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2.
International
Humanitarian Law 181.
The right to humane treatment and the prohibition of torture are
also provided for under international humanitarian law instruments and
corresponding rules of customary international law.[465]
182.
It must first be stated in this regard that torture and other
forms of inhumane treatment are entirely incompatible with and thus
precluded in all armed conflicts by the fundamental principles of
international humanitarian law of necessity, proportionality and, most
significantly, humanity.[466] 183.
In addition to these generally applicable prescriptions,
international humanitarian law treaties contain certain provisions
specifically addressing the issue of humane treatment. Article 3 Common
to the Four 1949 Geneva Conventions provides a general right to humane
treatment, applicable in all armed conflicts:[467] Article
3
In
the case of armed conflict not of an international character occurring
in the territory of one of the High Contracting Parties, each party to
the conflict shall be bound to apply, as a minimum, the following
provisions:
1.
Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed
hors de combat by sickness, wounds, detention, or any other cause, shall
in all circumstances be treated humanely, without any adverse
distinction founded on race, colour, religion or faith, sex, birth or
wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at
any time and in any place whatsoever with respect to the above-mentioned
persons: (a) Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and
degrading treatment;
(d) The passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.
2.
The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International
Committee of the Red Cross, may offer its services to the Parties to the
conflict. The Parties to
the conflict should further endeavour to bring into force, by means of
special agreements, all or part of the other provisions of the present
Convention. The application of the preceding provisions shall not affect
the legal status of the Parties to the conflict.
184.
It is well established that Common Article 3 and corresponding
prohibitions of torture, cruel treatment, and outrages upon personal
dignity constitute norms of customary international law.[468] 185.
Instruments of international humanitarian law governing
international armed conflicts likewise contain general humane treatment
guarantees. Accordingly, the Third Geneva Convention[469]
contains a general right to humane treatment provisions for prisoners of
war: Article
13 Prisoners
of war must at all times be humanely treated. Any unlawful act or
omission by the Detaining Power causing death or seriously endangering
the health of a prisoner of war in its custody is prohibited, and will
be regarded as a serious breach of the present Convention. In
particular, no prisoner of war may be subjected to physical mutilation
or to medical or scientific experiments of any kind which are not
justified by the medical, dental or hospital treatment of the prisoner
concerned and carried out in his interest.
Likewise, prisoners of war must at all times be protected,
particularly against acts of violence or intimidation and against
insults and public curiosity Measures
of reprisal against prisoners of war are prohibited. Article
14 Prisoners
of war are entitled in all circumstances to respect for their persons
and their honour. Women
shall be treated with all the regard due to their sex and shall in all
cases benefit by treatment as favourable as that granted to men.
Prisoners of war shall retain the full civil capacity which they enjoyed
at the time of their capture. The Detaining Power may not restrict the
exercise, either within or without its own territory, of the rights such
capacity confers except in so far as the captivity requires. 186.
The Fourth 1907 Hague Convention respecting the Laws and Customs
of War on Land and its annexed Regulations concerning the Laws and
Customs of War on Land[470]
also guarantee the humane treatment of prisoners of war.[471] 187.
The Fourth Geneva Convention[472]
provides similar guarantees for the right to humane treatment of
civilians and other persons protected under the treaty:[473]
Article
27 Protected
persons are entitled, in all circumstances, to respect for their
persons, their honour, their family rights, their religious convictions
and practices, and their manners and customs. They shall at all times be
humanely treated, and shall be protected especially against all acts of
violence or threats thereof and against insults and public curiosity.
