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Home Archive for category "Torture" (Page 3)

Jones v. UK: A Disappointing End

Published on January 16, 2014        Author: 

Lorna McGregor is the Director of the Human Rights Centre and Reader in Law at the University of Essex.  She was previously the International Legal Adviser at REDRESS which acted as a third party intervener in the case.

In 2012, Professor Andrea Bianchi pronounced on EJIL Talk! that we finally had certainty on the relationship between state immunity and human rights with the issuance of the International Court of Justice’s decision in Germany v Italy (Greece Intervening)On the widest argument that jus cogens norms trump immunity, I agreed (‘State Immunity and Human Rights: Is there a Future after Germany v Italy’ 1 JICJ 2013).  The Italian and Greek courts had been the only national courts to entertain the proposition and no court was likely to do so again once the ICJ had resolutely rejected it.  However, I speculated that we did not have certainty yet on two issues:

1)      whether the provision of state immunity violates the right of access to a court where no alternative remedy exists; and

2)      whether foreign state officials enjoy subject-matter immunity in civil proceedings for alleged acts that attract individual responsibility under international law.

The European Court now appears to have firmly closed the door on these two points but in a way that is dissatisfying for the reasoning it employs to get there.

A Lack of Alternative Means to Resolve the Complaint

In Jones and Others v United Kingdom, my expectation was that the Court would resolve the confusion that started in Al-AdsaniIn that case, the Court rejected the Government’s argument that Article 6(1) did not apply to ‘matters outside the State’s jurisdiction’ and ‘as international law required an immunity in the present case, the facts fell outside the jurisdiction of the national courts and, consequently, Article 6’ (para 44).  However, in finding Article 6(1) to be engaged, it also failed to take up the Government’s submission that ‘[t]here were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim’ (para 50).

The decision was subsequently criticised by those who considered the international law on state immunity to preclude the engagement of Article 6(1).  It was also criticised by those who considered that if the Court was correct in its finding that Article 6(1) was engaged, then it had to analyse the impact of the restriction fully.  Read the rest of this entry…

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Jones v UK: The re-integration of State and official immunity?

Published on January 14, 2014        Author: 

Philippa Webb is Lecturer in Public International Law at King’s College London. She is the co-author, with Lady Hazel Fox QC, of the third edition of The Law of State Immunity (OUP 2013).

As regards the immunity of the State, the 6-1 decision in Jones and Others v the United Kingdom to uphold the immunity of Saudi Arabia was to be expected: in the Jurisdictional Immunities Judgment, the principal judicial organ of the UN clearly stated that that there was no exception to State immunity for jus cogens violations. The Fourth Section of the ECtHR felt no need to examine national developments in detail as the ICJ Judgment must be considered as ‘authoritative as regards the content of customary international law’ (para 198).

The razor-thin majority of the Grand Chamber in Al-Adsani 13 years ago has now been buttressed by both the ICJ and the Fourth Section of the ECtHR.

But the decision in Jones to uphold the immunity of the State officials even in the face of allegations of torture is more surprising. It stretches the meaning of the ICJ Jurisdictional Immunities Judgment and goes against two emerging trends: (1) accountability of non-high ranking State officials for serious human rights violations; (2) the diversification of various forms of immunity. Let me take these issues in turn.

Accountability of State officials for torture

As the ECtHR Chamber acknowledges (para 92), the ICJ emphasised in the Jurisdictional Immunities Judgment that it was addressing ‘only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether and to what extent immunity might apply in criminal proceedings against an official of the State is not in issue in the present case’ (para 91 of the ICJ Judgment). Yet, the ECtHR followed the ICJ’s Judgment with respect to the immunity of State officials as well as that of the State. In its 2012 Judgment, the ICJ had been silent as to immunity of a State official from civil proceedings, but it was clear that the Judgment was focused on the State itself and arguably even limited to ‘acts committed on the territory of the forum State by the armed forces of a foreign State … in the course of conducting an armed conflict’ (para 65). Read the rest of this entry…

