- Project of an International Declaration concerning the Laws and Customs of War (Brussels, 1874)
Article 12: The laws of war do not recognize in belligerents an unlimited power in the adoption of means of injuring the enemy.
Article 13: According to this principle are especially ' forbidden ': ...
(e) The employment of arms, projectiles or material calculated to cause unnecessary suffering, as well as the use of projectiles prohibited by the Declaration of St. Petersburg of 1868;
Article 23: Prisoners of war are lawful and disarmed enemies...They must be humanely treated.- Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (The Hague, 1907)
Annex to the Convention: Chapter II, Article 4: Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them. They must be humanely treated.
Annex to the Convention: Chapter II, Article 7: In the absence of a special agreement between the belligerents, prisoners of war shall be treated as regards board, lodging, and clothing on the same footing as the troops of the Government who captured them.- The Universal Declaration of Human Rights (The United Nations, Paris, 1948)
Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
- Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (The United Nations, 1975)
Although the Brussels Project and the Hague Convention do not specifically prohibit torture, it is clear from these documents that Enemy Prisoners of War (EPWs) are to be treated humanely. Neither document prohibits questioning EPWs, and the Hague Convention states, "Every prisoner of war is bound to give, if he is questioned on the subject, his true name and rank, and if he infringes this rule, he is liable to have the advantages given to prisoners of his class curtailed" (Annex to the Convention: Chapter II, Article 9).* Although the Convention does not state which specific privileges are to be restricted, it is clear that EPWs are to be treated with respect and dignity, as befitting their personhood.
The Universal Declaration of Human Rights (UDHR) expanded the prohibition against cruel, inhuman, and degrading treatment to all persons, not just EPWs. No
exception is made for the “ticking bomb” scenario. No exception
is made for the gathering of intelligence in a scenario less threatening than
a ticking bomb that will kill millions; no exception is made for the use of
torture as punishment; no exception is made whatsoever. In the UDHR, the
international community acknowledges that regardless of moral culpability,
the right be treated as a person is inalienable and should never taken from a person.
So that's international custom. What about international law? I'm sure you will be happy to hear that international law, as created by legally binding treaties, is just as firmly anti-torture as international custom. The relevant documents are:
- The International Covenant on Civil and Political Rights (1966)
Article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
- The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
- The "Torture Convention" has been signed by 78 countries and ratified by 150
- It establishes several important legal principals that I will summarize here, but you can also read the United Nation's Summary or read the Convention in its entirety.
- It establishes the definition of torture that I have previously discussed
- It establishes as broad of jurisdiction as possible over alleged torture in order to give states the most leeway possible in prosecuting cases (see Article 5)
- It requires states to implement legislative, administrative, and judicial actions to prevent torture
- It prohibits states from extraditing persons to countries known to torture
- It requires states to investigate alleged instances of torture
- It establishes the Committee against Torture. States are required to make initial and periodic reports to the Committee, and the Committee is authorized to make investigations into inter-state and individual complaints regarding torture.
The Rome Statue establishes torture as a crime against humanity (Article 7) and a war crime (Article 8), and prohibits the torture of EPWs (Article 8). It also prohibits the torture of a person for purposes of an investigation (Article 55).
Article 1. The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.The optional Protocol also establishes the Subcommittee to the Convention Against Torture to carry out these visits and to assist states with developing their own investigative agencies.
What is missing? Enforcement. Despite the several international treaties prohibiting torture, there is no international enforcement body that can protect victims from their states. Instead, these treaties rely on forcing states to investigate and examine themselves, and rely on their desire to save face to the international community and not be labeled as criminals. Additionally, no international enforcement body is capable of forcing a state to make compensation to a victim, as required by Article 14 of the Torture Convention.
How effective is international law? Before I discuss solutions that private citizens and NGOs can take, I will briefly discuss the prevalence of torture today.
*The Geneva Conventions later expanded this information to include a service member's name, rank, service number (Social Security Number, for U.S. service members), and date of birth.
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