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

Convention against Torture
Article 1 of the 1984 Convention against Torture defines torture as follows:
“Torture” 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. 
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 1.
Inter-American Convention against Torture
Article 2 of the 1985 Inter-American Convention against Torture defines torture as:
any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish. The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article. 
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, Article 2.
ICC Statute
Article 7(2)(e) of the 1998 ICC Statute defines torture, when a crime against humanity, as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions”. 
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(2)(e).
UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Article 1(1) 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 defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include suffering arising only from, inherent in, or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners. 
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 1(1).
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.*
* The term “cruel, inhuman or degrading treatment or punishment” should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time. 
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.
ICC Elements of Crimes
The 2000 ICC Elements of Crimes defines torture, when a war crime, in part as follows:
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. 
Finalized draft text of the Elements of Crimes, adopted by the 23rd Meeting of the Preparatory Commission for the International Criminal Court, New York, 30 June 2000, Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.2, Addendum, 6 July 2000, as adopted by the Assembly of States Parties, First Session, 3–10 September 2002, Official Records of the Assembly of States Parties to the Rome Statute of the ICC, UN Doc. ICC-ASP/1/3, 25 September 2002, and ICC-ASP/1/3/Corr.1, 31 October 2002, Article 8(2)(a)(ii)-1.
ICC Elements of Crimes
The 2000 ICC Elements of Crimes defines inhuman treatment, when a war crime, in part as follows: “The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons”. 
Finalized draft text of the Elements of Crimes, adopted by the 23rd Meeting of the Preparatory Commission for the International Criminal Court, New York, 30 June 2000, Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.2, Addendum, 6 July 2000, as adopted by the Assembly of States Parties, First Session, 3–10 September 2002, Official Records of the Assembly of States Parties to the Rome Statute of the ICC, UN Doc. ICC-ASP/1/3, 25 September 2002, and ICC-ASP/1/3/Corr.1, 31 October 2002, Article 8(2)(a)(ii)-2.
ICC Elements of Crimes
The 2000 ICC Elements of Crimes defines outrages upon personal dignity, when a war crime, in part as follows:
1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.
2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity. 
Finalized draft text of the Elements of Crimes, adopted by the 23rd Meeting of the Preparatory Commission for the International Criminal Court, New York, 30 June 2000, Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.2, Addendum, 6 July 2000, as adopted by the Assembly of States Parties, First Session, 3–10 September 2002, Official Records of the Assembly of States Parties to the Rome Statute of the ICC, UN Doc. ICC-ASP/1/3, 25 September 2002, and ICC-ASP/1/3/Corr.1, 31 October 2002, Article 8(2)(b)(xxi).
In footnote 49 in relation to the war crime of outrages upon personal dignity, the Elements of Crimes specifies:
For this crime, “persons” can include dead persons. It is understood that the victim need not personally be aware of the existence of the humiliation or degradation or other violation. This element takes into account relevant aspects of the cultural background of the victim.  
Finalized draft text of the Elements of Crimes, adopted by the 23rd Meeting of the Preparatory Commission for the International Criminal Court, New York, 30 June 2000, Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.2, Addendum, 6 July 2000, as adopted by the Assembly of States Parties, First Session, 3–10 September 2002, Official Records of the Assembly of States Parties to the Rome Statute of the ICC, UN Doc. ICC-ASP/1/3, 25 September 2002, and ICC-ASP/1/3/Corr.1, 31 October 2002, footnote 49.
UNTAET Regulation No. 2000/15
Section 5(2)(d) of the 2000 UNTAET Regulation 2000/15 defines torture, when a crime against humanity, as
the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 5(2)(d).
Canada
Canada’s LOAC Manual (1999) provides:
Torture is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as:
a. obtaining from that person or a third person information or confession;
b. punishing that person or a third person for an act he or a third person has committed or is suspected of having committed;
c. intimidating or coercing that person or a third person; or
d. 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. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, Glossary, p. 18.
Canada
Canada’s LOAC Manual (2001) states with regard to the 1984 UN Convention against Torture:
This Convention prohibits torture. “Torture” is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as:
a. obtaining from that person or a third person information or a confession;
b. punishing that person or a third person for an act he or a third person has committed or is suspected of having been committed;
c. intimidating or coercing that person or a third person; or
d. 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. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 114.1; see also Glossary, p. GL-18.
Denmark
Denmark’s Directive on the Ban on Torture (2008) states:
[W]hen determining punishment for a violation of respectively the Criminal Code and the Military Criminal Code, it is to be included as an aggravating circumstance that the offence was committed by means of torture. The offence is regarded to have been committed by means of torture … :
… When committed in the exercise of Danish, foreign or international public service or duty, by subjecting another person to injury to their body or health, or through severe physical or mental pain or suffering
1) to obtain information or a confession from someone
2) to punish, intimidate or force anyone to do, endure or refrain from doing something or
3) because of the victim’s political beliefs, gender, race, skin colour, national or ethnic origin, religion or sexual orientation. 
Denmark, Forbud Mod Tortur og Anden Grusom, Umenneskelig Eller Nedværdigende Behandling Eller Straf, FKODIR 005-01, Forsvarskommandoen, September 2008, p. 3.
The Directive further states:
“Other Cruel, Inhuman or Degrading Treatment or Punishment” is not unambiguously defined. The United Nations General Assembly has according to reference (d) [UN General Assembly Resolution A/RES/43/173 of 9 December 1988] described the relationship as follows:
The term “cruel, inhuman or degrading treatment or punishment” should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time. 
Denmark, Forbud Mod Tortur og Anden Grusom, Umenneskelig Eller Nedværdigende Behandling Eller Straf, FKODIR 005-01, Forsvarskommandoen, September 2008, pp. 3–4.
The Directive also states:
When an action can be characterized as torture, or cruel, or inhuman, or degrading treatment or punishment is difficult … to define in advance, and each case must be subject to an individual assessment … However, it will always ultimately be the courts that decide in each case whether a breach of the ban has occurred, and it is important in this context to emphasise that the list of relevant factors, inspired in particular by the case law of the European Court of Human Rights, are merely examples … Central to the issue is that detainees are treated well and humanely.
Examples:
What is the purpose of the specific treatment of the detainees? (If the real purpose is to punish or compel the divulging of information, this is often in itself enough to constitute a violation.)
[Was the detainee] [s]ubjected to lengthy interrogations (over many hours)?
Was … the detainee’s health [taken into consideration]?
Did the detainee receive the necessary food and drink?
Was due attention paid to the detainee’s age, gender and state of health?
Did the detainee have the opportunity to ensure personal hygiene?
Were there acceptable sanitary conditions under detention?
Was the detainee placed in stressful situations for long periods of time?
Was the detainee subjected to violations of their modesty or honour? (In this regard, a person’s religious beliefs may mean that certain acts that would be considered less intrusive to other individuals will actually be perceived as severe violation.)
If the place of detention is overcrowded or a very small room, this in itself may constitute a breach of the ban (detainees should have access to at least 7m2).
During detention, emphasis is also placed on the opportunity for detainees to partake in physical exercise, go outside and breathe fresh air, receive visitors and so on. These requirements though will be considered with regard to the length of detention.
Were the detainee’s possessions disposed of or destroyed without a legitimate reason?
Additionally, attention is drawn to the comments on the … raised penalties under the Danish Criminal Code and the Military Criminal Code, which refer to a long array of examples of actions that would be covered under the scope (torture) of these provisions, including the addition of severe physical pain or suffering, caused, for example, by stabs, punches, kicks, choking, hanging, holding in painful positions, excessive exposure to heat or cold, shock, or where liquids are poured over the detainee. According to the comments, there will also be discussion of torture if a severe mental pain or suffering is inflicted upon a person, for example in the form of starvation, confinement[,] … isolation or darkness, sleep deprivation, being placed in stressful situations, and according to the circumstances threats to the life or well-being of the person in question or individuals close to them, serious crimes against individuals close to the person in question, or serious forms of humiliation of the person in question or individuals close to them. 
Denmark, Forbud Mod Tortur og Anden Grusom, Umenneskelig Eller Nedværdigende Behandling Eller Straf, FKODIR 005-01, Forsvarskommandoen, September 2008, pp. 4–5.
France
France’s LOAC Manual (2001) refers to the 1984 Convention against Torture and defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind. 
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.
Guinea
Guinea’s Code of Conduct (2011) states:
Article 30: During periods of exceptional circumstances, state of emergency or state of siege, actions of the defence forces must conform to national law and international humanitarian law.
Article 31: Defence forces personnel must in all circumstances refrain from committing the following acts: … all cruel, inhuman or degrading treatment (such as flagellation, blows, beating)[.] 
Guinea, Code de Conduite des Forces de Défense (Code of Conduct of the Defence Forces), 2011, Ministère de la Défense Nationale, approved by Presidential Decree No. D. 289/PRG/SGG/2011, 28 November 2011, Articles 30–31.
Guinea
Guinea’s Code of Conduct (2014) states:
Article 30: During periods of exceptional circumstances, state of emergency or state of siege, actions of the defence forces must conform to national law and international humanitarian law.
Article 31: Defence forces personnel must in all circumstances refrain from committing the following acts: … all cruel, inhuman or degrading treatment (such as flagellation, blows, beating)[.] 
Guinea, Code de Conduite des Forces de Défense (Code of Conduct of the Defence Forces), 2014 edition, Ministère de la Défense Nationale, 28 November 2011, Articles 30–31.
Peru
Peru’s IHL and Human Rights Manual (2010) defines “torture” in its Glossary of Terms as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 416.
United States of America
The US Field Manual (1956) restates Article 32 of the 1949 Geneva Convention IV, which provides that States have agreed not to take any “measures of such character as to cause the physical suffering … of protected persons in their hands”. 
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, § 271.
United States of America
According to the US Instructor’s Guide (1985), “beating a prisoner or applying electric shocks, dunking his head into a barrel of water, and putting a plastic bag over his head to make him talk” are acts of torture and inhumane treatment. 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 10.
United States of America
The US Manual for Military Commissions (2007) states:
Confessions, admissions, and other statements
(b) Definitions. As used in these rules:
(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. 
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(b), pp. III-8 and III-9.
United States of America
The US Manual for Military Commissions (2010) states:
Confessions, admissions, and other statements
(b) Definitions. As used in these rules:
(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 term “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, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984, without geographical limitation. 
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, Rule 304(b)(3) and (4), pp. III-7, III-9 and III-10.
Australia
Australia’s Crimes (Torture) Act (1988), as amended to 2001, states:
3 Interpretation
(1) In this Act, unless the contrary intention appears:
act of torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for such purposes as:
(i) obtaining from the person or from a third person information or a confession;
(ii) punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(iii) intimidating or coercing the person or a third person; or
(b) for any reason based on discrimination of any kind;
but does not include any such act arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights (being the Covenant a copy of the English text of which is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986). 
Australia, Crimes (Torture) Act, 1988, as amended to 2001, § 3, p.1.
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.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) provides the following definition of “torture” in relation to crimes against humanity:
Torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, or being inherent in or incidental to, lawful sanctions. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 172(2)(e).
New Zealand
New Zealand’s Crimes of Torture Act (1989), as amended to 2007, states:
In this Act, unless the context otherwise requires,—
Act of torture means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—
(a) For such purposes as—
(i) Obtaining from that person or some other person information or a confession; or
(ii) Punishing that person for any act or omission for which that person or some other person is responsible or is suspected of being responsible;
or
(iii) Intimidating or coercing that person or some other person; or
(b) For any reason based on discrimination of any kind;—
but does not include any act or omission arising only from, or inherent in, or incidental to, any lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights. 
New Zealand, Crimes of Torture Act, 1989, as amended to 2007, § 2.
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. 
Senegal, Penal Code, 1965, as amended in 1996, Article 295-1.
South Africa
South Africa’s Prevention and Combating of Torture of Persons Act (2013) states:
Acts constituting torture
3. For purposes of this Act, “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person–
(a) for such purposes as to–
(i) obtain information or a confession from him or her or any other person;
(ii) punish him or her for an act he or she or any other person has committed, is suspected of having committed or is planning to commit; or
(iii) intimidate or coerce him or her or any other person to do, or to refrain from doing, anything; or
(b) 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, but does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Offences and penalties
4. …
(4) No exceptional circumstances whatsoever, including but not limited to, a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification of torture. 
South Africa, Prevention and Combating of Torture of Persons Act, 2013, Sections 3 and 4(4).
Spain
Spain’s Penal Code (1995), as amended in 2003, states:
Torture is committed by a public official or authority who, abusing his or her position and for the purposes of obtaining a confession or information from any person or punishing him or her for an act he or she has committed or is suspected of having committed or for any reason based on discrimination of any kind, subjects such a person to conditions or procedures which due to their nature, duration or other circumstances result in physical or mental suffering, the suppression or diminishing of his or her cognitive, recognition or decision-making faculties, or which are in any way harmful to his or her moral integrity. 
Spain, Penal Code, 1995, as amended on 25 November 2003, Article 174(1).
Sri Lanka
Sri Lanka’s Convention against Torture Act (1994) states:
“torture” with its grammatical variations and cognate expressions, means any act which causes severe pain, whether physical or mental, to any other person, being an act which is –
(a) done for any of the following purposes that is to say –
(i) obtaining from such other person or a third person, any information or confession; or
(ii) punishing such other person for any act which he or a third person has committed, or is suspected of having committed; or
(iii) intimidating or coercing such other person or a third person; or
(b) done for any reason based on discrimination,
and being in every case, an act which is done by, or at the instigation of, or with the consent or acquiescence of, a public officer or other person acting in an official capacity. 
Sri Lanka, Convention against Torture Act, 1994, Section 12.
United States of America
The US Torture Victim Protection Act (1991) defines torture as “any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering … whether physical or mental, is intentionally inflicted on that individual”. 
United States, Torture Victim Protection Act, 1991, Section 3.
United States of America
The US War Crimes Act (1996), as amended by the Military Commissions Act (2006), includes in its definition of war crimes any conduct constituting a grave breach of common Article 3 of the 1949 Geneva Conventions:
§ 2441. War crimes
(c) Definition.—As used in this section the term “war crime” means any conduct—
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or
(d) Common Article 3 Violations.—
(1) Prohibited 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 serious 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.
(2) Definitions.—In the case of an offense under subsection (a) by reason of subsection (c)(3)—
(A) the term “severe mental pain or suffering” shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340 (2) of this title;
(B) the term “serious bodily injury” shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113 (b) (2) of this title;
(D) the term “serious physical pain or suffering” shall be applied for purposes of paragraph (1)(B) as meaning 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; and
(E) the term “serious mental pain or suffering” shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term “severe mental pain or suffering” (as defined in section 2340 (2) of this title), 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.
(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack.—The intent specified for the conduct stated in subparagraph … (F) o[f] paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to—
(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.
(5) Definition of grave breaches.—The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article. 
United States, War Crimes Act, 1996, 18 United States Code Sec. 2441, as amended by Military Commissions Act, 2006, 17 October 2006, § 2441(c)(3) and (d).
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
(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined – In this section, the term “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, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984. 
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(d).
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 also states:
Sec. 6. Implementation of Treaty Obligations
“ …
“(b) REVISION TO 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) PROHIBITED 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 SERIOUS 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).
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) lists the following crime under the heading “Crimes against Humanity – Isolated Acts”:
22.2. Torture is understood as:
A) Any act which inflicts severe physical, mental or moral pain or suffering.
B) Subjecting a person to cruel, inhuman or degrading treatment.
C) Any act designed to destroy the victim’s personality or diminish their physical and mental capacity even if it does not cause pain or physical anguish or any act listed in Article 291 of the Penal Code undertaken with the aim to ascertain facts, to punish or to intimidate.
22.3. Torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanction. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 22.2–22.3.
Venezuela
Venezuela’s Law on the Protection of Children and Adolescents (2007) states:
Torture
Any public official who, by him- or herself or through another person, subjects a boy, girl or adolescent to acts that result in serious suffering or pain with the purpose of obtaining information from the victim or a third party shall be punished with one to five years’ imprisonment. 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 253.
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:
96. … Before passing to a consideration of the evidence … it is convenient to address what constitutes torture, both in general terms and as a war crime.
100. [The] definition [of torture that] appears in the Statute of the International Tribunal for the Former Yugoslavia … is based upon the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That Convention was adopted by the Schedule to the Crimes (Torture) Act 1988 (Cth) wherein:-
the term “torture” 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.
101. It is apparent that torture within the meaning of the Crimes (Torture) Act goes beyond the infliction of severe pain or suffering by a person acting in an official capacity. It extends to the infliction of severe pain or suffering at the instigation of, or with the consent or acquiescence of such a person. It is appropriate, in my view, that this construction of the term “torture” is applied for the purposes of these proceedings, in preference to that relied upon by a foreign tribunal in an unrelated matter. It does not include an omission, but the relevant inclusive prohibited purposes are substantially the same. 
Australia, New South Wales Supreme Court, Snedden case, Judgment, 18 December 2009, §§ 96 and 100–101.
Bosnia and Herzegovina
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina, when addressing torture within the context of crimes against humanity, stated:
The essential elements for the definition of torture stated in Article 172(1)(f) of the CC BiH [Criminal Code of Bosnia and Herzegovina] are as follows: the infliction, by act or omission, of severe pain or suffering, whether physical or mental; the act or omission must be intentional; the act was perpetrated against a person under the supervision of the perpetrator; the heavy bodily or mental pain or suffering was inflicted upon the victim by the offence; the offence is not the consequence of the enforcement of legal sanctions.
The Court is of the opinion that the expression “severe pain or suffering” requires that only acts of substantial gravity may be considered to be torture; therefore neither interrogation by itself, nor minor contempt for the physical integrity of the victim satisfies this requirement.
The Court considers that in assessing the seriousness of this mistreatment, the objective severity of the harm inflicted must be considered, including the nature, purpose and consistency of the acts committed. Subjective criteria such as the physical or mental condition of the victim, the effect of the treatment and, in some cases, factors such as the victim’s age, sex, state of health and position of inferiority will also be relevant in assessing the gravity of the harm.
The Court notes that the definition of torture remains the same regardless of the legal provision under which the Accused has been charged. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, p. 52.
[footnotes in original omitted]
The Court further stated:
[W]hen assessing the seriousness of the acts charged as torture, [the Court] must consider all the circumstances of the case, including the nature and context of the infliction of pain, the premeditation and institutionalization of the ill-treatment, the physical condition of the victim, the manner and method used, the position of inferiority of the victim, the extent to which he has been mistreated over a prolonged period of time, or he has been subjected to repeated or various forms of mistreatment. The severity of the acts should be assessed as a whole to the extent that it can be shown that this lasting period or the repetition of acts are inter-related, follow a pattern or are directed towards the same prohibited goal. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, p. 72.
[footnote in original omitted]
Regarding other inhumane acts within the context of crimes against humanity, the Court held that:
The elements for the commission of “other inhumane acts … intentionally causing great suffering, or serious injury to body or physical or mental health” as foreseen in Article 172(1)(k) of the CC BiH [Criminal Code of Bosnia and Herzegovina] are as follows: there exists an inhumane act; the offence has not been stated differently in Article 172; the offence is of a nature similar to other offences defined under Article 172 [murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or other form of sexual violence, persecution, enforced disappearance of persons and apartheid]; the offence was committed with the intention to inflict heavy suffering or serious physical or mental injuries or deterioration of health; and by the commission of this offence, the victims sustained heavy suffering or serious physical or mental injuries or deterioration of health.
… On other inhumane acts, the ICTY established that: “The phrase ‘other inhumane acts’ was deliberately designed as a residual category, as it was felt to be undesirable for this category to be exhaustively enumerated. An exhaustive categorization would merely create opportunities for evasion of the letter of the prohibition” Kupreškić case, Judgement, 14 January 2000, para. 563]. The ICTY believes that this residual category includes, for example, also degrading treatment, forcible transfer and forced prostitution, and use of persons as ‘human shields’. The suffering inflicted by the act upon the victim does not need to be lasting so long as it is real and serious. The required mens rea is met where the principal offender, at the time of the act or omission, had the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim, or where he knew that this act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity and was reckless as to whether such suffering or attack would result from his act or omission. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, pp. 52–53.
[footnotes in original omitted]
Bosnia and Herzegovina
In 2007, in the Janković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
[T]he criminal offence of torture … requires a forbidden intention such as obtaining information or a confession, or punishing, intimidating or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person …
[T]he first-instance Panel legitimately concluded that [the] actions [committed] amount to the elements of the criminal offence of torture due to the pain and suffering imposed on the injured parties and the discriminatory intention which is … the basis of that crime. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Janković case, Judgment, 23 October 2007, p. 15.
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:
43. Section 53 of the Immigration Act permits deportation “to a country where the person’s life or freedom would be threatened”. The question is whether such deportation violates s. 7 of the Charter [the Canadian Charter of Rights and Freedoms]. Torture is defined in Article 1 of the CAT [Convention against Torture] as including the unlawful use of psychological or physical techniques to intentionally inflict severe pain and suffering on another, when such pain or suffering is inflicted by or with the consent of public officials. A similar definition of torture may be found in s. 269.1 of the Criminal Code, R.S.C. 1985, c. C-46.
51. When Canada adopted the Charter 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. 
Canada, Supreme Court, Suresh case, Judgment, 11 January 2002, §§ 43 and 51.
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.
Colombia
In 2005, in the Constitutional Case No. C-148/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
[R]egarding torture of a protected person, Article 137 of Law 599 of 2000 … states that
a person who, in the course of and in relation with an armed conflict, inflicts on another person grave pain or suffering, physical or mental, for such purposes as obtaining from him or a third person information or a confession, punishing him or her 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, shall be liable upon conviction to 10 to 20 years’ imprisonment, a fine of 500 to 1000 legal minimum wages, and disqualification from holding public office for 10 to 20 years.
This article thus includes the same definition of torture found in Article 178 of Law 599 of 2000, but defines it specifically for cases involving protected persons under international law and establishes a heavier penalty. 
Colombia, Constitutional Court, Constitutional Case No. C-148/05, Judgment, 22 February 2005, § 3.3.2.2.
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.
The Court also stated that “sentencing a person to a sentence involving incommunicado detention for a year is an unreasonable and disproportionate measure, constituting cruel and inhuman treatment.” 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Judgment , 3 January 2003, § 223.
South Africa
In its judgment in the Mohamed case in 2001, the Constitutional Court of South Africa stated: “South African law considers a sentence of death to be cruel, inhuman and degrading punishment”. 
South Africa, Constitutional Court, Mohamed case¸ Judgment, 28 May 2001, § 55.
Sri Lanka
In its judgment in the Channa Pieris case in 1994, the Supreme Court of Sri Lanka stated: “Torture, cruel, inhuman or degrading treatment or punishment may take many forms, psychological and physical.” 
Sri Lanka, Supreme Court, Channa Pieris case, Judgment, 17 June 1994, p. 6.
Sweden
In its judgment in the Arklöf case in 2006, Sweden’s Stockholm District Court stated:
From an international law perspective, the acts include … cruel treatment, torture as well as humiliating and degrading treatment (articles 3 of Geneva Conventions I–IV, Additional Protocol II article 4).
It should be noted that torture is designated as the causing of serious physical or mental pain or such suffering, irrespective of whether the purpose is to obtain information, admissions or the execution of criminal acts or solely with the aim of punishing an individual, or has its grounds in discrimination of some type (see Customary International Humanitarian Law, Volume 1 p. 317 and ICTY, e.g. the case of Kunarac et al. (IT-96-23 & 23/1)). The definition within international humanitarian law is consequently more far-reaching than that which applies according to the Torture Convention mentioned by the prosecutor. 
Sweden, Stockholm District Court, Arklöf case, Judgment, 18 December 2006, p. 59.
[emphasis in original]
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 in 2001. The Commission stated:
Although it prohibits torture absolutely, the Constitution does not define torture. International human rights law however, defines torture in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. The Uganda Human Rights Commission has applied this definition in several of its decisions. In essence torture is understood to mean the intentional infliction of severe pain or suffering whether physical or mental on a person for the purpose of getting from him or a third person information or a confession. It is also torture if the pain or suffering is for the purpose of punishing a person for an act the person or another person has done or is suspected to have committed. It is also torture if the pain or suffering is inflicted in order to intimidate or coerce a person or a third person. 
Uganda, the Uganda Human Rights Commission at Gulu, Ojera case, Decision, 12 May 2004, § 11.
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:
Generally, cruel, inhuman, or degrading treatment includes acts which inflict mental or physical suffering, anguish, humiliation, fear and debasement, which do not rise to the level of “torture” or do not have the same purposes as “torture.”
[U]nder international law, “inhuman treatment” includes “not only acts such as torture and intentionally causing great suffering or inflicting serious injury to body, mind or health but also extends to other acts contravening the fundamental principle of humane treatment, in particular those which constitute an attack on human dignity.” ICTY, Prosecutor v. Blaskic, Case No. IT-95-14, Judgment (Trial Chamber I, March 3, 2000) § 155 (citing Delalic, Judgment (Trial Chamber) § 544. Similarly, “willfully causing great suffering or serious injury to body or health” includes injury to “mental health” and “includes those acts which do not fulfill the conditions set for the characterization of torture, even though acts of torture may also fit the definition given.” ICTY, Prosecutor v. Blaskic, Case No. IT-95-14, Judgment (Trial Chamber I, March 3, 2000) § 155 (citing Delalic, Judgment (Trial Chamber) § 511. 
United States, District Court Northern District of Georgia, Mehinovic case, Judgment, 29 April 2002.
