Torture in armed conflicts: incrimination and international criminal responsibility

URL: https://dspace.academy.police.md/torture-in-armed-conflicts-incrimination-and-international-criminal-responsibility/

Data: 2026

This study analyzes the evolution and consolidation of the international legal framework concerning the criminalization of torture in the context of armed conflicts, highlighting its status as a peremptory norm of international law (jus cogens) and its implications for international criminal responsibility. The research begins with the early regulations established by the Hague Conventions of 1907, which set the first legal limits on the conduct of belligerents, and continues with the significant developments introduced by the Geneva Conventions of 1949 and the Additional Protocols of 1977, which explicitly enshrined the absolute prohibition of torture and inhuman treatment. The article systematically examines the recognition of torture as an international crime in modern legal instruments, particularly in the Rome Statute of the International Criminal Court, where it is classified both as a war crime, when committed in connection with an armed conflict, and as a crime against humanity, when it forms part of a widespread or systematic attack directed against a civilian population. In this regard, the dual legal regime of incrimination is emphasized, as well as the constitutive elements of the offense, including specific intent and the purposes pursued (such as obtaining information, punishment, intimidation, or discrimination). Furthermore, the study pays particular attention to the mechanisms for engaging international criminal responsibility, analyzing the role of ad hoc international criminal tribunals (such as the International Criminal Tribunal for the former Yugoslavia and the one for Rwanda) in the development of relevant jurisprudence, as well as the contribution of the International Criminal Court to the consolidation of applicable legal standards. Fundamental principles such as individual criminal responsibility, the non-applicability of statutes of limitation to international crimes, and the inadmissibility of invoking superior orders as a justification for torture are also highlighted. At the contemporary level, the article identifies several major challenges affecting the effective enforcement of international legal norms. These include the jurisdictional limitations of the International Criminal Court, determined by the principle of complementarity and by the refusal of certain states to ratify the Rome Statute, as well as practical difficulties in evidence collection and the execution of arrest warrants. At the same time, the study examines political pressures exerted by powerful states, which may affect the independence and functioning of international criminal justice mechanisms. In conclusion, the study reveals a significant gap between international legal norms, which establish the absolute prohibition of torture, and the practical reality of their enforcement. Although the normative framework is well-developed and coherent, its effectiveness is limited by political, institutional, and operational factors, thereby undermining, to a certain extent, the fundamental objective of international criminal law: the prevention and punishment of the most serious violations of fundamental human rights.