From Nuremberg to Tokyo through Africa to The Hague: Punishing torturers before International Criminal Tribunals

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Cited authorities (1)

Cited in

Jurisdiction	South Africa
Citation	(2008) African Yearbook on International Humanitarian Law 33
Author	Jamil Ddamulira Mujuzi
Pages	33-58
Published date	22 August 2019
Date	22 August 2019

From Nuremberg to Tokyo through

Africa to The Hague: Punishing

Torturers before International

Criminal Tribunals

Jamil Ddamulira Mujuzi*

‘. . . the legal definition of torture . . . [is] a sort of chameleon that – while always

embracing the notion that the infliction of acute pain and suffering upon a

human being in control of another one is required – by necessity changes the

colour of its skin as far as additional elements are concerned, depending on

where it finds itself.’

1INTRODUCTION

Although wars are disastrous and often accompanied by human rights and

humanitarian law violations, there are circumstances where war is justifi-

able. Under Article 20 of the African Charter on Human and Peoples’

Rights,

for example, colonised or oppressed people have a right, through

liberation struggles, to wage war against their colonisers or oppressors

respectively.

During armed conflicts, where justifiable or not, some

* Doctoral Researcher, Civil Society Prison Reform Initiative, Community Law Centre,

University of the Western Cape; PhD Candidate (UWC); LLM (Human Rights and

Democratisation in Africa) (University of Pretoria); LLM (Human Rights Specialising

in Reproductive and Sexual Health Rights) (University of the Free State); LLB (Hons)

(Makerere University); Diploma in International Humanitarian Law (Institute for

Human Rights, A

˚bo Akademi University). I am indebted to Prof I Leeman of the

Faculty of Law, UWC, and the anonymous referees for the comments on the earlier

drafts of this article. OSF SA and the Ford Foundation’s funding to CSPRI and CLC is

acknowledged. The usual caveats apply. Email: djmujuzi@gmail.com

Paola Gaeta ‘When is the Involvement of State Officials a Requirement for the Crime of

Torture?’ (2008) 6 Journal of International Criminal Justice 193.

African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev.5, 21

I.L.M.58 (1982), entered into force 21 October 1986.

Article 20 provides that:

(1) All peoples shall have the right to existence. They shall have the unquestionable

and inalienable right to self determination. They shall freely determine their political

status and shall pursue their economic and social development according to the policy

they have freely chosen.

(2) Colonized or oppressed peoples shall have the right to free themselves from the

bonds of domination by resorting to any means recognized by the international

community.

(2008) African Yearbook on International Humanitarian Law 33

human rights are derogated from

or suspended and others violated.

One

of the rights that have been seriously violated during wars in Africa and

other parts of the world is the right to freedom from torture. This is

especially so because the torturers want information from, or want to

punish, their victims. Torture is possible when one party (the torturer) is

in a superior position in relation to the other (the victim). During an armed

conflict torturers think that they can torture their victims with impunity. As

the International Criminal Tribunal for the Former Yugoslavia put it in

Prosecutor v Milomir Stakiæ, these are people who ‘almost certainly never

believe . .. [they] would one day stand trial, be convicted and sentenced.’

Alas for them. International criminal law dictates that when the violators of

the law of war are arrested or captured, they have to stand trial and be

brought to justice for the atrocities that they have committed.

This article analyses the jurisprudence of the International Military Tri-

bunal at Nuremberg (‘the Nuremberg Tribunal’), the International Military

Tribunal for the Far East (‘the Tokyo Tribunal’), the International Criminal

Tribunal for the Former Yugoslavia (‘ICTY’), the International Criminal

Tribunal for Rwanda (‘ICTR’), the Special Court for Sierra Leone

(‘SCSL’), and the International Criminal Court (‘ICC’). The article aims to

establish how each of those tribunals, where applicable, dealt, or is empow-

ered to deal, with people accused of torture during war. The article deals

first with the distinction between torture, on the one hand, and cruel,

inhuman or degrading treatment, on the other, as understood in human

rights law; then follows a brief discussion of the Convention against Tor-

ture and other Cruel, Inhuman or Degrading Treatment or Punishment

(‘CAT’)

and the role of the Committee against Torture; and, punishment

(3) All peoples shall have the right to the assistance of the States parties to the . . .

[African] Charter in their liberation struggle against foreign domination, be it political,

economic or cultural.

Article 4 of the International Covenant on Civil and Political Rights provides for some

rights that may be derogated from ‘in the time of public emergency which threatens the

life of the nation and the existence of which is officially proclaimed . . .’

A cursory survey of the jurisprudence of the International Military Tribunal at

Nuremberg, the International Military Tribunal for the Far East, the International

Tribunal for the Former Yugoslavia, the International Tribunal for Rwanda, and of

domestic courts before which war criminals have been prosecuted, struck the reader

with testimonies of shocking human rights violations committed during armed

conflicts. Fresh in our memories are the atrocities being committed in Darfur and

northern Uganda.

Prosecutor v Milomir Stakiæ, Case No IT 97 24 T (judgment of 31 July 2003) para

909.

United Nations Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment; available at

vent2001/pdf/07e.pdf> (accessed on 29 January 2009). CAT entered into force on

26 June 1987, United Nations Treaties Series Vol 1465 p 85. As of 16 May 2008, there

were 145 States Parties to this Convention. See Report of the Committee against

Torture 39th (5 23 November 2007) and 40th (28 April 16 May 2008) Sessions,

General Assembly Official Records 63rd Session, Supplement No 44(A/63/44) 15

September 2008, para 1.

34 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

of torturers under the international criminal tribunals (Nuremberg and

Tokyo tribunals, the ICTY, ICTR, SCSL, and ICC), where torture is dealt

with as both a war crime and a crime against humanity. The jurisprudence

of the African Commission on Human and Peoples’ Rights and of the

European Court of Human Rights – with regard to the definition of torture

– will, also, briefly be referred to. A conscious decision has been made to

exclude from the purview of this article a detailed discussion of the jur-

isprudence of torture under the African and European human rights sys-

tems. This is because the article is substantially about the norm of torture

from a humanitarian law perspective – as opposed to a human rights

perspective – although the author is cognisant of the fact that both huma-

nitarian law and human rights law prohibit torture.

2DEFINITION OF TORTURE

Even though ‘[t]he basic prohibition on torture is itself clear’,

and it is

beyond dispute that ‘[s]ince the adoption of the Convention against Tor-

ture, the absolute and non-derogable character of this prohibition has

become accepted as a matter of customary law’,

there is no universally

agreed definition of torture. Torture is differently defined in CAT, in the

Rome Statute of the ICC,

and in the Inter-American Convention to Pre-

vent and Punish Torture.

For the purposes of this discussion the defini-

Naureen Shah ‘Knocking on the Torturer’s Door: Confronting International Complicity

in the U.S. Rendition Program’ (2007) 38 Columbia Human Rights Law Review 598.

Committee against Torture, General Comment No 2 (Implementation of Article 2 by

States Parties) CAT/C/GC/2/CRP.1/Rev.4 of 23 November 2007, para 1. The African

Commission on Human and Peoples’ Rights held that ‘. .. torture is prohibited by an

absolute and non derogable general rule of international law.’ See Zimbabwe Human

Rights NGO Forum v Zimbabwe, Communication 245/2000, 21st Activity Report of

the African Commission on Human and Peoples’ Rights (May November 2006)

January 2007, EX CL/322(X), Annexure III, para 209.

Article 7(2)(e) defines torture to mean ‘the intentional infliction of severe pain or

suffering, whether physical or mental, upon a person in the custody or under the

control of the accused; except that torture shall not include pain or suffering arising

only from, inherent in or incidental to, lawful sanctions.’ This definition excludes at

least two important elements that we find in the CAT definition: one, that torture

under the ICC Statute does not have to be carried out by a public official; and two, the

victim does not have to prove that the severe pain or suffering was inflicted for any

purpose, as required under the CAT definition.

Adopted at Cartagena de Indias, Colombia, on 9 December 1985, at the 15th regular

session of the General Assembly, and came into force on 28 February 1987. Torture is

defined under Article 2 as follows: ‘. . . Any act intentionally performed whereby

physical or mental pain or suffering is inflicted on a person for purposes of criminal

investigation, as a means of intimidation, as personal punishment, as a preventive

measure, as a penalty, or for any other purpose. Torture shall also be understood to be

the use of methods upon a person intended to obliterate the personality of the victim

or diminish his physical or mental capacities, even if they do not cause physical pain or

mental anguish.’ For a detailed discussion of this definition see Association for the

Prevention of Torture and Centre for Justice and International Law Torture in

International Law: A Guide to Jurisprudence (2008) 95 98.

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 35

tion of ‘torture’ in CAT (Article 1) will be adopted. This is because both the

ICTY and the ICTR, as will be illustrated later, have relied on this defini-

tion.

Torture is defined to mean,

‘Any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person for such purposes as obtaining from him or

a third person information or a confession, punishing him for an act he or a third

person has committed or is suspected of having committed, or intimidating or

coercing him or a third person, or for any reason based on discrimination of any

kind, when such pain or suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an official

capacity. It does not include pain or suffering arising only from, inherent in or

incidental to lawful sanctions.’

From the above definition, we observe that, for any treatment or punish-

ment to amount to torture, severe pain,

either physical or mental,

or a

combination of both, must be inflicted on the victim for purposes, such as,

obtaining a confession from him.