United States of America
The Agent Orange case in 2005 involved a class action suit filed on behalf of various Vietnamese nationals and an organization, The Vietnamese Association for Victims of Agent Orange/Dioxin, against Dow Chemical and other US chemical manufacturers, for harms allegedly done to them and their land through the United States’ use of Agent Orange and other herbicides during the Vietnam War from 1965 to 1971 and by the South Vietnamese government’s subsequent use of such herbicides until 1975. In dismissing the claims, the Court found that, while recognizing the evolution of international law since 1975, the use of herbicides did not violate, at the time they were used, either customary or conventional international law binding on the United States. With regard to the question of whether the use of herbicides constituted torture, the Court stated:
The use of herbicides in Vietnam does not fit within the definition of either torture or extrajudicial killing. Plaintiffs were not within the defendants’ custody or physical control, nor that of the United States, when herbicides were used. Nor were herbicides used to intentionally inflict pain and suffering. They were used to kill plants. 
United States, Eastern States District Court (EDNY), Agent Orange case, Judgment, 28 March 2005, pp. 176–177.
Bosnia and Herzegovina
In 2004, in its initial report to the Committee against Torture, Bosnia and Herzegovina stated: “‘torture’ is deliberate grave physical or mental pain or pain inflicted on a person detained by the accused or under the supervision of the accused.” 
Bosnia and Herzegovina, Initial report to the Committee against Torture, 29 July 2005, UN Doc. CAT/C/21/Add. 6, submitted 4 October 2004, § 105.
Burundi
In 2005, in its initial report to the Committee against Torture, Burundi stated:
There is no definition of torture as such in Burundian legislation. In practice, perpetrators of torture are prosecuted and punished for offences under ordinary law, such as occasioning actual bodily harm, as provided for in articles 146 to 150 of the Criminal Code. However, having ratified the Convention against Torture, Burundi recognizes and accepts the definition contained therein. 
Burundi, Initial report to the Committee against Torture, 13 March 2006, UN Doc. CAT/C/BDI/I, submitted 7 July 2005, § 41.
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:
Canada has adopted the definition of torture set out in article 1 of the Convention Against Torture. “Torture” is any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining information or a statement, punishing, or intimidating or coercing that person, or for any reason based on discrimination of any kind, but does not include any act or omission inherent in lawful sanctions. It is no defence that the act or omission was ordered by a superior or took place in exceptional circumstances such as a state of war, a threat to war, internal political instability or any other public emergency. Further, under section 269.1, any evidence obtained as a result of the commission of an offence is inadmissible in “any proceedings over which Parliament has jurisdiction.” 
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, p. 53.
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 [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.
Côte d’Ivoire
In 2013, in its initial report to the Human Rights Committee, Côte d’Ivoire stated:
Article 7
The prohibition of torture
273. Besides forbidding the death penalty, the Ivorian Constitution protects citizens against physical or mental torture and cruel, human and degrading treatment and punishment. As article 3 of the Constitution states: “Slavery, forced labour, inhuman and cruel, degrading and humiliating treatment, physical or mental torture, physical violence and disfigurement and anything that degrades the human being are forbidden and punishable by law.”
274. No provision of the Criminal Code explicitly defines torture or cruel, inhuman or degrading treatment. However, the Code does include provisions forbidding acts of torture (arts. 138, 139, 344 and 374) and treatment that is cruel, inhuman or degrading to human beings (arts. 138 and 139). 
Côte d’Ivoire, Initial report to the Human Rights Committee, 21 May 2013, UN Doc. CCPR/C/CIV/1, submitted 19 March 2013, §§ 273–274.
Democratic Republic of the Congo
In 2005, in its third periodic report to the Human Rights Committee, the Democratic Republic of the Congo stated:
There is no definition of torture in any constitutional, legislative or regulatory instrument referring to torture. Nevertheless, Congolese Jurisprudence, as reported by Professor Likulia Bolongo (Droit pénal spécial zaïrois, Paris, LDGJ, 2nd ed., 1985, p. 180), views as physical torture:
(a) Very serious ill-treatment and acts of cruelty or barbarity, inflicted primarily with the aim of causing suffering (Boma, 4 December 1900, State Jurisprudence, I, p. 102, Boma, 22 July 1902, State Jurisprudence, I, p. 205);
(b) The tightening of a victim’s bonds in a painful manner (Léopoldville, 18 September 1928, RJCB 1931, p. 163);
(c) The binding of a person tightly by the wrists, arms and feet with ropes, and then placing the individual in direct sun and leaving him for several hours without food or water (Elisabethville, 23 May 1911, Congo Jurisprudence, 1912, p. 174);
(d) Intentionally putting out the eye of a person under arrest.
It should be noted that these physical tortures do not constitute a specific offence, but, rather, an aggravating circumstance of the offence provided for in article 67, paragraph 1, of the Criminal Code. In the absence of infringement of individual freedom, torture may be prosecuted only as assault and battery. 
Democratic Republic of the Congo, Third periodic report to the Human Rights Committee, UN Doc. CCPR/C/COD/2005/3, 3 May 2005, § 73.
France
In 2005, in its third periodic report to the Committee against Torture, France stated:
Article 1
...
9. French legislation does not contain any definition of torture within the meaning of the Convention. However, the Ministry of Justice circular of 14 May 1993 on the new Criminal Code that came into force on 1 March 1994 refers expressly to article 1 of the Convention:
“Generally speaking, there may be qualified as torture within the meaning of article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted at New York on 10 December 1984, ‘any act whereby severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’. It should be noted, however, that the provisions of the new Criminal Code are far wider in scope than those of the Convention, which concern only acts committed by a public official for specified purposes.”
10. Articles 689-1 and 689-2 of the new Code of Criminal Procedure that came into force on 1 March 1994 together give French courts jurisdiction to prosecute and try anyone in France who has committed torture outside French territory. Article 689-2, indeed, refers to the definition in article 1 of the Convention:
“For the purposes of the application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted at New York on 10 December 1984, any person guilty of torture within the meaning of article 1 of the Convention may be prosecuted and tried under the conditions stated in article 689-1.”
...
Article 4
Paragraph 1
51. As already stated, acts of torture are classified as a distinct crime by article 222-1 of the new Criminal Code that came into force on 1 March 1994. Under the previous Code, they merely constituted an aggravating circumstance in connection with certain offences. The first paragraph of the new article 222-1 provides that “the subjection of persons to torture or to acts of barbarity shall be punishable by 15 years’ rigorous imprisonment”.
52. The classification of torture and acts of barbarity as a crime has eliminated shortcomings in the punishment of torture. Before the new provisions came into effect, how violations of the person were classified depended directly on the degree of injury. Now what counts is that such violations are inherently serious, irrespective of their outcome. In particular, a person may now be prosecuted for attempted voluntary injury; that was not the case before. The result is that nowadays attempted mutilation may be classified as attempted torture.
53. Moreover, article 222-3 of the new Criminal Code, which enumerates aggravating circumstances relevant to torture and acts of barbarity, refers expressly to the commission of such acts by public officials:
“The offence defined in article 222-1 shall be punishable by 20 years’ rigorous imprisonment if committed:
[...]
7. In or in connection with the performance of his/her functions or duties by a person vested with public authority or a public servant;”
Should a public official commit acts of torture on instructions from representatives of the “lawful authorities”, article 122-4 of the new Criminal Code precludes his/her exoneration if the acts are “manifestly unlawful” – as would, clearly, be the case.
54. The new provisions of the Criminal Code concerning torture are also applicable to members of the armed forces. That is so pursuant to article 27, paragraph 1, of Act No. 72-662 of 13 July 1972, which states that “members of the armed forces are subject to the provisions of ordinary criminal law and to those of the Code of Military Justice”. In addition, article 441 of the Code of Military Justice punishes incitement to commit acts that are contrary to duty or to discipline.
55. Articles 121-4 to 121-7 of the new Criminal Code make attempted torture and complicity in torture punishable in the same way as torture itself: ...
...
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. 
France, Third periodic report to the Committee against Torture, 10 January 2005, UN Doc. CAT/C/34/Add.19, submitted 7 November 2003, §§ 9–10, 51–55 and 225.
Guatemala
In 2006, in its initial report to the Committee on the Rights of the Child, Guatemala stated:
155. Congressional Decree No. 58-95 added article 201 bis [to the Criminal Code], which defines the offence of torture.
The offence of torture is committed by any person who, on the orders or with the authorization, support or acquiescence of the State authorities, intentionally inflicts severe pain or suffering, whether physical or mental, for such purposes as obtaining from the victim or a third person information or a confession concerning an act the victim or a third person has committed or is suspected of having committed, or who continually intimidates a person and, through that person, others.
156. The offence of torture is also committed by members of organized groups or gangs having terrorist, insurgent or subversive purposes or any other criminal purpose.
157. The perpetrator or perpetrators of the offence of torture shall also be tried for the offence of kidnapping. The consequences of acts carried out by a competent authority in the legitimate exercise of its duty and for the protection of public order shall not be considered torture. 
Guatemala, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 17 July 2006, UN Doc. CRC/C/OPAC/GTM/1, submitted 17 May 2006, §§ 155–157.
Mexico
In 2004, in its fourth periodic report to the Committee against Torture, Mexico stated:
25. Article 3 of the Federal Act to Prevent and Punish Torture of 1991 defines torture as follows:
The offence of torture is committed by a public servant who, by virtue of his office, inflicts on another person severe pain or suffering, whether physical or mental, for the purpose of obtaining from him or a third person information or a confession or punishing him for an act he has committed or is suspected of having committed, or coercing him into acting or refraining from acting in a particular manner.
The Act is applicable throughout Mexico in respect of federal offences.
26. Article 5 of this law establishes that the offence is also committed by
a public servant who, in performing his duties and for any of the purposes referred to in article 3, incites, compels, authorizes or makes use of a third party to inflict serious pain or suffering, whether physical or mental, on another person, or who fails to prevent such pain and suffering from being inflicted on a person in his custody
[…] as well as by “a third party who, for any purpose, has been incited or authorized, whether explicitly or implicitly, by a public servant to inflict serious pain or suffering, whether physical or mental, on a prisoner”. 
Mexico, Fourth periodic report to the Committee against Torture, 28 February 2005, UN Doc. CRC/C/55/Add.12, submitted 20 December 2004, §§ 25–26.
[footnotes in original omitted]
Morocco
In 2003, in its third periodic report to the UN Committee against Torture, Morocco stated:
20. In spite of the absence of a precise definition of torture, there exist various legislative provisions prohibiting torture.
21. The Draft submitted by the Ministry of Justice in the context of reform of the Criminal Code is an important step in the development of the judicial system and reform of the system of justice. It aims at remedying shortcomings and supporting change so as to consolidate the rule of law and human rights and harmonize domestic legislation with the international instruments Morocco has ratified. Torture will be given a wider definition, in keeping with article 1 of the Convention against Torture. 
Morocco, Third periodic report to the UN Committee against Torture, 21 May 2003, UN Doc. CAT/C/66/Add.1, submitted 23 March 2003, §§ 20–21.
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.
With regard to the definition of torture, Morocco stated:
16. The amendment of article 1-231 of the Criminal Code by Law No. 04.43 of 14 February 2006 is in response to the Committee’s recommendation (CAT/C/CR/31/2). Paragraph 6(a) of the Law defines torture as any “act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, 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”.
17. The definition in article 1-231 of the Moroccan Criminal Code is an attempt at aligning the text with that of the Convention [against Torture] through the inclusion of all the elements, human, material or physical, constituting an act of torture.
18. It is worth noting here that the new draft Criminal Code expanded the text of the definition to include all acts of torture committed by all persons and not public officials only.
19. The human element of a crime of torture manifests itself in the capacity of the persons perpetrating such acts or crimes. The Convention against Torture stipulates that such acts must be committed or instigated by a public official or any other person acting upon the instruction of a public official. This element has been emphasised by the Moroccan legislator, who went further in expanding the notion of a public official committing a crime of torture to include all persons acting in an official capacity.
20. The material element of crimes of torture in Moroccan law coincides largely with the definition used in the Convention against Torture. The similarities relate to the nature or the purpose of committing the act. The Moroccan definition considers as torture any act causing severe pain or suffering whether inflicted physically directly on the victim through violent acts such as burning or electrocuting, indirectly through negligence or depriving the victim of basic requirements aimed at protecting his dignity or through psychological pressure intended to terrorise or instil fear in the victim.
21. For an act of torture to be committed, it suffices to inflict mental or physical pain on the person directly or on a third party to obtain information, statement or confession to punish the person for acts committed or allegedly committed. 
Morocco, Fourth Periodic Report to the Committee against Torture, 5 November 2009, UN Doc. CAT/C/MAR/4, submitted 27 April 2009, §§ 16–21.
Peru
In 2004, in its fourth periodic report to the Committee against Torture, Peru stated:
Act No. 26926 further strengthens the protection of this fundamental right by specifying the offence of torture in the following terms (article 321 of the Penal Code):
Any official or public servant, or any person acting with his consent or acquiescence, who inflicts upon another serious pain or suffering, whether physical or mental, or subjects that other person to conditions and methods which destroy his personality or impair his physical or mental capacity, even without causing physical pain or mental distress, for the purpose of obtaining a confession or information from the victim or from a third party, or of punishing the person for any act that he may have committed or is suspected of having committed, or of intimidating or coercing the person, shall incur a custodial penalty of not less than 5 and not more than 10 years. 
Peru, Fourth periodic report to the Committee against Torture, 27 May 2005, UN Doc. CAT/C/SR.697, submitted 15 November 2004, § 259.
Peru
In 2006, during the consideration of the fourth periodic report of Peru before the Committee against Torture, a representative of Peru stated that “the definition of torture in legislation passed in 1998 … [is] in strict conformity with that of the Convention against 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.
Russian Federation
In 2010, in its fifth periodic report to the Committee against Torture, the Russian Federation stated:
1. Pursuant to Federal Act No. 162-FZ of 8 December 2003 amending the Criminal Code of the Russian Federation [(1996)], a note was added to article 117 of the Code containing the following definition of torture:
“The term ‘torture’ in the present article and other articles of the present Code shall be understood to mean the infliction of physical or mental suffering for the purpose of coercing the victim to provide testimony or to perform other actions contrary to his or her will, for the purpose of punishment or for other purposes.”
2. This amendment brought legal certainty with respect to the categorization of the aforementioned unlawful acts in cases involving the use of torture, and its content is in compliance with article 1 of the Convention [1984 Convention against Torture]. 
Russian Federation, Fifth periodic report to the Committee against Torture, 28 February 2011, UN Doc. CAT/C/RUS/5, submitted 28 December 2010, §§ 1 and 2.
43. The adherence by Rwanda to fundamental principles of human rights, including through provisions of its internal law system, does not give room for derogation from guarantees offered to citizens of protection against acts of torture, even during exceptional circumstances such as internal political instability, war, state of emergency or any other situation. The fact that Rwanda has ratified the Convention against Torture and that it may be directly applied by internal courts is a further guarantee of non-derogation even in emergency situations. Authorization of torture in exceptional circumstances would be unconstitutional with regard to article 15 of the Constitution, which formally prohibits the use of torture in all cases. 
Rwanda, Initial report to the Committee against Torture, 16 June 2011, UN Doc. CAT/C/RWA/1, submitted 8 April 2011, §§ 32 and 43.
[footnote in original omitted]
Senegal
In 2011, in its third periodic report to the Committee against Torture, Senegal stated:
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 [1984] Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] 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;
228. Point[] (a) … of this recommendation ha[s] been fully implemented. The full text of article 295-1 of the [1965 Penal] Code [as amended in 1996] 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.[”] 
Senegal, Third periodic report to the Committee against Torture, 5 October 2011, UN Doc. CAT/C/SEN/3, submitted 9 February 2011, §§ 228–229.
Article 2: Measures to prevent torture
Legal framework to prevent and combat torture
24. The [Prevention and Combating of Torture of Persons] Act [of 2013] defines “torture’’ as any act “by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—
Sri Lanka
In 2004, in its second periodic report to the UN Committee against Torture, Sri Lanka stated:
6. Act No. 22 of 1994 designates and defines torture as a specific crime. The High Court of Sri Lanka is vested with the jurisdiction for offences of torture committed by a Sri Lankan or a non-Sri Lankan in or outside the territory of the country. Criminal proceedings are instituted upon indictment being preferred against the accused by the Attorney-General. With the introduction of this Act the Extradition Law was also amended by designating the offence of torture as an extraditable offence under the Extradition Law in order to provide an “extradite or prosecute” regime, as envisaged in the Convention.
77. The Convention against Torture and Other Cruel, Inhuman and Degrading Punishment Act No. 22 of 1994 is in substantial conformity with the Convention against Torture. The Act defines torture as follows:
“‘Torture’ with its grammatical variations and cognate expressions, means any act which causes severe pain, whether physical or mental, to any other person, being an act which is done for any of the following purposes that is to say:
“(i) Obtaining from such other person or a third person, any information or confession; or
“(ii) Punishing such other person for any act which he or a third person has committed, or is suspected of having committed; or
“(iii) Intimidating or coercing such other person or a third party; or
“(iv) Done for any reason based on discrimination, and being in every case, an act which is done by, or other person acting in an official capacity.”
78. Sri Lanka has taken note of the point made that the word “suffering” does not appear in the definition of the term “torture” in section 12 of the Act. It is of the view, however, that the expression “cause severe pain whether physical or mental” would necessarily include any suffering that is caused to any person. It is also submitted that the judicial interpretation of the term “torture” would take into account any suffering, physical or mental, that any person would be subjected to. Furthermore, the Sri Lanka courts have always maintained that in the interpretation of any domestic law giving effect to Sri Lanka’s international obligations, the court would necessarily give expression to the provisions of the relevant international legal instruments. 
Sri Lanka, Second periodic report to the Committee against Torture, 6 August 2004, UN Doc. CAT/C/48/Add.2, submitted 29 March 2004, §§ 6 and 77–78; see also § 82.
Sri Lanka
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
The Government of Sri Lanka is of the opinion that the definition of torture under its domestic law covers all the elements contained in article 1 of the [1984] Convention [against Torture]. Although the word suffering “is not specifically mentioned in the definition of torture in [Convention against Torture] Act No. 22 of 1994”, the Government is of the view that the words “severe pain whether physical or mental” invariably encompasses “suffering” both in its physical and mental forms. Therefore Sri Lanka is of the view that its definition is consistent with the definition of torture contained in the Convention. It has to be noted that purely mental torture is also included within the definition, so that the threat of torture may itself amount to psychological torture. Further the Government notes that Manfred Nowak in his report of February 2008 … [“]observes that the definition in article 12 [of the Convention against Torture Act] is in conformity with the definition of article 1 of the Convention: however, it does not expressly include suffering”. This is a clear indication that despite the lack of the term “suffering” the Convention against Torture Act No. 22 of 1994 (CAT Act) is consistent with the definition of the Convention. Professor Novak also states: According to this Act, torture is defined under article 12, which in principle corresponds to article 1 of the Convention, as any act which causes severe pain, whether physical or mental, to any other person, being an act, which is
(a) Done for any of the following purposes that is to say:
(i) Obtaining from such other person or a third person, any information or confession; or
(ii) Punishing such other person for any act which he or a third person has committed, or is suspected of having committed; or
(iii) Intimidating or coercing such other person or a third person; or
(b) Done for any reason based on discrimination and being in every case, … an act which is done by, or at the instigation of, or with the consent or acquiescence of, a public officer or other person acting in an official capacity. 
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, § 15.
[footnotes in original omitted]
Sri Lanka also stated:
8. Article 1, paragraph 1 of the [1984] Convention [against Torture] defines the term torture. The definition of torture, under article 12 of the CAT [Convention against Torture] Act “… is in conformity with article 1 of the Convention …” and is in fact wider than that of the Convention. Under the CAT Act of Sri Lanka, for an act to be torture, it need not be intentionally inflicted as required under the Convention. Thus, the CAT Act contains “provisions of wider application” with regard to torture, than those stipulated in the Convention. …
9. Concerns were raised in the past by the Committee against Torture that the definition of torture in the CAT Act does not refer to the word “suffering”, unlike in article 1, paragraph 1 of the Convention. Sri Lanka has taken note of this observation and is of the view however that the expression “cause severe pain whether physical or mental” would necessarily include any suffering that is caused to any person.
10. The judicial interpretation of the term “torture” would take into account any suffering, physical or mental, that any person would be subject to. It is increasingly evident that in the interpretation of domestic law giving effect to Sri Lanka’s international obligations, the Court would necessarily give expression to the provisions of the relevant international legal instruments. 
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, §§ 8–10; see also § 12 of the Annex.
[footnote in original omitted]
United Kingdom of Great Britain and Northern Ireland
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
37. Following discussion on the United Kingdom’s third report, the Committee recommended that sections 134 (4) and 5 (b) (iii) of the Criminal Justice Act 1988 needed to be reformed to bring them into line with article 2 of the Convention.
38. In the United Kingdom’s third report (para. 15), Her Majesty’s Government indicated plans to issue a consultation paper on a review of legislation on offences against the person, including the offence of torture as set out in the Criminal Justice Act 1988. In February 1998 the Home Office launched a consultation exercise reviewing legislation on offences against the person. As a result of further consideration following the review it is the Government’s view that sections 134 (4) and 5 (b) (iii) of the Criminal Justice Act 1988 do not conflict with article 2 of the Convention, for the reasons given in paragraphs 39–42 below. Consequently the Government has no plans to reform these sections.
39. It is an offence under the Criminal Justice Act if a public official or person acting in an official capacity “intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties”. Sections 134 (4) and 5 (b) (iii) of the Act allow the defence that the pain was inflicted with “lawful authority, justification or excuse.” But this defence needs to be considered in the light of:
- The definition of torture;
- The Convention defence of pain arising from, inherent in, or incidental to, lawful sanction (art. 1); and
- The Human Rights Act 1998.
40. Definition of Torture. The Criminal Justice Act 1988 has a broader definition of torture than the Convention – it includes all severe pain or suffering inflicted in the performance of duties. Without any defence, this law could criminalize:
- Mental anguish caused by imprisonment;
- Any serious injury inflicted by a police officer in the prevention of a crime, even when the offender was injuring another person or attacking the police officer;
- The arrest of a suspect; and so on.
41. Lawful sanction. There is some overlap between the defence of lawful authority, justification or excuse in the 1988 Act and the exception in article 1 of the Convention, which concerns lawful sanction. Although the defence in the 1988 Act goes wider than the exception in article 1, this is because of the broader definition of torture in the 1988 Act (as explained above). Furthermore, the 1988 Act defence only applies where the public official etc., is acting lawfully. There is nothing in the current case law which authorizes, far less requires, the use of this defence in circumstances that would amount to torture within the terms of the Convention.
42. Human Rights Act. In any event, in the light of the Human Rights Act 1998, the courts are required to interpret the defence so far as possible in a way that is compatible with article 3 of the ECHR [European Convention on Human Rights] (prohibition on torture). There are no foreseeable circumstances in which a defence under the 1988 Act could be available inconsistently with the Convention. 
United Kingdom, Fourth periodic report to the Committee against Torture, UN Doc. CAT/C/67/Add.2, 27 May 2004, submitted 6 November 2003, §§ 37–42.
United Kingdom of Great Britain and Northern Ireland
In 2006, in reply to a question concerning, inter alia, the interrogation of detainees and differences in the definition of torture under UK and US law, the UK Foreign Secretary stated:
On the question of definitions, the United Kingdom understands the term “torture” to have the meaning set out in Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Article 1 CAT defines torture as “any act by which severe pain or suffering whether physical or mental is intentionally inflicted…”. It does not, however, give specific examples of what constitutes torture. The understanding of the definition of torture made by the US on ratifying CAT specifies the meaning of “mental pain or suffering” in more detail than Article 1 CAT. The UK made no reservations or understandings on ratification and has not adopted a formal definition of what constitutes mental pain or suffering for the purposes of Article 1. Section 134 of the Criminal Justice Act 1988 provides that a public official commits torture if he intentionally inflicts severe pain or suffering on another in the performance of his duties, and does not define “severe pain or suffering”. 
United Kingdom, Letter to the Chairman of the Committee from the Secretary of State for Foreign and Commonwealth Affairs, 31 January 2006, printed in House of Commons Foreign Affairs Committee, Human Rights Annual Report 2005: First Report of Session 2005–06, HC 574, Evidence, Ev 81.
United Kingdom of Great Britain and Northern Ireland
In 2007, in a written answer to a question in the House of Commons concerning, inter alia, the definition of torture used by the Secretary of State for Defence in the context of the activities of UK armed forces in Iraq, the UK Secretary of State for Defence wrote:
The definition of torture derives from section 134 of the Criminal Justice Act 1988 which makes it an offence for a public official to commit torture. Article 1 of the United Nations Convention Against Torture outlines what is considered torture for the purposes of the convention. We are also guided by, among other sources, judgments of the European Court of Human Rights and those of our own domestic courts. 
United Kingdom, House of Commons, Written answer by the Secretary of State for Defence, Hansard, 9 July 2007, Vol. 462, Written Answers, col. 1285W.
United Kingdom of Great Britain and Northern Ireland
In 2008, the UK Secretary of State for Foreign and Commonwealth Affairs responded to the 2007 Annual Report on Human Rights by the Foreign Affairs Committee of the House of Commons, noting:
The UK legislation criminalising torture (implementing the UN Convention Against Torture) defines it as any act which causes severe pain or suffering, whether physical or mental, which is intentionally inflicted on a person. But whilst in some cases it will be clear that a certain technique constitutes torture, in other cases it will not be possible to determine whether the use of a particular technique is torture without taking into consideration all the circumstances of the case. 
United Kingdom, Response of the Secretary of State for Foreign and Commonwealth Affairs to the Annual Report on Human Rights 2007 by the Foreign Affairs Committee, September 2008, Cm 7463, § 26.
