one may be arrested, detained or punished except in the circumstances and forms provided for by law”; it is in these terms that torture is prohibited by the Constitution (art. 10), which, by making the procedures pertaining to arrest, detention and punishment subject to the provisions of the Criminal Code and the Code of Criminal Procedure, upholds the principle of the prohibition of torture.
33. All acts of violence and assault and battery perpetrated against the person are forbidden under the Moroccan Criminal Code, in particular article 399, which specifically refers to torture. Anyone who engages in torture or acts of barbarity in committing an act classified as a criminal offence is liable to capital punishment. 
Morocco, Third periodic report to the UN Committee against Torture, 21 May 2003, UN Doc. CAT/C/66/Add.1, submitted 23 March 2003, §§ 26 and 33.
Morocco
In 2004, in its fifth periodic report to the Human Rights Committee, Morocco stated:
Moroccan criminal law guarantees the right to security of person in the same way for everyone, providing protection for every person against abuse or ill-treatment, regardless of whether it is at the hands of a government employee (Criminal Code, arts. 224–232) or a private individual (art. 400 et seq.). 
Morocco, Fifth periodic report to the Human Rights Committee, 11 May 2004, UN Doc. CCPR/C/MAR/2004/5, submitted 10 March 2004, § 324.
Morocco
In 2009, in its fourth periodic report to the Committee against Torture, Morocco stated:
Under Moroccan law no orders from a higher authority, exceptional circumstances, state of war or the threat of war, threat to national security, internal political instability or any emergency situation could be used as justification for the use of torture or any other form of cruel, inhuman or degrading treatment. 
Morocco, Fourth periodic report to the Committee against Torture, 5 November 2009, UN Doc. CAT/C/MAR/4, submitted 27 April 2009, § 26; see also § 166.
Nepal
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated: “The accused held in detention shall not be subject to torture or to cruel, inhuman or degrading treatment or punishment.” 
Nepal, Declaration of commitment on the implementation of human rights and international humanitarian law, 26 March 2004, § 8.
Nepal
In 2007, in its comments to the conclusions and recommendations of the Committee against Torture, Nepal wrote:
Recommendations, … [paragraph] 13 [in which the Committee against Torture, having noted the difficult situation of armed conflict faced by Nepal, expressed concern about the large number of consistent and reliable reports concerning the widespread use of torture and ill-treatment by law enforcement personnel, in particular the Royal Nepalese Army, the Armed Police Force and the Police]
… [W]idespread use of torture
2. As far as the allegation of the widespread use of torture i[s] concerned, the democratic government of Nepal does not condone torture of any kind. The laws of the land and the policy of the State are geared to completely ban torture of all kinds. [The] Government does not spare anyone found guilty of [being] involve[ed] in torture … Isolated and sporadic incidents cannot be gen[e]r[a]lized as widespread use of torture. This has to be viewed in the changed context of the country where overall human rights situation has improved fundamentally after April 2006.
Recommendation, [paragraph] 20 [in which the Committee against Torture expressed concern about the frequent use of interrogation methods by security forces that are prohibited by the 1984 Convention against Torture]
Interrogation and detention
10. The government is totally committed to … [adopting] interrogation methods compatible with the provisions of the [1984] Convention [against Torture]. As per the Government Cases Act, 1993, all interrogations are conducted in [the] presence of [the] Government Attorney where there is no room for employing torture or any other methods prohibited by the Convention. Any official[s] found guilty of employing torture have been made subject to stern departmental action.
11. Regular monitoring has been tak[ing] place to prevent and stop any kind of torture …
Recommendation, paragraphs 24 and 25 [in which the Committee against Torture expressed concern about impunity for acts of torture and ill-treatment]
Impunity
21. No cases of torture have been reported after the political change in the country in April 2006 which demonstrates marked improvement in the situation and signifies fundamental change on the ground. Serious and resolute efforts are being made to end all kinds of torture and degrading treatment. The Comprehensive [P]eace Agreement (CPA) signed between the Government and the Nepal Communist party (Maoist) on November 21, 2006 unequivocally prohibits … torture and ill treatment and is committed to end impunity. The Interim Constitution of Nepal, 2007 commenced since 15th of January this year has provided specific rights against torture which prohibits application of torture against any individual under arrest or detention for the investigation of crime or trial or any other reason. Torture shall be made punishable under law and the victim of torture shall be provided with compensation under the laws. … These provisions of the CPA and of the Interim constitution are strong testimonies that the State does not condone torture under any pretension nor is it a state policy to let the perpetrators go with impunity. …
36. The historic Comprehensive [Peace] Agreement [CPA] signed between the Government of Nepal [and the] Communist Party (Maoist) on 21 November 2006 has effectively ended the ten year long conflict. This has resulted in the fundamental improvement in the overall human rights situation in Nepal. 