Women shall be especially protected against any attack on their honour,
in particular against rape, enforced prostitution, or any form of
indecent assault. Without prejudice to the provisions relating to their
state of health, age and sex, all protected persons shall be treated
with the same consideration by the Party to the conflict in whose power
they are, without any adverse distinction based, in particular, on race,
religion or political opinion. However, the Parties to the conflict may
take such measures of control and security in regard to protected
persons as may be necessary as a result of the war. Article
32 The High
Contracting Parties specifically agree that each of them is prohibited
from taking any measure of such a character as to cause the physical
suffering or extermination of protected persons in their hands. This
prohibition applies not only to murder, torture, corporal punishment,
mutilation and medical or scientific experiments not necessitated by the
medical treatment of a protected person but also to any other measures
of brutality whether applied by civilian or military agents. Article
37 [dealing with non-nationals in the territory of a party to the
conflict] Protected
persons who are confined pending proceedings or serving a sentence
involving loss of liberty shall during their confinement be humanely
treated. As soon as they are released, they may ask to leave the
territory in conformity with the foregoing Articles. 188.
Likewise, Additional Protocol I[474]
contains fundamental guarantees protecting the right to humane treatment
of persons who are in the power of the adverse party in the context of
an international armed conflict: Article
11. Protection of persons 1.
The physical or mental health and integrity of persons who are in
the power of the adverse Party or who are interned, detained or
otherwise deprived of liberty as a result of a situation referred to in
Article I shall not be endangered by any unjustified act or mission.
Accordingly, it is prohibited to subject the persons described in this
Article to any medical procedure which is not indicated by the state of
health of the person concerned and which is not consistent with
generally accepted medical standards which would be applied under
similar medical circumstances to persons who are nationals of the Party
conducting the procedure and who are in no way deprived of liberty. 2.
It is, in particular, prohibited to carry out on such persons,
even with their consent: (a)
Physical mutilations; (b)
Medical or scientific experiments; (c)
Removal of tissue or organs for transplantation, except where
these acts are justified in conformity with the conditions provided for
in paragraph 1. […] 4.
Any willful act or omission which seriously endangers the
physical or mental health or integrity of any person who is in the power
of a Party other than the one on which he depends and which either
violates any of the prohibitions in paragraphs 1 and 2 or fails to
comply with the requirements of paragraph 3 shall be a grave breach of
this Protocol. […] 189.
Of particular relevance, Article 75 of Protocol I prescribes
minimum standards of humane treatment for unprivileged combatants and
other persons who are in the power of a party to an international armed
conflict and do not benefit from more favorable treatment under the
Geneva Conventions or Additional Protocol I: Article
75 1.
In so far as they are affected by a situation referred to in
Article 1 of this Protocol, persons who are in the power of a Party to
the conflict and who do not benefit from more favourable treatment under
the Conventions or under this Protocol shall be treated humanely in all
circumstances and shall enjoy, as a minimum, the protection provided by
this Article without any adverse distinction based upon race, colour,
sex, language, religion or belief, political or other opinion, national
or social origin, wealth, birth or other status, or on any other similar
criteria. Each Party shall respect the person, honour, convictions and
religious practices of all such persons. 2.
The following acts are and shall remain prohibited at any time
and in any place whatsoever, whether committed by civilian or by
military agents: (a)
Violence to the life, health, or physical or mental well-being of
persons, in particular: (i)
Murder; (ii)
Torture of all kinds, whether physical or mental; (iii)
Corporal punishment ; and (iv)
Mutilation; (b)
Outrages upon personal dignity, in particular humiliating and
degrading treatment, enforced prostitution and any form of indecent
assault; (c)
The taking of hostages; (d)
Collective punishments; and (e)
Threats to commit any of the foregoing acts. […] 190.
There are reasonable grounds to believe that the fundamental
protections provided under Article 75 of the Additional Protocol I,
including Article 75(2), constitutes a norm of customary international
law.[475] 191.
Finally, in the context of non-international armed conflicts, the
Second Additional Protocol[476]
grants similar guarantees to all persons who do not take a direct part
or who have ceased to take part in hostilities and/or whose liberty has
been restricted: Article
4 1.
All persons who do not take a direct part or who have ceased to
take part in hostilities, whether or not their liberty has been
restricted, are entitled to respect for their person, honour and
convictions and religious practices. They shall in all circumstances be
treated humanely, without any adverse distinction. It is prohibited to
order that there shall be no survivors. 2.
