Notes taken from materials and transcripts provided by the Université catholique de Louvain.

What happens when international rules conflict?

  • In Sawhoyamaxa Indigenous Community Paraguay asserted in the Inter-American Court of Human Rights that it could not give effect to the community’s right to property over ancestral lands because they now belonged to a German investor who was protected by a bilateral investment treaty.
    • This was dismissed because:
      • the investment treaty allowed capital investments to be nationalised for a public purpose or interest, and
      • enforcement of bilateral commercial treaties does not vindicate non-compliance with state obligations under the Convention; enforcement must always be compatible with the Convention.
  • The IACtHR confirmed the primacy of Paraguay’s obligations under the American Convention on Human Rights, but this does not reflect the general approach to international human rights law.
  • Human rights courts tend to interpret human rights instruments in a way that takes into account other international obligations.
    • They do not treat human rights instruments ‘in a vacuum’: Al-Adsani v the United Kingdom (European Court of Human Rights, Grand Chamber, Application No 35763/97, 21 November 2001) [55].
      • The European Convention on Human Rights is interpreted in harmony with other rules of international law.
  • The Vienna Convention on the Law of Treaties art 31.3(c) states that account is to be taken of any relevant rules of international law applicable in the relations between the parties.
  • VCLT art 53 states that any treaty that is in violation of a jus cogen rule at the time of its conclusion is considered void.
    • Jus cogen rules are norms ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’: art 53.
      • This set of norms is in permanent evolution, reflecting the ‘conscience’ of the international community.
  • There is a debate as to which human rights are jus cogens norms:
    • At a minimum it includes:
      • the prohibition of aggression, slavery and the slave trade, and genocide: Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (ICJ, Jurisdiction and Admissibility, 2006),
      • the prohibition of racial discrimination, apartheid and torture: Prosecutor v Furundzija (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, 10 December 1998),
      • the basic rules of international humanitarian law applicable in armed conflict and the right to self-determination: Official Records of the General Assembly, 56th Session, Supplement 10 (A/56/10).
    • It may be argued that all human rights impose a duty not to conclude treaties that would violate them.
  • Human rights are referred to in multiple places in the UN Charter as a fundamental objective of the organisation.
    • Art 103 states that: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’
    • A majority of the legal doctrine maintains that a duty to comply with the rights in the UDHR is imposed by the Charter on its members.

The consequences of the jus cogens status of human rights obligations

  • At least a core set of human rights norms (perhaps as broad as the entirety of the UDHR) are jus cogens norms.
    • These are binding on all states and cannot be escaped by treaty.

Prosecutor v Furundžija

Summary of Prosecutor v Furundžija (Trial Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-95-17/1, 10 December 1998) [147]–[157].

  • ‘There exists today universal revulsion against torture: … “the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind”’: Filartiga v Peña-Irala, 630 F 2d 876 (2nd Cir, 1980).
  • Revulsion to torture and the importance States place on its eradication have led to a cluster of treaty and customary rules acquiring high status in the international normative system.
    • This status is similar to that of the prohibitions on genocide, slavery, racial discrimination, aggression, the acquisition of territory by force, and the forcible suppression of the right to self-determination.
  • The prohibition against torture has three features that are probably held in common with other general principles protecting fundamental human rights.
  • The prohibition against torture covers even potential breaches:
    • States are obliged to prohibit, punish and forestall the occurence of torture.
    • ‘It is not normally for the [European] Convention [on Human Rights] institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision … would be contrary to Article 3 [prohibiting torture and inhuman or degrading treatment] … a departure from this principle is necessary’: Soering v United Kingdom (1989) 161 ECHR (ser A) [90].
    • International law prohibits torture but also:
      • the failure to adopt the national measures necessary for implementing the prohibition, and
      • the maintenance in force or passage of laws which are contrary to the prohibition.
    • States normally comply with obligations under treaties and customary international law by adopting legislative and administrative measures necessary for their implementation.
      • Failure to pass implementing legislation generally has only a potential effect: the wrongful fact occurs when administrative or judicial measures are taken contrary to international rules due to the lack of implementing legislation, generating State responsibility.
      • In the case of torture, instituting domestic implementation measures is an integral part of the obligations and States must immediately set in motion the procedures and measures that make it possible for them to forestall or halt any torture.
    • Normally maintaining or passing legislation inconsistent with international rules will only generate State responsibility when it is concretely applied: Mariposa Development Company v Panama (Decision) (1933) 6 RIAA 338, 340–1; German Settlers in Upper Silesia (Advisory Opinion) [1923] PCIJ (ser B) No 6, 19–20; Impôt sur les bénéfices de guerre (France v Spain) (1922) 1 RIAA 301, 302–5.
      • In the case of torture, merely keeping in force or passing legislation contrary to the prohibition generates State responsibility; it is imperative to preclude any national legislative act authorising or condoning torture, or capable of bringing about that effect.
  • The prohibition against torture imposes obligations erga omnes:
    • The obligations are owed to all other members of the international community, each of which has a correlative right.
    • Violation of the prohibition constitutes a breach of the correlative right of all members, and gies each member the right to insist on fulfilment of the obligation or call for the breach to be discontinued.
    • International bodies charged with monitoring compliance have priority over individual States in establishing compliance and calling for the fulfilment of international obligations; this makes it possible for compliance to be ensured in a neutral and impartial manner.
  • The prohibition against torture has acquired the status of jus cogens:
    • It has evolved into a peremptory norm of international law; it enjoys a higher rank than treaty law and ‘ordinary’ customary rules: Human Rights Committee, General Comment 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 52nd sess, 1382nd mtg, UN Docs CCPR/C/21, Rev.1 and Add.6 (4 November 1994) [10]; P Kooijmans, Special Rapporteur, Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc E/CN.4/1986/15 (19 February 1986) 1 [3]; see also De Blake v Argentina, 965 F 2d 699 (9th Cir, 1992); Argentina v De Blake, 507 US 1017 (1993); Committee of US Citizens Living in Nicaragua v Reagan, 859 F 2d 929, 949 (DC Cir, 1988); Xuncax v Gramajo, 886 F Supp 162 (D Mass, 1995); Cabiri v Assasie-Gyimah, 921 F Supp 1189 (SD NY, 1996); Re Estate of Marcos, 978 F 2d 493 (9th Cir, 1992); Manto v Thajane, 508 US 972 (1993).
    • The prohibition cannot be derogated from by treaties, local or special customs, or general customary rules of lesser force.
    • It is one of the most fundamental standards of the international community, from which nobody must deviate.
    • This de-legitimises any legislative, administrative or judicial act that authorises torture.
    • Perpetrators of torture acting upon or benefiting from national measures may be held criminally responsible for torture, whether in a foreign State or in their own State under a subsequent regime — ‘individuals have international duties which transcend the national obligations of obedience imposed by the individual State’: Trial of German Major War Criminals (International Military Tribunal for Germany, 1 October 1946).
    • A consequence of its jus cogens character is that every State is entitled to investigate, prosecute, punish or extradite individuals accused of torture who are present within its territorial jurisdiction.
      • States have universal jurisdiction over torture due to the universal nature of the crime.
      • Torture may not be covered by a statute of limitations and cannot be excluded from extradition under any political offence exemption.

