courts and consider victims’ claims for reparation, regardless of where the crimes are committed.
6.2 CRIMINALIZING TORTURE AND OTHER ACTS OF ILL-TREATMENT IN DOMESTIC LAW Key points: • States must ensure that torture is defined effectively as a specific, separate offence under domestic criminal law, in line with Article 1(1) of the Convention against Torture. • Assistance and participation in torture, including forms of command and superior responsibility, and attempts to commit torture should also be made offences under domestic law. • Domestic law must criminalize war crimes and crimes against humanity involving torture. • Other acts of ill-treatment should be criminalized under domestic law. • States should exercise universal jurisdiction over torture, as well as other forms of ill-treatment that are crimes under international law. • Domestic criminal law must reflect that torture is never justified. • Inappropriate defences such as “necessity” or “superior orders” must be prohibited. • No time limits can be imposed for bringing those responsible for torture and other acts of ill-treatment to justice. • Amnesties and immunities from prosecution for torture and other acts of ill-treatment should be not granted. • The penalty for committing torture and other acts of ill-treatment must be proportionate to the grave nature of the act and to penalties imposed under domestic law for similar offences. The death penalty, life imprisonment without the possibility of parole and corporal punishment should not be imposed as forms of punishment for crimes of torture.
6.2.1 CRIMINALIZING TORTURE AS A DISTINCT CRIME IN DOMESTIC CRIMINAL LAW Defining torture as a distinct crime under domestic law is essential in combating the use of torture and other ill-treatment.4 Article 4 of the Convention against Torture states: “1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”5
4 5
CAT General Comment 2, §11. Article 4 of the Convention against Torture.
Combating torture and other ill-treatment
265