United Kingdom of Great Britain and Northern Ireland
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated regarding common Article 3 of the 1949 Geneva Conventions: “On its face this protection is restricted to armed conflicts not of an international character. However, it is understood to apply in all forms of armed conflict as part of customary international law to set out the irreducible minimum standard.” 
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, § 10.2, p. 10.
The Ministry of Defence (MOD) further stated:
12. The treaties setting out rules of IHL are supplemented by rules of customary international law (CIL), i.e. rules which are recognized as binding by States, even though they do not appear in treaty texts. … [I]n relation to the rules described below the Government accepts that they reflect CIL. It is suggested that the rules which are of most relevance to this inquiry are:
12.5. … Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited.
12.6. The definition of torture in the context of IHL has been the subject of discussion in recent authorities and has been held to differ from that applied in IHRL [international human rights law]. However, the MOD is of the view that nothing turns on the niceties of the various definitions. Torture is prohibited in CIL, IHL and IHRL [international human rights law]. 
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, §§ 12, 12.5 and 12.6, pp. 28–29.
[emphasis in original]
United States of America
In August 2002, in response to a request from the Counsel to the President, the Office of Legal Counsel, Department of Justice, provided its views regarding the standards of conduct under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340–2340A of Title 18 of the US Code. These included:
We conclude below that Section 23440A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture …
… We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g. lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party. The legislative history simply reveals that Congress intended for the statute’s definition to track the Convention’s definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.
… We conclude that the treaty’s text prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for “cruel, inhuman, or degrading treatment or punishment.” This confirms our view that the criminal statute penalizes only the most egregious conduct. Executive branch interpretations and representations to the Senate at the time of ratification further confirm the treaty was intended to reach only the most extreme conduct.
In Part III, we analyze the jurisprudence of the Torture Victims Protection Act, 28 U.S.C. § 1350 note (2000), which provides civil remedies for torture victims, to predict the standards that courts might follow in determining what actions reach the threshold of torture in the criminal context. We conclude from these cases that courts are likely to take a totality-of-the-circumstances approach, and will look to an entire course of conduct, to determine whether certain acts will violate Section 2340A. Moreover, these cases demonstrate that most often torture involves cruel and extreme physical pain. In Part IV, we examine international decisions regarding the use of sensory deprivation techniques. These cases make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.
In Part V, we discuss whether Section 2340A may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President’s Commander-in-Chief powers. We find that in the circumstances of the current war against al Qaeda and its allies, prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war. In Part VI, we discuss defenses to an allegation that an interrogation method might violate the statute. We conclude that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A. 
United States, Department of Justice, Office of Legal Counsel, Memorandum by Jay S. Bybee, Assistant Attorney General, for Alberto R. Gonzales, Counsel to the President, Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A, 1 August 2002, pp. 1–2.
United States of America
In May 2006, the US Department of State held an on-the-record press briefing during which its legal adviser responded to questions concerning the recently-released Concluding Observations of the Committee Against Torture to the United States’ second periodic report. In responding to a question on what was the legal definition of torture and humane treatment, and the nature of any differences between the United States and the Committee on that matter, he stated:
We don’t think that there is a difference. Torture is a term that is defined in the Convention. Much has been made by some who want to suggest that there is a difference between the definition of torture in the Convention and the definition in our U.S. criminal laws. There are some differences in wording that have to do with the intent that’s required, but that really only has to do with the fact that when a country, and particularly the United States, enacts a criminal statute, in order for the criminal statute to hold up in court, it’s important that there be a very specific intent requirement, that someone is not actually held guilty and accountable for violating a criminal statute unless they intended to do something.
So there were some fine word changes that were made in our U.S. criminal statute that some people have suggested we had nefarious intent, but these were changes that were made by our Senate 10 years ago and not anything – we don’t think there’s a substantial difference between the Convention and the definition in our criminal laws here. 
United States, Department of State Legal Adviser, John B. Bellinger, On-the-Record Briefing on the Committee Against Torture Report, Washington. D.C., 19 May 2006.
UN Sub-Commission on Human Rights (Special Rapporteur)
In 1998, in a report on systematic rape, sexual slavery and slavery-like practices during wartime, the Special Rapporteur of the UN Sub-Commission on Human Rights stated:
As prohibited by customary norms, the crime of torture requires the intentional infliction of severe mental or physical pain or suffering, and a nexus to government action or inaction. In most, if not all cases described in this report, rape and serious sexual violence during armed conflict may also be prosecuted as torture. 
UN Sub-Commission on Human Rights, Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-like Practices during Wartime, Report, UN Doc. E/CN.4/Sub.2/1998/13, 22 June 1998, §§ 53 and 55.
No data.
No data.
Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber set out the definition of torture, stating:
352. The prohibition on torture has acquired the status of a peremptory or non-derogable principle of international law. As such, it is not possible to authorize torture via a legislative, administrative or judicial act.
353. The crime of torture is proscribed and defined by numerous international instruments, including the 1975 United Nations General Assembly Declaration on Torture, adopted by consensus, and the 1984 Convention against Torture. The definition in the 1984 Convention against Torture, which closely mirrors that of the 1975 General Assembly Declaration, has been accepted by the ICTY as being declaratory of customary international law. The Chamber accordingly finds that this definition had in substance been accepted as customary by 1975.
354. Torture comprises the infliction, by an act or omission, of severe pain or suffering, whether physical or mental.
355. In determining whether an act or omission constitutes severe pain or suffering, the Chamber is required to consider all subjective and objective factors. Objective factors include the severity of the harm inflicted. Subjective criteria may include the age, sex, state of health of the victim, or the physical or mental effect of treatment on a particular victim. In addition, the nature and context of the infliction of pain, the premeditation and institutionalization of the ill-treatment, the physical condition of the victim, the manner and method used, and the position of inferiority of the victim have all been considered relevant factors. The consequences of the act or omission need not be visible on the victim to constitute torture, and nor is there a requirement that the injury be permanent. Further, there is no exhaustive classification of the acts that may constitute torture. Acts that have been considered sufficiently severe as to constitute torture may arise from conditions imposed upon detention and have included beating, sexual violence, prolonged denial of sleep, food, hygiene and medical assistance, as well as threats to torture, to rape or to kill relatives. Certain acts are considered by their nature to constitute severe pain and suffering. These acts include rape and the mutilation of body parts.
356. The crime of torture requires that the act or omission is inflicted in order to attain a certain result or purpose. Such purposes include obtaining information or a confession, or punishing, intimidating, or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person. These purposes do not constitute an exhaustive list under customary law and are instead representative. There is no requirement that the act is committed exclusively for a particular purpose. A particular purpose must be “part of the motivation behind the conduct, and it need not be the predominant or sole purpose”. [ICTY, Kunarac case, Judgement, § 486]
357. The 1984 Convention Against Torture requires that the act of torture is undertaken at the instigation of a public official or “other person acting in an official capacity”, or with that person’s consent or acquiescence. The ICTY has since clarified that there is no requirement under contemporary international humanitarian law for the involvement of a State official in acts constituting torture, although the fact that a perpetrator acted in an official capacity may be an aggravating factor relevant to sentencing. The Chamber finds, however, that in 1975, the involvement of a State official was a requirement for an act to constitute torture under customary international law.
358. The pain and suffering amounting to torture must be inflicted intentionally. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 352–358.
[footnotes in original omitted]
The Trial Chamber then considered the definition of the offence of “other inhumane acts”, stating:
367. Other inhumane acts comprise a residual offence which is intended to criminalise conduct which meets the criteria of a crime against humanity but does not fit within one of the other specified underlying crimes. The act or omission must be “sufficiently similar in gravity to the other enumerated crimes” to constitute an inhumane act. The customary status of this crime is also well established.
368. For an inhumane act to be established, it must be proved that the victim suffered serious harm to body or mind, and that the suffering was the result of an act or omission of the perpetrator.
369. The seriousness of the act is to be assessed on a case-by-case basis, taking account of individual circumstances. These circumstances may include “the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim including age, sex and health, as well as the physical, mental and moral effects of the act upon the victim.” [ICTY, Vasiljević case, Judgement on Appeal, § 165] There is no requirement that the suffering have long term effects, although this may be relevant to the determination of the seriousness of the act.
370. Examples of inhumane acts which have been found to constitute crimes against humanity include forcible displacement and forcible transfer, severe bodily harm, detention in brutal and deplorable living conditions, as well as beatings and other acts of violence.
371. The requisite intention to inflict inhumane acts is satisfied when the perpetrator had the intention to inflict serious physical or mental suffering or to commit a serious attack upon the human dignity of the victim, or knew that the act or omission was likely to cause serious physical or mental suffering or a serious attack upon the human dignity. This intention must be found to have existed at the time of the act or omission. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 367–371.
[footnotes in original omitted]
The Trial Chamber also considered the offence of inhumane treatment, stating:
438. … Torture and inhumane treatment constitute two separate offences.
440. Inhumane treatment is defined by ICTY jurisprudence as an intentional act or omission against a person protected under the [1949] Geneva Conventions, which causes serious mental harm or physical suffering or injury, or constitutes a serious attack on human dignity.
441. The ICRC Commentary to Geneva Convention IV provides assistance in interpreting the offence:
[Inhuman treatment] could not mean, it seems, solely treatment constituting an attack on physical integrity or health; the aim of the Convention is certainly to grant civilians in enemy hands a protection which will preserve their human dignity and prevent them from being brought down to the level of animals. That leads to the conclusion that by ‘inhuman treatment’ the Convention does not mean only physical injury or injury to health. Certain measures, for example, which might cut the civilians internees off completely from the outside world and in particular from their families, or which caused great injury to their human dignity, could conceivably be considered as inhuman treatment.
442. Acts which constitute torture or wilfully causing great suffering or serious injury to body or health will simultaneously constitute inhumane treatment. The offence extends also to encompass other acts which violate the principle of humane treatment, in particular the respect for human dignity. This assessment is a question of fact which must take into account all of the circumstances of the individual case. Acts such as mutilation and other types of severe bodily harm, beatings and other acts of violence, and serious physical and mental have been considered as inhumane.
443. Inhumane treatment differs from torture in that it need not be undertaken for any particular purpose. The ICTY has found that inhumane treatment includes an act causing serious mental or physical suffering which does not reach the threshold of severity required for the offence of torture.
444. The perpetrator must have committed the act or omission with the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim, or with recklessness as to whether suffering or an attack on human dignity would result. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 438 and 440–444.
[footnotes in original omitted]
The Trial Chamber then considered the offence of wilfully causing great suffering or serious injury to body or health, stating:
450. The offence of wilfully causing great suffering or serious injury to body or health is expressly prohibited as a grave breach in each of the four Geneva Conventions. It represents a single offence whose elements are framed in the alternative.
451. The ICTY jurisprudence has defined the offence as “an intentional act or omission which causes serious mental or physical suffering or injury, provided the requisite level of suffering or injury can be proven.” [ICTY, Kordić and Čerkez case, Judgement, § 245]
452. The ICRC Commentary to Geneva Convention IV notes as follows:
Wilfully causing great suffering - this refers to suffering inflicted without the ends in view for which torture is inflicted or biological experiments carried out. It would therefore be inflicted as a punishment, in revenge or for some other motive, perhaps out of pure sadism. In view of the fact that suffering in this case does not seem, to judge by the phrase which follows, to imply injury to body or health, it may be wondered if this is not a special offence not dealt with by national legislation. Since the Conventions do not specify that only physical suffering is meant, it can quite legitimately be held to cover moral suffering also.
Serious injury to body or health – this is a concept quite normally encountered in penal codes, which usually use as a criterion of seriousness the length of time the victim is incapacitated for work.
The Chamber adopts this early analysis of the offence of wilfully causing great suffering or serious injury to body or health.
453. This offence is distinguishable from torture primarily as the alleged act or omission need not be committed for any particular purpose. The offence is also further distinguishable from that of inhumane treatment as requiring serious mental or physical injury. Acts where the resultant harm relates solely to an individual’s human dignity are not included within this offence.
454. The physical or mental harm caused to the victim need not be irremediable or permanent, but must go beyond temporary unhappiness, embarrassment or humiliation. It must be harm that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.
455. The jurisprudence of the ICTY has established that the requisite mental element for this offence includes both culpable intent and recklessness. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 450–455.
[footnotes in original omitted; emphasis in original]
International Criminal Court
In the Katanga and Chui case before the ICC, the accused, respectively the alleged commander of the Front for Patriotic Resistance of Ituri (FRPI) and the alleged former leader of the Nationalist and. Integrationist Front (FNI) in the Democratic Republic of the Congo, were charged with jointly committing through other persons various crimes against humanity and war crimes under Articles 7 and 8 of the 1998 ICC Statute. In its decision on the confirmation of charges in 2008, the Pre-Trial Chamber considered the war crime of “inhuman treatment”, stating:
356. The war crime provided for in article 8(2)(a)(ii)-2 of the [2000 ICC] Elements of Crimes is defined as the infliction of “inhuman treatment” upon any persons protected under the 1949 Geneva Conventions. According to the Elements of Crimes, in addition to establishing a nexus between the crime and an international armed conflict and the perpetrator’s awareness of the factual circumstances that established the existence of such a conflict, this war crime requires the following three elements: (i) “the perpetrator inflicted severe physical or mental pain or suffering upon one or more persons”; (ii) “such person or persons were protected under one or more of the Geneva Conventions of 1949”; and (iii) “the perpetrator was aware of the factual circumstances that established the protected status”.
357. Article 8(2)(a)(ii)-2 of the Elements of Crimes establishes as a war crime a conduct which is committed by one who causes – by action or omission – severe physical or mental pain or suffering of one or more persons who are accorded protected status under articles 13, 24, 25 and 26 GC [Geneva Convention] I, articles 13, 36 and 37 GC II, article 4 GC III and articles 4, 13 and 20 GC IV. … [P]ursuant to article 4 GC IV protected persons include individual civilians who find themselves “in the hands of a Party to the Conflict or Occupying Power of which they are not nationals”.
358. Article 8(2)(a)(ii) of the [1998 ICC] Statute therefore applies to those situations in which protected civilians are inhumanely treated “in the hands of” a party to the conflict, and thus also applies to the inhuman treatment of the protected persons by an attacking force, when such conduct occurs after the overall attack has ended, and defeat or full control of the targeted village has been secured. In addition, this provision prohibits perpetrators from inflicting inhuman treatment on protected persons as these forces move toward areas of enemy resistance in a targeted village.
359. Article 30 of the Statute sets out the subjective element for crimes within the jurisdiction of the Court, including the war crimes provided for in article 8(2)(a)(ii) of the Statute. Thus, this offence includes, first and foremost, cases of dolus directus of the first degree. In the view of the Chamber, this offence also encompasses dolus directus of the second degree.
360. Finally, article 8(2)(a)(ii)-2 of the Elements of Crimes also requires that the perpetrator is “aware of the factual circumstances that established that protected status” of the victim. In accordance with footnote 33 of the Elements of Crimes, it is not necessary for the perpetrator to have evaluated and concluded that the victim was a legally protected person under any of the four Geneva Conventions, but rather that the perpetrator knows that “the victim belonged to an adverse party to the conflict”. 
ICC, Katanga and Chui case, Decision on the confirmation of charges, 30 September 2008, §§ 356–360.
[footnotes in original omitted; emphasis in original]
The Pre-Trial Chamber then defined the war crime of “committing outrages upon personal dignity”, stating:
367. Article 8(2)(b)(xxi) of the [1998 ICC] Statute provides for the war crime of “committing outrages upon personal dignity, in particular humiliating and degrading treatment.” According to the [2000 ICC] Elements of Crimes, in addition to establishing a nexus between the crime and an international armed conflict and the perpetrator’s awareness of the factual circumstances that established the existence of such a conflict, this war crime requires the following two elements: (i) “the perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons”; and (ii) “the severity of the humiliation, degradation or other violation was of such a degree as to be generally recognized as an outrage upon personal dignity”.
368. This war crime requires that the perpetrator, by action or omission, caused the humiliation, degradation, or violation of the personal dignity of individuals: (i) who are aligned or whose allegiance is to a party to the conflict who is adverse or hostile to the perpetrator; and (ii) who are in the hands of the party to the conflict to which the perpetrator belongs.
369. The types of actions or omissions which could constitute a crime under article 8(2)(b)(xxi) were left undefined. As a result, the core element of this war crime is the humiliation, degradation, or violation of the person’s dignity. In addition, the acts of humiliation, degradation or violation to the person’s dignity must be committed with objectively sufficient gravity so as to be “generally recognized as an outrage upon personal dignity.” Nevertheless, the jurisprudence of the ICTY provides that “so long as the serious humiliation or degradation is real and serious,” there is no requirement that such suffering be lasting, or that it is “necessary for the act to directly harm the physical or mental well-being of the victim.” [ICTY, Aleksovski case, Judgement, § 56]
370. In the view of the Chamber, for the purposes of the present Decision, the findings of the Human Rights Committee that “hanging naked from handcuffs or being forced to maintain a certain position for long periods of time” constitute a specific form of humiliating treatment of female prisoners, are particularly relevant.
371. The Chamber further notes the jurisprudence of the ICTY and ICTR which has indicated that the following acts constitute outrages upon personal dignity: compelling victims to dance naked on a table, using detainees as human shields or trench diggers; forcing detainees to relieve bodily functions in their clothing; imposing conditions of constant fear of being subjected to physical, mental, or sexual violence on detainees; forced incest; burying corpses in latrine pits; and leaving infants without care after killing their guardians.
372. Article 30 of the Statute provides the subjective element of the war crime of article 8(2)(b)(xxi), requiring that the perpetrator has intent and knowledge about the grave acts of humiliation, degradation, or violation of the victim’s personal dignity. This subjective element includes, first and foremost, dolus directus of the first degree and dolus directus of the second degree. 
ICC, Katanga and Chui case, Decision on the confirmation of charges, 30 September 2008, §§ 367–372.
[footnotes in original omitted]
The Pre-Trial Chamber also set out the definition of the crime against humanity of “other inhumane acts”, stating:
446. The crime against humanity of other inhumane acts pursuant to article 7(l)(k) of the [1998 ICC] Statute requires the commission of “other inhuman acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
447. In addition, article 7(1)(k) of the [2000 ICC] Elements of Crimes requires that:
1. [t]he perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act.
2. [s]uch act was of a character similar to any other act referred to in article 7, paragraph I, of the Statute.
3. [t]he perpetrator was aware of the factual circumstances that established the character of the act.
448. In the view of the Chamber, in accordance with article 7(l)(k) of the Statute and the principle of nullum crimen sine lege pursuant to article 22 of the Statute, inhumane acts are to be considered as serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international human rights law, which are of a similar nature and gravity to the acts referred to in article 7(1) of the Statute.
449. The Chamber notes that, according to the jurisprudence of the ICTY Trial Chamber in The Prosecutor v. Blaškić, the conduct of intentionally causing serious physical or mental injury constitutes a serious violation of international customary law and of human rights of a similar nature and gravity to the crimes referred to in article 7(1) of the Statute. However, in determining whether such acts meet the requirements of article 7(1)(k) of the Statute, the Chamber also considers that in each case:
[c]onsideration must be given to all of the factual circumstances. These circumstances may include the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim including age, sex and health, as well as the physical, mental and moral effects of the act upon the victim. [ICTY, Vasiljević case, Judgement on Appeal, § 164]
450. The Chamber notes, however, that the Statute has given to “other inhumane acts” a different scope than its antecedents like the Nuremberg Charter and the ICTR and ICTY Statutes. The latter conceived “other inhumane acts” as a “catch all provision”, leaving a broad margin for the jurisprudence to determine its limits. In contrast, the Rome Statute contains certain limitations, as regards to the action constituting an inhumane act and the consequence required as a result of that action.
451. According to article 7(l)(k)(2) of the Elements of Crimes, an other inhumane act must be of a similar character to any other act referred to in article 7(1) of the Statute. Footnote 30 of the Elements of Crimes states that “character” shall be understood as referring to the nature and gravity of the act.
452. Although this similarity is required, article 7(l)(k) of the Statute defines the conduct as “other” inhumane acts, which indicates that none of the acts constituting crimes against humanity according to article 7(1 )(a) to (j) can be simultaneously considered as an other inhumane act encompassed by article 7(l)(k) of the Statute.
453. Article 7(l)(k) of the Statute and article 7(l)(k)(l) of the Elements of Crimes further require that great suffering, or serious injury to body or to mental or physical health occur by means of an inhumane act.
454. For example, to establish bodily injury as a crime against humanity, the ICTY Appeals Chamber in The Prosecutor v. Kordić and Čerkez found that the following conditions should be met:
(a) the victim must have suffered serious bodily or mental harm; the degree of severity must be assessed on a case-by-case basis with due regard for the individual circumstances;
(b) the suffering must be the result of an act or omission of the accused or his subordinate; and
(c) when the offence was committed, the accused or his subordinate must have been motivated by the intent to inflict serious bodily or mental harm upon the victim. [ICTY, Kordić and Čerkez case, Judgement on Appeal, § 117]
455. In respect of the subjective element, the Chamber notes that in addition to the requirement that the objective elements were committed with intent and knowledge pursuant to article 30 of the Statute, article 7(l)(k)(3) of the Elements of Crimes establishes that the “perpetrator must also [have been] aware of the factual circumstances that established the character of the act.” This offence encompasses, first and foremost, cases of dolus directus of the first and second degree. 
ICC, Katanga and Chui case, Decision on the confirmation of charges, 30 September 2008, §§ 446–455.
[footnotes in original omitted; emphasis in original]
In 2012, the ICC Trial Chamber II acquitted Mr Ngudjolo Chui of all the charges against him. 
ICC, Ngudjolo Chui case, Judgment, 18 December 2012, Disposition.
International Criminal Court
In the Bemba case before the ICC, the accused, the alleged President and Commander-in-chief of the Movement for the Liberation of Congo (MLC), was charged, inter alia, with murder, rape and torture as war crimes and as crimes against humanity, pursuant to Articles 7 and 8 of the 1998 ICC Statute. In its decision on the confirmation of charges in 2009, the Pre-Trial Chamber set out the definition of torture as a crime against humanity, stating:
191. Article 7(2)(e) of the [1998 ICC] Statute defines torture as:
[…] the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.
192. The [2000 ICC] Elements of Crimes add with regard to article 7(l)(f) of the Statute that:
(1) [t]he perpetrator inflicted severe physical or mental pain or suffering upon one or more persons;
(2) [s]uch person or persons were in the custody or under control of the perpetrator;
(3) [s]uch pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.
193. As to the objective element, the actus reus, the Chamber is of the view that, although there is no definition of the severity threshold as a legal requirement of the crime of torture, it is constantly accepted in applicable treaties and jurisprudence that an important degree of pain and suffering has to be reached in order for a criminal act to amount to an act of torture.
bb) Mens rea
194. The subjective element, the mens rea, is the intent as expressly mentioned in article 7(2)(e) of the Statute. Bearing in mind that article 30(1) of the Statute is applicable “unless otherwise provided”, and taking into account that the infliction of pain or suffering must be “intentional”, the Chamber finds that this excludes the separate requirement of knowledge as set out in article 30(3) of the Statute. In this respect, the Chamber believes that it is not necessary to demonstrate that the perpetrator knew that the harm inflicted was severe. This interpretation is consistent with paragraph 4 of the General Introduction to the Elements of Crimes. To prove the mental element of torture, it is therefore sufficient that the perpetrator intended the conduct and that the victim endured severe pain or suffering.
195. The Chamber notes that under the Statute, the definition of torture as a crime against humanity, unlike the definition of torture as a war crime, does not require the additional element of a specific purpose. This is also clarified in the Elements of Crimes. 
ICC, Bemba case, Decision on the confirmation of charges, 15 June 2009, §§ 191–195.
[footnotes in original omitted]
The Pre-Trial Chamber then set out the definition of torture as a war crime, stating:
292.The Elements of Crimes with regard to article 8(2)(c)(i) of the Statute require that:
(1) The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons;
(2) Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities.
bb) Mens rea
293. With regard to the mental element the perpetrator (1) must have committed the crime of torture with intent and knowledge pursuant to article 30 of the Statute, (2) must have inflicted the pain or suffering for such purposes as obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind; and (3) must have been aware of the factual circumstances that established the status of the persons concerned.
294. The Chamber stresses that the perpetrator’s intent to inflict the pain or suffering for a purpose such as set out above, constitutes a specific intent, which has to be proven by the Prosecutor.
295. The General Introduction to the Elements of Crimes provides that:
4. With respect to mental elements associated with elements involving value judgment, such as those using the terms “inhumane” or “severe”, it is not necessary that the perpetrator personally completed a particular value judgment, unless otherwise indicated. 
ICC, Bemba case, Decision on the confirmation of charges, 15 June 2009, §§ 292–295.
[footnotes in original omitted]
The Pre-Trial Chamber also defined the war crime of outrages upon personal dignity, stating:
303. With regard to article 8(2)(c)(ii) of the [1998 ICC] Statute, the Elements of Crimes require that:
(1) The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons;
(2) The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity;
(3) Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.
bb) Mens rea
304. With regard to the mental element the perpetrator (1) must have committed the crime of outrage upon personal dignity with intent and knowledge pursuant to article 30 of the Statute, and (2) must have been aware of the factual circumstances that established the status of the persons concerned. 
ICC, Bemba case, Decision on the confirmation of charges, 15 June 2009, §§ 303–304.