Article 1 of CAT does not give an

exhaustive list of the purposes for which torture may be committed. It

has been argued in relation to the jurisprudence of torture under the

European human rights system that ‘[i]n general, the European judicial

system has refrained from drawing up a list of acts which will automatically

be considered sufficiently severe to constitute torture.’

Departing from its

See generally Christoph Buchard ‘Torture in the Jurisprudence of the Ad Hoc

Tribunals: A Critical Assessment’ (2008) 6 Journal of International Criminal Justice

159 162.

In Prosecutor v Radoslav Branin Case No IT 99 36 A (judgment of 3 April 2007),

while rejecting the appellant’s argument that for the pain to be severe enough to

amount to torture it must be excruciating, the ICTY held that ‘[t]he Convention against

Torture’s requirement of ‘‘severe’’ pain or suffering was not itself meant to require

‘‘pain . . . equivalent in intensity to the pain accompanying serious physical injury,

such as organ failure, impairment of bodily function, or even death’’ . . . Hence, the

Convention against Torture’s drafting history makes clear that ‘‘severe pain or

suffering’’ is not synonymous with ‘‘extreme pain or suffering’’, and that the latter is a

more intense level of pain and suffering one that might come closer to ‘‘pain . . .

equivalent in intensity to the pain accompanying serious physical injury, such as organ

failure, impairment of bodily function or even death’’ not required by the Convention

against Torture.’ Para 249.

The ICTR held that it is not necessary to prove that the act of torture inflicted both

severe mental suffering and severe physical suffering. A crime of torture is committed

once it is established that the alleged act caused the victim severe mental suffering. See

The Prosecutor v Laurent Semanza Case No. ICTR 97 20 T (judgment of 15 May

2005) para 482.

In Prosecutor v Dragolvjub Kunarac, Radomir Kovac and Zoran Vokovic Case No IT

96 23 andIT 96 23/1 A (judgment of 12June 2002), oneof the appellants arguedthat

he raped his victims to satisfy his sexual needs and not to achieve any purpose

provided for under Article 1 of CAT. The ICTY held that ‘. . . acts need not have been

perpetrated solely for one of the purposes prohibited by international law. If one

prohibited purpose is fulfilled by the conduct, the fact that such conduct was also

intended to achieve a non listed purpose (even one of sexual nature) is immaterial.’

See para 155.

Torture in International Law: A Guide to Jurisprudence op cit note 11 at 59.

36 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

earlier jurisprudence, and that of the European Commission of Human

Rights, the European Court of Human Rights did not emphasise the pur-

posive element in the definition of torture,

in its 1999 judgement in

Selmouni v France.

Rather, for the first time, the European Court of

Human Rights referred to the definition of torture under Article 1 of

CAT

and emphasised the purposive component of torture.

The court

held that severe pain or suffering must be inflicted by, or at the instigation

or with the consent or acquiescence of, a public official.

The ICTY

explained the rationale behind the requirement that it be a public official,

who, under Article 1 of CAT, should be punished for torture. The court

held:

For a detailed discussion of the European Commission on Human Rights and the

European Court of Human Rights’ jurisprudence on the definition of torture where the

famous cases such as The Greek Case (1969) and Ireland v United Kingdom (1978),

see Torture in International Law: A Guide to Jurisprudence ibid at 56 59. For

another discussion the case of Ireland v United Kingdom, see Stefan Sottiaux

Terrorism and the Limitation of Rights: The ECHR and the US Constitution (2008)

236 238.

Selmouni v France Human Rights Case Digest, Vol 10 Nos 7 9 (1999) 169 175.

Selmouni v France ibid para 97.

Selmouni v Franc, ibid at paras 97 102.

It appears that practice in some African countries does not support the position that

for such treatment or punishment to amount to torture, it must be inflicted by a public

official. In Uganda, for example, the Uganda Human Rights Commission, despite the

fact that it relies on the definition of torture in Article 1 of CAT, has held that private

individuals can commit torture. See Jamil Ddamulira Mujuzi ‘The Uganda Human

Rights Commission and the Promotion and Protection of the Right to Freedom

Torture (1997 2006)’ (2007) V: IV International Journal of Civil Society Law at 100

103 (available at ). However, we

should recall, as the Committee against Torture observed, that CAT ‘imposes

obligations on States parties and not on individuals. States bear international

responsibility for the acts and omissions of their officials and others, including agents,

private contractors, and others acting in official capacity or acting on behalf of the

State, in conjunction with the State, under its direction or control, or otherwise under

the color of law.’ General Comment No 2 para 15. On the state’s responsibility for acts

of private individuals, the Committee against Torture comments: ‘. . .where State

authorities or others acting in official capacity or under color of law, know or have

reasonable grounds to believe that acts of torture or ill treatment are being committed

by non State officials or private actors and they fail to exercise due diligence to

prevent, investigate, prosecute and punish such non State officials or private actors

consistently with this Convention, the State bears responsibility and its officials should

be considered as authors, complicit or otherwise responsible under the Convention for

consenting to or acquiescing in such impermissible acts. Since the failure of the state

to exercise due diligence to intervene to stop, sanction and provide remedies to victims

of torture facilitates and enables non State actors to commit acts impermissible under

the Convention with impunity, the State’s indifference or inaction provides a form of

encouragement and/or de facto permission.’ Committee against Torture, General

Comment No 2 para 18. For the criticism of the requirement of the involvement of a

public official for an act to amount to torture under CAT see Gaeta op cit note 1 at 191

192 (where he argues that like many other rights, the right to freedom from torture

should be protected both vertically and horizontally, that is, it has to be protected by

the state and private individuals).

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 37

‘The definition of the crime of torture, as set out in the Torture Convention, may

be considered to reflect customary international law. The Torture Convention

was addressed to States and sought to regulate their conduct, and it is only for

that purpose and to that extent that the Torture Convention deals with the acts of

individuals acting in an official capacity. Consequently, the requirement set out

by the Torture Convention that the crime of torture be committed by an indivi-

dual acting in an official capacity may be considered as a limitation of the

engagement of States; they need prosecute acts of torture only when those

acts are committed by ‘‘a public official . . . or any other person acting in a

non-private capacity.’’’

The African Commission on Human and Peoples’ Rights (the African Com-

mission) relied on the definition of torture under CAT and held that a

complainant who alleges that his right to freedom from torture under

Article 5

of the African Charter on Human and Peoples’ Rights was

violated has to ‘adduce . . . evidence to show that State organs were respon-

sible or that the government or State organs connived with . .. [the ruling

party’s supporters] to inflict pain on’ the complainant.

The African Com-

mission held that the definition of torture under Article 1 of CAT ‘supports

the State’s [Zimbabwe] argument that . . .torture [is] caused by the State or

through its agents or acquiescence.’

It is vital to note that for the treat-

ment or punishment to amount to torture in the above mentioned circum-

stances, it must be intentional. One has to recall that there is a distinction

between ‘intent’ and ‘motivation’ in relation to the alleged act of torture.

Any pain or suffering arising only from, inherent in, or incidental to, lawful

sanctions is excluded from the definition of torture. States Parties to CAT

Prosecutor v Dragolvjub Kunarac, Radomir Kovac and Zoran Vokovic (Appeals

Chamber) op cit note 15 para 146.

Article 5 of the African Charter on Human and Peoples’ Rights provides that ‘[e]very

individual shall have the right to the respect of the dignity inherent in a human being

and to the recognition of his legal status. All forms of exploitation and degradation of

man particularly slavery, slave trade, torture, cruel, inhuman or degrading punish

ment and treatment shall be prohibited.’

See Zimbabwe Human Rights NGO Forum v Zimbabwe op cit note 8 para 183. See

para 180 for the definition of torture. For a detailed discussion of the African

Commission on Human and Peoples’ Rights earlier jurisprudence on torture see Jamil

Ddamulira Mujuzi, ‘An Analysis of the Approach to the Right to Freedom from Torture

Adopted by the African Commission on Human and Peoples’ Rights’ (2006) 6: 2

African Human Rights Law Journal 423 441.

See Zimbabwe Human Rights NGO Forum v Zimbabwe, Communication op cit note

8 para 181.

In Prosecutor v Dragolvjub Kunarac, Radomir Kovac and Zoran Vokovic (Appeals

Chamber) op cit note 15, the ICTY drew the distinction between ‘intent’, on the one

hand, and ‘motivation’ on the other hand. It held that ‘even if the perpetrator’s

motivation is entirely sexual, it does not follow that the perpetrator does not have the

intent to commit an act of torture or that his conduct does not cause severe pain or

suffering, whether physical or mental, since such pain or suffering is a likely and

logical consequence of his conduct. In view of the definition, it is important to

establish whether a perpetrator intended to act in a way which, in the normal course of

events, would cause severe pain or suffering, whether physical or mental, to his

victims.’ Para 153.

