Just How Ill-treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law

In: Nordic Journal of International Law
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  • 1 School of Law and Social Justice at University of Liverpool, United Kingdom

The prohibition on torture in international human rights law seems a fairly straightforward candidate for productive use in international criminal law. The Convention against Torture contains an elaborate definition of torture and human rights institutions have developed substantial jurisprudence on the prohibition and definition of torture. Indeed, the ad hoc Tribunals and the drafters of the Rome Statute have employed the human rights law approach to torture to varying degrees. But the conception of torture reached by human rights bodies is problematic and unsuitable for usage where individual criminal responsibility is sought. It is unsuitable because the human rights law understanding of torture is subjective and victim-derived. Human rights bodies do not scrutinize intent, purpose and perpetration, central aspects of international criminal legal reasoning. The communication on torture between these bodies of law to date shows that cross-fertilisation, without detailed reasoning, is inappropriate - because rights are different to crimes.

  • 10

    European Convention, supra note 6, Article. 1.

  • 19

    Convention against Torture, supra note 16, Article 1(1).

  • 27

    Rome Statute, supra note 26, Article 7(2)(e).

  • 35

    Rome Statute, supra note 26, Article 7(1)(f).

  • 38

    Rome Statute, supra note 26, Articles 8(2)(a)(ii), 8(2)(c)(i).

  • 41

    Rome Statute, supra note 26, Articles 8(2)(a)(ii)–2(1).

  • 52

    Schabas, supra note 50, p. 351.

  • 56

    De Frouville, supra note 24, pp. 633 and 640.

  • 68

    Declaration against Torture, supra note 64, Article 1(2). This clause is a product of the drafters of the Declaration having borrowed from the European Commission’s report in the Greek Case. Given that Sweden and the Netherlands had instituted the complaint against Greece and were also heavily involved in the drafting of the Declaration, the influence of the Greek Case on the Declaration against Torture is understandable. See Rodley and Pollard, supra note 31, p. 83.

  • 78

    Burchard, supra note 59, p. 162.

  • 91

    Robinson, supra note 88, p. 929.

  • 93

    Robinson, supra note 88, p. 929.

  • 99

    Farrell, supra note 30, p. 73; C. Ingelse, The un Committee Against Torture: An Assessment (Kluwer Law International, The Hague, 2001) p. 206.

  • 100

    Convention against Torture, supra note 16, Article 16(1).

  • 101

    Nowak and McArthur, supra note 70, pp. 23, 51 and 61. Despite this, the Committee against Torture, when dealing with individual complaints, does treat Article 1 as though it contains a prohibition or offence that can be violated. For a recent example, see Bendib v. Algeria, 8 November 2013, cat, no. cat/C/51/D/376/2009, paras. 6.3–6.3: "In the absence of any substantive refutation by the State party, the Committee concludes that due weight must be given to the author’s allegations and that the facts, as submitted by the complainant, constitute acts of torture, within the meaning of article 1 of the Convention. In the light of the above finding of a violation of Article 1 … ". Emphasis added.

  • 102

    Burgers and Danelius, supra note 73, p. 171. Emphasis added.

  • 103

    Nowak and McArthur, supra note 70, p. 540.

  • 104

    Dewulf, supra note 12, p. 73.

  • 123

    Farrell, supra note 30, p. 69.

  • 126

    Declaration against Torture, supra note 64, Article 1(2). Given that Sweden and the Netherlands had instituted the complaint against Greece and were also heavily involved in the drafting of the Declaration, the influence of the Greek Case on the Declaration against Torture was understandable. See Rodley and Pollard, supra note 31, p. 83.

  • 143

    Rodley and Pollard, supra note 31, p. 105.

  • 147

    Rodley and Pollard, supra note 31, p. 105.

  • 152

    Rodley and Pollard, supra note 31, p. 102.

  • 158

    Gerards, supra note 94, p. 85.

  • 160

    De Frouville, supra note 24, p. 646.

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