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I. RELEVANT INTERNATIONAL LEGAL NORMS AND STANDARDS ISTANBUL PROTOCOL

risk of torture or ill-treatment under article 7 of the 118. The Protocol Additional to the Geneva
International Covenant on Civil and Political Rights. 195 Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed
116. The Inter-American Court of Human Rights found that Conflicts (Protocol I), and the Protocol Additional
deportation of members of a family to their country to the Geneva Conventions of 12 August 1949,
of origin, with the knowledge that they were able and relating to the Protection of Victims of Non-
to have protection as refugees in a third country, is International Armed Conflicts (Protocol II),
incompatible with the right to seek and to be granted expand the protection and scope of the Geneva
asylum and with the principle of non-refoulement. 196 Conventions. All four Geneva Conventions and
The European Court of Human Rights established that, both Protocols Additional thereto adopted in
where a seriously ill person, if removed, “would face 1977 identify torture or inhuman treatment and
a real risk, on account of the absence of appropriate wilfully causing great suffering or serious injury
treatment in the receiving country or the lack of access to body or health as violations and grave breaches
to such treatment, of being exposed to a serious, of the Geneva Conventions or war crimes.
rapid and irreversible decline in his or her state of
health resulting in intense suffering or to a significant 119. When committed in an international armed conflict,
reduction in life expectancy”, this would raise issues of torture and some forms of ill-treatment also
ill-treatment. 197 Additionally, the Court found that the constitute war crimes under customary international
collective or individual expulsion of asylum seekers to humanitarian law. In Prosecutor v. Duško Tadić, the
countries with known procedural shortcomings in their International Tribunal for the Former Yugoslavia found
asylum systems amounted to a violation of article 3 that war crimes could be committed whether the armed
of the European Convention on Human Rights. 198 conflict was international or non-international. 200
The international criminal tribunals and others have
stated that all parties to any armed conflict – whether
C. International humanitarian law international or “not of an international character”
and whether fighting on behalf of a State or on behalf
117. The international treaties and customary law of a non-State armed group – are bound by the
rules governing armed conflict are also known as absolute prohibition of torture and ill-treatment. 201
international humanitarian law, the laws of war or
the law of armed conflict; and they unequivocally 120. Article 3, common to all four Geneva Conventions
prohibit torture and ill-treatment in all situations of (common article 3), applies to armed conflicts “not
armed conflict. 199 The four Geneva Conventions of of an international character”, the term not being
12 August 1949 establish rules for the conduct of further clarified, and core obligations must be
armed conflict and, especially, for the treatment of respected by all parties in all armed conflicts; this
persons who do not, or who no longer, take part in is generally understood to mean that, no matter
hostilities, including the wounded, the captured and what the nature of an armed conflict, certain basic
civilians. All four conventions prohibit the infliction of rules of humanity cannot be abrogated. 202 The
torture and ill-treatment, and the prohibition against prohibition of torture and ill-treatment is one of these
torture extends extraterritorially for the purpose of and is common to international humanitarian law
protecting individuals in armed conflict wherever and human rights law. Common article 3 states:
it occurs, regardless of whether an armed conflict
is acknowledged or declared by the belligerents. the following acts are and shall remain prohibited
at any time and in any place whatsoever … (a)
violence to life and person, in particular murder

195 Human Rights Committee, general comment No. 20 (1992), para. 9. See also Human Rights Committee, Hashi and S.A.A. v. Denmark (CCPR/C/120/D/2470/2014),
para. 9.3.
196 Inter-American Court of Human Rights, Pacheco Tineo Family v. Plurinational State of Bolivia, Judgment, 25 November 2013, para. 199.
197 European Court of Human Rights, Paposhvili v Belgium, application No. 41738/10, Judgment, 13 December 2016, para. 183.
198 European Court of Human Rights, Sharifi and Others v. Italy and Greece, application No. 16643/09, Judgment, 21 October 2014, paras. 240–243 (official version
available in French); and M.S.S. v. Belgium and Greece, application No. 30696/09, Judgment, 21 January 2011, paras. 192 and 344–361.
199 For additional information on the rules of customary international humanitarian law, see International Committee of the Red Cross, Customary IHL Database. Available at
https://ihl-databases.icrc.org/customary-ihl/eng/docs/home.
200 International Tribunal for the Former Yugoslavia, Prosecutor v. Duško Tadić, Case No. IT-94-1, Decision, 2 October 1995, para. 94.
201 A/HRC/34/54, paras. 44–48.
202 Jelena Pejic, “The protective scope of common article 3: more than meets the eye”, International Review of the Red Cross, vol. 93, No. 881 (March 2011), pp. 214–216.

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