Table of Contents:

Part I: Introduction

Part II: Background and terms

1. What is Redress?

2. Barriers to civil redress: Jurisdiction and Immunity

Part III: Obligation of States to Provide Remedies

1. Responsibility to Provide a Remedy

2. Amnesties

3. Obligations of States in the Context of Torture

Part IV: Obstacles to Remedies

Jurisdiction

1. Universal Jurisdiction – Defined

2. Civil Universal Jurisdiction

A – Arguments Against Universal Jurisdiction

B- Maybe Universal Jurisdiction does exist – Greek Example of Universal Jurisdiction

C-Case Study of Universal Jurisdiction – Belgium Legal System

D-Conflicting Interests Influence Jurisdiction

3. An International Civil Claims Court for Victims of Torture

Immunity

1. Applications of State Immunity

Charles Doyle, “Antiterrorism and Effective Death Penalty Act of 1996: A Summary,” online:

2. Exceptions: Jus cogens Norms Justify Relaxing State Immunity

Part V: Criminal Remedies

1. Domestic Remedies

2. Procedural Problems with Prosecutions under Universal Jurisdiction

3. Victims in the criminal process

Part VI: Civil Remedies

1. Basic Principles of Reparations

2. How and Where to Obtain Civil Remedies?

2.1 International Human Rights Mechanisms – Pose Problems in Obtaining Civil Redress

2.2 The Regional Human Rights Mechanisms

2.3 Comparison and Analysis of the Human Rights Mechanisms

4. Individuals Incentives to bring civil suits

5. Advantages of Civil Proceedings

6. Civil Remedy for Torture Victims – Under International Law

7. Civil Remedy for Torture Victims – Under American Law

7.1 Alien Tort Claims Act (ATCA)

7.2 The Torture Victim Protection Act of 1991 (TVPA)

8. Civil Remedy for Torture Victims – Under British Law

9. Lack of Civil Remedy for Torture Victims Under Canadian Law

9.1Grounds for Charter argument in Arar

10. 1 Commercial Exception

11. Conclusions on Civil Remedy

Part VII: Conclusion

Part VIII: Principles and Recommendations

Appendix – Where can Victims go?

1. United Nations Voluntary Fund for Victims of Torture

Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 9 December 1975, Adopted by the General Assembly resolution 3452, Article 1 1. For the purpose of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners. Online: Office of the Commissioner for Human Rights <http://www.unhchr.ch/html/menu3/b/h_comp38.htm>. 66

2. The International Rehabilitation Council for Torture Victims

APPENDIX – Basic Guidelines on the Right to a Remedy

Part I: Introduction

When human rights violations occur, how can abusers be held accountable and how can victims gain redress? In a domestic context, there may be human rights codes and criminal and civil systems that can redress these violations. When the state apparatus is failing to curb or even participating in human rights violations, impunity may reign and victims may be left remediless. Increasingly, international human rights law may provide some solutions to these gaps, by setting out obligations of States to respect and fulfill basic human rights. The principles and obligations that international human rights law impose on States may conflict with traditional international legal principles of state sovereignty, domestic jurisdiction and state immunity. There may not be a perfect way to reconcile competing interests of ending impunity with interests of States, in maintaining State sovereignty and amicable international relations; however, we would argue that an imperfect solution is better than leaving victims without redress.

Part II: Background and terms

1. What is Redress?

For the purposes of the paper, “redress” encompasses both criminal and civil redress. Redress is the provision of something to the victim and / or a process of holding the perpetrator of a violation responsible. Civil redress includes restitution, compensation, rehabilitation, satisfaction and guarantees of non repetition.³ This paper will focus on redress in the context of torture⁴. States have an obligation to provide redress for violations of human rights. Putting flesh on this obligation is essential in ensuring that victims achieve justice. Given the paucity of enforcement mechanisms in international law, domestic courts are vital tools in getting civil redress but first some barriers must be overcome.

2. Barriers to civil redress: Jurisdiction and Immunity

There are two principle barriers preventing claims for civil redress in foreign courts: jurisdiction and immunity. Courts will have jurisdiction over a case if the following 4 questions: Does the court have jurisdiction ratione materiae? (i.e.: Does the court have subject matter jurisdiction over the facts of the case – which cases may be tried before the court?). Does the court have jurisdiction ratione personae? (i.e.: Who may be brought before the court? They generally must be nationals of the forum or be present). Does the court have jurisdiction ratione loci? (i.e.: Did the facts occur within the territory over which legal authority extends?). Finally, does the court have jurisdiction ratione temporis? (i.e.: Did the case occur within the statutes of limitation?).Questions of res judicata and forum non conveniens may also hinder civil redress claims.

