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Torture and Human Rights
Torture Under International Criminal Law
Torture is an abominable act, a disregard and disrespect to the dignity of a person and violation of one's human rights. Usually, it is defined and described together with ill-treatment that encompasses other forms of inhumane treatment not covered by the definition of torture. It may or may not be perpetrated by the state or public officials. According to various definitions, torture and ill-treatment is applied to a prisoner or detained person to obtain confession or admission of a crime, to obtain an information, or simply to impose pain and suffering as a punishment.
It is defined in various international and regional laws, conventions and statutes in an attempt to curb its practice by numerous states. While originally covered in international human rights and international humanitarian laws, a number of theorists relegated it to another branch international law – that of international criminal law.
Overview of Torture
The prominent definition of torture is embodied in section 1(1) of Convention Against Torture , to wit: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions” (Torture and Ill-Treatment n.d., para. 4). Four elements must exist to be considered torture under the definition, which are: a) the act must be done with intent, b) there is extreme pain and suffering, c) done for the purpose of eliciting information or other objectives, and d) consented by a public official (Torture and Ill-Treatment n.d.). The second element poses issues and disagreement as to the determination of pain and suffering, being subjective to the victim (Torture and Ill-Treatment n.d.). The same degree of pain can produce different effects upon a strong young man and an old sickly person (Torture and Ill-Treatment n.d.).
While ill-treatment is not properly defined in the conventions, case law and related literature cite that an act that creates “substantial, but not severe suffering, or which causes severe suffering but not to obtain information” (e.g. use of extreme force upon a person resisting arrest) would constitute ill-treatment, not torture (Torture and Ill-Treatment n.d., para. 7).
While the UN Human Rights Committee, a quasi-judicial body that evaluates violations of the International Covenant on Civil and Political Rights, consider prohibitions on torture and ill-treatment as one class without further identifying which cases fall under each of them, European Court of Human Rights distinguishes them but holds that they are “absolute to the same degree”, saying that “torture carries with it a ‘special stigma' which should be placed on only the most serious acts” (Torture and Ill-Treatment n.d., para. 8). Human rights treaties, although prohibiting torture did not define torture (Rodley 2002). Subsequent case laws affected and provided the substance of the definition that, in the long run, also influenced ensuing case laws (Rodley 2002).
The collective agreement among members of the international community is that “torture and other forms of cruel, inhuman, or degrading punishment or treatment” can never exist together with the “global order fundamentally committed to basic respect and human dignity” (Nagan & Atkins 2001, p. 88). Despite the express prohibition by international, regional and national laws, some states seem to acquiesce with the commission of torture in their operational code and “immunise the torturer” from criminal liability (p. 88), indicating that its total eradication is far from reality (Nagan & Atkins 2001).
As collated by Amnesty International in its 1999 Annual Report on torture and ill-treatment in the sub-Saharan region, around 33 countries have evidence of torture and ill-treatment by state authorities and 23 countries had deaths ascribed to torture, ill-treatment or disregard to humane prison conditions (Nagan & Atkins 2001). Middle East and North Africa has more than 18 countries to have committed torture and ill-treatment and 8 countries had deaths resulting from torture and ill-treatment and inhumane prison conditions (Nagan & Atkins 2001). Reports of torture and ill-treatment came from 31 countries in Europe, with 8 countries having death while in custody (Nagan & Atkins 2001). Twenty-one countries in the Americas commit torture or ill-treatment with resulting death to around 6 countries (Nagan & Atkins 2001). Torture and ill-treatment in around 22 countries in the Asia-Pacific was reported, and deaths resulted in 11 countries (Nagan & Atkins 2001). Figures revealed that in 1998, more than 125 countries committed torture while torture, ill-treatment, deficient medical care, cruel and inhumane prison conditions caused deaths in 51 countries (Nagan & Atkins 2001).
Nagan & Atkins (2001) said that torture “is a powerful institutional expression of state craft, power, and social control”. Torture has two concepts, which are: a) inflicting severe pain and suffering by the actor who “dominates and controls”, which pain may cause “physical or psychological elements or a combination of both”, and b) involves state participation and sanction, a definition confined to the legalistic framework and gives a “social message of intimidation” (Nagan & Atkins 2001, p. 93).
