University of Ottawa

Law Faculty

Common Law Section

Redress for Torture Victims: Principles and Recommendations for Improving Access to Justice

Originally prepared for

CML 4114 JC

Professor Lorne Waldman

Spring 2006

Authors: Saam Askari

Tim Brown

Chelsea Paradis

Morgane Tidghi

Please contact Tim Brown at mitbrown@gmail.com with questions or inquiries. All errors and omissions are the responsibility of Tim Brown.

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.

Civil claims in foreign courts are an important way to hold perpetrators accountable¹ and provide compensation to victims. There is a concern that excessive use of civil remedies may interfere with the comity of nations or tie up the courts in unending complex litigation. This may or may not be a valid concern, given the jus cogens and erga omnes nature of torture. We suggest several amendments to the Canada’s State Immunity Act², which provide exceptions to immunity while ensuring that the courts are not overwhelmed with litigation.

To understand the issues and ways that redress for torture may be achieved, the analysis will proceed as follows. Part II will outline the background of redress, and the obstacles to redress: jurisdiction and State immunity. Part III will outline the arguments for States obligation to provide remedies and the erga omnes obligations of States in the context of torture. Part IV will go examine in more detail the principle obstacles to redress: jurisdiction, which restrains the abilities of States to prescribe or enforce remedies; and state immunity, which prevents criminal or civil claims against states or their representatives. Part V will analyze the prospects of a civil remedy for torture victims under international, regional, and domestic mechanisms with a focus on Canada and some suggestions for amending the State Immunity Act.

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.

The jurisdiction of a state is limited by the jurisdiction of other States on the basis of these four rationes. If a state considers its courts an appropriate forum to hear cases without a nexus, this may result in the infringement of the international customary rule of non-interference. This would challenge state sovereignty and sovereign equality. The development of international relations and the growing interaction between populations of different jurisdictions has lead to the relaxation of rigid jurisdiction principles. This will be further discussed below.

State immunity under international law prevents a state or a state representative from being judged by a foreign court. ⁵ from judgment in a foreign court. State immunity exists to ensure respect for the sovereign equality of nations, non-intervention in the internal affairs of other nations, dignity, comity, and international relations.⁶ There are two types of immunity. The first is ratione materiae; this immunity is based on the nature of the acts committed. This means that actions that may be considered official functions of government officials should be immune from prosecution.⁷ The relationship of this concept to acts of torture was dealt with in Pinochet⁸, which will be discussed later in part IV. The second type of state immunity is ratione personae. This concept is based not on the nature of the acts committed, but the position within government of the person committing the act.⁹ The International Court of Justice extended this immunity to the sitting Minister of Foreign Affairs for the Congo in the Arrest Warrant Case.¹⁰ The court reasoned that if high ranking officials are not afforded a guarantee of protection from foreign courts, then it severely limits their ability to conduct international relations.

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

More specifically, under the ICCPR¹⁵, States have an obligation “to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.”¹⁶ The failure to provide a remedy is a violation of the state’s obligation to recognize the human right.¹⁷ Moreover, the remedy

must be truly effective in establishing whether there has been a violation of human rights and in providing redress. A remedy which proves illusory because of the general conditions prevailing in the country, or even in the particular circumstances of a given case, cannot be considered effective. That could be the case, for example, when practice has shown its ineffectiveness. ¹⁸

Undoubtedly, the task of defining and applying effective remedies is a difficult one. The nature of the remedy will depend on the nature of the violation. To help define minimum remedies, we can look to general practices and opinio juris that form customary law and standards set out by States Parties themselves, through their consent to treaties such as the CAT.

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

The jus cogens nature of torture means that it will lead to special obligations, but before analyzing these obligations, we will briefly outline jurisdiction and immunity.