Without prejudice to the generality of the foregoing, the
following acts against the persons referred to in paragraph I are and
shall remain prohibited at any time and in any place whatsoever: (a)
Violence to the life, health and physical or mental well-being of
persons, in particular murder as well as cruel treatment such as
torture, mutilation or any form of corporal punishment; (b)
Collective punishments; (c)
Taking of hostages; (d)
Acts of terrorism; (e)
Outrages upon personal dignity, in particular humiliating and
degrading treatment, rape, enforced prostitution and any form of
indecent assault; (f)
Slavery and the slave trade in all their forms; (g)
Pillage; (h)
Threats to commit any of the foregoing acts. Article
5 […] 2.
Those who are responsible for the internment or detention of the persons
[deprived of their liberty for reasons related to the armed conflict]
shall also, within the limits of their capabilities, respect the
following provisions relating to such persons: […] (e)
Their physical or mental health and integrity shall not be
endangered by an unjustified act or omission. Accordingly, it is
prohibited to subject the persons described in this Article to any
medical procedure which is not indicated by the state of health of the
person concerned, and which is not consistent with the generally
accepted medical standards applied to free persons under similar medical
circumstances. 192.
In addition to the general provisions governing the humane
treatment of protected persons in international armed conflicts, the
Third[477]
and Fourth[478]
Geneva Conventions and Additional Protocol I prescribe specific and
detailed requirements of almost every aspect of the treatment of persons
protected under those conventions. These requirements address, inter
alia:
193.
Further, the Third and Fourth Geneva Conventions prescribe roles
for the Protecting Powers[490]
and, with the consent of the Detaining Power concerned, the
International Committee of the Red Cross, in supervising
the detention and treatment of prisoners of war and civilian
internees.[491]
This includes the right of prisoners of war and civilian internees to
apply to the representatives of the Protecting Powers in order to draw
their attention to any points on which they may have complaints to make
regarding their conditions of captivity or internment.[492] 194.
As in the case of international human rights protections,
international humanitarian law provides for particular protections in
the case of certain categories of vulnerable persons, including children[493]
and women. For example, international humanitarian law treaties afford
specific guarantees for the care, aid and protection of children subject
to internment.[494]
Article 77 of Additional Protocol I provides: Article
77 1.
Children shall be the object of special respect and shall be
protected against any form of indecent assault. The Parties to the
conflict shall provide them with the care and aid they require, whether
because of their age or for any other reason. 2.
The Parties to the conflict shall take all feasible measures in
order that children who have not attained the age of fifteen years do
not take a direct part in hostilities and, in particular, they shall
refrain from recruiting them into their armed forces. In recruiting
among those persons who have attained the age of fifteen years but who
have not attained the age of eighteen years, the Parties to the conflict
shall endeavour to give priority to those who are oldest. 3.
If, in exceptional cases, despite the provisions of paragraph 2,
children who have not attained the age of fifteen years take a direct
part in hostilities and fall into the power of an adverse Party, they
shall continue to benefit from the special protection accorded by this
Article, whether or not they are prisoners of war. 4.
If arrested, detained or interned for reasons related to the
armed conflict, children shall be held in quarters separate from the
quarters of adults, except where families are accommodated as family
units as provided in Article 75, paragraph 5. 5.
The death penalty for an offence related to armed conflict shall
not be executed on persons who had not attained the age of eighteen
years at the time the offence was committed. 195.
Article 4(3) of Additional Protocol II provides for similar
specific guarantees concerning children in the context of
non-international armed conflicts: Article
4 3.
Children shall be provided with the care and aid they require,
and in particular:(a) They shall receive an education, including
religious and moral education, in keeping with the wishes of their
parents, or in the absence of parents, of those responsible for their
care; (b) All appropriate steps shall be taken to facilitate the reunion
of families temporarily separated; (c) Children who have not attained
the age of fifteen years shall neither be recruited in the armed forces
or groups nor allowed to take part in hostilities; (d) The special
protection provided by this Article to children who have not attained
the age of fifteen years shall remain applicable to them if they take a
direct part in hostilities despite the provisions of sub-paragraph (c)
and are captured; (e) Measures shall be taken, if necessary, and
whenever possible with the consent of their parents or persons who by
law or custom are primarily responsible for their care, to remove
children temporarily from the area in which hostilities are taking place
to a safer area within the country and ensure that they are accompanied
by persons responsible for their safety and well-being. 196.
