C. Right to Humane Treatment
1. International Human Rights Law
147. Perhaps in no other area is there greater convergence between international human rights law and international humanitarian law than in the standards of humane treatment and respect for human dignity. While governed by distinct instruments, both regimes provide for many of the same minimum and non-derogable requirements dealing with the humane treatment of all persons held under the authority and control of the state.[375]
148. Moreover, violations of the prohibition of torture and other serious breaches of humane treatment norms are regarded as sufficiently grave under both bodies of law to give rise to not only to state responsibility as described below, but may also constitute international crimes entailing the individual criminal responsibility of those participating in the violations and their superiors.[376] Some of these violations may as such constitute crimes against humanity or even genocide[377] and may now fall under the jurisdiction of the International Criminal Court.[378]
149. Within the inter-American system, the right to humane treatment is prescribed principally in Articles I, XXV and XXVI of the American Declaration and Article 5 of the American Convention, which provide as follows:
American Declaration
Article I. Every human being has the right to life, liberty and the security of his person.
Article XXV. […] Every individual who has been deprived of his liberty […] has the right to humane treatment during the time he is in custody.
Article XXVI. Every person accused of an offense has the right […] not to receive cruel, infamous or unusual punishment.
American Convention
Article 5.1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. 3. Punishment shall not be extended to any person other than the criminal. 4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons. 5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. 6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
Article 7.1. Every person has the right to personal liberty and security.
150. These provisions mirror similar human rights guaranteed under other regional and universal instruments,[379] and generally encompass three broad categories of prohibited treatment or punishment: (1) torture; (2) other cruel, inhumane, or degrading treatment or punishment; (3) other prerequisites for respect for physical, mental or moral integrity, including certain regulations governing the means and objectives of detention or punishment. The analysis below provides an overview of the meaning and content of these humane treatment protections, followed by a consideration of several areas of state conduct particularly pertinent to the right to humane treatment, namely methods of interrogation, conditions of detention and specific protections for children, women and non-nationals.
151. Neither the American Convention on Human Rights nor the American Declaration expressly define “torture� or “other cruel, inhuman or degrading punishment or treatment.�
152. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on the other hand, defines torture for the purposes of that treaty as
[…] any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person 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, when such pain or suffering is 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions […].[380]
153. Article 2 of the Inter-American Convention to Prevent and Punish Torture[381] provides a similar, though not identical, definition of torture as follows:
For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish. The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this Article.
154. Under the Inter-American Torture Convention regime, torture refers to acts committed by state agents or persons acting under the orders or instigation of state agents.[382] While analyzing the concept of torture for the purposes of Article 5 of the American Convention on Human Rights, the Commission has frequently referred to the definition provided for in the Inter-American Torture Convention,[383] and has also found violations of the Inter-American Torture Convention itself as against states parties to that instrument.[384] The Commission has considered that for torture to exist three elements have to be combined: 1. it must be an intentional act through which physical and mental pain and suffering is inflicted on a person; 2. it must be committed with a purpose (inter alia personal punishment or intimidation) or intentionally (i.e. to produce a certain result in the victim); 3. it must be committed by a public official or by a private person acting at the instigation of the former.[385] As discussed below, torture and inhumane treatment are distinct types of violations.[386]
155. The American Convention prohibits the imposition of torture or cruel, inhuman or degrading treatment or punishment on persons under any circumstances.[387] While the American Declaration does not contain a general provision on the right to humane treatment, the Commission has interpreted Article I of the American Declaration as containing a prohibition similar to that under the American Convention.[388] In fact it has specified that "[a]n essential aspect of the right to personal security is the absolute prohibition of torture, a peremptory norm of international law creating obligations erga omnes."[389] It has also qualified the prohibition of torture as a norm of jus cogens.[390]
156. Neither the American Convention nor the Convention to Prevent and Punish Torture establish what should be understood by "inhuman or degrading treatment," nor how it is to be differentiated from torture. Nevertheless, certain guiding principles may be drawn from the jurisprudence of the Inter-American Court and Commission for the purpose of evaluating whether certain conduct may fall within these categories of inhumane treatment. When analyzing allegations of violations of Article 5 of the American Convention, for example, the Inter-American Commission has taken into account decisions of the European Commission on Human Rights, according to which "inhuman treatment is that which deliberately causes severe mental or psychological suffering, which, given the particular situation, is unjustifiable" and that "treatment or punishment of an individual may be degrading if he is severely humiliated in front of others or he is compelled to act against his wishes or conscience."[391]
157. The Inter-American Commission has also considered the jurisprudence of the European Court of Human Rights, according to which a treatment must attain a minimum level of severity in order to be considered "inhuman or degrading." The evaluation of this "minimum" level is relative and depends on the circumstances in each case, such as the duration of the treatment, its physical and mental effects, and, in some cases, the sex, age, and health of the victim.[392]
