The U.N. Convention on Torture and the Prospects for Enforcement

Transcription

1 The U.N. Convention on Torture and the Prospects for Enforcement by AHCENE BOULESBAA Adjunct Professor of International Law at the U.A.E. University MARTINUS NIJHOFF PUBLISHERS THE HAGUE / BOSTON / LONDON

2 TABLE OF CONTENTS PREFACE ACKNOWLEDGEMENTS ABBREVIATIONS CHAPTER ONE: The Scope of the Torture Convention i Introduction i I. The Scope of the Prohibited Conduct 4 A. Article 1: Definition of Torture 4 B. The Origins and Evolution of Article 1 4 II. Comment: General Description 9 A. The Nature of the Conduct 9 B. The Intention and Purpose of the Conduct 20 C. The Identity of the Offender 23 D. The Exclusion of Conduct Inherent in or Incidental to Lawful Sanctions From the Definition of the Article 28 III. The Overbreadth of the Definition of Torture 36 IV. The Saving Clause Against the Weakening of Other Conventions and National Laws of States 37 V. Conclusion 39 CHAPTER TWO: The Nature of the Obligations Incurred by States Under Article 2 of the Torture Convention 41 Introduction 41 I. The Scope of Article 2 43 II. General Comments 43 A. Problems Associated with Obligations of States 43 B. The Need for the Identification of the Nature of the Obligations of States Under this Convention 45 III. The Nature of the Obligations of the States Parties 46 A. The Question of Timing The Practice of States The General Rules of International Law 49 B. The Question of the Precise Duty of the Parties 50 xiii xv xvii Vll

3 Via T H E UN C O N V E N T I O N O N T O R T U R E C. The Question of the Appraisal of the Effectiveness of the Measures to Prevent the Prohibited Conduct Third Party Supervisory Bodies Collective Judgement 63 D. The Question of the Implementation of the Measures taken by States 65 IV. The Territorial Application of the Convention 74 V. The Prohibition of Torture in All Circumstances 76 A. General Comment The Question of Whether the Inclusion of These Words in This Convention Was Necessary The Question of Whether the Exceptional Circumstances Enumerated Herein Are Exhaustive or Merely an Example 79 VI. Due Obedience to Orders in Mitigation of Punishment 83 A. The Travaux Prtparatoires of the Convention and the Work of the International Law Commission 83 B. The General Principles of International Law 85 VII. Conclusions 87 CHAPTER THREE: The Problems of Enforcement of Human Rights 89 Introduction 89 I. The Core of the Problem of Enforcement of Human Rights 91 A. U.N. Enforcement of Human Rights under the Charter The Lengthy Review Procedures The Ambiguity of the Review Test The Requirement of Consent 106 B. Enforcement of Human Rights Under the Covenant on Civil and Political Rights The Reporting System no 2. Inter-State Communications on the Non-Fulfilment of Obligations Incurred under the Covenant on Civil and Political Rights Communications of Individuals 116 C. Enforcement of Human Rights under the European Convention on Human Rights and Fundamental Freedoms The European Commission of Human Rights The European Court of Human Rights The Committee of Ministers 124 D. State Enforcement: State A Intervenes in the Territory of State B Justifying Action as Necessary International Case Law The Practice of States 132 II. U.N. Action by Way of Enforcement 138