Given that the prohibition of torture is jus cogens, what are the special obligations of a state? Is the prohibition erga omnes (owed to all)? The definition of erga omnes has not been dealt with comprehensively by international courts but guidance comes from Barcelona Traction:

…an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.³⁰

Professor Bassiouni has argued that an obligation erga omnes (owed to all) arises from a jus cogens norm.³¹ This makes intuitive sense: if a principle is peremptory and always trumps other norms than it seems to imply that it will always lead to an overarching obligation.³²

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

It is evident that this article of the Convention imposes a duty on the States Parties to adopt the measures necessary to make the rights and freedoms recognized by the Convention effective. These rights are not conditioned on the existence of pertinent norms in the domestic law of the States Parties. Rather, the States Parties are obligated to adopt legislative or other means, if they do not already exist, to make these rights and freedoms effective.³⁷

The bottom line for the discussion is that States already support the prohibition on torture; therefore, if that prohibition includes an obligation to compensate, then States will be unable to avoid providing remedies including compensation. Given that the torture prohibition is jus cogens and erga omnes, and that a violation of any human right leads to an obligation to provide a remedy, it follows that States will have a higher (perhaps even jus cogens or erga omnes obligation) to provide a remedy for torture victims even if the torture occurs outside of their territory. We will return to this in more detail after we analyze the two of the main obstacles to achieving redress: jurisdiction and sovereign immunity.

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.

Canada has extended its criminal jurisdiction to meet its obligations under the CAT, but it has still limited jurisdiction to cases where either the victim or the perpetrator⁴¹ are nationals, where the acts have been committed inside of Canada, or when the perpetrator is present in Canada.⁴² There are no limitations of time⁴³ and the act affirms the retroactivity of the law⁴⁴ therefore avoiding statutory time limits. Canada’s prosecution is however subject to the Attorney General’s discretion⁴⁵ and is thus not submitted to regular rules of a criminal prosecution and investigation. This is meant as a filter to avoid automatic prosecutions which could create serious engorgement of criminal courts but could also result in unfortunate political and diplomatic interference in the redress process. The important implication for civil redress is that Canada does recognize universal jurisdiction in some instances.

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 - Canadian Case Law on Universal Jurisdiction

In Bouzari and Arar⁵¹, the Court held that Canada was not the appropriate forum to bring the case, because the acts of torture occurred in Iran and should have dealt with under Iranian law. And further, the events alleged by the plaintiff had no connection with Canada, because the plaintiff was a foreign national when the torture occurred and the defendant was a foreign State. However, the Court recognised that an Iranian court would not have provided him with a fair trial⁵² , but rather may have ended up threatening his personal security. For this reason, the court assessed the validity of the claim on grounds of immunity. Justice Swinton left the question open: “It may be that the Canadian courts will modify the rules on jurisdiction and forum non conveniens where an action for damages for torture is brought with respect to events outside the forum.”⁵³

C - 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.

The decision of the Greek Supreme Court was however overturned in 2002 and the appeal to the ECHR⁵⁵ was further dismissed. Consequently, the forum’s jurisdiction was restricted using different landmark decisions such as Al Adsani⁵⁶ to support the absence of a widespread practice and of a customary international norm. It should, however, be noted that the decisions in accepting and then denying universal jurisdiction have seriously divided the courts involved. It seems that the precedent was overturned once the Goethe Center, German assets in Greece, were targeted to provide for the damages awarded. The seizure of German assets in Greece created a serious threat to relations between the two nations. This reveals the influence of politics on the seemingly arcane questions of jurisdiction.

D - 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

The Belgium criminal system, which is similar to the French system⁶³, constitutes an alternative to State led prosecution and provides a role for the victim in the criminal proceedings. The victim chooses to constitute herself a “civil party”⁶⁴. The victim then chooses an inquiry judge who has the obligation to gather evidence and build the case in order to establish the jurisdiction of the court. When the inquiry judge is successful in gathering the necessary elements, the case may go before a criminal court where the State through a public prosecutor will require a punishment. The criminal court is also competent to adjudicate the civil claim for damages suffered flowing from the crime committed. This approach provides a route to both criminal and civil remedies. The adoption of this double action mechanism in other domestic legal would provide for the punishment of the criminal and the reparation of the victim without a delay. It would also avoid the obligation to start over proceedings and evidence gathering before another court. States and individuals could no longer remain silent or refuse to pay damages awarded by denying their liability, since their criminal liability would have been determined prior to the civil compensation order.