158. In addition, with regard to the conceptual difference between the term "torture" and "inhuman or degrading treatment", the Inter-American Commission has shared the view of the European Commission on Human Rights that the concept of "inhuman treatment" includes that of "degrading treatment", and that torture is an aggravated form of inhuman treatment perpetrated with a purpose, namely to obtain information or confessions or to inflict punishment.[393] The Inter-American Commission has also relied upon the European Court of Human Rights’ view that the essential criterion to distinguish between torture and other cruel, inhuman or degrading treatment or punishment "primarily results from the intensity of the suffering inflicted".[394]
159. The Inter-American Court has similarly relied upon the jurisprudence of the European Court of Human Rights in finding that, even in the absence of physical injuries, psychological and moral suffering, accompanied by psychic disturbance during questioning, may be deemed inhuman treatment. According to the Inter-American Court, the degrading aspect of a treatment is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical and moral resistance.[395] The Court also noted that the degrading aspect of the treatment can be exacerbated by the vulnerability of a person who is unlawfully detained.[396]
160. Finally, this Commission has considered that both the American Convention and the Inter-American Convention to Prevent and Punish Torture provide the Commission with certain latitude in assessing whether, in view of its seriousness or intensity, an act or practice constitutes torture or inhuman or degrading punishment or treatment. According to the Commission, such classification should be done on a case-by-case basis, taking into account the peculiarities thereof, the duration of the suffering, the physical and mental effects on each specific victim, and the personal circumstances of the victim.[397]
161. While it is not possible to provide an exhaustive accounting of the type of conduct that might constitute torture or other cruel, inhuman or degrading punishment or treatment, some guidance can be drawn from existing inter-American jurisprudence, which has found certain acts to amount to inhumane treatment, generally and specifically in the context of interrogation and detention.[398] Examples include:
*
prolonged incommunicado detention;[399]
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keeping detainees hooded and naked in cells and interrogating them under the drug pentothal;[400]
*
imposing a restricted diet leading to malnutrition;[401]
*
applying electric shocks to a person;[402]
*
holding a person’s head in water until the point of drowning;[403]
*
standing or walking on top of individuals;[404]
*
beating,[405] cutting with pieces of broken glass,[406] putting a hood over a person’s head and burning him or her with lighted cigarettes;[407]
*
rape;[408]
*
mock burials, mock executions, beatings, deprivation of food and water;[409]
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threats of a behavior that would constitute inhumane treatment;[410] threats of removal of body parts, exposure to the torture of other victims;[411]
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death threats;[412]
162. Guidance in this respect can also properly be drawn from other international authorities. The United Nations Special Rapporteur on Torture has listed several acts which involve the infliction of suffering severe enough to constitute torture. These include, for example, beating, extraction of nails, teeth, etc., burns, electric shocks, suspension, suffocation, exposure to excessive light or noise, sexual aggression, administration of drugs in detention or psychiatric institutions, prolonged denial of rest or sleep, food, sufficient hygiene, or medical assistance, total isolation and sensory deprivation, being held in constant uncertainty in terms of space and time, threats to torture or kill relatives, and simulated executions.[413] The United Nations Human Rights Committee has considered similar conduct to constitute torture or other inhumane treatment, including beatings, electric shocks and mock executions, forcing prisoners to remain standing for extremely long periods of time, and holding persons incommunicado for more than three months while keeping that person blindfolded with hands tied together, resulting in limb paralysis, leg injuries, substantial weight loss and eye infection.[414]
163. The European Commission of Human Rights and the European Court of Human Rights have also had occasion to evaluate conduct alleged to constitute torture or other inhumane treatment for the purposes of the European Convention on Human Rights. In particular, in the Greek Case, the European Commission of Human Rights considered that the practice of administering severe beatings to all parts of the body, constituted torture and ill-treatment.[415] Similarly, in Aksoy v. Turkey, the Court considered that the victim had been subjected to torture when he was stripped naked and suspended by his arms which had been tied together behind his back, the treatment was deliberately inflicted, a certain amount of preparation and exertion had been required to carry it out, and it appeared to have been administered with the aim of obtaining admissions or information from the victim.[416] In Aydin v. Turkey, the European Court considered that the rape of the victim during her detention over a period of three days, together with the fact that she has been blindfolded, paraded naked in humiliating circumstances, interrogated, and kept in a constant state of physical pain and mental anguish from her circumstances, amounted to torture.[417]
164. The jurisprudence of the inter-American and other human rights systems provides insights into several aspects of the right to humane treatment that may be particularly pertinent in analyzing anti-terrorist initiatives. These include the conduct of interrogations, conditions of detention, and the treatment of persons in situations of particular vulnerability or disadvantage including children, women and non-nationals. In particular, the Inter-American Commission and the Inter-American Court have addressed the right to human treatment guaranteed under the Convention and the Declaration when considering some of the above mentioned acts applied on persons during their interrogations by state agents.[418] In so doing, the Commission[419] and the Court[420] have referred to the notable discussion by the European Court of Human Rights in the Ireland v. UK case[421] and have suggested that techniques similar to those addressed by the European Court are prohibited in any interrogations undertaken by state agents. The facts in that case dealt with the "interrogation in depth" which involved the combined application of five particular techniques, or methods, sometimes termed "disorientation" or "sensory deprivation" techniques, which included
