“Ill treatment” is a much broader legal category than “torture and other cruel, inhuman, or degrading treatment or punishment.” Ill treatment is prohibited by Common Article 3 to the four 1949 Geneva Conventions and by various human rights conventions. These texts also set forth the fundamental guarantees accorded to individuals. ▸ Fundamental guarantees ▸ Torture
- The Geneva Conventions stipulate that, in times of conflict, States Parties to the Conventions are under the obligation to treat all protected persons humanely and spell out the content of such obligations. They do not specifically define “humane treatment” or “ill treatment” as such, but they list practices and treatment that is forbidden with regard to protected persons: sick, wounded, shipwrecked, prisoners, civilians.
- The prohibition on ill treatment of these persons is reinforced by obligations to enact concrete measures to protect those who are in their hands. This obligation is strengthened for prisoners and detained persons, as well as for populations of occupied territories.
- Depending on the nature and severity of the ill treatment, those responsible for such acts, as well as their superiors, may face disciplinary or penal sanctions for violation of the Geneva Conventions.
- Where ill treatment qualifies as torture or inhuman and degrading treatment, it amounts to a grave breach of the Geneva Conventions; such ill treatment is a war crime that may be prosecuted in an international criminal forum (GCI Art. 50, GCII Art. 51, GCIII Art. 130, GCIV Art. 147).
War crimes/Crimes against humanity; Torture
- Parties to a conflict undertake the obligation to treat humanely all protected persons, without any adverse distinction founded on race, color, religion or faith, sex, birth, or wealth, or any other similar criteria (GCI–IV Common Art. 3).
- This obligation applies to the following groups: wounded and sick (GCI Art. 15, GCII Art. 18), shipwrecked (GCII Art. 18), prisoners of war (GCIII Arts. 13, 17), and civilians (GCIV Arts. 27, 28) for international and non-international armed conflicts (APII Art. 4).
The party to the conflict, in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility that may be incurred (GCIV Art. 29).
- The parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war, but must respect the following obligations:
—Protected persons are entitled to, in all circumstances, respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be treated humanely, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity (GCIV Art. 27, APII Art. 4).
—The wounded and sick must be protected against pillage and ill treatment and must receive adequate care (GCI Art. 15, GCII Art. 18).
—Women should be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault (GCIV Art. 27). The Additional Protocols extend this protection to both men and women (APII Art. 4; API Arts. 75.2, 76) and to all detained persons in addition to prisoners of war (GCIII Art. 14).
—Children must be provided with the care and aid they require (APII Art. 4).
- In situations of detention or internment, the Geneva Conventions further clarify the notion of ill treatment and establish additional obligations in terms of protection during questioning (GCIII Art. 17, GCIV Art. 31) and conditions of detention (GCIV Arts. 100 and 118).
—Prisoners of war must be humanely treated. They must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity (GCIII Art. 13). Any unlawful act or omission by the detaining power causing death or serious danger to the health of a prisoner of war in its custody is prohibited and is regarded as a serious breach of the Geneva Convention (war crime).
—Prisoners of war who refuse to answer questions may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind (GCIII Art. 17). Detention facilities must guarantee security, hygiene, and a healthy environment and must not be used as a human shield during military operations (GCIII Arts. 22, 23). The disciplinary regime in places of internment shall be consistent with humanitarian principles and shall in no circumstances include regulations imposing on internees any physical exertion dangerous to their health or involving physical or moral victimization (GCIV Art. 100). The following acts are expressly prohibited: tattooing or imprinting signs or markings on the body for the sake of identification, prolonged standing and roll calls, punishment drills, military drills and maneuvers, and the reduction of food rations (GCIV Art. 100), as well as imprisonment in premises without daylight and, “in general, all forms of cruelty without exception” (GCIV Art. 118).
Strictly Prohibited Acts
The following acts, in particular, are and remain strictly prohibited at any time and in any place whatsoever with respect to those persons who do not directly participate in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat , sick, wounded, and detained (GCI–IV Common Art. 3), as well as civilians (GCIV Arts. 27, 31, and 32):
- violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture;
- taking of hostages;
- outrages upon personal dignity, in particular humiliating and degrading treatment;
- the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees that are recognized as indispensable by civilized peoples (GCI–IV Common Art. 3).