38 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

are free, when legislating on torture, to adopt a definition of torture that is

different from the one under CAT. However, in General Comment No 2 of

23 November 2007, the Committee against Torture, while recognising the

fact that States Parties may adopt a definition of torture different to that

under CAT, nevertheless requires that such a definition should not defeat

the purpose and object of CAT. The Committee against Torture requires

that there should not be ‘serious discrepancies’ between such a definition

and the CAT definition. The Committee thus stipulates in detail what States

Parties should take into consideration when defining torture in their

domestic legislation:

‘Serious discrepancies between the Convention’s definition and that incorporated

into domestic law create actual or potential loopholes for impunity. In some

cases, although similar language may be used, its meaning may be qualified by

domestic law or by judicial interpretation and thus the Committee calls upon

each State party to ensure that all parts of its government adhere to the definition

set forth in the Convention for the purpose of defining the obligations of the

State. At the same time, the Committee recognizes that broader domestic defini-

tions also advance the object and purpose of th[e] Convention so long as they

contain and are applied in accordance with the standards of the Convention, at a

minimum. In particular, the Committee emphasizes that elements of intent and

purpose in article 1 do not involve a subjective inquiry into the motivations of the

perpetrators, but rather must be objective determinations under the circum-

stances. It is essential to investigate and establish the responsibility of the

chain of command as well as that of the direct perpetrator(s).’

The above comment is important in the light of the fact that some countries

have adopted definitions of torture that clearly conflict with the purpose

and object of CAT. The United States, for example, in its controversial 2006

Military Commissions Act,

‘. . . narrows the definition of torture [under

CAT] by insisting that ‘‘prolonged mental harm’’ is an independent element

Committee against Torture, General Comment No 2 para 9.

The Military Commissions Act has disregarded some of the fundamental principles of

the law of war, especially with regard to the protection that should be accorded to

Prisoners of War (POW). As Fletcher observed: ‘The . . .Military Commissions Act of

2006 treats POW status as irrelevant. It distinguishes. . .between lawful and unlawful

enemy combatants. The latter are to be tried in military commissions. The former do

not receive immunity as POWs but rather are subject, illogically, to prosecution in

courts martial for a range of offences, including many that are not violations of the law

of war.’ George P Fletcher ‘The Law of War and its Pathologies’ (2007) 38 Columbia

Human Rights Law Review 544 545. Footnotes omitted. Mayerfeld observed that

‘. . .the Military Commissions Act lends practical support to the policy of coercive

interrogation. Besides creating potential impunity for officials who engage in cruel and

inhuman treatment, including torture, and besides eliminating judicial review for

foreign detainees subjected to torture, the . . . [Act] severely curtails the ability of U.S.

courts to enforce international humanitarian law by eliminating habeas corpus rights

for foreign detainees. . .’ Jamie Mayerfeld ‘Playing by Our Own Rules: How U.S.

Marginalization of International Human Rights Law Led to Torture’ (2007) 20

Harvard Human Rights Journal at 135. It has been prophesised that ‘. . .it is highly

likely that the procedures of the new [Military Commissions] will be challenged and

the [Supreme] Court may face the task of delineating minimal procedural

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 39

required for the crime of torture.’

As Riggs et al rightly observe, the

definition of torture under CAT ‘envisages no requirement of prolonged

mental harm and contains no qualification on the type of mental pain or

suffering that must be inflicted for a claim of torture . . . [CAT] emphasizes

the nature of the victim’s suffering and the level of pain or suffering

caused.’

The African Commission, it is argued, erroneously held that,

for a complainant to free his country on the ground that he was psycholo-

gically tortured, the alleged torture must ‘have been life-threatening to

cause the complainant [to] flee for his life.’

When Zambia submitted its

First Periodic Report to the Committee against Torture,

the Committee in

its Concluding Observations expressed concern that the definition adopted

by Zambia was inconsistent with that under CAT. In its Second Periodic

Report Zambia notified the Committee that it had initiated a Cabinet

Memorandum that took into account the Committee’s concerns including

the definition of torture.

Benin left it to the Constitutional Court to define

torture – the definition adopted fails to draw a distinction between torture,

on one hand, and cruel, inhuman and degrading treatment, on the other

hand.

requirements. Moreover, the provision in the [Military Commissions Act] declaring

rights granted by the Geneva Conventions to be judicially unenforceable might be

challenged.’ See Regina Fitzpatrick ‘Hamdan v Rumsfeld: Implications for the Geneva

Conventions’ (2007) 20 Harvard Human Rights Journal 347.

Kate Riggs, Richard Blakeley and Jasmine Marwaha ‘Prolonged Mental Harm: The

Torturous Reasoning Behind a New Standard for Psychological Abuse’ (2007) 20

Harvard Human Rights Journal 264.

Riggs et al ibid at 280. The ICTY held in Prosecutor v Dragolvjub Kunarac, Radomir

Kovac and Zoran Vokovic (Appeals Chamber) op cit note 15, that ‘[t]orture is

constituted by an act or an omission giving rise to ‘‘severe pain or suffering, whether

physical or mental’’, but there are no more specific requirements which allow an

exhaustive classification and enumeration of acts which may constitute torture.

Existing case law has not determined the absolute degree of pain required for an act to

amount to torture.’ Para 149.

See Mr Obert Chinhamo v Zimbabwe, Communication 307/2005, 23rd Activity

Report of the African Commission on Human and Peoples’ Rights (May November

2007) Annex III para 75.

Zambia’s First Periodic Report to the Committee against Torture, CAT/C/47/Add.2 (of

2001).

Zambia’s Second Period Report to the Committee against Torture, CAT/C/ZMB/2 (of

9 February 2006) para 62.

In its periodic report to the African Commission, Benin informed the African

Commission on Human and Peoples’ Rights that ‘[t]he Constitutional Court has

defined torture by deciding that ‘‘. . . inhuman or degrading treatments are considered

not only with regard to the effect on the physical or mental state of the individual but

also their duration, deliberate nature and the circumstances under which they were

inflicted. Fifteen (15) days detention in a poorly ventilated, ill lit cell, stinking of urine

or even of faeces [sic] well and truly constitutes inhuman and degrading treatment.’’

See Periodic Report of the Republic of Benin on the Implementation of the Rights and

Freedoms Enshrined in the African Charter on Human and Peoples’ Rights (2008)

10.

40 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

One of the fundamental principles that should not be overlooked – when

States Parties to CAT attempt to define torture – is the principle of non-

discrimination. This is so because this principle ‘is a basic and general

principle in the protection of human rights and fundamental to the inter-

pretation and application of the Convention . . . the discriminatory use of

mental or physical violence or abuse is an important factor in determining

whether an act constitutes torture.’

States Parties are thus required to

ensure the protection of members of groups, especially those at the risk of

being tortured, ‘by fully prosecuting and punishing all acts of violence and

abuse against these individuals. . .’

This means, for example, that even in

all those African countries where consensual sex between adults of the

same sex is an offence,

people who engage in such acts should be pro-

tected from torture, and those who subject them to torture should be

prosecuted.

For the purpose of directly advancing CAT’s ‘overarching aim of prevent-

ing torture. . .’ the Committee against Torture recommends that States

Parties should define ‘the offence of torture as distinct from common

assault or other crimes.’

When the offence of torture is named and

defined as distinct from other crimes, this ‘will promote the . . . [CAT’s]

aim, inter alia, by alerting everyone, including perpetrators, victims, and

the public, to the special gravity of the crime of torture.’

Defining, codify-

ing, and naming the crime of torture also strengthens torture prevention

mechanisms in the following ways: it emphasises the need for appropriate

punishment that takes into account the gravity of the offence; it strength-

ens the deterrent effect of the prohibition of torture itself; it enhances the

ability of responsible officials to track the specific crime of torture; and it

enables and empowers members of the public to monitor and, when

required, to challenge state action, as well as state inaction, that violates

CAT.

Committee against Torture, General Comment No 2 para 20.

Ibid at para 21.

At the time of writing South Africa was the only African country that had legalised

same sex unions through its 2006 Civil Union Act 17 of 2006.

Committee against Torture, General Comment No.2 para 21. The African Commission

on Human and Peoples’ Rights held that ‘. . . the principle of non discrimination

provided under Article 2 of the [African Charter on Human and Peoples’ Rights]

provides the foundation for the enjoyment of all human rights. . .The aim of this

principle is to ensure equality of treatment for individuals irrespective of nationality,

sex, racial or ethnic origin, political opinion, religion or believe, disability, age or

sexual orientation.’ See Zimbabwe Human Rights NGO Forum v Zimbabwe, op cit

note 8 para 169.

Committee against Torture, General Comment No 2 para 11.

Ibid.

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 41

3CRUEL, INHUMAN OR DEGRADING TREATMENT OR

PUNISHMENT (‘CIDTP’)

Unlike torture, which is clearly defined under Article 1 of CAT, CIDTP,

although, prohibited under Article 16 of CAT and other international and

regional human rights instruments,

is not defined. Most importantly, the

text of CAT does not provide the elements of CIDTP. Put differently, if one

were to seek to define CIDTP, the text of CAT is of little importance, in the

sense that it does not provide a guide as to what, as a minimum, should be

included in such definition. Both the European Commission and the Eur-

opean Court of Human Rights have drawn a distinction between torture on

the one hand, and IDTP on the other. However, the difficulties associated

with defining these concepts have not spared these two institutions and

consequently ‘the Court and the Commission have given fewer definitions

of inhuman treatment than the other prohibited acts.’

According to the

European Court and Commission’s jurisprudence, inhuman treatment has

to be defined in relation to the other ‘forms of ill-treatment’ and ‘it is such

treatment as not sufficiently severe, or without a purposive element, to

constitute torture, but yet which crosses the upper ‘‘severity threshold’’

of degrading treatment.’