The UN Convention Against Torture (1984) definition of torture confines to acts perpetrated and sanctioned by the state and its public officials, and infliction of physical and mental pain to obtain information or confession or for punishment, and does not cover the first concept of torture (Nagan & Atkins 2001). Thus, the second concept of torture classified other acts not sanctioned by the state or its officials, “systematic or widespread murder, forced disappearances, deportation and forcible transfers, arbitrary detention, and persecutions on political or other grounds” as “crimes against humanity” (Nagan & Atkins 2001, pp. 93-94). The public and civil sectors work complementarily towards and eradication and punishment of torture, and in some regional jurisdictions, torture is considered not merely as a criminal wrong but a civil wrong with corresponding tortious liability , another mode to “control and punish torture through the institutions of civil society” (Nagan & Atkins 2001, p. 94). As a result, a private law aspect emerged that empowers enforcement through private pursuit (Nagan & Atkins 2001).
The International Tribunal for the Former Yugolavia's (ICTY) statement in Furundzija case relative to torture as a war crime stated that the “general prohibition against torture has evolved in customary international law” that includes “the 1863 Lieber Code, the 1907 Hague Conventions together with the Martens clause, and the 1946 Allied Control Council Law No. 10, which incorporated torture into the list of crimes against humanity” (Arajärvi 2007, p. 9). The Geneva Conventions and the “universal ratification” were cited as the primary basis of the “customary nature of torture as a war crime” (Arajärvi 2007, p. 9). The ICTY mentioned in the same Furundzija case, citing the Nicaragua case of the ICJ which expounds not on torture but development of custom in international law, that “article 3 of the Geneva Conventions, which explicitly mentions also torture, had developed into customary international law (Arajärvi 2007, p. 9). To determine the criminal liability of a person, the crime must be defined together with the elements that constitute the crime (Arajärvi 2007).
International Criminal Law Origins: Guarantee of Political Independence and Territorial Integrity of States
The 1919 Treaty of Versailles formally ended the First World War between the Allied and Axis powers (Treaty of Versailles n.d.). While actual fighting ended on November 11, 1918, conclusion of the peace treaty occurred six months thereafter (Treaty of Versailles n.d.). The peace conference, held in January 1919 at Versailles, a place outside Paris, was made for the purpose of establishing the terms that would govern the peace after the First World War (The Paris Peace n.d.). Around 30 countries participated in the proceedings but UK, France, the US and Italy (referred to as the “Big Four”) dominated the entire process (Treaty of Versailles n.d.). Included in the Treaty of Versailles was the plan to create a League of Nations “that would serve as an international forum and an international collective security arrangement”, as it would prevent future wars, an advocacy of Pres. Woodrow Wilson (Treaty of Versailles n.d., para. 1). The treaty was plagued with disagreements due to conflicting interests of the participants (Treaty of Versailles n.d.). The US Senate likewise opposed Article 10 of the Treaty (on collective security and League of Nations) saying that it “ceded the war powers of the U.S. Government to the League's Council” (Treaty of Versailles n.d., para. 6).
The League of Nations was formed after the First World War to serve as a venue for the resolution of international disputes (The League n.d.). Although Pres. Wilson advocated for its formation and included it in his Fourteen Points plan as a peace solution in Europe, the United States was not a member of the League (The League n.d.). The Fourteen Points promoted for the creation of a “general association of nations” that would afford “mutual guarantees of political independence and territorial integrity to great and small states alike” (League of Nations 2007). The League was founded to avert the occurrence of the “horrors of the Great War” in the future (League of Nations 2007, para. 3). The League was weakened with the lackluster involvement of France and UK, non-membership of the US, Germany and Japan leaving the League in the 1930s, and lack of armed force to enforce its objectives (League of Nations 2007).
