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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
[p.221] ARTICLE 32
. -- PROHIBITION OF CORPORAL PUNISHMENT,
The principle stated in Article 27
of absolute respect for the human person might have constituted a sufficient guarantee for protected persons in itself. However, the memory of the barbaric acts of which there were only too many examples in the two world wars showed the need to strengthen this principle and to prohibit expressly all acts contrary to it.
It was for that purpose that the XVIIth International Red Cross Conference in 1948, on the suggestion of the International Committee of the Red Cross, adopted a provision prohibiting torture, corporal punishment and coercion.
Article 32 states a principle common to the four Geneva Convention, of 1949 (1).
1. ' First sentence. -- General principles '
A. ' Subject to prohibition '. -- The words "The High Contracting Parties" at the beginning of this Article cover States which by ratification or accession, have accepted the text of the Convention. They are of a more general and solemn character than the expression "the Parties to the conflict" or the "Contracting Parties" often used in the text of the Convention. They seem therefore to have been used deliberately to emphasize the fundamental nature of the provision. The intention of the authors of the Convention is also clearly shown by the way the prohibition is worded: "The High Contracting Parties specifically agree that each of them is prohibited . . ." which expresses the idea that each Contracting Party makes a formal pledge in regard to itself and to other States, and that this pledge is equally binding on those under its authority or acting in its name.
[p.222] B. ' Purpose of the prohibition '. -- The Diplomatic Conference deliberately employed the words "of such a character as to cause" instead of the formula "likely to cause" which figured in the original draft, In thus substituting a causal criterion for one of intention, the Conference aimed at extending the scope of the Article; henceforth, it is not necessary that an act should be intentional for the person committing it to be answerable for it (2). The aim is to ensure that every protected person shall receive humane treatment from the civil and military authorities. In this respect, Article 32 is as general as possible and mentions only as examples the principal types of atrocity committed during the Second World War, which should be prohibited for ever. However, it should be noted that most of the acts listed in the second sentence of this Article can only be committed with intent.
C. ' Those who benefit from the prohibition '. -- Those who benefit under Article 3
are alien or enemy civilians in the hands of a Party to the conflict.
Some delegations remarked that bombardment or bombing, which strike from a distance at individuals who are not "in the hands" of the Parties to the conflict, can cause death or entail suffering in the same way as direct cruelty. They therefore considered it preferable not to restrict the guarantee only to protected persons "in the hands" of the Parties to the conflict, but to extend it to the whole of the civilian population. The Diplomatic Conference recognized the humanitarian importance of this suggestion but considered that it was not for the Conference to adopt it since to do so would be to encroach on the sphere of the Hague Regulations concerning the Laws and Customs of War and to go beyond the intended scope of the Geneva Conventions.
In fact, problems of the law and customs of War are of a quite different nature and the words "in their hands" define exactly the purpose of this Article (3).
2. ' Second sentence. -- Prohibited acts '
A. ' Murder '. -- The word refers to any form of homicide not resulting from a capital sentence by a court of law in conformity with the provisions of the Convention.
This provision is applicable not only to cases where murder is done by civilian or military agents of one of the Parties to the conflict, [p.223] but also to cases of omission leading to death, for example, deliberate refusal to give medical care (4). The omission must be with homicidal intent. Murder as a form of reprisal, the execution of hostages and the use of euthanasia in regard to certain categories of detainees or sick persons are all covered by this definition.
The idea of "murder" may be compared With that of "extermination", in the first sentence of this Article. While murder is the denial of the right of an individual to exist, extermination refuses the same right to whole groups of human beings; it is a collective crime consisting of a number of individual murders (5).
B. ' Torture '. -- A formal distinction may be made between judicial torture to extort confessions and extrajudicial torture. Under both forms, torture is an attack on the human person which infringes fundamental human rights. Judicial torture, although it has been abolished for more than a century in all the civilized countries, has reappeared with the racial and political persecutions.
The prohibition of torture set forth in this Article is absolute; it covers all forms of torture, whether they form part of penal procedure or are quasi- or extra-judicial acts, and whatever the means employed. There need not necessarily be any attack on physical integrity since the "progress" of science has enabled the use of procedures Which, while they involve physical suffering, do not necessarily cause bodily injury.
In occupied territory, the use of judicial torture is prohibited even if the penal legislation of the occupied territory provides for it. In such a case, the Occupying Power, under Article 64, para. 1
, must repeal such laws.
Like murder, torture is one of the acts listed in Article 147
as a "grave breach". It is also prohibited by Article 3
common to all four Conventions and Article 12
Common to the first two Conventions of 1949 (6).
C. ' Corporal punishment and mutilation '. -- These expressions are sufficiently clear not to need lengthy comment. Like torture, they [p.224] are covered by the general idea of "physical suffering". Mutilation, a particularly reprehensible and heinous form of attack on the human person, is also included in the list of "grave breaches" and is mentioned formally in Article 147
among "acts wilfully causing great suffering or serious injury to body or health". Furthermore, it is expressly forbidden by Article 3
of the Convention.
D. ' Medical experiments '. -- In prohibiting medical experiments on protected persons, the Diplomatic Conference wished to abolish for ever the criminal practices from which thousands of persons suffered in the death camps of the last world war.
The Convention, however, refers only to "medical or scientific experiments not necessitated by the medical treatment of a protected person". It does not, therefore, prevent doctors using new forms of treatment for medical reasons with the sole object of improving the patient's condition. It must be permissible to use new medicaments and methods invented by science, provided that they are used only for therapeutic purposes. Protected persons must not in any circumstances be used as "guinea-pigs" for medical experiments.
"Biological experiments" are also prohibited by the other three Conventions of 1949 (7) and they are listed among the "grave breaches" in Article 147
E. ' Other measures of brutality '. -- The list of prohibited acts should not be considered as exhaustive. The wording used at the end Of the list proper gives the Article an altogether general character. This prohibition, which is similar to the one relating to "acts of violence" set forth in Article 27
(8) is intended to cover cases which, while they are not among the specifically prohibited acts, nevertheless cause suffering to protected persons. There is no need to make any distinction between such practices carried out by civilians or by military personnel; in both cases and in respect of all the acts covered by this Article, the agent and the Power for whom he acts must both bear responsibility in accordance with the provisions of Article 29
Notes: (1) [(1) p.221] See First and Second Conventions, Article 12;
Third Convention, Article 13; Article 3 common to the four
Conventions; ' Commentary, ' Vol. I, pp. 138-139;
(2) [(1) p.222] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 716-718;
(3) [(2) p.222] Ibid., Vol. II-B, pp. 407-410;
(4) [(1) p.223] See also Third Convention, Article 13, which
provides that any unlawful act or omission by the
Detaining Power causing death or seriously endangering the
health of a prisoner of war in its custody is prohibited
and will be regarded as a serious breach of the
(5) [(2) p.223] See, in this connection, the Convention for
the Prevention and Repression of Genocide of December 9,
1948, Article 2;
(6) [(3) p.223] See Article 5 of the ' Universal Declaration
of Humans Rights, ' of December 10, 1948 and Article 3 of
the ' European Convention for the Protection of Human
Rights and Fundamental Freedoms, ' of November 4, 1950,
both of which prohibit torture;
(7) [(1) p.224] With regard to the First Convention, see
' Commentary I, ' p. 189;
(8) [(2) p.224] See also Article 118, para. 2 and Article 119,