(a) wall-standing (forcing the detainees to remain for periods of some hours in a "stress position"); (b) hooding (putting a hood over the detainees' heads and, at least initially, keeping it there all the time except during interrogation); (c) subjection to noise (pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise); (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the detention centre and pending interrogations.[422]
165. The European Court of Human Rights considered that these interrogation techniques constituted inhumane treatment but not torture as prohibited by Article 3 of the European Convention on Human Rights.[423] In its analysis the Court specified:
*
In order to constitute torture or inhumane treatment, the treatment must attain a minimum level of severity which is assessed by taking into consideration all the circumstances of the case, such as, but not exclusively, the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim;[424]
*
In the specific case, the acts did fall in the category of inhumane treatment because they caused, if not actual bodily injury, at least intense physical and mental suffering to the persons subjected thereto and also led to acute psychiatric disturbances during interrogation; [425]
*
The techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance;[426]
*
The Convention contains a distinction between "torture" and "inhuman or degrading treatment" and as such attaches to torture a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.[427]
*
In the specific case, the five techniques did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. [428]
166. Moreover, the Inter-American Court has specified that any use of force that is not strictly necessary to ensure proper behavior on the part of the detainee constitutes an assault on the dignity of the person in violation of Article 5 of the American Convention. According to the Court, the exigencies of the investigation and the undeniable difficulties encountered in the anti-terrorist struggle must not be allowed to restrict the protection of a person's right to physical integrity.[429]
167. The Inter-American Commission and the Court have also dealt with the right to human treatment guaranteed under the Convention and the Declaration when considering the issue of detention conditions in individual cases and in country reports. In this context, the Commission has made specific reference[430] to the United Nations Standard Minimum Rules for the Treatment of Prisoners[431] as prescribing basic benchmarks against which to evaluate whether the treatment of prisoners satisfies the standards of humanity under the inter-American instruments in such areas as accommodation,[432] hygiene,[433] clothing and bedding,[434] food,[435] recreation,[436] exercise and medical treatment,[437] discipline, punishment and use of instruments of restraint,[438] and the separation of convicted from unconvicted prisoners and minors from adults.[439]
168. The Court and the Commission have been particularly critical of circumstances in which individuals are held incommunicado for long periods of time in poor conditions,[440] and have identified other considerations that must regulate the obligations of states in this area:
*
the level of development of a particular state party to the Convention is irrelevant in the analysis of compliance with Article 5;[441]
*
once a person falls into the custody of state agents, any inhumane treatment subsequently suffered by that person is presumed to be the responsibility of the state;[442]
*
the state must refrain from any use of force against prisoners that is not strictly necessary for the maintenance of security and order in an institution or where personal safety is threatened;[443]
*
in light of the serious consequences for detainees of excessive or inappropriate uses of force by their custodians, states are subject to a particularly strict duty to conduct proper and thorough investigation of allegations that detainees have been subjected to mistreatment by state officials and, if those allegations are determined to be well-founded, to take appropriate remedial measures.[444]
169. In addition to the above-mentioned provisions, in particular Article 5(5) of the American Convention,[445] the inter-American instruments also provide for specific guarantees for children that relate in certain respects to their humane treatment:
American Declaration
Article VII. All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.
American Convention
Article 19. Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.
170. When considering cases dealing with allegations of torture or inhumane treatment of children, both the Commission and the Court have considered as particularly grave the status of human rights victims as minors[446] and have applied or referred to the above provisions,[447] as well as other pertinent international human rights treaties. These include provisions of the UN Convention on the Rights of the Child,[448] relating to such matters as the protection of children against all forms of discrimination or discriminatory punishment,[449] and the physical and psychological recovery of children from, inter alia, any form of neglect, exploitation or abuses, and all of which are grounded by the general principal of the best interest of the child.[450]
171. Of particular relevance in this connection is Article 37 of the Children’s Convention addressing the treatment of children during detention:
Article 37. States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
172. Consistent with these provisions, the Commission has considered that imprisonment of children must only be used as a last recourse and for the shortest time, and that children must never be kept incommunicado or incarcerated with adults.[451]
173. The inter-American human rights instruments also provide for particular guarantees concerning the rights of women that are relevant to the issue of humane treatment. In addition to the general prohibition of inhumane treatment under Article 5, these provisions include:
American Declaration
Article VII. All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.
American Convention
Article 11.1. Everyone has the right to have his honor respected and his dignity recognized.