Nepal, Comments by the Government of Nepal to the conclusions and recommendations of the Committee against Torture, 29 January 2008, UN Doc. CAT/C/NPL/CO/2/Add.1, submitted 1 June 2007, §§ 2, 10–11, 21 and 36.
Netherlands
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”. 
Netherlands, Lower House of Parliament, Explanatory Memorandum to the Act Implementing the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1986–1987 Session, Doc. 20 042, No. 3, pp. 3–4.
Netherlands
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. 
Netherlands, Lower House of Parliament, Letter from the Minister of Foreign Affairs, Handelingen, 2005–2006 Session, 23 December 2005, Docs. 27 925 and 30 300 V, No. 196, p. 3.
Oman
In 2005, in its second periodic report to the Committee on the Rights of the Child, Oman stated: “No one shall be subjected to physical or mental torture, inducement or degrading treatment. The law shall prescribe punishment for those who perpetrate such acts.” 
Oman, Second periodic report to the Committee on the Rights of the Child, 8 May 2006, UN Doc. CRC/C/OMN/2, 28 April 2005, § 23.
Pakistan
In 2001, in its second periodic report to the Committee on the Rights of the Child, Pakistan stated:
Article 14 [of the constitution of Pakistan] states that the “dignity” of man is “inviolable” and that “no person shall be subjected to torture”. Article 11(4) states that no person shall be compelled to do “compulsory service” which is of “a cruel nature or incompatible with human dignity”. Furthermore, articles 9 and 10 speak of the “security of a person” and provide necessary safeguards against arrest and detention. 
Pakistan, Second periodic report to the Committee on the Rights of the Child, 11 April 2003, UN Doc. CRC/C/65/Add.21, submitted 19 January 2001, § 158.
Peru
In 2006, during the consideration of the fourth periodic report of Peru by the Committee against Torture, a representative of Peru stated:
It … [is] hoped that implementation of the first Human Rights Plan 2006–2010 … [will] enable the State institutional framework to be recreated, with particular emphasis on eliminating the practice of torture and other cruel, inhuman or degrading treatment. The new constitutional Government, shortly to be elected … [will] take over the commitments entered into by the current Government, and thus continue and extend its achievements in combating torture. 
Peru, Statement by the delegation of Peru before the Committee against Torture during the consideration of the fourth periodic report of Peru, 9 May 2006, UN Doc. CAT/C/SR.697, § 6.
Another representative of Peru also stated that “under the Constitution all persons had the right to freedom and physical safety and could not be subjected to torture.” 
Peru, Statement by the delegation of Peru before the Committee against Torture during the consideration of the fourth periodic report of Peru, 9 May 2006, UN Doc. CAT/C/SR.697, § 12.
Poland
In 2004, in its fifth periodic report to the Human Rights Committee, Poland stated: “Pursuant to article 40 of the Constitution, no one may be subject to torture or cruel, inhuman, or degrading treatment or punishment.” 
Poland, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/POL/2004/5, 26 January 2004, § 115.
Qatar
In 2005, in its initial report to the UN Committee against Torture, Qatar stated:
45. The use of torture as a policy or instrument of State power is totally prohibited. No State official, be they a civilian or a member of the military, has a licence to commit, or to order others to commit, any act of torture.
46. Likewise, no public official may conceal, authorize or acquiesce in the commission of any form of torture. Any act of torture within the meaning of this Convention shall be deemed illegal under Qatari law. Anyone who commits such an act shall be subject to the criminal penalties prescribed, inter alia, in the Penal Code and other criminal laws.
47. The Islamic sharia totally prohibits acts of torture and other forms of ill-treatment, since such acts are an affront to human dignity, which the religion enjoins us to respect and protect.
48. Since many persons regard acts of torture and closely related practices such as cruel, inhuman or degrading treatment as some of the most repellent and cruellest forms of physical and mental suffering, and since such acts stir up powerful feelings of resentment and disgust in ordinary individuals, the authors of the Constitution of the State of Qatar made sure to write explicit provisions into the Constitution prohibiting and criminalizing torture. Thus, article 36 of the Constitution stipulates: “No one may be subjected to torture or degrading treatment. Torture is an offence which is punishable by law.”
