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.