Remedies for Torture and International Law - Assignment Example

Remedies for torture MEMORANDUM RE: Remedies for Torture The Legal issues will be addressed by this document are torture and the instruments that provide for torture, the instruments include both national and international, the issue of wrongful detention will also be addressed, the procedure of filing a civil law suit by foreigners in the U.S courts, the criminal prosecution at international law for acts of torture committed in foreign countries. The issue of government and individuals seeking criminal prosecution at international law for acts of torture will also be addressed based on various legislations in place. ISSUE What does the international law provide for in an event of torture? SHORT ANSWER There are various international covenants that provide for torture and they include the International Covenant on Civil and Political Rights (ICCPR) was the initial universal human rights treaty that explicitly included the injunction of distress and other inhuman or unhealthy treatment. It is provided for in article 7 of the 1966 treaty. The treaty that was made specifically to deal with issues of torture is the 1984 UNCAT (United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and Committee against Torture (CAT). This covenant provides for the definition of torture that is upheld by state parties. Torture is prohibited in all circumstance, this prohibition is absolute and universally accepted that it has now become a fundamental principle of customary international law. STATEMENT OF THE FACT The legal definition of torture under international law is provided for by the UNCAT (United Nations Convention against Torture) and Committee against Torture (CAT) under Article1. Article 5 of Universal Declaration of Human Rights (1948) condemns torture, cruel and inhuman or degrading treatment or punishment. There are international criminal tribunals that deal with individual responsibilities and not state responsibility for the crime of torture and other offences of ill-treatment. The tribunals include the International Criminal Tribunal for the Former Yugoslavia and that of Rwanda. The Rome Statute Article 7(1) (f) explicitly lists torture as a crime against humanity that is covered under the jurisdiction of the International Criminal Court. There are also remedies that are provided for under the international law under civil and criminal actions. Torture in the USA is prohibited under the constitution y the Eighth amendment to the United States Constitution. The 18 U.S.C. § 2340 declares that an act of torture committed by a U.S. national or a non-U.S. national, outside of the United States but is present in the United States is punishable under this legislation. DISCUSSION Torture Article 1 of CAT describes torture as an act that intentionally inflicts severe pain or suffering which can either be physical or mental, this is done for the purpose of obtaining information or confession, to punish them for acts committed or is suspected of having been committed by a third person, to intimidate or coerce, as a means of discrimination. Such is inflicted y or at the initiation of or with the consent of a public official or any other person who is acting in an official capacity. International instruments United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). As stated earlier there exist a specific international covenant that defines and deals with torture. The covenant is known as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). The covenant was established in 1984 and requires member states to prevent acts that amount to cruel, inhuman or degrading treatment or punishment. However, the UN Special Rapporteur on Torture takes the position that the circumstances in which other forms of treatment are perpetrated will determine whether they qualify as cruel, inhuman or degrading, force used legally and for a lawful purpose and is not considered excessive and is necessary to meet the purpose then this will not qualify as cruel, inhuman or degrading treatment. Nevertheless, UNCAT states that in a situation of detention or similar direct control, no such test of proportionality applies, and any form of physical or mental pressure or coercion constitutes at least cruel, inhuman or degrading treatment. There is certain element that must be fulfilled for a crime to amount to torture, this is the fact that all must involve a public official or someone acting in an official capacity and there must be intentional infliction of severe pain or suffering. The convention holds the state responsible for acts of torture y private individuals if they fail to respond adequately to them, or fail general or specific measures to prevent them. After an alleged complaint has been filed the state parties have a duty to investigate these allegations through a competent official. International Covenant on Civil and Political Rights (ICCPR) The International Covenant on Civil and Political Rights (ICCPR) established in 1966, it was the first Universal Human Rights treaty that explicitly includes the prohibition of torture and other cruel, inhuman or degrading treatment under Article 7. For a crime to constitute torture it depends with the circumstances of the case such duration and manner of the treatment, the physical or mental effects, sex, age and state of health of the victim. Article 10 of the ICCPR prohibits the use of torture to those who have been deprived of their liberty. The jurisprudence of HRC applies Article 10(1) to general conditions of detention. This was clearly outlined in the case of Kennedy v Trinidad and Tobago where the HRC Committee considered that beatings to which the author was subjected while in police custody amounted to defilement of Article 7 of the ICCPR. However, the case of Pinto v Trinidad and Tobago, it was stated that a detainee must prove that they have been subjected to worse treatment than the other detainees. Daniel Pinto v. Trinidad and Tobago, Communication No. 512/1992, U.N. Doc. CCPR/C/57/D/512/1992 (1996). . This was further emphasized in the case of Mukong v Cameroon where there was apparent violation of Article 7 when the author was subjected to harsh and degrading treatment, this included being detained incommunicado, threatened with torture and death, deprived of food, and kept locked in his cell for days on end. Remedies The duty to grant redress and compensation of victims of torture is provided for by both instruments and impose the obligation to state parties. UNCAT has provided that state parties must ensure that victims of torture and ill treatment can obtain redress and have a enforceable right to seek compensation which includes full rehabilitation. Article 14 provides for the legal redress of damages which will include restitution, compensation, and rehabilitation of the victim. The ICCPR under 2(3)states that states parties should ensure that violations shall have effective remedies determined y competent judicial, administrative or legislative authorities among their provided for y the countries legal system ad that such remedies are enforced. Due to the absolute nature of the prohibition of torture and ill treatment, this offence is not subject to defenses, statute of limitation or amnesty. In the case of Kiobel v. Royal Dutch Shell Petroleum the facts were that the plaintiffs who are Nigerians filed a suit under the ATS that alleged the defendant oil companies aided the Nigerian government halt confrontation regarding oil exploration among the people of the Ogoni region in the country, it alleged that company-backed government troops murdered, raped, and detained Nigerian residents, all these atrocities violated international human rights customs. A Ney York based federal district court overruled most of the claims, both sides then appealed to the Second Circuit. The question presented was whether the victims of global most horrible atrocities that have been denied justice in their home countries can then turn to U.S. courts as their last option. consequently, survivors of human rights atrocities have been able under the Alien Tort Statute (ATS) to seek redress from the individuals responsible for their abuse whenever their perpetrators are in the United States, this applies to individual perpetrator who seeks a safe haven in the United States and may still be liable under the ATS also known as ATCA. The ATS is a statute that confers the District Courts the original jurisdiction of any civil action brought about by an alien for a tort committed in violation of the law of nations or a treaty that USA has ratified. This allows foreign citizens to seek remedies for Human rights violations that took place outside the United States. Scope The scope of the ATCA is to seek payment of monetary compensation by the defendant for the damage suffered by the victim and not aimed at imposing penal sanctions. The requirements for filling an action under this Act are the need to file an action within the limitations period except for war crimes and crimes against humanity whose limitation is not expressly given and there must be evidence to prove that the defendant was responsible for the violation (Weeramantry, 2003). In the Kiobel case, the subsequent circuit court ruled that the ATS does not grant federal courts subject matter jurisdiction over lawsuits brought against corporations and that international customary law has not established liability for corporations for committing, aiding and abetting human rights violations therefore a civil lawsuit can only be brought against and individual meaning a natural person. Kiobel v. Royal Dutch Shell Petroleum Co., No. 10-1491 (U.S. 2012) Hypothetical fact pattern The case that involves two business partners who are arbitrary arrested by the Russia military, separated and the cruelly treated by being deprived of sleep, food and water, they were beaten and made to work long hours in the prison where they were detained and savagely beaten. This clearly satisfies the definition of torture that has been described y the UNCAT of torture and ill treatment. In the process of seeking asylum and permanent resident status in the United States, the two partners are considered asylum seekers and are therefore eligible to bring on a civil action in the United States Federal Courts against the perpetrators of the crime of torture back in Russia under the ATCA, however a suit against the Baltic beverages and Carlsberg Group cannot go through because a suit against a corporation is not provided for under the US legislations. Internationally the two partners can lodge a complaint to the Human Rights Committee for further investigations by the International Criminal Court. This will obligate the state party to take action and if the public officials are found criminally liable criminal action will be brought against him under the international law. CONCLUSION According to the facts and issues presented in the paper, the two partners will have an opportunity to seek legal redress and get justice for the atrocities that were committed to them back in Russia. The use of United States Federal courts is a pathway for seeking criminal prosecution in the international courts for the criminally liable. Reference List: Daniel Pinto v. Trinidad and Tobago, Communication No. 512/1992, U.N. Doc. CCPR/C/57/D/512/1992 (1996). Kiobel v. Royal Dutch Shell Petroleum Co., No. 10-1491 (U.S. 2012) Rodley, N. (2002). The definition (s) of Torture in International Law. Current Legal Problems, 55(1), 467-493. Sadat, L. (2011). Forging a Convention or Crimes against Humanity. Cambridge University Press. UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at: http://www.refworld.org/docid/3ae6b3a94.html [accessed 1 May 2015] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 1 May 2015] Weeramantry, J. R. (2003). Time limitation under the United States Alien Tort Claims Act. Revue Internationale de la Croix-Rouge/International Review of the Red Cross, 85(851), 627-636. Womah Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994). Read More