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Report No. 273

D. International Criminal Law

2.14 Torture may also constitute a "crime against humanity" or "war crime" under international criminal law, such as is specified in the Rome Statute of the International Criminal Court (Arts. 7 and 8). Thus, infliction of torture can be investigated and prosecuted by the International Criminal Court, subject to its jurisdictional limits.

2.15 The prohibition on torture also requires governments to take measures to prevent and punish torture and many States have criminalised torture in their national law. The Geneva Conventions and Convention against Torture obligate States to extradite or prosecute, those who are responsible for torture. Governments may exercise universal jurisdiction to prosecute those responsible for torture, and Member States of the International Criminal Court have an obligation to co-operate with the court in the investigation and prosecution of crimes, including torture, falling under their respective jurisdiction. In times of armed conflict, the International Committee of the Red Cross, monitors the compliance of international humanitarian law.24

2.16 The principle of non-refoulement prohibits rendering victims of persecution to their persecutor, and applies to States in the context of their extradition and immigration policies. This obligation was first enshrined in Article 33 of the United Nations Convention Relating to the Status of Refugees 1951 which provides that "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion".

This duty is reiterated in Article 3 of CAT. For example, in the United States, asylum eligibility is established by showing that the applicant has suffered or has a "well-founded fear" that he or she will suffer "persecution."25 Persecution includes activities those do not fall within the relatively narrow definition of torture.

2.18 Even if an individual is not eligible for asylum, the State may not remove him or her to a country where he or she would face a real risk of torture.

Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation Back

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