[footnote in original omitted]
International Criminal Court
In its decision on the confirmation of charges in the Mbarushimana case in 2011, the ICC Pre-Trial Chamber I stated:
While the criminal conduct analysed above could constitute both the war crime of cruel treatment and the war crime of torture, the Prosecution fails to provide any evidence in support of the allegation that this particular conduct was perpetrated with the purpose of obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind, as required by article 8(2)(c)(i)-4 of the [1998 ICC] Statute, element 2 of the [2002 ICC] Elements of Crimes. Accordingly, the Chamber does not find substantial grounds to believe that the war crime of torture under article 8(2)(c)(i) of the Statute was committed by FDLR [Forces démocratiques de libération du Rwanda] soldiers in Busurungi and surrounding villages on or about 9–10 May 2009. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 169.
The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity. The Pre-Trial Chamber did not confirm the charges. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 340.
In its judgment of 30 May 2012, the ICC Appeals Chamber confirmed that decision and dismissed the appeal. 
ICC, Mbarushimana case, Judgment on Appeal, 30 May 2012.
International Criminal Tribunal for Rwanda
In its judgment in the Akayesu case in 1998, the ICTR Trial Chamber defined the essential elements of torture as:
(i) The perpetrator must intentionally inflict severe physical or mental pain or suffering upon the victim for one or more of the following purposes:
(a) to obtain information or a confession from the victim or a third person;
(b) to punish the victim or a third person for an act committed or suspected of having been committed by either of them;
(c) for the purpose of intimidating or coercing the victim or the third person;
(d) for any reason based on discrimination of any kind.
(ii) The perpetrator was himself an official, or acted at the instigation of, or with the consent or acquiescence of, an official or person acting in an official capacity. 
ICTR, Akayesu case, Judgment, 2 September 1998, § 594.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Mucić case in 1998, the ICTY Trial Chamber compared the three existing definitions of torture, that is, under the 1975 UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1(1) of the 1984 Convention against Torture, and the 1985 Inter-American Convention on Torture. It concluded that:
The definition of torture contained in the Torture Convention includes the definitions contained in both the Declaration on Torture and the Inter-American Convention and thus reflects a consensus which the Trial Chamber considers to be representative of customary international law. 
ICTY, Mucić case, Judgment, 16 November 1998, § 459.
The Trial Chamber also stated: “Whenever rape and other forms of sexual violence meet the aforementioned criteria, then they shall constitute torture, in the same manner as any other acts that meet this criteria.” 
ICTY, Mucić case, Judgment, 16 November 1998, § 496.
The Trial Chamber further concluded:
511. The Trial Chamber thus finds that the offence of wilfully causing great suffering or serious injury to body or health constitutes an act or omission that is intentional, being an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury. It covers those acts that do not meet the purposive requirements for the offence of torture, although clearly all acts constituting torture could also fall within the ambit of this offence[.]
543. In sum, the Trial Chamber finds that inhuman treatment is an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. The plain, ordinary meaning of the term inhuman treatment in the context of the [1949] Geneva Conventions confirms this approach and clarifies the meaning of the offence. Thus, inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity, and forms the umbrella under which the remainder of the listed “grave breaches” in the Conventions fall. Hence, acts characterised in the Conventions and Commentaries as inhuman, or which are inconsistent with the principle of humanity, constitute examples of actions that can be characterised as inhuman treatment.
544. In this framework of offences, all acts found to constitute torture or wilfully causing great suffering or serious injury to body or health would also constitute inhuman treatment. However, this third category of offence is not limited to those acts already incorporated into the other two and extends further to other acts which violate the basic principle of humane treatment, particularly the respect for human dignity. Ultimately, the question of whether any particular act which does not fall within the categories of the core group is inconsistent with the principle of humane treatment, and thus constitutes inhuman(e) treatment, is a question of fact to be judged in all the circumstances of the particular case.
552. In light of the foregoing, the Trial Chamber finds that cruel treatment constitutes an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purposes of common article 3 of the [1993 ICTY] Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions. Accordingly, the offence of torture under common article 3 of the [1949] Geneva Conventions is also included within the concept of cruel treatment. Treatment that does not meet the purposive requirement for the offence of torture in common article 3, constitutes cruel treatment. 
ICTY, Mucić case, Judgment, 16 November 1998, §§ 511, 543–544 and 552.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Furundžija case in 1998, the ICTY Trial Chamber spelled out some specific elements that pertained to torture as “considered from the specific viewpoint of international criminal law relating to armed conflicts”. Thus, the Trial Chamber considered that the elements of torture in an armed conflict required that torture:
(i) consists of the infliction by act or omission of severe pain or suffering, whether physical or mental; in addition
(ii) this act or omission must be intentional;
(iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person; or at discriminating, on any ground, against the victim or a third person;
(iv) it must be linked to an armed conflict;
(v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity.
As is apparent from this enumeration of criteria, the Trial Chamber considers that among the possible purposes of torture one must also include that of humiliating the victim. 
ICTY, Furundžija case, Judgment, 10 December 1998, § 162.
This finding was confirmed in the same case by the Appeals Chamber in 2000. 
ICTY, Furundžija case, Judgment on Appeal, 21 July 2000, § 111.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kordić and Čerkez case in 2001, the ICTY Trial Chamber found:
The crime of wilfully causing great suffering or serious injury to body or health constitutes an intentional act or omission which causes serious mental or physical suffering or injury, provided the requisite level of suffering or injury can be proven. This crime is distinguished from that of inhuman treatment in that it requires a showing of serious mental or physical injury. Thus, acts where the resultant harm relates solely to an individual’s human dignity are not included within this offence. 
ICTY, Kordić and Čerkez case, Judgment, 26 February 2001, § 245.
The Trial Chamber also confirmed the definition of inhumane treatment and cruel treatment as set out in the Mucić case. 
ICTY, Kordić and Čerkez case, Judgment, 26 February 2001, § 256.
In relation to “other inhumane acts”, the Trial Chamber held:
It is not controversial that the category “other inhumane acts” provided for in Article 5 is a residual category, which encompasses acts not specifically enumerated. Trial Chambers have considered the threshold to be reached by these other acts in order to be incorporated in this category, reaching similar conclusions as to the serious nature of these acts. The Tadić Trial Chamber found that “inhumane acts” are acts “similar in gravity to those listed in the preceding subparagraphs”. In the words of the Kupreškić; Trial Chamber, in order to be characterised as inhumane, acts “must be carried out in a systematic manner and on a large scale. In other words, they must be as serious as the other classes of crimes provided for in the other provisions of Article 5.” The Tadić Trial Chamber, in relation to the requisite nature of “other inhumane acts”, held that they “must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity.” 
ICTY, Kordić and Čerkez case, Judgment, 26 February 2001, § 269.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Blaškić case in 2000, the ICTY Trial Chamber stated that it was “of the view that treatment may be cruel whatever the status of the person concerned”. 
ICTY, Blaškić case, Judgment, 3 March 2000, § 186.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kunarac case in 2001, the ICTY Trial Chamber departed from the findings on the definition of torture confirmed in the Furundžija case. In general terms it held:
The Trial Chamber is therefore wary not to embrace too quickly and too easily concepts and notions developed in a different legal context. The Trial Chamber is of the view that notions developed in the field of human rights can be transposed in international humanitarian law only if they take into consideration the specificities of the latter body of law. 
ICTY, Kunarac case, Judgment, 22 February 2001, § 471.
More specifically with regard to torture, the Trial Chamber stated:
483. Three elements of the definition of torture contained in the Torture Convention are, however, uncontentious and are accepted as representing the status of customary international law on the subject:
(i) Torture consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental.
(ii) This act or omission must be intentional.
(iii) The act must be instrumental to another purpose, in the sense that the infliction of pain must be aimed at reaching a certain goal …
… On the other hand, [the following] elements remain contentious:
(i) The list of purposes the pursuit of which could be regarded as illegitimate and coming within the realm of the definition of torture.
(iii) The requirement, if any, that the act be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
484. The Trial Chamber is satisfied that the following purposes have become part of customary international law: (a) obtaining information or a confession, (b) punishing, intimidating or coercing the victim or a third person, (c) discriminating, on any ground, against the victim or a third person. There are some doubts as to whether other purposes have come to be recognised under customary international law. The issue does not need to be resolved here, because the conduct of the accused is appropriately subsumable under the above-mentioned purposes …
496. The Trial Chamber concludes that the definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law. In particular, the Trial Chamber is of the view that the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law.
497. On the basis of what has been said, the Trial Chamber holds that, in the field of international humanitarian law, the elements of the offence of torture, under customary international law are as follows:
(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental.
(ii) The act or omission must be intentional.
(iii) The act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person. 
ICTY, Kunarac case, Judgment, 22 February 2001, §§ 483–484 and 496–497.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kvočka case in 2001, the ICTY Trial Chamber referred to the constituent elements of the crime of torture under Articles 3 and 5 of the 1993 ICTY Statute:
137. Torture has been defined by the Tribunal jurisprudence as severe mental or physical suffering deliberately inflicted upon a person for a prohibited purpose, such as to obtain information or to discriminate against the victim. …
138. The Kunarac Judgement departed from the previous definitions of torture set forth by the Trial Chambers of the ICTY and the ICTR, in ruling that, in contrast to international human rights law, international humanitarian law does not require the involvement of a state official or of any other authority-wielding person in order for the offence to be regarded as torture.
139. The Trial Chamber is persuaded by the reasoning of the Kunarac Trial Chamber that the state actor requirement imposed by international human rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law.
140. The Trial Chamber also agrees with the Celebici Trial Chamber that the prohibited purposes listed in the Torture Convention as reflected by customary international law “do not constitute an exhaustive list, and should be regarded as merely representative”, and notes that the Furundzija Trial Chamber concluded that humiliating the victim or a third person constitutes a prohibited purpose for torture under international humanitarian law.
141. The Trial Chamber applies the following definition of torture to this case:
(i) Torture consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental;
(ii) the act or omission must be intentional; and
(iii) the act or omission must be for a prohibited purpose, such as obtaining information or a confession, punishing, intimidating, humiliating, or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person. 
ICTY, Kvočka case, Judgment, 2 November 2001, §§ 137–141.
On the threshold of pain or suffering required for the crime of torture, the Trial Chamber stated:
143. A precise threshold for determining what degree of suffering is sufficient to meet the definition of torture has not been delineated. In assessing the seriousness of any mistreatment, the Trial Chamber must first consider the objective severity of the harm inflicted. Subjective criteria, such as the physical or mental effect of the treatment upon the particular victim and, in some cases, factors such as the victim’s age, sex, or state of health will also be relevant in assessing the gravity of the harm.
144. The UN Special Rapporteur on Torture, human rights bodies, and legal scholars have listed several acts that are considered severe enough per se to constitute torture and those that are likely to constitute torture depending on the circumstances. Beating, sexual violence, prolonged denial of sleep, food, hygiene, and medical assistance, as well as threats to torture , rape, or kill relatives were among the acts most commonly mentioned as those likely to constitute torture. Mutilation of body parts would be an example of acts per se constituting torture.
145. The jurisprudence of the Tribunals, consistent with the jurisprudence of human rights bodies, has held that rape may constitute severe pain and suffering amounting to torture, provided that the other elements of torture, such as a prohibited purpose, are met.
146. In several cases involving Zaire, the U.N. Human Rights Committee found that various combinations of the following acts constituted torture: beatings, electric shocks to the genitals, mock executions, deprivation of food and water, and the “thumb press.” In considering individual complaints brought against Uruguay and Bolivia, the Human Rights Committee found that systematic beatings, electroshocks, burns, extended hanging from hand and/or leg chains, repeated immersion in a mixture of blood, urine, vomit and excrement (“submarine”), standing for great lengths of time, and simulated executions or amputations amounted to torture.
147. In the post World War II trials held in Japan, the International Military Tribunal for the Far East (IMTFE) found that the most prevalent forms of torture systematically inflicted by Japanese soldiers upon Allied forces or occupied civilians included “water treatment, burning, electric shocks, the knee spread, suspension, kneeling on sharp instruments and flogging.” Clearly, an exhaustive list of torturous practices is impossible to devise.
148. Although such torture practices often cause permanent damage to the health of the victims, permanent injury is not a requirement for torture.
149. Damage to physical or mental health will be taken into account in assessing the gravity of the harm inflicted. The Trial Chamber notes that abuse amounting to torture need not necessarily involve physical injury, as mental harm is a prevalent form of inflicting torture. For instance, the mental suffering caused to an individual who is forced to watch severe mistreatment inflicted on a relative would rise to the level of gravity required under the crime of torture. Similarly, the Furundzija Trial Chamber found that being forced to watch serious sexual attacks inflicted on a female acquaintance was torture for the forced observer. The presence of onlookers, particularly family members, also inflicts severe mental harm amounting to torture on the person being raped.
150. As to intentional infliction, in the Aksoy v. Turkey case, the European Court of Human Rights found that when the victim was stripped naked, had his armed tied together behind his back, and was suspended by his arms, “this treatment could only have been deliberately inflicted: indeed, a certain amount of preparation and exertion would have been required to carry it out.”
151. The Trial Chamber, in evaluating the perpetrator’s actions, take into account the general atmosphere and conditions of detention prevailing in the camps, the absence of any medical care after abuse, and the repetitive, systematic character of the mistreatment of detainees. The Trial Chamber also notes the status of the victims and the perpetrators. The nature, purpose, consistency, and severity of the abuse are also indicia of torture. 
ICTY, Kvočka case, Judgment, 2 November 2001, §§ 143–151.
On the requirement of a prohibited purpose, the Trial Chamber stated:
152. The jurisprudence of the Tribunals recognizes certain prohibited purposes that qualify as torture. The Akayesu Trial Chamber adopted the prohibited purposes contained in the Convention against Torture, namely to obtain information or a confession from the victim or a third person, to punish the victim or a third person, to intimidate or coerce the victim or the third person, or for any reason based on discrimination of any kind. The Furundzija Trial Chamber added intent to humiliate to the list of prohibited purposes.
153. The Celebici Trial Chamber rightly emphasized that the prohibited purpose need be neither the sole nor the main purpose of inflicting the severe pain or suffering.
154. In interpreting the prohibited purposes of torture, the Trial Chambers have regularly found torture existed when the perpetrator’s intent was to punish or to obtain information or a confession. The Tribunals have also found instances when torture was inflicted as a means of discriminating on the basis of gender. Moreover, the Celebici Trial Chamber emphasized that violence inflicted in a detention camp is often committed with the “purpose of seeking to intimidate not only the victim but also other inmates”.
155. Kvocka, Prcac, Kos, and Radic are charged with torture as a crime against humanity and war crime based on certain treatment inflicted upon Bosnian Muslim, Bosnian Croat, and other non-Serb detainees in the Omarska camp … Radic is also charged with torture as a crime against humanity and war crime based on sexual violence inflicted upon women held in the Omarska camp (counts 14 and 16).
156. Zigic is also charged with torture as a crime against humanity and war crime for specific instances of mistreatment and/or beating of Bosnian Muslim, Bosnian Croat and other non-Serb detainees in the Omarska, Keraterm, and Trnopolje camps (counts 11 and 12) …
157. The parties do not contest that detainees in the three camps were subjected to torture as defined in the Tribunal jurisprudence. The Trial Chamber finds that many of the acts of beating or interrogating detainees and acts of humiliation and psychological abuses … were committed with a specific intent to punish detainees suspected of participating in armed rebellion against Bosnian Serb forces and other acts were committed to obtain information or a confession. Virtually all acts of intentionally inflicting physical and mental violence were committed with an intent to intimidate, humiliate, and discriminate against non-Serb detainees.
158. The Trial Chamber is satisfied that torture falling within the meaning of Articles 3 and 5 (torture and persecution) of the Statute was committed in the camp. 
ICTY, Kvočka case, Judgment, 2 November 2001, §§ 152–158.
With regard to the definition of cruel treatment, the Trial Chamber stated:
159. The Tribunal has consistently defined cruel treatment, which is prohibited by Common Article 3 to the [1949] Geneva Conventions, as an intentional act or omission that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.
160. In assessing the degree of harm required for an offence to qualify as cruel treatment, consideration should be given to the object and purpose of Common Article 3, which attempts to delineate a minimum standard of treatment to be afforded to persons taking no active part in the hostilities.
161. The Trial Chamber, following the lead of the Celebici Trial Chamber Judgement, considers that the degree of physical or mental suffering required to prove cruel treatment is lower than the one required for torture, though it must be at the same level as “wilfully causing great suffering or serious injury to body or health.” The Celebici Trial Chamber found that the degree of suffering required to prove cruel or inhuman treatment was not as high as that required to sustain a charge of torture. The Blaskic Trial Chamber, for example, held that the use of human shields constitutes cruel treatment under Article 3 of the [1993 ICC] Statute.
162. Kvocka, Prcac, Kos, and Radic are charged with cruel treatment for the torture and beating of Bosnian Muslim, Bosnian Croat and other non-Serb detainees in the Omarska camp … The accused are also charged with torture for those same acts.
163. Zigic is also charged with cruel treatment for specific instances of torture and/or beating of Bosnian Muslim, Bosnian Croat and other non-Serb detainees in the Omarska, Keraterm, and Trnopolje camps (count 13) …
164. Psychological abuses, humiliation, harassment, and inhumane conditions of detention caused severe pain and suffering to the detainees. The Trial Chamber finds that cruel treatment, in particular in the form of beatings and attempts at degradation, was committed in the camps.
165. The Trial Chamber is satisfied that cruel treatment within the meaning of Article 3 of the [1993 ICTY] Statute was committed. 
ICTY, Kvočka case, Judgment, 2 November 2001, §§ 159–165.
On the prohibition of “outrages upon personal dignity”, the Trial Chamber stated:
166. Common Article 3 to the [1949] Geneva Conventions prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment.” As indicated in the Aleksovski and Kunarac Trial Chamber Judgements, “the prohibition of the offence of outrages upon personal dignity is a category of the broader proscription of inhuman treatment in common article 3”.
167. The Kunarac Trial Chamber stipulated that the offence requires “(i) that the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and (ii) that he knew that the act or omission could have that effect.” The Aleksovski Judgement emphasized that the offence is “an act which is animated by contempt for the human dignity of another person. The corollary is that the act must cause serious humiliation or degradation to the victim.” It also noted that subjective criteria must be taken into account, including a particular victim’s temperament or sensitivity, although the “reasonable person” standard must also be considered.
168. This Trial Chamber agrees with the Kunarac Judgement that the act or omission need not cause lasting suffering; it is sufficient if the act or omission “would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.” Kunarac further found that the mens rea element of the offence did not require any specific intent from the perpetrator to humiliate, ridicule, or degrade the victim, but that it was enough if the perpetrator knew that his or her act or omission “could cause serious humiliation, degradation or affront to human dignity.”
169. The term “outrages upon personal dignity” has been compared with inhuman treatment in the jurisprudence of the Tribunal. International human rights bodies have found that inhuman and/or degrading treatment can be committed on the sole basis of inappropriate conditions of detention.
170. The Aleksovski Trial Chamber found the following acts to constitute outrages upon personal dignity: the use of detainees as human shields or trench diggers, beatings, and the constant fear of being robbed or beaten endured by vulnerable persons like detainees. The Furundzija and Kunarac Trial Chambers have found that rape and other forms of sexual violence, including forced public nudity, cause severe physical or mental pain and amount to outrages upon personal dignity.
171. In the Amended Indictment, the five accused are charged with outrages upon personal dignity based upon the same set of facts underlying the persecution count: murder, torture and beating, rape and sexual assault, harassment, humiliation and psychological abuse, and confinement in inhumane conditions (count 3). In addition, Radic is separately charged with outrages upon personal dignity (count 17) for rape and sexual violence committed against named or identified female detainees.
172. In the view of the Trial Chamber, murder in and of itself cannot be characterized as an outrage upon personal dignity. Murder causes death, which is different from concepts of serious humiliation, degradation or attacks on human dignity. The focus of violations of dignity is primarily on acts, omission, or words that do not necessarily involve long-term physical harm, but which nevertheless are serious offences deserving of punishment.
173. Evidence discloses that the detainees were subjected to serious humiliating and degrading treatment through such means as inappropriate conditions of confinement in the Omarska camp. The detainees were forced to perform subservient acts demonstrating Serb superiority, forced to relieve bodily functions in their clothing, and they endured the constant fear of being subjected to physical, mental, or sexual violence in the camp …
174. The Trial Chamber finds that outrages upon personal dignity within the meaning of Article 3 of the [1993 ICTY] Statute were regularly committed upon detainees in Omarska camp. 
ICTY, Kvočka case, Judgment, 2 November 2001, §§ 166–174.
In its judgment in 2005, the Appeals Chamber addressed an appeal relating to the Trial Chamber’s evaluation of the constituent elements of torture. In doing so, it reaffirmed that the involvement of a public agent was not a requirement of the crime:
283. Contrary to Kvocka’s allegation, the Appeals Chamber considers that the Trial Chamber did not require that at least one of the perpetrators of the act of torture be a public agent. The Trial Chamber began by noting that the Kunarac Trial Judgement departed from the previous jurisprudence by not requiring the involvement of a state official or any other authority-wielding person in order for the offence to be regarded as torture. The Trial Chamber continued that it was persuaded by the reasoning of the Kunarac Trial Judgement that the state actor requirement imposed by international human rights law was inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law. The position taken by the Trial Chamber in this respect is clearly illustrated by the title chosen to introduce the discussion related to this question, namely, (i) No State Actor Requirement. In addition, when enunciating the definition applied to the present case, the Trial Chamber deliberately omitted any public agent requirement.
284. The Appeals Chamber will next consider whether or not the Trial Chamber committed an error of law in not requiring that the crime of torture be committed by a public official or, in the case of a plurality of perpetrators, that at least one of the persons involved in the torture process be a public official. This question was resolved by the Appeals Chamber in the Kunarac Appeal Judgement. In that case, the Appeals Chamber concluded that the Kunarac Trial Chamber was correct to take the position that the public official requirement was not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention. The Appeals Chamber in the present case reaffirms that conclusion. As a result, the Appeals Chamber finds that Kvocka’s argument that he could not be found guilty of torture for acts perpetrated by Zigic and Knezevic on the ground that they were not public officials is bound to fail, regardless of the precise status of these two individuals. This sub-ground of appeal is rejected. 
ICTY, Kvočka case, Judgment on Appeal, 28 February 2005, §§ 283–284.
[emphasis in original]
The Appeals Chamber also reaffirmed the definition of torture used by the Trial Chamber. 
ICTY, Kvočka case, Judgment on Appeal, 28 February 2005, § 289.
In doing so, the Appeals Chamber emphasized that “a crime is made out only if all its constituent elements are established”. 
ICTY, Kvočka case, Judgment on Appeal, 28 February 2005, § 289.
The Appeals Chamber added:
If the crime requires an objective or subjective element which is not proven, the crime has not been established. The crime of torture was defined by the Trial Chamber as the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, for a prohibited purpose, such as obtaining information or a confession, punishing, intimidating, humiliating, or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person. The Appeals Chamber notes that this definition is not challenged by the parties. The Appeals Chamber considers that the fact that Kvocka did not dispute at trial that torture occurred in the camp did not relieve the Prosecution of its obligation to prove the crimes of torture it specifically alleged in the Indictment and that Kvocka incurred criminal responsibility for each of them beyond reasonable doubt. As such, the Trial Chamber was required in relation to each victim whose name is listed in the Indictment to establish, first, if the victim had endured severe pain or suffering, whether physical or mental, and, second, if this pain or suffering had been intentionally inflicted for one of the prohibited purposes. 
ICTY, Kvočka case, Judgment on Appeal, 28 February 2005, § 289.
International Criminal Tribunal for the former Yugoslavia
The Naletilić and Martinović case before the ICTY in 2001 dealt with crimes surrounding the military offensive launched in May 1993 by the Army of the Republic of Croatia (HV) and the Croatian Defence Council (HVO) against the Bosnian Muslim population of Mostar (south-western Bosnia and Herzegovina) and the Army of Bosnia and Herzegovina (ABiH). In considering ICTY jurisprudence as to what constituted cruel treatment, inhuman treatment, and inhumane acts, the Trial Chamber found:
246. The jurisprudence of the Tribunal [particularly the Celebici Appeal Judgement] shows that the offences of inhuman treatment and cruel treatment are residual clauses under Articles 2 and 3 of the [1993 ICTY] Statute respectively. Materially, the elements of these offences are the same. Inhuman treatment is defined as a) an intentional act or omission, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity, b) committed against a protected person. Cruel treatment is constituted by a) an intentional act or omission, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity, b) committed against a person taking no active part in the hostilities. The degree of physical or mental suffering required to prove either one of those offences is lower than the one required for torture, though at the same level as the one required to prove a charge of “wilfully causing great suffering or serious injury to body or health”.
247. … [Citing in particular the Blaskic and Celebici Trial Judgements] Inhumane acts are “[…] acts or omissions intended to cause deliberate mental or physical suffering to the individual.” As constituting crimes against humanity, these acts must also be widespread or systematic. 
ICTY, Naletilić and Martinović case, Judgment, 31 March 2003, §§ 246–247.
The Trial Chamber also considered ICTY jurisprudence in relation to defining torture, cruel treatment and wilfully causing great suffering or serious injury to body or health:
336. … The Celebici Trial Judgement stated that the prohibition on torture is a norm of customary international law and jus cogens.
337. The definition of the prohibition on torture was modified in relation to the perspective of an armed conflict in the Furundzija Trial Judgement, which was approved by the Furundzija Appeal Judgement. The definition reads:
[t]he elements of torture in an armed conflict require that torture: (i) consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding entity.