49. This provision is consistent with article 1 of the Convention, insofar as it makes a distinction between torture and acts of lesser gravity which may constitute degrading or inhuman treatment but do not amount to torture. It is clear, then, that the Constitution devotes a special provision to the prohibition of acts of torture, as a separate category of offence.
55. In addition to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the State of Qatar is also a party to other conventions which completely prohibit acts of torture, including the Convention on the Rights of the Child of 1989, the four Geneva Conventions of 1949 and Additional Protocol I of 1977.
56. Prevailing Qatari legislation prohibits and criminalizes torture and other practices which constitute ill-treatment or harsh punishment. According to the Code of Criminal Procedures, no one may be arrested or detained except by order of the competent authorities and under the conditions specified by law. Everyone must be treated in a manner that preserves his or her human dignity and no one may be subjected to physical or mental harm (art. 40).
63. The Penal Code does not overlook acts which cause harm and pain but do not amount to torture. Public officials are punished for using their official powers to harm individuals (art. 159). The word “harm” includes material, physical and mental harm (art. 189). 
Qatar, Initial report to the UN Committee against Torture, 5 October 2005, UN Doc. CAT/C/58/Add.1, submitted 9 February 2005, §§ 45–49, 55–56 and 63; see also §§ 82–83.
Russian Federation
In 2008, in a statement before the UN Security Council on the protection of civilians in armed conflict, the permanent representative of the Russian Federation stated: “The use of children in conflict is inadmissible, as is inhuman treatment of them.”  
Russian Federation, Statement by the permanent representative of the Russian Federation at a UN Security Council meeting on the protection of civilians in armed conflict, 5898th meeting, 27 May 2008.
Russian Federation
In 2009, in its written reply to the Human Rights Committee concerning the list of issues raised in connection with its sixth periodic report, the Russian Federation stated:
At the present moment, in accordance with the legislation of the Russian Federation, public officials, including police officers, military servicemen and members of the security services, may be subject to prosecution for acts of torture and cruel treatment in accordance with Articles 302 (coercion to obtain testimony) and 117 (torture) of the Criminal Code. The perpetrator of the offence under Article 303 is any person who orders, or is responsible for, the above acts, as well as any other person acting with the consent or acquiescence of the above persons. 
Russian Federation, Written replies by the Government of the Russian Federation to the Human Rights Committee concerning the list of issues raised in connection with the sixth periodic report of the Russian Federation, 24 August 2009, UN Doc. CCPR/C/RUS/Q/6/Add.1, submitted 7 August 2009.
4. … Once ratified, treaties and conventions all are integrated into domestic law. According to the Constitution (Articles 189 and 190), ratified treaties have supremacy over organic and national laws. …
122. Torture and other ill treatment is currently an issue and has been for a very long time, to citizens of all nations. Hence, the international community is determined to eradicate this evil by the adoption of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Rwanda acceded to this philosophy by the ratification of the Convention. 
Rwanda, Initial report to the Committee against Torture, 16 June 2011, UN Doc. CAT/C/RWA/1, submitted 8 April 2011, §§ 4, 11, 19, 27–28, 33, 43–44, 70, 99, 101, 118 and 122.
[footnotes in original omitted]
Saudi Arabia
In 2004, in its second periodic report to the Committee on the Rights of the Child, Saudi Arabia stated:
112. Articles 2 and 13 of the Code of Criminal Procedure promulgated in Royal Decree No. M/39 of 28 July A.H. 1422 (15 October 2001) prohibit torture or degrading treatment and stipulate that young men and women must be examined and tried in accordance with the applicable regulations and ordinances.
278. The Kingdom of Saudi Arabia acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment pursuant to Decree M/11 of 4/4 A.H. 1418 (7 August 1997). 
Saudi Arabia, Second periodic report to the Committee on the Rights of the Child, 21 April 2005, UN Doc. CRC/C/136/Add.1, submitted 12 November 2004, §§ 112 and 278.
Senegal
In 2011, in its third periodic report to the Committee against Torture, Senegal stated:
I. Information on new measures and new developments relating to the implementation of the [1984] Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]
Article 2 of the Convention
Paragraph 1
87. Under article 295-1, paragraph 3, of the [1965 Penal] Code [as amended in 1996], acts of torture are punishable by from 5 to 10 years’ imprisonment and a fine of from CFAF 100,000 to CFAF 500,000.
