Torture in international law

Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.Article 16 1.

The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.Note several points: The Optional Protocol to the Convention Against Torture (OPCAT) entered into force on 22 June 2006 as an important addition to the UNCAT.

As stated in Article 1, the purpose of the protocol is to "establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

[5] The United Nations Commission on Human Rights in 1985 decided to appoint an expert, a special rapporteur, to examine questions relevant to torture.

They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria.

Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments".

Such persons shall be treated humanely and cared for by the Parties to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria.

In particular, Article 17 says 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 provides an important exemption: Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention [ie GCIV] as would ... be prejudicial to the security of such State ...

In other words, atrocities committed by belligerent troops against these non-protected persons in an international armed conflict are not war crimes.

The George W. Bush administration afforded fewer protections, under GCIII, to detainees in the "War on Terror" by codifying the legal status of an "unlawful combatant".

If there is a question of whether a person is a lawful combatant, he (or she) must be treated as a POW "until their status has been determined by a competent tribunal" (GCIII Article 5).

In Article 5, the protocol explicitly involves "the appointment of Protecting Powers and of their substitute" to monitor that the Parties to the conflict are enforcing the Conventions.

"[23] The International Covenant on Civil and Political Rights (16 December 1966) explicitly prohibits torture and "cruel, inhuman or degrading treatment or punishment" by signatories.

[24] In 1950 during the Cold War, the participating member states of the Council of Europe signed the European Convention on Human Rights.

[27] On 26 November 1987, the member states of the Council of Europe, meeting at Strasbourg, adopted the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT).

Under the provisions of OPCAT that entered into force on 22 June 2006 independent international and national bodies regularly visit places where people are deprived of their liberty, to prevent torture and other cruel, inhuman or degrading treatment or punishment.