193. International standards on the prohibition of torture and ill-treatment impose a number of
obligations on states. First, states are obliged to ensure that no branch of government adopt
any measure, whatever its nature, which would authorize or condone acts of torture or illtreatment.318 Further, they are required to criminalize acts of torture in their domestic
legislation.319 In this regard, it is essential that the domestic definition of torture
incorporate all the fundamental elements of the CAT definition to ensure that no conduct
amounting to torture can go unpunished.320
194. Complicity or participation in acts of torture must also be punishable under domestic
law,321 and encompass conduct such as incitement, instigation, and superior orders, as well
as instructions, consent, acquiescence and concealment.322 As will be explored further in
Part 3-II-A of this report, it is vital to ensure the accountability of both perpetrators of acts
of torture as well as superior officials who knew, or should have known, that torture was
inflicted by personnel under their command.323 Additionally, states are responsible when
they “knowingly engage in, render aid to or assist in the commission of internationally
wrongful acts” such as torture, enforced disappearances or arbitrary detention.324 There can
be no immunity for authors, co-authors or accomplices of torture.325
195. The prohibition of torture and ill-treatment is also guaranteed under international
humanitarian law. It is a norm of customary international humanitarian law enshrined in
Common Article 3, Article 75(2) of API and other specific provisions of the four Geneva
Conventions, among others.326
54825/00, 5 April 2005, paras. 96-99, <http://hudoc.echr.coe.int/eng?i=001-68715>). The Court also concluded to the violation
of the prohibition of torture when force-feeding had occurred in the absence of medical evidence that the life or health of the
detainee was in serious danger but rather for the purpose of “[…] discouraging him from continuing his protest”, without
respecting the relevant procedural safeguards and in manner that “unnecessarily exposed [the detainee] to great physical pain and
humiliation” and therefore amounted to torture (ECtHR, Ciorap v. Moldova, Application No. 12066/02, 19 June 2007, paras. 8283, 88-89, <http://hudoc.echr.coe.int/eng-press?i=001-81136>).
318
UN Special Rapporteur on torture, Interim report to the General Assembly, A/59/324, op. cit., note 284, para. 15.
319
CAT, Art. 4.
320
UN CAT, General Comment No. 2, op. cit., note 76, paras. 8-9; UN Special Rapporteur on torture, “Study on the phenomena
of torture”, op. cit., note 283, para. 48.
321
CAT, Art. 4; UN Special Procedures, “Joint study on global practices in relation to secret detention”, op. cit., note 109, para.
39.
322
UN Special Procedures, “Joint study on global practices in relation to secret detention”, ibid., para. 39; UN Special Rapporteur
on torture, “Study on the phenomena of torture”, op. cit., note 283, para. 142.
323
UN Special Rapporteur on torture, “Study on the phenomena of torture”, ibid.
324
UN Special Rapporteur on human rights and counter-terrorism, Report to the Human Right Council, A/HRC/10/3, op. cit.,
note 131, para. 53; “Draft articles on responsibility of States for internationally wrongful acts”, International Law Commission,
12 December 2001, Art. 16, <http://www.un.org/Docs/journal/asp/ws.asp?m=A/RES/56/83>.
325
UN Special Rapporteur on torture, Interim report to the General Assembly, A/59/324, op. cit., note 284, para. 15. For more
details on the obligation of states to hold perpetrators, co-authors and accomplices of torture accountable, see Part 3-II-A of this
report.
326
These include: Third Geneva Convention, Arts. 17(4), 87(3), 89; Fourth Geneva Convention, Art. 32; APII, Art. 4(2). Article
72 of API further makes it clear that the guarantees set out in the Protocol are additional to “other applicable rules of international
law relating to the protection of fundamental human rights during international armed conflict”, which must be taken to include
the prohibition of torture and ill-treatment.
81
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