Blake, Nicholas --- "Torture, Persecution and the State: Recent Developments in International Law" [1999] ALRCRefJl 20; (1999) 75 Australian Law Reform Commission Reform Journal 10

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Reform Issue 75 Spring 1999

This article appeared on pages 10 – 14 & 68 of the original journal.

Torture, persecution and the State: recent developments in international law

Last year, former Chilean President Augusto Pinochet was arrested in Britain, to face extradition to Spain on charges of murdering and torturing Spanish citizens. Pinochet is fighting the extradition, arguing that as a former head of state, he should have immunity from criminal prosecution before a domestic court in respect of official acts done as a public official on behalf of the state.

In March this year, the British House of Lords rejected his argument. Pinochet’s extradition is set to continue.

Nicholas Blake QC* explains that this internationally important judgment, and other significant cases protecting individuals subject to torture and persecution, show a trend by courts in the United Kingdom, Europe and the United Nations to reduce the scope for immunity from prosecution or evasion of human rights responsibility by states.

As a result of the necessity of having to re-hear Pinochet’s case because of Lord Hoffman’s connections with an intervenor,¹ 12 Law Lords have now given their opinion on the question whether a former head of state enjoys immunity from criminal prosecution before a domestic court by reason of the subject matter of the allegations.

_{Although the speeches will be picked over for years to come on questions relating to jus cogens, act of state, state immunity, and double criminality in extradition law, what eventually persuaded nine of their Lordships}² _{that extradition proceedings should continue was the definition of torture in Article 1 of the 1984 Torture Convention.}³ _{This definition} provides that the requisite intentional acts causing severe pain or suffering, physical or mental, are inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” (my emphasis).

The UK parliament had incorporated this definition into the specific criminal offences of torture it had created in 1988 so as to be able to ratify the Torture Convention. The purpose of the legislation was to ensure official torturers were either prosecuted in their own country, or if abroad were either prosecuted in the state of residence or extradited for prosecution elsewhere. It was inconceivable that parliament intended that the customary international law doctrine of immunity from suit in respect of official acts done by public officials on behalf of the state could have been intended to apply to this new offence with the consequence that it would be rendered devoid of all practical purpose. If the police officer or other lowly operative in the state headquarters was liable to prosecution for official acts, it would be absurd if the official who ordered the acts was permanently immune from prosecution for such conduct. Historically, all acts of public officials acting as such would have been immune from examination in another domestic court.

This short but simple conclusion, based on the plain meaning of an unambiguous statute giving effect to an equally plain international instrument, was not to be defeated by doubts as to whether a head of state was a public official or whether express waiver of state immunity was required before the Convention could be said to have displaced previous international law and custom. Notwithstanding the effect of the UK legislation it would appear that their Lordships would still have concluded that serving heads of state were immune from the domestic criminal process of other states by reason of their personal immunity as such. This conclusion would not prevent an international court from having jurisdiction over such current heads of state, and so the question might arise in the future as to the duty of a state who has custody of a serving head of state where an international tribunal made the request for surrender. If the lure of Harrods (or whatever else) was to bring President Slobodan Milosevic to London, as well as Pinochet, we might find out the answer to this question.

Advance of the individual

The consequence is that the case has witnessed the further advance of the individual in international law. Once only states were the subjects of this elevated form of jurisprudence and the citizens of the state merely the chips in the great roulette wheel of international relations and the treaties made between states. Now the individual can complain to a prosecuting authority in another state and require penal proceedings at least to be taken against the former head of state for abuse of official power by ordering torture.

International obligations that have not been expressly incorporated into domestic legislation may give rise to continuing difficulties. It remains a little unclear whether a victim of torture in Country A may sue the state of that country in the courts of Country B for compensation. Lord Browne-Wilkinson concluded that acts of torture condemned by the international community were not official functions for the purpose of immunity by reason of the subject matter.⁴ Lord Hope could not agree with such an approach although he accepted that there could be torture ordered by the head of state for purely personal reasons that fell outside of this category.⁵ In his view, torture employed as part of the official policy of the state remained covered by the Vienna Convention on Diplomatic Immunity Article 32, wherever the acts in question took place. It may be that a foreign state could defend proceedings for damages on the grounds of a state immunity that it was not prepared to expressly waive.⁶ On the other hand, the Torture Convention Article 14 provides that:

“Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation ...”

