THE International Committee of the Red Cross (ICRC) was instrumental in developing International Humanitarian Law (IHL) and plays a role in its implementation. IHL is a body of rules which, in wartime, seeks to protect people who are not or are no longer participating in an armed conflict. It is based on the principles of the inviolability of the individual, non-discrimination and security.
The first Geneva Conventions were signed by 12 nations in 1864 and they referred to the treatment of the wounded and the protection of medical personnel and hospitals. It was revised and amended at conferences held by the ICRC in 1906, 1929 and 1949. In 1949, four Geneva Conventions were adopted dealing with the laws of war. These are: Convention I on the amelioration of the condition of the wounded and sick in armed forces in the field; Convention II on the amelioration of the condition of the wounded, sick and shipwrecked members of armed forces at sea; Convention III on the treatment of prisoners of war; and Convention IV on the protection of civilian persons in times of war.
In 1977, two additional protocols to the 1949 Geneva Conventions were adopted. These are: Protocol I relating to the protection of victims of international armed conflicts and Protocol II relating to the victims of non-international armed conflicts.
The United States and the United Kingdom have signed and ratified the Geneva Conventions of 1949 in 1955 and 1957. Hence they are bound by international law to respect the provisions of the Conventions.
Under Article 3 of the Geneva Conventions of 1949, which is common to all four Conventions and is known as Common Article 3 of the Geneva Conventions of 1949, each party to a conflict is bound to apply, as a minimum, certain provisions of the Convention: "(1) Persons taking no active part in the hostilities: including members of armed forces who have laid down their arms and those placed hors de combat (out of fight) by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, religion or faith, sex, birth or wealth, or any other similar criteria.
"To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons: a. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b. taking hostages; c. outrages upon personal dignity, in particular humiliating and degrading treatment... ."
Additional Protocol II, which refers to victims of non-international armed conflicts, expressly prohibits at any time and at any place "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any other form of indecent assault".
Torture is defined as a "... particularly barbaric violation of the right to physical and mental integrity... " Article 1 of the 1948 United Nations Convention against Torture defines torture as "acts of public officials which intentionally inflict severe physical or mental pain in order to fulfil a certain purpose, such as extortion of information or confessions or the punishment, intimidation or discrimination of the victim". Treatment that lacks the elements of this definition is called cruel, inhuman or degrading treatment or punishment, which is prohibited under Article 7 of the same Convention. Various international and regional human rights conventions have also expressly banned torture, even in emergency situations. Torture is banned under Article 10 of the International Covenant on Civil and Political Rights, which is regarded as an essential component of the International Bill of Human Rights. Article 3 of the European Convention of Human Rights, Article 5 of the American Convention of Human Rights and Article 5 of the African Charter of Human and People's Rights have banned torture.
As the distinction between torture and cruel or inhuman and degrading treatment is blurred, states are able to get away with "torture" by projecting it as a case of mere "inhuman treatment".