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European Court of Human Rights Upholds State Immunity in Case Involving Allegations of Torture – Jones v United Kingdom

Published on January 14, 2014        Author: 

Today, a chamber of the European Court of Human Rights has handed down its judgment in the long awaited case of Jones and others v. United Kingdom (application no. 34356/06 & 40528/06). The case concerned the UK House of Lord’s decision ([2006] UKHL 26)  to accord state immunity in civil proceedings brought in the UK, against Saudi Arabia and Saudi Arabian officials, by British nationals who alleged they had been tortured in Saudi Arabia. The European Court of Human Rights has today upheld that decision of the House of Lords. The chamber of the Court held by six votes to one that the granting of immunity to Saudi Arabia and its state officials in civil proceedings reflected generally recognised rules of public international law. Therefore, dismissal of the case by the English courts on grounds of state immunity did not amount to a violation of Article 6 (1) of the European Convention on Human Rights which guarantees a right of access to court. In particular, the Chamber held that there was noaccess to court.

According to the Chamber, while there was some emerging support at the international level in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged a state’s right to immunity could not be circumvented by suing named officials instead. The decision picks up from where the International Court of Justice left off in Jurisdictional Immunities (Germany v. Italy) case in deciding that allegations of violations of jus cogens rules does not mean that state immunity becomes inapplicable. However, the European Court of Human Rights has also stated that in the light of the current developments in this area of public international law, this was a matter which needed to be kept under review by Contracting States.

EJIL:Talk! and Opinio Juris will be providing reactions to this decision over the coming days. Here on EJIL:Talk! Lorna McGregor (Essex University), who worked on the case while she was Legal Adviser at Redress (an NGO that helps torture survivors), and Philippa Webb (Kings College London) will discuss the case. Over at Opinio Juris,  Chimène Keitner, Bill Dodge (both at the University of California, Hastings College of Law) and Ingrid Wuerth (Vanderbilt) will provide commentary from across the pond. All of them have done brilliant work on immunity and all have written influential pieces on the relationship between immunity and human rights. A stellar line up indeed!

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Former ICC Defendant – Ngudjolo – Applies for Asylum in the Netherlands

Published on March 28, 2013        Author: 
Mathias Holvoet is PhD-Researcher in International Criminal Law at the Vrije Universiteit Brussel, Belgium. He is also a member of the Research Group on Fundamental Rights and Constitutionalism (FRC). Dersim Yabasun is a PhD-Researcher in the International and European Law Department, Maastricht University, The Netherlands.

Mathieu NgudjoloOn 18 December 2012, Mathieu Ngudjolo Chui (Ngudjolo) – a Congolese militia leader – became the first to be acquitted before the ICC, after Trial Chamber II judged that he could not be found guilty beyond a reasonable doubt of charges of war crimes and crimes against humanity committed in the village of Bogoro in 2003. Ngudjolo was released on 21 December 2012. Subsequently, according to Ngudjolo, the Dutch government decided to repatriate him back to the Democratic Republic of Congo (DRC). Since Ngudjolo feared persecution in the DRC because of his incriminating testimony against the Kabila government during his trial, he decided to apply for asylum in the Netherlands to prevent his expulsion. Furthermore, Ngudjolo requested the ICC to require the Netherlands to hand him over to the Court, with whom he would negotiate a place to live pending his asylum examination and during the appeal proceedings. In addition, Ngudjolo requested the Court to order the Victims and Witnesses Unit (VWU) to provide for his protection. The Appeals Chamber will decide on these requests later this year.

The Dutch authorities have approached this whole new development of ‘ICC-asylum seekers’ with serious concern.