174. In assessing cases dealing with the humane treatment of women during detention, the Commission has taken these provisions into consideration. In its May 1977 final Resolution in Case 2029, for example, the Commission found Paraguay responsible for violations of Article I and Article VII of the American Declaration in connection with the detention and mistreatment of several women, including a pregnant woman who delivered and spent three years with her child in jail, as well as a victim who lost her unborn child under torture, did not receive medical attention, and was only released when she was near death.[452]
175. Foremost among the relevant inter-American human rights instruments in this regard is the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women,[453] which defines and prohibits violence against women[454] and reaffirms the right of every woman to have her physical, mental and moral integrity respected, the right to personal liberty and security, and the right not to be subjected to torture.[455] It also places positive obligations on state parties to, inter alia, prevent, investigate and impose penalties for violence against women[456] and to promote the education and training of relevant state agents in this regard. [457] Of particular relevance in the irregular circumstances often created by terrorist violence and the responding measures by states is Article 9 of that Convention which provides that “the State parties shall take special account of the vulnerability of women to violence by reason of, among others, their race or ethnic background or their status as migrants, refugees or displaced persons. Similar consideration shall be given to women subjected to violence while pregnant or who are disabled, of minor age, elderly, socioeconomically disadvantaged, affected by armed conflict or deprived of their freedom.�
176. As with the particular provisions of the American Convention and the American Declaration, the Commission has taken these provisions of the Convention on the Prevention, Punishment, and Eradication of Violence Against Women into consideration in cases involving female victims,[458] including those raising allegations of inhumane treatment.[459] Of particular pertinence in this regard is the Commission's final report on the case of Raquel MartÃn de MejÃa,[460] adopted in March of 1996, in which the Commission found the rape of the victim to constitute torture under the American Convention and under the Convention to Prevent and Punish Torture.[461]
177. Further, in the case of X and Y v. Argentina, the Commission had occasion to address the integrity and privacy interests of both women and children. The complaint in this case concerned a practice in Argentina of routinely requiring that female family members wishing to have personal contact visits with an inmate undergo vaginal inspections.[462] A petition had been filed with the Commission in December of 1989, alleging that the wife of an inmate and their thirteen year old daughter had been subjected to such inspections without regard for whether there were special circumstances to warrant extraordinary measures.
178. In balancing the interests of those subject to such searches against the state's interest in maintaining security within its prisons, the Commission characterized "a vaginal search [as] more than a restrictive measure as it involves the invasion of a woman's body." "Consequently, the balancing of interests involved" must hold the government "to a higher standard." In its report, the Commission set out a four part test to determine the lawfulness of a vaginal inspection or search: "1) it must be absolutely necessary to achieve the security objective in the particular case; 2) there must not exist an alternative option; 3) it should be determined by judicial order; and 4) it must be carried out by an appropriate health professional." With respect to Ms. Y, who was thirteen years old at the time in question, the Commission found "it is evident that the vaginal inspection was an absolutely inadequate and unreasonable method." The Commission determined that the facts denounced gave rise to State responsibility for violations of Articles 5 and 11, 25 and 8, and 1(1) of the American Convention.[463]
179. Another category of persons in respect of whom particular humane treatment protections apply are aliens in the territory of a state. The pertinent principles and jurisprudence in this respect are discussed in Part III(H) below concerning the situation of migrant workers, asylum seekers, refugees and other non-nationals.
180. Finally, the Commission emphasized that the right to humane treatment is a non-derogable right, regardless of the existence or gravity of an emergency, as specifically provided for in Article 27(2) of the American Convention and reinforced through Article 5 of the Inter-American Torture Convention,[464] which provides:
The existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of torture. Neither the dangerous character of the detainee or prisoner, nor the lack of security of the prison establishment or penitentiary shall justify torture.
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:
*
The conditions of internment of prisoners of war and civilians;[479]
*
The hygiene, health and medical treatment of prisoners of war and civilians;[480]
*
The conditions of quarters, food, and clothing of prisoners of war and civilians;[481]
*
The deportation, evacuation or transfer of prisoners of war and civilians;[482]
*
The interrogation of all types of detainees;[483]
*
The interrogation of prisoners of war, in particular that they can only be required to give their name, rank, date of birth and army identification number, and cannot be compelled to answer any other questions;[484]
*
The labor of prisoners of war and civilians, in particular with respect to working conditions; [485]
*
Disciplinary measures against prisoners of war and civilians subject to internment;[486]
*
Specific conditions of detention applied as a disciplinary punishment to prisoners of war and civilians subject to internment;[487]
*
Measures of special surveillance of prisoners of war and civilians subject to internment;[488]
*
Specific conditions of detention for prisoners of war and civilians subject to internment resulting from judicial sanctions;[489]
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]
Notes___________________________________
[375] The International Criminal Tribunal for the former Yugoslavia has observed in this connection that the “essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is […] the very raison d’etre of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law.� ICTY, The Prosecutor v. Furundzija, Nº IT-95-17/1-T, Judgment of December 19, 1998 (Trial Chamber II), para. 183, appealed to the ICTY Appeals Chamber, Prosecutor v. Anto Furundžija, Case Nº IT-95-17/1-A, Judgment of July 21, 2000 (ICTY Appeals Chamber).