International humanitarian law also affords specific guarantees
for the humane treatment of women.[495]
These include the general protection of the honor of and respect for
women and their protection from rape, enforced prostitution and other
forms of indecent assault, as well as specific protections concerning
the conditions of restrictions on their liberty. Article 14 of the Third
Geneva Convention provides in particular: Article
14 Prisoners
of war are entitled in all circumstances to respect for their persons
and their honour. Women shall be treated with all the regard due to
their sex and shall in all cases benefit by treatment as favourable as
that granted to men. […] 197.
Likewise, Article 27 of the Fourth Geneva Convention provides: Article
27 Protected
persons are entitled, in all circumstances, to respect for their
persons, their honour, their family rights, their religious convictions
and practices, and their manners and customs. They shall at all times be
humanely treated, and shall be protected especially against all acts of
violence or threats thereof and against insults and public curiosity. Women
shall be especially protected against any attack on their honour, in
particular against rape, enforced prostitution, or any form of indecent
assault. Without prejudice to the provisions relating to their
state of health, age and sex, all protected persons shall be treated
with the same consideration by the Party to the conflict in whose power
they are, without any adverse distinction based, in particular, on race,
religion or political opinion. However, the
Parties to the conflict may take such measures of control and security
in regard to protected persons as may be necessary as a result of the
war. 198.
Additional Protocol I also provides specific guarantees for
women: Article
76. Protection of women 1.
Women shall be the object of special respect and shall be
protected in particular against rape, forced prostitution and any other
form of indecent assault. 2.
Pregnant women and mothers having dependent infants who are
arrested, detained or interned for reasons related to the armed
conflict, shall have their cases considered with the utmost priority. 3.
To the maximum extent feasible, the Parties to the conflict shall
endeavour to avoid the pronouncement of the death penalty on pregnant
women or mothers having dependent infants, for an offence related to the
armed conflict. The death penalty for such offences shall not be
executed on such women. 199.
According to the Third Geneva Convention, women prisoners of war
are to be accommodated in separate dormitories then men prisoners of
war, [496]
while women undergoing disciplinary punishment or subject to judicial
sentences are to be confined in separate quarters from male prisoners of
war and be under the immediate supervision of women.[497]
The Fourth Geneva Convention and the First and Second Additional
Protocols contain similar guarantees for civilians subject to
internment.[498] 200.
It must be emphasized that violations of some of the
international humanitarian law norms relative to the right to humane
treatment and the prohibition of torture not only imply the
responsibility of the state,[499]
but also constitute international crimes entailing the individual
criminal responsibility of those participating in the violations and
their superiors. Some of these violations may as such constitute grave
breaches of the Geneva Conventions[500]
or of the First Additional Protocol,[501]
acts amounting to war crimes,[502]
crimes against humanity[503]
or even genocide[504]
and may now fall under the jurisdiction of the International Criminal
Court.[505]
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[465]
See generally
Celibici TC Judgment, supra
note 193, paras. 452 and following. See
also Furundzija TC
Judgment, supra note 375, paras. 134-157. In
considering the concepts of torture and inhumane treatment in the
context of armed conflicts, the International Criminal Tribunal for
the Former Yugoslavia (ICTY) has considered that, in order to
constitute torture within an armed conflict–and as such, potentially
constituting a grave breach of the Geneva Conventions or of the
Additional Protocol I-, the act must :(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 [see Furundzija TC Judgment, supra