338. The Trial Chamber in Kunarac held that the definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied in human rights law. It abandoned the element that the perpetrator of the crime of torture must be a public official. It also held the view that humiliation is not a purpose of torture acknowledged under customary law. The Kunarac Appeal Judgement confirmed the position of the Kunarac Trial Chamber in excluding the public official requirement when considering criminal responsibility of an individual for torture outside the framework of the Torture Convention. It remained silent with regard to the exclusion of “humiliation” as a purpose of torture by the Kunarac Trial Judgement. …
339. The offence of wilfully causing great suffering or serious injury to body or health under Article 2(c) of the [1993 ICTY] Statute is defined [in the Celebici Appeal Judgement] as:
a. an intentional act or omission consisting of causing great suffering or serious injury to body or health, including mental health,
b. committed against a protected person.
341. [The Celebici Trial Judgement found that this] offence includes those acts that do not fulfil the conditions set for torture even though acts of torture may also fit the definition given. The Kordic Trial Judgement concurred with the Celebici Trial Judgement that the words “great” and “serious” in the definition “merely require a finding that a particular act of mistreatment, in order to fall within the ambit of this crime, must possess suffering or injury of the requisite level of seriousness.” It stated that the requisite level of suffering or injury must be proven:
[t]his crime is distinguished from that of inhuman treatment (under Article 2) in that it requires a showing of serious mental or physical injury. Thus, acts where the resultant harm relates solely to an individual’s human dignity are not included within this offence. Provided the acts of causing injuries alleged in the Indictment meet the requirements set forth by the Chamber, they may be characterised as the crime of wilfully causing great suffering.
342. In the Krstic Trial Judgement, the Chamber considered how the term serious should be interpreted and stated:
[s]erious harm need not cause permanent and irremediable harm, but it must involve harm that goes beyond temporary unhappiness, embarrassment, or humiliation. It must be harm that results in a grave and long-term disadvantage to a person’s ability to led [sic] a normal and constructive life.
343. [The Krstic Trial Judgement also found that the] gravity of the suffering is determined on a case by case basis taking into account the circumstances of the case. 
ICTY, Naletilić and Martinović case, Judgment, 31 March 2003, §§ 336–339 and §§ 341–343.
In its consideration of the definition of torture, the Appeals Chamber noted:
299. As stated in the Kunarac et al. Appeal Judgement, torture “is constituted by an act or an omission giving rise to “severe pain or suffering, whether physical or mental”, but there are no more specific requirements which allow an exhaustive classification and enumeration of acts which may constitute torture. Existing case-law has not determined the absolute degree of pain required for an act to amount to torture”. Thus, while the suffering inflicted by some acts may be so obvious that the acts amount per se to torture, in general allegations of torture must be considered on a case-by-case basis so as to determine whether, in light of the acts committed and their context, severe physical or mental pain or suffering was inflicted. Similar case-by-case analysis is necessary regarding the crime of wilfully causing great suffering.
300. The Appeals Chamber is satisfied that the Trial Chamber’s analysis in this case was appropriate. In particular, the Appeals Chamber agrees that telling prisoners falsely that they will be executed, in a “brutal context” that makes the statement believable, can amount to wilfully causing great suffering. In addition, severe physical abuse in the course of interrogation, as was inflicted on [various witnesses], also generally amounts to wilfully causing great suffering, particularly when combined with acts designed to cause psychological torment, such as falsely informing a prisoner that his father had been killed or firing guns at prisoners so as to create an atmosphere of terror. The Appeals Chamber also rejects [the appellant’s] claim that these incidents involved insufficient “duration” to satisfy the requisite legal threshold. He provides no factual basis for his claim, and moreover, although the duration over which suffering is inflicted may affect the determination whether it amounts to torture or wilfully causing great suffering, no rigid durational requirement is built into the definition of either crime. 
ICTY, Naletilić and Martinović case, Judgment on Appeal, 3 May 2006, §§ 299–300.
International Criminal Tribunal for the former Yugoslavia
In the Krnojelac case before the ICTY in 2001, the accused was charged, inter alia, with the crimes of cruel treatment and torture as violations of the laws or customs of war (Article 3 of the 1993 ICTY Statute). 
ICTY, Krnojelac case, Third Amended Indictment, 25 June 2001, §§ 5.30–5.31 and 5.40, Counts 4, 7 and 15.
With regard to the elements of cruel treatment, the Trial Chamber stated in its judgment:
130. It is apparent from the jurisprudence of the Tribunal that cruel treatment, inhuman treatment and inhumane acts basically require proof of the same elements. Each offence functions as a residual category for serious charges under Articles 2, 3 and 5 [of the 1993 ICTY Statute] respectively which are not otherwise enumerated under those Articles. The definitions adopted for each offence in the decisions of the Tribunal vary only by the expressions used. The Trial Chamber therefore adopts the following definition for the offences of cruel treatment and inhumane acts as charged under Articles 3 and 5 [of the 1993 ICTY Statute]. The elements to be proved are: the occurrence of an act or omission of similar seriousness to the other enumerated crimes under the Article concerned;
1. the act or omission causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity; and
2. the act or omission is performed deliberately by the accused or a person or persons for whose acts or omissions he bears criminal responsibility.
131. The assessment of the seriousness of an act or omission is, by its very nature, relative. All the factual circumstances must be taken into account, including the nature of the act or omission, the context in which it occurs, its duration and/or repetition, the physical, mental and moral effects of the act on the victim and the personal circumstances of the victim, including age, sex and health. The suffering inflicted by the act upon the victim does not need to be lasting so long as it is real and serious.
132. The required mens rea is met where the principal offender, at the time of the act or omission, had the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim, or where he knew that his act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity and was reckless as to whether such suffering or attack would result from his act or omission. 
ICTY, Krnojelac case, Judgment, 15 March 2002, §§ 130–132.
With regard to the definition of torture, the Trial Chamber stated:
178. The definition of the offence of torture is the same regardless of the Article of the [1993 ICTY] Statute under which the acts of the Accused have been charged.
179. The definition of the crime of torture charged pursuant to the Tribunal’s Statute comprises the following elements:
1. the infliction, by act or omission, of severe pain or suffering, whether physical or mental.
2. the act or omission must be deliberate.
3. the act or omission must have occurred in order to obtain information or a confession, or to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person.
180. “Torture” constitutes one of the most serious attacks upon a person’s mental or physical integrity. The purpose and the seriousness of the attack upon the victim sets torture apart from other forms of mistreatment. Torture as a criminal offence is not a gratuitous act of violence; it aims, through the infliction of severe mental or physical pain, to attain a certain result or purpose. Thus, in the absence of such purpose or goal, even very severe infliction of pain would not qualify as torture pursuant to Article 3 or Article 5 of the Tribunal’s Statute.
181. The expression “severe pain or suffering” conveys the idea that only acts of substantial gravity may be considered to be torture. Neither interrogation by itself, nor minor contempt for the physical integrity of the victim, satisfies this requirement. Mistreatment which does not rise to the threshold level of severity necessary to be characterised as torture may nevertheless constitute another less serious offence. In attempting to define an offence or to determine whether any of the elements of that definition has been met, the Trial Chamber is mindful of the specificity of international humanitarian law. Care must be taken to ensure that this specificity is not lost by broadening each of the crimes over which the Tribunal has jurisdiction to the extent that the same facts come to constitute all or most of those crimes. In particular, when relying upon human rights law relating to torture, the Trial Chamber must take into account the structural differences which exist between that body of law and international humanitarian law, in particular the distinct role and function attributed to states and individuals in each regime. However, this does not preclude recourse to human rights law in respect of those aspects which are common to both regimes. In that respect, the Trial Chamber regards the general reasoning and criteria used by the European Court of Human Rights in order to assess the gravity of the act of torture, as well as its relationship with other less serious offences, as sufficiently compelling as to warrant adopting it in the present case.
182. The prohibition against torture applies at all times. When assessing the seriousness of the acts charged as torture, the Trial Chamber must take into account all the circumstances of the case, including the nature and context of the infliction of pain, the premeditation and institutionalisation of the ill-treatment, the physical condition of the victim, the manner and method used, and the position of inferiority of the victim. In particular, to the extent that an individual has been mistreated over a prolonged period of time, or that he or she has been subjected to repeated or various forms of mistreatment, the severity of the acts should be assessed as a whole to the extent that it can be shown that this lasting period or the repetition of acts are inter-related, follow a pattern or are directed towards the same prohibited goal.
183. Solitary confinement is not, in and of itself, a form of torture. However, in view of its strictness, its duration, and the object pursued, solitary confinement could cause great physical or mental suffering of the sort envisaged by this offence. To the extent that the confinement of the victim can be shown to pursue one of the prohibited purposes of torture and to have caused the victim severe pain or suffering, the act of putting or keeping someone in solitary confinement may amount to torture. The same is true of the deliberate deprivation of sufficient food.
184. The act of torture must have been committed deliberately, and for one of the prohibited purposes mentioned in the above definition. This does not necessarily mean that the purpose in question must be illegitimate. Several listed purposes, in particular obtaining information or a confession, may be perfectly legitimate on condition that appropriate methods are used to achieve them. Nor does the act need to have been committed exclusively for one of the prohibited purposes. It must simply be part of the motivation behind the conduct, and it need not be the predominant or sole purpose.
185. The Trial Chamber is satisfied that the following relevant purposes have become part of customary international law: obtaining information or a confession; punishing, intimidating or coercing the victim or a third person; or discriminating, on any ground, against the victim or a third person.
186. The Trial Chamber is of the opinion that, although other purposes may come to be regarded as prohibited under the torture provision in due course, they have not as yet reached customary status. In particular, the purpose to “humiliate” the victim, mentioned in Furundzija and more recently in Kvocka, is not expressly mentioned in any of the principal international instruments prohibiting torture. Nor is there a clear jurisprudential disposition towards its recognition as an illegitimate purpose. There may be a tendency, particularly in the field of human rights, towards the enlargement of the list of prohibited purposes, but the Trial Chamber must apply customary international humanitarian law as it finds it to have been at the time when the crimes charged were alleged to have been committed. In light of the principle of legality, the proposition that “the primary purpose of humanitarian law is to safeguard human dignity” is not sufficient to permit the court to introduce, as part of the mens rea, a new and additional prohibited purpose, which would in effect enlarge the scope of the criminal prohibition against torture beyond what it was at the time relevant to the indictment under consideration.
187. Under international humanitarian law in general, and under Articles 3 and 5 of the [1993 ICTY] Statute in particular, the presence or involvement of a state official or of any other authority-wielding person in the process of torture is not necessary for the offence to be regarded as “torture”.
188. The infliction of severe pain in pursuance of a given prohibited purpose must be established beyond reasonable doubt and cannot be presumed. 
ICTY, Krnojelac case, Judgment, 15 March 2002, §§ 178–188.
[emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Blagojević and Jokić case in 2005, the ICTY Trial Chamber found:
Cruel and inhumane treatment is defined as an intentional act or omission, which causes serious mental harm, physical suffering or injury, or which constitutes a serious attack on human dignity. The seriousness of the harm or injury must be assessed on a case by case basis, taking into consideration various factors including the nature of the act or omission, the context in which it occurs, its duration and/or repetition, its physical and mental effects on the victim and, in some instances, the personal circumstances of the victim, including age, gender and health. The harm inflicted does not need to be permanent and irremediable; it must, however, have more than a short-term or temporary effect on the victim. 
ICTY, Blagojević and Jokić case, Judgment, 17 January 2005, § 586.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Simić case in 2003, the ICTY Trial Chamber referred to previous trial judgments, including that of the Krnojelac, Kunarac and Celebici cases, in stating:
In assessing the content of cruel and inhumane treatment, the Trial Chamber finds that it is assisted by the Tribunal’s jurisprudence regarding other inhumane acts under Article 5 (i) of the [1993 ICTY] Statute, inhuman treatment under Article 2 (b) of the Statute, and cruel treatment under Article 3 of the Statute. The elements of these offences are the same, namely:
(a) an intentional act or omission of similar gravity to the other enumerated acts under the Article concerned;
(b) the act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity; and
(c) the act or omission was performed deliberately by the accused or a person or persons for whose acts and omissions he bears criminal responsibility. 
ICTY, Simić case, Judgment, 17 October 2003, § 74.
Furthermore, the Trial Chamber stated that torture comprises the following elements:
(i) the infliction, by act or omission, of severe pain or suffering, whether physical or mental.
(ii) the act or omission must be deliberate.
(iii) the act or omission must have occurred in order to obtain information or a confession, or to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person. 
ICTY, Simić case, Judgment, 17 October 2003, § 79.
The Simić trial judgment also referred to ICTY case law in stating:
82. The presence or involvement of a state official or any other authority-wielding person in the process of torture is not necessary for the offence to be regarded as “torture”.
83. … [B]eatings committed on discriminatory grounds and causing severe pain or suffering, physical or mental, constitute cruel and inhumane treatment as an underlying act of persecution. The deliberate infliction of severe physical or mental pain or suffering through beatings in order to discriminate [against] a victim constitutes torture. 
ICTY, Simić case, Judgment, 17 October 2003, §§ 82–83.
Referring again to cruel and inhumane treatment, the Trial Chamber also stated:
The Trial Chamber accepts that the acts of forcing civilians to work in life-threatening circumstances where they could be exposed to physical and mental suffering fail to meet the obligation for humane treatment of civilians enshrined in the [1949] Geneva Conventions and amount to cruel and inhumane treatment. 
ICTY, Simić case, Judgment, 17 October 2003, § 835.
International Criminal Tribunal for the former Yugoslavia
In the Babić case before the ICTY in 2003, the accused was charged with a crime against humanity (persecutions on political, racial and religious grounds), punishable under Articles 5(h) and 7(1) of the 1993 ICTY Statute, as well as violations of the laws or customs of war, punishable under Articles 3 and 7(1) of the 1993 ICTY Statute. The Article 3 charges included cruel treatment for “[t]he prolonged and routine imprisonment and confinement of several hundred of Croat and other non-Serb civilians in inhumane living conditions in the old hospital and JNA [Yugoslav National Army] barracks in Knin”, Croatia, from August 1991 until at least November 1991. 
ICTY, Babić case, Initial Indictment, 17 November 2003, §§ 15(b) and 16, Count 3.
Following a plea agreement negotiated between the accused and the Prosecution, Babić pleaded guilty to the persecution charge. The remaining charges were withdrawn. In January 2004, the Trial Chamber found the accused guilty of persecutions on political, racial and religious grounds for participating as a co-perpetrator in a joint criminal enterprise. 
ICTY, Babić case, Sentencing Judgment, 29 June 2004, § 41.
Babić was subsequently sentenced to 13 years’ imprisonment, a sentence that was reaffirmed by the Appeals Chamber in 2005. 
ICTY, Babić case, Judgment on Sentencing Appeal, 18 July 2005, XI Disposition.
International Criminal Tribunal for the former Yugoslavia
In its Rule 98bis Decision in the Strugar case in 2004, the ICTY Trial Chamber stated:
The crime of cruel treatment as a violation of the laws or customs of war pursuant to Article 3 of the [1993 ICTY] Statute is defined in the jurisprudence of the Tribunal as an intentional act or omission causing serious mental or physical suffering or injury or constituting a serious attack on human dignity. In addition, in order to prove cruel treatment under Article 3 of the Statute, it must be shown that the victims were persons taking no active part in the hostilities. 
ICTY, Strugar case, Rule 98bis Decision, 21 June 2004, § 39.
In its judgment in 2005, the Trial Chamber considered the mens rea of this crime:
The crime of cruel treatment as a violation of the laws or customs of war pursuant to Article 3 of the [1993 ICTY] Statute, is defined in the jurisprudence of the Tribunal as an intentional act or omission causing serious mental or physical suffering or injury, or constituting a serious attack on human dignity. As regards the mens rea for the crime of cruel treatment, the Chamber sees no reason to depart from the reasoning expounded above in relation to the crime of murder. Accordingly, the Chamber holds that indirect intent, i.e. knowledge that cruel treatment was a probable consequence of the perpetrator’s act or omission, may also fulfil the intent requirement for this crime. In addition, in order to prove cruel treatment under Article 3 of the Statute, it must be shown that the victims were persons taking no active part in the hostilities. 
ICTY, Strugar case, Judgment, 31 January 2005, § 261.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Brđanin case in 2004, the ICTY Trial Chamber considered ICTY jurisprudence as to what constitutes “torture”:
481. Both this Tribunal and the ICTR have adopted a definition of the crime of torture along the lines of that contained in the Convention against Torture (“CAT”), which comprises the following constitutive elements:
1. the infliction, by act or omission, of severe pain or suffering, whether physical or mental;
2. the act or omission must be intentional; and
3. the act or omission must have occurred in order to obtain information or a confession, or to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person.
482. The definition of “torture” remains the same regardless of the Article of the [1993 ICTY] Statute under which the Accused has been charged. The mens rea as set out above is not controversial in the jurisprudence of the Tribunal. However, a number of issues regarding the actus reus may usefully be addressed.
(a) Severity of pain or suffering
483. The seriousness of the pain or suffering sets torture apart from other forms of mistreatment. The jurisprudence of this Tribunal and of the ICTR has not specifically set the threshold level of suffering or pain required for the crime of torture, and it consequently depends on the individual circumstances of each case.
484. In assessing the seriousness of any mistreatment, the objective severity of the harm inflicted must be considered, including the nature, purpose and consistency of the acts committed. Subjective criteria, such as the physical or mental condition of the victim, the effect of the treatment and, in some cases, factors such as the victim’s age, sex, state of health and position of inferiority will also be relevant in assessing the gravity of the harm. Permanent injury is not a requirement for torture; evidence of the suffering need not even be visible after the commission of the crime.
485. The criteria mentioned in the previous paragraph will be used by this Trial Chamber in assessing whether the treatment alleged by the Prosecution in counts 6 and 7 amounts to severe pain or suffering. Some acts, like rape, appear by definition to meet the severity threshold. Like torture, rape is a violation of personal dignity and is used for such purposes as intimidation, degradation, humiliation and discrimination, punishment, control or destruction of a person. Severe pain or suffering, as required by the definition of the crime of torture, can be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering.
(b) Prohibited purpose
486. Acts of torture aim, through the infliction of severe mental or physical pain, to attain a certain result or purpose. Thus, in the absence of such purpose or goal, even a very severe infliction of pain would not qualify as torture for the purposes of Article 2 and Article 5 of the [1993 ICTY] Statute.
487. The prohibited purposes mentioned above do not constitute an exhaustive list, and there is no requirement that the conduct must solely serve a prohibited purpose. If one prohibited purpose is fulfilled by the conduct, the fact that such conduct was also intended to achieve a non-listed purpose is immaterial.
(c) Official sanction not required
488. Even though the CAT envisages that torture be committed “with the consent or acquiescence of a public official or other person acting in an official capacity”, the jurisprudence of this Tribunal does not require that the perpetrator of the crime of torture be a public official, nor does the torture need to have been committed in the presence of such an official.
489. In this context, the Trial Chamber notes that the definition of the CAT relies on the notion of human rights, which is largely built on the premises that human rights are violated by States or Governments. For the purposes of international criminal law, which deals with the criminal responsibility of an individual, this Trial Chamber agrees with and follows the approach of the Kunarac Trial Chamber that
the characteristic trait of the offence Sunder the Tribunal’s jurisdiction] is to be found in the nature of the act committed rather than in the status of the person who committed it. [Kunarac Trial Judgement, § 495] 
ICTY, Brđanin case, Judgment, 1 September 2004, §§ 481–489.
[emphasis in original]
Subsequently, in its judgment on appeal in 2007, the ICTY Appeals Chamber responded to the accused’s claim that the threshold for the level of pain and suffering required for an act to constitute torture had now changed to his benefit:
246. The Appeals Chamber has previously explained that the definition of the crime of torture, as set out in the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (“Convention against Torture”) “may be considered to reflect customary international law.” Accordingly, the Appeals Chamber has drawn verbatim from the Convention against Torture when explaining the amount of harm an act must cause in order to constitute torture: it must cause “severe pain or suffering, whether physical or mental”. By examining if the acts charged in the indictment as torture caused “severe pain or suffering, whether physical or mental” – and not if they caused some greater amount of pain or suffering – the Trial Chamber was not only applying clear Appeals Chamber jurisprudence, it was also properly determining whether a conviction would be consistent with customary international law. In the discussion that follows, the Appeals Chamber will focus on developments relating to the law of torture after the indictment period, considering whether the definition of torture has, as suggested by Brđanin, changed to his benefit. Therefore, this discussion should not be in any way construed as an application of ex post facto law that could be prejudicial to Brđanin.
247. To support his argument that the requisite amount of harm has increased, Brđanin cites only the 2002 Bybee Memorandum [a memorandum from Jay S. Bybee, Assistant Attorney General, U.S. Dept of Justice, to Alberto R. Gonzales, Counsel to the President, 1 August 2002] – a memorandum in which the U.S. Department of Justice interpreted the criminal prohibition on torture found in U.S. federal law. Yet even if the U.S. executive branch determined that, for an act causing physical pain or suffering to amount to torture, it must “inflict pain … equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”, [Bybee Memorandum, p. 1] this would not suffice to make pain of such intensity a requirement for conviction under customary international law. No matter how powerful or influential a country is, its practice does not automatically become customary international law.
248. Not only does Brđanin merely cite one memorandum for the proposition that there is a new customary international law standard for the amount of harm required for a torture conviction: he cites a memorandum that was withdrawn. The Levin memorandum, which superseded the Bybee memorandum, did not endorse the view that physical torture consists only of those acts that “inflict pain … equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” To the contrary, the Levin memorandum suggested that the criminal prohibition on torture found in U.S. federal law was not intended “to reach only conduct involving excruciating and agonizing pain or suffering.” Moreover, this memorandum concluded that the criminal prohibition on torture found in U.S. law covers some acts that cause severe physical suffering even if the acts do not also cause severe physical pain.
249. The Convention against Torture’s requirement of “severe” pain or suffering was not itself meant to require “pain … equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”. Indeed, during negotiations over the text of the Convention against Torture, the United Kingdom (seeking to make the definition of torture more restrictive) proposed that the infliction of “extreme pain or suffering” should be required. This wording was rejected. Hence, the Convention against Torture’s drafting history makes clear that “severe pain or suffering” is not synonymous with “extreme pain or suffering”, and that the latter is a more intense level of pain and suffering – one that might come closer to “pain … equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” – not required by the Convention against Torture. As the Convention against Torture is recognized to be declarative of customary international law on torture, it is therefore clear that, under customary international law, physical torture can include acts inflicting physical pain or suffering less severe than “extreme pain or other States and international bodies to come to share this view, a change in customary law concerning the scope of the ‘grave breaches’ system might gradually materialize.”
250. Article 3 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) declares that torture is prohibited, without defining it. Nonetheless, cases decided by the European Court of Human Rights (“ECtHR”) applying the ECHR have shed light on the degree of harm that Court considers is required for an act to amount to torture. In a decision the ECtHR observed that “what might have been inhumane treatment in the past is now seen as torture in the light of the increasingly higher standard of human rights protections.” ECtHR’s more recent judgements, moreover, have endorsed the definition of torture contained in the Convention against Torture. This Court’s approach thus confirms that no more than “severe” pain or suffering is required under customary international law.
251. The amount of harm required under customary international law for an act to constitute torture has not increased since 2000, when the Appeals Chamber endorsed the above-mentioned standards in Furundžija. [Furundžija Judgement on Appeal, §. 111] Acts inflicting physical pain may amount to torture even when they do not cause pain of the type accompanying serious injury. An act may give rise to a conviction for torture when it inflicts severe pain or suffering. Whether it does so is a fact-specific inquiry. As the Appeals Chamber explained in the Naletilić and Martinović Appeal Judgement [Naletilić and Martinović Judgement on Appeal, §. 299]:
torture is constituted by an act or an omission giving rise to severe pain or suffering, whether physical or mental, but there are no more specific requirements which allow an exhaustive classification and enumeration of acts which may constitute torture. Existing case-law has not determined the absolute degree of pain required for an act to amount to torture. Thus, while the suffering inflicted by some acts may be so obvious that the acts amount per se to torture, in general allegations of torture must be considered on a case-by-case basis so as to determine whether, in light of the acts committed and their context, severe physical or mental pain or suffering was inflicted.
252. Thus, in assessing whether the harm caused by the acts charged suffices to support a torture conviction, the Trial Chamber applied principles that the Appeals Chamber has endorsed and that reflect customary international law. Brđanin has failed to demonstrate that the Trial Chamber made an error of law which invalidated the decision. 
ICTY, Brđanin case, Judgment on Appeal, 3 April 2007, §§ 246–252.
International Criminal Tribunal for the former Yugoslavia
In the Mrkšić case before the ICTY in 2004, the three accused were charged, inter alia, with violations of the laws or customs of war (torture, cruel treatment), punishable under Article 3 of the 1993 ICTY Statute – acting individually or in concert with other known and unknown members of a joint criminal enterprise (punishable under Article 7(1) and (3) of the 1993 ICTY Statute) – for having
planned, instigated, ordered, committed, or otherwise aided and abetted the imprisonment at the Ovčara farm of approximately three hundred Croats and other non-Serbs who were present in the Vukovar Hospital after the fall of Vukovar [from or about 18 November 1991 until 21 November 1991]. The conditions at this detention facility were brutal and characterized by inhumane treatment and constant physical and psychological assault. 
ICTY, Mrkšić case, Indictment, 14 November 2004, §§ 46 and 48, Counts 5, 6, 7 and 8.
In its consideration of the definition of torture and cruel treatment, the Trial Chamber stated:
(a) Torture (Count 7)
513. The elements required to establish the crime of torture are: (1) there must be an act or omission inflicting severe pain or suffering, whether physical or mental; (2) the act or omission must be intentional; (3) the act or omission must have been carried out with a specific purpose such as to obtain information or a confession, to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person.
