(5) E. g. Amnesty Report at 234. (6) E. g., id. at 151-152, and generally at p. 241. (7) E. g., id. at 188-189 and Chicago Comm'n of Inquiry into Status of (8) E. g., id. at 215, 217 218. (9) E. g., id. at 34. (10) Id. at 67-68. See also, P. Deely, Beyond Breaking Point: A Study of (11) Amnesty Report at 55. (12) Id. at 41-55. (13) See, supra note 10. (15) Amnesty Report at 58-62. (16) Id. at 63-68. 28-065 0 - 90 - 6 SECTION V Examination of Existing Legal Prescriptions The status of torture under contemporary international law is determined by reference to the four generally recognized sources of international law: treaties, custom, general principles of international law as recognized by all civilized nations, and the writings of noted publicists (1). Inquiry into the jurisprudence of both national and international tribunals is also valuable since judicial decisions reflect analysis of the source of law, applicable to their tribunals, by those officially qualified to do so... judges. 1.- Treaties governing armed conflict The Geneva Conventions of 1949 proscribe torture in their common article 3 categorizing it as a grave breach (2) and listing the specific prohibitions (3). In addition, the Additional Protocols to the Geneva Conventions reinforce these prohibitions. Article 11 of Protocol I and Article 5, Paragraph 2 (e) of Protocol II prohibit interference with the health or mental or physical integrity of persons interned, detained or deprived or liberty (4). Articles 6 and 7 of Protocol II, governing penal prosecutions and protection and care respectively, are of particular interest. Although the applicability of the Conventions is limited to contexts of armed conflict, the conflict need not be international in character (5). It is unclear what degree or character of domestic violence constitutes « armed conflict » and therefore brings the Conventions into effect (6), but the degree of protection beyond such minimum standards as freedom from torture depends, in certain circumstances on the modus operandi of the non-governmental side of the struggle, in such matters as uniforms, openly carrying arms and the like (7). Thus, in connection with an armed conflict, signatories to the Geneva Conventions (8) are prohibited from any acts constituting torture against any nationals not their own, whether innocent civilians, prisoners of war, or persons acting on behalf of an opposing armed force not qualifying as prisoners of war, such as spies or saboteurs. 2. - Treaties not restricted to armed conflicts a) Universal treaties i) The United Nations Charter and the Universal Decla ration on Human Rights The Charter of the United Nations contains a number of references to human rights (9) but only in the most general of terms, so that the duties of the members as signatories of the Charter are vague when reference is had only to the Charter itself. Much clearer is the language of the Universal Declaration of Human Rights (10), which was procedurally born as a resolution of the General Assembly of the United Nations. Unlike other General Assembly resolutions, however, the Universal Declaration has been interpreted as having a binding effect because its principles have achieved such a degree of acceptance that they now constitute general principles of international law recognized by all civilized nations (11). The Declaration's prohibition is in Article 5, which states, « No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment »>. ii) International Covenant on Civil and Political Rights Only slightly less universal is the International Covenant on Civil and Political Rights (12), which exists not only as a General Assembly resolution, but also as an international agreement. Its Article 7, states: « No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation ». Clearly binding upon its signatories, the Covenant may have some legal effect on conduct of non-signatories who are members of the United Nations, due to its dual status as both convention and resolution (13). b. - Regional Treaties i) Europe Open to signature by all members of the Council of Europe, the Convention for the Protection of Human Rights and Fundamental Freedoms (14) states in Article 3, « No one shall be subjected to torture or to inhuman or degrading treatment or punishment ». This prohibition is clearly binding on signatories (15). ii) Americas The American Convention on Human Rights (16), open to signature by members of the Organization of American States, prohibits torture in much the same language in its Article 5, section 2; << No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person ». This prohibition is also clearly binding on its signatories (17). 3. - Assessment of Treaty Prescriptions a. Clarity on what is proscribed Although << torture is forbidden under the Geneva Conventions and additional protocols to them, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the European and American Covenant on Civil and Political Rights, and the European and American human rights conventions, none of these instruments provides a definition of 'torture' » (18). As discussed above, under Section III; the concept of torture is sufficiently clear for there to be general agreement that certain conduct constitutes torture, yet sufficiently relative that other acts may be regarded in different ways by different observers or legal systems. Thus, the absence of a definition of torture in these instruments is certainly unfortunate, unless some amplification of the meaning of the term can be found in other sources of international law. i) Those Regulating Armed Conflicts The prohibition in the Geneva Conventions of 1949 against torture may be loosely said to apply to armed conflicts. However, the concept of what constitutes an armed conflict is not easily delimited, and the Conventions themselves leave the term without clear definition. The Additional Protocols contain more specific language, making such provisions applicable in all struggles for self-determination (19), but also apparently restricting their application in other conflicts not involving two or more states, by requiring that the non-state forces control identifiable territory and possess an organization sufficiently sophisticated to implement the Conventions (20). Thus, the scope of application of the Geneva Conventions can be defined only with reference to two rather vague concepts: wars of self-determination and control of territory by insurgents. The former is often clear, but in such cases as secessionist struggles, it is often difficult to apply. The latter may be difficult to apply where insurgent activity is clandestine and insurgent territory is more readily identified by absence of government forces than by the manifest presence of insurgents. It has been urged that, with respect to the provisions of the Geneva Conventions prohibiting torture and other inhumane acts, that applicability should be presumed, because no harm will result from their observance to the party doing so. However, so long as governments regard torture as a useful tool for breaking the envelope of secrecy protecting insurgent activities, such governments will doubtless regard loss of this tool as harmful, and will take advantage of the vagueness of terminology in the Conventions and Protocols to argue against applicability of their anti-torture provisions whenever possible. ii) Other treaties Other international conventions regarding human rights are of general application and derogations from their standards are possible only where other provisions specifically permit them. Thus, when Greek military rulers claimed that instability in Greece necessitated certain restrictions on human rights, they cited language in the European Convention permitting derogation in such circumstances (21). With regard to torture, however, derogation would seem impermissable in all circumstances, and the likelihood that such a rule would be pronounced by the European Court doubtless contributed to the decision of Greece to withdraw from the Convention before the adjudication of charges of torture against it was completed. The same would apparently be true of other human rights instruments, but withdrawal of some of the procedural guarantees of human rights would apparently be permissable in cases of national emergency, and such withdrawal would make detenction of torture more difficult while creating greater opportunities for it to occur. 1.- Custom relating to armed conflicts Custom, as a source of international law, must be regarded as distinct from treaties or general principles of international law recognized by civilized nations. However, the existence of a custom is frequently demonstrated by reference to treaties or such general principles. The distinction to be preserved is that custom consists in a course of conduct pursued for a significant time based on a belief that such conduct is required as a matter of law. Thus a state may refrain from torture simply because it has no occasion to use it, or it may sign a treaty denouncing or proscribing torture, or it may express its intent never to resort to torture. However, none of these establishes a customary prescription against torture unless there is the added factor that the state in question believed its actions were required as a matter of international law (22). This point merits repetition because it is crucial in establishing the difference in significance between the Geneva Conventions, discussed in A (1) above, and the Hague Conventions (23), which are pertinent to custom. The former, which have been characterized as « humanitarian law » (24) rely |