[376] See, e.g. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, GA Res. 39/46, annex, 39 U.N. GAOR Supp.
(Nº 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, Article 4 [hereinafter UN Torture Convention].
[377] Rome Statute, supra note 31, Articles 6, 7; Genocide Convention, supra note 189, Article 2. As described below, in situations of armed conflicts, such acts may also constitute war crimes (see, e.g., Rome Statute, supra note 31, Article 8) and in situations of international armed conflicts may also constitute grave breaches of the Geneva Conventions (see Third Geneva Convention, supra note 67, Article 130, Fourth Geneva Convention, supra note 36, Article 147) or of the Additional Protocol I(see Additional Protocol I, supra note 68, Articles 11, 85 and following).
[378] Rome Statute, supra note 31.
[379] Universal Declaration of Human Rights, supra note 65, Articles 3, 5; International Covenant on Civil and Political Rights, supra note 66, Articles 7, 9. See also European Convention on Human Rights, supra note 137, Article 3. See also UN Convention on the Rights of the Child, supra note 122, Article 37, discussed infra, para. 171.
[380] UN Torture Convention, supra note 376, Article 1. See also Rome Statute, supra
note 31, Article 7.
[381] Inter-American Torture Convention, supra note 105. For OAS member states that are parties to this instrument, see Annex II.
[382] Inter-American Torture Convention, supra note 105, Article 3 (“The following shall be held guilty of the crime of torture: a. A public servant or employee who acting in that capacity orders, instigates or induces the use of torture, or who directly commits it or who, being able to prevent it, fails to do so. b. A person who at the instigation of a public servant or employee mentioned in subparagraph (a) orders, instigates or induces the use of torture, directly commits it or is an accomplice thereto�).
[383] Concerning Article 5 of the American Convention, see for example, Case 10.970, Report Nº 5/96, Raquel MartÃn de MejÃa (Peru), Annual Report of the IACHR (1995), at 185. See also Case 9.853, Report Nº 4/98, Ceferino Ul Musicue et al. (Colombia), Annual Report of the IACHR (1997). See also Abella Case, supra note 73, para. 233.
[384] Case 11.565, Report Nº 53/01, Ana, Beatriz and Celia Gonzalez Perez (Mexico), Annual Report of the IACHR 2001, para 94.
[385] MartÃn de MejÃa Case, supra note 383, at 185.
[386] See infra Part III(C), paras. 158, 165. See also Eur. Court H.R., Ireland v. United Kingdom, Judgment of October 9, 1979, Series A Nº 25.
[387] American Convention on Human Rights, supra note 61, Article 5.
[388] See, e.g., Case 9437, Report Nº 5/85, Juan Antonio Aguirre Ballesteros (Chile), Annual Report of the IACHR 1984-1985.
[389] IACHR, Report on Canada (2000), supra note 338, para. 118.
[390] IACHR, Report on Canada (2000), supra note 338, para. 154.
[391] Case 10.832, Report Nº 35/96, Luis Lizardo Cabrera (Dominican Republic), Annual Report of the IACHR 1997, para. 77, citing Eur. Com.. H.R., The Greek Case, 1969, 12 Y. B. Eur. Conv. on H.R. 12 [hereinafter The Greek Case], at 186.
[392] Luis Lizardo Cabrera Case, supra note 391, para. 78, citing Ireland v. United Kingdom, supra note 386, paras. 162-163.
[393] Luis Lizardo Cabrera Case, supra note 391, para 79, citing The Greek Case, supra note 391, at 186.
[394] Luis Lizardo Cabrera Case, supra note 391, para. 80, citing Ireland v. United Kingdom, supra note 386, para. 167 For further discussion of the concept of inhumane treatment by the European Court of Human Rights, see Tyrer Case, supra note 129, paras. 28 and following.
[395] I/A Court H.R., Loayza Tamayo Case, September 19, 1997, Series C Nº 33, at para. 57.
[396] Loayza Tamayo Case, supra note 395, citing Eur. Court HR, Ribitsch v. Austria judgment of 4 December 1995, Series A Nº 336, para. 36.
[397] Luis Lizardo Cabrera Case, supra note 391, paras. 82-83.
[398] For a general discussion of the Inter-American jurisprudence in this area, see Scott Davidson, The Civil and Political Rights Protected in the Inter-American Human Rights System, in The Inter-American Human Rights System (David Harris and Stephen Livingstone eds. 1998), at 226 and following.
[399] See, e.g., Velásquez RodrÃguez Case, supra note 249, para. 156. See also GodÃnez Cruz Case, supra note 249, para. 164; Villagran Morales Case, supra note 130, paras. 162-164.
[400] IACHR, Report on El Salvador (1978), supra note 27, Ch. III, paras. 7, 8, in particular the case of Lil RamÃrez.
[401] IACHR, Report on El Salvador (1978), supra note 27, Ch. III, paras. 7, 8, in particular the cases of Lil RamÃrez, Sergio Vladimir Arriaza and Carlos A. Madrid.
