Part 3
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3.5.1 Torture and Ill-treatment is a Crime in International Law and Should Be
Outlawed in Domestic Law118
The rule of law focuses not only on what is done, but on how it is done. Law
enforcement officials have a duty to respect and enforce all laws, including
those that protect human rights. They are to implement any laws in a human
rights-compliant manner. If police fail to do so, they are not reducing criminality, but rather adding to it and committing crimes themselves, for which
they are liable to be punished.
Torture and other forms of ill-treatment are crimes under international law
and all OSCE participating States have committed themselves to criminalize
all acts of torture (including other cruel, inhuman and degrading treatment or
punishment) in domestic legislation, ensure that these acts are punished by
adequate penalties, and provide adequate remedies for victims. Any attempt
to commit torture or any participation and complicity in torture should be
similarly criminalized. This requires that the definition of torture in domestic
law comply with international standards, in particular the Convention against
Torture.
Case Study – Complicity in torture*
X is seized from a bus by officials of state A and held incommunicado for 23
days. He is interrogated repeatedly and accused of being a member of a terrorist organization, without being charged. He is denied access to a lawyer,
translator and consular official from his home country, as well as to his family.
He is then handed over to agents of state B, in the absence of any arrest warrant or legitimate request for extradition, and tortured by them at the airport,
in the presence of officials from state A.
State A does not seek diplomatic assurances that X will not be tortured by agents
of state B, despite publicly available information attesting that there are credible
reasons to believe that he may be at risk of torture in their custody.
118 For a comprehensive explanation of the status of torture in international law and the
impact of that status on domestic legal systems see Countering Terrorism, Protecting
Human Rights: A Manual, op. cit., note 19, Chapter 10.
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