It might be thought that the assertion of an immunity by another state party to the Convention would be just as inconsistent in civil proceedings as in criminal proceedings and so the conclusion that the immunity exists in the latter case should also apply to the former.⁷ When the Human Rights Act 1998 (UK) comes into force on October 2, 2000 it may be that the courts would want to look again at the civil liability of foreign officials for torture.

_{As stated, the narrow and specific definition of torture under the Torture Convention focuses on the acts of public authorities and officials. This might lead to a conclusion that torture could only be inflicted where there is a recognised and functioning state in existence, but there is no reason to confine it to such a circumstance. The recent decision of the UN Committee Against Torture (CAT) in Elmi v Australia}⁸ _{is a case in point. The member of a vulnerable minority clan in Somalia sought refugee status in Australia. He was refused asylum although the appalling human rights background in Somalia was recognised, and the murder and rapes of close members of his family by the majority clans accepted. Australia proposed to remove the claimant to Mogadishu via Johannesburg and Nairobi.}

For a European commentator this appears to be an alarming departure from current practice in Europe where the interpretation of Article 3 of the European Convention on Human Rights has concluded that any expulsion that would result in either torture or inhuman or degrading treatment is prohibited, irrespective of whether the actors were states or non state agents or not an intentional human agency at all.⁹ The same principles should apply to the identical wording in Article 7 of the International Covenant on Civil and Political Rights (ICCPR). This broad protection from harm is wider than the refugee definition in a number of ways, but based on a similar assessment of serious grounds for real risk of harm of a minimum severity.¹⁰ This broader protection has been expressly referred to in a leading British case on Somali asylum seekers, who were considered to fall outside the Convention as indifferently suffering from the effects of civil war but still deserving of other forms of protection.¹¹

Having failed to obtain domestic relief, the claimant in Elmi applied to the CAT for protection under Article 3 of the Torture Convention, which spells out for ‘official’ torture that which is implicit in Article 7 of the ICCPR for other forms of torture and ill treatment: there can be no return to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. Fortunately the applicant was not removed by the state pending the international consideration by the CAT. Where an administrative decision involves a risk of irrevocable harm, and there is an international remedy that the state has pledged to accept, it may be contrary to domestic law for the state to frustrate the efficacy of the remedy. In a similar problem relating to the application of the death penalty, the Privy Council recently held that a stay of execution should be granted by the domestic Trinidad court in aid of an international remedy to prevent irreparable harm from being done while a case is under consideration internationally.¹²

In the proceedings before the CAT, one of the state’s arguments was that the ill treatment feared at the hands of the majority clan in Mogadishu was not torture within the meaning of the Convention, because it was not the act of recognised public authorities. The CAT was able to conclude that officials extended to quasi state agents exercising de facto control in a territory and that given the existence of real danger a return to Somalia was precluded. Apart from the light it throws on present Australian practices in respect of asylum, the decision of the CAT is of significance as further eroding a restrictive approach to the Refugee Convention taken by adherents of the ‘state accountability’ as opposed to the ‘protection’ view of the meaning of persecution in refugee law.

The 1951 Refugee Convention provides protection from expulsion and requires states to recognise as refugees those with a well founded fear of persecution for Convention reasons who are unable or unwilling to obtain the protection of their national authorities.¹³ While the term persecution has some element of persistence and targeting a person or group of persons on account of their relevant characteristic protected by the Refugee Convention,¹⁴ there is no difficulty, in the common law world at least, in concluding that it applies to acts of non-state agents when the state is either unwilling or unable to provide effective protection.¹⁵ The constitutional tradition of some nations requires state accountability for persecution and concludes that a mere inability to protect does not give rise to international responsibility for protection in the absence of some knowing toleration of the non state persecution.¹⁶ The paradigm example is once again Somalia, where it is common ground that no recognised government has existed since the fall of President Barre in 1991. The German courts conclude that without a government or an effective state representative for the country there can be no persecution and no refugees.¹⁷ Such an interpretation has relied on the Torture Convention amongst other instruments for its requirement that persecution has to be official in origin.¹⁸

