Other International Crimes

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 269-302

269

CHA PTER 6

OTHER INTERNATIONAL

CRIMES

A. INTRODUCTION

As outlined in Chapter 1, the methodology being employed i n this

book distingui shes international crimes from tra nsnational cr imes

and divides the former into two subcategories. The f‌irst, inter nation-

al c rimes in the strict sense (stricto sensu), contains those crimes for

which there is individual liabil ity under international law itself, and

which are deemed by the international community to “shock the con-

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

given jurisdiction to prosecute them. The second subc ategory, called

here simply “other international crimes,” contain s a distinct subset of

crimina l acts which are deemed by st ates to be suff‌iciently odious that

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

mestic cr iminal law systems — even extending to the use of the prin-

ciple of universal jurisdiction. Some of them bear some of the trappings

of international crimes str icto sensu some of the time; t he prohibitions

of torture and slavery, for example, are both jus cogens norms for which

there is a broad consensus that 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 instr uments.

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

dealt with in this chapter — torture, pirac y, apartheid, and slav-

ery — have not attracted the st atus of t he core crimes, but are deemed

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW270

to b e suff‌iciently egregious to justify prosecution of the perpetrators

wherever they may go, so as to ensure they can f‌ind no safe haven. The

f‌ifth, terrorism, bears consideration w ithin th is framework because of

both its currency as a matter of international concern and the complex-

ity of its current status under international law. It is also dealt with as a

transnationa l crime of internat ional concern in Chapter 7.

B. TORTURE

1) History and Def‌inition

The inter national law concerning the practice of torture can be said

to h ave three distinct but interrelated streams: torture as a violation

of human rights; torture as an underly ing offence to an international

crime stricto sensu, that is, war crimes and crimes against humanity;

and torture as a discrete or stand-a lone crime. The second of these cat-

egories is dealt wit h in Chapter 3, and it is the latter body of l aw that

is surveyed here.1

The prohibition of torture emerged as a jus cogens norm in the 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-

nationa l.2 Torture has a long history as a practice used by both state of-

f‌icials and private pa rties, usually in order to fulf‌il l certain goal s, such

as puni shment or the obta ining of inform ation or evidence for use in

court proceed ings.3 However, the revulsion of the i nternational com-

munity grew rapidly in t he post–WW II years, and i n 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 v iolation of

the human rights and fundamental freedoms proclaimed in the Univer-

sal Declaration of Human Rights.”4 This status was given its most import-

1 For torture under inte rnational human ri ghts law, see Mark Freeman & Gibran

van Ert, Inter national Human Rights Law (Toronto: Irwin L aw, 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 to pr event terrorism is occa sionally mooted; see Paola Gaet a,

“May Necessit y Be Available As a Defence against Torture i n the Interrogation of

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

3 See John Langb ein, Torture and the Law of P roof (Chicago: University of Ch icago

Press, 1977).

4 Declaration on the Protectio n of All Persons from Being Subje cted to Torture and

Other Cruel, Inhuma n or Degrading Treatment or Puni shment, GA Res. 3452

Other Intern ational Crimes 271

ant boost by t he 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 transnat ional crime con-

ventions.6 In a ssessing the status of the norm i n the Suresh7 case, the

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

prohibited under numerous international treaties or instr uments, and

to the fact that “no st ate ha s ever legalized torture or admitted to its

deliberate practice and that governments accused of practi sing torture

regularly deny their involvement, placing respon sibility on individual

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

noted in Filartiga, “the torturer ha s become, like the pirate or slave

trader before him, hostis humani gener is, an enemy of all manki nd.”9

There is a powerf ul case for classif ying torture as an international

crime. While it is not an international crime str icto sensu, it is the sub-

ject of several international treaty regimes, the CAT being only the most

global in scope.10 These reg imes differ from most other suppression

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

tion, that the acts of torture themselves w ill be transnational in scope;

rather, it is the will of states to accept the responsibility to prohibit and

punish the tort urer that is internat ionalized. When committed within

certain prescribed circum stances, torture is both a cr ime against hu-

manity and a war crime.11 The most commonly accepted def‌inition of

(XXX), UNGAOR, 30th Sess., Supp. No. 34, UN Doc. A /10034 (1975) at 91, art.

2 [Declaration on Torture].

5 (1984), 1465 U.N.T.S. 85, Can. T.S. 1987 No. 36 [CAT].

6 As of June 2009, the CAT has 146 state pa rties; online: ww w2.ohchr.org/english /

law/c at.ht m.

7 Suresh v. Canada (Minister of Citizenship and Immigratio n), [2002] 1 S.C.R. 3 [Suresh].

8 Ibid. at para. 63. One nee d only look to the controversy swi rling around the

treatment of det ainees in the US Guantan amo Bay internment camp t o take note

of the fact that t he debate has all been around whet her this treatment qu alif‌ied

as torture — the US admin istration has not seriousl y argued that torture is not

unlawfu l. See Karen Greenberg & Joshua Dr etel, The Torture Papers: The Road

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

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

Palgrave Macm illan, 2008).

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

others (FC) v. Secretary of State for the Home Dep artment, [2004] UKHL 56 at

para. 9, Lord Bingha m.

10 See al so, for example, the Inter-American Convent ion to Prevent and Punish

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

the Prevention of Torture and Inhu man or Degrading Treatment or Punishment (26

November 1987), reprinted (1988) 27 I.L.M. 1152.

11 See Ch apter 3.