State immunity is a principle of customary international law but it is not an absolute bar on liability and responsibility. The exceptions and arguments for its relaxation will be discussed below.

Part III: Obligation of States to Provide Remedies

1. Responsibility to Provide a Remedy

State responsibility and the obligation to provide a remedy for breaches of rights are necessary conditions for the meaningful existence of a right. International conventions, treaties and States’ practices establish that the obligation is, at the very least, a customary legal norm, if not a jus cogens norm.

In a report on the Spanish Zone of Morocco Claims, Judge Hurber noted that: “Responsibility is the necessary corollary of a right…If the obligation in question is not met, responsibility entails the duty to make reparation.”¹¹ The obligation of States to provide a remedy for violations of human rights laws is deeply entrenched in customary international law and has risen to the level of a jus cogens norm.¹² Furthermore, “it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form”.¹³ This is proven by the fact that every major human rights instrument since 1948 provides for remedies by States for violations of international human rights law.¹⁴

2. Amnesties

Amnesties may present the biggest internal challenge to human rights activists fighting for redress because they raise a potential dilemma: the trade-off between peace and justice. Jose Miguel Vivanco, Executive Director of the Americas Division of Human Rights Watch has stated that “justice and the rule of law are the keystone of any peace agreement that lasts. Without justice, peace is fragile, fleeing, and constrained.”¹⁹ The Human Rights Committee has echoed this statement,

…where public officials or State agents have committed violations of the Covenant rights referred to in this paragraph [including torture], the States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties (see General Comment 20 (44)) and prior legal immunities and indemnities.²⁰

However, should an amnesty be granted if that will convince a torturing force to give up power?²¹ If other States or the succeeding government accept the amnesty or grant asylum to a violator such as Charles Taylor²², they may prevent many future human rights abuses. What about the victims, can they get redress? Here, there is a risk of blunt legal instruments interfering with policy matters that require a balancing that may lie beyond the expertise of courts.²³ We would suggest that amnesties in a context of peace and reconciliation for lower level actors are probably more acceptable than self-serving amnesties for retiring dictators, as in the case of General Pinochet. A balanced compromise might include a truth and reconciliation commission, combined with compensation for the victims by the state and civil redress from the individual violators. This balance is also found in the Principles of Impunity at principle 24:

Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds:

(b) Amnesties and other measures of clemency shall be without effect with respect to the victims’ right to reparation, to which principles 31 through 34 refer, and shall not prejudice the right to know;²⁴

The question remains open at this point.²⁵ The important consideration is that the obligation to prosecute or provide a civil remedy must be balanced against the need to end a conflict and promote reconciliation.

3. Obligations of States in the Context of Torture

Obligations on States to provide redress are higher when the violation is of a jus cogens norm. Torture is such a norm therefore the obligation is higher. Evidence for torture being a jus cogens norm comes from the almost universal repudiation of torture in international discourse from States’ practices, courts and scholars.²⁶ The jus cogens nature of a right does not require unanimity; rather, the right must be generally recognized. The major international and regional treaties on human rights, such as the UDHR, the ICCPR and the CAT, to name a few²⁷ provide evidence of state practice and opinio juris that recognize the prohibition of torture. Moreover, even in the most threatening times for a state, such as war, international humanitarian law prohibits torture:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. ²⁸

In Furundzija, the International Criminal Tribunal for the Former Yugoslavia stated that

because of the importance of the values it protects, [the prohibition of torture] has evolved into a peremptory norm or jus cogens, that is a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules… . Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield

authority that the prohibition of torture is an absolute value from which nobody must deviate.²⁹

In the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law³³ (Basic Principles on Reparation), adopted by the UN Commission of Human Rights, principle 11 addresses a victim’s rights to remedies:

Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law:

1.      Equal and effective access to justice;

2.      Adequate, effective and prompt reparation for harm suffered; and

3.      Access to relevant information concerning violations and reparation mechanisms.³⁴

Since torture is a gross violation of international human rights law, torture victims may benefit from this specific principle on remedies.

Returning to redress and compensation, there is a debate about whether the obligation to provide compensation arises at the time of the violation, or whether the obligation to compensate was inherent in the obligation to respect the right?³⁵ The Human Rights Committee provides the outlines of an answer:

Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged.³⁶

Part IV: Obstacles to Remedies

Jurisdiction

In order to provide remedies for victims of torture in Canadian courts, the court’s inability and reluctance to take jurisdiction must be overcome. This section will focus on claims brought before a Canadian court involving acts of torture committed outside Canada, where the victims are either Canadian citizens or foreign nationals, and the offenders are either foreign nationals or foreign States. After defining the principle of universal jurisdiction and its legal basis, the rationale for civil universal jurisdiction will be discussed. Finally, an international mechanism could help in resolving the different issues involved.