The European Court and Commission have

also developed jurisprudence relating to what treatment should be consid-

ered degrading. In The Greek Case it was held that for the treatment to be

classified as degrading, ‘it must include some form of ‘‘gross humilia-

tion’’’.

In subsequent cases the Court has held that to constitute degrad-

ing treatment, the act ‘must in some way interfere with a person’s

dignity.’

A survey of the European Court of Human Rights jurisprudence

reveals that ‘[t]raditionally, the Court’s approach has been to consider

whether the object of the treatment was to humiliate and debase the person

concerned’. However, the Court has since moved away from that approach

and holds that acts can amount to degrading treatment despite the lack of

the intent on the part of the perpetrator to humiliate or debase the victim.

In distinguishing between torture, on the one hand, and CIDT, on the

other, ‘[t]he Inter-American Court and Commission [of Human Rights]

. . . adopted the distinctions developed in European jurisprudence . . . as

its own . . .’

See Article 5 of the African Charter on Human and Peoples’ Rights; Article 7 of the

International Covenant on Civil and Political Rights; Article 37(a) of the Convention

on the Rights of the Child; and Article 10 of the Convention on the Protection of the

Rights of All Migrant Workers and Members of Their Families.

Torture in International Law: A Guide to Jurisprudence op cit note 11 at 60.

Ibid at 60.

Ibid at 61. Emphasis in original.

Ibid at 61.

Ibid at 62 63.

Ibid at 98.

42 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

It has been, and still is, an ongoing debate regarding the criterion one

should use to distinguish torture, on the one hand, from CIDTP, on the

other hand. In late 2006 the United Nations Special Rapporteur on Torture

argued that:

‘. .. the decisive criteria for distinguishing torture from CIDT [Cruel, Inhuman

and Degrading Treatment] is not, as argued by the European Court of Human

Rights and many scholars, the intensity of the pain or suffering inflicted but the

purpose of the conduct and the powerlessness of the victim and that as such the

distinction is primarily linked to the question of personal liberty.’

The Committee against Torture appears to disagree with the position taken

by the Special Rapporteur on Torture on the criteria that should be used to

distinguish torture from CIDTP. In its November 2007 General Comment

No 2 the Committee against Torture commented that: ‘[i]n comparison to

torture, ill-treatment differs in the severity of pain and suffering and may

not require proof of impermissible purposes.’

However, and probably

most importantly for practical purposes, the Committee against Torture

is of the view that:

‘The obligation to prevent torture in article 2 [of CAT] is wide-ranging. The

obligations to prevent torture and other cruel, inhuman or degrading treatment

or punishment (hereinafter ‘‘ill-treatment’’) under article 16, paragraph 1 are

interdependent, indivisible and interrelated. The obligation to prevent ill-treat-

ment in practice overlaps with and is largely congruent with the obligation to

prevent torture. Article 16, identifying the means of prevention of ill-treatment,

emphasizes ‘‘in particular’’ the measures outlined in article 10-13, but does not

limit effective prevention to these articles, as the Committee has explained for

example, with respect to compensation in article 14. In practice, the definitional

threshold between ill-treatment and torture is often not clear. Experience

demonstrates that the conditions that give rise to ill-treatment frequently facil-

itate torture and therefore the measures required to prevent torture must be

applied to prevent ill-treatment. Accordingly, the Committee has considered the

prohibition of ill-treatment to be likewise non-derogable under the Convention

and its prevention to be an effective and non-derogable measure.’

Manfred Nowak & Elizabeth McArthur ‘The Distinction between Torture and Cruel,

Inhuman or Degrading Treatment’ (2006) 16:3 Torture Journal (Journal on

Rehabilitation of Torture Victims and Prevention of Torture) 147.

Committee against Torture General Comment No 2 para 10.

Ibid at para 3. In Prosecutor v Mladen Naletiliæ and Vinko Martinoviæ Case No IT

98 34 A (judgment of 3 May 2006), where the first accused was found guilty of torture

(by threatening the prisoners that they would be killed unless they gave some

information to the accused), amongst other crimes, the ICTY held that ‘. ..torture ‘‘is

constituted by an act or omission giving rise to ‘severe pain or suffering, whether

physical or mental’, but there are no more specific requirements which allow an

exhaustive classification and enumeration of acts which may constitute torture.

Existing case law has not determined the absolute degree of pain required for an act

to amount to torture’’. Thus, while the suffering inflicted by some acts may be so

obvious that the acts amount per se to torture, in general allegations of torture must be

considered on a case by case basis so as to determine whether, in light of the acts

committed and their context, severe physical or mental pain or suffering was inflicted.’

Para 299.

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 43

The Committee against Torture chooses its language carefully in the above

quotation. Whereas it unambiguously states that the prohibition of torture

has attained the status of a norm of jus cogens under customary interna-

tional law,

it does not extend this status to the prohibition of CIDTP.

However, it clearly states that the prohibitions of both torture and CIDTP

are non-derogable. The African Commission has also held that the prohibi-

tions of both torture and CIDTP are non-derogable.

Put differently, both

torture and CIDTP are absolutely prohibited under international law. The

Committee against Torture’s careful decision not to elevate the prohibition

of CIDTP to the status of a norm of jus cogens has, if all factors remain

constant, at least two practical consequences: in the first place, it means

that those found guilty of torture should be punished severely in compar-

ison to those found guilty of CIDTP; and in the second place, victims of

torture should receive high compensation packages, compared to those

awarded to victims of CIDTP.

However, there is an inherent challenge in this regard, in the sense that

in such cases the judicial or quasi-judicial body will have to undertake a

painstaking exercise to draw a line between acts that amount to torture and

those that amount to CIDTP for punishment and compensation purposes,

especially when the victim’s allegations arise from the same facts – which is

why the Committee against Torture cautions that, ‘[i]n practice, the defini-

tional threshold between ill-treatment and torture is often not clear.’ In my

opinion, should the victim claim that he was tortured, the judicial body, if it

has doubts whether the alleged treatment was torture or CIDTP, should

find that there was torture, so that perpetrators be deterred from engaging

in acts that lie in the ‘grey area’ between torture and CIDTP, with the hope

that when prosecuted they are likely to be found guilty of the latter. It

should not be left within the discretion of the perpetrators of torture to

determine what they think amounts to torture or to CIDTP; otherwise

governments will insist that they do not torture, yet use methods that

they ‘call torture when practiced by other governments.’

Some countries,

like the United States of America, appear to reason that there are circum-

stances in the ‘war on terror’ when acts that amount to CIDTP can be

Committee against Torture, General Comment No 2 para 1. For a detailed discussion

of the right to freedom from torture as a norm of jus cogens, see Jamil Ddamulira

Mujuzi ‘African States and the Right to Freedom from Torture: An International

Perspective’ (2008) 14: 1 East African Journal of Peace and Human Rights 107 109.

The African Commission held that ‘. . .it must be borne in mind that States Parties

cannot derogate from the Charter in times of war or any other emergency situation.

Even if it is assumed that the restriction placed by the Charter on the ability to

derogate goes against international principles, there are certain rights the . . .right to

freedom from torture and cruel, inhuman and degrading treatment, that cannot be

derogated from for any reason, in whatever circumstances.’ See Article 19 v The State

of Eretria, Communication 275/2003, 22nd Activity Report of the African

Commission on Human and Peoples’ Rights (November 2006 May 2007) Annexure

II para 98. See also para 102.

Mayerfeld op cit note 28 at 92.

44 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

justified when interrogating ‘high value’ terrorism suspects. Mayerfeld has

warned that:

‘The more one insists that the word ‘‘torture’’ should be reserved for the most

extreme forms of ill treatment, the more one is obliged to condemn ill treatment

that does not rise to the level of torture. It seems perverse to excuse ill treatment

that is merely cruel, inhuman, or degrading. One might even argue that there are

circumstances in which cruel, inhuman, or degrading treatment not rising to the

level of torture is worse than torture. Some forms of torture such as water-

boarding, lasts only for seconds. When ill treatment less severe than torture is

extended for months and years, one could argue that such treatment is worse

than very brief torture.’

4THE TORTURE CONVENTION AND THE COMMITTEE

AGAINST TORTURE: A BRIEF DISCUSSION

As much as this paper is substantially concerned with the jurisprudence

and instruments of international criminal tribunals, the author will point

out some relevant provisions of CAT and discuss briefly the working

mechanism of the Committee against Torture. Emphasis will be placed

on those provision that place obligations on States Parties.

4.1 An outline of State Parties obligations under CAT.

CAT imposes the following obligations on States Parties: States Parties

have a duty to ‘take effective legislative, administrative, judicial and

other measures to prevent acts of torture in any territory under’ their

jurisdiction;

CAT makes the right to freedom from torture absolute in

all circumstances - including during ‘a state of war or threat of war, internal

political instability or any other public emergency’;

an order from a

superior officer or public authority cannot be invoked to justify torture;

States Parties are under a duty not to extradite, expel or deport any person

to any country where there are ‘substantial grounds for believing that he

would be in danger of being subjected to torture’;

States Parties are under

a duty to criminalise all acts of torture and such acts must be ‘punishable

by appropriate penalties which take into account their grave nature’;

States Parties should establish jurisdiction over acts of torture when the

alleged offender is their citizen, when the victim of torture is their citizen,

and where the alleged offender is present in their territory;

States Parties

have a duty to prosecute or extradite alleged torturers who are on their

Mayerfeld op cit note 28 at 93. Emphasis in original.