Paragraphs 2 and 3
88. Senegalese law explicitly precludes any possibility of invoking exceptional circumstances to justify acts of torture. Thus, paragraph 4 of the same article [Article 295-1 of the Penal Code] stipulates that:
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”
89. An order by a superior officer cannot be invoked as a justification for torture either. The final subparagraph of article 295-1 explicitly states that: “An order of a superior or public authority shall not be invoked as a justification of torture.”
90. Furthermore, the Senegalese [Penal] Code contains other deterrent provisions for the severe punishment of any wilful attacks on the physical integrity of a person and, in particular, of vulnerable persons.
93. New legislative measures have been adopted to strengthen the law in this respect:
- Act No. 2007-02 of 12 February 2007 incorporated articles 431-1, 431-2, 431-3, 431-4 and 431-5 into the [Penal] Code. These articles deal with the crime of genocide, crimes against humanity, war crimes and other crimes under international law, such as those covered by the Hague Conventions of 1954, 1976 and 1980, which had not previously been specified in the Code.
II. Implementation of the conclusions and recommendations of the Committee
The State party should, during its current legislative reform, consider introducing explicitly in national legislation the following provisions:
(a) The definition of torture set forth in article 1 of the Convention and the classification of torture as a general offence, in accordance with article 4 of the Convention, which would, inter alia, permit the State party to exercise universal jurisdiction as provided in articles 5 et seq. of the Convention;
(b) A blanket prohibition of any act of torture, with the stipulation that no exceptional circumstance may be invoked to justify torture, in accordance with article 2, paragraph 2, of the Convention;
(c) An express provision stipulating that an order from a superior officer or from a public authority may not be invoked to justify torture, in accordance with article 2, paragraph 3, of the Convention;
228. Points (a), (b) and (c) of this recommendation have been fully implemented. The full text of article 295-1 of the [Penal] Code provides evidence of this:
229. “Acts of torture are injuries, blows, physical or mental violence or other forms of assault intentionally 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 either for the purpose of obtaining information or a confession, imposing punishment by way of a reprisal or making threats or for any reason based on discrimination of any kind.
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
An order from a superior officer or a public authority may not be invoked as a justification of torture.” 
Senegal, Third periodic report to the Committee against Torture, 5 October 2011, UN Doc. CAT/C/SEN/3, submitted 9 February 2011, §§ 87–90, 93 and 228–229.
Serbia
In 2006, in its initial report to the Committee against Torture, Serbia stated that “no one may be subjected to torture or to inhuman or degrading treatment”. 
Serbia, Initial report to the Committee against Torture, 8 February 2007, UN Doc. CAT/C/SRB/1, submitted 3 May 2006, as amended by CAT/C/SRB/2/Corr.1, 23 September 2008, § 186.
Serbia and Montenegro
In 2003, in its initial report to the Human Rights Committee, Serbia and Montenegro stated:
151. According to Article 99, paragraph 11, of the Constitution of the Federal Republic of Yugoslavia, enactments adopted during a state of war may throughout the duration of the state of war restrict various rights and freedoms of man and the citizen, except specific rights and freedoms guaranteed by the Constitution (… inviolability of physical and psychological integrity of the individual …; respect for the human personality and dignity in criminal and all other proceedings; prohibition of the use of force against a suspect who has been detained; prohibition of torture, degrading treatment or extraction of confessions …
153. Pursuant to the Charter of Human and Minority Rights and Civil Liberties [of the State Union of Serbia and Montenegro, adopted in 2003], derogation from human and minority rights guaranteed by this Charter is allowed following the declaration of a state of war or a state of emergency, if the existence of the State Union or a member State is threatened, but only to the extent necessary under the given circumstances. Measures of derogation from human and minority rights cease to have effect following the end of the state of war or the state of emergency. No derogation is permitted even during the state of war or the state of emergency from the right to human dignity … [and the] right to the inviolability of physical and psychological integrity. 
Serbia and Montenegro, Initial report to the Human Rights Committee, UN Doc. CCPR/C/SEMO/2003/1, 24 July 2003, §§ 151 and 153.
Somalia
In 1998, an ICRC publication entitled “Spared from the Spear” recorded traditional Somali practice in warfare as follows: “[T]he acts of violence that were prohibited included killing someone by strangulation or choking [or] burying someone alive.” 
Somalia, Spared from the Spear, 1998, p. 55; see also p. 25.
In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, the Transitional Federal Government of Somalia referred to “Spared from the Spear” as its “own Geneva Conventions”:
In times of hostilities, the Biri-Ma-Geydo (Spared from the Spear), i.e. Somalia’s own “Geneva Conventions”[,] which existed long before the adoption of the Hague and Geneva Conventions, mitigated and regulated the conduct of clan hostilities and the treatment of immune groups. 