R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet Ugarte [No 3]

Summary of R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet Ugarte [No 3] [2000] AC 147 (Lord Browne-Wilkinson) (‘Pinochet [No 3]’)

  • Generally a state only exercises criminal jurisdiction over offences committed within its geographical boundaries.
    • If person alleged to have committed a crime in Spain is found in the United Kingdom, Spain can apply for extradition.
      • The power to extradite for ‘extradition crimes’ is granted under the Extradition Act 1989 (UK) c 33.
      • ‘Extradition crimes’ are crimes where the offending conduct is a crime in both jurisdictions (dual or double criminality rule).
  • Since the Nuremberg Trials international law has recognised ‘international crimes’.
    • Individual states have taken jurisdiction to try certain crimes committed outside their geographical boundaries.
  • In Pinochet [No 3] the relevant international crime was torture, regulated by the 1984 International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
    • These obligations were incorporated in the UK by section 134 of the Criminal Justice Act 1988 (UK) c 33.
  • Criminal Justice Act 1988 (Cth) c 33, s 134 created a new crime in British law — the crime of torture.
    • The Act commenced on 29 September 1988.
    • As required by the Convention, all torture, regardless of where it was committed, was made criminal under British law and could be tried there.
    • ‘No one has suggested that before section 134 came into effect torture committed outside the United Kingdom was a crime under United Kingdom law. Nor is it suggested that section 134 was retrospective so as to make torture committed outside the United Kingdom before 29 September 1988 a United Kingdom crime.’
    • The principle of double criminality cannot be satisfied in relation to conduct before the commencement date.
  • Most of the charges relied on to extradite Pinochet related to conduct occurring before 1988, and were not extradition crimes.
    • Torture committed outside the United Kingdom before 29 September 1988 is not a crime under British law.
  • The main question in the case was whether a former head of state is entitled to sovereign immunity from arrest or prosecution in the UK for acts of torture.
    • Even despite the exclusion of many charges under the double criminality rule, the question was important.
      • The Home Secretary would be able to extradite Pinochet to Spain unless Pinochet was entitled to state immunity.
  • ‘Apart from the law of piracy, the concept of personal liability under international law for international crimes is of comparatively modern growth.’
    • The traditional subjects of international law are states.
    • After WWII the international community recognised criminal liability for crimes such as war crimes and crimes against humanity.
    • In the early years, state torture was an element of a war crime, but it has since been divorced from war or hostilities and become a crime of its own.
    • Since 1945 torture on a large scale has features as a crime against humanity.
  • Chile accepted before the House of Lords that the prohibition against torture is a peremptory norm of international law.
    • The jus cogens nature justifies states in taking universal jurisdiction over torture wherever committed.
    • Jus cogens offences may be punished by any state because the offenders are ‘common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution’: Demjanjuk v Petrovsky, 776 F 2d 571 (1985).
  • Prior to the 1984 Convention against Torture, state torture was an international crime, despite the absence of a tribunal or court to punish it.
    • Local courts could take jurisdiction: Demjanjuk v Petrovsky, 776 F 2d 571 (6th Cir, 1985); Attorney General (Israel) v Eichmann (1962) 36 ILRS.
    • The objective of the Convention was to ensure a general jurisdiction so that there would be no safe harbours for torturers.
  • In Pinochet [No 3] it was alleged that during the Pinochet regime torture was an official weapon of government and when the regime was about to end it passed legislation to afford amnesty to the torturers.
    • ‘the fact that the local court had jurisdiction … was nothing to the point so long as the totalitarian regime remained in power: a totalitarian regime will not permit adjudication by its own courts on its own shortcomings.’
      • A system to repress torture would need to be independent of the local courts where it was committed to be effective.
  • The 1984 Convention against Torture was not agreed to make a new international crime, but to ensure there were no places for torturers to hide.
    • Article 1 defines torture.
    • Article 2(1) requires state parties to prohibit torture on territory within their jurisdiction.
    • Article 2(3) outlaws any defence of superior orders.