514. Assessment of whether the acts charged as torture inflict severe pain or suffering will be made in light of all the circumstances of the case. These include the nature and context of the infliction of pain, the premeditation and institutionalization of the ill-treatment, the physical condition of the victim, the manner and the method used and the position of inferiority of the victim, the physical or mental effect of the treatment on the victim, the victim’s age, sex, and state of health, and whether the mistreatment occurred over a prolonged period of time. There is no requirement that the act or omission has caused a permanent injury, or a physical injury as such, as mental harm is recognised as a prevalent form of torture. Further, it is now settled in the jurisprudence of the Tribunal that the perpetrator need not have acted in an official capacity.
515. The required mens rea is that the perpetrator intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims. Whether the perpetrator had a different motivation is irrelevant provided that he acted with the requisite intent. Further, the act or omission must have been carried out with a specific purpose. This includes, albeit not exhaustively, the purpose to obtain information or a confession, to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person. The prohibited purpose need not be the sole or the main purpose of the act or omission in question.
(b) Cruel treatment (Count 8)
516. Cruel treatment under Article 3 of the [1993 ICTY] Statute is defined as an intentional act or omission causing serious mental or physical suffering or injury to, or constituting a serious attack on human dignity upon, a person taking no active part in the hostilities. The perpetrator must have acted with a direct intent to commit cruel treatment, or with indirect intent, i.e. in the knowledge that cruel treatment was a probable consequence of his act or omission.
517. In the present circumstances the charges of torture and cruel treatment are based, inter alia, on allegations of deprivation of medical care from “women, elderly men and wounded and sick patients” of Vukovar hospital who were among the detainees. Whether particular conduct amounts to cruel treatment is a question of fact to be determined on a case by case basis. In the Chamber’s view, the failure to provide adequate medicine or medical treatment would constitute the offence of “cruel treatment” if, in the specific circumstances, it causes serious mental or physical suffering or injury, or constitutes a serious attack on human dignity and if it is carried out with the requisite mens rea. 
ICTY, Mrkšić case, Judgment, 27 September 2007, §§ 513–517.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Limaj case in 2005, the ICTY Trial Chamber defined cruel treatment as:
an intentional act or omission causing serious mental or physical suffering or injury, or constituting a serious attack on human dignity, to a person taking no active part in the hostilities. As regards mens rea, the perpetrator must have acted with direct intent to commit cruel treatment or with indirect intent, i.e. in the knowledge that cruel treatment was a probable consequence of his act or omission. 
ICTY, Limaj case, Judgment, 30 November 2005, § 231.
With regard to the lower threshold of this offence, and the status of “unlawful seizure”, “unlawful detention for prolonged periods” and “interrogation” as cruel treatment, the Trial Chamber stated:
The Chamber is of the view that whether particular conduct amounts to cruel treatment is a question of fact to be determined on a case by case basis. The Chamber notes that the offence of cruel treatment has never been established before this Tribunal in relation to these specific acts. In determining whether the “unlawful seizure”, “unlawful detention for prolonged periods” and “interrogation” alleged in the instant case amount to cruel treatment, the Chamber has, therefore, taken into account all the circumstances of the instant case. The Chamber has come to the conclusion that, at least in the circumstances of this case, these acts in and of themselves do not amount to a serious attack on human dignity within the meaning of cruel treatment under Article 3 of [the 1993 ICTY] Statute. 
ICTY, Limaj case, Judgment, 30 November 2005, § 232.
[emphasis in original]
With regard to the crime of torture, the Trial Chamber stated:
235. The law on torture is well settled by the jurisprudence of the Tribunal. For the crime of torture to be established, whether as a war crime or as a crime against humanity, the following three elements must be met:
(1) There must be an act or omission inflicting severe pain or suffering, whether physical or mental;
(2) The act or omission must be intentional; and
(3) The act or omission must have been carried out with a specific purpose such as to obtain information or a confession, to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person.
236. An act or omission may constitute the actus reus of torture if it has caused severe pain or suffering. Mistreatment which does not rise to this level of severity may nevertheless constitute another offence under the jurisdiction of the Tribunal. Further, it is not required that the act or omission has caused a permanent injury, nor is there a requirement that the act or omission has caused a physical injury, as mental harm is a prevalent form of inflicting torture.
237. With respect to the assessment of the seriousness of the acts charged as torture, previous jurisprudence of the Tribunal has held that this should take into account all circumstances of the case and in particular the nature and context of the infliction of pain, the premeditation and institutionalisation of the ill-treatment, the physical condition of the victim, the manner and the method used and the position of inferiority of the victim. Also relevant to the Chamber’s assessment is the physical or mental effect of the treatment on the victim, the victim’s age, sex, or state of health. Further, if the mistreatment has occurred over a prolonged period of time, the Chamber would assess the severity of the treatment as a whole. Finally, this Chamber concurs with the finding of the Celebici Trial Chamber, made specifically in the context of rape, that in certain circumstances the suffering can be exacerbated by social and cultural conditions and it should take into account the specific social, cultural and religious background of the victims when assessing the severity of the alleged conduct.
238. As for the mens rea required for the crime of torture, the previous jurisprudence of the Tribunal establishes that direct intent is required: the perpetrator must have intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims. It is irrelevant that the perpetrator may have had a different motivation, if he acted with the requisite intent.
239. For the crime of torture to be established, the alleged act or omission must have been carried out with a specific purpose: to obtaining information or a confession, or to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person. The prohibited purpose needs not be the sole or the main purpose of the act or omission in question.
240. And finally, the Chamber notes that while the earlier jurisprudence of the Tribunal has reached different conclusions as to whether, for the crime of torture to be established, the alleged act or omission must be committed by, or at the instigation of or with the consent or acquiescence of an official or person acting in an official capacity, this issue is now settled by the Appeals Chamber. Under customary international law and the jurisprudence of the Tribunal it is not necessary that the perpetrator has acted in an official capacity. 
ICTY, Limaj case, Judgment, 30 November 2005, §§ 235–240.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Hadžihasanović case in 2006, the ICTY Trial Chamber, referring, inter alia, to the Mucić (“Čelebići”) appeal judgment, the Blaškić appeal judgment, and the Krnojelac trial judgment, reaffirmed the Tribunal’s case law on the definition of cruel treatment under Article 3 of the 1993 ICTY Statute as:
… an intentional act or omission causing serious mental or physical suffering or injury or constituting a serious attack on human dignity.
33. To determine the seriousness of an act, all the factual circumstances must be taken into account, “including the nature of the act or omission, the context in which it occurs, its duration and/or repetition, the physical, mental and moral effects of the act on the victim and the personal circumstances of the victim, including age, sex and health.”
34. In Krnojelac the Chamber stressed:
“The required mens rea is met where the principal offender, at the time of the act or omission, had the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim, or where he knew that his act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity and was reckless as to whether such suffering or attack would result from his act or omission.”
35. On the basis of the definition established by tribunal case law, beating or detaining persons in difficult conditions may constitute cruel treatment if they cause great suffering or physical or mental harm, or are a serious attack on human dignity. Article 5(1) of Additional protocol II to the Geneva Conventions may assist in establishing the seriousness of the conditions of detention with regard to persons deprived of their liberty for reasons related to an armed conflict. It provides inter alia that persons deprived of their liberty shall be provided with the same basic needs as the local population:
“In addition to the provisions of Article 4 the following provisions shall be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained: [T]he persons referred to in this paragraph shall, to the same extent as the local civilian population, be provided with food and drinking water and be afforded safeguards as regards health and hygiene and protection against the rigours of the climate and the dangers of the armed conflict;”
In that regard, the type of subsistence given to the guards of people deprived of their liberty may serve as a measure to evaluate whether the minimum subsistence conditions are being respected.
36. In the case where these minimum standards of treatment cannot be maintained, the detaining authority may not continue to detain those persons deprived of their liberty without possibly incurring criminal responsibility. 
ICTY, Hadžihasanović case, Judgment, 15 March 2006, §§ 32–36.
[emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Orić case in 2006, the ICTY Trial Chamber stated with regard to cruel treatment as a violation of the laws or customs of war:
261. The charge[…] of … cruel treatment in the present case [is] brought under Common Article 3 [of the 1949 Geneva Conventions]. According to the jurisprudence of the Tribunal, Article 3 of the [1993 ICTY] Statute includes violations of Common Article 3, a provision which has acquired the status of customary international law. Common Article 3 protects values “so fundamental that they are regarded as governing both internal and international conflicts”. The jurisprudence of the Tribunal has consistently regarded that the crime[…] of … cruel treatment entail[s] individual criminal responsibility.
349. … Common Article 3(1)(a) of the 1949 Geneva Conventions provides the basis for the inclusion of cruel treatment under Article 3 of the [1993 ICTY] Statute.
350. Trial Chambers of the Tribunal have consistently recognised that the crimes of cruel treatment under Article 3 of the Statute, “inhumane treatment” under Article 2(b) of the Statute and “inhumane acts” under Article 5(i) of the Statute share the same elements.
351. The Trial Chamber adopts the following elements for the crime of cruel treatment:
(i) An act, or omission notwithstanding an obligation to act, of the accused, or of a person for whose acts or omissions the accused bears criminal responsibility, causing serious mental or physical suffering, serious injury, or constituting a serious attack on human dignity; and
(ii) The act or omission was committed with the intent to inflict serious mental or physical suffering, or cause serious injury or a serious attack upon human dignity.
352. Regarding the actus reus of cruel treatment, the seriousness of the harm or injury must be assessed on a case-by-case basis, taking into account such factors as the severity of the alleged conduct, the nature of the act or omission, the context in which the conduct occurred, its duration and/or repetition, its physical and mental effects on the victim, and in some instances, the personal circumstances of the victim, including age, gender and health. The case-law of this Tribunal has found the following conduct to constitute cruel treatment, inhumane treatment or inhumane acts: beatings, inhumane living conditions in a detention centre, attempted murder, use of human shields and trench digging.
353. The mens rea requirement for the crime of cruel treatment is met when the perpetrator intends to inflict serious mental or physical suffering, or cause serious injury or a serious attack upon human dignity of the victim, or knows or foresees as more likely than not that such result could occur as a consequence of his acts or omissions, and nonetheless accepts that risk. 
ICTY, Orić case, Judgment, 30 June 2006, §§ 261 and 349–353.
International Criminal Tribunal for the former Yugoslavia
In its sentencing judgment in the Zelenović case in 2007, the ICTY Trial Chamber stated:
Torture requires the intentional infliction of severe pain or suffering with the aim of obtaining information or a confession, or of punishing, intimidating or coercing the victim or a third person, or of discriminating against the victim or a third person. Torture is among the most serious crimes in international criminal law and this must be properly reflected in the sentence. Moreover, torture by means of rape is a particularly grave form of torture. 
ICTY, Zelenović case, Sentencing Judgment, 4 April 2007, § 36.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Martić case in 2007, the ICTY Trial Chamber stated:
74. The torture of persons not taking an active part in hostilities is expressly prohibited by the [1949] Geneva Conventions and the [1977] Additional Protocols, both in international and non-international armed conflicts. The definition of torture is identical under both Article 3 and Article 5 of the [1993 ICTY] Statute. It comprises the following elements:
1. The intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental;
2. The act or omission must have occurred in order to obtain information or a confession, or to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or a third person (“prohibited purpose”).
75. The pain and suffering inflicted during acts of torture is more severe than the pain and suffering inflicted during other forms of mistreatment and cruel treatment. The Trial Chamber will assess on a case-by-case basis whether the acts or omissions charged as torture, inflicted severe physical or mental pain or suffering on the part of the victim. In its assessment of the severity of the pain or suffering inflicted, the Trial Chamber may take several factors into account, including the duration of the suffering inflicted, the nature of the crimes, the physical or mental condition of the victim, the effect of the acts on the victim, the victim’s age, and the victim’s position of inferiority to the perpetrator.
76. In the jurisprudence of the Tribunal several acts have been listed as rising to the level of seriousness necessary to constitute torture. These acts include beatings, administering electric shocks, forcing victims to watch executions of others, rape, forcing victims to bury the bodies of their neighbours and friends, and causing burn injuries.
77. As to the mens rea, the perpetrator’s acts or omissions must be committed for a prohibited purpose. The definition of torture provides a non-exhaustive list of prohibited purposes. There is no requirement that the act of the perpetrator be committed solely or predominantly to serve this prohibited purpose. Once the conduct has been carried out for one of the prohibited purposes, it is immaterial whether there is another purpose behind the conduct. In addition, it needs to be established that the perpetrator acted or omitted to act with direct or indirect intent. 
ICTY, Martić case, Judgment, 12 June 2007, §§ 74–77.
On the definition of cruel treatment used by Tribunal, the Trial Chamber stated:
79. The crime of cruel treatment is defined in the jurisprudence as an intentional act or omission causing serious mental or physical suffering or injury, or constituting a serious attack on human dignity, committed against a person not taking an active part in hostilities. The perpetrator must be shown to have acted with direct intent or with indirect intent, that is, in the knowledge that cruel treatment was a likely consequence of his act or omission.
80. It is not required that the suffering caused by the cruel treatment be “lasting”. In its assessment of the seriousness of the act or omission, the Trial Chamber will take all circumstances into consideration, including factors such as the age and health of the victim, and the physical and mental effects of the crime upon the victim. Moreover, it is not required that the seriousness of the suffering or injury amounts to the level of seriousness required for torture. 
ICTY, Martić case, Judgment, 12 June 2007, §§ 79–80.
Special Court for Sierra Leone
In the Fofana and Kondewa case before the SCSL in 2004, the accused, senior members of the Civil Defence Forces (CDF), were charged, inter alia, with cruel treatment as a violation of Article 3 common to the 1949 Geneva Conventions and of the 1977 Additional Protocol II (Article 3(a) of the 2002 Statute of the Special Court for Sierra Leone). 
SCSL, Fofana and Kondewa case, Indictment, 4 February 2004, § 26, Count 4.
In its judgment in 2007, the Trial Chamber stated with regard to the offence of cruel treatment:
154. The Indictment charges the Accused under Count 4 with cruel treatment as a serious violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3(a) of the [2002 Statute of the Special Court for Sierra Leone]. Under this Count, the Accused are charged with “violence to life, health and physical or mental well-being of persons, in particular cruel treatment”. The Chamber has analysed this offence as cruel treatment, since the category of “violence to life and person” does not exist as an independent offence in customary international law.
155. The Chamber endorses the jurisprudence of the ICTY in which cruel treatment, punishable under Article 3 of the ICTY Statute as a violation of the laws or customs of war, including violations of Common Article 3 and other inhumane acts, punishable under Article 5 of the ICTY Statute as a Crime against Humanity, were said to require proof of the same elements. Thus, the Chamber concludes that elements of the offence of cruel treatment as a serious violation of Common Article 3 and Additional Protocol II are the same as of other inhumane acts as a Crime against Humanity, except that the victim of cruel treatment must be a person not taking direct part in the hostilities, and the Accused must have known or had reason to know that the victim was a person not taking direct part in the hostilities.
156. The Chamber considers that the constitutive elements of cruel treatment are as follows:
(i) The occurrence of an act or omission;
(ii) The act or omission caused serious mental or physical suffering or injury, or constituted a serious attack on human dignity, to a person not taking direct part in the hostilities; and
(iii) The Accused intended to cause serious mental or physical suffering or injury or a serious attack on human dignity or acted in the reasonable knowledge that this would likely occur. 
SCSL, Fofana and Kondewa case, Judgment, 2 August 2007, §§ 154–156.
In addition to the charge of cruel treatment as a violation of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II, the accused were also charged, inter alia, with inhumane acts as a crime against humanity, punishable under Article 2(i) of the 2002 Statute of the Special Court for Sierra Leone. 
SCSL, Fofana and Kondewa case, Indictment, 4 February 2004, § 26, Count 3.
The Trial Chamber stated with regard to the requirements of this crime:
149. The Chamber is of the opinion that the crime of other inhumane acts is a residual category for serious acts which are not otherwise enumerated in Article 2 [of the 2002 Statute of the Special Court for Sierra Leone] but which nevertheless require proof of the same general requirements.
150. In the Chamber’s view, the constitutive elements of the crime of other inhumane acts are:
(i) The occurrence of an act or omission of similar seriousness to the other acts enumerated in Article 2 of the Statute;
(ii) The act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity;
(iii) The Accused, at the time of the act or omission, had the intention to commit the inhumane act or acted in the reasonable knowledge that this would likely occur.
151. In order to assess the seriousness of an act or omission, consideration must be given to all the factual circumstances of the case which may include the nature of the act or omission, the context in which it occurred, the personal circumstances including the age, gender and health of the victim, and the physical, mental and moral effects of the act or omission on the victim.
152. The Chamber takes the view that the intention to inflict other inhumane acts is satisfied where the Accused, at the time of the act or omission, had the intention to inflict serious mental or physical suffering or injury or to commit a serious attack on the human dignity of the victim, or where he or she had reasonable knowledge that the act or omission would likely cause serious physical or mental suffering or injury or a serious attack on human dignity.
153. The Chamber recognises that a third party could suffer serious mental harm by witnessing acts committed against others, particularly against family or friends. The Chamber is also of the opinion that the Accused may be held liable for causing serious mental harm to a third party who witnesses acts committed against others only where, at the time of the act, the Accused had the intention to inflict serious mental suffering on the third party, or where the Accused had reasonable knowledge that his act would likely cause serious mental suffering on the third party. To this effect, the Chamber endorses the view of the ICTR Trial Chamber in Kayishema and Ruzindana that “if at the time of the act, the Accused was unaware of the third party bearing witness to his act, then he cannot be held responsible for the mental suffering of the third party.” 
SCSL, Fofana and Kondewa case, Judgment, 2 August 2007, §§ 149–153.
Human Rights Committee
In its General Comment on Article 7 of the 1966 International Covenant on Civil and Political Rights in 1992, the Human Rights Committee stated that the prohibition of torture or cruel, inhuman or degrading treatment “relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim”. It also noted: “Prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by Article 7.” 
Human Rights Committee, General Comment No. 20 (Article 7 of the 1966 International Covenant on Civil and Political Rights), 10 April 1992, §§ 5–6.
On the basis of these considerations, the Human Rights Committee has on numerous occasions found a breach of Article 7 of the 1966 International Covenant on Civil and Political Rights. 
See, e.g., Human Rights Committee, Marais v. Madagascar, Views, 24 March 1983, § 17(4) (three years in a cell measuring 1m by 2m); Larrosa Bequio v. Uruguay, Views, 29 March 1983, § 10(3) (one visitor in seven months); Gómez de Voituret v. Uruguay, Views, 10 April 1984, § 12(2) (solitary confinement for several months); Espinoza de Polay v. Peru, Views, 6 November 1997, § 8(6) (total isolation for a year).
Human Rights Committee
In Améndola Massiotti and Baritussio v. Uruguay in 1982, the Human Rights Committee held that the following conditions of imprisonment amounted, as inhuman treatment, to a violation of Article 7 of the 1966 International Covenant on Civil and Political Rights:
During the rainy period the water was 5 to 10 cm deep on the floor of the cells. In three of the cells, each measuring 4m by 5m, 35 prisoners were kept. The prison had no open courtyard and the prisoners were kept indoors under artificial light all day. On 1 August 1977 Carmen Améndola Massiotti was transferred to Punta Rieles prison. There she was kept in a hut measuring 5m by 10m. The place was overcrowded with 100 prisoners and the sanitary conditions were insufficient. She was subjected to hard labour and the food was very poor. 
Human Rights Committee, Améndola Massiotti and Baritussio v. Uruguay, Views, 26 July 1982, §§ 10–13.
Human Rights Committee
In Deidrick v. Jamaica in 1998, the Human Rights Committee held:
With regard to the deplorable conditions of detention at St. Catherine’s District Prison, the Committee notes that author’s counsel has made precise allegations, related thereto, i.e. that the author is locked-up in his cell 23 hours a day, no mattress or bedding are provided, that there is lack of artificial light and no integral sanitation, inadequate medical services, deplorable food and no recreational facilities etc. All of this has not been contested by the State party, except in a general manner saying that these conditions affect all prisoners. In the Committee’s opinion, the conditions described above, which affect the author directly are such as to violate his right to be treated with humanity and with respect for the inherent dignity of the human person, and are therefore contrary to the [1966 International Covenant on Civil and Political Rights]. It finds that holding a prisoner in such conditions of detention constitutes inhuman treatment in violation of article 10, paragraph 1, and of article 7. 
Human Rights Committee, Deidrick v. Jamaica, Views, 9 April 1998, § 9.3.
Human Rights Committee
In Staselovich v. Belarus in 2003, the Human Rights Committee stated:
The Committee notes that the author’s claim that her family was informed of neither the date, nor the hour, nor the place of her son’s execution, nor of the exact place of her son’s subsequent burial, has remained unchallenged. In the absence of any challenge to this claim by the State party, and any other pertinent information from the State party on the practice of execution of capital sentences, due weight must be given to the author’s allegation. The Committee understands the continued anguish and mental stress caused to the author, as the mother of the condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. Complete secrecy surrounding the date of execution, and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the scheduled date for the execution of her son, and their subsequent persistent failure to notify her of the location of her son’s grave amounts to inhuman treatment of the author, in violation of article 7 of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Staselovich v. Belarus, Views, 24 April 2003, § 9.2.
Human Rights Committee
In Schedko v. Belarus in 2003, the Human Rights Committee stated:
The Committee notes that the author’s claim that her family was informed of neither the date, nor the hour, nor the place of her son’s execution, nor of the exact place of her son’s subsequent burial, has remained unchallenged. In the absence of any challenge to this claim by the State party, and any other pertinent information from the State party on the practice of execution of capital sentences, due weight must be given to the author’s allegation. The Committee understands the continued anguish and mental stress caused to the author, as the mother of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. The complete secrecy surrounding the date of execution, and the place of burial and the refusal to hand over the body for burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the scheduled date for the execution of her son, and their subsequent persistent failure to notify her of the location of her son’s grave amounts to inhuman treatment of the author, in violation of article 7 of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Schedko v. Belarus, Views, 28 April 2003, § 10.2.
Human Rights Committee
In Sarma v. Sri Lanka in 2003, the Human Rights Committee noted that the State party had not denied the complainant’s claim that his son had been abducted by an officer of the Sri Lankan Army on 23 June 1990 and had remained unaccounted for since that date. The Human Rights Committee held:
As to the alleged violation of article 7 [of the 1966 International Covenant on Civil and Political Rights], the Committee recognizes the degree of suffering involved in being held indefinitely without any contact with the outside world, and observes that, in the present case, the author appears to have accidentally seen his son some 15 months after the initial detention. He must, accordingly, be considered a victim of a violation of article 7. Moreover, noting the anguish and stress caused to the author’s family by the disappearance of his son and by the continuing uncertainty concerning his fate and whereabouts, the Committee considers that the author and his wife are also victims of violation of article 7 of the Covenant. The Committee is therefore of the opinion that the facts before it reveal a violation of article 7 of the Covenant both with regard to the author’s son and with regard to the author’s family. 
Human Rights Committee, Sarma v. Sri Lanka, Views, 31 July 2003, § 9.5.
Human Rights Committee
In Howell v. Jamaica in 2003, the Human Rights Committee noted:
6.2 In relation to the claim as to the violation of articles 7 and 10 (1) [of the 1966 International Covenant on Civil and Political Rights], the Committee observes that the author has given a detailed account of the treatment he was subjected to and that the State party has not challenged his grievances. The Committee considers that the repeated beatings inflicted on the author by warders amount to a violation of article 7 of the Covenant. Furthermore, taking into account the Committee’s earlier views in which it has found the conditions on death row in St. Catherine’s District Prison to violate article 10 (1), the Committee considers that the author’s conditions of detention, taken together with the lack of medical and dental care and the incident of the burning of his personal belongings, violate the author’s right to be treated with humanity and respect for the dignity of his person under article 10 (1) of the Covenant.
6.3 As to the claim that severe mental distress amounts to a further violation of Article 7 caused by the continued uncertainty of whether or not the author would be executed, the Committee recalls its constant jurisprudence that prolonged delays in the execution of a sentence of death do not per se constitute a violation of article[…] 7 in the absence of other “compelling circumstances” In the present case, the Committee is of the view that the author has not shown the existence of such compelling circumstances. Accordingly, there has been no violation of article 7 in this respect. 
Human Rights Committee, Howell v. Jamaica, Views, 7 November 2003, §§ 6.2–6.3.
Human Rights Committee
In Wilson v. Philippines in 2003, the Human Rights Committee stated:
2.4 The author was then placed on death row in Muntinlupa prison, where a thousand death row prisoners were kept in three dormitories. Foreign inmates were continually extorted by other inmates with the acquiescence, and sometimes at the direction of, prison authorities … The author was pressured and tortured to provide gangs and officials with money. There were no guards in the dormitory or cells, which contained over 200 inmates and remained unlocked at all times. His money and personal effects had been removed from him en route to the prison, and for three weeks he had no visitors, and therefore no basic necessities such as soap or bedding. Food comprised unwashed rice and other inappropriate substances. Sanitation consisted of two non-flushing toilet bowls in an area which was also a 200-person communal shower.
7.3 … The Committee considers that the conditions of detention described, as well as the violent and abusive behaviour both of certain prison guards and of other inmates, as apparently acquiesced in by the prison authorities, are seriously in violation of the author’s right, as a prisoner, to be treated with humanity and in with respect for his inherent dignity, in violation of article 10, paragraph 1 [of the 1966 International Covenant on Civil and Political Rights]. As at least some of the acts of violence against the author were committed either by the prison guards, upon their instigation or with their acquiescence, there was also a violation of article 7. There is also a specific violation of article 10, paragraph 2, arising from the failure to segregate the author, pre-trial, from convicted prisoners.