1. Universal Jurisdiction – Defined

Universal jurisdiction is a principle that allows a court to hear a case whether or not there is a strong nexus between the forum court and the case brought before it. Universal jurisdiction has been used in the context of crimes against humanity perpetrated by the Nazis during World War II. In Attorney-General of Israel v. Eichmann, the court held that the

“power to try and punish a person for an offence … is vested in every State regardless of the fact that the offence was committed outside its territory by a person who did not belong to it.”³⁸

Universal jurisdiction that exists today is a restrictive form of this concept but is still extending regular domestic jurisdiction to new situations.

Universal jurisdiction is justified by the fact that in the absence of universal jurisdiction, it is highly unlikely that cases against human rights violators (countries or individuals) would ever get a chance to be heard in the court of the state in which the violations occurred. The CAT expressly provides for almost universal jurisdiction in criminal cases:

Article 6.2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.³⁹

States have an obligation to establish jurisdiction over any case where the offender is present in their territory. Thus jurisdiction extends not only to a country’s territory but to territories that are under its influence (cases of intervention, invasion) and factual control.⁴⁰ The measures States are required to take include, investigation and prosecution. However, States are not obliged to extend universal jurisdiction to crimes that are committed overseas, when the offender is not present in their countries.

2. Civil Universal Jurisdiction

A – Arguments Against Universal Jurisdiction

The CAT requires States parties to provide victims of torture and their dependants with compensation when a violation of their rights occurs.⁴⁶ Unlike the criminal provisions of the CAT, the wording of article 14 remains extremely vague. As a result, state parties have an important discretionary power to interpret and enforce this article. In Canada, the evidence of a State practise, that would support the existence of a custom, seems necessary to give force to international written law.⁴⁷ Further, international law is not binding, until it is adopted by statute, and may only be used to help interpret the law and inform the principles of fundamental justice of the Constitution, until it is enacted by Parliament.⁴⁸ At a domestic level, there is an actionable wrong when there is a real and substantial connection to the subject matter, litigation and the forum.⁴⁹ Also there must not be a more convenient forum elsewhere.⁵⁰ Given these principles, the CAT may appear to provide weak legal basis for an international tort inconsistent with clearly established and deeply rooted domestic tort rules in Canada. However, we can perhaps draw support for a more liberal interpretation of jurisdiction from the fact that Parliament signed the CAT knowing that it did call for universal jurisdiction.

B- Maybe Universal Jurisdiction does exist – Greek Example of Universal Jurisdiction

The Greek jurisprudence upheld by the Greek Supreme Court⁵⁴ constitutes an important precedent, which may establish some degree of State practice and strengthen a broad interpretation Article 14 of CAT. To establish its jurisdiction over war crimes and crimes against humanity committed by German armed forces in 1944, the court relied on the jus cogens nature of the prohibition. Because jus cogens norms trump regular customary international laws such as state immunity, the Court was able to hear a proceeding against in a civil claim against a State. The justification of the universal jurisdiction lays in the nature of the tort not in the rule set by the CAT.

C-Case Study of Universal Jurisdiction – Belgium Legal System

Belgium developed a universal criminal jurisdiction law⁵⁷ over war crimes and crimes against humanity pursuant to which, contrary to Canada, a criminal investigation can be initiated by individuals through the mechanism of “constitution of civil party” (partie civile)⁵⁸. Triggered by a case of murder in Rwanda⁵⁹, this new law lead to numerous filing of cases involving heads of States and former officials of foreign government.⁶⁰ Instead of developing a movement of Human Rights implementation among State parties, beyond the legal aspect, the political aspect was involved. As a result, relations between countries deteriorated. Ultimately, the Supreme Court of Belgium dismissed the different cases and the international court of justice in the Arrest Warrant case ruled that Belgium violated its obligations under international law to respect the immunity of the State of Congo’s government.⁶¹ The law was subsequently amended in 2003.⁶²

D- Conflicting Interests Influence Jurisdiction

Accepting universal jurisdiction over civil claims for torture against a state goes beyond legal concerns because the case will affect political, economic, diplomatic and international relations. The State forum is an equal among other equal States. Its taking jurisdiction over another State automatically results in establishing a hierarchy in which the State forum judges the State third party. Even though the State forum may act under its international obligation, the process of implementation is determined by its domestic legal system. The State third party is as a result treated as another citizen who is a subject of the State forum.

