TORTURE: LEGAL FRAMEWORK

Torture under international human rights law

While there is no single definition under international law, for the purposes of international human rights law (‘IHRL’) torture is most authoritatively defined by Article 1(1) of the Convention against Torture (‘CAT’) to mean any act:

• by which pain or suffering, whether physical or mental;
• which is severe;
• is intentionally inflicted on a person;
• for a ‘prohibited purpose’; and
• at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity. ³

It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

1. Physical or Mental Pain or Suffering
   The act inflicting the physical or mental pain or suffering is understood broadly to include omissions, at least intentional omissions.⁴ This could include intentionally depriving a person of food, water, sleep or medical attention if the other elements of the definition of torture are satisfied. The explicit inclusion of mental pain and suffering makes clear that acts causing sleep deprivation, sensory deprivation or the use of manipulation may also amount to torture. It is not a requirement that the acts causing mental pain or suffering need be prolonged. The torture may be a single act causing severe mental suffering, as may be caused with a single mock execution or threat of violence.⁵
2. Severity
   Some acts (e.g., the rape of a detainee⁶ or ‘Palestinian hooding’⁷) have been recognised as being of sufficient severity as to constitute torture in all circumstances. For the most part however, acts deemed to be torture will involve an accumulation of (actual or credibly threatened)⁸ practices, the severity of which will depend upon the facts and will therefore be determined on a case-by-case basis.⁹Circumstances that may be considered include the duration of the treatment, its physical and mental effects and potentially also the sex, age and state of health of the victim.¹⁰
3. Intentionally Inflicted
   This element requires that the perpetrator intended to inflict pain or suffering. It is not required that the perpetrator intended that the pain and suffering inflicted be severe; rather the perpetrator is required to have intended the conduct which caused the severe pain and suffering. Acts performed accidentally cannot amount to torture.
   
4. Prohibited purpose
   Acts amounting to torture must also be carried out for a ‘prohibited purpose’.¹¹ The purposes identified in Article 1(1) CAT include:
   • obtaining from the victim or a third person information or a confession;
   • punishing the victim for an act they or a third person committed or is suspected of having committed;
   • intimidating or coercing him or a third person; or 
   • for any reason based on discrimination of any kind.¹²

   These purposes reflect the requirement that in order to constitute torture, the conduct must be intentionally inflicted for a particular reason. The purposes identified in Article 1(1) CAT can potentially encompass a very wide range of possible motivations. However, it should be noted that they are non-exhaustive,¹³ and may overlap. For example, in a civil claim brought against Nevsun Resources in Canada, it was alleged that torture was used by the Eritrean National Service Program as a punishment and as a threat to intimidate and coerce the claimants to work in inhumane conditions in a mine, jointly owned by Nevsun and the Eritrean government,¹⁴ implicating both the second and third prohibited purposes identified above. This reflects the fact that in practice, the motivation(s) for torture will often be heavily contextual and, as such, cannot be authoritatively enumerated in a single list.

5. Official capacity
   Torture must also be inflicted or carried out with the consent or acquiescence of a public official or other person acting in an official capacity.¹⁵ This includes any individual or group (e.g., rebel groups or security forces) performing state-like functions when exercising actual or de facto governmental authority at the time that the torture was committed.¹⁶ The Committee against Torture has held that states will also be liable for the acts of non-state actors where they have failed to take steps to adequately protect against such acts and prevent them.¹⁷ The Committee concluded that where “State authorities or others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts.”¹⁸
6. Lawful sanctions
   The Convention against Torture provides that “pain or suffering arising only from, inherent in, or incidental to, detention resulting from lawful sanctions” does not constitute torture.¹⁹ However “lawful” must be understood not only with reference to the applicable domestic law but also with reference to international law and standards. Were the “lawful sanctions” clause to be read as allowing states to exclude from the definition of torture any act they viewed as legal under domestic law, there would be little protection to be offered by the Convention.²⁰
   

International criminal law

1. Torture as a crime against humanity
   Torture is criminalised as a crime against humanity under Article 7(1)(f) of the Rome Statute.²¹ The elements of the offence are as follows:
   • the perpetrator intentionally inflicted severe physical or mental pain or suffering upon one or more persons;such person or persons were in the custody or under the control of the perpetrator;
   • such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions;
   • the conduct was committed as part of a widespread or systematic attack directed against a civilian population;
   • the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population;²²and
   • the perpetrator committed the torture with intent and knowledge.