note 375, para 162]. See also
Celibici TC Judgment, supra
note 193, para. 494. The
ICTY Appeals Chamber has suggested, however, that the public official
requirement might not be 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. See
Prosecutor v. Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic,
Case Nº IT-96-23 and IT-96-23/1, Appeals
Chamber, Judgment of 12 June 2002, paras. 146-148.]. Similarly, the
concept of inhumane treatment has been understood within the framework
of grave breach of the Geneva Conventions or of the Additional
Protocol I- as involving “acts or omissions that cause serious
mental or physical suffering or injury or constitute a serious attack
on human dignity. Accordingly, all acts or omissions found to
constitute torture or willfully 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 in the foregoing two, and extends further to acts
which violate the basic principle of humane treatment, particularly
the respect for human dignity.” Celibici TC Judgment, supra
note 193, para. 442, 543. The ICTY and ICTR have also considered that
rape and other serious sexual assaults may constitute torture. See
Furundzija TC Judgment, supra
note 375, paras. 163 and following, 264 and following; Celibici TC
Judgment, supra note 193,
paras. 475 and following, 940 and following. The ad hoc tribunals have
also discussed other acts which could constitute torture, including
burning parts of the body [Celibici TC Judgment, supra
note 193, paras. 976 and following], imprisoning a person in a manhole
and depriving such person of food and water [Celibici TC Judgment, supra
note 193, para. 1007], beatings, threats to the lives of persons
subjected to interrogations, and forcing victims to beat each other [Akayesu,
TC Judgment, supra note
193, paras. 682-683]. Similarly, the ICTY has discussed other acts
which could constitute inhumane treatment, including beatings [Celibici
TC Judgment, supra note
193, para. 1026] and inflicting electrical shocks that cause pain and
burns [Celibici TC Judgment, supra
note 193, paras 1058-59]. [466]
See infra Part II(C). As
noted previously, violations of these prohibitions are regarded as
sufficiently serious to give rise to individual criminal
responsibility as grave breaches of the 1949 Geneva Conventions and
Additional Protocol I or serious violations of Article 3 common to the
1949 Geneva Convention and, when committed as part of a widespread or
systematic attack on any civilian population on national, political,
ethnic, racial or religious grounds, as crimes against humanity and
possibly genocide. [467]
Four Geneva Conventions, supra notes 36, 67. [468]
See inter
alia, UN Secretary General Report (1993), supra
note 189. See also UN
Security Council Resolution 827, 3217th Meeting of 25 May 1993, S/RES/827
(1993); ICJ, Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons, supra
note 73, paras. 79, 84; ICJ, Nicaragua Case, supra
note 188, paras. 218-220; Tadić AC Decision Jurisdiction, supra
note 163, paras. 98, 102, 112, 134; Celibici TC Judgment, supra
note 193, paras. 298-306; Akayesu, TC Judgment, supra
note 193, paras. 604-610; Kordic TC Jurisdiction Decision, supra
note 193, paras. 25-34 (recognizing that Article 3 Common to the Four
Geneva Conventions constitutes a norm of customary international law). [469]
Third Geneva Convention, supra note
67. [470]
1907 Hague Convention and Regulations, supra
note 177. [471]
1907 Hague Convention and Regulations, supra
note 177, Article 4. [472]
Fourth Geneva Convention, supra
note 36. [473]
Fourth Geneva Convention, supra
note 36, Article 4 (“Persons protected by the Convention are
those who, at a given moment and in any manner whatsoever, find
themselves, in case of a conflict or occupation, in the hands of a
Party to the conflict or Occupying Power of which they are not
nationals. Nationals of a State which is not bound by the Convention
are not protected by it. Nationals of a neutral State who find
themselves in the territory of a belligerent State, and nationals of a
co-belligerent State, shall not be regarded as protected persons while
the State of which they are nationals has normal diplomatic
representation in the State in whose hands they are. The provisions of
Part II are, however, wider in application, as defined in Article 13.
