E/CN.4/2002/137
page 4
No. 29 on derogations from the provisions of the Covenant during a state of emergency states
that “[i]n those provisions of the Covenant that are not listed in article 4, paragraph 2, there are
elements that in the Committee’s opinion cannot be made subject to lawful derogation under
article 4”. Among the illustrative examples presented, it is stated by the Human Rights
Committee that: “(a) All persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person. Although this right, prescribed in
article 10 of the Covenant, is not separately mentioned in the list of non-derogable rights in
article 4, paragraph 2, the Committee believes that here the Covenant expresses a norm of
general international law not subject to derogation. This is supported by the reference to the
inherent dignity of the human person in the preamble to the Covenant and by the close
connection between articles 7 and 10.”
10.
With no significant variations in wording, the three human rights instruments of regional
applicability, the 1950 European Convention on Human Rights, the 1969 American Convention
on Human Rights and the 1981 African Charter on Human and Peoples’ Rights, prohibit torture
and other forms of ill-treatment in terms similar to those of article 7 of the International
Covenant on Civil and Political Rights. In the case of the European and American Conventions,
a parallel with the Covenant is also maintained with regard to the non-permissibility of
derogations from the prohibition.
11.
The Declaration on the Protection of All Persons from Being Subjected to Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General Assembly
resolution 3452 (XXX) of 9 December 1975, similarly provides that “[n]o State may permit or
tolerate torture or other cruel, inhuman or degrading treatment or punishment. Exceptional
circumstances such as a state of war or a threat of war, internal political instability or any other
public emergency may not be invoked as a justification of torture or other cruel, inhuman or
degrading treatment or punishment”.4 A similar provision is restated in article 2, paragraph 2 of
the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.5
12.
International humanitarian law affirms the same basic notions. With respect to prisoners
of war, the 1949 Geneva Convention relative to the Treatment of Prisoners of War (the Third
Geneva Convention) provides that “[p]risoners 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 …. 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”6 and that “[p]risoners of war are
entitled in all circumstances to respect for their persons and their honour.”7 With respect to
interrogation, the Third Geneva Convention further provides that “[n]o 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 unpleasant or disadvantageous treatment of any kind.”8 Furthermore, it
must be noted that, according to article 130 of the Third Geneva Convention, acts of “torture or
inhuman treatment, including biological experiments, wilfully causing great suffering or serious
injury to body or health” against persons protected by the Convention are considered as grave
breaches of the Convention, requiring the High Contracting Parties to take specific legal and