With regard to the various categories of protected persons, the Geneva Conventions prohibit the following:
- Any measure of such a character as to cause the physical suffering or extermination of protected persons. This prohibition applies not only to murder, torture, corporal punishments, mutilation, and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents (GCIV Art. 32).
- No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage as well as reprisals against protected persons and their property are prohibited (GCIV Art. 33).
- No physical or mental torture, nor any other form of coercion, may be inflicted on protected persons—civilians or prisoners of war, in particular—to secure from them information of any kind whatsoever (GCIII Art. 17, GCIV Art. 31).
- In non-international armed conflicts, these acts are also considered as ill treatment and thus strictly prohibited: corporal punishment; collective punishments; taking of hostages; acts of terrorism; outrages upon personal dignity; humiliating and degrading treatment; rape; enforced prostitution and any form of indecent assault; slavery and the slave trade in all its forms; pillage; threats to commit any of these acts (APII Art. 4).
With regard to the wounded, sick, prisoners of war, and detainees, the Geneva Conventions prohibit any attempts upon their lives or violence to their persons; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments; they will not willfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created (GCI Art. 12, GCII Art. 12, GCIII Art. 13).
Techniques for Questioning and Ill Treatment
Extracts from a 2003 confidential report by the ICRC on the treatment of prisoners by coalition forces in Abu Ghraib prison in Iraq were published by the Wall Street Journal on its website in May 2004. The report explained some of the elements of the concept of ill treatment with regard to violations of humanitarian law. This case concerned the following acts:
- brutality during arrest and during the early phase of the detention, in some instances leading to death or serious injury;
- physical or psychological brutal treatment during intelligence interrogations;
- prolonged secret detention in total darkness;
- detention in dangerous places, unprotected from bombardments.
Ill treatment during intelligence interrogations included insults, threats, humiliation, and physical or psychological brutal treatment and was in some cases tantamount to torture in order to obtain confessions and extract information.
The secret detention, lasting several months after arrest, in cells kept in total darkness for almost twenty-three hours a day, constituted a violation of Geneva Conventions III and IV. The ICRC deplored disproportionate use of force by some authorities, in particular the use of firearms against inmates where less extreme measures could have been used to obtain similar results.
Accordingly, it was possible to consider unlawful such harsh interrogation methods. These methods aimed to increase the stress and anxiety of detainees in order to facilitate intelligence interrogation. They included blindfolding the inmates by having them wear hoods for lengthy periods—sometimes the prisoner was beaten and threatened while unable to anticipate the beatings, due to the hood. They also included threats against the family of inmates, complete nudity imposed for several days in empty cells in total darkness, sexual humiliation, lack of sleep, and intelligence interrogation for more than twenty-four hours at a time.
In 1999, a judgment by the Supreme Court of Israel reviewed the techniques for questioning. The Court decided that the use of “moderate physical pressure” by the General Security Service (GSS) was illegal even when the GSS was seeking information that may have prevented attacks, as it violated the dignity of detainees. The Supreme Court rejected the State’s interpretation of the GSS’s work and argued that the use of physical force cannot be justified on the basis of necessity (Supreme Court of Israel, The Public Committee against Torture in Israel v. the State of Israel , HCJ 5100/94, 26 May 1999, paras. 35–37).
In situations of armed conflict, the prohibition of ill treatment is broader than the prohibition of torture and cruel, inhuman, or degrading treatments. Some practices that may not amount to torture are prohibited as they amount to grave breaches of the Geneva Conventions.
The International Convention against Torture also prohibits cruel, inhuman, or degrading treatments at all times. ▸ Torture
▸ Children ▸ Corporal punishment ▸ Detention ▸ Discrimination ▸ Fundamental guarantees ▸ Judicial guarantees ▸ Occupied territory ▸ Persecution ▸ Prisoners of war ▸ Rape ▸ Red Cross and the Red Crescent ▸ Torture ▸ War crimes/Crimes against humanity
For Additional Information: British Medical Association. The Medical Profession and Human Rights: Handbook for a Changing Agenda . London: Zed in association with BMA, 2001, chap. 4.
Rodley, Nigel S. The Treatment of Prisoners under International Law . Oxford: Clarendon Press, 1999.