Torture Under Other Laws and Conventions
Under international law, torture and “cruel, inhuman, and degrading treatment” is strictly prohibited. (Torture and Ill-Treatment n.d., para. 1). Growing worldwide consensus places torture and ill-treatment (cruel, inhuman, and degrading treatment) under customary law, connoting that “it applies with respect to every country, organization, or person, for their acts committed anywhere, without regard to the application of one international convention or another” (Torture and Ill-Treatment n.d., para. 1). The prohibition is embodied in the two primary branches of international law – the international human rights law (obligations of the state to persons within its jurisdiction) and international humanitarian law (includes obligations of a country to residents of an occupied territory) (Torture and Ill-Treatment n.d.). Two conventions passed under the international human rights law are the: a) International Covenant on Civil and Political rights, and b) Convention against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (Torture and Ill-Treatment n.d.). Among the conventions issued under the international humanitarian law is the Fourth Geneva Convention (Torture and Ill-Treatment n.d.).
Various instruments (regional and international) provide definitions of torture under international law and other laws, such as the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975) , Inter-American Convention to Prevent and Punish Torture (1985) , Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (1993) , Statute of the International Tribunal for Rwanda (1994) (Torture Under n.d.), European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) , American Convention on Human Rights (Pact of San José, Costa Rica (1969) , (Definition of Torture n.d.), International Covenant on Civil and Political Rights (1966) , Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) , Elements of Crime as contained in the finalised draft prepared by the fifth session of the Preparatory Commission for the International Court held in New York from June 12 to 30 2000 , The Rome statute of the International Criminal Court (1998) (Torture Under n.d.; Definition of Torture n.d.), Universal Declaration of Human Rights , Geneva Convention Relative to the Treatment of Prisoners of War (1949) , and African Charter on Human and Peoples' Rights (1981) (Nagan & Atkins 2001).
In order to protect citizens of a country from torture, Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment proscribes extradition, expulsion or return of a person to a state where substantial evidence show of flagrant human rights violations and there is a possibility that the extradited person might be subjected to torture (Office n.d.).
International Criminal Law, Torture and the International Criminal Court
While scholars agree that international criminal law exists as a body of law, its concrete structure remains unclear (Partin 2008). But in the broadest sense, its source is traced from the “general principles of international law recognized by civilized nations, and therefore, found in the customary law accepted by states, the general criminal law recognized by nations, and the treaties which govern particular conduct” (Partin 2008). International criminal law may also be classified according conduct, such as international – when the offense is against the “world community”; and transnational – affects the interest of more states (Partin 2008, para. 2). Thus, an international crime is one that threatens “world order and security” such as “crimes against humanity and fundamental human rights, war crimes, and genocide” (Partin 2008, para. 2). Falling under transnational crimes are “drug trafficking, transborder organized criminal activity, counterfeiting, money laundering, financial crimes, terrorism, and willful damage to the environment” (Partin 2008, para. 2).
Raisch & Partin (2000) mentioned that the sources of international criminal law could be traced from three of the four sources of international law detailed in Article 38 of the Statute of the International Court of Justice. Article 38 provides the following sources of international law: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; and d) subject to the provisions of Article 59 , judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law (Statute n.d.).
Prof. M. Cherif Bassiouni said that the first three sources of international law pertain to international criminal law (Raisch & Partin 2000). Prof. Bassiouni added that the fourth source cannot apply to international criminal law because decisions, judgements and writings of judges and jurists even of international courts and tribunals have no binding effect in the same manner as local adjudication bodies (Raisch & Partin 2000). Even the jus congens crimes which are recognised in customary law would require cooperation of states, even if they were parties to a treaty, to be effective in particular areas (Raisch & Partin 2000). Since even United Nations issuances do not equate with an “international legislation”, cooperation of each state is necessary to make international law effective (Raisch & Partin 2000).
Re-examining the definition of torture is important in the light of the emergence of new definitions under international criminal law and case laws issued by international penal tribunals, particularly the International Tribunal for the Former Yugolavia (ICTY) (Rodley 2002). The “three key pillars”, according to Rodley (2002) is embodied in Article 1 of the UN Declaration against Torture (formally called the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, see footnote 6), to wit: a) “the relative intensity of pain or suffering inflicted: it must not only be severe, it must also be an aggravated form of already prohibited (albeit undefined) cruel, inhuman or degrading treatment or punishment; b) the purposive element: obtaining information, confession, etc.; and c) the status of the perpetrator: a public official must inflict or instigate the infliction of the pain or suffering” (p. 2). Such definition is similar to the ICC definition in the 1998 Rome Statute, particularly Article 7(2)(e) that provides: “‘Torture' means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to lawful sanctions” (Rodley 2002, p. 3).
