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Torture In Emergency Situations

Published online by Cambridge University Press:  21 July 2009

Ester Blanco
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Extract

As is well known, states may take measures derogating from their obligations under the human rights treaties during proclaimed states of emergency. They remain, however, bound to respect certain inalienable human rights, the ‘hard core’, at all times and in all circumstances. The right to life, the prohibition of torture, slavery and retroactive penal measures are thus considered as being a ‘minimum safeguard’ against human rights violations. They are generally accepted as being customary international law, one may even speak of jus cogens. Moreover, one may argue that common Article 3 of the Geneva Conventions, which contains a larger list of human rights than the abovementioned four, should also be respected in situations which are below the threshold of an armed conflict. In the important Case of Military and Paramilitary Activities in and against Nicaragua in 1986 the International Court of Justice held that the rules in common Article 3 are fundamental principles of Humanitarian Law, which are customary law and constitute a minimum, applicable in all circumstances. Even so state practice seems to indicate the opposite; experience has shown that it is during emergency situations that flagrant abuses of human rights are most common, especially in the treatment of persons who have been detained or deprived of their liberty.

Type
Student Contributions
Information
Leiden Journal of International Law , Volume 2 , Issue 2 , November 1989 , pp. 209 - 228
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1989

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References

1. Corfu Channel Case (1949), I.C.J. Rep. 22 (merits); N. Questiaux, Study of the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency, UN Doc. E/CN/Sub.2/1982/15, para. 68. T. Meron, Human Rights in Internal Strife: Their International Protection, at 52 (1987) (Hersch Lauterpacht Memorial Lectures).

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5. ld at 4.

6. Graefrath, M. representative of the German Democratic Republic in the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law as applicable in Armed Conflicts (1974–1977), stated that the introduction of new categories and difficult distinctions (the Geneva Conventions had only referred to two categories of armed conflict, viz. international and non-international; with the creation of Protocol II the category of non-international armed conflicts consisted of conflicts falling under common Article 3 and conflicts of higher intensity falling under Protocol II) was not calculated to strengthen the development of international humanitarian law. Instead it might encourage interference in the internal affairs of states. Therefore in his opinion, common Art. 3 should have the same scope as Protocol II.Google Scholar

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15. Id. para. 86–87.

16. UN. Doc. E/CN.4/Sub.2/1984 and U.N. Doc. E/CN.4/sub.2/1985.

17. On the same date 78 states have ratified Protocol I and 69 Protocol II. Nigeria is the last state which acceded to both Protocols, viz. on 10 October 1988.

18. States of Emergency, Their Impact on Human Rights, a study by the International Commission of Jurists (1983).

19. U.N.Doc.E/CN.4/17/1988.

20. Torture and Violations of the Right to Life under States of Emergency, Document submitted to the UN Special Rapporteur on states of emergency by Amnesty International (1988).

21. U.N.Doc.E/CN.4/13/1987.

22. Final Recapitulation of the General Rapporteur of the Inter-American Seminar on State Security, Human Rights and Humanitarian Law, the Inter-American Institute of Human Rights, San Jose, Costa Rica.

23. supra note 7.

24. The ICRC, the League and the Tansley Report, Considerations of the ICRC and of the League on the Final Report on the Reappraisal of the Role of the Red Cross, Geneva, ICRC, at 19 (1977).

25. T. van Boven, United Nations and Human Rights: a Critical Appraisal, in UN/Fundamental Rights, Two Topics in International Law (ed. Antonio Cassese) at 124–127 (1979).

26. U.N. Doc. E/CN.4/Sub.2/SR.677,123–9 (1973).

27. Res. 1985/33 (1985).

28. Id. note 27, para. 1 and 7.

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33. In her study Mrs. Questiaux mentioned the difficlties she encountered in the preparation of the study as a result of “the non-existence of works of comparative law in the sphere of emergency legislation”. supra note l.para. 12.