[402] See, e.g., Case 10.202, Report Nº 76/90, Muñoz (Peru), Annual Report of the IACHR (1990-91); Case 10.574, Report Nº 5/94, Lovato Rivera (El Salvador), Annual Report of the IACHR (1993), at 174, 179.
[403] Case 9274, Resolution Nº 11/84, Roslik (Uruguay), Annual Report of the IACHR (1984-85), at 122, 127.
[404] See, e.g., Lovato Rivera Case, supra note 402, at 174, 179; Case 7481, Resolution Nº 30/82, Hechos ocurridos en Caracoles (Bolivia), Annual Report of the IACHR (1981/82), at 36, 39, 40.
[405] See, e.g., Caracoles Case, supra note 404, at 36, 39, 40; Lovato Rivera Case, supra note 402, at 174, 179.
[406] See, e.g., Caracoles Case, supra note 404, at 36, 39, 40.
[407] See, e.g., Lovato Rivera Case, supra note 402, at 174, 179.
[408] See, e.g., MartÃn de MejÃa Case, supra note 383, at 182 and following. See also Case 10.772, Report Nº 6/94, Rivas (El Salvador), Annual Report of the IACHR (1994); Caracoles Case, supra note 404. See also Gonzalez Perez Case, supra note 384.
[409] See, e.g., Case 7823, Report Nº 32/82, Solano (Bolivia), Annual Report of the IACHR (1981-82), at 42, 44.
[410] Villagran Morales Case, supra note 130, para. 165.
[411] See, e.g., Case 7824, Resolution Nº 33/82, Barrera (Bolivia) Annual Report of the IACHR (1981-82), at 45, 46.
[412] See, e.g., Case 10.508, Report Nº 25/94, Lissardi & Rossi (Guatemala), Annual Report of the IACHR (1994), at 51, 54.
[413] See "Torture and other Cruel, Inhuman or Degrading Treatment or Punishment", Report of the Special Rapporteur, Mr. P. Kooijmans, appointed pursuant to Commission on Human Rights res. 1985/33 E/CN.4/1986/15, 19 Feb. 1986, [hereafter UN Special Rapporteur Report on Torture], para. 119, referred to in Celibici TC Judgment, supra note 193, para 467.
[414] Muteba v. Zaire, (124/1982) Report of the Human Rights Committee, UN Official Records of the General Assembly, 22nd Session, Supplement Nº 40, (1984), Communication Nº 124/1982, Democratic Republic of the Congo, 24/07/84. CCPR/C/22/D/124/1982, para.10.2 [hereinafter Muteba, HRC Case], Setelich v. Uruguay, (63/1979) Report of Human Rights Committee, UN Official Records of the General Assembly, 14th Session, Communication
Nº 63/1979 : Uruguay. 28/10/81 CCPR/C/14/D/63/1979, para. 16.2 [hereinafter Setelich, HRC Case]; Weinberger v. Uruguay, (28/1978) Report of Human Rights Committee, UN Official Records of the General Assembly, 31st Session, Communication Nº 28/1978, UN Doc. CCPR/C/11/D/28/1978, para. 12 [hereinafter Weinberger Case], cited in Celibici TC Judgment, supra note 193, para 461.
[415] The Greek Case, supra note 391.
[416] Aksoy Case, supra note 346, para. 64.
[417] Eur. Court. H.R., Aydin v. Turkey, 25 Sept. 1997, Reports of Judgments and Decisions-1997 VI, Nº 50, paras. 83-84.
[418] See, e.g., Solano Case, supra note 409, at 42, 44. See also Barrera Case, supra note 411, at 44, 46. See also IACHR, Report on El Salvador (1978), supra note 27. With respect to the right against self-incrimination, see 8(3) of the American Convention; see also infra Part III(D), para. 237.
[419] See, e.g., Case 11.427, Report Nº 63/99, Victor Rosario Congo (Ecuador), Annual Report of the IACHR (1999), para. 82.
[420] Loayza Tamayo Case, supra note 395, para. 57.
[421] Ireland v. United Kingdom, supra note 386.
[422] Ireland vs. United Kingdom, supra note 386, para. 96.
[423] European Convention on Human Rights, supra note 137.
[424] Ireland vs. United Kingdom, supra note 386, para. 162.
[425] Ireland vs. United Kingdom, supra note 386, para. 167.
[426] Ireland vs. United Kingdom, supra note 386, para. 167.
[427] Ireland vs. United Kingdom, supra note 386, para. 167.
[428] Ireland vs. United Kingdom, supra note 386, para. 167.
[429] Loayza Tamayo Case, supra note 395, para. 57, citing Ribitsch Case, supra note 396, para. 38.
[430] See, e.g., Desmond McKenzie Case, supra note 272, para. 289. See also Case 11.743, Report Nº 38/00, Rudolph Baptiste (Grenada), Annual Report of the IACHR (2000), paras. 136 and following; Hilaire, Constantine and Benjamin et al. Case, supra note 272, Separate Concurring Opinion of Judge Sergio GarcÃa RamÃrez, para. 19.