Worthy of notice is that the ICC definition did not specify the “relative intensity of pain or suffering by reference to other forms of ill-treatment” and “no reference to any element of purpose” (Rodley 2002, p. 3). But as defined in Article 2 of the Inter-American Convention to Prevent and Punish Torture (1985), the use of techniques that obliterates the victim's personality or lessen one's physical or mental capabilities, even without “physical pain or mental anguish” would constitute torture (Rodley 2002, p. 14). Thus, any pain or suffering without regard to intensity would be enough to constitute torture as long as other elements are present (Rodley 2002). But the ICC definition under Article 7 (Crimes against humanity) and Article 8 (War crimes in international and non-international armed conflict), severity of pain or suffering is a prerequisite, although without reference to severity in other kinds of acts (Rodley 2002). Torture under international human rights law indicates state responsibility while under international criminal law, it refers to the criminal responsibility of an individual (Rodley 2002).
Torture and ill-treatment occupy an important place in international criminal law, another branch of international law (Torture and Ill-Treatment n.d.). Thus, commission of torture and ill-treatment under international criminal law is an international crime and entails criminal responsibility (Torture and Ill-Treatment n.d.). Persons who commit torture and ill-treatment and those who abetted and aided in their commission, as well as those who gave the order, would be liable criminally (Torture and Ill-Treatment n.d.). The criminal liability would be different from the local penal law of the state, and countries still without such law are enjoined to include it in their domestic law (Torture and Ill-Treatment n.d.). In this sense, failure of a state to prosecute the offender would allow other countries to apprehend the perpetrator if within their territorial jurisdictions, and prosecute or extradite them, regardless of the situs of the crime, or the nationality of the perpetrator or the victim (Torture and Ill-Treatment n.d.).
The UN General Assembly saw the importance of a permanent international court after the Nuremberg and Tokyo tribunals that would handle atrocities (The International 2002). The creation of such a court was discussed by the UN intermittently as abominable crimes were continually perpetrated (The International 2002). In response to the Rwanda and former Yugoslavia events, the UN Security Council created tribunals but which are usually tied to the specific mandates that created them (The International 2002). Thus, a permanent court would be able to act more quickly and efficiently, and strongly deter the commission of serious crimes and mass murders (The International 2002).
Through a United Nations Diplomatic Conference in Rome in July 17, 1998, a Statue was passed creating the permanent International Criminal Court (ICC) (Holbrook 2004). One hundred twenty countries adopted the treaty after passionate deliberations (The Mandate 2004). The treaty was signed in 139 states by the middle of 2004 and ratified on April 11, 2002 by 66 countries, six more than the required votes for its ratification (The Mandate 2004). It exercised interim jurisdiction starting July 1, 2002 (The Mandate 2004). The court, based in Hague (Holbrook 2004), has jurisdiction over serious crimes that concerns the international community such as genocide, crimes against humanity, and war crimes (The Mandate 2004; Holbrook 2004). However, the crimes to which the court has jurisdiction are those defined under the Rome Statute (The Mandate 2004). As defined in the statute, torture is classified under two categories to which the court has jurisdiction, a) torture under crimes against humanity, and b) torture or inhuman treatment including biological experiments under war crimes (The Mandate 2004). ICC can prosecute only crimes committed after July 1, 2002, therefore, crimes before such date can be threshed out in other venues such as the International Tribunal for Rwanda, Special Court for Sierra Leone or other courts in a third country with international jurisdiction (The Mandate 2004). A party to the treaty that ratifies the statute at a later date, ICC can only have jurisdiction to crimes committed after the date of ratification (The Mandate 2004). The ICC is an independent body without need of special authorisation from the Security Council (The International 2002). The Elements of Crimes of the ICC, although not binding by themselves, is an essential contribution to the statute for defining the crimes and its persuasive nature (The International 2002).
The International Court of Justice or “World Court” is one of the organs of the United Nations that has jurisdiction over disputes between states while the ICC is a “treaty-based criminal court” that has jurisdiction over specific atrocious crimes committed by individuals (ICC Structure 2002, para. 17). The ICC was finally created after 50 years of efforts by the UN for the formation of a permanent international tribunal that would try heinous crimes (ICC Structure 2002). ICC differs from other International Criminal Tribunals established in Rwanda and former Yugoslavia, the latter being creations under the UN Security Council that would prosecute cases only in the regions of their mandate (ICC Structure 2002).