E - 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.

The courts failure to take steps and ensure a remedy for victims is also justified by the court’s respect for the separation of powers, and also so as to avoid being accused of judicial activism. It is a recurrent argument from judges in most cases that taking universal jurisdiction, relying on different interpretation of statutes and reading into legislation what is not expressly stated would be over-passing a judge’s mandate. In a classic approach, only the legislature would be allowed to make such decisions.⁶⁵ This type of reasoning supports the idea that the written rule should determine what the practice of the courts should be, whereas in the Bouzari case, it is claimed that the practice should determine if the written rule, article 14 CAT, should be applied by the courts.⁶⁶

It may be argued that what applies to the criminal applies to the civil to some extent, supporting a presumption that if universal criminal jurisdiction is permissible under international law, universal civil jurisdiction is also permissible.⁶⁷ Indeed, it seems logical that to find someone criminally liable for acts of torture is acknowledging de facto that there is a victim who has suffered those acts of torture. As a result, it does not seem justifiable to make a distinction between criminal and civil proceedings when it comes to the same facts.

Advocates of a civil universal jurisdiction affirm that because the prohibition of torture has been promoted to the rank of a jus cogens norm and such a violation creates a right to criminal proceedings in any State regardless of the forum where the torture occurred, it should include the obligation to provide a civil remedy as well. This argument is countered by the fact that a jus cogens norm is part of the customary law: a widespread practice recognised by States. Therefore, it is not part of customary international law to proceed with civil claims against a State in an inappropriate forum. Applying this analysis to the nature of the international prohibition of torture would have unfortunate results. Indeed, its jus cogens nature is based on the seriousness of the human rights violation rather than on the practice.

The universal criminal jurisdiction attached to it is fundamental to obtain a minimum of deference to the written rule and achieve that change in the practice of States. Relying on the custom contributes to a status quo of the law. It prevents from any evolution while the law is meant to be fluid and in movement. The law should be flexible enough to adapt to changes that occur.

In the United States, it was at one time common practice to separate black people from white people. What was called the “separate but equal”⁶⁸ doctrine became systemic racial based discrimination⁶⁹ for steps have been taken to reverse this custom, even though it was deeply rooted in history. The ending of this heinous violation of human rights would not have been possible if the court were strictly restricted to the practice to rule in cases. Because judges are more exposed than the legislature to the society, being involved in concrete situations on a daily basis, it is sometimes up to the court to take steps and to call on the legislature. This is particularly true in a common law system where the judges have to some extent the power to adapt to the changes in the national and international society. The evolution of the Massachusetts court’s position on same-sex marriage reached the position it has as a result of the legislation failing to define marriage clearly. However, the Supreme Court provided for a broad definition of marriage⁷⁰, addressing the evolution of society and the issues faced by same-sex couples, despite the neutrality and silence of both Sate and Federal Constitution. Law evolves and so does custom; therefore, universal jurisdiction should be exercised.

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.

First, such a mechanism would allow individuals to sue States. Far too often, claims are not allowed to proceed because States raise the customary law of immunity as a defence. The victim is most of the time unable to sue individuals which often are highly ranked officials of foreign States. Victims fear for their security when initiating these procedure. Second, considering that it is provided in Canadian law that criminal universal jurisdiction is not restricted by a time limitation, if the same principles have to be applied to civil proceedings, it is important that States take over the civil liability when their the perpetrators cannot pay.