In the case of Adan v Secretary of State for the Home Department,¹⁹ the Court of Appeal in London recently had to consider the effect of this disparity in interpretation of the Refugee Convention. In this case, the Home Secretary intended to return a failed Somali asylum seeker to Germany and an Algerian victim of terror by the militant Islamic group GIA to France under the terms of the Dublin Convention²⁰ and the national legislation enabling the Minister to certify a case without substantive consideration where he is satisfied that the third country would not remove the applicant “otherwise than in accordance with” the Refugee Convention.²¹ Although there was no doubt that both claims would have resulted in refugee status in the UK and rejections of the claims in Germany and France, the Secretary of State believed that there was no one proper approach to the Refugee Convention and that comity required respect for the state accountability view, particularly as the governments of the European Union had accepted such a view in the Joint Position of 1996.²² The court concluded that the proper meaning of an international instrument such as the Refugee Convention was a matter of law for the court and not a question of fact for the discretion of the executive. The meaning could not be changed by an agreement between some states to adopt common guidelines providing the lowest common denominator of protection. In the absence of an authoritative international tribunal charged with interpreting the instrument, its meaning was to be adduced by the national court applying international principles of interpretation. While some difference of interpretation in the application of the Convention could be accepted, a difference in the essential definition of refugee could not. A purposive, dynamic and updating approach to the Convention was considered appropriate.²³ The court concluded:

“it was clear that the signatory states intended that the convention should afford continuing protection for refugees in the changing circumstances of the present and future world. The Convention had to be looked at as a living instrument. Looked at in that light the Convention was apt unequivocally to offer protection against non-state persecution where for whatever cause the state was unwilling or unable to offer protection itself.”

One such cause was where the state effectively ceased to exist.²⁴ The Home Secretary was not entitled to remove an asylum seeker to a third country that did not properly apply the essential meaning of the Convention in the absence of an assurance that they would receive satisfactory alternative protection there.

The importance of the protection offered by the Refugee Convention has also been emphasised in a further recent decision of the Divisional Court in London. In R v CPS and the Home Secretary; Ex parte Adimi.²⁵ In that case, asylum seekers from Algeria and elsewhere had travelled through Heathrow Airport en route to Canada to seek refugee status there. To enable them to travel and to exercise their right to claim asylum, they had false travel documents. These papers were detected at the airport and each of the asylum seekers was prosecuted for possession of forged documents. In one case the Crown intended to pursue the prosecution although the person concerned had now been recognised as a refugee in the United Kingdom. The court held that Article 31 of the Convention prevented such prosecutions being brought or being pursued. An asylum seeker who had not found protection elsewhere was coming directly from the territory where persecution was feared, and accordingly could not be penalised for illegal means of arrival at a state to seek protection.

Conclusions

The trend of recent jurisprudence in the United Kingdom, the European Court of Human Rights and the UN Committee Against Torture, therefore, seems to be to promote the principle of effective protection in the interpretation of international instruments, and reduce the scope for immunity, discretion, or evasion of international responsibility by states. This principle has led the different bodies to conclude:

• that terms such as social group and persecution are to be given broad scope in accordance with the preamble to the Refugee Convention, and the idea that discriminatory failure of protection for Convention reasons is at the heart of the refugee concept;

• that states cannot deter asylum seekers who travel to seek protection by prosecuting them for criminal offences committed at the border or other penalties of deterrence;

• that states cannot weaken protection by referring asylum seekers to other countries that are known to have significantly different interpretations of the Refugee Convention;

• that outside the Refugee Convention a broader level of international protection against harm is afforded by the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Torture Convention. The former treaties cover any foreseeable risk of ill treatment of a certain minimum level of severity; the concept of torture under the Torture Convention includes harm inflicted by clan groups and de facto authorities exercising control over a region or a territory;

• that, nevertheless, state responsibility for protection of human rights within its borders remains central. Where public officials abuse this responsibility and themselves resort to torture, doctrines of comity and deference to classical immunities from litigation in other domestic courts are displaced by the clear will of the international community to punish such acts by whatever tribunal is available to do so.

* Nicholas Blake is a barrister at 2 Garden Court Chambers, in London. He co-authors Macdonald and Blake on Immigration Law and Practice in the UK (4th Edition) and has appeared in the UK and elsewhere in a number of leading asylum and human rights cases.