Persons protected by the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field of
August 12, 1949, or by the Geneva Convention for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea of August 12, 1949, or by the Geneva Convention relative to the
Treatment of Prisoners of War of August 12, 1949, shall not be
considered as protected persons within the meaning of the present
Convention”). [474]
Additional Protocol I, supra
note 68. [475]
See infra, Part III(C),
para. 64. [476]
Additional Protocol II, supra note
36. [477]
Third Geneva Convention, supra note
67. [478]
Fourth Geneva Convention, supra
note 36. [479]
The Third Geneva Convention specifies more particularly: ” […] The
Detaining Power may subject prisoners of war to internment. It may
impose on them the obligation of not leaving, beyond certain limits,
the camp where they are interned, or if the said camp is fenced in, of
not going outside its perimeter. Subject to the provisions of the
present Convention relative to penal and disciplinary sanctions,
prisoners of war may not be held in close confinement except where
necessary to safeguard their health and then only during the
continuation of the circumstances which make such confinement
necessary. […]” Third Geneva Convention, supra
note 67, Articles 21, 22-25. The Fourth Geneva Convention contains
similar provisions dealing with the internment of protected persons.
Fourth Geneva Convention, supra
note 36, Articles 41-43, 68, 78-88. [480]
See Third Geneva
Convention, supra note 67,
Articles 15-16, 29-32, 109. The Fourth Geneva Convention contains
similar provisions with respect to protected persons, in particular to
interned protected persons. Fourth Geneva Convention, supra
note 36, Articles 38, 56 and following, 91-92. [481]
See Third Geneva
Convention, supra note 67,
Articles 25-27. Prisoners of war must, generally speaking, be afforded
quarter conditions as favorable as those provided for the forces of
the Detaining power. Third Geneva Convention, supra
note 67, Article 25. In
addition, prisoners of war must be treated in accordance with their
military rank. See, e.g., Third Geneva Convention, supra
note 67, Articles 16-17, 43-45, 98. See
also Fourth Geneva
Convention, supra note 36,
Articles 86-90. Article 85 of the Fourth Geneva Convention provides in
particular: “The Detaining Power is bound to take all necessary and
possible measures to ensure that protected persons shall, from the
outset of their internment, be accommodated in buildings or quarters
which afford every possible safeguard as regards hygiene and health,
and provide efficient protection against the rigours of the climate
and the effects of the war. In no case shall permanent places of
internment be situated in unhealthy areas or in districts the climate
of which is injurious to the internees. In all cases where the
district, in which a protected person is temporarily interned, is in
an unhealthy area or has a climate which is harmful to his health, he
shall be removed to a more suitable place of internment as rapidly as
circumstances permit. The premises shall be fully protected from
dampness, adequately heated and lighted, in particular between dusk
and lights out. The sleeping quarters shall be sufficiently spacious
and well ventilated, and the internees shall have suitable bedding and
sufficient blankets, account being taken of the climate, and the age,
sex, and state of health of the internees. Internees shall have for
their use, day and night, sanitary conveniences which conform to the
rules of hygiene and are constantly maintained in a state of
cleanliness. They shall be provided with sufficient water and soap for
their daily personal toilet and for washing their personal laundry;
installations and facilities necessary for this purpose shall be
granted to them. Showers or baths shall also be available. The
necessary time shall be set aside for washing and for cleaning.
Whenever it is necessary, as an exceptional and temporary measure, to
accommodate women internees who are not members of a family unit in
the same place of internment as men, the provision of separate
sleeping quarters and sanitary conveniences for the use of such women
internees shall be obligatory.” [482]
See Third Geneva
Convention, supra note 67,
Articles 19-20, 46. With respect to protected persons in occupied
territories, see Fourth Geneva Convention, supra
note 36, Article 49. See
also Fourth Geneva
Convention, supra note 36,
Article 147 (specifying that “[t]he transfer of internees shall
always be effected humanely. As a general rule, it shall be carried
out by rail or other means of transport, and under conditions at least
equal to those obtaining for the forces of the Detaining Power in
their changes of station. If, as an exceptional measure, such removals
have to be effected on foot, they may not take place unless the
internees are in a fit state of health, and may not in any case expose
them to excessive fatigue. The Detaining Power shall supply internees
during transfer with drinking water and food sufficient in quantity,
quality and variety to maintain them in good health, and also with the
necessary clothing, adequate shelter and the necessary medical
attention. The Detaining Power shall take all suitable precautions to
ensure their safety during transfer, and shall establish before their
departure a complete list of all internees transferred. Sick, wounded
or infirm internees and maternity cases shall not be transferred if
the journey would be seriously detrimental to them, unless their
