And we shall be a light unto the nations.
There can be few issues on which international legal opinion is more clear than on the condemnation of torture. Offenders have been recognised as the “common enemies of mankind” (Demjanjuk v Petrovsky 612 F Supp 544 (1985), 566), Lord Cooke of Thorndon has described the right not to be subjected to inhuman treatment as a “right inherent in the concept of civilisation” (Higgs v Minister of National Security  2 AC 228, 260), the Ninth Circuit Court of Appeals has described the right to be free from torture as “fundamental and universal” (Siderman de Blake v Argentina 965 F 2d 699 (1992), 717) and the UN Special Rapporteur on Torture (Mr Peter Koojimans) has said that “If ever a phenomenon was outlawed unreservedly and unequivocally it is torture” (Report of the Special Rapporteur on Torture, E/CN.4/1986/15, para 3).
37. In Canada, article 15 of the Torture Convention has been embodied in the criminal code: see India v Singh 108 CCC (3d) 274 (1996), para 20. In France, article 15 has legal effect (French Republic v Haramboure, Cour de Cassation, Chambre Criminelle, 24 January 1995, No. de pourvoi 94-81254), and extradition to Spain was refused where allegations that a witness statement had been procured by torture in Spain was judged not to have been adequately answered (Le Ministère Public v Irastorza Dorronsoro, Cour d’Appel de Pau, No 238/2003, 16 May 2003). In the Netherlands, it was held by the Supreme Court to follow from article 3 of the European Convention and article 7 of the ICCPR that if witness statements had been obtained by torture they could not be used as evidence: Pereira, 1 October 1996, nr 103.094, para 6.2. In Germany, as in France, article 15 has legal effect: El Motassadeq, decision of the Higher Regional Court of Hamburg, 14 June 2005, para 2.
38. In the United States, torture was recognised to be prohibited by the law of nations even before the Torture Convention was made: Filartiga v Peña-Irala 630 F 2d 876 (1980). Earlier still, it had been said to be “unthinkable that a statement obtained by torture or by other conduct belonging only in a police state should be admitted at the government’s behest in order to bolster its case”: LaFrance v Bohlinger 499 F 2d 29 (1974), para 6.
Monday, December 12, 2005
Arnold P. California | Monday, December 12, 2005 |