International Human Rights Law: Institutions and Procedures · Cameroon, 1991 HRC 458 (1994): –...

Richard Hustad, Norwegian Centre for Human Rights, [email protected] © 2009, All Rights Reserved

International Human Rights Law: Institutions and Procedures (JUR5710)

Lecture 7The Freedom from Torture9 October 2009

Richard Hustad, Norwegian Centre for Human Rights, JUR5710 Lecture 7: Freedom from Torture © 2009, All Rights Reserved

Outline of Class• Focus

– Exam Responsibility: pensum (Rhona Smith’s conclusory essay)– Class: cases that explore the legal basis and reasoning of Smith’s essay

• Format– Participatory discussion– Ask questions at any time (there are no

dumb questions)– Add your ideas or comments at any

time—your views are important– Question everything (reading,

instructor, yourself)– The entire PPT will not be covered in

class (it is not meant to be)• Expected Outcome of Class

– Value added to pensum (deeper understanding)

– Understanding the legal definition of and the surrounding issues to the freedom from torture

– Importance: freedom from torture is one of the most fundamental rights

• Reminder:

In academia it is your duty to question not only others, but especially yourself. Scholarship is not about simply

reaffirming one’s own opinions, but challenging those opinions. The role of professors is to ask the questions that

lead to self-examination and self-criticism.


Non-derogability &Non-restrictiveness• CCPR, Art. 4 (2):

– ”No derogation from article […] 7 […] may be made […].”

• CCPR, General Comment 20 (3):– ”The text of article 7 allows of no limitation.”– ”[E]ven in situations of public emergency […], no derogation […] is

allowed and its provisions must remain in force.”– ”No justification or extenuating circumstances may be invoked to

excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority.”

• CAT, Art. 2 (2)– ”No exceptional circumstances whatsoever, whether a state of war

or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”


Jus in Bello as Lex Specialis?The ’War on Terror’

Does armed conflict result in the

’shelving’ of human rights obligations?


Continuous Freedom from TortureJus Cogens• Vienna Convention on the Law of Treaties, Article 53:

– "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm 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."

• Prosecutor v. Anto Furundžija, ICTY, Case IT-95-17/1-A (21 July 2000):– Prohibited by treaty dating back to the 1907 Hague Convention, including

CCPR, CAT, and Common Article 3 to the Geneva Conventions and Article 4 of Additional Protocol II.

– No State has ever publicly denounced the torture prohibition, or manifestly opposed the implementation of relevant treaty provisions.

– In the Nicaragua case (ICJ, 1986) the ICJ stated the customary law status of Article 3 common to the Geneva Conventions which prohibits torture of persons not taking part in the hostilities.


The Effect of Jus CogensNo undermining allowed by any means

“The Bush Six”: John Yoo, Jay Bybee and William J . Haynes II,David Addington, Alber to Gonzales, Doug Feith

HRC GC 20 (13): ”Those who violate ar ticle 7, whether by encouraging, order ing, tolerating or perptrating prohibited acts, must be held responsible.


Justification for the Public Good?’Torture’ that Prevents Suicide Bombings

An Israeli Bus Destroyed by a Suicide Bomber


Balancing Test for Public Good?Suresh v. Canada, 1 S.C.R. 3 (Canada, Jan 2002)

CANADIAN BALANCING TEST: “Depor tation to tor ture, for example, requires us to consider a var iety of factors, including the circumstances or conditions of the potential depor tee, the danger that

the depor tee presents to Canadians or the country’s secur ity, and the threat of ter ror ism to Canada. In contexts in which the most significant considerations are general ones, it is likely that the balance will

be struck the same way in most cases. It would be impossible to say in advance, however, that the balance will necessar ily be struck the same way in every case.”

Compare with Saadi v. Italy , ECtHR Application No. 37201/06 (28 Feb 2008), para. 138: ”it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion”

http://en.wikipedia.org/wiki/Manickavasagam_Suresh�


”The Ticking Bomb”Gafgen v. Germany, ECtHR

Magnus Gäfgen Jakob von Metzler11 Years Old


Diplomatic AssurancesAgiza v. Sweden, 2003 CAT 233 (2005)

Ahmed Agiza was deported by Sweden and transported by the United States to Egypt.


