Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
Denmark’s Directive on the Ban on Torture (2008) states that its “purpose … is to make clear to all personnel who are serving in the military that there is an absolute prohibition on torture and other cruel, inhuman or degrading treatment or punishment”.
The Directive further states:
4.1.1. The prohibition
Personnel of the Danish armed forces must not engage, instruct, or otherwise contribute to torture or other cruel, inhuman or degrading treatment or punishment.
4.1.2. Duty to act
Personnel of the Danish armed forces must seek to prevent anyone from exercising torture, cruel, inhuman or degrading treatment or punishment, if it can be done without the personnel thereby putting themselves or others at particular risk or self-sacrifice.
Personnel shall immediately report to their nearest leader if they have knowledge or reasonable grounds to suspect that someone intends to infringe, is violating or has violated the ban.
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
In 2006, in a report on the detention and transfer of persons in Afghanistan in 2002, Denmark’s Ministry of Defence stated: “Anyone who is detained, whatever his status under the Geneva Conventions, must as a minimum be treated humanely, this includes not being subjected to torture or other forms of mistreatment.”
The Ministry further stated:
International humanitarian law contains in Additional Protocol I to the Geneva Conventions a series of basic fundamental guarantees which apply to any person in a conflicting party’s custody. The persons to whom it applies, for example people who do not have the status of prisoners of war, must always be treated humanly and guaranteed right to personal integrity, honour, belief and religion. The following acts, which involve violence against persons’ life, health or physical or mental well being, are without exception prohibited, this is regardless of whether they relate to civilian or military officials:
- Torture of any kind, physical or mental
- Violation of personal dignity, in particular by humiliating and degrading treatment.
On the possibility of transferring detainees to another State, the Ministry stated:
In relation to transfer to other states, under Article 12 of the Third Geneva Convention, prisoners of war can be transferred to another state if that state has acceded to the Convention, and if it is assessed that this state has the willingness and ability to bring its provisions into effect. A similar provision for the transfer of civilians is found in Article 45 of the Fourth Geneva Convention. The state that transfers a detainee is therefore obliged by international law to ensure that the state to which the detainee is transferred has both the willingness and ability to bring its provisions into effect.
For example, there can be no doubt that one cannot transfer prisoners of war or civilians to another state if there are specific reasons to believe that they will be subjected to torture, because it is, as mentioned, forbidden to expose both combatants or civilians to torture under the Third and Fourth Geneva Conventions. This must be regarded as one of the key obligations under the Conventions.
The Ministry concluded:
In summary, it can be concluded that the Danish forces detained and handed over a total of 34 persons to the Americans in connection with two operations – on 13 February and 17 March 2002. All persons detained by the Danish Special Forces were subsequently released in Afghanistan. … Finally, it can be concluded that no person held by the Danish Special Forces at any time had the status of prisoner of war. It should also be noted that the issue of detainees’ legal status had no effect on the protection against torture and other inhuman or degrading treatment, which they were entitled to under international humanitarian law.
Denmark’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.
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.
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.
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.