There is a reasonable chance that Ngudjolo will be excluded from refugee protection by the Dutch Immigration and Naturalization Service (IND) on the basis of Article 1(f)(a) of the 1951 Geneva Convention relating to the Status of Refugees (Refugee Convention), as was the case with two defense witnesses in the Katanga & Ngudjolo cases who applied for asylum in the Netherlands in 2012. However, if there is a risk that Ngudjolo would be subjected to torture or degrading treatment if he were to be expelled to the DRC, Article 3 of the European Convention on Human Rights (ECHR), which protects any person and has an ‘absolute’ character, might prevent his expulsion to the DRC. In that case, Ngdudjolo may find himself in a ‘legal vacuum’. He would be ordered to leave Dutch territory, but at the same time the Dutch authorities are not allowed to expel him to the DRC because of its obligations under European human rights law. This piece will discuss the chances of returning Ngudjolo on the basis of diplomatic assurances and the option of relocation for future acquitted defendants to third countries.

Read the rest of this entry…

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Greek Court Acquits Immigrants who Escaped Appalling Detention Conditions

Published on January 12, 2013        Author: 

In the midst of ever deepening economic woes, Greece is struggling with yet another crisis, this time of a humanitarian character. It is no secret that thousands of immigrants crossing into Greece mainly from Asia and Africa are held in appalling conditions in Greek detention centres. The UN Special Rapporteur on the human rights of migrants visited such centres just before the end of 2012 and faced a bleak situation (the relevant report is still forthcoming, but see the Reuters report here), while the Grand Chamber of the European Court of Human Rights found already in January 2011 that returning an asylum seeker to Greece under Dublin II violates Article 3 of the ECHR (see M.S.S. v Belgium and Greece, paras 344 seq, along with a description of the horrible conditions of detention facing immigrants and asylum seekers in Greece).

Today, media in Greece are reporting that the single-judge formation of the Criminal Court of First Instance of Igoumenitsa in northwestern Greece (Μονομελές Πλημμελειοδικείο Ηγουμενίτσας) has returned a remarkable decision (Nr 682/2012) in a prosecution brought against a number of immigrants awaiting expulsion who escaped a local detention centre. Relevant reports in the Greek press can be found here and here, and a redacted version of the rather short decision is published here (all three documents are in Greek) Read the rest of this entry…

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Evidence Obtained by Torture: Is it Ever Admissible?

Published on November 28, 2012        Author: 

Natasha Simonsen is a graduate student in the Faculty of Law, University of Oxford

Earlier this month, the UK’s Special Immigration Appeals Commission (‘SIAC’) ordered the release from detention of controversial Jordanian-born cleric Abu Qatada. SIAC held that he could not be deported to Jordan, because there was a ‘real risk’ that evidence obtained by torture would be admitted against him in proceedings in Jordanian courts (read the judgment here). The cleric was released on highly restrictive bail conditions on Tuesday of last week, and the scale of public outrage was such that police had to intervene to protect him from protesters outside his home. The Home Secretary may appeal the decision, and there are new rumours that Abu Qatada plans to sue the government for damages for wrongful imprisonment. This post addresses the implications of SIAC’s decision for the exclusionary rule for  evidence obtained by torture.

The Strasbourg Court’s decision

To fully explain the SIAC decision we must return to the European Court of Human Rights’ decision in Abu Qatada v UK from January of this year. To the exasperation ofmany British politicians, including the Prime Minister, in that case the Strasbourg Court held that Abu Qatada could not be deported to Jordan, because the trial that he faced there would likely involve the admission of torture evidence. The two key witnesses against him had been beaten on the soles of their feet to extract confessions—a torture technique known as falanga—and the Jordanian State Security Court was unlikely to exclude such evidence [at 285 in the judgment]. This meant, in the Strasbourg Court’s view, that there was a ‘real risk’ that Abu Qatada would face a flagrantly unfair trial in breach of Article 6 of the Convention. The Court used strong language, stating that that ‘the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial’ [at 267]. Elsewhere in the judgment, the Court stressed that the exclusionary rule was inextricably bound up with the rule of law [264]. Read the rest of this entry…

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People’s Justice: Addressing the 1988 Massacre of Political Prisoners in Iran

Published on October 2, 2012        Author: 

 Parisa Zangeneh is currently finishing her LL.M. at the School of Oriental and African Studies, and she completed her LL.B. at the University of Edinburgh and her B.A. at McGill University. She would like to thank those who provided assistance on previous drafts of this note.