Somalia, Comments by the Transitional Federal Government of Somalia on the concluding observations of the Human Rights Council concerning the report of Somalia, submitted 21 September 2011, § 4.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
Sri Lanka
In 2008, in its combined third and fourth periodic reports to the Committee on the Rights of the Child, Sri Lanka stated:
101. The Constitution in article II provides that no person shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. Sri Lanka has also executed a law giving effect to [the 1984] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which i[t] ratified. Cruelty to children is a specific offence under the penal code and includes any act of wilful assault, ill[-]treatment, neglect or abandonment in a manner likely to cause suffering or injury to the child.
106. The Constitution in article 11 provides that no person shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. Sri Lanka has also enacted a law giving effect to the [1984] Convention against Torture which it ratified. Cruelty to children is a specific offence under the Penal Code. 
Sri Lanka, Combined third and fourth periodic reports to the Committee on the Rights of the Child, 20 January 2010, UN Doc. CRC/C/LKA/3-4, submitted 24 October 2008, §§ 101 and 106.
Sri Lanka
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
13. … Sri Lanka … reiterates that it has at no time sought to invoke any justification for torture nor has it resorted to or acquiesced in acts of torture. As a matter of State policy and practice, the Government maintains a zero tolerance policy on torture, as is evidenced by the meaningful measures taken to curb acts of torture. … [T]he Government … has taken a number of important legal steps in order to prevent and combat torture as well as to hold perpetrators accountable. Most notably the enactment of the [Convention against] Torture Act No 22 of 1994 and the Corporal Punishment (Repeal) Act No 23 of 2005 as well as legal safeguards in the Code of Criminal Procedure constitute positive legal measures in the fight against torture.
27. The supreme law of the land, the Constitution of the Democratic Socialist Republic of Sri Lanka[,] recognizes the right not to be subjected to torture as a fundamental right. …
37. … The High Court has continuously asserted its jurisdiction over alleged torture cases under the Convention against Torture Act (1994).
41. One of the measures taken by Sri Lanka to prevent torture is to ensure unannounced visits to places of detention. As per existing Regulations, all Magistrates are legally empowered to visit and inspect remand prisons, where suspects are held on remand on judicial orders of the Magistrates.
43. The Government reiterates its commitment to promptly and impartially investigate allegations of torture. 
Sri Lanka, Combined third and fourth periodic reports to the Committee against Torture, 23 September 2010, UN Doc. CAT/C/LKA/3-4, submitted 17 August 2009, §§ 13, 27, 37, 41 and 43; see also § 19 of the Annex.
[footnotes in original omitted]
Sri Lanka also stated:
3. Sri Lanka recognizes and respects the absolute prohibition of torture and other cruel, inhuman and degrading treatment contained in article 7 of the [1966] International Covenant on Civil and Political Rights and article 5 of the Universal Declaration of Human Rights adopted by the [UN] General Assembly on 10 December 1948. Sri Lanka has also deposited its Declaration on the Protection of All Persons from being subject to Torture or other Cruel, Inhuman or Degrading Treatment or Punishment in terms of the General Assembly Resolution 3452 (XXX) of 9 December 1975.
5. The Constitution of the Democratic Socialist Republic of Sri Lanka, (“Constitution”), gave domestic expression to Sri Lanka’s commitment to eliminate torture and all forms of cruel inhuman and degrading treatment or punishment, even before the entry into force of the [1984] Convention against Torture. Article 11 specifically prohibits torture, or cruel, inhuman and degrading treatment or punishment and the Constitution considers the right not to be tortured a non-derogable, absolute and salient right under the Fundamental Rights Chapter of the 1978 Constitution. …
14. The Constitution of Sri Lanka recognizes the right not to be subject to torture as a non-derogable and absolute right. Certain fundamental rights under the Constitution may be
… subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.
However, no such restriction is permissible for the right against torture under the Sri Lankan Constitution. This protects the sanctity of the prohibition and serves as a deterrent even in times of war and public emergency.
15. Further, under article 126 of the Constitution the Supreme Court of Sri Lanka has sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right recognized by Chapter III of the Constitution [including torture]. Thus, Sri Lankan law is progressive to the extent that it recognises not only violations of fundamental rights, but also grants jurisdiction to the Supreme Court of the country to consider any issue relating to the imminent infringement of fundamental rights. This is an important safeguard in the prevention of the occurrence of torture.
