The Evolution Of Torture: International Law And Crime

Torture has long been prohibited under international law. The 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, and the Geneva Conventions of 1949 all include provisions against torture. The United Nations Convention Against Torture, which came into force in June 1987, defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person. This convention also obliges signatories to prevent acts of cruel, inhuman or degrading treatment or punishment and criminalise torture under domestic legislation.

The 1948 Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives from diverse legal and cultural backgrounds, it set out, for the first time, fundamental human rights to be universally protected. The UDHR was proclaimed by the United Nations General Assembly in Paris on the 10th of December, 1948, as a common standard of achievements for all peoples and nations. It was the first globally agreed document that marked out all humans as being free and equal, regardless of race, colour, creed, religion, or other characteristics.

The UDHR outlines 30 rights and freedoms that belong to all of us and that nobody can take away. These include civil and political rights, such as the rights to life, liberty, privacy, and freedom from torture, as well as economic, social, and cultural rights, such as the rights to social security, health, and adequate housing. The rights included in the UDHR continue to form the basis for international human rights law.

The UDHR was developed in response to the "barbarous acts" that outraged the conscience of mankind during World War II. Its adoption recognised human rights as the foundation for freedom, justice, and peace. Work on the UDHR began in 1946, with a drafting committee composed of representatives from a variety of countries, including the USA, Lebanon, and China. The committee was later expanded to include representatives from Australia, Chile, France, the Soviet Union, and the United Kingdom, ensuring contributions from diverse religious, political, and cultural contexts. The UDHR was then discussed by all members of the UN Commission on Human Rights before being adopted by the General Assembly in 1948.

The UDHR is widely recognised as having inspired and paved the way for the adoption of more than seventy human rights treaties, which are applied today at the global and regional levels. It has been translated into over 500 languages and remains a living document that challenges us to resist attacks against rights and transform global governance.

The 1966 International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits its signatories to respect the civil and political rights of individuals. It was adopted by the United Nations General Assembly on 16 December 1966 and entered into force on 23 March 1976. The ICCPR is considered a seminal document in the history of international law and human rights. As of June 2024, the Covenant has 174 parties and six more signatories without ratification.

The ICCPR has its roots in the same process that led to the Universal Declaration of Human Rights (UDHR). A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San Francisco Conference that led to the founding of the United Nations. The Economic and Social Council was tasked with drafting it, and early in the process, the document was split into a declaration setting forth general principles of human rights, and a convention containing binding commitments. The former evolved into the UDHR and was adopted on 10 December 1948.

Drafting continued on the convention, but there remained significant differences between UN members on the relative importance of negative civil and political rights versus positive economic, social and cultural rights. These eventually caused the convention to be split into two separate covenants: "one to contain civil and political rights and the other to contain economic, social and cultural rights". The two covenants were to contain as many similar provisions as possible and be opened for signature simultaneously. Each would also contain an article on the right of all peoples to self-determination.

The first document became the International Covenant on Civil and Political Rights, and the second the International Covenant on Economic, Social and Cultural Rights. The drafts were presented to the UN General Assembly for discussion in 1954 and adopted in 1966. Together, the UDHR and the two Covenants are considered to be the foundational human rights texts in the contemporary international system.

The ICCPR elaborates further on the civil and political rights and freedoms listed in the UDHR. Under Article 1 of the Covenant, states commit themselves to promote and respect the right to self-determination. It also recognises the rights of peoples to freely own, trade and dispose of their natural wealth and resources.

Among the rights of individuals guaranteed by the Covenant are:

• The right to legal recourse when their rights have been violated, even if the violator was acting in an official capacity.
• The right to equality between men and women in the enjoyment of their civil and political rights.
• The right to life and survival.
• The freedom from inhuman or degrading treatment or punishment.
• The freedom from slavery and servitude.
• The right to liberty and security of the person and freedom from arbitrary arrest or detention.
• The freedom from prison due to debt.
• The right to liberty of movement and freedom to choose residence.
• The right to equality before the law; the right to be presumed innocent until proven guilty and to have a fair and public hearing by an impartial tribunal.
• The right to be recognised as a person before the law.
• The right to privacy and its protection by the law.
• The freedom of thought, conscience and religion.
• The freedom of opinion and expression.
• Prohibition of propaganda advocating war or national, racial or religious hatred.
• The right to peaceful assembly.
• The right to freedom of association.
• The right to marry and found a family.
• The rights for children (status as minors, nationality, registration and name).
• The right to participate in the conduct of public affairs, to vote and to be elected and access to public service.
• The right to equality before the law and equal protection.
• The right, for members of religious, ethnic or linguistic minorities, to enjoy their culture, practice their religion and use their language.

The Covenant is legally binding, and the Human Rights Committee, established under Article 28, monitors its implementation. The First Optional Protocol establishes an individual complaint mechanism for the ICCPR. By May 2012, the protocol had been ratified by 114 states. The Second Optional Protocol entered into force in 1991 and aims at the abolition of the death penalty. By May 2012, it had been ratified by 74 states.

