“I May Be Killed Any Moment” 61 Prohibition Against Torture and Other Forms of Ill-Treatment The right to be free from torture and other forms of ill-treatment is protected by treaty-based law and customary international law.315 Under the ICCPR, States are legally bound to “respect and to ensure to all individuals” the right to be free from torture and other forms of ill-treatment.316 Bangladesh, specifically, is a state party to the CAT, ICCPR, and a signatory to the UDHR, all of which—among many other applicable regimes—uphold everyone’s right to be free from torture. The U.N. Committee against Torture maintains that the absolute prohibition of torture applies to all citizens and “non-citizens” under the territory of any state party.317 The U.N. Human Rights Committee has further clarified this point, saying: Aliens thus have an inherent right to life, protected by law, and may not be arbitrarily deprived of life. They must not be subjected to torture or to cruel, inhuman or degrading treatment or punishment; nor may they be held in slavery or servitude. Aliens have the full right to liberty and security of the person.318 Torture is defined as “severe pain or suffering, whether physical or mental,” intentionally inflicted for a specific purpose, such as punishment, intimidation, or coercion, “or for any reason based on discrimination of any kind.”319 Under CAT, torture is committed “when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”320 The Rome Statute provides that torture entails the intentional infliction of severe physical or mental pain or suffering upon a person, where that person was in the perpetrator’s custody or control.321 While international tribunals have limited torture to pain or suffering inflicted for particular purposes, including to obtain information, punish, or coerce, the Rome Statute and the International Criminal Court’s (ICC) Elements of Crimes notably omit a purpose requirement.322 When discussing the severity of the pain and suffering inflicted, tribunals take into account both the objective harshness of the actions and the subjective effect on the particular victim, including “the victim’s age, sex, or state of health.”323 All surrounding circumstances are relevant, including the victim’s position of subordination, the time period of mistreatment, and the institutionalization of the mistreatment.324 Permanent injury is not necessary.325 The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the The Istanbul Protocol, includes 315 UDHR, Art. 5; ICCPR, Art. 7; CAT, Art. 1. For an in-depth discussion of torture as a violation of customary international human rights law, see Prosecutor v. Anto Furundzija, International Criminal Tribunal for the former Yugoslavia (ICTY), Case No. IT-95-17/1-T, Judgment (Trial), December 10, 1998, paras. 143–146. 316 ICCPR, Art. 21(1). See also, for example, UDHR, Art. 5; ICCPR, Art. 7; CAT, Art. 1. 317 Committee Against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, U.N. Doc. CAT/C/GC/2, January 24, 2008, para. 7. 318 Human Rights Committee, General Comment No. 15: The Position of Aliens Under the Covenant, para. 7. 319 CAT, Art 1(1). 320 Ibid. 321 Rome Statute, Art. 7(2)(e); ICC, Elements of Crimes, Art. 7(1)(f). 322 Rome Statute, Art. 7(2)(e); ICC, Elements of Crimes, Art.7(1) fn.14 (stating that “no specific purpose need be proved”). See also, Prosecutor v. Akayesu, International Criminal Tribunal for Rwanda (ICTR), Case No. ICTR-96-4-T, September 2, 1998, para. 593-94; Prosecutor v. Kunarac, Kovac, and Vukovic, ICTY, Case No. IT- 96-23-T and IT-96-23/1-T, Judgment (Trial), February 22, 2001, para. 497; Prosecutor v. Krnojelac, ICTY, IT-97-25-T, Judgement (Trial), March 15, 2002, para. 179. These purposes “need not be the predominant or sole purpose” , and the list of prohibited purposes is not exhaustive. Prosecutor v. Mucić, et al., ICTY, Case No. IT-96-21-T, Judgment (Trial), February 20, 2001, para. 470. 323 Prosecutor v. Kvocka, ICTY, Case No. IT-98-30/1-T, Judgment (Trial), November 2, 2011, para. 143. 324 Krnojelac, Case No. IT-97-25-T, para. 182. 325 Kvocka, Case No. IT-98-30/1-T, para.148.