3. An International Civil Claims Court for Victims of Torture

When a State is tried by another State, it is likely that the defendant State would refuse to comply with an order of compensation issued by the civil court, as a result disregarding its international obligations. Reprisals from a State defendant in a civil action, against a State forum that tried the case, could be avoided by the creation of an international civil claims court. While civil claims between two individuals where a sufficient nexus may be established as provided for under the CAT⁷¹, should be dealt with in domestic courts, an international mechanism should deal with cases where serious issues are involved. Serious issues that may arise would include when a State is defendant, when the defendant is an individual who was, or perhaps still may be, part of a government. It would fill the legal void left by the non application of article 14. Also, though the enforceability of damages awarded remains debatable, it would likely be facilitated.

Immunity

State Immunity is an integral part of any discussion about redress for torture, because it is the most common defence used by States to deny redress to torture victims. It is important to understand the historical emergence of this concept, its evolution, and its different modern conceptions. State immunity began as an absolute concept and has evolved over time to what can be termed restrictive immunity. There are variations in both substance and applicability in different jurisdictions in the world. There is room to argue for further relaxation of the concept that would allow for the progression of the human rights movement, while still respecting the concept of state immunity, to the extent that it is necessary.

1. Applications of State Immunity

There are three applications of immunity. First, in a domestic context, the national government may provide immunities for its own government officials, before its own courts. This is consistent with the original historic conception of immunity where the sovereign ruler of the nation, a king or queen for example, would be exempt from his or her own laws. Second, the national government may provide immunity for foreign States and their officials, from the jurisdiction of the domestic courts.⁷⁸ Third, international bodies may provide immunities for States and their officials, before international judicial bodies.⁷⁹ It is interesting to note that the statutes of the international criminal tribunals created so far, have called for the inapplicability of immunities in all circumstances. This principle was explained in the case against former Liberian President Charles Taylor. The Special Court for Sierra Leone commented that

[a] reason for the distinction … between national courts and international courts, though not immediately evident, would appear due to the fact that the principle that one sovereign state does not adjudicate on the conduct of another state; the principle of state immunity derives from the equality of sovereign States and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community.⁸⁰

Here the international community, represented by the UN Security Council, was sitting in judgment on a leader of a nation rather than one nation judging another. Therefore, denying state immunity does not offend sovereign equality in this context.

There are two approaches to looking at the concept of immunity. The first is state immunity as a fundamental right of States under international law. The second is state immunity as an exception to the jurisdiction of the forum state. Taking the Peace of Westphalia in 1698 as the beginning of the development of the concept of nation States and state sovereignty is an accurate starting point.⁸¹ From that point onwards, sovereign equality formed the basis of international law and relations. It was seen as necessary if the new order for the organization of the world into nation States was to succeed. With sovereign equality as the centerpiece of the system, state immunity developed as a necessary tool to respect this principle of international law.

2. Exceptions: Jus cogens Norms Justify Relaxing State Immunity

Exceptions to state immunity include commercial exceptions, tort exceptions, criminal exceptions, and exceptions when faced with jus cogens norms. There is specific Canadian legislation that deals with the first three; they will be discussed below in Part VII: Civil Remedies. Here there will be a discussion on the interaction between state immunity, which is generally recognized as a customary international law, and jus cogens norms, such as the prohibition against torture.

There are two ways of approaching the issue of whether or not immunity can apply in cases where jus cogens norms have been violated. These approaches are the hierarchy of norms approach and the implied waiver approach. Both approaches provide the same end result: Immunity cannot be invoked in cases where jus cogens norms have been violated.

The first theory is more straightforward and argues that jus cogens norms are non-derogable and by definition trump any other law, other than other jus cogens norms.⁹⁰ Therefore, the jus cogens status of the prohibition against torture would trump the customary international law concept of state immunity.

The second theory is slightly more nuanced and was used in Pinochet⁹¹ to deny ratione materiae immunity. In Pinochet⁹², the court found that because of the jus cogens status of the prohibition against torture, and the fact that Chile was a party to the Convention Against Torture⁹³, Chile recognized the international illegality of torture as a jus cogens norm and therefore, waived its immunity in respect to torture. This conclusion followed logically because what is an international crime cannot also be classified as an official act of the state.⁹⁴ In a UK case, William Sampson, a citizen of both the UK and Canada, filed a civil claim against government officials from Saudi Arabia that were responsible for his torture while he was held in Saudi Arabia. In that case the court referred to the Pinochet reasoning for criminal action and said that the same logic should apply to civil actions.⁹⁵

Part V: Criminal Remedies

These international courts have several advantages over domestic courts in dealing with international crimes such as torture⁹⁶: legitimacy, wider prescriptive and enforcement jurisdiction, and greater powers of denunciation. Legitimacy arises from the fact that one state is not judging another, but rather the “world community” is judging. The Rome Statute gives the court jurisdiction over a wide range of offences.⁹⁷ ICC decisions may also reach a wider audience, because the verdict will ring out over the international media airwaves in ways that domestic decisions may not.