7.4 As to the claims concerning the author’s mental suffering and anguish as a consequence of being sentenced to death, the Committee observes that the authors’ mental condition was exacerbated by his treatment in, as well as the conditions of, his detention, and resulted in documented long-term psychological damage to him. In view of these aggravating factors constituting further compelling circumstances beyond the mere length of time spent by the author in imprisonment under a sentence of death, the Committee concludes that the author’s suffering under a sentence of death amounted to an additional violation of article 7. 
Human Rights Committee, Wilson v. Philippines, Views, 11 November 2003, §§ 2.4 and 7.3–7.4.
Human Rights Committee
In Telitsina v. Russian Federation in 2004, the Human Rights Committee stated that the complainant claimed that
her son was brutally beaten, hung by a wire and left hanging inside the compound of the [Correctional Labour] Centre … She claims to have seen in person, at the funeral, how her son’s body had been mutilated – his nose had been broken and was hanging limply, a piece of flesh had been torn from the right side of his chin, his brow was swollen on the right, blood was coming out of his right ear, the palm of his right hand had been grazed and was a dark purple colour, his spine and back were damaged and his tongue was missing. 
Human Rights Committee, Telitsina v. Russian Federation, Views, 29 April 2004, § 2.2.
On the basis of the complainant’s arguments in respect of her son’s body as it was handed over to the family, the Human Rights Committee, observing that not all of the complainant’s arguments were responded to by the State party, found violations of Article 6, paragraph 1, Article 7 and Article 10, paragraph 1, of the 1966 International Covenant on Civil and Political Rights. 
Human Rights Committee, Telitsina v. Russian Federation, Views, 29 April 2004 §§ 7.4–7.7.
Human Rights Committee
In Pagdayawon v. Philippines in 2004, the Human Rights Committee held:
The Committee notes the author’s claims of violations under articles 7 and 10, paragraph 1 [of the 1966 International Covenant on Civil and Political Rights], on account of the fact that he would not be notified of the date of his execution until dawn of the day in question, whereupon he would be executed within 8 hours and would have insufficient time to bid farewell to family members and organise his personal affairs. It further notes the State party’s contention that the death sentence shall be carried out “not earlier than one (1) year nor later than eighteen (18) months after the judgment has become final and executory, without prejudice to the exercise by the President of his executive clemency powers at all times.” … The Committee reiterates its prior jurisprudence that the issue of a warrant for execution necessarily causes intense anguish to the individual concerned and is of the view that the State party should attempt to minimise this anguish as far as possible. However, on the basis of the information provided, the Committee cannot find that the setting of the time of the execution of the author within eight hours after notification, considering that he would already have had at least one year following the exhaustion of domestic remedies and prior to notification to organize his personal affairs and meet with family members, would violate his rights under articles 7, and 10, paragraph 1. 
Human Rights Committee, Pagdayawon v. Philippines, Views, 8 December 2004, § 5.4.
Human Rights Committee
In Khalilov v. Tajikistan in 2005, the Human Rights Committee stated:
7.2 The Committee has taken note of the author’s allegations that her son, while in detention, was ill-treated and beaten by the investigators to force him to confess guilt and that in order to put additional pressure on him, his father was beaten and tortured in front of him and as a consequence died in the police premises. The author furthermore identified by name some of the individuals alleged to have been responsible for the beatings of her son and for burning her husband’s hands with an iron. In the absence of any State party information, due weight must be given to the author’s allegations, to the effect that they have been sufficiently substantiated. The Committee considers that the facts before it justify the conclusion that the author’s son was subjected to torture and to cruel and inhuman treatment, in violation of articles 7 and 10, paragraph 1, of the [1966 International Covenant on Civil and Political Rights].
7.7 The Committee has noted the author’s claim that the Tajik authorities, including the Supreme Court, have consistently ignored her requests for information and systematically refused to reveal any detail about her son’s situation or whereabouts. The Committee understands the continued anguish and mental stress caused to the author, as the mother of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. The secrecy surrounding the date of execution, and the place of burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the execution of her son amounts to inhuman treatment of the author, in violation of article 7 of the Covenant. 
Human Rights Committee, Khalilov v. Tajikistan, Views, 13 April 2005, §§ 7.2 and 7.7.
Human Rights Committee
In Rouse v. Philippines in 2005, the Human Rights Committee held:
As to the author’s claim under article 7 [of the 1966 International Covenant on Civil and Political Rights], the Committee recalls that States parties are under an obligation to observe certain minimum standards of detention, which include provision of medical care and treatment for sick prisoners, in accordance with rule 22 (2) of the Standard Minimum Rules for the Treatment of Prisoners. It is apparent from the author’s uncontested account that he suffered from severe pain due to aggravated kidney problems, and that he was not able to obtain proper medical treatment from the prison authorities. As the author suffered such pain for a considerable amount of time, from 2001 up to his release in September 2003, the Committee finds that he was the victim of cruel and inhuman treatment in violation of article 7. In the light of this finding, it is unnecessary to consider the author’s additional claim under article 7. 
Human Rights Committee, Rouse v. Philippines, Views, 5 August 2005, § 7.8.
Human Rights Committee
In Aliboev v. Tajikistan in 2005, the Human Rights Committee stated:
The Committee has taken note of the author’s claim that the authorities did not inform her about her husband’s execution but continued to acknowledge her intercessions on his behalf following the execution. The Committee notes that the law then in force did not allow for a family of an individual under sentence of death to be informed either of the date of execution or the location of the burial site of the executed prisoner. The Committee understands the continued anguish and mental stress caused to the author, as the wife of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. It recalls that the secrecy surrounding the date of execution, and the place of burial, as well as the refusal to hand over the body for burial, have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the execution of her husband and the failure to inform her of his burial place, amounts to inhuman treatment of the author, in violation of article 7 of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Aliboev v. Tajikistan, Views, 16 November 2005, § 6.7.
Human Rights Committee
In Boimurodov v. Tajikistan in 2005, the Human Rights Committee stated:
2.2 From the first day of his arrest, the author’s son was allegedly tortured by policemen from various departments, in order to force him to confess to charges of terrorism. The torture consisted of beatings with a truncheon, a pistol handle, and a metal pipe on all parts of the body. Several toenails were pulled out with pliers. His son sought medical assistance on 1 and 8 November 2000, and 2 April 2001; the medical history file states that he had sustained cranial trauma, but other injuries sustained as a result of the torture are not recorded, such as the fact that he was missing nails on several toes. Several officers were subsequently charged in relation to their mistreatment of the author’s son, but none were prosecuted, and all those involved continue to work as policemen.
7.2 In relation to the author’s claims that his son’s rights under articles 7 and 14, paragraph (3)(g) [of the 1966 International Covenant on Civil and Political Rights] were violated by the State party, the Committee notes that the author has made detailed submissions which the State party has not addressed. The Committee recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol that a State party should examine in good faith all allegations brought against it, and should provide the Committee with all relevant information at its disposal. The Committee does not consider that a general statement about the criminal proceedings in question meets this obligation. In such circumstances, due weight must be given to the author’s allegations, to the extent that they have been properly substantiated. In light of the detailed information provided by the author to the effect that his son was subjected to severe pain and suffering at the hands of the State party’s law enforcement officers, some of whom were subsequently charged in relation to this mistreatment, and in the absence of an explanation from the State party, the Committee considers that the case before it discloses a violation of articles 7 and 14, paragraph 3(g) of the Covenant. 
Human Rights Committee, Boimurodov v. Tajikistan, Views, 16 November 2005, §§ 2.2 and 7.2.
Human Rights Committee
In Vargas Más v. Peru in 2005, the Human Rights Committee stated:
2.1 The author was the director of the César Vallejo university preparation school and a teacher of mathematics. On 20 June 1992, he was arrested in his home in Lima by police officers belonging to the Department of Counter-Terrorism (DINCOTE); the officers had no warrant. He states that he was taken to a DINCOTE facility and tortured. In particular, as has occurred with other prisoners, he was subjected to electric shocks and hung with his arms tied behind him. He was also taken to the beach, where he was subjected to mock drownings.
3.1 The author alleges that he was subjected to physical and psychological torture when held by DINCOTE. Although the author makes no specific reference to any provision of the Covenant, these allegations fall under article 7 [of the 1966 International Covenant on Civil and Political Rights].
6.1 The author alleges that, immediately following his arrest, he was taken to a facility of the Department of Counter-Terrorism (DINCOTE), where he was tortured, and he describes the type of torture to which he was submitted. In view of the State party’s failure to adduce any information that might contradict these allegations, due weight must be given to them and it must be assumed that the events occurred as described by the author. Consequently, the Committee finds a violation of article 7 of the Covenant. 
Human Rights Committee, Vargas Más v. Peru, Views, 16 November 2005, §§ 2.1, 3.1 and 6.1.
Human Rights Committee
In Alegre v. Peru in 2005, the Human Rights Committee stated:
2.2 The author was interrogated blindfolded. During interrogation she was threatened with the arrest of her family members and with the confiscation of her possessions and medical equipment; she was accused of treating terrorists and was hit on the head and lost consciousness. When she recovered her senses, the interrogation continued with blows, insults and threats, including the threat of rape. During the first days of her detention she was forced to remain standing for the entire day.
7.2 The author asserts that during the days she was held by DINCOTE [Department of Counter-Terrorism] she was subjected to torture, of which she provides details. As the State party provides no information to contradict these allegations, due weight must be given to them and it must be taken that the events occurred as described by the author. The Committee thus considers that there has been a violation of article 7 of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Alegre v. Peru, Views, 17 November 2005, §§ 2.2 and 7.2.
Human Rights Committee
In Chisanga v. Zambia in 2005, the Human Rights Committee stated:
7.2 With regard to the contradictory notifications about the outcome of the author’s appeal to the Supreme Court, the Committee notes that the author and the State party have provided conflicting versions of the facts. According to the author, he was handed two verdicts on appeal, one commuting his death sentence to 18 years of imprisonment, the subsequent one upholding his death penalty and sentencing him to an additional 18 years of imprisonment…
7.3 The Committee further considers that to keep the author in doubt as to the result of his appeal, in particular by making him believe that his sentence had been commuted, only to inform him later that it was not, and by returning him to death row after two years in the long-term section, without an explanation on the part of the State, had such a negative psychological impact and left him in such continuing uncertainty, anguish and mental distress as to amount to cruel and inhuman treatment. The Committee finds that the State party violated the author’s rights protected by article 7 of the [1966 International Covenant on Civil and Political Rights] in this context. 
Human Rights Committee, Chisanga v. Zambia, Views, 18 November 2005, §§ 7.2–7.3.
Human Rights Committee
In Bee and Obiang v. Equatorial Guinea in 2005, the Human Rights Committee held:
The Committee takes note of the authors’ claims that the alleged victims were subjected to treatment incompatible with article 7 of the [1966 International Covenant on Civil and Political Rights]. The authors have described various instances of ill-treatment to which they were apparently subjected, such as being deprived of food and drink for five consecutive days. In the absence of a reply from the State party challenging these allegations, the Committee considers that they should be given their due weight and finds that there has been a violation of article 7 of the Covenant. 
Human Rights Committee, Bee and Obiang v. Equatorial Guinea, Views, 30 November 2005, § 6.1.
Human Rights Committee
In Sultanova v. Uzbekistan in 2006, the Human Rights Committee held:
The Committee has noted the author’s claim that the State party authorities ignored her requests for information and systematically refused to reveal her sons’ situation or whereabouts. The Committee understands the continued anguish and mental stress caused to the author, as the mother of the condemned prisoners, by the persisting uncertainty of the circumstances that led to their execution, as well as the location of their gravesite. The secrecy surrounding the date of execution, and failure to disclose the place of burial have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ failure to notify the author of the execution of her sons, amounts to inhuman treatment, in violation of article 7 [of the 1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Sultanova v. Uzbekistan, Views, 19 April 2006, § 7.10.
The Human Rights Committee further stated:
The Committee considers that in the absence of any explanation from the State party, the author’s exposure, handcuffed and naked, to her son, Uigun, on 5 January 1999 (para. 2.3 above), in itself amounts to inhuman and degrading treatment, contrary to article 7 [of the 1966 International Covenant on Civil and Political Rights] and constitutes a violation thereof. 
Human Rights Committee, Sultanova v. Uzbekistan, Views, 19 April 2006, § 7.11.
Human Rights Committee
In Bousroual v. Algeria in 2006, the Human Rights Committee stated:
The Committee notes that while not specifically invoked by the author, the communication appears to raise issues under article 7 of the [1966 International Covenant on Civil and Political Rights] in relation to the author and her husband. The Committee recognizes the degree of suffering involved in being held indefinitely without contact with the outside world. In this context, the Committee recalls its general comment No. 20 (44) on article 7 of the Covenant, which recommends that States parties should make provision against incommunicado detention. In the circumstances, the Committee concludes that the disappearance of the author’s husband and the prevention of contact with his family and with the outside world constitute a violation of article 7 of the Covenant. The Committee also notes the anguish and stress caused to the author by the disappearance of her husband and the continued uncertainty concerning his fate and whereabouts. The Committee is therefore of the opinion that the facts before it reveal a violation of article 7 of the Covenant with regard to the author’s husband as well as the author herself. 
Human Rights Committee, Bousroual v. Algeria, Views, 24 April 2006, § 9.8.
Human Rights Committee
In Shukurova v. Tajikistan in 2006, the Human Rights Committee stated:
The Committee finally notes the author’s claim that the authorities did not inform her about her husband’s and his brother’s execution until 23 July 2002. The law in force in the State party still does not allow for the family of an individual under sentence of death to be informed either of the date of execution or the location of the burial site of the executed individual. The Committee understands the continued anguish and mental stress caused to the author, as the wife of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. It recalls that the secrecy surrounding the date of execution, and the place of burial, as well as the refusal to hand over the body for burial, have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ failure to notify the author of the execution of her husband and of her brother in law, and the failure to inform her of their burial places, amounts to inhuman treatment of the author, contrary to article 7 [of the 1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Shukurova v. Tajikistan, Views, 26 April 2006, § 8.7.
Human Rights Committee
In Boucherf v. Algeria in 2006, the Human Rights Committee held:
9.6 As to the alleged violation of article 7 of the [1966 International Covenant on Civil and Political Rights], the Committee recognizes the degree of suffering involved in being held indefinitely without contact with the outside world. In this context, the Committee recalls its general comment No. 20, on article 7, which recommends that States parties should make provision against incommunicado detention. In the circumstances, the Committee concludes that the disappearance of the author’s son and the prevention of contact with his family and with the outside world constitute a violation of article 7 of the Covenant. Further, the circumstances surrounding Riad Boucherf’s disappearance and the several concordant testimonies that he was repeatedly tortured give rise to a strong inference that he was so treated. Nothing has been submitted to the Committee by the State party to dispel or counter such an inference. The Committee concludes that the treatment of Riad Boucherf amounts to a violation of article 7.
9.7 The Committee also notes the anguish and stress caused to the author by the disappearance of her son and the continued uncertainty concerning his fate and whereabouts. The Committee is therefore of the opinion that the facts before it reveal a violation of article 7 of the Covenant with regard to the author herself. 
Human Rights Committee, Boucherf v. Algeria, Views, 27 April 2006, §§ 9.2 and 9.6–9.7.
Human Rights Committee
In Bazarov v. Uzbekistan in 2006, the Human Rights Committee held:
The Committee has taken note of the authors’ claim that the authorities did not inform them about their son’s situation for a long period of time, and learned about his execution a long time after his death. It notes that the State party’s law does not allow, for a family of an individual under sentence of death, to be informed either of the date of execution or of the location of the burial site of an executed prisoner. The Committee understands the continued anguish and mental stress caused to the authors, as the mother and father of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite. It recalls that the secrecy surrounding the date of execution, and the place of burial, as well as the refusal to hand over the body for burial, have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the authors of the execution of their son and the failure to inform them of his burial place, amounts to inhuman treatment of the authors, in violation of article 7 of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Bazarov v. Uzbekistan, Views, 8 August 2006, § 8.5.
Human Rights Committee
In Medjnoune v. Algeria in 2006, the Human Rights Committee held:
Concerning the complaint of violation of article 7 of the [1966 International Covenant on Civil and Political Rights], the Committee is aware of the suffering entailed by detention without contact with the outside world for an indefinite period. In this connection, it recalls its general comment No. 20 (44) relating to article 7, in which it recommends States parties to take measures to prohibit incommunicado detention. In these circumstances, the Committee concludes that the apprehension and continued captivity of the author’s son, preventing him from communicating with his family and with the outside world, constitute a violation of article 7 of the Covenant. Moreover, the circumstances surrounding the apprehension and continued captivity of Malik Medjnoune and his testimony of May 2000 that he was tortured on several occasions constitute strong grounds for believing that he was subjected to such treatment. The Committee has received no information from the State party that contradicts that belief. The Committee concludes that the treatment to which Malik Medjnoune was subjected constitutes a violation of article 7. 
Human Rights Committee, Medjnoune v. Algeria, Views, 9 August 2006, § 8.4.
Human Rights Committee
In Larrañaga v. Philippines in 2006, the Human Rights Committee held:
With regard to the alleged violation of article 7 [of the 1966 International Covenant on Civil and Political Rights], the Committee considers that to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. In circumstances where there is a real possibility that the sentence will be enforced, that fear must give rise to considerable anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence. Indeed, as the Committee has previously observed, the imposition of any death sentence that cannot be saved by article 6 would automatically entail a violation of article 7. The Committee therefore concludes that the imposition of the death sentence on the author after the conclusion of proceedings which did not meet the requirements of article 14 of the Covenant amounts to inhuman treatment, in violation of article 7. 
Human Rights Committee, Larrañaga v. Philippines, Views, 14 September 2006, § 7.11.
Human Rights Committee
In Ashurov v. Uzbekistan in 2007, the Human Rights Committee noted the following facts, as submitted by the author of the complaint:
… [The author’s son] was deprived of food and sleep; was placed in handcuffs which were then attached to a battery; was systematically beaten; and electric shocks were applied to his genitals and fingers. The author states that, unable to withstand the torture, his son gave a false confession on 5 May 2002. Handcuffed and in the absence of a lawyer, he was forced to sign the protocol of interrogation, and then to write a confession that was dictated by the investigator of the Section of Internal Affairs of Zheleznodorozhny district of Dushanbe, implicating himself and two of his friends, Shoymardonov and Mirzogulomov. The same day, he was forced to sign the protocol of confrontation with Sulaymonov and the protocol of verification of his testimony at the crime scene. The verification process was video taped; marks of torture on his face are visible on the video recording of 5 May 2002. 
Human Rights Committee, Ashurov v. Uzbekistan, Views, 3 May 2007, § 2.2.
The Human Rights Committee held:
The Committee has taken note of the author’s allegations that his son was beaten and subjected to torture by the MoI [Ministry of Interior] investigators, to make him confess, and that torture marks were visible on the video recording of 5 May 2002. The author also brought the allegations of torture repeatedly and without success to the attention of the authorities. In the absence of any State party information, due weight must be given to the author’s allegations. In light of the detailed and uncontested information provided by the author, the Committee concludes that the treatment that Olimzhon Ashurov was subjected to was in violation of article 7 of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Ashurov v. Uzbekistan, Views, 3 May 2007, § 6.2.
Human Rights Committee
In Karimov and Nursatov v. Tajikistan in 2007, the authors submitted that certain relatives of theirs had been tortured as follows:
2.5 During the preliminary investigation, [Karimov’s] son was allegedly subjected to torture to force him to confess guilt. He was beaten, kicked in the kidneys, and beaten with batons. Allegedly, he received electroshocks with the use of a special electric device: electric cables were attached to different parts of his body (they were placed in his mouth and attached to his teeth, as well as to his genitals). According to the author, one of his son’s torturers was I.R., deputy head of the Criminal Search Department of Dushanbe. His son was also threatened that if he did not confess guilt, his parents would also be arrested. These threats were taken seriously by his son, because he was aware that his two brothers and his father had already been arrested on 27 April and released on 28 May 2001. In these circumstances, he confessed and signed the confession (exact date not provided).
2.14 According to [Nursatov], his brother Askarov was subjected to beatings and torture to force him to confess guilt. He allegedly received electric shocks with a special device, and electric cables were introduced into his mouth and anus or were attached to his teeth or genitals. One of his fingers was broken. In addition, he was placed under psychological pressure, because his brother Amon (the author of the present communication) was also arrested together with their other brother, Khabib, on 27 April, and detained until 29 May 2001, and their fourth brother, Sulaymon, was also arrested on 27 April and released two months later. Askarov was constantly reminded of his brothers’ arrests. Because of this treatment, Askarov and [Nursatov’s two cousins, the] Davlatovs signed confessions. 
Human Rights Committee, Karimov and Nursatov v. Tajikistan, Views, 3 May 2007, §§ 2.5 and 2.14.
The Human Rights Committee held:
The authors claimed that the alleged victims were beaten and tortured by the investigators, so as to make them confess guilt. These allegations were presented both in court and in the context of the present communication. The State party has replied, in relation to the case of Mr. Karimov, that these allegations were not corroborated by the materials in the case file, and that the alleged victim was examined on two occasions by medical doctors who did not find marks of torture on his body. The State party makes no comment in relation to the torture allegations made on behalf of Mr. Askarov and the Davlatov brothers. In the absence of any other pertinent information from the State party, due weight must be given to the authors’ allegations. The Committee recalls that once a complaint about ill-treatment contrary to article 7 [of the 1966 International Covenant on Civil and Political Rights] has been filed, a State party must investigate it promptly and impartially (7). In the present case, the authors have presented a sufficiently detailed description of the torture suffered by Messrs Karimov, Askarov, and the Davlatov brothers, and have identified some of the investigators responsible. The Committee considers that in the circumstances of the case, the State party has failed to demonstrate that its authorities adequately addressed the torture allegations put forward by the authors. In the circumstances, the Committee concludes that the facts as presented disclose a violation of article 7, read together with article 14, paragraph 3 (g), of the Covenant. 
Human Rights Committee, Karimov and Nursatov v. Tajikistan, Views, 3 May 2007, § 7.2.
Human Rights Committee
In Njaru v. Cameroon in 2007, the Human Rights Committee stated:
2.4 On 12 October 1997, Mr. H.N. [Chief of Post for the Immigration Police in Ekondo-Titi (Ndia Division)] and Mr. B.N., Chief of Post for the Brigade Mixte Mobile, stopped their police car next to the author, who was standing on the street in Ekondo-Titi. Mr. H.N. asked the author why he had never come to the police station, despite several summons, and again criticized him for having written press articles denouncing police corruption in the district. When the author answered that he had only received oral summons, which were of no legal relevance, Mr. H.N. again threatened to arrest and torture him. He then assaulted the author, beating and kicking him to unconsciousness, removed the author’s press ID, and left.
2.5 A medical report dated 15 October 1997, issued by the District Hospital of Ekondo-Titi (Ndia), states: “Patient in agony with tenderness around the mandobulo-auxillary joint, thoracoabdominal tenderness, swollen tender leg muscles. Conclusion: Polytrauma.” As a result of his continuous head and mouth pain and hearing loss in his left ear, the author consulted an oral surgeon at the Pamol Lobe Estate Hospital on 17 December 1998, who, in a letter dated 4 April 1999, confirmed that the author’s jaw bone was broken and partially dislocated and that his left ear drum was perforated, recommending surgery and antibiotics as well as anti-inflammatory treatment. Another medical report, issued by the District Hospital, dated 29 August 2000, states that the author suffers from memory lapses, stress, depression and distorted facial configuration and that his symptoms have not clinically improved since his torture on 12 October 1997.
2.10 On 8 June 2001, armed policemen ordered the author and his friend, Mr. I.M., to leave a bar in Kumba where they were having a drink. Police constable J.T. seized the author, pushed him to the ground, and inflicted him with blows and kicks. When Mr. I.M. tried to intervene, the policemen assaulted him as well. The author was brought to the Kumba police station without any explanation. During the trip, a trainee police officer beat and kicked him on his head and leg, hit him with the butt of his gun and threatened to “deal with him.” Upon arrival at the police station, the police commissioner of Kumba, Mr. J.M.M., told him to go home. When the author asked for a written explanation as to why he had been arrested and ill-treated, he was pushed out of, and not readmitted to, the police station.
2.11 A medico-legal certificate issued by the Ministry of Public Health on 9 June 2001 states that the author “presents […] left ear pains, chest pains, waist and back pains, bilateral hips and leg pains all due to severe beating by police.” …
3.1 The author submits that his beating on 12 October 1997, resulting in a fractured jaw and hearing damage, was so severe that it amounts to torture within the meaning of article 7 [of the 1966 International Covenant on Civil and Political Rights]. The repeated threats against his life by the police, often accompanied by acts of brutality, caused him grave psychological suffering, which itself is said to violate article 7. He claims that, in light of the systematic practice of torture and unlawful killings in Cameroon, he was fully justified in fearing that those threats would be acted upon. In accordance with the findings of various international bodies, these threats, as well as the State party’s failure to put an end to them, were incompatible with the prohibition of torture and other forms of ill-treatment.
3.2 The author submits that the blows and kicks that he received during the trip to the Kumba police station on 8 June 2001, resulting in severe pain to his head, chest, ears and legs, were inflicted while in detention, thereby violating article 10, in addition to article 7, of the Covenant.
