Torture & law

August 31, 2019


The writer is an author and a lawyer based in Mumbai.
The writer is an author and a lawyer based in Mumbai.

GOTABAYA Rajapksa, former defence secretary of Sri Lanka, faces a serious legal hurdle in his campaign for election to the office of the president of Sri Lanka. A civil lawsuit in the United States last April sought damages from Mr Rajapksa for allegedly instigating and authorising torture and murder.

There exists on the United States’ statute book an old statute of 1789 called the Alien Tort Claims Act. The famous English barrister Geoffrey Robertson, Q.C., whose services are in demand internationally in cases concerning violation of human rights, has written a cogent statement of the law in his book Crimes Against Humanity: The Struggle for Global Justice.

The imprisonment in Britain of Chile’s dictator General Augusto Pinochet and the judgment in his case by the House of Lords signifies a benchmark in the growth of international law on the trials of perpetrators of torture and other ‘crimes against humanity’ regardless of the immunity that a former leader or high state official enjoys and regardless also of where he is found.

This is known as ‘universal jurisdiction’. Its roots lie a good time back.

King Farouk of Egypt ordered expensive dresses for his queen from the Paris salon of Christian Dior. Shortly afterwards he was deposed and all his property confiscated (including the dresses). When the bill arrived he refused to pay, and when sued for the debt relied upon sovereign immunity. But in Ex-King Farouk v. Dior, the Paris Court of Appeal made him pay for his private purchases.

Pinochet’s arrest was a benchmark for international law on crimes against humanity.

The Alien Tort Claims Act of 1789 permits suit for any tort “committed in violation of the law of nations”. The Torture Victim Protection Act of 1992 extends the right to American victims or relatives in respect of acts of torture and summary execution committed by officials in foreign countries where there is no remedy. In Britain, a 1988 provision gives criminal courts extraterritorial jurisdiction to try any suspected torturer — whatever his or his victim’s nationality and irrespective of where the torture took place.

On June 26, 2002, the appeals court in Brussels ruled a case against Israeli prime minister Ariel Sharon as inadmissible. The case was brought to court by 23 Palestinians over Sharon’s role in the 1982 massacre of Palestinians in the Sabra and Shatila refugee camps in Lebanon. The court held that the case could not proceed because Sharon had not been inside Belgium when it was lodged.

The Palestinians’ case was based on a law of universal jurisdiction that enables Belgian courts to try people for alleged war crimes, crimes against humanity or genocide even if they took place outside Belgium.

A Canadian law of 1987 permits prosecutions for crimes against humanity if they were regarded, at the time of their commission, as contravening international law or “criminal according to the general principles of law recognised by the community of nations”.

This, indeed, is the crucial test and it is one prescribed by customary international law even in the absence of a treaty. This is the core of the concept of universal jurisdiction over crimes against humanity.

In October 1998, a Spanish magistrate issued a warrant of arrest against Augusto Pinochet and secured his arrest in London. The next month, a Belgian court recognised universal jurisdiction as a basis for prosecuting Pinochet for crimes against humanity based directly on customary international law and despite the absence of any Belgian law on the matter at the time of the offences he was charged with.

Finally, in February 1999, the King of Belgium promulgated an act passed by parliament entitled Act Concerning the Punishment of Grave Brea­ches of Intern­ational Human­itarian Law.

The act recognises a universal jurisdiction for Belgian courts in respect of grave breaches — irrespective of the place of their commission or the nationality of the offender or the victim. Definitions of offences are based on those in international conventions.

Article 1 concerns genocide, which is defined to include “killing members” of an ethnic, religious or racial group “as such”, and as also “causing serious bodily or mental harm to members of the group”. These are only the first steps in a branch of international law which bids fair to evolve further still.

Torture is a global vice. It is 50 years since Amnesty began its campaign for its abolition. The results are a mixed bag. There has been growing international awareness. At the same time, a lot remains to be done. Torture yet prevails. The worst example of what the practice of torture was set by the United States under the leadership of president George W. Bush. His legal adviser faithfully prepared a brief to argue that it was perfectly lawful.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, August 31st, 2019