The disadvantages of international courts include lack of resources and limited discretion for prosecutors. International courts may lack the resources to try a wide volume of cases and they may not be accessible to individuals’ complaints. The process is complicated and expensive and victims may be marginalized within their own communities. These factors make redress less attainable. More specifically, the ICC prosecutor’s office is limited in its discretion to prosecute, which may limit the victims’ ability to get redress through the court. There is a pre-trial chamber that approves each of the charges. There is a strong oversight power granted to the Security Council:

“no investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”⁹⁸

Having identified some disadvantages of the international courts, we wish to emphasize that they will still play an important role in eliminating impunity. However, we would suggest that domestic courts have an important role to play in criminal prosecutions of human rights cases.

2. Domestic Remedies

The CAT obliges States to create offences⁹⁹ of torture in their domestic legal systems and either extradite or prosecute torturers.¹⁰⁰ Amnesty International estimates that at least 120 States have enacted legislation “which would appear to permit their courts to exercise universal jurisdiction over conduct amounting to some or all war crimes in certain circumstances.”¹⁰¹ The United States and Canada have each enacted laws against torture.

In Canadian law, torture is prohibited under s.269.1(1) of the Criminal Code¹⁰²

Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Torture is also listed as a crime against humanity under the Crimes Against Humanity and War Crimes Act (CAHWC)¹⁰³

2.1 Procedural Problems with Prosecutions under Universal Jurisdiction

While we would argue that domestic courts should take jurisdiction and prosecute, there are some issues¹⁰⁴ that need to be discussed: (i) what is a reasonable time for trial? (ii) what is the standard of procedural fairness when the trial is taking place outside of the state where the crime took place and where the witnesses reside. These issues were analyzed in a motion in the case of R. v. Ribic¹⁰⁵. The court held that even though the defendant had been in detention or on bail for over four and half years, the accused’s interest in a quick trial did not outweigh the interests of society in having a verdict.¹⁰⁶ The case was so important and the crimes (kidnapping to prevent UN intervention) so heinous that the court felt the delay was justified. The question of fairness was more difficult because of challenges of providing evidence and ensuring that cross-examination was available in cases where the witness was overseas or there was secret-evidence. The judge held that

the fact that witnesses that could produce evidence relevant to the charges before the court are not able to be compelled nor that the limits placed on the form and extent of the evidence produced from witnesses A and B amount to a denial of Mr. Ribic’s fair trial rights or his rights to call a defence and to answer the case for the prosecution warranting a stay of proceedings.¹⁰⁷

Most human rights advocates would support the idea that due process and fairness are vital in the process of prosecuting war criminals, but this does not mean that the prosecution should not occur. Therefore, we call for the taking of jurisdiction and prosecution of human rights violators by domestic courts, while ensuring due process for the accused.

3. Victims in the criminal process

Judge Baltasar Garzón, a Spanish judge has been heavily involved in prosecuting cases of crimes against humanity including the Pinochet case. In an interview he stated

I think that the victims are the most forgotten in all negotiations, reconciliations, and truth commissions. Victims are almost always marginalized, which is curious as they are those who suffer and have suffered the crimes under investigation.¹⁰⁸

The inability of criminal procedures to adequately address those issues is one reason why civil processes are important, because in the common law system at least, civil processes are victim driven.

One positive development in this respect is the provision of reparations in the rules of the ICTY, the ICTR, and the Rome Statute of the ICC. Article 75 (1) of the Rome Statute provides that the Court shall “establish principles relating to reparations to, or in respect of, victims” and, based on these principles, the Court may “determine the scope and extent of any damage, loss and injury to, or in respect of, victims”. Article 75(2) authorizes the Court either to “make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation” or, where appropriate, to “order that the award for reparations be made through the Trust Fund provided for in article 79”. We would suggest that these principles will only be effective in cases where the perpetrator has money. However, they do point to an emerging norm that may be applicable in the civil context: a convicted person bears responsibility to pay compensation to the victim. This will be important to the discussion below.