safety imperatively so demands. If the combat zone draws close to a
place of internment, the internees in the said place shall not be
transferred unless their removal can be carried out in adequate
conditions of safety, or unless they are exposed to greater risks by
remaining on the spot than by being transferred“). [483]
Additional Protocol I, supra
note 68, Article 75(4). See
similarly Additional
Protocol II, supra note 36,
Article 6 regarding non-international armed conflicts. [484]
Article 17 of the Third Geneva Convention provides that “[e]very
prisoner of war, when questioned on the subject, is bound to give only
his surname, first names and rank, date of birth, and army,
regimental, personal or serial number, or failing this, equivalent
information. […] 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. Prisoners of war who refuse to answer may not be
threatened, insulted, or exposed to any unpleasant or disadvantageous
treatment of any kind. […]” Third Geneva Convention, supra
note 67, Article 17. [485]
Third Geneva Convention, supra note
67, Articles 49 and following. In particular, Article 52 provides:
“Unless he be a volunteer, no prisoner of war may be employed on
labour which is of an unhealthy or dangerous nature. No prisoner of
war shall be assigned to labour which would be looked upon as
humiliating for a member of the Detaining Power's own forces. The
removal of mines or similar devices shall be considered as dangerous
labour.” The Fourth Geneva Convention
contains similar guarantees for protected persons. Fourth
Geneva Convention, supra note
36, Articles 40, 51, 95-96 (prohibiting employment on work of a
degrading or humiliating character). [486]
The Third Geneva Convention provides that “[i]n no case shall
disciplinary punishments be inhuman, brutal or dangerous to the health
of prisoners of war“ and that “[c]ollective punishment for
individual acts, corporal punishments, imprisonment in premises
without daylight and, in general, any form of torture or cruelty, are
forbidden.” Third Geneva Convention, supra
note 67, Articles 87(3), 89. The Fourth Geneva Convention contains
similar guarantees for protected persons subjected to internment.
Fourth Geneva Convention, supra
note 36, Articles 100, 119. [487]
For example, Article 97 of the Third Geneva Convention provides:
“Prisoners of war shall not in any case be transferred to
penitentiary establishments (prisons, penitentiaries, convict prisons,
etc.) to undergo disciplinary punishment therein. All premises in
which disciplinary punishments are undergone shall conform to the
sanitary requirements set forth in Article 25. A prisoner of war
undergoing punishment shall be enabled to keep himself in a state of
cleanliness, in conformity with Article 29. Officers and persons of
equivalent status shall not be lodged in the same quarters as
non-commissioned officers or men. Women prisoners of war undergoing
disciplinary punishment shall be confined in separate quarters from
male prisoners of war and shall be under the immediate supervision of
women.“ Third Geneva Convention, supra
note 67, Article 97. The Convention also specifies fundamental
guarantees dealing with the treatment of prisoners of war subject to
disciplinary punishment: “A prisoner of war undergoing confinement
as a disciplinary punishment, shall continue to enjoy the benefits of
the provisions of this Convention except in so far as these are
necessarily rendered inapplicable by the mere fact that he is
confined. In no case may he be deprived of the benefits of the
provisions of Articles 78 and 126. A prisoner of war awarded
disciplinary punishment may not be deprived of the prerogatives
attached to his rank. Prisoners of war awarded disciplinary punishment
shall be allowed to exercise and to stay in the open air at least two
hours daily. They shall be allowed, on their request, to be present at
the daily medical inspections. They shall receive the attention which
their state of health requires and, if necessary, shall be removed to
the camp infirmary or to a hospital […]” Third Geneva Convention, supra
note 67, Article 98. The Fourth Geneva Convention contains similar
guarantees for protected persons subjected to internment. Fourth
Geneva Convention, supra note
36, Arts. 124, 125. [488]
Third Geneva Convention, supra note 67, Article 92 (“Pprisoners of
war punished as a result of an unsuccessful escape
may be subjected to measures of special surveillance, which do not
affect the state of his or her health, and which do not entail the
suppression of any of the safeguards granted [by the Third Geneva
Convention].” The Fourth Geneva Convention contains similar
guarantees for protected persons subjected to internment. Fourth
Geneva Convention, supra note
36, Article 120. [489]
See, e.g., Third Geneva
Convention, supra note 67,
Article 108 (providing that “[s]entences pronounced on prisoners of
war after a conviction has become duly enforceable, shall be served in
the same establishments and under the same conditions as in the case
of members of the armed forces of the Detaining Power. These
conditions shall in all cases conform to the requirements of health
and humanity. A woman prisoner of war on whom such a sentence has been
pronounced shall be confined in separate quarters and shall be under
the supervision of women. In any case, prisoners of war sentenced to a
penalty depriving them of their liberty shall retain the benefit of
the provisions of Articles 78 and 126 of the present Convention.