Article 2(1).

Article 2(2).

Article 2(3)

Article 3(1).

Article 4.

Article 5.

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 45

territory;

the training manuals of law enforcement officials should

include a section or sections to the effect that torture is absolutely prohib-

ited;

the interrogation rules of law enforcement officials should be sys-

tematically reviewed to ensure that persons deprived of their liberty are not

subjected to torture;

torture should be investigated promptly and impar-

tially where there is reasonable belief that it could have been committed;

any individual who claims that they have been tortured should have a right

to complain and such a claim must be investigated promptly and impar-

tially by the relevant authorities;

victims of torture should receive legal

redress, compensation and rehabilitation;

and, statements obtained

under torture should not be admitted into evidence against the accused

– unless as proof that torture took place for the prosecution of the alleged

torturers.

4.2 The Committee against Torture: an outline of its function

and mandate

The work of the Committee against Torture, which was established under

Article 17 of CAT, has been a subject of innumerable books and journal

articles. The author will briefly mention the functions, mandate and prac-

tice of the Committee against Torture.

The Committee against Torture is empowered to receive and examine

initial and periodic reports of States on ‘the measures they have taken to

give effect to their undertaking under’ CAT.

As of 16 May 2008, the

Committee against Torture had received a total of 210 reports and as of

the same date there were 227 reports overdue.

The Committee after

examining the report is empowered to make ‘general comments on the

report as it may consider appropriate and shall forward these to the

State Party concerned.’

The Committee against Torture ‘when it receives

reliable information which appears to it to contain well-founded indica-

tions that torture is being systematically practiced in the territory of a State

Party’ may invite the State to cooperate in the examination of that infor-

mation and it may carry out a confidential inquiry to substantiate the

Articles 5, 7, 8, and 9.

Article 10.

Article 11.

Article 12.

Article 13.

Article 14.

Article 15.

Article 19(1).

Report of the Committee against Torture (2008) op cit note 9 paras 18 & 19.

Article 19(2). See for example the general comments on the reports of Benin, Estonia,

Latvia, Norway, Portugal, Uzbekistan, Algeria, Australia, Costa Rica, Iceland,

Indonesia, Sweden, The Former Yugoslav Republic of Macedonia, and Zambia,

Report of the Committee against Torture (2008) op cit note 9 paras 32 45.

46 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

allegations.

In 2007 the Committee against Torture carried out such a

confidential inquiry in respect of Brazil and found that ‘tens of thousands

of persons were still held . . . in the penitentiary system where torture and

similar ill-treatment continued to be meted out on a widespread and sys-

tematic basis.’

Following its findings, the Committee against Torture

recommended several measures that the Brazilian government should

implement to stamp out torture; subsequently, the government reported

to the Committee against Torture that its ‘recommendations were signifi-

cantly useful for the prevention and the struggle against torture and

[CIDTP] in many circumstances and hoped to deepen and expand its

dialogue with the Committee on that account.’

The Committee against

Torture also admits both inter-state

and individual communications

alleging that torture has been or is being committed in a State Party.

The Committee has indeed received and considered several individual

communications alleging that States Parties have violated the right to free-

dom from torture. In September 2008 the Committee against Torture

reported to the General Assembly that, since 1989, it had registered:

‘338 complaints with respect to 26 States parties. Of them, 93 complaints had

been discontinued and 58 had been declared inadmissible. The Committee had

adopted final decisions on the merits on 149 complaints and found violations of

the Convention in 45 of them. Thirty-three complaints were pending for con-

sideration and 4 were suspended, pending exhaustion of domestic remedies.’

After that brief discussion on the definition of torture, and the distinction

between torture, on the one hand, and CIDTP on the other, what follows is

a discussion on how the international criminal tribunals have dealt with the

crime of torture. The discussion starts with the crime of torture as con-

sidered by the Nuremberg Tribunal – followed by the considerations of

subsequent tribunals.

5THE CRIME OF TORTURE AT THE NUREMBURG

TRIBUNAL

The International Military Tribunal at Nuremberg (the Nuremberg Tribu-

nal) was established to bring to book senior Nazi war criminals. Since

Nuremberg, war criminals have been prosecuted and punished for torture

and inhuman treatment of prisoners of war and civilians. Many Nuremberg

war criminals were charged with torture and inhuman treatment of Jews,

prisoners of war and citizens of German-occupied Europe. t should be

Article 20.

Report of the Committee against Torture (2008) ibid at para 70.

Report of the Committee against Torture (2008) ibid at para 71.

Article 21.

Article 22.

Report of the Committee against Torture (2008) op cit note 9 at para 81.

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 47

mentioned at the outset that the Charter of the International Military

Tribunal at Nuremberg,

the Nuremberg Charter, did not specifically

mention torture as a crime. However, under Article 6(c), the Tribunal

had jurisdiction over crimes against humanity, which crimes included

‘inhumane acts committed against any civilian population, before or during

the war’. In the indictment, the Prosecution, relying on Article 6(c), sub-

mitted to the Tribunal that the defendants had committed crimes against

humanity, which included torture of civilians in Germany who were

opposed to the Nazi Government, and of the Jews in the concentration

camps and ghettos. The Chief Prosecutor for the French Republic, M Fran-

cois de Menthon, told the Tribunal that:

‘The use of torture [by the Germans on prisoners of war, Jews and citizens of

occupied Europe] in the interrogations was almost a general rule. The tortures

usually applied were beating, whipping, chaining for several days without a

moment of rest for nourishment or hygienic care, immersion in ice water,

drowning in a bathtub, charging the bathwater with electricity, electrification

of the most sensitive parts of the body, burns at certain places of the body and the

pulling out of fingernails. . .All those facts, which were of public knowledge in the

occupied countries, never led to any punishment whatsoever of their authors on

the part of the responsible authorities. It even seems that the torture was more

severe when an officer was present.’

In its judgement the Tribunal held that ‘[p]risoners of war were ill-treated

and tortured and murdered, not only in defiance of well-established rules

of International Law, but in complete disregard of the elementary dictates

of humanity. Civilian populations in occupied territories suffered the same

fate.’

The Tribunal also found that Nazi officials expressly sanctioned

torturous methods of interrogation for purposes of getting information

from suspects. For example, the intelligence services were allowed to use

‘third degree’ methods of interrogation on Communists, Marxists, Jeho-

vah’s Witnesses, saboteurs, terrorists, and parachute agents, among others.

These methods included hard bunk, deprivation of sleep, exhaustive dril-

ling, and flogging.

With regard to the treatment of Jews in concentration

camps, the Tribunal held that ‘[b]eating, starvation, torture, and killing

were general.’

All the defendants who were found guilty of crimes against

humanity, including torture, were sentenced to severe punishments ran-

ging from 15 years imprisonment to death by hanging.

The Trial of German Major War Criminals: Proceedings of the International Military

Tribunal Sitting at Nuremberg German, Part 22 (22nd August 1946 to 31 August 1946,

30th September, 1946 and 1st October 1946) (1950), Appendix I 548 555 (hereinafter

‘Nuremberg Proceedings Part 22’).

The Trial of German Major War Criminals: Proceedings of the International Military

Tribunal Sitting at Nuremberg German, Part 4 (7 January 1946 19 January 1946)

(1946) 360 at 360.

Nuremberg Proceedings Part 22 op cit note 78 at 450.

Ibid at 453.

Ibid at 466.

Ibid at 528 529.

48 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

There are at least three points that one notes from the above analysis.

The first is that all those who were punished for torture by the Nuremberg

Tribunal were government officials. This means that they had misused

their official power. The ‘public official’ requirement would later find itself

in the definition of torture under CAT. Secondly, torture was not only used

as a form of punishment, but was also used to gather information. These

two important purposes of torture would later find their place in the defi-

nition of torture under CAT, but, would later be discarded in the definition

of torture under the ICC Statute. Lastly, the Nazi officials used both phy-

sical and mental methods of torture. The definition of torture under CAT

would later define torture to include severe physical or mental pain or

suffering.

6THE CRIME OF TORTURE AT THE TOKYO TRIBUNAL

The International Military Tribunal for the Far East (the Tokyo Tribunal)

was established by the International Military Tribunal for the Far East

Charter (the Tokyo Tribunal Charter) for the purpose of ‘just and prompt

trial and punishment of the major war criminals in the Far East’, with its

permanent seat in Tokyo.

As will be discussed shortly, many of the

accused before the Tokyo Tribunal were charged with, and convicted of,

torture. It should be recalled that even the numerous American military

tribunals that preceded the Tokyo Tribunal convicted various Japanese

military and government officials of torture and sentenced them to lengthy

sentences. For example, Tatsuo Tsuchiya, who was a Japanese government

official stationed at Mitsushima Prison Camp – where some American

prisoners of war were detained during World War II – was charged with

‘cruel, inhuman and brutal atrocities which resulted in death for one Amer-

ican prisoner [Pfc. Robert Gordon Teas] and torture for many others’; he

was convicted and sentenced to ‘life imprisonment at hard labor’.

