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Crime of Torture and the International Criminal Tribunals

NCJ Number
Case Western Reserve Journal of International Law Volume: 37 Issue: 2 & 3 Dated: 2006 Pages: 349-364
William A. Schabas
Date Published
16 pages
This article analyzes the ways in which torture has been defined and handled by international criminal tribunals.
The analysis indicates that while the practice of torture remains widespread and is even encouraged by some democracies in the pursuit of terrorists, international criminal tribunals have taken an uncompromising position on the illegality of torture under international law. The author presents a historical account of how international tribunals have defined and reacted to acts of torture during times of war beginning with the Versailles Treaty which led to a handful of convictions for the ill-treatment of prisoners. While the Charter of the International Military Tribunal did not explicitly refer to “torture,” there were references to the illegality of torture throughout the Tribunal, which was issued in 1946. Language specifically defining torture as a crime against humanity began to appear in international criminal tribunals around the world and by 1995, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia had determined that crimes against humanity could be committed during times of war and peace. In 1998, the Rome Statute of the International Criminal Court included torture as a crime against humanity and less than 2 months later the International Criminal Tribunal for Rwanda issued a landmark judgment convicting the mayor of the crime against humanity of torture for his interrogation techniques. This Tribunal also held that acts of torture could also be addressed under the crime of genocide. Other Tribunals and Trial Chambers have rejected defense arguments that torture should be confined to “acts committed in pursuit of a limited list of prohibited purposes.” While some Criminal Tribunals have taken a broad approach to torture, others have ruled that torture intended to humiliate victims does not fall within the Tribunal’s subject matter jurisdiction because it is not specifically mentioned in international instruments prohibiting torture. Later Tribunals, however, argued that psychological mistreatment may indeed be considered torture. Footnotes