6.1 As to the claim of a violation of articles 7 and 10 of the Covenant with regard to his alleged physical and mental torture by the security forces, the Committee notes that the author has provided detailed information and evidence, including several medical reports, to corroborate his claims. He has identified by name most of the individuals alleged to have participated in all of the incidents in which he claims to have been harassed, assaulted, tortured and arrested since 1997. He has also provided numerous copies of complaints made to several different bodies, none of which, it would appear, have been investigated. In the circumstances, and in the absence of any explanations from the State party in this respect, due weight must be given to his allegations. The Committee finds that the abovementioned treatment of the author by the security forces amounted to violations of article 7 alone and in conjunction with article 2, paragraph 3, of the Covenant. 
Human Rights Committee, Njaru v. Cameroon, Views, 14 May 2007, §§ 2.4–2.5, 2.10–2.11, 3.1–3.2 and 6.1.
Human Rights Committee
In Khudayberganova v. Uzbekistan in 2007, the Human Rights Committee stated:
2.4 Khudayberganov was initially arrested in Tajikistan, on 24 August 2001, allegedly as an “Uzbek spy”. He was interrogated and tortured in the Tajik Ministry of Internal Affairs facilities. On 5 February 2002, he was transferred to Uzbekistan and arrested there. He was kept in the basement of the Ministry of Internal Affairs in Tashkent, where he was severely beaten and tortured by investigators and forced to confess guilt. The author submits a copy of an undated letter by her son, in which he describes the tortures suffered. Allegedly, he was beaten with batons, and he was prevented from sleeping, and not given any food “for weeks”. He received kicks in the groin area as well on the head. He was hit with a tube, and started hearing noise in his head. All this was done in the absence of a lawyer. He was beaten by several male individuals aged 30–35 years. He resisted until the moment when he was threatened that his relatives would be brought there and his mother, sister, and wife would lose “their dignity” in front of him. On 11 February 2002, he was placed in the Investigation Detention Centre of the National Security Service, NSS, and was officially charged under articles 242, 155, 158, 159, and 161 of the Uzbek Criminal Code (organisation of a criminal association and establishment of an armed group, ensuring its leadership or participating in it; terrorism; attempt on the life of the President; Conspiring to seize power and to overthrow the Constitutional order; diversion/subversive activity).
5.1 The author provided further information in 2003. She notes that the State party provides no information about the conduct of any investigation with respect to her son’s torture allegations, and observes that her son still displays a scar on his head as a result of a blow with a metal tube. When he was transferred to the NSS’s detention centre, he was tortured, had psychotropic substances administered, and was threatened that his relatives would be raped in front of him …
8.2 The author claims that her son was beaten and tortured by investigators, and thus forced to confess his guilt. He retracted his initial confessions in court, claiming that they had been obtained under duress and identifying the names of those responsible for his ill-treatment. The State party has rejected the claim as a defence strategy, and has asserted that no torture or unlawful methods of investigation were used against Khudayberganov, and that the entire investigation and all court proceedings complied with the law in force. The author has also claimed that her son was ill-treated on death row, which was not contested by the State party. The Committee recalls that once a complaint about ill-treatment contrary to article 7 [of the 1966 International Covenant on Civil and Political Rights] has been filed, a State party must investigate it promptly and impartially. It notes that the case file contains copies of complaints about the author’s son’s ill-treatment that were brought to the attention of the State party’s authorities, including copies of letters from the alleged victim’s sister, from lawyers, from NGOs’, as well as a letter from Khudayberganov himself, which detailed the methods of torture used against him. The Committee considers that in the circumstances of the case, the State party has failed to demonstrate that its authorities adequately addressed the torture allegations advanced by the author, both in the context of domestic criminal proceedings and the present communication. Accordingly, due weight must be given to her allegations. In the circumstances, the Committee concludes that the facts as presented disclose a violation of the author’s son’s rights under article 7, read together with article 14, paragraph 3 (g), of the Covenant. 
Human Rights Committee, Khudayberganova v. Uzbekistan, Views, 7 August 2007, §§ 2.4, 5.1 and 8.2.
Human Rights Committee
In Aber v. Algeria in 2007, the Human Rights Committee noted the author’s submission regarding his treatment by the Algerian authorities:
2.3 In February 1994, the author was transferred secretly to the Tamanrasset camp in Aïn M’Guel. The transfer took place in inhuman conditions, with prisoners shackled and handcuffed during their transport in a military aircraft. Again, the conditions of detention in this camp were degrading. The military authorities did not tell the author’s family about his detention in the camp. It was only thanks to a telephone call from the relative of a detainee – a resident of Algiers who had permission to visit – that the author’s family found out about his detention in that camp.
2.4 On 23 November 1995, after an amnesty decree by President Zerroual was announced, the author was released after three years and nine months in detention, without any judgement or judicial decision having been adopted …
2.5 On 11 October 1997, the author was abducted in Oran by three members of the military security forces. He was taken to the Magenta detention centre belonging to the Military Security Directorate, known to be a torture centre. He was interrogated by Colonel Hamou and Commander Boudia about a terrorist attack that had taken place on 1 October 1997. During the interrogation, he was thrown to the ground, kicked and insulted. The next morning, he was interrogated again and beaten for several hours with wire, plastic tubing, clubs and electric cables. He was also given electric shocks. At the end of that first day of torture, the author could not talk or move. The next day, he endured another torture session. His torturers threatened to rape him, immersed his head in a bathtub of dirty water, strangled him with a rope and applied electric shocks to his genitals. For about three months, the author was regularly subjected to such torture. During the last two months, the pain was so severe that he was unable to sleep for more than 10 minutes at a time.
2.6 After his first three months of detention at the Magenta centre, he was transferred to a “dark room” as a punishment for having tried to communicate with the other detainees. He spent three months in this cell in complete darkness, isolated, surrounded by rats and infested with lice. During those three months, his only meal was a piece of bread or a ladle of soup every other day. After these three months of solitary confinement, the author was again interrogated and tortured. He was forced to drink several litres of bleach solution. He was also beaten and hung from the ceiling by his wrist. The conditions of detention were degrading and insanitary. Moreover, he was sometimes deprived of food for up to a week.
The Human Rights Committee held:
7.3 As to the alleged detention incommunicado, the Committee recognizes the degree of suffering involved in being held indefinitely without contact with the outside world. It recalls its general comment No. 20, on article 7 [of the 1966 International Covenant on Civil and Political Rights], which recommends that States parties should make provision against detention incommunicado. It notes that the author says that he was transferred in February 1994 to the Tamanrasset camp, where he was detained incommunicado until 23 November 1995. The author also says that he was abducted on 11 October 1997 and detained incommunicado until 23 March 1998. The Committee notes that the State party simply invokes article 5 of the decree proclaiming the state of emergency, which authorized “the placing in security centres, in a specified place, of any adult whose activity threatens public order, public safety or the proper functioning of public services” and claims that the families of detainees were informed about the places and conditions of detention of their relatives. The Committee considers that the State party has not responded to the author’s sufficiently detailed allegations. In the circumstances, the Committee concludes that keeping the author in captivity and preventing him from communicating with his family and the outside world constitutes a violation of article 7 of the Covenant.
7.4 As to the alleged torture at the Magenta centre, the Committee notes that the State party has not responded to these allegations. It considers that in the absence of a reply from the State party, the circumstances surrounding the author’s detention and his allegations that he was tortured several times at the Magenta centre strongly suggest that he was subjected to ill-treatment. The Committee has received nothing from the State party to counter these allegations. The Committee concludes that the treatment of the author at the Magenta centre amounts to a violation of article 7. 
Human Rights Committee, Aber v. Algeria, Views, 16 August 2007, §§ 2.3–2.6 and 7.3–7.4.
Human Rights Committee
In Grioua v. Algeria in 2007, the Human Rights Committee noted the author’s claim that her son had been arrested and imprisoned by State authorities in May 1996. Since that date there had been no official indication of her son’s whereabouts or fate, nor, indeed, any acknowledgment that he had been detained at all. The Human Rights Committee held:
7.6 As to the alleged violation of article 7 of the [1966 International Covenant on Civil and Political Rights], the Committee recognizes the degree of suffering involved in being held indefinitely without contact with the outside world. It recalls its general comment No. 20, on article 7, which recommends that States parties should make provision against detention incommunicado. In the circumstances, the Committee concludes that the disappearance of the author’s son, preventing him from contacting his family and the outside world, constitutes a violation of article 7 of the Covenant. Further, the circumstances surrounding the disappearance of the author’s son and the testimony that he was tortured strongly suggest that he was so treated. The Committee has received nothing from the State party to dispel or counter such an inference. The Committee concludes that the treatment of the author’s son amounts to a violation of article 7.
7.7 The Committee also notes the anguish and distress caused to the author by her son’s disappearance and her continued uncertainty as to his fate. It is therefore of the opinion that the facts before it reveal a violation of article 7 of the Covenant with regard to the author herself. 
Human Rights Committee, Grioua v. Algeria, Views, 16 August 2007, §§ 7.6–7.7.
Human Rights Committee
In Kimouche v. Algeria in 2007, the Human Rights Committee noted the authors’ claim that their son had been arrested and imprisoned by State authorities in May 1996. Since that date there had been no official indication of the son’s whereabouts or fate, nor, indeed, any acknowledgment that he had been detained at all. The Human Rights Committee held:
7.6 As to the alleged violation of article 7 of the [1966 International Covenant on Civil and Political Rights], the Committee recognizes the degree of suffering involved in being held indefinitely without contact with the outside world. It recalls its general comment No. 20, on article 7, which recommends that States parties should make provision against incommunicado detention. In the circumstances, the Committee concludes that the disappearance of Mourad Kimouche, preventing him from contacting his family and the outside world, constitutes a violation of article 7 of the Covenant. Further, the circumstances surrounding the disappearance of the authors’ son and the testimony that he was tortured strongly suggest that he was so treated. The Committee has received nothing from the State party to dispel or counter such an inference. The Committee concludes that the treatment of the authors’ son amounts to a violation of article 7.
7.7 The Committee also notes the anguish and distress caused to the authors by their son’s disappearance and their continued uncertainty as to his fate. It is therefore of the opinion that the facts before it reveal a violation of article 7 of the Covenant with regard to the authors themselves.  
Human Rights Committee, Kimouche v. Algeria, Views, 16 August 2007, §§ 7.6–7.7.
Human Rights Committee
In El Alwani v. Libyan Arab Jamahiriya in 2007, the Human Rights Committee held:
6.5 As to the alleged violation of article 7 of the [1966 International Covenant on Civil and Political Rights], the Committee recognizes the degree of suffering involved in being held indefinitely without contact with the outside world. It recalls its general comment No. 20, on article 7, which recommends that States parties should make provision against detention incommunicado. In the circumstances, the Committee concludes that the disappearance of the author’s brother, preventing him from any contact with his family or the outside world, constitutes a violation of article 7 of the Covenant. Further, the circumstances surrounding the disappearance of the author’s brother and the testimony that the brother was tortured strongly suggest that the brother was so treated. The Committee has received nothing from the State party to dispel or counter such an inference. The Committee concludes that the treatment of the authors’ brother amounts to a violation of article 7.
6.6 The Committee also notes the anguish and distress caused to the author by his brother’s disappearance and subsequent death. Consequently, it finds that the facts before it reveal a violation of article 7 of the Covenant with regard to the author himself. 
Human Rights Committee, El Alwani v. Libyan Arab Jamahiriya, Views, 29 August 2007, §§ 6.5–6.6.
Human Rights Committee
In El Hassy v. Libyan Arab Jamahiriya in 2007, the Human Rights Committee held:
6.2 As to the alleged detention incommunicado of the author’s brother, the Committee recognises the degree of suffering involved in being held indefinitely without contact with the outside world. It recalls its General Comment No. 20 on article 7 [of the 1966 International Covenant on Civil and Political Rights], which recommends that States parties should make provision against detention incommunicado. It notes that the author claims that his brother was detained incommunicado on several occasions, including twice at Abu Salim prison, from around 25 March 1995 to 20 May 1995, and then again from 24 August 1995 to the present time. The Committee notes that the author was detained in the same prison and saw his brother there on several occasions, although he was not allowed to communicate with him. In these circumstances, and in the absence of any explanations from the State party in this respect, due weight must be given to the author’s allegations. The Committee concludes that to keep the author’s brother in captivity and to prevent him from communicating with his family and the outside world constitutes a violation of article 7 of the Covenant.
6.3 As to the alleged beatings of the author’s brother, the Committee notes that eye-witnesses at the prison informed the author that his brother was severely and systematically beaten during interrogation. Furthermore, the author himself witnessed the subsequent deterioration of his brother’s poor physical condition. In these circumstances, and again in the absence of any explanations from the State party in this respect, due weight must be given to the author’s allegations. The Committee concludes that the treatment of the author’s brother at Abu Salim prison amounts to a violation of article 7. 
Human Rights Committee, El Hassy v. Libyan Arab Jamahiriya, Views, 13 November 2007, §§ 6.2–6.3.
The Human Rights Committee further held:
6.6 As to the alleged disappearance of the author’s brother, the Committee recalls the definition of enforced disappearance in article 7, paragraph 2(i), of the Rome Statute of the International Criminal Court: “Enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.” Any act leading to such disappearance constitutes a violation of many of the rights enshrined in the [1966 International Covenant on Civil and Political Rights], including the right to liberty and security of person (art. 9), the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (art. 7) and the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (art. 10). It also violates or constitutes a grave threat to the right to life (art. 6) …
6.8 In the present case, counsel has informed the Committee that the author’s brother disappeared in June 1996 at Abu Salim prison where he was last seen by the author himself and other detained, and that his family still does not know what has happened to him. In the absence of any comments by the State party on the author’s brother’s disappearance, the Committee considers that this disappearance constitutes a violation of article 7. 
Human Rights Committee, El Hassy v. Libyan Arab Jamahiriya, Views, 13 November 2007, §§ 6.6 and 6.8.
The Human Rights Committee further held:
With regard to the author himself, the Committee notes the anguish and stress that the disappearance of the author’s brother since June 1996 caused to the author. It therefore is of the opinion that the facts before it reveal a violation of article 7 of the [1966 International Covenant on Civil and Political Rights] with regard to the author himself. 
Human Rights Committee, El Hassy v. Libyan Arab Jamahiriya, Views, 13 November 2007, § 6.11.
Human Rights Committee
In Titiahonjo v. Cameroon in 2007, the Human Rights Committee noted the following facts, as submitted by the author of the complaint:
2.1 On 19 May 2000, at 5:30 a.m., while the author and Mr. Titiahonjo were sleeping, a group of police officers (“Gendarmes”) broke into their house and began beating Mr. Titiahonjo with an iron rod.
2.2 The author herself was at the time in an advanced state of pregnancy; she was also mistreated by the officers. She was dragged out of bed and pushed into the gutter and also slapped. The police officers stated that they were looking for a gun. While they were in the house they took 300.000 Frs. that the family had saved in view of the forthcoming childbirth. No gun was found, but the officers promised to return.
2.3 On 21 May 2000, the same police officers including one Captain Togolo came in a car which stopped in front of the author’s house. They took Mr. Titiahonjo to the Gendarmerie cell. There, he was beaten and forced to sleep on the bare floor naked. He was beaten on the soles of his feet and on his head. As a result of his swollen feet, he could not stand up. The captain refused to give him any food and the author was not allowed to bring him any. Mr. Titiahonjo asked why he was arrested but he received no answer.
2.4 On several occasions in June 2000 she went to the police station to give her husband some food but she was “chased” away. On 24 June 2000 the author went to the police station and saw Captain Togolo beat her husband but she was not allowed to visit him. The gun that the officers were looking for was found in the street on or about 25 June 2000. Mr. Titiahonjo, however, continued to be held incommunicado and to be ill treated. As an answer to the author’s question why Mr. Titiahonjo was still being beaten after they had found the gun, Captain Togolo replied that it was because the victim belonged to the Southern Cameroon National Council (“SCNC”), which he qualified as a “secessionist organization”.
2.5 On an unspecified date, after a complaint filed by the author, a prosecutor ordered the release of Mr. Titiahonjo, but Captain Togolo refused to comply. Following this incident the author was taken to hospital where she prematurely gave birth to twins. Mr. Titiahonjo was transferred to Bafoussam military prison. In Bafoussam, physical ill-treatment stopped but Mr. Titiahonjo continued to suffer moral and psychological torture. Captain Togolo told him that he would never see the twins for he was going to be killed. He also had to provide for himself and live on his own supplies.
2.6 In Bafoussam prison, meningitis, cholera and cerebral malaria claimed the lives of 15 inmates between 10 September and 15 September 2000. The cells were unventilated and were infested with bed bugs and mosquitoes.
2.7 In the morning of 14 September 2000 Mr. Titiahonjo complained of a stomach ache and asked for medication. However, the prison nurse could not enter his cell as no guard on duty had a key to the cell. Mr. Titiahonjo continued to call for help throughout the day, but when his cell was finally opened at 9pm the same day, he was already dead. His remains were taken to the mortuary and he was buried in his home town, but no post mortem was allowed by the police officers who supervised his detention. The family requested an autopsy of the body but instead, the coffin was sealed and the request was denied; no one was permitted to see the body. 
Human Rights Committee, Titiahonjo v. Cameroon, Views, 13 November 2007, §§ 2.1–2.7.
The Human Rights Committee held:
6.3 The author claims that her husband’s rights were violated under article 7 of the [1966 International Covenant on Civil and Political Rights], because of a) the general conditions of detention, b) the beatings he was subjected to, c) the deprivation of both food and clothing in detention at the Gendarmerie cell and at Bafoussam prison, and d) the death threats he received and the incommunicado detention he suffered in both the Gendarmerie cell and at Bafoussam prison. The State party has not contested these allegations, and the author has provided a detailed account of the treatment and beatings her husband was subjected to. In the circumstances, the Committee concludes that Mr. Titiahonjo was subjected to cruel, inhuman and degrading treatment, in violation of article 7 of the Covenant.
6.4 The author also claims violation of article 7 on her own behalf. She was in an advanced state of pregnancy and she alleges that she suffered from the treatment she and her husband were subjected to. She was mistreated by the police and pushed into the gutter and slapped when they arrested Mr. Titiahonjo on the 19 may 2000. She was not allowed to visit her husband and was “chased” away when she visited the police station to give him food. The Committee finds that in the absence of any challenge to her claim by the State Party, due weight must be given to the author’s allegation. The Committee furthermore understands the anguish caused to the author by the uncertainty concerning her husband’s fate and continued imprisonment. The Committee concludes that under the circumstances she too is a victim of a violation of article 7 of the Covenant. 
Human Rights Committee, Titiahonjo v. Cameroon, Views, 13 November 2007, §§ 6.3–6.4.
African Commission for Human and Peoples’ Rights
In its decision in Krishna Achutan v. Malawi in 1994, the African Commission for Human and Peoples’ Rights held:
The conditions of overcrowding and acts of beating and torture that took place in prisons in Malawi contravened [Article 5 of the 1981 African Charter on Human and Peoples’ Rights]. Aspects of the treatment … such as excessive solitary confinement, shackling within a cell, extremely poor quality food and denial of access to adequate medical care, were also in contravention of this article. 
African Commission for Human and Peoples’ Rights, Krishna Achutan v. Malawi, Decision, 25 October–30 November 1994; see also AI v. Malawi, Decision, 13–22 March 1995.
African Commission for Human and Peoples’ Rights
In its decision in International Pen and Others v. Nigeria in 1998 concerning the trial and execution of Ken Saro-Wiwa and other co-defendants, the African Commission for Human and Peoples’ Rights found a violation of Article 5 of the 1981 African Charter on Human and Peoples’ Rights. It held that the detention of Mr Saro-Wiwa in leg irons and handcuffs with no evidence of attempts to escape constituted actions which humiliated the individual or forced him to act against his will or conscience. 
African Commission for Human and Peoples’ Rights, International Pen and Others v. Nigeria, Decision, 22–31 October 1998.
African Commission for Human and Peoples’ Rights
In its decision in Civil Liberties Organisations v. Nigeria in 1999, the African Commission for Human and Peoples’ Rights dealt with the allegation that the conditions of detention of persons convicted in Nigeria constituted inhuman and degrading treatment. The Commission stated that “deprivation of light, insufficient food and lack of access to medicine or medical care can … constitute violations of Article 5” of the 1981 African Charter on Human and Peoples’ Rights. 
African Commission for Human and Peoples’ Rights, Civil Liberties Organisations v. Nigeria (151/96), Decision, 15 November 1999, §§ 25–26.
European Commission of Human Rights
In its report in the Greek case in 1969, the European Commission of Human Rights stated that the notion of inhuman treatment
covers at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable. The word torture is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punishment may be said to be degrading if it grossly humiliates the victim before others or drives the detainee to act against his/her will or conscience. 
European Commission of Human Rights, Greek case, Report, 5 November 1969, § 186.
The European Commission of Human Rights also concluded that the conditions of detention in several camps amounted to breaches of Article 3 of the 1950 European Convention on Human Rights, notably the combination of “complete absence of heating in winter, … lack of hot water, … poor lavatory facilities, [and] unsatisfactory dental treatment”, as well as “the conditions of gross overcrowding and its consequences”. 
European Commission of Human Rights, Greek case, Report, 5 November 1969, Part B, Chapter IV(B)(VI), Section A, § 34, Section C, §§ 16–17 and Section D, § 21.
European Commission of Human Rights
In its admissibility decisions in two cases in 1978 and 1980, the European Commission of Human Rights found that solitary confinement did not, in itself, constitute a form of inhuman treatment. Although prolonged periods of solitary confinement were undesirable, regard had to be had to the particular situation, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. 
European Commission of Human Rights, Ensslin, Baader and Raspe v. FRG, Admissibility Decision, 8 July 1978, pp. 109–110; X v. UK, Admissibility Decision, 10 July 1980, pp. 99–100.
European Commission of Human Rights
In Kröcher and Möller v. Switzerland in 1982, the European Commission of Human Rights stated: “Complete sensory isolation coupled with total social isolation, can destroy the personality and constitutes a form of treatment which cannot be justified by the requirements of security or any other reason.” The European Commission of Human Rights considered, however, that there was “a distinction between this and removal from association with other prisoners for security, disciplinary or protective reasons” which would not constitute inhuman treatment or degrading treatment or punishment. 
European Commission of Human Rights, Kröcher and Möller v. Switzerland, Report, 16 December 1982, § 62.
European Commission of Human Rights
In its judgment in Selçuk and Asker v. Turkey in 1996, the European Commission of Human Rights stated that the burning of the applicants’ homes in their presence and the deliberate destruction of their belongings which caused them a great deal of anguish and suffering, particularly in view of the fact that one of the applicants was both elderly and infirm, constituted inhuman and degrading treatment. 
European Commission of Human Rights, Selçuk and Asker v. Turkey, Report, 28 November 1996, §§ 171–178.
The European Court of Human Rights upheld this finding in 1998, adding that even if it had been found that the acts in question were carried out without any intention of punishing the applicants, but only to prevent their homes being used by terrorists, this would not provide a justification for the ill-treatment. 
European Court of Human Rights, Selçuk and Asker v. Turkey, Judgment, 24 April 1998, §§ 78–80.
European Court of Human Rights
In its judgment in the Campbell and Cosans case in 1982, the European Court of Human Rights considered the issue of corporal punishment against schoolchildren and stated:
Provided it is sufficiently real and immediate, a mere threat of conduct prohibited by Article 3 (art. 3) [of the 1950 European Convention on Human Rights] may itself be in conflict with that provision. Thus, to threaten an individual with torture might in some circumstances constitute at least “inhuman treatment”. 
European Court of Human Rights, Campbell and Cosans case, Judgment, 25 February 1982, § 26.
European Court of Human Rights
In its judgment in Aydin v. Turkey in 1997, the European Court of Human Rights held:
Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim. … [T]he Court is satisfied that the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of Article 3 of the [1950 European Convention on Human Rights]. Indeed the Court would have reached that conclusion on either of these grounds taken separately. 
European Court of Human Rights, Aydin v. Turkey, Judgment, 25 September 1997, §§ 83 and 86.
European Court of Human Rights
In its judgment in the Cyprus case in 2001, the European Court of Human Rights found that, in relation to the living conditions of Greek Cypriots in the Karpas region of northern Cyprus, there had been a violation of Article 3 of the 1950 European Convention on Human Rights in that the Greek Cypriots had been subjected to discrimination amounting to degrading treatment. 
European Court of Human Rights, Cyprus case, Judgment, 10 May 2001, § 311.
European Committee for the Prevention of Torture
In its Second General Report in 1992, the European Committee for the Prevention of Torture stated:
The principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary confinement-type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible. 
European Committee for the Prevention of Torture, Second General Report, Doc. CPT/Inf. (92)3, 13 April 1992, § 56.
Inter-American Commission on Human Rights
In a case concerning Peru in 1996, the Inter-American Commission on Human Rights found that rape perpetrated by a public official constituted torture under Article 5 of the 1969 American Convention on Human Rights. 
Inter-American Commission on Human Rights, Case 10.970 (Peru), Report, 1 March 1996, Section V(A)(3)(a).
Inter-American Court of Human Rights
In its judgment in the Velásquez Rodríguez case in 1988, the Inter-American Court of Human Rights stated:
Prolonged isolation and deprivation of communication are in themselves cruel and inhuman punishment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. 
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment, 29 July 1988, § 156; see also § 187.
Inter-American Court of Human Rights
In its judgment in the Castillo Petruzzi and Others case in 1999, the Inter-American Court of Human Rights found that the victims were held incommunicado for 36 and 37 days respectively. The Court referred to the Velásquez Rodríguez case and repeated that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman punishment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being”. It concluded by saying: “The terms of confinement that the military tribunals imposed upon the victims … constituted cruel, inhuman and degrading forms of punishment that violated Article 5 of the [1969 American Convention on Human Rights].” 
Inter-American Court of Human Rights, Castillo Petruzzi and Others case, Judgment, 30 May 1999, §§ 194 and 198.
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