The Assembly of States Parties, ICCs governing body, elected in February 2003 the first 18 judges (with 7 women) representing various jurisdictions who were sworn to office on March 11, 2003 (The Mandate 2004). The governing body elected its chief prosecutor, Luis Moreno Ocampo on April 21, 2003 (The Mandate 2004). Ninety-four countries have ratified the treaty on July 8, 2004 (The Mandate 2004). The signatories to the treaty have to make laws setting out the procedure on how the state would implement its responsibilities under the Statute, the system describing the cooperative relationship of the state and ICC, and the crimes covered by the statute (The Mandate 2004). ICC can also prosecute crimes committed within the jurisdiction of a country that signed the treaty whether the defendant is a citizen of that country or not (The Mandate 2004). Conversely, a citizen of a party to the statute can be prosecuted whether the crime is committed within the country or another territory (The Mandate 2004). Persons who can be criminally liable for genocide, crimes against humanity or war crimes are those who actually committed the act, those who “intentionally ordered the crimes, incited others to commit them, and assisted others in carrying out the crimes,” as well as “military commanders who failed to exercise control over their forces when they committed such crimes” (The Mandate 2004, para. 28). Likewise, all individuals, including government officials and leaders may be subject to the jurisdiction of the ICC (The Mandate 2004).
Sen. Pinochet was apprehended in London on October 1998 as a result of Spain's extradition warrant to answer for charges against him while serving as the president of Chile (Holbrook 2004). Thus, it is visible how international criminal law works in the case of Sen. Pinochet where Spain issued the warrant of extradition when he was a citizen of Chile but having residence in UK. In May 1999, the president of the Federal Republic of Yugoslavia, Pres. Milosevic was indicted by the international criminal tribunal for alleged international crimes perpetrated in Kosovo (Holbrook 2004).
The creation of the ICC and apprehension of Sen. Pinochet and Pres. Milovesic have lent to influence and mold international criminal law (Holbrook 2004). Sen. Pinochet, however, was not extradited to Spain in March 2000 due to ill health (Holbrook 2004). The people's uprising in Yugoslavia influenced the indictment and trial of Pres. Milovesic (Holbrook 2004).
A landmark development in the Statute of the International Criminal Court and its Rules of Procedure and Evidence is the grant of a number of rights to victims, which are given for the first time under the international criminal justice (e.g. victim can present views and observations before the ICC) (Victims and Witnesses n.d.). Although participation in the ICC usually occurs through a legal representative, the statute guarantees that the rights of the accused not to be prejudiced and fair trial is conducted (Victims and Witnesses n.d.).
Two groups of writers differ on their views on the development of international criminal law, those that accept new developments (such as Geoffrey Robertson, Leila Sadat and Philippe Sands) and those who do not accept developments (Holbrook 2004). Barrister Geoffrey Robertson said in Crimes Against Humanity that “human rights movement has pushed society to the brink of a new era – the age of human rights enforcement” (Holbrook 2004). In the book The International Criminal Court and the Transformation of International Law, Prof. Sadat focused on the ICC and its Statute but included the historical development of international criminal law (Holbrook 2004). On the other hand, Prof. Sands wrote and edited From Nuremberg to The Hague, a series of essays, that expounded on international criminal law developments at its inception at Nuremberg after World War Two (Holbrook 2004). The abovementioned writings reflect two themes: a) “international criminal law has developed as the sovereignty of nations has weakened”, and b) the growth of this body of law indicates the willingness of the international community for justice to triumph (Holbrook 2004, p. 74).
Holbrook (2004) commented that if international criminal law would mean indictment of persons for international crimes, like war crimes or crimes against humanity, then, such law does not exist in much of the 20th century. Indeed, the Hague Conferences of 1899 and 1907 convened to control warfare were limited by the concept of sovereignty (Holbrook 2004). Holbrook (2004) emphasized the consensus of Nuremberg judges in 1946 that the Hague Convention had not delineated the practices as criminal, no penalty prescribed, and no specific court to try the case or punish violators (qtd. in Sands, p. 31 as cited by Andrew Clapham). Andrew Clapham, public international law professor at the Graduate Institute of International Studies in Geneva, depicted the declaration of the Nuremberg judges that “international law was not static and had adapted to follow the needs of a changing world” as “a remarkable bout of judicial activism” (qtd. in Sands, p. 32; Holbrook 2004, p. 74).
