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  • Author: Christopher Keith Hall
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The universal criminal jurisdiction provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('the Convention') which require each state party to extradite or submit any case involving a foreigner in territory subject to its jurisdiction suspected of torture committed abroad against another foreigner to its competent authorities for the purpose of prosecution. What is not generally known is that Article 14 of the Convention, which contains no geographic restriction, requires each state party to ensure in its legal system that any victim of an act of torture, regardless of where it occurred, obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. Despite two recent decisions, one by a Canadian court and the other by the House of Lords, which erroneously asserted the contrary, an authoritative interpretation by the Committee against Torture, the ordinary meaning of the wording of Article 14, the structure of the Convention, and the drafting history all confirm that Article 14 applies to torture committed abroad regardless of the nationality of the perpetrator or the victim.
  • Author: Noah Benjamin Novogrodsky
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article assesses the implications of the Canadian case of Bouzari v. Islamic Republic of Iran in which sovereign immunity barred recovery against a foreign state for acts of torture. Part 2 describes the case and the courts' rejection of arguments centred on the hierarchy of jus cogens norms, implied waiver and common law principles. Part 3 evaluates parallel developments in the United States and demonstrates the commonalities and differences associated with efforts to overcome immunity in the two countries. Part 4 examines potential amendments to Canada's State Immunity Act with a view to balancing considerations of comity with a just and workable means of holding states accountable for grave human rights abuses.
  • Topic: Human Rights
  • Political Geography: United States, Iran, Canada
  • Author: Alexander Orakhelashvili
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The proper way of addressing the impact of normative hierarchy on state immunity is to adopt the normative-evidentiary approach cleansed of preconceptions motivated by certain risk factors that possess only theoretical significance. The European Court stated in Al-Adsani on the hierarchy of norms issue without properly examining most of its crucial aspects. The Joint Dissenting Opinion of six judges has exposed the weaknesses in the Court's reasoning. Still, some national courts, especially the House of Lords in Jones v. Saudi Arabia, have taken the Al-Adsani ruling as axiomatic, and accepted its outcome without enquiring into whether the line of reasoning the European Court had pursued was consistent or supported with evidence. The outcome is an unfortunate thread of judicial decisions, which do not properly examine the impact of the hierarchy of norms on State immunity, and consistently uphold the impunity of the perpetrators of torture as well as the denial to victims of the only available remedy.
  • Political Geography: Europe, Saudi Arabia
  • Author: Jörg Kammerhofer, André de Hoogh
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Despite the technical prowess of both the editors and the contributors to this unique and comprehensive commentary on the Statute of the ICJ, a book of this nature cannot be all things to all people. The practitioner will miss a closer reading of the Court's jurisprudence and a more exhaustive bibliography; the theoretician will lament the lack of theoretical foundations for many of the dogmatic arguments put forward. But this volume is as good as they come, both in terms of the medium and format chosen. The commentary fulfils most of the demands made of it by practitioners and scholars alike.