Sunday, May 3, 2009

European Court of Human Rights: Criminal universal jurisdiction for torture is OK

In its March 30th decision of inadmissibility in the case of Ould Dah v. France (decision available in French only), the European Court of Human Rights held that France had not violated the prohibition in the European Convention on retroactive punishment when it prosecuted a Mauritanian army officer for acts of torture committed in Mauritania in 1990 and 1991. (photo credit)
As the press release that the Court issued in English explains, Ould Dah came to France in 1998 to attend a military training course, and was arrested after human rights NGOs filed a criminal complaint in 1999. While under investigation for alleged acts of torture and barbarity, Ould Dah was released on bail and fled the country. He was convicted in absentia (his lawyer represented him through all proceedings, an option that satisfies French and European requirements of adversariality) and sentenced to 10 years in prison. He was also ordered to pay civil damages. Ould Dah did not challenge the prosecution per se, but claimed that: it was not foreseeable that France would apply French law rather than Mauritanian law (under which he benefits from a grant of amnesty); and France applied its current Penal Code, adopted in 1994, rather than the Code that was in effect in 1990-1991. The Court's press release covers this in some detail, so I'll discuss other things that struck me in reading the decision.
► For one thing, the Court takes an approach similar to that of the U.S. appellate court in Filártiga (1980). Just like the Filártiga court, the European human rights court compiled an impressive list of international instruments prohibiting torture. Today, unlike in 1980, those instruments are backed up by decisions of international tribunals: the International Court of Justice's 2002 "Arrest Warrant" case (Congo v. Belgium) and the International Criminal Tribunal for the former Yugloslavia's Furundzija, Delacic & Kunarac cases). The Court aligns itself with the ICTY, holding on the basis of this list that the prohibition of torture is a jus cogens norm - and one that was incorporated into French law in 1987.
► The Court also cited the U.N. Human Rights Committee's 1994 General Comment #20 to the International Covenant of Civil and Political Rights. The Comment states that amnesty is generally not compatible with states' duties to investigate acts of torture and protect against their commission within its jurisdiction. Moreover, states cannot deprive individuals of their right to an effective remedy, including compensation. This is particularly interesting because, as the folks at ECHR Blog point out in their discussion of the decision, the European court had to distinguish Ould Dah from its own 2001 holding in Al-Adsani v. United Kingdom. In that case, the Court found there was no violation of Al-Adsani's right to an effective remedy when the UK refused to waive the immunity of Kuwait and the officials named in Al-Adsani's complaint (all of whom were still in office) to allow him to bring a civil suit to obtain compensation for torture. In Ould Dah, the Court emphasized that individual criminal liability was at issue, and that

giving precedence to amnesty laws of the country in which the torture occurred would render the aims of the [Convention Against Torture] meaningless.

The Court did allow that prosecution might "clash with the will to achieve reconciliation in the society at stake," but Ould Dah does not seem to have raised the issue, and the Court gave it rather short shrift. Having determined that no such reconciliation efforts had been undertaken in Mauritania, it found that France's exercise of jurisdiction met the complementarity requirements of Article 17 of the Statute of the International Criminal Court.
While the Court's decision is to be welcomed as further authority on the rank and importance of the prohibition against torture, I am troubled by:
► the unequal rank the decision assigns to victims, implicitly favoring those who have access to criminal proceedings; and
► the implicit precedence the decision gives to the punitive function of criminal trials, even in cases in which more attainable goals -- goals that may be achieved in civil as well as criminal trials -- are reparation for the victims and the use of the trial narrative to heal the injured society.
As Auschwitz survivor Elisabeth Mann was quoted as asking in an earlier post,

'What is punishment for a person who is capable to do such horror?'

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