Robertson, Sadat and Sands, according to Holbrook (2004), convincingly argued that that the Nuremberg trials correspond to the first prosecutions for international crimes. Robertson said that the rationale behind crime against humanity as defined in Article 6(c) of Nuremberg Charter, is the ascription of criminal liability to future state agents who authorize torture or genocide be committed upon their own people, and punished by any court that are able to apprehend them (Holbrook 2004). Holbrook (2004) also mentioned that the Nuremberg and Tokyo courts did not implement any international criminal law, being military courts. But assuming that those courts convicted the accused for international crimes, no further convictions occurred thereafter for almost five decades (Holbrook 2004). New developments in the sphere of international criminal law happened with the establishment of the International Criminal Tribunal in the former Yugoslavia in 1993 and Arusha in 1994 by the UN Security Council (Holbrook 2004).
Holbrook (2004) said that Robertson, Sadat and Sands believed that the concept of sovereignty kept the development of international law on hold. Sadat (qtd. in p. 23) said that sovereignty guarantees the independence of a state from external control and all states are equal (Holbrook 2004). And the citizens of a state cannot be prosecuted by another state or international body (Holbrook 2004). Treaties, such as the Hague Convention (1899, 1907) and the Geneva Conventions (1949), had not established international criminal laws but merely obliged the state of which the offender is a citizen to take the necessary action (Holbrook 2004). Through international criminal justice's triumph over state sovereignty, atrocious acts can be prosecuted. When Sen. Pinochet applied for habeas corpus against the extradition warrant of Spain on the ground that he was a former head, the House of Lords ruled that his immunity is stripped by the 1984 Convention Against Torture where Chile, Spain and UK were all signatories (Holbrook 2004). The immunity concept was upheld by several jurisdictions for a long time for the preservation of peace and harmony among nations (Holbrook 2004).
The UK decision still does not have acceptance in international law, as shown in the case of Mr. Yerodia, the Foreign Affairs Minister of Democratic Republic of Congo (Holbrook 2004). One year after the UK decision, a Belgian judge issued an international warrant of arrest for Mr. Yerodia on alleged commission of war crimes in Congo (Holbrook 2004). Congo filed for the annulment of the warrant in ICJ on the grounds that it violated Congo's sovereignty and immunity of Mr. Yerodia under international law (Holbrook 2004). ICJ ruled in favor of immunity but did not pass upon the right of Belgium to exercise universal jurisdiction (Holbrook 2004). In Meyer's book (qtd. in p. 108), the author emphasised that favouring immunity would water down international criminal justice (Holbrook 2004).
International criminal law did not exist formally in that it was not established intentionally as a body of law. Its existence evolved as the need to prosecute international crimes arises and to meet the increasingly complex situations in international law. Although the Nuremberg and Tokyo courts were attributed to be the first to prosecute international crimes, the judgements rendered were not based on international criminal laws per se but on other international laws. As the concept of international criminal law developed, theorists, writers and scholars have to develop the framework to trace the origins and roots of international criminal law as a body. The legal theorists and jurists have to create the foundation of the law in order for it to have a basis in existence and for prosecution of international crimes. Furthermore, judges of international tribunals must have a solid ground upon which their judgements can be based.
Although not formally created, its evolution is a welcome development in international law. As an improvement and addition to international law, the law has an advantage in its application. This advantage can be seen in the scenario wherein the person accused of an international crime living in a country where he is not a resident can be tried for a crime committed in another country upon a warrant of extradition issued by a third country. This legal system, however, requires the consent and acquiescence of the international community and concerned states in order for the law to have force and effect.
One class of crime proscribed under international criminal law is torture and its complementary crime of ill-treatment. International covenants, agreements and statutes usually mention torture and ill-treatment as a group since acts committed that do not fall under the elements of torture fall under the second category. Torture involves the infliction of severe pain and suffering to obtain information, etc. by a government agent and with the sanction of the government. Thus, any pain or suffering inflicted upon a person not to obtain information or without government agent or state participation would be classified as ill-treatment.