“It is far better for an Imam to err in clemency than to err in punishment.”  Ayatollah Montazeri

Introduction

The victims of bloodshed, torture, and horror deserve justice, and selective justice is no remedy. The humanitarians of the world have exercised a discriminatory approach in selecting which human rights atrocities on which to focus, yet this does not provide redress to the invisible suffering of those who, for perhaps political reasons, have been overlooked. This is the case of those who suffered and died in the 1988 massacre of political prisoners in Iran, and this is why the establishment of a People’s Tribunal to address what happened to them, their families, and Iran is so important. To think that this happened in 1988, but that work is actively underway to address these atrocities only at this late stage, in 2012, highlights the need for uniform and intense scrutiny on all crimes on this scale – especially those that have been ignored by the international community.

 An important consideration before the People’s Tribunal will be the international criminal implications of the 1988 political prisoner massacre. The crime of genocide will likely feature in this discussion, considering that some of those who died were atheists or agnostics, and there is an unanswered question of whether these groups fulfill the “religious group” criterion in the 1948 Genocide Convention definition of that crime. Alternatively, or perhaps concurrently, charges of war crimes and/or crimes against humanity may be easier to prove. Read the rest of this entry…

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If not torture, then how about terrorism – Canada amends its State Immunity Act

Published on March 28, 2012        Author: 

Most of our immunity-related discussions in recent weeks have focused (naturally) on the recent ICJ decision in Jurisdictional Immunities of the State (Germany v. Italy, with Greece intervening). But there are new developments at the domestic level worth noting, including the passage this month of amendments to Canada’s State Immunity Act to allow victims of terrorism to sue the perpetrators in a Canadian court, including foreign states listed by the Government of Canada as supporters of terrorism.

As in many other states, Canada has embraced a restrictive rather than absolutist approach to the question of foreign state immunity from the jurisdiction of a state’s domestic courts. The legislative scheme adopted some thirty years ago in Canada embraces the concept of foreign state immunity from domestic court jurisdiction, but also provides for certain specified exceptions. For example, the commercial activity exception, which provides that: “A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.” See section 5 of the above-referenced Act, and the definition of “commercial activity” in section 2.

But these exceptions to immunity are few in number and they do not address the question of jus cogens breaches committed by foreign states. Within Canada, this situation has led to efforts to expand the current list of statutory exceptions so as to permit an individual to sue a foreign state for torture in a Canadian court, with the unsuccessful case of Bouzari v. Islamic Republic of Iran being the notable example, and one which resulted in criticism of Canada before the Committee against Torture (CAT). Read the rest of this entry…

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Interim Measures Requests and the UN Human Rights Treaty Bodies: Canada and the Mugesera Case

Published on January 25, 2012        Author: 

Joanna Harrington is a Professor with the Faculty of Law and an Associate Dean with the Faculty of Graduate Studies and Research at the University of Alberta in Canada.

As I write this post, college instructor and former politico Léon Mugesera has, at last, been placed on a plane to Rwanda by Canadian government officials to face charges of inciting genocide stemming from an inflammatory anti-Tutsi speech delivered almost twenty years ago, and which was replayed during the height of the genocide. (Twitter has been used by Rwanda’s Foreign Minister to confirm that Mugesera is en route to Kigali.) For many Canadians – and many Rwandans – the departure of this accused genocidaire will not be mourned, with many saying that he should never have been admitted into Canada in the first place. But the latest round in the Mugesera saga does raise concerns for the domestic significance, and thus impact, of the individual complaints procedure found replicated in each of the UN human rights treaties, as well as the need for greater transparency and detailed guidance from the UN human rights treaty bodies themselves with respect to the issuance of requests for interim measures.

