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ISTANBUL PROTOCOL I. RELEVANT INTERNATIONAL LEGAL NORMS AND STANDARDS

1. The right to be free from torture is firmly established A. International human rights law
under international law. It is also rooted in
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international humanitarian law, international criminal 1. Norms and standards developed at the United
law and in customary international law. Furthermore, Nations
the prohibition of torture is a jus cogens norm of
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international law, binding on all States even if they are 2. States Members of the United Nations have sought for
not party to treaties containing the provision. Because many years to develop universally applicable standards
of its jus cogens status, the prohibition of torture is to ensure adequate protection for all persons against
absolute and non-derogable and cannot be limited torture and ill-treatment. The treaties, declarations,
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under any circumstances. The absolute and non- resolutions and other instruments adopted by Member
derogable character of the prohibition against torture States clearly state that there is no exception to the
is further reinforced by the provisions of article 2 of the prohibition of torture and ill-treatment and establish
Convention against Torture and Other Cruel, Inhuman other safeguards against these abuses, including
or Degrading Treatment or Punishment, which were instruments applicable to specific populations such
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elaborated on in general comment No. 2 (2007) of the as women, persons with disabilities and children.
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Committee against Torture. The Convention against
Torture also recognizes universal jurisdiction for the 3. Article 1 of the Convention against Torture defines
crime of torture. The prohibition of torture applies torture (for the purposes of the Convention) as:
extraterritorially, and States’ obligations flowing from
the absolute nature of the prohibition – including any act by which severe pain or suffering, whether
the obligations to investigate, prosecute and punish physical or mental, is intentionally inflicted on a
acts of torture – are rules of customary international person for such purposes as obtaining from him
law. The prohibition against cruel, inhuman or or a third person information or a confession,
degrading treatment or punishment (ill-treatment) is punishing him for an act he or a third person has
similarly absolute under both treaty and customary committed or is suspected of having committed,
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international law. States that follow the Istanbul or intimidating or coercing him or a third person,
Protocol to assess allegations of torture or ill-treatment or for any reason based on discrimination of
during an investigation in good faith and with due any kind, when such pain or suffering is inflicted
diligence indicate that they are striving to meet their by or at the instigation of or with the consent
obligations to examine such allegations properly. 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.

1 Universal Declaration of Human Rights, art. 5; International Covenant on Civil and Political Rights, art. 7; Convention against Torture, art. 2; Convention on the Rights of
the Child, art. 37; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, art. 10; and Convention on the Rights of
Persons with Disabilities, art. 15, all expressly prohibit torture and ill-treatment. Regional instruments that establish the right to be free from torture include: Inter-American
Convention to Prevent and Punish Torture, art. 1; Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém
do Pará), art. 4; American Convention on Human Rights (Pact of San José), art. 5; African Charter on Human and Peoples’ Rights, art. 5; and Convention for the Protection
of Human Rights and Fundamental Freedoms (European Convention on Human Rights), art. 3. Additionally, the International Convention for the Protection of All Persons
from Enforced Disappearance and the Inter-American Convention on Forced Disappearance of Persons prohibit enforced disappearances, which various regional and
international tribunals have concluded amount to torture, and oblige States to investigate, prosecute and punish such acts.
2 A/74/10, pp. 146–147, conclusion 23 of the draft conclusions on peremptory norms of general international law (jus cogens), adopted by the International Law Commission
on first reading, and the annex thereto.
3 The absolute and non-derogable nature of the prohibition of torture is expressly stated in the Declaration on the Protection of All Persons from Being Subjected to Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3; the Convention against Torture, art. 2 (2); and the Inter-American Convention to Prevent and Punish
Torture, art. 5. Furthermore, the right to be free from torture is non-derogable during states of emergency (International Covenant on Civil and Political Rights, art. 4; European
Convention on Human Rights, art. 15; and American Convention on Human Rights, art. 27).
4 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984), United Nations, Treaty Series, vol. 1465,
No. 24841, p. 85, entered into force on 26 June 1987.
5 In its general comment No. 2 (2007), para. 6, the Committee against Torture elaborates that prohibitions against torture are likewise applied to ill-treatment, including those
articles of the Convention that establish universal jurisdiction (arts. 5–9).
6 These instruments include: Universal Declaration of Human Rights; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment; International Covenant on Civil and Political Rights; Code of Conduct for Law Enforcement Officials; Principles of Medical Ethics relevant
to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment; Convention against Torture; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Basic Principles for the Treatment of
Prisoners; Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; United Nations Standard Minimum Rules for
the Treatment of Prisoners (the Nelson Mandela Rules); United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the
Bangkok Rules); Convention on the Rights of Persons with Disabilities; Convention on the Rights of the Child; United Nations Rules for the Protection of Juveniles Deprived of
their Liberty (Havana Rules); and United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules).

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