Other International Crimes

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 290-324

290

CHAP TER 6

OTHER INTERNATIONAL

CRIMES

A. I NTRODUC TION

As outlined in Chapter 1, the methodology being employed in this book

distinguishes international crimes from transnational crimes and div-

ides the former into two subcategories. The f‌irst, inter national crime s

in the strict sen se (stricto sensu), contains those crimes for which

there is individual l iability under international law itself, and which

are deemed by the international community to “shock the conscience

of humanity” to a suff‌icient extent that international courts are given

jurisdiction to prosecute them. The second subcategory, called here

simply “other international crimes,” contains a distinct subset of crim-

inal acts which are deemed by st ates to be suff‌iciently odious th at all

states may (and sometimes must) prosecute them under their domes-

tic criminal law systems — even extending to the use of the principle

of universal jurisd iction. Some of them bear some of the trappings of

international crimes stricto sensu some of the time; the prohibitions of

torture and slavery, for example, are both jus cogens norm s for which

there is a broad consensus t hat universal jurisdiction is available. More-

over, torture, apartheid, and slavery all appear as the base offences for

war crimes or crimes against humanity (and sometimes both) under

both treaty and customary international law inst ruments.

As noted earlier in Chapter 1, Section C(2), the f‌irst four crimes dealt

with in this ch apter— torture, piracy, apartheid, and slavery — have

not attracted the status of the core cr imes, but are deemed to be suf-

Other Intern ational Crimes 291

f‌iciently egregious to justify prosecution of the perpetrators wherever

they may go, so as to ensure they can f‌ind no safe haven. The f‌ifth, ter-

rorism, bears con sideration within th is framework because of both its

currency as a matter of intern ational concern and the complexity of its

current status under inter national law. It is also dealt with a s a trans-

national crime of intern ational concern in Chapter 7.

B. TORTURE

1) History and Def‌inition

The international law concerning the practice of torture can be said

to have three dist inct but interrelated stream s: torture as a violation

of human rights; torture as an underlying offence to an international

crime stricto sensu, that is, war cr imes and crime s against humanity;

and torture as a discrete or stand-alone crime. The second of thes e cat-

egories is dealt with in Ch apter 3, and it is the latter body of law that

is surveyed here.1

The prohibition of torture emerged as a jus cogens nor m in t he twen -

tieth century, and as such the prohibition is absolute and may not be

derogated from even in times of emergency or crisis, national or inter-

national.2 Torture has a long histor y as a practice used by both st ate of-

f‌icials and private part ies, usually in order to fulf‌ill certain goals, such

as punishment or the obtaining of information or evidence for use in

court proceedings.3 However, the revulsion of the international com-

munity grew rapidly in the post–WW II years, and in 1975, the United

Nations General Assembly (UNGA) unanimously adopted a resolution

condemning torture as “an offence to human dignity and . . . a denial

of the purposes of the Ch arter of the United Nations and as a viola-

tion of the human rights and f undamental freedoms procl aimed in the

Universal Declaration of Human Rights.”4 This status was given its most

1 For torture under int ernational human r ights law, see Mark Freeman & Gibra n

van Ert, Inter national Human Rights Law (Toronto: Irwi n Law, 2004) at 90–92

and 277–83.

2 Though in the curr ent anti-terrorism cli mate, the possibility of a n exception for

torture in order t o prevent terrorism is occa sionally mooted; see Paola Gaet a,

“May Necessit y Be Available as a Defence against Tortur e in the Interrogation of

Suspected Terrori sts?” (2004) 2 JICJ 762.

3 See John Langbei n, Torture and the Law of Proof (Chicago: Univer sity of Chicago

Press, 1977).

4Declaration on the Protection of All Perso ns from Being Subjected to Torture and

Other Cruel, Inhuman or Deg rading Treatment or Punishme nt, GA Res 3452 (XXX),

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW292

important boost by the 1984 United Nations Convention against Torture

and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT),5

which is one of the most widely-adhered-to tran snational cri me con-

ventions.6 In as sessing the status of the norm in the Suresh7 case, the

Supreme Court of Canada was able to point to the fact that torture is

prohibited under numerous international treaties or instruments, and

to the fact that “no state has ever legal ized torture or admitted to its

deliberate practice and that governments accused of practising torture

regularly deny their involvement, placing responsibility on individual

state agents or groups outside the govern ment’s control.”8 As the Court

noted in Filartiga, “t he torturer has become, like the pirate or slave

trader before him, hostis humani generis, an enemy of all m ankind.”9

There is a powerful case for classifying torture as an internation-

al crime. While it is not an international crime stricto sensu, it is the

subject of several international treaty regimes, the CAT being only the

most global in scope.10 These regimes differ from most other suppres-

sion conventions in that there is no requirement, and indeed little an-

ticipation, that the acts of torture themselves will be transnational in

scope; rather, it is the will of states to accept the responsibility to pro-

hibit and punish the torturer th at is internationali zed. When commit-

ted within cert ain prescribed circumstances, torture is both a crime

against humanity and a war crime.11 The most commonly accepted def-

UNGAOR, 30th Ses s, Supp No 34, UN Doc A/10034 (1975) at 91, art 2 [Declara-

tion on Torture].

5 (1984), 1465 UNTS 85, Can TS 1987 No. 36 [CAT].

6 As of July 2013, the CAT has 153 state part ies; online: www.ohchr.org/EN /

ProfessionalInterest/Pages/CAT.aspx.

7Suresh v Canada (Minister of Citizenship a nd Immigration), [2002] 1 SCR 3 [Suresh].

8Ibid at para 63. One need on ly look to the controversy swi rling around the treat-

ment of detainees i n the US Guantanamo Bay inte rnment camp to take note of

the fact that t he debate has all been around whethe r this treatment qual if‌ied

as torture — t he US administration ha s not seriously argued th at torture is not

unlawfu l. See Karen Greenberg & Joshua D retel, The Torture Papers: The Road

to Abu Ghraib (New York: Cambridge Univer sity Press, 2005); Philippe Sands,

Torture Team: Rumsfeld’s Memo and the Betrayal of Amer ican Values (New York:

Palgrave Macmillan, 2008).

9Filartiga v Pena-Irala, 630 F2d 876 at 980 (2d Cir 1980). See also A(FC) and oth-

ers (FC) v Secretary of State for the Home D epartment, [2004] UKHL 56 at par a 9,

Lord Bingham.

10 See also, for ex ample, the Inter-American Convention to P revent and Punish

Tor tu re , OAS Treaty Ser No 67 (9 December 1985); the European Convent ion for

the Prevention of Torture and Inhum an or Degrading Treatment or Puni shment (26

November 1987), reprinted (1988) 27 ILM 1152.

11 See Chapter 3.