An international court would adopt procedural rules providing for conflicts of laws⁷². It would possibly avoid challenges arising if those proceedings were to be dealt with under domestic legal systems in forum shopping and forum conveniens issues. It would also avoid any res judicata matters that could result from the confusion of forum appropriate for the proceedings otherwise, since it would be the only place where to bring the claim rendering null and void ab initio any other judgement. Further and most importantly, a unique court dealing with civil claims for torture would create a body of case law that would have a harmonious interpretation of the international law as opposed to the divergent views on the matter of the different countries.⁷³ This would allow for equal treatment of all torture victims no matter where they cam from. Finally, the burden to enforce international law would not rest on States. State parties would no longer have to choose between their international obligations and keeping their diplomatic and political interests undamaged.

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.

Immunity may apply to both jurisdiction and enforcement. When a court is faced with a torture case, it is important to maintain a distinction between the two types of immunity. In Al-Adsani⁷⁴ the court found that if the possibility of enforcement was not realistic, then the litigation had no valid purpose.⁷⁵ This approach is highly problematic, because it denies the fact that a court hearing has utility beyond mere compensation:

If the potential availability of immunity at the enforcement stage is given weight at the point of determining whether jurisdictional immunity applies to cases concerning torture for example, the broader goals and values of the proceedings are undermined.⁷⁶

A very general example would be the value of access to a court. Other inherent values of civil proceedings are discussed in the civil remedies section of the paper.

State immunity is recognized in the legislation of many countries and is recognized as a customary international law. Its purpose is to facilitate respect for the sovereign equality of nations, the principle of non-intervention in the internal affairs of another nation, dignity, comity, and international relations.⁷⁷ Historically, state immunity was absolute before the courts of another. Exceptions have been created so that, today it is more accurate to describe the concept as restrictive immunity.

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.

The second approach also recognizes immunity as a founding principle of international law, but doesn’t recognize state immunity as a fundamental right per se.⁸² Looking at immunity in this light makes logical sense: “a foreign state cannot be entitled to immunity without the court finding a jurisdictional anchor to establish its competence to hear the case”⁸³ The action of establishing jurisdiction is a judgment of the state, the decision to provide immunity is therefore Using this second approach, it can be argued that there is no obligation to grant immunity; immunity is instead a matter of respect and reciprocity.⁸⁴

State practice supports the conception of state immunity as an exception to the host state’s jurisdiction, and not as a fundamental right of a state. Historically, domestic courts have denied enemy States immunity, and granted it to allies.⁸⁵ In the US context, currently the Executive Branch determines the availability of immunity for foreign heads of state.⁸⁶ Also, before the enactment of the Foreign Sovereign Immunities Act 1976, the US State Department was responsible for determining which countries would be granted immunity before the courts of the US. More recently, s.221 of the Anti-Terrorism and Effective Death Penalty Act⁸⁷, provides that immunity will not be available to state sponsors of terrorism. Currently, Cuba, Iran, Libya, North Korea and Syria are all considered state sponsors of terrorism under this provision. In response, Iran has passed legislation that allows Iranian victims of what they term ‘US interference’ to sue the US in Iranian courts.⁸⁸ While relations between the US and Iran became poor far before the adoption of this policy, this can be seen as an example of how not recognizing state immunity can lead to difficulties when it comes to international relations. While the responses of the US and Iranian governments are likely motivated by political manoeuvring, and not concern for human rights, any relaxation of state immunity will be a positive step for victims of torture that seek redress.

The Committee Against Torture, in the discussion of Canada’s state immunity laws, stated that the terms of the convention would not preclude Canada from enacting an exception to state immunity for cases of torture. The Chairperson made the comment that:

As a countermeasure permitted under international public law, a State could remove immunity from another State – a permitted action to respond to torture carried out by that State. There was no peremptory norm of general international law that prevented States from withdrawing immunity from foreign States in such cases to claim for liability for torture”⁸⁹

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

Both these cases stand for the principle that state immunity cannot be used to deny victims redress, whether criminal or civil, when a jus cogens norm is violated.

