(Source picture: Wikipedia)
At its core, torture is the infliction of severe pain and suffering on individuals who are in the hands of their offenders.Torture has been used throughout history for different purposes such as to gather information, as a punishment and as a form of intimidation or coercion, see p. 159 of this article. Torture was not thought of as illegal in ancient times.  Under Roman law torture was also used as a means of investigating the commission of a crime; however, this use was not unlimited. The practice of torture by official prosecutors on the basis of protocols as a way to inflict pain on criminal suspects and witnesses to gather confessions and information, continued on in the middle ages, see p. 160 of this article. For example, Aristotle considered torture as a “non-technical means of persuasion” that could either result in plausible or implausible evidence given the conflicting responses to torture; telling either the truth or lying to relief their suffering.
In modern times its use has been prohibited through different international legal instruments. The origin of these proscriptions lies in the prohibition of mistreatment of prisoners of war. The Lieber Code, also known as the Instructions for the Government of Armies of the United States in the Field of 1863, states that “military necessity does not admit cruelty, including torture to extort confessions.” Article 4 of the Hague Convention concerning the Laws and Customs of War on Land of 1907 also demands that prisoners of war be treated humanely; though it does not refer to torture expressly.
After the atrocities of World War II, which included forms of medical torture, international human rights law developed. As a result, the prohibition of torture extended into this field of international law, and so, into a general principle also applicable outside the context of an armed conflict. Article 5 of the Universal Declaration of Human Rights of 1948 states that: “No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment.” Article 3 of the European Convention on Human Rights of 1950 (ECHR) and article 7 of the International Covenant on Civil and Political Rights of 1966 (ICCPR) contain the same prohibition on the use of torture.
These human rights instruments were followed by the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment in 1975. This document was succeeded by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT), which entered into force in 1987. This treaty can be viewed as a human rights treaty but it has been argued that it has unique features which set it apart from a typical human rights convention, see p. 187 of this article. The aim of the convention is not solely to protect a certain right, namely the right to freedom from torture, but it also obliges states, among other things, to adopt national legislation to criminalise torture as a discrete crime. It can therefore be argued that torture is an international crime in and of itself, distinct from torture as a war crime, a crime against humanity or any other international crime, see the same page of the just-mentioned article.
Another important feature of the CAT is Article 5 (2), which ensures universal jurisdiction over crimes of torture. It reads: “Each State Party shall […] take such measures as may be necessary to establish its jurisdiction over offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him […].” The CAT thus sets in place a regime based on the principle of aut dedere aut judicare, where states parties are obliged to either prosecute an alleged torture perpetrator, or to extradite such a person to a state that claims jurisdiction because the act of torture was committed on its territory or by or against a national, see p. 5 of this paper.
Apart from considering torture as a discrete crime, it can also be viewed as part of another international crime. For instance, the Statutes of both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) give those ad hoc tribunals the power to prosecute persons responsible for torture amounting to a crime against humanity (see Art. 5 (f) of the ICTY Statute and Art. 3 (f) of the ICTR Statute) or a war crime (see Art. 2 (b) ICTY Statute or Art. 4 (a) of the ICTR Statute. Likewise, the Statute of the International Criminal Court gives the International Criminal Court (ICC) jurisdiction to prosecute those people involved in torture as part of a crime against humanity (see Art. 7 (1)(f)) or a war crime (see Art. 8(2)(a)(ii).
Under international humanitarian law, torture of the wounded, sick, shipwrecked, prisoners of war or civilians who find themselves in the hands of the enemy is prohibited, see Art. 12 Geneva Convention I, art. 12 Geneva Convention II, Artt. 17 and 87 Geneva Convention III and Art. 32 Geneva Convention IV and Common Article 3 of the four Geneva Conventions. The prohibition of torture has also become part of customary international law in both international and non-international armed conflicts, see Rule 90 (p. 315) of the International Committee of the Red Cross Study on Customary International Humanitarian Law.
The prohibition of torture is thus regulated in various international legal instruments which “demonstrates the willingness of the international community to outlaw torture in all its manifestations”, see p. 184 of this article. In the words of the ICTY in Furundzija, see para. 146 of this judgment: “The existence of this corpus of general and treaty rules proscribing torture shows that the international community, aware of the importance of outlawing this heinous phenomenon, has decided to suppress any manifestation of torture by operating both at the interstate level and at the level of individuals. No legal loopholes have been left.”
Cassese purports that a general rule of customary international law has evolved which a) prohibits individuals from perpetrating torture, regardless of whether it is committed on a large scale; and b) authorises all states to prosecute and punish the alleged perpetrator of such acts, regardless of where the act took place and regardless of the nationality of the perpetrator or the victim.
The exact definition of torture will depend on the particular legal context in which the word is used, see p. 192 of this article. We have seen that these contexts range from torture under international human rights law, torture as a discrete crime under customary international law and CAT, and torture as either a war crime or a crime against humanity.
The prohibition of torture under customary international criminal law, as given by Cassese, uses the definition of the discrete crime as laid down in the Torture Convention. Article 1(1) CAT provides that:
For the purposes of this Convention, torture means i) any act by which severe pain or suffering, whether physical or mental, is ii) intentionally inflicted on a person iii) 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, iv) when such pain or suffering is inflicted by or at instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanction.
Art. 2(2) CAT accounts for the absolute and non-derogable status of the prohibition of torture: “No exceptional circumstances whatsoever, whether a state or a threat of war, internal political instability or any other public emergency, may be invoked.”
It is also widely recognised that the prohibition of torture constitutes a peremptory norm of international law and enjoys a higher rank in international law than treaty law and other customary law. This means that states may not allow torture even in times of emergency and thus, the need to combat terrorism cannot justify its use under the CAT. Perpetrators can be held criminally responsible even with national or international authorisation by legislative or judicial bodies to apply torture, see p. 162 of this article. As such, even when torture may be allowed under national law as a means of sanction, the international law standard is decisive.