Part VI: Civil Remedies

1. Basic Principles of Reparations

In April of 2005, the 61^st Session of the UN Commission of Human Rights adopted the Basic Principles on Reparation after years of discussion and research by experts such as Professor Theo van Boven who presented the first draft of the Principles in 1993.¹⁰⁹

2. How and Where to Obtain Civil Remedies?

Torture victims may seek redress from the government of the country where the violation occurred or from the individual who allegedly committed the violation if known.¹¹⁰ Initially, the obvious choice may be for the victim to bring a suit in the state where the torture took place, but usually this is impossible, due to political realities. Those who committed the torture are often linked to the government and the victim may be left without a chance to get his or her case heard. When it is not an option to present a case in the country where the torture took place, the victim may attempt to bring the claim before international forums, regional forums and foreign courts.¹¹¹

2.1 International Human Rights Mechanisms – Pose Problems in Obtaining Civil Redress

This section will discuss the three principle international bodies¹¹² that deal with torture: The Committee Against Torture and the Human Rights Committee, which are bodies created under the international human rights treaties; and the UN Commission on Human Rights, which created the Special Rapporteur on Torture.¹¹³ While these bodies provide hortatory statements and denunciation of perpetrators of human rights violations, they are unable to enforce their rulings and they lack independent investigative powers. Access for victims is limited because they must have exhausted all available domestic remedies and the state in question must have enabled the body to receive complaints.¹¹⁴

2.2 Comparison and Analysis of the Human Rights Mechanisms

In conclusion, there exist a multitude of international and regional conventions theoretically protecting human rights and stating the right to remedies for torture victims. Committees are created in conjunction with the conventions to see that the State Parties respect them. However often the human rights committees may only monitor but not actually enforce or implement the conventions. The committees also have the power to consider victims’ complaints and they may recognize the need to compensate such victims, but they do not always have the power to enforce their orders and thus, cannot effectively and directly protect torture victims. The European Convention for Human Rights has some enforcement capabilities and its judgements have been persuasive. The ECHR may be a model for future civil courts.

3. Individuals Incentives to bring civil suits

Author John Terry writes about tort remedy and what is called the “third country legal actions” – “nationally-based remedies that attempt to hold human rights violators individually responsible for serious human rights violations committed abroad”.¹¹⁷ Terry emphasises the importance for courts in other jurisdictions to embrace tort remedy and that this important concept should not be marginalised as it is now. According to Terry, “the civil remedy is in many respects more useful and effective than the universal criminal remedy.”¹¹⁸ The tort remedy serves two purposes: it places moral and political pressure on governments who abuse human rights and it allows victims to obtain compensation and provides them the opportunity of recognition and emotional vindication.¹¹⁹

4. Advantages of Civil Proceedings

There are numerous advantages of civil proceedings for torture victims, which are aimed at meeting the needs of the victims, especially when compared to criminal proceedings. Civil remedies offer victims the opportunity to receive some form of compensation, whether financial or other. Financial compensation can alleviate the stress related to financial problems, especially when the victim has suffered physically, mentally or emotionally to the point of being unable to work. In addition, in many cases victims have a family to support and long term medical care to pay for.¹²⁰

Finally, civil proceedings generate public discourse, activism and social reform which positively impacts torture victims as well as society.¹²⁴ For example, although Mr. Bouzari lost his case against Iran¹²⁵, he found a positive outcome, as stated by his lawyer, Mark Arnold:

there has been tremendous therapeutic effect on Mr. Bouzari as a torture victim by having an opportunity to give evidence, to testify freely and openly in a court, and to be heard and to be listened to. It was like he went from night to day. From a former shell of a person, he has now become a full human being in an emotional sense and in an intellectual sense – a man with humour, passion, and love.¹²⁶

6. Civil Remedy for Torture Victims – Under International Law

Under international law, mostly by means of international conventions, torture victims have opportunities to seek redress and gain compensation for their suffering. This is clearly established in Article 14 of the UN Convention Against Torture¹²⁹, as already mentioned in the paper. Furthermore, article 2 of the International Covenant on Civil and Political Rights, establishes that States have an obligation “to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.”¹³⁰

Why then is it so difficult for torture victims to obtain redress if there are numerous provisions in international conventions supporting them? The problem is at the level of implementation and state sovereignty. States who have ratified the international convention may not feel obliged to respect it due to its inconsistency with its national legislation.

7. Civil Remedy for Torture Victims – Under American Law

In the United States, torture victims have recourse to a civil remedy through two pieces of legislation, the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TVPA) of 1991. They suggest a model for Canada.