16. Strict judicial supervision of allegations o[f] torture is another measure taken by the State to ensure prevention of occurrence of torture. …
18. It is recalled that the obligation of States under the [1984] Convention [against Torture] is to take effective measures to prevent torture. The fact that torture is committed by a few overzealous individuals should not undermine the State’s commitment to prevent torture. Indeed, Sri Lanka has accepted that sporadic and isolated incidents of torture ha[ve] occurred within its territory in the past, however, the State has not made excuses nor acted with impunity to[wards] perpetrators. Instead the State has bolstered the measures taken to prevent the occurrence of torture at the judicial level and at the practical level.
22. … [T]he court closely monitors the investigation and other activities of the police in connection with persons arrested under any law. The suspects are given the opportunit[y] to complain to the judges or any other party, if they were tortured by the police. …
33. The … [Directions Issued by the President Commander-in-Chief of the Armed Forces and Minister of Defence on 7 July 2006] … takes measures to regulate arrests:
(e) Special provisions are … in place that … [operate] to prevent torture and ill-treatment of women and children. When such person is sought to be arrested or detained, a person of that women or child’s choice is allowed to accompany them to the place of questioning …
38. [Under] the CAT [Convention against Torture] Act (1994) … a person’s right not to be subject to torture is non-derogable …
41. …The commission of torture, attempt to commit, aid[ing], abet[ting] and conspir[ing] in the commission of torture are offences under the CAT Act. Under the CAT Act such an offence is a cognizable and non-bailable offence within the meaning of the Code of Criminal Procedure Act No. 1 of 1979.
59. The Government is committed to conduct prompt, impartial and comprehensive criminal investigations and domestic inquiries into all complaints and information received, relating to alleged perpetration of torture by public officials and members. The objective of conducting criminal investigations is to consider the institution of criminal proceedings. The objective of the conduct of domestic inquiries is to consider the adoption of necessary disciplinary action and the identification of suitable action for [the] prevention of torture.
82. Article 11 of the Sri Lankan Constitution provides that “No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This gives the right not to be subject to cruel, inhuman or degrading treatment the same sanctity as the right not to be tortured, under the supreme law of the land.
83. Subjecting a person to cruel, inhuman or degrading treatment is punishable under the Penal Code of Sri Lanka as, inter alia, voluntary causing of hurt (Sect. 314), voluntarily causing grievous hurt (Sect. 366), voluntarily causing hurt to exhort a confession or compel restoration of property (Sect. 321), voluntarily causing grievous hurt to exhort a confession or compel restoration of property (Sect. 322), wrongful restraint (section 330), wrongful confinement (sect. 331), assault or use of criminal force (Section 343), and criminal intimidation (Sect. 483). 
Sri Lanka, Combined third and fourth periodic reports to the Committee against Torture, 23 September 2010, UN Doc. CAT/C/LKA/3-4, submitted 17 August 2009, Annex §§ 3, 5, 14–16, 18, 22, 33(e), 38, 41, 59 and 82–83.
[footnotes in original omitted]
Sudan
In 2006, in its third periodic report to the Human Rights Committee, the Sudan stated:
Prohibition of torture is total and shall not be suspended even when a state of emergency is declared. Studies are under way with the intention of ratifying the Convention against Torture (CAT). It is noteworthy that Sudan had signed that Convention since 1986. 
Sudan, Third periodic report to the Human Rights Committee, 10 January 2007, UN Doc. CCPR/C/SDN/3, submitted 29 June 2006, § 202.
Reports from Iraq and Syria show gross, systematic and large-scale abuse of human rights and violations of international humanitarian law. … [T]orture … occur[s] in large scale and minority groups and women and children are particularly exposed. The government has in the strongest terms condemned ISIL and their brutal acts. 
Sweden, Answer by the Minister for International Development Cooperation to written question 2014/15:31 in Parliament regarding the humanitarian situation for the victims of IS, 29 October 2014.
On 1 July 2014 a new Act on Criminal Responsibility for Genocide, Crimes against Humanity and War Crimes entered into force. One purpose of the new Act is to enable prosecution of these crimes in Sweden to the same extent as at the International Criminal Court. The Act contains provisions on the crime of torture as part of … war crimes. 
Sweden, Seventh periodic report to the Human Rights Committee, 24 July 2015, UN Doc. CCPR/C/SWE/7, submitted 29 April 2015, § 44.
Switzerland
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
5.3.1 What does international humanitarian law provide in substance?
International humanitarian law contains, first, specific rules to be respected with regard