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enforcement measures in the area of criminal law and procedure. A similar provision is included
in article 147 of the Geneva Convention relative to the Protection of Civilian Persons in Time of
War (the Fourth Geneva Convention). Moreover, the 1977 Protocol Additional to the Geneva
Conventions relative to the Protection of Victims of International Armed Conflicts (Protocol I)
prescribes amongst fundamental guarantees that “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”.9 Furthermore, among the acts
which “are and shall remain prohibited at any time and any place whatsoever, whether
committed by civilian or be military agents”, are listed: “(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; … (d) collective punishments; and (e) threats to commit any of the
foregoing acts.”10
13.
With respect to non-international armed conflicts, the Special Rapporteur draws the
attention of the Commission in particular to common article 3 of the 1949 Geneva Conventions,
which has sometimes been described as a “mini-convention” in itself. Common article 3
provides that “[i]n 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; … (c) outrages upon personal dignity, in particular, humiliating and
degrading treatment” (emphasis added). Further, the 1977 Protocol Additional to the Geneva
Conventions relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol II) provides amongst fundamental guarantees that “[a]ll 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. … the
following acts against the persons referred to [above] are and shall remain prohibited at any
time and in any place whatsoever: (a) violence to the life, health and physical or mental wellbeing of persons, in particular murder as well as cruel treatment such as torture, mutilation or
any form of corporal punishment; (b) collective punishments; … (e) outrages upon personal
dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any
form of indecent assault; … (h) threats to commit any of the foregoing acts”.11
14.
In addition, the Special Rapporteur would like to underline the link between the nonderogable nature of the prohibition of torture and other forms of ill-treatment and the principle of
non-refoulement. The Human Rights Committee, in its General Comment 20 on article 7 of the
1966 International Covenant on Civil and Political Rights, has stated that State Parties “must not
expose individuals to the danger of torture or cruel, inhuman or degrading treatment or
punishment upon return to another country by way of extradition, expulsion or refoulement”.