   Torture, as a crime against humanity in terms of the Rome Statute, unlike torture as defined in the CAT, has no requirement that the act be committed 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.” Further there is no requirement 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.” 

   The Rome Statute also does not explicitly differentiate between torture and cruel, inhuman and degrading treatment as does CAT. The conduct that would constitute the crime against humanity of torture when committed within the contextual elements must therefore be understood to be more broadly defined than under CAT. However, the ICC has clarified 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.”²³

   1. The perpetrator intentionally inflicted severe physical or mental pain upon the victim
      These first elements of torture as a crime against humanity are generally satisfied as they are for the definition of torture under CAT. The ICC has recognised that the requirement of severity denotes 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.”²⁴Still, there is no clear definition of what will constitute severity. As the ICTY Trial Chamber has observed, agreeing with Sir Nigel Rodley, a former UN Special Rapporteur on Torture, “a juridical definition cannot depend on a catalogue of horrific practices; for it to do so would simply provide a challenge to the ingenuity of the torturers, not a viable legal prohibition.”²⁵Accordingly, the degree of suffering sufficient to meet the definition of torture will be assessed on a case-by-case basis, taking into account all the specific circumstances of the case, including subjective criteria such as the conduct’s effect on the potential victims, his or her age, sex or state of health.²⁶
   2. The conduct was committed by the perpetrator while the victim was in their custody or under their control
      This element of torture as a crime against humanity requires that the conduct be committed while the victim was under the perpetrator’s custody or under their control. This differs from the requirement of the CAT²⁷ that the perpetrator be a public official or other person acting in an official capacity, reflecting the idea that the state violates the right through its agents and so bears responsibility. This is not true for torture as a crime against humanity under the Rome Statute which seeks to impose individual criminal liability rather than impose state liability. Under the Rome Statute’s definition of torture as a crime against humanity, the broader custody or control requirement means that not only torture committed by state actors or quasi-state actors is implicated. Torture committed by other actors, for example at the hands of a corporate actor or their employees, can also fall within the definition of torture as a crime against humanity provided the other elements of the crime, such as intending that the torture form part of a widespread or systematic attack, are satisfied.
      
   3. The conduct was not inherent in / incidental to lawful sanctions
      As with the CAT, conduct will not amount to torture where it is inherent in, or incidental to, detention arising from lawful sanctions. However, this is contingent upon those sanctions being consistent with international law and standards.²⁸ As such, severe pain or suffering inflicted as a result of domestic punishment may fall within the definition of torture as a crime against humanity for the purposes of the Rome Statute, notwithstanding such punishment being “lawful” within the domestic context. 
      
   4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population 
   5. The perpetrator knew or intended the conduct to be part of a widespread or systematic attack directed against a civilian population
   6. Perpetrator committed the torture with intent and knowledge.
2. Torture as a war crime
   When committed in an IAC, torture is proscribed as a grave breach of the Geneva Conventions. When committed in a NIAC, torture is prohibited as a serious violation of Common Article 3 of the Geneva Conventions. State parties are required by the Geneva Conventions to exercise universal jurisdiction over grave breaches and must accordingly either prosecute the perpetrators themselves or extradite them to a jurisdiction willing and able to do so. Both the grave breach provisions and Common Article 3 are understood to be part of customary international law and so applicable to all states irrespective of whether they are parties to the particular Conventions (although all states are).Torture as a war crime in an IAC is also proscribed under article 8(2)(a)(ii)-1 of the Rome Statute. It is also prohibited under Article 8(2)(c)(i)-4 of the Rome Statute when committed as part of a NOAC. The physical elements of both crimes are essentially the same, with the primary difference between them being the context that the conduct must have occurred within, and the identity of the victims that must have been targeted. The elements of the crime under article 8(2)(a)(ii)-1 are that:
   • The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons in their custody;
   • 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;
   • Such person or persons were protected under one or more of the Geneva Conventions of 1949;
   • The perpetrator was aware of the factual circumstances that established that protected status; 
   • The conduct took place in the context of and was associated with an international armed conflict;
   • The perpetrator was aware of factual circumstances that established the existence of an armed conflict; and
   • The perpetrator committed the torture with intent and knowledge.