Like the Nuremberg Tribunal Charter, the Tokyo Tribunal Charter did

not expressly mention torture as a crime. But Article 5(c) gave the Tribunal

jurisdiction over ‘inhumane acts committed against any civilian population,

before or during the war.’ Relying on Article 5(c), the Prosecutor expressly

mentioned torture in the indictment. Brackman succinctly put it that:

‘The language of the indictment was brutal. It accused the defendants of promot-

ing a scheme of conquest that ‘contemplated and carried out . . . murdering,

maiming and ill-treating prisoners of war [and] civilian internees. . .forcing them

to labor under inhuman conditions . . . plundering public and private property,

wantonly destroying cities, towns and villages beyond any justification of military

necessity; [perpetrating] mass murder, rape, pillage, brigandage, torture and

Article 1 of the Tokyo Charter. See also article 12 of the Tokyo Charter. See Rule 9 of

the Rules of Procedure of the International Military Tribunal for the Far East, of 25

April 1946 (the Tokyo Tribunal Rules of Procedure).

Tim Maga Judgment at Tokyo: The Japanese War Crimes Trials (2001) 10 17.

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 49

other barbaric cruelties upon the helpless civilian population of the over-run

countries.’

Some of the methods of torture used by the Japanese Military Police

(‘Kempeitai’), the Army and Navy units, local police forces (organised by

the Kempeitai in the occupied territories), and Chiefs of Camps (adminis-

tered and supervised by the Prisoner of War Administration Section of the

Military Affairs Bureau of the War Ministry to whom they reported

monthly) were clearly captured by the Tokyo Tribunal in the following

terms:

‘The so-called ‘‘water-treatment’’ was commonly applied. The victim was bound

or otherwise secured in a prone position; and water was forced through his

mouth and nostrils into his lungs and stomach until he lost consciousness.

Pressure was then applied, some times by jumping upon his abdomen to force

the water out. The usual practice was to revive the victim and successfully repeat

the process . . . Torture by burning was practiced extensively. This torture was

generally inflicted by burning the body of the victim with lightened cigarettes, but

in some instances burning candles, hot irons, burning oil and scalding water were

used. In many of these cases, the heat was applied to sensitive parts of the body,

such as the nostrils, ears, abdomen, sexual organs, and in the case of women, to

breasts . . . Electric shock method was also common. Electric current was applied

to a part of the victim’s body so as to produce a shock. The point of application

was generally a sensitive part of the body such as the nose, ears, sexual organs or

breasts . . . The so-called knee spread was a frequent method of torture. The

victim, with his hands tied behind his back, was forced to kneel with a pole, some

times as much as three inches in diameter, inserted behind both knee joints so as

to spread those joints as pressure was applied to his thighs, at times by jumping

on his thighs. The result of this torture was to separate the knee joints and so

cause intense pain . . . Suspension was another common form of torture. The

body of the victim was suspended by the wrists, arms, legs or neck, and at times

in such manner as to strangle the victim or pull joints from their sockets. This

method was at times accompanied with flogging during the suspension . . .

Kneeling on sharp instruments was another form of torture. The edges of square

blocks were mostly used as the sharp instruments. The victim was forced to kneel

on these sharp edges for hours without relief; if he moved he was flogged . ..

Removal of the nails of the fingers and toes also occurred . . . Underground

dungeons were used as torture chambers . . . Flogging was the most common

of the cruelties of the Japanese. It was commonly used at all prisoner of war and

internee camps, prisons, Kempeitai headquarters and at all work camps and on

all work projects as well as aboard prison ships . . . Special instruments were

issued for use in flogging at camps . . . On occasions prisoners were forced to beat

their fellow prisoners under the supervision of the guards. Prisoners suffered

internal injuries, broken bones, and lacerations from these beatings. In many

instances they were beaten into unconsciousness only to be revived in order to

suffer a further beating . . . Mental torture was commonly used [where prisoners

were threatened with death].’

Arnold C Brackman The Other Nuremberg: the Untold Story of the Tokyo War

Crimes Trials (1989) 94.

BVA Ro¨ling & CF Ru¨ter The Tokyo Judgment: The International Military Tribunal

for the Far East (I.M.T.F.E.) 29 April 1946 12 November 1948 Vol 1 (1977) 406 408.

50 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

The Tokyo Tribunal, when commenting on the evidence adduced by the

prosecution against the Japanese war criminals, mentioned that ‘[t]he

evidence relating to atrocities and other Conventional War Crimes pre-

sented before the Tribunal establishes that from the opening of the war

in China until the surrender of Japan in August 1945 torture . . . and other

cruelties of the most inhumane and barbarous character were freely prac-

tised by the Japanese Army and Navy.’

Some of the acts included ‘beat-

ings and torture of all kinds to extract information or confessions’ from

prisoners of war and civilian internees.

The Tribunal added that, from

the evidence adduced by the prosecution, ‘only one conclusion [was] pos-

sible – the atrocities were either secretly ordered or wilfully permitted by

the Japanese Government or individual members thereof and by the lea-

ders of the armed forces.’

Some of the accused who were present in some

of the Chinese cities, like Nanking – where atrocities were committed –

admitted at the Tribunal that they had ‘heard of the atrocities being com-

mitted’ during their stay in such cities.

The Tribunal held that these army

officials took ‘no effective action . . . to remedy the situation.’

The Tokyo

Tribunal found Japanese military officers guilty of torture, amongst other

crimes, and punished them severely.

It is important to note at least two points here: first, that the Japanese

war criminals were not only found guilty of the torture committed by

themselves, but also by their subordinates. This is important, in the

sense that they could not hide behind the argument that they could not

be held liable for torturous acts that were committed by their subordinates.

Secondly, and perhaps most importantly, the Tribunal found that ‘the

atrocities were either secretly ordered or wilfully permitted’ by those who

were in power. Put differently, the Tribunal would not have found the war

criminals guilty of torture had it not been proved that either the atrocities

were secretly ordered or wilfully permitted. It meant that if leaders ‘just

turned a blind eye’ when their subordinates committed torturous acts, the

former had to be punished for atrocities of the latter. They were punished

not for their actions but for their omissions. They omitted to comply with

Ro¨ling & Ru¨ter ibid at 385.

Ibid at 385. American prisoners of war were also tortured. These included army pilots,

under the command of Col. Doolittle, who had been captured after bombing some

Japanese cities including Tokyo. They were tortured for over 18 days to extract

confessions from them. After their torture they stood ‘trial’ before military tribunals at

which proceedings were conducted in Japanese, and they were not provided with

interpreters. Three were sentenced to death and executed, and five to life

imprisonment. See 394 395.

Ibid at 385.

Ibid at 390.

It has been observed that ‘[o]ne salient feature of the verdict was that everyone

convicted under Count 54, which dealt with atrocities, was sentenced to the gallows.’

See Brackman op cit note 86 at 426.

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 51

their obligation to stop such atrocities from being committed, and, by

implication, they had either ordered their commission or had approved

thereof. Even if they had taken steps to halt such atrocities, they did not

prove to the Tribunal that such steps had been ‘effective.’ In other words,

taking steps to prevent your subordinates from committing torture is not

enough. Those steps must be effective to bring such torturous activities to

an end, and also to prevent such atrocities from being committed by your

subordinates in subsequent military operations.

Another important factor to note about the circumstances under which

torture was justified by the Japanese war criminals related to the status

they accorded the armed conflict that was being waged between China and

Japan. The Japanese government persistently refused to accept that the

fighting that the conflict between Japan and China was a war; instead, they

consistently referred to it as an ‘incident’ despite of the fact that ‘the Govern-

ment and the fighting services were organized on a full wartime basis’. Thus,

the Chinese soldiers in their captivity were not accorded prisoners of war

status but were treated as ‘bandits’, who were excluded from the protection of

the law of war and had to be punished.

‘Many of the Captured Chinese were

tortured’ and hundreds died as a result, the Tribunal held.

The fact that the

Tribunal punished Japanese war criminals for torture means that, whetheror

not a government refuses officially to acknowledge the existence of a war

between itself and another government, captured soldiers fighting for the

other government should not be tortured.

However, even if the Tokyo Tribunal – as well as the military tribunals

that preceded it – punished people for torture, one of the judges of the

Tokyo Tribunal, Bert VA Ro¨ling (representing the Netherlands), was of the

view that there were circumstances in an armed conflict where torture

could be justified, and that under such circumstances the crime of torture

should not get the ‘most attention’, and the torturer may also not be

prosecuted. When interviewed by Professor Antonio Cassese several

years after the Tokyo Trial as to whether he thought the Japanese had

tortured American prisoners of war, he said:

‘Yes. If you read war history, then you see that this kind of torture has been

practiced in every country. If you have captured a man, and he knows about the

forces that are surrounding you and that will attack you, then you want to get the

information at any cost. It may be a question of life or death. And so you torture

him if he refuses to answer. I am quite sure the same was done in the Korean War

and in the Vietnam War. It happens in every war, when the life of perhaps

thousands of people, or victory in battle, are dependant on knowing, for example,

where the enemy forces are hiding. I think that the urge to torture is human, all

too human as a matter of fact. This means, I think, that it should perhaps not be

the crime that gets the most attention, because if everybody commits a crime in a

certain situation, then it becomes unfair to punish only the loser.’

Ro¨ling & Ru¨ter op cit note 87 at 388.

Ibid at 388.