[431] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335.
[432] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 9, 10, 11.
[433] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 12-16.
[434] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 17-19.
[435] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 20.
[436] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 21.
[437] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 21-26.
[438] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rules 27-34.
[439] UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 8.
[440] The case of Victor Rosario Congo, for example, involved the pre-trial detention of a person who, after showing signs of mental illness, was placed in solitary confinement for approximately 40 days, was severely beaten, wounded by a prison guard, was not given medical attention and who died of malnutrition and dehydration two hours after he was submitted to the hospital. In evaluating these circumstances under Article 5 of the Convention, the Commission noted that: “ […] isolation can in itself constitute inhumane treatment. Moreover, when the person kept in isolation in a penitentiary institution has a mental disability, this could involve an even more serious violation of the State’s obligation to protect the physical, mental and moral integrity of persons held under its custody.� The Commission went on to conclude that this type of solitary confinement constituted inhuman and degrading treatment in violation of Article 5 of the Convention, and was aggravated by the fact that the detainee was left in isolation and unable to satisfy his basic needs. See Congo Case, supra note 419, paras 58-59. See similarly Suárez Rosero Case, supra note 330, para. 91 (considering that a 36-day detention and deprivation of any communication with the outside world constituted cruel, inhuman and degrading treatment, considering in particular the fact that it had been proven that the incommunicado detention was arbitrary and carried out in violation of the State’s domestic laws. The detainee had been held in a damp poorly ventilated underground cell measuring approximately 15 square meters with 16 other prisoners, without the necessary hygiene facilities, and had been obliged to sleep on a newspaper). The Inter-American Court and Commission have likewise considered violative of Article 5 of the American Convention circumstances in which persons were held for a prolonged period of time in solitary confinement on death row, in prison conditions similar to those described above, where they were in confined conditions with inadequate hygiene, ventilation and natural light, were allowed out of their cells infrequently, were abused by police and prison staff, and in some instances were provided inadequate medical care. Hilaire, Constantine and Benjamin et al. Case, supra note 272, paras. 84(m), (o), 168-169; Desmond McKenzie Case, supra note 272, para. 288. See similarly Baptiste Case, supra note 430, paras. 133-138.
[441] Desmond McKenzie Case, supra note 272, para. 288.
[442] See Villagran Morales Case, supra note 130, paras. 169, 170, citing jurisprudence of the European Court of Human Rights.
[443] Damion Thomas Case, supra note 332, para. 38.
[445] Article 5(5) of the American Convention on Human rights provides as follows: “Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.�
[446] Villagran Morales Case, supra note 130. In that case, the Inter-American Court specified that it wished “to indicate the particular gravity of the instant case since the victims were youths, three of them children, and because the conduct of the State not only violated the express provision of Article 4 of the American Convention, but also numerous international instruments, that devolve to the State the obligation to adopt special measures of protection and assistance for the children within its jurisdiction� (para. 146, see also para. 196). See also Case 10.911, Report Nº 7/94, Hernández (El Salvador), Annual Report of the IACHR (1993), at 191 and following; Cases 10.227 and 10.333, Report Nº 8/92, Julio Ernesto Fuentes Perez, William Fernandez Rivera, and Raquel Fernandez Rivera (El Salvador), Annual Report of the IACHR (1991) at 119.
[447] See, e.g. X & Y Case, supra note 152, paras. 101 et seq; Rivas Case, supra note 408, at 183, 186; Hernández Case, supra note 446, at 194; Case 2029 (Paraguay), Annual Report of the IACHR (1977), at 44; IACHR, Third Report on the Situation of Human Rights in Paraguay, 9 March 2001, OEA/Ser.L/V/II.110 Doc. 52 [hereinafter IACHR Report on Paraguay (2001), Ch. VII, para. 6; IACHR Report on Peru (2000), supra note 27, Ch. VIII, para. 4.
[448] UN Convention on the Rights of the Child, supra note 122. See, e.g., Villagran Morales Case, supra note 130, para. 146 (noting with respect to the relationship between Article 19 of the American Convention and the provisions of the UN Convention on the Rights of the Child that "[b]oth the American Convention and the Convention on the Rights of the Child form part of a very comprehensive international corpus juris for the protection of the child that should help this Court establish the content and scope of the general provision established in Article 19 of the American Convention." (para 194) […] "These provisions allow us to define the scope of the 'measures of protection' referred to in Article 19 of the American Convention, from different angles. Among them, we should emphasize those that refer to non-discrimination, special assistance for children deprived of their family environment, the guarantee of survival and development of the child, the right to an adequate standard of living, and the social rehabilitation of all children who are abandoned or exploited" (para 196). See also X & Y Case, supra note 152, para 102; Hernández Case, supra note 446, at 191; IACHR Report on Paraguay (2001), supra note 447, Ch. VII, para. 9; IACHR Report on Peru (2000), supra note 27, Ch. VIII, para. 5; Annual Report of the IACHR (1991) OEA/Ser.L/V/II.79 rev.1, doc. 12, February 22, 1991, Ch. VI, Section IV, Subsections II and III-2, at paras. 305 and following) [hereinafter IACHR Annual Report (1991)]. See generally Rome Statute, supra note 31.
