A/73/207
“elementary considerations of humanity, even more exacting in peace than in war ”. 2
Under the Rome Statute of the International Criminal Court of 1998, the systematic
or widespread practice of torture and other inhuman acts of a similar character
constitute crimes against humanity (art. 7) and, where committed for reasons related
to armed conflict, war crimes (art. 8). The prohibition of torture and other illtreatment is unanimously recognized as a core principle of customary international
law, and the prohibition of torture is also universally recognized as having attained
peremptory status (jus cogens).
2.
Definition of torture and ill-treatment
6.
Significant progress has also been made in identifying the defining elements of
torture and ill-treatment. Several international instruments contain express definitions
of torture, most notably article 1 of the Declaration on the Protection of All Persons
from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment of 1975, article 1 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment of 1984, article 2 of the InterAmerican Convention to Prevent and Punish Torture of 1985 and article 7 (2) (e) of
the Rome Statute of the International Criminal Court. Although those instruments do
not define torture in identical terms and none precisely defines other for ms of illtreatment, they have provided a solid basis for the clarification of both concepts in
international and national jurisprudence, State practice and soft law instruments, and
also through civil society advocacy and academic writing. 3 As a result, largely
coherent core concepts have emerged for both torture and ill -treatment based on
elements that authoritatively delineate the prohibited conduct.
7.
As a generic concept, torture denotes the intentional infliction of pain or
suffering on a powerless person to achieve a particular purpose, whereas ill-treatment
denotes any other cruel, inhuman or degrading treatment or punishment, which does
not necessarily require the intentionality and purposefulness of the act or the
powerlessness of the victim (A/72/178, para. 31, and E/CN.4/2006/6, paras. 38–41).
While human rights treaties establish obligations exclusively for States and, therefore,
define torture and ill-treatment as acts perpetrated with the involvement of State
officials, no State involvement is required for finding torture or ill -treatment under
international criminal or humanitarian law. Torture and ill -treatment can take an
almost endless variety of forms that cannot be catalogued in an exhaustive manner,
ranging from police violence, intimidation and humiliation to coercive interrogation,
from denial of family contacts or medical treatment to the instrumentalization of drug
withdrawal symptoms, and from inhuman or degrading detention conditions to
prolonged arbitrary detention or abusive solitary confinement, to name a few (see, for
example, A/72/178, paras. 46–47, and A/HRC/37/50, paras. 26–29). While the
manifold manifestations of torture and ill-treatment may not always involve the same
severity, intentionality and purposeful instrumentalization of pain or suffering, all
involve violations of physical or mental integrity that are incompatible with human
dignity.
3.
Standard-setting for national implementation
8.
The specific duties of States to implement the prohibition of torture and ill treatment are set out in a number of international instruments, spearhe aded by General
Assembly resolution 3452 (XXX). Most importantly, under the Convention against
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2
3
4/23
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Judgments, I.C.J. Reports 1986 (p. 14), with reference to the Corfu Channel case
(United Kingdom of Great Britain and Northern Ireland v. Albania), I.C .J. Reports 1949 (p. 4).
Office of the United Nations High Commissioner for Human Rights, “Interpretation of torture in
the light of the practice and jurisprudence of international bodies ”, 2011.
18-12051