Furthermore, they shall be entitled to receive and dispatch
correspondence, to receive at least one relief parcel monthly, to take
regular exercise in the open air, to have the medical care required by
their state of health, and the spiritual assistance they may desire.
Penalties to which they may be subjected shall be in accordance with
the provisions of Article 87, third paragraph”). The Fourth Geneva
Convention contains similar guarantees and provides in particular that
“[i]mprisonment in premises without daylight, and, in general, all
forms of cruelty without exception are forbidden.” Fourth Geneva
Convention, supra note 36,
Article 118. [490]
See, e.g.,
Third Geneva Convention, supra note 67, Article 8 (providing
that the Convention “shall be applied with the cooperation and under
the scrutiny of the Protecting Powers whose duty it is to safeguard
the interests of the Parties to the conflict”). See
also Fourth Geneva
Convention, supra note 36,
Article 9. [491]
Third Geneva Convention, supra note
67, Article 126. Fourth Geneva Convention, supra
note 36, Articles 142-143. [492]
Third Geneva Convention, supra note
67, Articles 9, 78. Fourth Geneva Convention, supra
note 36, Articles 10, 101. [493]
See, e.g., Fourth Geneva
Convention, supra note 36,
Arts. 24, 38 (5), 50, 82, 89, 94, 132; Additional Protocol I, supra
note 68, Articles 70, 77, 78. [494]
Fourth Geneva Convention, supra
note 36, Articles 82, 89, 94.
[495]
See, e.g., Third Geneva
Convention, supra note 67,
Articles 14, 25, 29, 97, 108; Fourth Geneva Convention, supra
note 36, Articles 14, 16, 23, 27, 38, 50, 76, 85, 89, 98, 124;
Additional Protocol I, supra
note 68, Articles 70, 75, 76; Additional Protocol II, supra
note 36, Article 5(2)(a). [497]
Third Geneva Convention, supra note
67, Articles 97, 108.
[498]
Fourth Geneva Convention, supra
note 36, Articles 76, 85, 124; Additional Protocol I, supra
note 68, Article 75 (5); Additional Protocol II, supra
note 36, Article 5(2)(a). [500]
Third Geneva Convention, supra note
67, Article 130; Fourth Geneva Convention, supra
note 36, Article 147. [501]
Additional Protocol I, supra
note 68, Articles 11, 85 and following. [502]
Rome Statute, supra note
31, Article 8. [503]
Rome Statute, supra note
31, Article 7. The International Criminal Tribunal for Rwanda (ICTR)
considered that the following constitute the elements of torture: (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. Akayesu, TC Judgment, supra
note 193, para. 594. The ICTR Chamber also found that torture could
also constitute a crime against humanity if the following further
elements were met: a) Torture must be perpetrated as part of a
widespread or systematic attack; (b) the attack must be against the
civilian population; (c) the attack must be launched on discriminatory
grounds, namely: national, ethnic, racial, religious or political
grounds. Akayesu, TC Judgment, supra
note 193, para. 595 [504]
Genocide Convention, supra
note 189, Article 2; Rome Statute, supra
note 31, [505]
Rome Statute, supra note
31. See similarly ICTY
Statute, supra note 549;
ICTR Statute, supra note
549. |