[449] UN Convention on the Rights of the Child, supra note 122, Article 2.
[450] UN Convention on the Rights of the Child, supra note 122, Article 3.
[451] UN Convention on the Rights of the Child, supra note 122, Article 37. IACHR Report on Peru (2000), supra note 27, paras. 23, 24; IACHR Annual Report (1991), supra note 448, Ch. VI, Section IV, Subsection III-2, at 308; Case 2029, supra note 447; Case 11.491, Report Nº 41/99, Minors in Detention (Honduras), Annual Report of the IACHR 1998.
[452] Case 2029, supra note 447.
[453] Inter-American Convention on Violence Against Women, supra note 107. See similarly the following universal instruments: Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, GA Res. 34/180, 34 UN GAOR Supp. (Nº 46) at 193, UN Doc. A/34/46, 1249 UNTS 455; Declaration on the Protection of Women and Children in Emergency and Armed Conflict, 14 December 1974, GA Res. 3318 (XXIX), 29 U.N. GAOR Supp. (Nº 31) at 146, UN Doc. A/9631 (1974).
[454] Inter-American Convention on Violence Against Women, supra note 107, Articles 2-3.
[455] Inter-American Convention on Violence Against Women, supra note 107, Article 4.
[456] Inter-American Convention on Violence Against Women, supra note 107, Article 7.
[457] Inter-American Convention on Violence Against Women, supra note 107, Article 8.
[458] Case 12.051, Report Nº 54/01, Maria Da Penha Maia Fernandes, Annual Report of the IACHR 2000, paras. 51 and following, para. 60.
[459] See, e.g., Gonzalez Perez Case, supra note 384, paras. 46 and following. See also MartÃn de MejÃa Case, supra note 383; Case 2029, supra note 447; X & Y Case, supra note 152, paras. 87-89. For a general discussion of the right to personal integrity and protection from violence against women in the Hemisphere see IACHR, Report of the Inter-American Commission on Human Rights on the Status of Women in the Americas, OEA/Ser.L/V/II.100 Doc. 17, October 13, 1998, Chapter III(C), at 24 and following. See also Annual Report of the IACHR (1997), 13 April 1998, OEA/Ser.L/V/II.97, doc. 7 rev., Chapter VI. Section I, at 995 and following [hereinafter IACHR, Annual Report (1997)].
[460] MartÃn de MejÃa Case, supra note 383.
[461] MartÃn de MejÃa Case, supra note 383, at 182 and following. In addressing the rape itself, the Commission determined that each of the three elements set forth in the Inter-American Convention to Prevent and Punish Torture had been met: (1) "an intentional act through which physical and mental pain and suffering is inflicted on a person;" (2) "committed with a purpose;" (3) “by a public official or by a private person acting at the instigation of the former." The analysis relative to the first element takes into account both the physical and psychological suffering caused by rape. The Commission also noted the short and long term consequences for the victim, as well as the reluctance of many victims to denounce this violation. (See IACHR, Annual Report (1997), supra note 459, at 1002). In addition to determining that the rapes inflicted against Raquel MejÃa constituted torture, the Commission found that they violated her right to have her honor respected and her dignity recognized under Article 11 of the American Convention. Recalling the words of the UN Special Rapporteur against Torture, that rape affects women "in the most sensitive part of their personality" with the effects aggravated by the fact that "in the majority of cases the necessary psychological treatment and care will not ... be provided," the Commission characterized sexual abuse generally as "a deliberate outrage" to the dignity of women. (See MartÃn de MejÃa Case, supra note 383, at 186-187; IACHR, Annual Report (1997), supra note 459, at 1002). The Commission reached similar conclusions in the Gonzalez Perez Case, supra note 384, paras. 28-54. See also Rivas Case, supra note 408; Rome Statute, supra note 31, Articles 7, 8; Furundzija TC Judgment, supra note 375.
[462] See X & Y Case, supra note 152. See also IACHR, Annual Report (1997), supra note 459, at 1003.
[463] See X & Y Case, supra note 152, at 71 and following. See also IACHR, Annual Report (1997), supra note 459, at 1003.
[464] American Convention on Human Rights, supra note 61, Article 27(2); Inter-American Torture Convention, supra note 105, Article 5. See also Asencios Lindo et al. Case, supra note 6, para. 75.
[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).
[496] Third Geneva Convention, supra note 67, Articles 25, 29.
[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).
[499] Furundzija TC Judgment, supra note 375, para. 142.
[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,
Article 6.
[505] Rome Statute, supra note 31. See similarly ICTY Statute, supra note 549; ICTR Statute, supra note 549.