Burden of Proof

• Bailey v. Jamaica, 1996 HRC 709 (1999)– Burden of complainant to ”substantiate” he is a victim with ”details”– Dissents: Reference to reports and previous HRC view enough

details to have shifted burden to state

• Mukong v. Cameroon, 1991 HRC 458 (1994):– Rebuttable presumption on state after ”detailed information” from

complainant

• Kurt v. Turkey, ECtHR (1998):– No inference of torture, even when:

• Previous torture• General pattern of torture• Failure of state to explain disappearance or investigate


”Intentionally”Garcia v. Colombia, 1996 CAT 687 (2001)

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”Contextual Appraisal”Vuolanne v. Finland, 1987 HRC 265 (1989)

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”Public Official” ”Consent or Acquiescence”Dzemajl v. Yugoslavia, 2000 CAT 161 (2002)

The Roma distr ict in Mitrovica, Kosovo was completely destroyed in 2008


Non-refoulement

• Tala v. Sweden, 1996 CAT 43 (1996)– Must be foreseeable, real risk of torture to the individual concerned– Consistent patter of HR abuses in receiving state not enough– ”additional grounds must exist to show that the individual

concerned would be personally at risk.”

• Z.Z. v. Canada, 1996 CAT 43 (2001)– No information personal to the complainant– Membership in a minority group in a country where there is

discrimination against that group is not personal enough


Private-owned Detention CentersCabal and Bertran v. Australia, HRC (2003)

Immigration Pr ison in Texas, USA


”Mental Suffering”

• Quinteros v. Uruguay, 1981 HRC 107 (1990):– Mental anguish a violation of Article 7 when one’s child is

’disappeared’ by the state and no information is ever provided to the parent,

• Schedko v. Belarus, 1999 HRC 886 (1999):– Failure to notify family of condemned man of time of

execution or to turn over body is mental suffering.

• C. v. Australia, 1999 HRC 900 (2002):– Detention must end when it causes mental suffering.– Would this be the same for a criminal defendant?


The ”Death Row Phenomenon”

• Johnson v. Jamaica, 1994 HRC 588 (1996):– Death row is not a per se violation of Article 7– Where compelling individual circumstances, it can be a violation in

that particular case (para. 8.5)

• Francis v. Jamaica, 1994 HRC 606:– Each case on own merits– Failure to issue written judgment over 13 years– Complainant personally experienced mental health issues and

beatings

• Clive Johnson v. Jamaica, 1994 HRC 592:– Any time on death row for an underaged person is a violation


Method of ExecutionTest: ”Least possible physical and mental suffering”

• Ng v. Canada, 1991 HRC 469 (1994):– Death by cyanide gas asphyxiation a violation of Article 7

• Cox v. Canada, 1993 HRC 539:– Lethal injection not a violation

• Concluding Observations on Iran (1993):– Public execution a violation (probably degrading)


Method of ExecutionThe Case of Julio Alberto Poch & ”Death Flights”


Corporal PunishmentHigginson v. Jamaica, 1998 HRC 792 (2002)


Is this torture?

On 19 April 1995, a state official cut off Daina Bradley’s leg using a pocket knife and without any anesthesia.

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Are these torture, cruel, inhuman or degrading?• Hazing of college students• Domestic violence against women• Polygamy• Female genital mutilation (FGM)• Sati


© 2009• This presentation is the copyright of Richard Hustad.• All rights are reserved. There is no claim to any of the photographs, illustrations, or

quotations—all of which are either in the public domain or are a fair use exception to copyright protection for educational purposes.

• Except for the quotation of short passages for the purposes of criticsm and review, no part of this publication may be represented, reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the author.

• Permission is expressly granted for educational or any other not-for-profit purpose as long as credit is attributed according to contemporary methods and the author is notified in writing. The author retains the right to revoke this grant at any time, retaining sole discretion to do so.

• (This presentation has been created solely for educational purposes and reflects the research on and conceptualization of the topic by the author. The copyright claim is exerted primarily to prevent other lecturers from presenting this PPT as their own work.)

Contact Info:

Richard HustadPhone: 22 84 20 58

E-mail: [email protected]: Norwegian Centre for Human Rights, Room 344

International Human Rights Law: Institutions and Procedures · Cameroon, 1991 HRC 458 (1994): –...

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