There is an argument about how to balance the rights of individual victims and the rights of States to sovereign equality. With some issues this balancing act may be more complicated, but with cases of torture it should be fairly straightforward. Accountability for torture should be a top priority of all nations of the world. International law began as a set of rules guiding interactions between States. Increasingly as the human rights movement has grown, international law has also begun to regulate affairs within the borders of nations. Thus it seems logical that some of the original protections against external interference would adapt to be more in line with changes in the focus of international law. Therefore, states should not be immune from prosecution in cases of violations of jus cogens norms.

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. Introduction

2. 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

3. 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

3.1 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

3.2 The Regional Human Rights Mechanisms

3.3 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.

4. Individuals Incentives to bring civil suits

Generally speaking, States are better positioned than individuals to bring legal proceedings against rights violators (because of resources and better access to information originating from their “diplomatic, immigration, law enforcement and intelligence-gathering agencies”¹¹⁵). However, in tort an individual victim, unlike the state, has personal incentives to pursue a claim for compensation and if the victim has access to the legal resources and to information, an action will most likely be pursued.¹¹⁶

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

5. 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

Providing victims access to a court can empower torture victims¹²¹, because victims make the claims and participate in the process, unlike in criminal proceedings where the discretion lies in the hands of the state.¹²² Having access to a court allows victims the opportunity to expose the truth through official means. This can have a huge impact on victims who have been silenced in their own state, sometimes for a long period of time. Exposing the truth publicly can act as a measure of punishment for perpetrators, which in turn, contributes to the fight against impunity by bringing forward States and heads of state commonly protected by state immunity.¹²³

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

An example of a political change brought about by a civil claim, is the claim of Maher Arar against Jordan and Syria.¹²⁷ He is grateful to the Canadian public for putting tremendous pressure on the Canadian government, which he believes consequently played a large role in obtaining a Commission of Inquiry for his case.¹²⁸ This commission has subsequently had its mandate extended to examining and bringing to the public attention the security apparatus and oversight that permitted his rendition to torture. Maher Arar telling his story has also educated the Canadian foreign and consular service of the risk of almost inevitable torture in Syria and the importance of diplomatic protection in cases of rendition. Even though these civil cases have not been successful in terms of monetary compensation, they may help to reduce future instances of torture and improve security processes.

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

There are limitations on the ability of victims to sue under the ATCA. The first limiting factor is that the perpetrator must be present or have some connection to the U.S., whether he or she is living or visiting the U.S. or in the case of a corporation, it must have assets or be based in the U.S.¹³⁶ Many perpetrators are aware of this requirement and thus remain far away from the U.S., which makes it difficult to bring them before justice. The other limitation is that more likely than not, the perpetrators do not have the financial means to pay the amount awarded to the victim. Therefore, the victims often do not receive financial compensation even if they win the case. However, often victims seek to tell their stories and denounce the perpetrators of the crimes.

Filartiga v. Pena-Irala¹³⁷ (1979) revived this legislation that had been rarely used. The case involved Paraguayan citizens and a crime committed in Paraguay. One of the plaintiffs, Dr. Filartiga found out that the policeman who had kidnapped, tortured and killed his son was living in the US and his daughter, living in the US at the time, filed a civil complaint against Pena seeking compensatory and punitive damages for $10,000,000 US.¹³⁸ The court held that official torture violated a norm in customary international law and awarded the Filartiga family the full amount. The plaintiffs were unable to collect the money because the Paraguayan police officer was deported by the United States Immigration Naturalization Service before the end of the case. However, the family gained satisfaction in seeing justice being done and knowing that the torturer’s crimes had entered into public record. ¹³⁹ This was an important judgement because it clearly stated that “torture - wherever it was carried out - would not be allowed to stand unchallenged where the case could properly be brought before a US court” ¹⁴⁰ and the family of a torture victim gained redress and civil remedy.

