The prohibition on torture in international human rights law seems a fairly straightforward candidate for productive use in international criminal law. The Convention against Torture contains an elaborate definition of torture and human rights institutions have developed substantial jurisprudence on the prohibition and definition of torture. Indeed, the ad hoc Tribunals and the drafters of the Rome Statute have employed the human rights law approach to torture to varying degrees. But the conception of torture reached by human rights bodies is problematic and unsuitable for usage where individual criminal responsibility is sought. It is unsuitable because the human rights law understanding of torture is subjective and victim-derived. Human rights bodies do not scrutinize intent, purpose and perpetration, central aspects of international criminal legal reasoning. The communication on torture between these bodies of law to date shows that cross-fertilisation, without detailed reasoning, is inappropriate - because rights are different to crimes.
Declaration against Torturesupra note 64 Article 1(2). This clause is a product of the drafters of the Declaration having borrowed from the European Commission’s report in the Greek Case. Given that Sweden and the Netherlands had instituted the complaint against Greece and were also heavily involved in the drafting of the Declaration the influence of the Greek Case on the Declaration against Torture is understandable. See Rodley and Pollard supra note 31 p. 83.
Burchardsupra note 59 p. 162.
Robinsonsupra note 88 p. 929.
Robinsonsupra note 88 p. 929.
Farrellsupra note 30 p. 73; C. Ingelse The un Committee Against Torture: An Assessment (Kluwer Law International The Hague 2001) p. 206.
Convention against Torturesupra note 16 Article 16(1).
Nowak and McArthursupra note 70 pp. 23 51 and 61. Despite this the Committee against Torture when dealing with individual complaints does treat Article 1 as though it contains a prohibition or offence that can be violated. For a recent example see Bendib v. Algeria 8 November 2013 cat no. cat/C/51/D/376/2009 paras. 6.3–6.3: "In the absence of any substantive refutation by the State party the Committee concludes that due weight must be given to the author’s allegations and that the facts as submitted by the complainant constitute acts of torture within the meaning of article 1 of the Convention. In the light of the above finding of a violation of Article 1 … ". Emphasis added.
Burgers and Daneliussupra note 73 p. 171. Emphasis added.
Nowak and McArthursupra note 70 p. 540.
Dewulfsupra note 12 p. 73.
Farrellsupra note 30 p. 69.
Declaration against Torturesupra note 64 Article 1(2). Given that Sweden and the Netherlands had instituted the complaint against Greece and were also heavily involved in the drafting of the Declaration the influence of the Greek Case on the Declaration against Torture was understandable. See Rodley and Pollard supra note 31 p. 83.