7.1 Alien Tort Claims Act (ATCA)

The Alien Tort Claims Act (ATCA) was part of the original Judiciary Act of 1789 and enacted by the first Congress of the U.S.¹³¹ The text in its entirety reads: “The district courts shall have original jurisdiction of any civil action by an alien for a tort [personal injury] only, committed in violation of the law of nations or a treaty of the United States.”¹³² The numbers of litigants seeking redress under the ATCA are increasing, as a result of international concern for human rights and awareness of the ATCA.¹³³ However, some of the American courts have been cautious in limiting ATCA claims to those related to “specific, universal, and obligatory” violations of international norms and have dismissed claims that did not meet this high standard.¹³⁴ By 1979, torture had become one of the violations of customary international law and thus victims of torture abroad had the opportunity to bring their case before the U.S. courts. The U.S. is the only country in the world with such a law.¹³⁵

7.2 The Torture Victim Protection Act of 1991 (TVPA)

The Torture Victim Protection Act of 1991 approved the ATCA decisions and extended the ATCA provision by allowing US citizens to also bring claims before US courts and against individuals acting under “actual or apparent authority, or color of law, of any foreign nation,”¹⁴⁷ for torture and extrajudicial killing. This more explicitly signals Congress’s intent to provide civil remedies for human rights abuse victims, whether they are alien or not. This is evidence of state practice and opinio juris that at least one country believes that international human rights violations require civil remedy. Congress passed this act to carry out CAT’s intent, which is seen as being “enforcement-oriented” as it States the obligation to provide means of civil redress to torture victims.¹⁴⁸ The TVPA thus recognizes that “the law of nations is incorporated into the law of the United States and that violation of the international law of human rights is (at least with regard to torture) ipso facto a violation of U.S. domestic law”.¹⁴⁹

8. Civil Remedy for Torture Victims – Under British Law

In Ron Jones and Ors. v. Saudi Arabia¹⁵⁰, Jones sued both the Saudi officials and the Saudi government, and William Sampson, a dual citizen of Canada and Britain and two other plaintiffs, sued the Saudi officials who tortured them, in a precedent-setting case. In 2004, Britain’s Court of Appeal ruled that Saudi individuals alleged to have committed torture against the British nationals could not hide behind immunity provisions that existed under international and English law.¹⁵¹ The Saudi government received state immunity under the British SIA 1978. Justice Mance in the Court of Appeal stated that to grant immunity to Saudi officials would violate Article 6 of the European Convention on Human Rights which grants the right to court access “where the victim of torture had no prospect of recourse in the state whose officials committed the torture”.¹⁵² It is concluded in this case that “a foreign state cannot possess … any absolute right to claim immunity in respect of civil claims against its officials for systematic torture, even committed outside the country of the suit”.¹⁵³ This case grants British victims of torture committed abroad civil redress in British courts.¹⁵⁴ However, it does not stand for the proposition that non-citizens may sue in British courts.

9. Lack of Civil Remedy for Torture Victims Under Canadian Law

9.1Grounds for Charter argument in Arar

Mr. Arar argued in his factum for the Bouzari case that s. 7 of the Charter has been violated, because he was a Canadian citizen at the time of torture in a foreign jurisdiction, and did not receive protection from his own government when he requested it.¹⁵⁶ Article 7 of the Charter of Rights and Freedoms states that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”¹⁵⁷ In this case, his right to security of person was violated by psychological distress, which was caused by two factors: torture, and the failure of the Canadian government to provide him with a remedy. In addition, Mr. Arar argues that “the nexus between the state action and the deprivation of the security of the person is also present” because the Canadian government failed to provide him with diplomatic protection.¹⁵⁸ The Charter questions have yet to be litigated in the claim against Syria, but they might be grounds for finding the SIA unconstitutional.

10. 1 Commercial Exception

The third exception is the commercial exception, this is found in s.5 of the SIA¹⁷⁴, and it reads:A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.¹⁷⁵In the leading case for this exception, Re Canada Labour Code, LaForest J. said: The proper approach to characterizing state activity is to view it in its entire context. This approach requires an examination predominantly of the nature of the activity, but its purpose can also be relevant.¹⁷⁶In Bouzari, the court claimed that the nature of the acts was the exercise of law enforcement powers, and that despite the fact the motives were for commercial purposes, the exception would not apply.¹⁷⁷ The court seems to be giving little to no weight to the purpose of the acts. While they mention its importance in the abstract, the analysis seems to disregard its importance.

11. Conclusions on Civil Remedy

There are obstacles preventing torture victims from obtaining civil remedy, including the fact that most domestic legislation is inconsistent with international conventions, which explicitly prohibit torture and establish that torture victims should get redress and compensation. However, there is some hope as forums do exist for victims to seek redress, such as the American ATCA, but they are few and far between. Because torture is recognized as being a jus cogens norm, there is a need for strict measures enforcing courts to be more conducive to victims in order to get civil remedy at the national or international level, regardless of where torture occurs and where the parties originate from. As many examples have shown, an important part of the healing process for victims is the opportunity to tell their story and get it “on the record” in an official court, to speak the truth about their suffering and to bring their perpetrators to justice. These forms of reparation have been characterized as being symbolic in nature and often considered much more valuable to the victim than monetary compensation.

