Other International Crimes

• Author: Joseph Rikhof/Robert J Currie
• Pages: 327-363

327

CHAPTER 6

OTHER INTERNATIONAL

CRIMES

A. INTRODUCTION

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, international crimes in

the strict sense (stricto sensu), contains those crimes for which there is

individual liability 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 criminal acts which

are deemed by states to be suff‌iciently odious that all states may (and

sometimes must) prosecute them under their domestic criminal law sys-

tems — even extending to the use of the principle of universal jurisdic-

tion. Some of them bear some of the trappings of international crimes

stricto sensu some of the time; the prohibitions of torture, apartheid, and

slavery, for example, are jus cogen s norms for which there is a broad con-

sensus that universal jurisdiction is available.1 Moreover, these three

crimes appear as the base offences for war crimes or crimes against

1 Report of the Inte rnational Law Commission , Seventy-f‌irst session (29 April–7 June

and 8 July–9 August 2019),General Assembl y Off‌icial Records, Seventy-four th

Session, Supp No 10, UN Doc A /74/10, Chapter V, Peremptory Norm s of Gen-

eral Intern ational Law (Jus Cogen s), Annex at 146– 47 (which al so mentions the

core crimes of ag gression, genocide, cri mes against humanity, and war c rimes

INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW328

humanity (and sometimes both) under both treaty and customary inter-

national law instruments.

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

with in this chapter — torture, piracy, apartheid, and slavery — have

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

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 consideration within this framework because of both its

currency as a matter of inter national concern and the complexity of its

current status under international law. It is also dealt with as a trans-

national crime of international concern in Chapter 7.

B. TORTURE

1) History and Def‌inition

The international law concerning the practice of torture can be said

to have three distinct but interrelated streams: torture as a violation

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

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

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

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

is surveyed here.2

The prohibition of torture emerged as a jus coge ns 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-

national.3 Torture has a long history as a pract ice used by both state off‌i-

cials and private par ties, usually in order to fulf‌ill certain goals, such as

punishment or the obtaini ng of inform ation or evidence for use in court

proceedings.4 However, the revulsion of the international community

grew rapidly in the post–World War II years, and in 1975, the United

as well as the r ight of self-determinat ion), online: http://legal.un.org/docs/

?symbol=A/74/10 [UN Doc A/74/10].

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

van Ert, Internat ional Human Rights Law (Toronto: Irwin L aw, 2004) at 90 –92

and 27 7–83.

3 Though in the current a nti-terrorism clim ate, the possibility of an e xception for

torture in order to pr event terrorism is occa sionally mooted; see Paola Gaeta ,

“May Necessit y Be Available as a Defence Against Torture i n the Interrogation of

Suspected Terrori sts?” (200 4) 2 JICJ 762.

4 See John Langbe in, Torture an d the Law of Proof (Chicago: University of Chicago

Press, 1977).

Other International Crimes329

Nations General Assembly (UNGA) unanimously adopted a resolution

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

of the purposes of the Charter of the United Nations and as a viola-

tion of the human rights and fundamental freedoms proclaimed in the

Universal Declaration of Human Rights.”5 This status was given its most

important boost by the 1984 United Nations Convention against Torture

and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT),6

which is one of the most widely-adhered-to transnational crime con-

ventions.7 In assessing the status of the norm in the Suresh8 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 legalized 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 government’s control.”9 As the Court

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

trader before him, hostis humani generis, an enemy of all mankind.”10

There is a powerful case for classifying torture as an international

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

ject of several international t reaty regimes, the CAT be ing only the most

global in scope.11 These regimes differ from most other suppression

5 Declaration on the Protectio n of All Person s from Being Subjected to Torture and

Other Cruel, Inhuma n or Degrading Treatme nt or Punishment, GA Res 3452 (XXX),

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

tion on Torture].

6 (1984), 1465 UNTS 85, Can TS 1987 No 36 [CAT].

7 As of Septemb er 2019, the CAT has 153 state part ies; online: www.ohchr.org/

EN/ProfessionalInterest/Pages/CAT.aspx.

8 Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3 [Suresh].

9 Ibid at para 63. One need only look to t he controversy swirling a round the treat-

ment of detainee s in the US Guantanamo Bay int ernment camp to take note of

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

as torture — the US adm inistration has not se riously argued that tort ure is not

unlawfu l. See Karen Greenberg & Joshua Dret el, The Torture Papers: The R oad

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 Macmillan, 2008).

10Filart iga v Pena-Irala, 630 F2d 876 at 980 (2d Cir 1980). See also A(FC) and others

(FC) v Secretary of State for the Home Depar tment, [2004] UKHL 56 at para 9, Lord

Bingham.

11See als o, for exa mple, OAS, Inter-American Convention to Preven t and Punish

Torture, 9 Dece mber 1985, OAS Treaty S eries, No 67, online: www.refworld.org/

docid/3ae6b3620.html [Inter-American Torture Convention]; the European Conven-

tion for the Preventi on of Torture an d Inhuman or Degrading Treatment or Punish-

ment (26 November 1987), reprinted (1988) 27 ILM 1152.