Various conventions, treaties, etc. provide the notion of what torture is. However, those instruments have not given a clear-cut definition of what torture is. The three main instruments dealing on human rights, the UN Declaration against Torture (1975), the (UN) Convention against Torture or UNCAT (1984) and the Inter-American Convention to Prevent and Punish Torture (1985) were the basis for the definition of torture, as well as the body of case law compiled under human rights treaties that prohibit torture, particularly the European Convention on Human Rights, although those treaties did not provide the definition of torture (Rodley 2002).
The establishment of the International Criminal Court in 1998 creates the proper court that has jurisdiction over the trial of international crimes, including torture. The very first high officials to be tried of international crimes are Sen. Pinochet and Pres. Milosevic. The ICC statute provides its jurisdiction to try acts of torture under two classes of crimes: a) torture under Crimes against humanity, and b) torture or inhuman treatment including biological experiments under War crimes. With the establishment of a permanent court to try international crimes, this will create a body of case law under international criminal law that would become precedents for future cases with the same elements as those already tried. This would also facilitate the prosecution and trial of those accused of commission of torture and ill-treatment. And ultimately, rendition of more accurate and fast decisions and judgements.
A legal tension concerning the development in international criminal law is the concept of sovereignty under international law that guarantees equality of nations, great or small and immunity of leaders from suit in another jurisdiction. Thus, while a case construed in accordance with international criminal law would strip a state leader of immunity for the war crimes committed, the result would be different if the tribunal applies international law.
Construction of the law on torture likewise poses differing interpretation according the source of law. In the particular case of two German police officers who were found guilty of torture were not punished by the German court because their motive is for the public good, excluded their criminal liability under the national law and international law (Jessberger 2005). Jessberger (2005) suggested a better application that balances the laws, such that even if the motive for applying torture would be to prevent death of innocent people would not free the perpetrator from criminal responsibility under international criminal law, the altruistic motive may be taken into consideration on the sentence to be imposed.
It can therefore be said that the concept of international criminal law is still a young legal framework. The case laws that would become precedents for future cases are still in the developmental stage. The permanent entity charged with the prosecution of international crimes, the International Criminal Court, can also be considered in its infancy. It would take decades to develop solid jurisprudence on international criminal justice. But whatever the ICC has achieved at present is worthy of praise and an essential addition to the jurisprudence of international criminal law and delineation of the crimes of torture. In its limited time, the court has shown that international justice can be achieved by those lowly and weak citizens of a country who were victims of horrible atrocious acts committed by their leaders, who should in fact, be the ones protecting them.
State leaders have been prosecuted by the ICC under the legal framework of international criminal law, which would not have been possible under the concept of international law. Under international law, states are of equal stature and leaders are immune from prosecution by international tribunals. Although international criminal law is under international law, and both utilize the same international conventions or statutes, their application differs. As can be observed, the development of international criminal law is traced to the Treaty of Versailles and the League of Nations, the first international association of nations, for the mutual protection of nations and political and territorial integrity and independence of nations. However, as commented by legal writers, it is the concept of sovereignty of nations that hindered the development of international criminal law.
Thus, more legal theorists and writers, scholars and justices, are needed to contribute their expertise and experience for the enrichment of the legal framework of the international criminal law. More discussions and debates can be held in order to enhance the concept and system of this body of law. But with the important contribution the ICC is doing now, a richer jurisprudence on the subject can be had to serve as guides to future cases and prosecutions. In the long run, as more cases are being tried by the ICC, the issues concerning the definition of torture and its elements can be threshed out, which would include whether the severity of pain and suffering could be an element of the crime.
ICC still relies, besides its Statute and Elements of Crime, on the various definitions of torture under various laws, conventions, treaties, etc. And since such laws and conventions were based on international human rights law and international humanitarian law, and not under international criminal law, ICC has to determine whether the law on torture has evolved into customary law to have the force and effect that can be imposed internationally. In the meantime, the presence of the ICC and its ongoing prosecutions of international crimes is a strong deterrent for the commission of torture and other international crimes.
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