Endnotes

1. The decision of a five member Board in R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte [1998] UKHL 41; [1998] 3 WLR 1456; was set aside on the grounds of a real risk of bias in Pinochet No 2 [1999] 1 WLR 272; and a seven member Board re-determined the question in Pinochet No 3 [1999] UKHL 17; [1999] 2 WLR 827.

2. Lord Nicholls in Pinochet No 1, with whom Lord Steyn and Hoffman agreed, and Lords Browne-Wilkinson, Hutton, Hope, Saville, Phillips and Millett in Pinochet No 3.

3. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984.

4. [1999] 2 WLR, at 845-7.

5. [1999] 2 WLR, at 881.

6. See Al Adsani v Kuwait [1996] 107 ILR 536; Siderman v Argentina 26 F2d 699; observations of Lord Hope 884-887; Lord Hutton 892 and 901; Lord Millet 914; Lord Phillips 916, 920-923.

7. Lord Saville makes no distinction, [1999] 2 WLR 903-4.

8. CAT/C/22/D/120/1998, 25 May 1999. If the reasons given by the CAT for the rejection of the asylum claim are accurate, the state appears to require an unreasonably high level of personalised risk of ill treatment before a fear can be said to be well founded.

9. Ahmed v Austria [1996] ECHR 63; [1997] 24 EHRR 278 (a Somali non state case quoted in Elmi); HLR v France [1997] ECHR 23; [1998] 26 EHRR 29 (where it was accepted that drug barons could be the agents of harm) and D v UK [1997] ECHR 25; 24 EHRR 423 (where the ill treatment was expulsion to an island with poor medical facilities).

10. Chahal [1996] ECHR 54; [1997] 23 EHRR 413 (where a suspected terrorist fell outside the scope of Article 1 of the Refugee Convention, but deportation proceedings were eventually abandoned).

11. Adan v Secretary of State for the Home Department [1998] 2 WLR 703, at 705D-E; 714D.

12. Thomas v Baptiste [1999] 3 WLR 249.

13. Geneva Convention Relating to the Status of Refugees 1951 Article 1(A)(2).

14. Sandralingam and Ravichandran v Secretary of State for the Home Department [1990] Imm AR 97 Court of Appeal at 109, 114. There is an unresolved debate as to the extent that past torture by a police officer itself established refugee status. Lord Millet has noted in Pinochet No 3 that a single instance of ill treatment amounts to the international crime of torture. It is axiomatic that torture is ipso facto of sufficient severity to amount to persecution, but past persecution while highly relevant is not conclusive. The element of persistence can be derived from the vulnerability of the tortured person to ill treatment because of his characteristic. If the characteristic cannot be changed and the persecutors have not gone away, the risk of harm remains and the fear of convention persecution is well founded.

15. Ward v A-G Canada [1997] INLR 42, at 53-56; Adan v Secretary of State for the Home Department [1998] 3 WLR 703, at 708 C-E; Salibian v Canada 73 DLR (4th) 551.

16. Article 16a of the German Constitution refers to “political persecution” and this concept appears to have influenced its interpretation of both the Geneva Convention and the European Convention on Human Rights.

17. Decision of the Federal Administrative Court April 15 1997 vol 104 254, 259; for a similar conclusion on Afghanistan see the FAC decision November 4 1997 (vol 105, 306). The case law is summarised in a paper prepared for the ECRE Conference on Non State Agents October 1998; and another paper published by the University of Nijmegen Centre for Migration Law in April, 1998.

18. I rely for this observation on the opinion of Prof Kay Hailbronner, of the University of Konstanz, explaining the rationale of the German position that was filed in Adan proceedings. I have also been greatly assisted by the opinions of Prof Goodwin Gill and Dr Reinhard Marx.

19. Times Law Reports 28 July 1999.

20. Dublin Convention determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities (1990).

21. Asylum and Immigration Act 1996, s 2(2)(c).

22. Para 5.1 and 5.2 of the Joint Position on the Harmonised Application Term Refugee in the European Union.

23. Applying the guidance of the House of Lords in the recent decision of R v Immigration Appeal Tribunal; Ex parte Shah [1999] UKHL 20; [1999] 2 WLR 1015 at 1021, 1032.

24. See the Canadian decision in Zalzali v MEI 1991 FCJ 341.

25. 29 July 1999 (unreported).