    • Article 4 requires all acts of torture to be offences under domestic criminal law.
    • Article 5(1) requires state parties to establish jurisdiction over torture when:
      • committed within its territorial jurisdiction, or
      • committed by a national of that state, or
      • in certain circumstances, the victim is a national of the state party.
    • Article 5(2) requires state parties to take jurisdiction over alleged offenders found within their territory.
    • Article 6 provides for detention of an alleged torturer, inquire into the position, notify article 5(1) states, and indicate any intent to prosecute.
    • Article 7 requires a state to prosecute an alleged torturer if they are not to be extradited to an article 5(1) state.
    • Article 8(1) requires torture to be treated as an extraditable offence.
    • Article 8(4) provides that torture is treated as having been committed in the place where it occurred, as well as any article 5(1) state.
  • If the article 5(1) states do not choose to seek extradition or prosecute, other states must do so.
    • The Convention introduced the principle aut dedere aut punire — either you extradite or you punish.
  • Under the Convention, torture can only be committed by ‘a public official or other person acting in an official capacity’ — this includes a head of state.
  • A single act of torture falls within the Convention.
  • If states with jurisdiction under article 5(1) do not seek extradition, the state where the alleged torturer must prosecute or extradite to another state.
  • The Convention does not expressly deal with state immunity of heads of state, ambassadors or other officials.
  • Chile, Spain and the United Kingdom are all parties to the Convention and are bound by its provisions.
  • If Pinochet was not entitled to immunity it would be the first time that a domestic court has refused to afford immunity to a head of state on the grounds that there can be no immunity against prosecution for certain international crimes.
    • The rules of statutory immunity were agreed, but the question was whether international law grants state immunity for torture.
    • It is a basic rule of international law that sovereign states do not adjudicate on the conduct of foreign states.
      • The foreign state is entitled to procedural immunity from criminal and civil liability.
      • This extends to personal immunity of the head of state and diplomatic representatives of the foreign state.
    • At common law a former head of state loses immunity on ceasing to be head of state, and can be sued in relation to private obligations: Ex-King Farouk of Egypt v Christian Dior (1957) 24 ILR 228; Jimenez v Aristeguieta, 311 F 2d 547 (1962).
      • Former heads of state cannot be sued for acts performed in their public capacity as head of state: Hatch v Baez [1876] 7 Hun 596.
    • Pinochet would enjoy immunity in relation to acts done as head of state as part of his official functions.
      • The question was whether organisation of state torture would constitute part of his official functions as head of state.
      • Actions which are criminal under local law can still be done officially and give rise to personal immunity.
  • Can the commission of a jus cogens international crime against humanity be done in an official capacity on behalf of the state?
    • The implementation of torture as defined by the Convention cannot be a state function.
    • Before the entry into force of the Convention, the existences of the crime as jus cogens would not justify that conclusion.
      • There was no international tribunal to punish torture and no general jurisdiction to permit or require domestic punishment.
    • The Convention provided for worldwide universal jurisdiction, and required state parties to ban and outlaw torture.
    • It cannot be an official function to do something that international law itself prohibits and criminalises.
    • The Convention specifies that torture must be committed ‘by or with the acquiescence of a public official or other person acting in an official capacity’.
      • All defendants will necessarily be state officials; state immunity would allow the person most responsible to escape liability.
      • It could not have been the intention to only allow prosecution of inferior officers.
  • If the implementation of torture is a public function giving rise to personal immunity this produces bizarre results:
    • The immunity applies to all state officials who have been involved in carrying out the functions of the state.
    • Such an immunity would make it impossible to successful prosecute officials of another state without the state waiving its right to immunity of its officials.
    • The main objectives of the Convention would be completely thwarted by this situation.
  • Immunity for ex-heads of state is inconsistent with the Convention and will not be allowed for the international crime of torture.