Romagoza Et Al v. Garcia and Vides Casanova¹⁴¹ involved three victims from El Salvador who filed suit against two top Ministers of Defence (who were also generals) of El Salvador who were living in retirement in Florida. In 2002, a jury in West Palm Beach Florida found the generals liable for torture and ordered them to pay $54.6 million US in damages to the three plaintiffs.¹⁴² On January 5^th, 2006, the US Court of Appeals, 11^th Circuit, upheld the verdict that the generals were responsible for torture.¹⁴³ One of the plaintiffs and torture victims of this case, Neris Gonzalez, was quoted as saying, “I joined this case to send a message of hope and to motivate people everywhere to continue the struggle for justice. This verdict provides an example of what can be done.” It was important for her to know that the “generals were made responsible for their actions. And it was a renewal of my spirit and a moral renewal on a global level.”¹⁴⁴

In general, private parties do not have obligations under international law; however, in cases of piracy, slavery and crimes against humanity individuals have been found guilty for violations of international law. In Kadic v. Karadzic¹⁴⁵, the court of appeal held that the ATCA applies: “we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals.”¹⁴⁶ Thus, the ATCA will not apply to “regular” criminal behaviour of private parties but will apply to private parties when they violate international human rights.

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

This section will outline the State Immunity Act, which prevents civil claims against States, some suggested amendments and a Charter argument for why the Act should be amended.

9.1 Bouzari and Arar – Claims Denied, but Victims Allowed to Speak

Maher Arar intervened in Bouzari’s case, because he wanted to bring the torturers to justice to ensure that torture never happens to anyone else.¹⁵⁵

9.3 Grounds 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. Canada’s SIA – Obstacle to Justice? Suggested Amendments

The State Immunity Act¹⁵⁹ is the Canadian legislation that deals with state immunity. Section 3 of SIA provides a general immunity for foreign States, it reads:

(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.¹⁶⁰

This general immunity is followed by some exceptions. Section 18 of the SIA lays out the criminal/penal proceedings exception:

This Act does not apply to criminal proceedings or proceedings in the nature of criminal proceedings.¹⁶¹

By including the phrase “proceedings in the nature of criminal proceedings”, Parliament seems to be leaving an opening for this exception to apply to proceedings with a penal function, which would not be considered criminal proceedings in the traditional sense. Mr. Bouzari argued that his case fell under this exception because he was claiming punitive damages. This argument was rejected by the Court, which found that punitive damages can only be determined after a finding of civil liability, and despite their deterrent effect, they remain a remedy in civil proceedings and therefore, s.18 would not apply.¹⁶²

The second exception is the tort exception. This is found in s.6 of SIA¹⁶³, and it reads:

A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

(a) any death or personal or bodily injury, or

(b) any damage to or loss of property

that occurs in Canada.¹⁶⁴

The application of the exception is contingent on the harm occurring in Canada, which is why the court did not allow for the application of the tort exception in Mr. Bouzari’s case. Not only did the torture not occur in Canada, but Mr. Bouzari was not a Canadian citizen at the time of his torture and therefore, any kind of nexus with Canada was lacking.¹⁶⁵ This makes it difficult to make a case for his situation falling under this exception. Maher Arar however, who was an intervener in this case, had many ties with Canada when he was tortured.¹⁶⁶ He was a Canadian citizen, living in Canada, but as the Act¹⁶⁷ currently stands, because his torture occurred in Syria, he would also be denied the applicability of this exception.