The Geneva Conventions

• Wounded and sick combatants or non-combatants
• Civilian persons who take no part in hostilities and who, while they reside in the zones, perform no work of a military character
• Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces
• Members of other militias and members of other volunteer corps, including those of organized resistance movements belonging to a Party to the conflict and operating in or outside their territory, even if occupied
• Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power
• Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units, or services responsible for the welfare of the armed forces
• Members of crews, including masters, pilots, and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict
• Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units

The four most relevant Geneva Conventions for the treatment of conflict victims are the First (GCI), Second (GCII), Third (GCIII), and Fourth (GCIV) Conventions. All four treaties state in Article 3 that in a non-international armed conflict, "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms... shall in all circumstances be treated humanely." The treaty also states that there must not be any "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" or "outrages upon personal dignity, in particular, humiliating and degrading treatment".

GCI covers wounded combatants in an international armed conflict. Under Article 12, members of the armed forces who are sick or wounded "shall be respected and protected in all circumstances". It is prohibited to inflict upon them "any physical or mental torture, nor any other form of coercion".

GCII covers shipwreck survivors at sea in an international armed conflict. Under Article 12, persons "who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances". Any attempts on their lives or violence against them are strictly prohibited.

GCIII covers the treatment of prisoners of war (POWs) in an international armed conflict. In particular, Article 17 states that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever."

GCIV covers most civilians in an international armed conflict, and states that they are usually "Protected Persons". Under Article 32, civilians have the right to protection from "murder, torture, corporal punishments, mutilation, and medical or scientific experiments...but also to any other measures of brutality whether applied by civilian or military agents."

The absolute prohibition against torture and other acts of cruel, inhumane, or degrading treatment or punishment has become accepted as a principle of customary international law.

The Rome Statute

Under Article 7 of the Rome Statute, torture may be considered a crime against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". Article 8 of the statute provides that torture may also, under certain circumstances, be prosecuted as a war crime.

The ICC came into existence on 1 July 2002, and can only prosecute crimes committed on or after that date. The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party to the Rome Statute, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems and can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.

Article 8 of the Rome Statute recognises that gender-based violence is routinely committed in the context of armed conflicts. It includes sexual and gender-based crimes as distinct war crimes, such as rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilisation. Any other form of sexual violence constituting a grave breach of the Geneva Conventions can also amount to a war crime.

The European Convention for the Prevention of Torture

The convention is groundbreaking as it was the first instrument capable of enforcing compliance with the obligations it created. The objective was to create a document that would ensure adequate consequences for those who do not abide by it. This was a novel approach, as, until then, core publications such as the United Nations Charter or the Universal Declaration of Human Rights were unable to stop or remedy human rights violations in a rigorous way.

The origins of the convention date back to a proposal by Jean-Jacques Gautier, the founder of the Swiss Committee against Torture, in 1976. Gautier was inspired by the International Committee of the Red Cross (ICRC), which conducted visits to places where prisoners of war were held. He suggested that the conditions of prisoners be improved and that the ICRC's power to conduct visits be extended beyond cases of international armed conflict between states parties to the Geneva Conventions. Gautier proposed that this system of visits be applied to all places where individuals are deprived of their liberty, such as prisons, police stations, psychiatric institutions, and remand centres.

Gautier's proposal formed the basis of a draft that eventually became the International Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. This draft was submitted in April 1980 to the Commission on Human Rights, the body that would later draft the UN Convention. The Council of Europe then took up Gautier's ideas, and in June 1983, a report was produced with a draft European Convention on the Protection of Detainees from Torture and Cruel, Inhuman, or Degrading Treatment or Punishment.

The report was accepted by the Consultative Assembly in September 1983, and several years of debate followed, including discussions regarding the views of the European Commission and the Court of Human Rights. An agreed-upon draft was finally concluded in June 1986 and transmitted to the Committee of Ministers, who adopted it on June 26, 1987. The convention was opened for signature on November 26, 1987, and was signed by all 21 member states of the Council of Europe at that time. As of 2020, it has been signed by all 47 member states of the council and is also open for accession by non-member states.

The convention provides for the establishment of an international committee, known as the Committee for the Prevention of Torture, empowered to visit all places where persons are deprived of their liberty by a public authority. The committee is composed of independent experts and may make recommendations and suggest improvements to strengthen the protection of individuals from torture and inhuman or degrading treatment or punishment.

The convention has been amended by two protocols. The first, adopted on November 4, 1993, "opens" the convention by providing that the Committee of Ministers of the Council of Europe may invite any non-member state to accede to it. The second protocol, also adopted on November 4, 1993, introduced technical amendments. It provisions for the committee to be placed in "one of two groups for election purposes" to ensure that at least half of the committee's members are renewed every two years. It also allows for committee members to be re-elected twice, instead of just once.

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