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ISTANBUL PROTOCOL I. RELEVANT INTERNATIONAL LEGAL NORMS AND STANDARDS

of all kinds, mutilation, cruel treatment and of such crimes, or as part of the crime of genocide
torture; ... (c) outrages upon personal dignity, in or as a crime against humanity, in the latter case
particular humiliating and degrading treatment. when the torture is committed knowingly as part of
a widespread or systematic attack on any civilian
121. A former Special Rapporteur on torture, Sir Nigel population. Torture as a crime against humanity is
Rodley, stated that: “The prohibition of torture or defined in the Rome Statute, within that context, as
ill-treatment could hardly be formulated in more the intentional infliction of severe pain or suffering,
absolute terms. In the words of the official commentary whether physical or mental, upon a person in the
on the text by the International Committee of the Red custody or under the control of the accused. 207
Cross (ICRC), ‘no possible loophole is left; there can
be no excuse, no attenuating circumstances’.” 203 124. Torture is not only an international crime subject
to universal jurisdiction, but has been included in
122. A further link between international the statutes of numerous international courts and
humanitarian law and human rights law is found tribunals, including the International Criminal
in the preamble to Protocol II Additional to Court, 208 the International Tribunal for the Former
the Geneva Conventions of 1949. It states that: Yugoslavia, 209 the International Criminal Tribunal for
“international instruments relating to human Rwanda 210 and the Special Court for Sierra Leone. 211
rights offer a basic protection to the human
person”. 204 According to the commentary 125. Torture was prosecuted as a war crime at both the
by ICRC to the Protocols Additional to International Tribunal for the Former Yugoslavia and
the Geneva Conventions of 1949, the term at the International Criminal Tribunal for Rwanda.
“international instruments relating to human rights” The International Criminal Tribunal for Rwanda
means in particular the International Covenant played an influential role in international criminal
on Civil and Political Rights and the Convention law, by finding, among other things, that rape could
against Torture. 205 Although international be prosecuted as torture and as an act of genocide.
humanitarian law and international human rights As the first United Nations-created war crimes court,
law are two distinct legal systems, each with its the International Tribunal for the Former Yugoslavia
own foundations and mechanisms, they apply set many precedents and affected the prosecution of
concurrently in time of armed conflict. 206 torture, particularly in relation to armed conflicts.

126. The definition of torture as a war crime used by the
D. International criminal justice International Tribunal for the Former Yugoslavia
and the International Criminal Tribunal for Rwanda
123. The Rome Statute of the International Criminal Court, diverges from the one applicable under human rights
adopted on 17 July 1998, established a permanent law on account of the specificities of international
international criminal court to try individuals humanitarian law, which make it clear that it is
responsible for genocide, crimes against humanity confined to the context of armed conflict. First, there
and war crimes, later adding the crime of aggression is no need for the involvement of a public official. 212
to the list. The International Criminal Court has This difference has been justified on the basis of the
jurisdiction over cases alleging torture as a war need to take “into consideration the specificities
crime, in particular when the torture is committed of [international humanitarian law]”. 213 Another
as part of a plan or policy or large-scale commission divergence applies specifically to the Rome Statute,

203 Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International Law, 3rd ed. (Oxford, Oxford University Press, 2009), p. 60.
204 Protocol II Additional to the Geneva Conventions of 1949, second preambular paragraph.
205 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), para. 4428.
206 Ibid., para. 4429.
207 Rome Statute of the International Criminal Court, art. 7 (2) (e).
208 Ibid.
209 Updated Statute of the International Tribunal for the Former Yugoslavia (2009), arts. 2 (b) and 5 (f).
210 Statute of the International Criminal Tribunal for Rwanda (updated in 2002), arts. 3 (f) and 4 (a).
211 Statute of the Special Court for Sierra Leone (2002), arts. 2 (f) and 3 (a).
212 International Tribunal for the Former Yugoslavia, Prosecutor v. Dragoljub Kunarac et al., Case Nos. IT-96-23-T and IT-96-23/1-T, Judgment, 22 February 2001, paras. 495–
496; and International Criminal Tribunal for Rwanda, Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgment, 15 May 2003, paras. 342–343.
213 International Tribunal for the Former Yugoslavia, Prosecutor v. Dragoljub Kunarac et al., para. 471.

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