The definition of the discrete crime of torture contains the condition that the crime of torture is perpetrated with a certain goal, namely to either obtain information or a confession; to punish, intimidate or humiliate someone; to coerce either the victim or a third person to do something or, finally, for reasons of discrimination.
A further condition is that the torturous act is performed by a state official or that a state official is otherwise involved. These conditions have to do with the nature of torture as a discrete crime: the prohibition punishes torture as such; even if the act is only committed sporadically and regardless of whether committed in times of peace or war, see p. 190 of this article. To transform the “ordinary” criminal offence of torture by private individuals as a domestic matter into an international crime and international matter, it is necessary to include state involvement in the definition, see the same page of the just-mentioned article.
Torture as a Crime against Humanity and as a War Crime
Ad Hoc Tribunals
The Statutes of the ad hoc tribunals for Yugoslavia and Rwanda do not contain definitions of torture. It was up to the tribunals themselves to define the crime, see p. 161 of this article. From the jurisprudence of the ad hoc tribunals it can be concluded that the definition of the act of torture itself is the same irrespective of whether a perpetrator is prosecuted for torture as a crime against humanity or as a war crime, see p. 163 of the same article. The act of torture under the ad hoc tribunals consists of the infliction by act or omission of severe pain or suffering, whether physical or mental, see again p. 163 of the same article.
The act furthermore needs to have been carried out with a specific purpose, just as the discrete crime of torture, see p. 168 of the just-mentioned article. In contrast to the earlier definition of the Torture Convention, the ad hoc tribunals do not require “that the act is inflicted by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity”, see p. 171 of the same article. In Kunarac, the Trial Chamber stated in para. 496 of this judgment that: “the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law.” This difference can be explained by the fact that the commission of an international crime triggers individual responsibility by itself, see p. 172 of this article. Furthermore, the context of torture committed as a war crime or a crime against humanity transforms the act into an international concern, making the requirement of state involvement redundant, see p. 190 of this article.
International Criminal Court
The Rome Statute in its art. 7 (1)(f) holds that the act of torture can amount to a crime against humanity when committed as part of a widespread or systematic attack, with knowledge thereof, directed against any civilian population. It defines torture in the second paragraph as: “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.”
War crimes are defined under art. 8 (2) (a) (ii) of the ICC’s Rome Statute as grave breaches of the Geneva Conventions of 12 August 1949, namely acts such as torture and other inhuman treatments against protected persons under the provisions of the relevant Geneva Convention. The Elements of Crimes specify that for torture to be a war crime, the pain or suffering inflicted must have had such purposes as obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.
Torture as a war crime or a crime against humanity does not require state involvement which can be explained by the same reason set out under the ad hoc tribunals. Worth noting is that torture as a crime against humanity is not required to be committed for a certain purpose, but as a war crime it is.
For recent examples of torture one might think of the occurrences in Abu Ghraib and Guantanamo Bay. In both places, suspected terrorists were detained and submitted to so-called “enhanced interrogation techniques” by the US Central Intelligence Agency (CIA) and the US Department of Defence. These techniques included hypothermia, sleep deprivation and waterboarding and amount to torture. Torture has thus been used as a way to counter terrorism even though the prohibition on torture is non-derogable and cannot be deviated from even in a state of emergency.
Furthermore, during the on-going internal armed conflict in Syria between the forces of President Al-Assad and what is now called the Syrian National Coalition wanting to oust the regime, the use of torture has become apparent and may even amount to crimes against humanity. In detention centres run by various Syrian intelligence agencies, collectively named the mukhabarat, reportedly various forms of torture have been used. These forms included prolonged beatings, holding the detainees in painful stress positions for longer periods of time, the use of electricity and acid, sexual assault and humiliations, mock executions and the pulling of fingernails.
At the moment, no international criminal court or tribunal has jurisdiction over torture as a discrete crime. However, the Torture Convention explicitly grants states jurisdiction, based on the universality principle, to prosecute alleged perpetrators. This is not done often against foreign perpetrators committing torture abroad against foreign victims. Furthermore, states feel that torture committed by state officials falls under their own criminal jurisdiction, for it is a domestic matter, not an international one.
Jeanine Bell, Thousand Shades of Gray: The Effectiveness of Torture, 15 August 2005
Christoph Burchard, Torture in the Jurisprudence of the Ad Hoc Tribunals- A Critical Assessment, in Journal of International Criminal Justice, 6 (2008) pp. 159-182
Paola Gaeta, When is the Involvement of State Officials a Requirement for the Crime of Torture? In Journal of International Criminal Justice, 6 (2008) pp. 183-193
Jorden J. Paust, The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions, 9 April 2009
 Antonio Cassese, International Criminal Law, Oxford University Press (2003) p. 119.
 Johan D. van der Vyver, ‘Torture as a Crime Under International Law’, Albany Law Review, Vol. 67 (2003) pp. 427-429.
 Ibid., p. 428.
 Ibid., para. 1.
 Ibid., para. 10.
 Kretzmer (n 5), para. 3.
 Cassese (n 1), p. 119.
 Ibid., pp. 119-120. See also ICTY, Delalic and others, Furundzija and Kunarac and others.
 Enumeration added by author.
 Kretzmer (n 5), para. 6.
 Ibid., para. 23. See also the discussion of the ticking time bombs scenarios.
 Gerhard Werle, Principles of International Criminal Law, 2nd Edition, T.M.C. Asser Press (2009) p. 321, para. 869.
 Kretzmer (n 5), para. 12.
 Werle (n 15), p. 386, para. 1043.
 Cassese (n 1), p. 110.