Chapter 8 • International Legal Standards for the Protection of Persons Deprived of Their Liberty
life, health and physical or mental well-being of persons”, and, in particular, murder,
torture, corporal punishment and mutilation.
The peremptory nature both of the right to life and of the right to freedom
from torture and other cruel, inhuman or degrading treatment or punishment is
moreover underlined by the fact that these rights cannot be derogated from under
international human rights law even in the gravest of crisis situations. This is made clear
by article 4(2) of the International Covenant on Civil and Political Rights, article 27(2)
of the American Convention on Human Rights and article 15(2) of the European
Convention on Human Rights. Article 2(2) of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment also provides that “no
exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as a
justification of torture”. Moreover, article 5 of the Inter-American Convention to
Prevent and Punish Torture adds that “neither the dangerous character of the detainee
or prisoner, nor the lack of security of the prison establishment or penitentiary shall
justify torture”.
The fundamental nature of the prohibition of torture is further underlined by
the fact that, according to article 7 of the Rome Statute of the International Criminal
Court, torture constitutes a crime against humanity “when committed as part of a
widespread or systematic attack directed against any civilian population, with
knowledge of the attack”. “Torture or inhuman treatment, including biological
experiments” also constitute war crimes and grave breaches of the 1949 Geneva
Conventions for the purpose of the same Statute (art. 8(2)(a)(ii)).
In addition to this multitude of international legal rules, recourse to torture is
often prohibited at the domestic level. The existence of torture is thus not a legal
problem per se, but rather one of implementation of the law, that poses a true challenge
to the world community.
2.2 Legal responsibilities of States
Article 7 of the International Covenant on Civil and Political Rights provides
that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment”, and, in particular, that “no one shall be subjected without his free
consent to medical or scientific experimentation”. In its General Comment No. 20, the
Human Rights Committee explained that the aim of this article “is to protect both the
dignity and the physical and mental integrity of the individual”.1 It emphasized,
furthermore, that “it is the duty of the State party to afford everyone protection
through legislative and other measures as may be necessary against the acts prohibited
by article 7, whether inflicted by people acting in their official capacity, outside their
official capacity or in a private capacity”.2 The prohibition in article 7 “is complemented
by the positive requirements of article 10, paragraph 1, of the Covenant, which
1 United Nations Compilation of General Comments, p. 139, para. 2.
2 Ibid., loc. cit.
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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