Part VII: Conclusion

The path to justice for victims of torture and other crimes against humanity is beset by legal and political hurdles. This paper has focused on the legal obstacles to redress, jurisdiction and state immunity, but it is important to remember that victims are not seeking redress in a vacuum. The international world is still one dominated by sovereign states. They will not easily give up their sovereignty just to provide remedies for individuals. Political-economic concerns of trade and industry also influence the degree to which one country will permit its courts to judge another. This means that human rights activists and governments who believe in the rule of law must come up with pragmatic legal solutions that will be politically palatable. Our recommendations are discussed in more detail in Part IX (Principles and Recommendations), but our main conclusion can be summarized as follows. Since torture is a jus cogens norm, states and individual perpetrators, regardless of their political status, should be held responsible and not be able to hide behind the immunity veil. States must provide redress to victims of torture who should able to bring their perpetrators before justice. We believe that to achieve this will require political and legal savvy.

Part VIII: Principles and Recommendations

1.      States have obligations under international law to provide redress for violations of fundamental human rights, especially torture

• Civil remedies play an important role in ensuring that

o        victims receive compensation

o        perpetrators are denounced

• States have an obligation to provide redress for torture victims under article 14 of the CAT
• States should provide for rehabilitation of victims in specialised centers, or contribute to the International Rehabilitation Council for Torture Victims

1.      Criminal jurisdiction should be exercised

• States should fulfill their duties under CAT and prosecute or extradite

1.      Amnesty should only be available in extreme circumstances

• It should only be available in long lasting internal conflict situations and / or when amnesty will promote reconciliation
• The decision to allow amnesty should balance the interests of victims of torture and reconciliation
• An amnesty declared by a legitimate democratic government will be more persuasive than one that is declared by a dictator
• Compensation should still be provided for victims

1.      Where there are violations of the jus cogens norm of the prohibition against torture, state immunity should not apply. This principle shall apply to all government officials complicit in torture.

1.      Canada should amend the SIA so that the interests of victims are better served, and offenders (state or individual) are more accountable

• tort exception

o        In cases of torture, a victim shall be allowed by domestic courts to bring a tort action against any government and/or government officials complicit in the torture, as long as a nexus between the events and the court is established

o        The nexus requirement will be satisfied where:

§         the victim is Canadian;

§         the offender is Canadian, or;

§         the events occurred in Canada.

• commercial exception

o        when determining whether the events qualify under the commercial exception, the predominant focus of the courts should be the purpose of the acts, as opposed to the nature of the acts. (i.e. torture carried out for commercial purposes would be considered commercial).

1.      Create an International Civil Court for claims arising out of human rights violations

• There has to be an independent organisation in charge of its functioning
• The court could have jurisdiction over

o        Individuals,

o        States, or

o        Individuals and States

• There has to be serious means of implementation and enforceable remedies from the court
• The subject matter of the court should be constrained so that States do not consider it an infringement on their sovereignty except as far as serious human rights violations occur. One option would be to only allow claims in relation to violations of jus cogens norms.

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Appendix – Where can Victims go?

1. United Nations Voluntary Fund for Victims of Torture

The UN Voluntary Fund for Victims of Torture (the Fund)¹⁸⁰ allocates grants to non-governmental organizations that run projects for torture victims (victims of torture as understood in Article 1 of the UN Declaration against Torture)¹⁸¹. The grants are allocated to “projects providing direct medical, psychological, social, economic, legal, humanitarian or other forms of assistance to torture victims and members of their family.”¹⁸² Even though the Fund does not provide direct financial compensation to victims, it offers various forms of reparation through the projects it funds, to help torture victims go through the long and important healing process.

2. The International Rehabilitation Council for Torture Victims

The International Rehabilitation Council for Torture Victims (IRCT) is based in Denmark and is an independent and international health professional organisation which works for the prevention of torture worldwide and supports and promotes the rehabilitation of torture victims.¹⁸³ It works in collaboration with a global network of 104 other rehabilitation centres and programs worldwide and works in partnership with intergovernmental organisations, governments, human rights organisations and health professional organisations. “The IRCT strives to promote a world that values and accepts shared responsibility for the eradication of torture.”¹⁸⁴ In light of this, the Council raises awareness of the rehabilitation needs of torture victims, promotes and supports the establishment of treatment facilities worldwide, works to prevent torture and aims at ending impunity, and records the consequences of torture.¹⁸⁵

APPENDIX – Basic Guidelines on the Right to a Remedy

These are some examples of the types of reparations that victims may receive. They are taken from the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” ¹⁸⁸

1. In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non repetition.

2. Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.

3. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning potential;
4. Rehabilitation should include medical and psychological care as well as legal and social services.

5. Satisfaction should include, where applicable, any or all of the following:
(a) Effective measures aimed at the cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons wh