   Similarly, the elements under article 8(2)(c)(i)-4 are that:

   • The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons in their custody;
   • 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;
   • Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities;
   • The perpetrator was aware of the factual circumstances that established this status;
   • The conduct took place in the context of and was associated with a non-international armed conflict;
   • The perpetrator was aware of factual circumstances that established the existence of an armed conflict; and 
   • The perpetrator committed the torture with intent and knowledge. 
   1. The perpetrator inflicted severe physical or mental pain and suffering upon the victim
      To satisfy the first element of the offence of torture, prosecutors must establish that the perpetrator committed conduct amounting to severe physical or mental pain or suffering upon the victim. As discussed in the context of torture as a crime against humanity, while severity points to the requirement of a significant degree of pain and suffering, what constitutes severity will be determined on a case-by-case basis, taking into account the various circumstances of the conduct and may include such subjective facts as the effect or impact of the conduct on the particular victim.
   2. Purposes for inflicting harm
      Similar to the requirements of the CAT, and unlike the definitional elements for torture as a crime against humanity, torture as a war crime under the Rome Statute must be committed for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.
   3. The victim was a protected person
      In order to satisfy the elements of the crime under article 8(2)(a)(ii), victims must qualify as protected persons under the Geneva Convention. Protected persons pursuant to the Geneva Conventions include:
      • civilians who do not participate actively in the hostilities; and find themselves in the power of a Party to the armed conflict whose nationality they do not possess;
      • sick, wounded and shipwrecked members of the armed forces who have ceased to take part in hostilities;
      • prisoners of war and other detained persons;
      • medical and religious personnel; 
      • civil defence personnel; and
      • personnel assigned to the protection of cultural property.²⁹

      Somewhat more narrowly, in order to satisfy the elements of crimes under 8(2)(c)(i), it must be shown that the crime was committed against persons placed hors de combat (e.g., because of injury) or were civilians, medical personnel or religious personnel taking no active part in the hostilities.

   4. The perpetrator was aware of the factual circumstances that established that protected status
   5. The conduct took place in the context of and was associated with an armed conflict
   6. The perpetrator was aware of the factual circumstances that established the existence of an armed conflict
   7. The perpetrator committed the torture with intent and knowledge

Torture in domestic criminal law

The prohibition of torture is recognised as a peremptory norm of customary international law requiring all states to ensure that torture is criminalised within their jurisdictions and that prosecution of those responsible is possible.³⁰ High Contracting Parties (states parties) to the four Geneva Conventions of 1949 are obliged to pass laws providing effective penal sanctions for persons responsible for any of the grave breaches, of which torture is one. They are also required to search for and subject persons accused of any grave breach, irrespective of the accused’s nationality, to their own courts or to surrender them to another state eligible to prosecute.³¹

CAT requires that states parties ensure all acts of torture are offences under their respective domestic criminal law. The Committee against Torture has interpreted Article 4 of CAT as requiring states parties to include a separate offence of torture different from other ordinary offences in their domestic law. It has also noted that states do not have to reproduce exactly the Article 1 definition; they can adopt a broader definition but it must cover at least the same conduct.³² The CAT also requires of states parties that they prosecute persons accused of torture, irrespective of their nationality or that they extradite such persons to states able and willing to prosecute.³³ In particular, all states should exercise universal criminal jurisdiction to prosecute torture before their domestic courts and consider victims’ claims for reparation, regardless of where the crimes are committed.

As of September 2020, 171 countries are state parties to the CAT.³⁴ Of these, most have introduced torture into their domestic criminal codes.