 The Mugesera saga

After Mugesera’s speech in November 1992, Rwandan authorities did seek the equivalent of an arrest warrant, but Mugesera had fled the country, and by mid-1993, he had secured permanent residence for himself and his family in Canada. Two years later, Canada’s Minister of Immigration and Citizenship commenced proceedings to send Mugesera back to Rwanda, having learnt of the allegations against him. Under Canadian law, a permanent resident (but not a citizen) may be deported if it is determined that before or after being granted permanent residency, the individual committed a criminal act or offence. In this case, the speech was the alleged criminal act that was committed (and not disclosed), with the speech said to constitute an act of incitement to murder, hatred and genocide, and a crime against humanity. Several years of legal proceedings then ensued, culminating with a unanimous Supreme Court of Canada decision in 2005, which also reproduces Mugesera’s speech as an appendix for all to read.

The speech, however, is not what is at issue in the latest installment in the Mugesera saga. What is at issue appears to be the issuance of a request for interim measures by the Committee Against Torture, asking Canada to hold off deporting Mugesera while a claim is pending before the Committee that Mugesera will face torture in Rwanda. (I say “appears to be” as many reports simply state that an amorphous “UN” has asked Canada to hold off deporting Mugesera, which does no favours for the UN’s reputation among its critics, while those reports that specify the Committee Against Torture, do not use the interim measures terminology.)  Read the rest of this entry…

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Diplomatic Assurances, Torture and Extradition: The Case of Othman (Abu Qatada) v. the United Kingdom

Published on January 18, 2012        Author: 

Conor McCarthy is Visiting Fellow at the British Institute of International and Comparative Law.

The European Court of Human Rights has handed down its long-awaited judgment in the case of Othman (Abu Qatada) v. the United Kingdom which, despite the initial furore that is likely to surround it in the UK, is also a case of substantial legal significance. The judgment sheds light on the circumstances in which it may be permissible under the ECHR (“the Convention”) to expel an individual to a third state where the use of torture is prevalent on the basis of assurances against torture or ill-treatment. Significantly, the Court also lays down, in emphatic terms, principles as to the permissibility of expelling an individual to face trial in a third state where evidence obtained through torture may be used in trying that person.

The Applicant’s Background

Abu Qatada is a high-profile radical Islamic cleric considered by the United Kingdom to be a threat to its national security and who is sought by Jordanian authorities (and indeed authorities in a number of other countries) in connection with a series of terrorist offences. He arrived in the United Kingdom in 1993 when he was granted asylum, having fled from Jordan where he had been tortured in detention in 1988 and 1990-1991. However, as he is regarded as a threat to national security, the UK has sought to extradite him to Jordan.

Bilateral Assurances on Torture or Ill-Treatment

As regards the question of MOUs or diplomatic assurances, some background is helpful. Following the September 11 attacks in the United States the question of the deportation of terrorist suspects, considered a threat to UK national security, to countries where they may face a risk of torture moved high on the political agenda. In 2001 the UK Foreign and Commonwealth Office advised the government that Article 3 of the Convention precluded the deportation of terrorist suspects to Jordan. However, in 2003 a Government review of the possibility of removing such barriers to removal was conducted and it was proposed that certain key countries, including Jordan, could be approached to determine whether they would be willing and able to provide assurances to guarantee that potential deportees would not be subjected to torture or inhuman and degrading treatment. Following this, the United Kingdom’s Foreign Secretary agreed that seeking specific and credible assurances from foreign governments, in the form of Memoranda of Understanding (“MOU”), could be used to enable the deportation of certain individuals from the United Kingdom and in 2003 the British Embassy in Oman were instructed to seek such assurances from the Jordanian government.

Various negotiations ensued and a MOU was agreed between the United Kingdom and Jordan in 2005. On its face, the MOU provided that a receiving state would respect its obligations under international human rights law with regard to the treatment of persons returned under the MOU. In addition, it was specified that if a returned person was detained within three years of his date of return “he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities”. The MOU also specified that the receiving state will not impede consular access to the sending state by a person deported under the MOU.

Read the rest of this entry…

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