BVA Ro¨ling & Antonio Cassese The Tokyo Trial and Beyond (1993) 75 76.

52 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

One needs to put Ro¨ling’s statement into context for a clear analysis. In the

first place, at the time he made that statement the CAT was just being

drafted by the International Criminal Law Association, and torture had not

yet become recognised as a norm of jus cogens. This Ro¨ling knew very

well.

He does not say that torture is not a crime. He says that perhaps,

as a crime, it should not get the most attention. This means that he was

looking at torture vis-a`-vis other crimes that the Tokyo Tribunal dealt with,

such as, the crime of aggression and war crimes such as murder. He also

emphasises that both the victors and the vanquished should punish their

officers and men who committed torture during an armed conflict because

‘it becomes unfair to punish only the loser.’ However, in the light of the fact

that the right to freedom from torture is now a norm of jus cogens, Ro¨ling’s

opinion that its violation could be justified in some circumstances – for

example, to get information from the captured soldier on the whereabouts

of the hiding forces – is no longer tenable.

In addition, Geneva Conven-

tion III prohibits the torture of prisoners of war ‘to secure from them

information of any kind whatsoever’,

and the infliction on prisoners of

war of collective punishment, including torture.

100

Torture is also consid-

ered a grave breach of the Convention.

101

7THE CRIME OF TORTURE AT THE ICTY, ICTR, SCSL

AND THE ICC

102

Unlike the Charters of the Nuremberg and Tokyo Tribunals, which did not

mention torture as a crime, the Statutes of the ICTY, ICTR, SCLS and the

ICC specifically mention torture as a war crime and a crime against human-

ity, for which its perpetrators should be punished.

103

Although torture is

mentioned as a crime in the Statutes of the ICTY, ICTR and SCSL, no

Ibid at 93 96.

It is akin to the present day widely criticised ‘ticking bomb scenario’ the discussion of

which falls outside the ambit of this article. For the criticism of the infamous ticking

bomb scenario on which some of the contemporary arguments that are invoked to

justify torture are based see Jamie Mayerfeld ‘In Defense of the Absolute Prohibition

of Torture’ (2008) 22: 2 Public Affairs Quarterly 109 128.

Article 17.

100

Article 87.

101

Article 130.

102

See also Law on the Establishment of the Extraordinary Chambers in the Courts of

Cambodia for the Prosecution of the Crimes Committed during the Period of

Democratic Kampuchea (as promulgated on 27 October 2004) (NS/RKM/1004/

006)(Revised 26 August 2007), Articles 3, 5 and 6, where torture is one of the

offences over which the Extraordinary Chambers have jurisdiction. However, a

discussion of the jurisprudence of the Extraordinary Chambers falls outside the scope

of this paper.

103

See Articles 2(f) and 3(a) of the Statute of the SCSL; Article 7(1)(f) and Article

8(2)(a)(ii) and (c)(i) of the Rome Statute of the ICC; Articles 2(b) and 5(f) of the ICTY

Statute; and Articles 3(f), and 4(a) of the ICTR Statute.

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 53

attempt is made to define it. This has given the respective Tribunals wider

discretion to rely on the definition of torture they feel is better suited to the

situation with which they are dealing. Thus, the ICTY has relied on the

definition of torture under CAT

104

and under the Inter-American Conven-

tion to Prevent and Punish Torture.

105

However, the ICTY held that in

terms of International Humanitarian Law it is not a requirement that for

a person to be found guilty of torture he must have acted in an official

capacity.

106

The ICTR has also relied on the definition of torture under

104

In Prosecutor v Anto Furund’ija Case No IT 95 17/1 A (judgment of 21 July 2000),

(where the accused was found guilty of torture when, while interrogating his victim,

he rubbed his knife on her ‘inner thighs and threatened to cut out her private parts if

she did not tell the truth in answer to’ the accused’s questions (see para 113) the

Tribunal observed that ‘[t]he Appeals Chamber supports the conclusion of the Trial

Chamber that ‘‘there is now general acceptance of the main elements contained in the

definition set out in Article 1 of the Torture Convention’’, and takes the view that the

definition given in Article 1 reflects customary international law.’ Para 111. In

Prosecutor v Miroslav Kvoæka, Mlao Radiæ, Zoran igiæ and Dragoljub Prcaæ

Case No IT 98 30/1 A (judgment of 28 February 2005), where the appellant argued

that one of the major ingredients of the crime of torture is that the perpetrator must

be a public agent, the ICTY held that ‘. ..the public official requirement was not a

requirement under customary international law in relation to the criminal

responsibility of an individual for torture outside the framework of the Torture

Convention.’ Para 284.

105

Prosecutor v Dragolvjub Kunarac, Radomir Kovac and Zoran Vokovic Case No IT

96 23 and IT 96 23/1 T (judgment of 22 February 2001), the Tribunalheld that the

definition of torture under the Inter American Convention on Torture is ‘broader

than the one contained in the Torture Convention. First, the definition of the Inter

American Convention does not specify a threshold level of pain or suffering which is

necessary for ill treatment to constitute torture. It actually removes any requirement

of physical or mental suffering if the intent of the perpetrator is to ‘‘obliterate the

personality of the victim or diminish his physical or mental capacities’’. Secondly, this

definition does not contain an exhaustive list of purposes that can be pursued by the

perpetrator but instead provides examples of such purposes and adds ‘‘or for any

other purpose’’.’ See para 476. In Prosecutor v Ramush Haradinaj, Idriz Balaj and

Lahi Brahimaj Case No IT 04 84 T (judgment of 3 April 2008), the Tribunal held

that ‘the crime of torture consists of the following elements:(a) an act or omission

inflicted severe pain or physical or mental suffering; (b) the act or omission was

committed with intent; (c) the act or omission was aimed at obtaining information or

a confession, or at punishing, intimidating, or coercing the victim or a third person; or

at discriminating, on any ground, against the victim or a third person. There is no

requirement that the severe pain or suffering be inflicted exclusively for one or more

of the purposes mentioned, but only such that such a purpose or purposes be part of

the motivation behind the conduct.’ Paras 127 128.

106

In Prosecutor v Mile Mrkiæ, Miroslav Radiæ and Veselin ljivanæanin Case No IT

95 13/1 T (judgment of 27 September 2007), where the first andthird accused were

found guilty of torture, the ICTY held that ‘the elements required to establish the

crime of torture are: (1) there must be an act or omission inflicting severe pain or

suffering, whether physical or mental; (2) the act or omission must be intentional; (3)

the act or omission must have been carried out with a specific purpose such as to

obtain information or a confession, to punish, intimidate or coerce the victim or a

third person, or to discriminate, on any ground, against the victim or a third person

. . . it is now settled in the jurisprudence of the Tribunal that the perpetrator need not

have acted in an official capacity.’ See paras 513 514.

54 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

CAT,

107

and held that senior military officers are guilty of torture as a crime

against humanity when they themselves torture their victims or they order,

aid or abet their subordinates to commit acts of torture.

108

It should be

recalled that in the statutes of the ICTY, ICTR and SCSL torture is both a

war crime and a crime against humanity. Buchard observed that ‘[i]n the

jurisprudence of the ad hoc tribunals there is common agreement that the

‘‘definition of torture is the same regardless of the Article of the Statute

under which the acts of the accused have been charged’’.’

109

What differs

are the ‘contextual requirements’, in the sense that, for an individual to be

found guilty of torture as a war crime, ‘the existence of an armed conflict’ is

an essential requirement.

110

The ICTR has held that torture is a crime

against humanity, if, in addition to the elements contained in the definition

of torture under Article 1 of CAT:

‘. . . [T]he following further elements are satisfied: (a) Torture must be perpe-

trated as part of a widespread or systematic attack; (b) the attack must be against

the civilian population; [and] (c) the attack must be launched on discriminatory

grounds, namely: national, ethnic, racial, religious and political grounds.’

111

CAT does not enumerate what specific acts amount to torture, and this has

given wider discretion to the Tribunals to assess, on a case by case basis,

whether the alleged acts amounted to torture. It is against that background

that the ICTR held that ‘[t]he [CAT] does not catalogue specific acts in its

definition of torture, focusing rather on the conceptual framework of state-

sanctioned violence. The Tribunal finds this approach more useful in the

context of international law.’

112

The result is that the ad hoc Tribunals have

approached the question of torture from three distinct but related angles:

first of all, some acts have been categorised as ‘conduct constituting torture

per se’, and these have included the mutilation of body parts and rape;

secondly, some acts have been categorised as ‘conduct that may be proven

to constitute torture’, and these have included ‘beating, sexual violence,

prolonged denial of sleep, food, hygiene, and medical assistance, as well as

threats to torture, rape, or kill relatives’; and, lastly, rape has been cate-

gorised as a torturous act because by its nature it causes severe pain or

suffering.

113

However, as mentioned earlier, the ICC Statute adopts a definition of

torture that is different from that of CAT and, also, from that of the Inter-

107

The Prosecutor v Jean Paul Akayesu Case No ICTR 96 4 T paras 593 594 and

681.

108

See The Prosecutor v Andre´ Ntagerura, Emmanuel Bagambiki and Samuel

Imanishimwe Case No ICTR 99 46 T (judgment of 25 February 2004) paras 757

763.

109

Buchard op cit note 12 at 163.

110

Ibid.