Mr. Bouzari argued that in light of Canada’s ratification of the Convention Against Torture¹⁶⁸ and the jus cogens status of the prohibition against torture s.6 of the SIA¹⁶⁹ should include actions for damages for torture committed in a foreign state. Alternatively, Mr. Bouzari argued that a new exception should be read into s.3 of the SIA.¹⁷⁰ The court made a separation of powers argument in order to reject the argument to read in any further exceptions¹⁷¹, as well as questioning whether state practice internationally supported a right to a civil remedy in torture cases.¹⁷²

Lack of connection - The reasoning of the court in denying Mr. Bouzari’s argument that he falls under the tort exception seems to be quite reasonable, because there must be some limits to waiving immunity. However, if Mr. Arar’s fact situation is applied, then the outcome seems to become quite unjust. The fact that Mr. Arar’s torture occurred outside Canada should not jeopardize his right to be afforded a remedy by the government of the country with which he holds a valid passport. Perhaps the SIA¹⁷³ could be written in a manner where, in order to meet the nexus requirement the case would have to involve either a victim or offender that was Canadian, or where the act(s) occurred in Canada. This approach would be fairer to victims, more consistent with Canada’s international obligations, and still remain limited enough to avoid rampant litigation and forum shooping.

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.¹⁷⁵

In 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.¹⁷⁶

In 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.

The court reasons that the acts are not commercial, because the incident was “far from the usual case where commercial activity is found.”¹⁷⁸ It should be no surprise that the use of torture and extortion are not usual in commercial transactions. The international community should be thankful for that. The uncommon nature of the incident however, should be no bar to the application of this exception. It is precisely the fact that the incident was so offensively unusual that an exception to immunity should be applied. Canada would be better suited by rewriting the provision in a manner that allows the courts to look predominantly to the purpose of the act, as opposed to merely the nature. Admittedly, the difficulty with this approach would lie in the fact that establishing the purpose of an act in court may present difficulties that are not present when the nature of the acts is the primary concern.

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.

International comity may require immunity for current senior government officials. However, we would caution this approach. Imagine that the government official comes from a democratic country. She is a strong advocate for women’s rights, religious freedom and racial equality. She is a good government official. She permits or tortures people in her state. Should she be given immunity? Given that the rule of law requires the law to be applied equally to all, there is no way to put in place a law that would only catch the “bad” human rights violators. Ending impunity means that states will have to bring the perpetrators to court no matter who they are. Realizing this may not yet be politically expedient in Canada, we take heart from the idea that individuals not States, are the “agents of change and the promoters of the rule of international law.”¹⁷⁹ Being individual driven processes, civil claims for torture victims are an excellent way to push for the end of impunity and recognition of the inherent rights of individuals to be free of torture.

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

  • victims receive compensation

  • 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

• 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

• The nexus requirement will be satisfied where:

  • the victim is Canadian;

  • the offender is Canadian, or;

  • the events occurred in Canada.

• commercial exception

  • 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

  • Individuals,

  • States, or

  • 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.

Please note that these recommendations were arrived at through a discussion process but we have not reached consensus on the question of immunity. We also wish to emphasize that these principles are intentionally optimistic about the prospects for redress. Hopefully, this idealism will turn into action and inspire change.

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

These centres instill hope in torture victims around the world by offering them support and counselling, including psychological support, medical attention, financial assistance and legal services. They also offer counselling to close family members of the victim, particularly the spouse and children.¹⁸⁶ This is done in order to rebuild the life of the victims and their families after suffering such traumatic experiences, and for them to feel empowered to take on a healthy and active role in society once again. The rehabilitation of torture victims is as much a political act as torture is. Therefore, these rehabilitation centres play a pivotal role in promoting democracy and respect for human rights through their various activities.¹⁸⁷

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

18. 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.

19. 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.

20. 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;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.

21. Rehabilitation should include medical and psychological care as well as legal and social services.

22. 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 who have intervened to assist the victim or prevent the occurrence of further violations;
(c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities;
(d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim;
(e) Public apology, including acknowledgement of the facts and acceptance of responsibility;
(f) Judicial and administrative sanctions against persons liable for the violations;
(g) Commemorations and tributes to the victims;
(h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.

23. Guarantees of non repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention:
(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health care professions, the media and other related professions, and human rights defenders;
(e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces;
(f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises;
(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution;
(h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.