4 TABLE OF C O N T E N T S IX A. Article 2 (7) of the U.N. Charter 138 B. Meaning of Intervention The U.N. Practice The Legislative History of the U.N. Charter 142 C. The Impact of a Finding of a Threat to, or Breach of International Peace 143 D. The Relativity of the Concept of Domestic Jurisdiction Can It Be Defined Who Has the Power to Define By What Criteria 161 E. The Spectrum of Intervention Sanctions Decisions The Establishment of the Protection Zones for the Kurds in Northern Iraq 168 III. The Effect of Article 2 (7) of the U.N. Charter and the Declaration of Competence in the Conventions on Human Rights on the Ability of International Law to Protect Human Rights World-Wide 170 IV. Conclusions 173 CHAPTER FOUR: A Commentary on the Enforcement Mechanisms by the States Parties of the Torture Convention 175 Introduction 175 I. The Multi-State Jurisdiction Under Article 5 of the Torture Convention 177 A. General Description 177 B. General Comment 177 II. The Scope and Nature of the Jurisdiction Provided for in Article 5 of the Torture Convention 181 A. The Question of Whether the Jurisdiction of the State of Registration of the Aircraft or of the Ship Under Article 5 (1) (a) of the Torture Convention is Exclusive The Conventions From Which the Provisions of Article 5 (1) (a) of the Torture Convention Were Borrowed The General Principles of International Law Regarding the Jurisdiction of the Flag State Over the Crimes of Torture Committed on Board Ship Under Article 5 (1) (a) of the Torture Convention 186 B. The Question of the Priority of the Jurisdiction of the State Where the Alleged Offender is Present in Any Territory Under its Jurisdiction According to Article 5 (2) as Against Other States Under Paragraph 1 (a) (b) and (c) of the Same Article of the Torture Convention The Travaux Prtparatoires of Article 5 of the Torture Convention 189

5 X T H E UN C O N V E N T I O N O N T O R T U R E 2. The General Principles of International Law Concerning the Priority of the Jurisdiction of the State Where the Alleged Offender of Torture is Present Under Article 5 (2) of the Torture Convention 199 C. The Question of Whether the Multi-State Jurisdiction Provided for in Article 5 of the Torture Convention is Similar to that of Universal Jurisdiction Over Piracy 204 III. The Aut Dedere Aut Judicare Formula Under Article 7 of the Torture Convention 206 A. General Description 206 B. General Comment The Question of the Nature of the Obligation of the State Where the Alleged Offender of Torture is Found Under Article 7 (1) of the Torture Convention The Question of Conflicting Requests for the Extradition of the Alleged Offender of Torture The Question of Whether Paragraph 2 of Article 7 of the Torture Convention is Capable of Preventing the Intrusion of Political Considerations in the Decision-Making Process to Prosecute or Not to Prosecute the Alleged Offender of Torture 230 IV. The Question of the Effectiveness of the Provisions of Articles 5 and 7 of the Torture Convention in the Enforcement of the Right to be Free From Torture and Their Potential For Solving the Problem of Non-intervention in the Domestic Affairs of States 232 V. Conclusions 234 CHAPTER FIVE: Commentary on the International Machinery for the Supervision of the Implementation of the Torture Convention 237 Introduction 237 I. The Nature and Composition of the International Machinery for the Supervision of the Implementation of the Torture Convention 238 A. General Description 238 B. General Comment 240 II. The Establishment of the Committee Against Torture Under Article 17 of the Convention 240 A. The Question of the Acceptability of the Committee Against Torture to States and its Independence from their Influence 241 B. The Susceptibility of the Committee Against Torture to the Political Influence of States Parties to the Convention 251 III. The Functions of the Committee Against Torture 252 A. The Reporting System General Description General Comment 253

6 TABLEOFCONTENTS XI 3. The Precise Powers of the Committee Against Torture When Considering the Reports of States 254 B. The Investigatory Procedure General Description General Comment The Extent to Which the Investigatory Procedure May Produce Its Intended Results 265 C. Inter-State Communications General Description General Comment The Nature of the System of Inter-State Communications and the Powers Given to the Committee Against Torture in its Administration 280 D. Individual Petitions General Description General Comment The Ability of the System of Individual Petitions to Provide Effective Remedies to the Victims of Torture 288 IV. The Potential of the Committee Against Torture 293 V. Conclusions 294 CHAPTER SIX: General Conclusions 295 BIBLIOGRAPHY 305 Articles 305 Books 310 Awards, Decisions and Judgements of International and National Courts 313 Sources 315 Official Publications 325 International Treaties, Conventions and Other Instruments 338 APPENDIX INDEX 357