111

The Prosecutor v Jean Paul Akayesu (Trial Chamber) op cit note 107 para 595.

112

Ibid at para 687.

113

Buchard op cit note 12 at 164 166.

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 55

American Convention on Torture. Torture is defined under Article 7(2)(e)

of the ICC Statute to mean:

‘. . . the intentional infliction of severe pain or suffering, whether physical or

mental, upon a person in the custody or under the control of the accused; except

that torture shall not include pain or suffering arising only from, inherent in or

incidental to, lawful sanctions.’

The above definition differs from the CAT definition in at least two

respects: in the first place, for it to amount to torture, the severe pain or

suffering does not have to be inflicted by a public official; and, secondly, for

it to amount to torture, severe pain or suffering does not have to be

inflicted on the victim for any purpose, or as a form of punishment. The

definition of torture under the ICC is important in the sense that even non-

state actors, such as African rebel leaders, who could hitherto not be

charged with torture in terms of the strict definition of torture provided

by CAT, can, and indeed have, been indicted by the Prosecutor of the ICC

for torture and or cruel or inhumane treatment as crimes against human-

ity.

114

The Prosecutor of the ICC has also indicted senior government offi-

cials for torture as a war crime and a crime against humanity.

115

It has been

observed that:

‘. . . the Torture Convention applies to all instances of torture that fall within its

definition–including isolated cases–while the ICC jurisdiction is confined to

instances of torture which are widespread or have been systematically applied

as part of the policy of a government or of an organization.’

116

114

See Warrant of Arrest for Jean Pierre Bemba Gombo in The Prosecutor v Jean Pierre

Bemba Gombo No ICC 01/05 01/08(dated 23 May 2008)paras 12, 14and 21(iii) and

(iv) (this case relates to the situation in the Central African Republic). Mr Bemba

Gombo was indicted for inter alia the torture committed by his armed group

Mouvement de Libe´ration du Congo in Central African Republic; see Warrant of

Arrest for Mathieu Ngudjolo Chui in The Prosecutor v Mathieu Ngudjolo Chui No

ICC 01/04 02/07 (dated 6 July 2007) at 6 (this case relates to the situation in the

Democratic Republic of the Congo) in which the accused, as a senior commander and

member of armed groups known as National Integrationist Front and Patriotic

Resistance Force in Ituri, was alleged to have committed inhumane acts; see also

Warrant of Arrest for Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic

Ongwen in The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo and

Dominic Ongwen No ICC 02/04 01/05 (which relates to the situation in Uganda) in

which the leaders of a rebel group known as the Lord’s Resistance Army were indicted

for inter alia cruel treatment of civilians and inhumane acts of inflicting serious

bodily injury and suffering upon civilians (see counts 7, 22, 24,27 and 31).

115

See Warrant of Arrest for Ahmad Harun in The Prosecutor v Ahmad Muhammad

Harun (‘Ahmad Harun’) and A li Muhammad Al Abd Al Rahman (‘Ali Kushayib’) No

ICC 02/05 01/07 (dated 27 April 2007) pages 4, 10 and 12 (this case relates to the

situation in Darfur, Sudan). At the time the warrant for their arrest was issued,

Ahmad Harun served as Minister of State for the Interior in the Government of Sudan

and Ali Kushayib was a senior militia/Janjaweed leader and member of the Popular

Defence Force.

116

Johan D van der Vyver ‘Torture as a Crime under International Law’ (2003) 67

Albany Law Review 438.

56 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

One also has to recall that the ICTY (as discussed in various cases above),

the ICTR,

117

and the SCSL

118

have also found some of the accused guilty of

torture and punished them accordingly.

8CONCLUSION

Although the Nuremberg and Tokyo Tribunals punished war criminals for

torture, their establishing Charters did not expressly give them jurisdiction

over the offence of torture.

119

Torture as a crime was only brought to the

attention of these Tribunals through indictments. Both Tribunals did not

define torture. It means that those who were found guilty of torture were

punished not only for an offence that was not expressly provided for under

the Charters establishing the Tribunals, but also for an offence which was

not clearly defined. However, we should recall that even before the Second

World War torture was condemned in various jurisdictions

120

and by revis-

117

See The Prosecutor v Jean Paul Akayesu op cit note 107 at paras 593 595,599,681

683, where the accused was convicted of torture; The Prosecutor v Laurent Semanza

Case No ICTR 97 20 T paras 439, 479 505 where the accused was convicted of

perpetrating and instigating torture; and The Prosecutor v Omar Serushago Case No

ICTR 98 39 S paras4, 9, 26,35 and 42in which the accusedpleaded guilty totorture,

among other crimes, and was convicted and sentenced accordingly.

118

All the accused before the SCSL were charged with torture. See The Prosecutor v

Samuel Hinga Norman, Moinina Fofana, Allieu Kondewa Case No SCSL 03 14 1

(indictment (Civil Defence Forces)); The Prosecutor v Issa Hassan Sasey, Morris

Kallon and Augustine Gbao Case No SCSL 2004 15 PT (indictment (Revolutionary

United Front)); The Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and

Santiegie Borbor Kanu Case No SCSL 2004 16 PT (indictment (Armed Forces

Revolutionary Council)); The Prosecutor v Charles Ghankay Taylor Case No SCSL

03 01 (indictment); and The Prosecutor v Johnny Paul Koroma (also known as JPK)

Case No SCSL 03 I (indictment; The Prosecutor v Alex Tamba Brima, Brima Bazzy

Kamara and Santiegie Borbor Kanu Case No SCSL 2004 16 T (judgmentof 20 June

2007). See also the sentence of 9 October 2007, where the accused were found guilty

of various war crimes and crimes against humanity which included torture. In The

Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santiegie Borbor Kanu

Case No.SCSL 2004 16 A(judgment of 28February 2008), theSCSL held thatacts of

torture fall under the broader category of inhumane acts and crimes against

humanity. See paras 184 and 200. See also Prosecutor v Moinina Fofana and Allieu

Kondewa Case No SCSL 04 14 A(judgment of 28 May 2008) paras 286 and 293. In

both the aforementioned judgments, although the SCSL found that the offenders had

committed the crime of torture, it did not define torture.

119

However, Article II(1)(c) of the Allied Council Law No 10 of 20 December 1945 which

was enacted to provide for the ‘Punishment of Persons Guilty of War Crimes, Crimes

against Peace and Against Humanity’ who fell outside the jurisdiction of the

Nuremberg Tribunal recognised torture as a crime. See Nuremberg Trials Final

Report Appendix D: Control Council Law No 10 available at

le.edu/imt/imt10.asp> (accessed on 25 October 2008).

120

See Stephanie L Williams ‘‘‘Your Honor, I am Here Today Requesting the Court’s

Permission to Torture Mr. Doe’’: The Legality of Torture as a Means to an End v. The

Illegality of Torture as a Violation of Jus Cogens Norms under Customary

International Law’ (2004) 12 University of Miami International and Comparative

Law Review 307 320.

FROM NUREMBERG TO TOKYO THROUGH AFRICA TO THE HAGUE 57

ing their penal laws, several European countries abolished torture in the

eighteenth and the nineteenth centuries. Sweden abolished torture in 1722,

Prussia in 1754, Australia between 1769 and 1776, Denmark in 1770, Poland

in 1776, France in 1780, Lombardy in 1789, the Netherlands in 1798, Nor-

way in 1819, Portugal in 1826 and Greece in 1827.

121

Article 16 of the 1863

Lieber Code expressly prohibited the use of torture during war and pro-

vided that even military necessity could not be invoked to justify torture.

122

The situation is different with the subsequent international Tribunals of

the ICTY, ICTR, SCSL and ICC. The Statutes of these Tribunals specifically

mention torture as an offence, and there are at least human rights instru-

ments defining torture. Such instruments have informed the relevant Tri-

bunal’s understanding and definition of torture, and have formed the basis

upon which the Tribunals have developed their torture jurisprudence in

one way or another. Unlike the judges at Nuremberg and Tokyo, the judges

at the ICTY, ICTR, SCSL and ICC are also dealing with torture not just as a

war crime and a crime against humanity, but also as a jus cogens norm.

Torture is also prohibited in military manuals and penal or criminal codes

of several countries

123

and courts in a number of countries have convicted

offenders (including those who committed torture during armed conflicts)

of torture.

124

It is also vital to note that the components of torture as a

discrete crime under CAT are different from those of torture as either a war

crime or a crime against humanity.

121

Edward Peters Torture (1986) 90 91.

122

Article 16 of the Instructions for the Government of Armies of the United States in the

Field (Lieber Code) of 24 April 1863 provided in part that ‘military necessity does not

admit of cruelty that is, the infliction of suffering for the sake of suffering or for

revenge, nor of maiming or wounding except in fight, nor of torture to extort

confessions.’ See

(accessed on 24 October 2008).

123

Jean Marie Henckaerts & Louise Doswald Beck Customary International Humani

tarian Law (2005) Vol II (Practice (Part 2)) 2112 2134.

124

Jean Marie Henckaerts& Louise Doswald Beck ibidat 2134 2136. Forthe discussion

of how the European Convention of Human Rights has influenced legislation and

practice relating to torture, amongst other rights, in several European countries see

Helen Keller & Alec Stone Sweet (eds) A Europe of Rights: The Impact of the ECHR

on National Legal Systems (2008).

58 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

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