REPARATION FOR CRUEL,INHUMAN OR DEGRADING TREATMENT: OBSERVATIONS ON THE COMMITTEE AGAINST...

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- Mirakmal Niyazmatov*

ABSTRACT

Article 14(1) of the UN Convention against Torture provides that the victim of an act of torture shall have the

right to obtain redress and compensation. Given that Article 14 only mentions torture, the question arises

whether a victim’s right to obtain redress also extends to cruel, inhuman or degrading treatment. The UN

Committee against Torture is now working on the draft general comment to Article 14. This note will argue that

the Committee should interpret Article 14 to include the right to redress in cases of CIDT. Then, it will

demonstrate how this position is supported under international law.

* The Author is a J.S.D. Candidate at Notre Dame Law School and can be approached at [email protected].

mailto:[email protected]

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Article 14(1) of the UN Convention against Torture (hereinafter referred as UNCAT)1

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.”

Given that Article 14 only mentions torture, the question arises whether a victim’s right to

redress2 under Article 14 also extends to its lesser forms, e.g. cruel, inhuman or degrading

treatment (CIDT). The UN Committee against Torture is currently working on the third

general comment on Article 14with the aim of explaining and clarifying the obligations of

States parties to UNCAT.3

The draft general comment interprets Article 14 to guarantee the right for redress to both

victims of torture and CIDT.4 However, it gives no explanation as to why Article 14 should

be interpreted expansively to include the right to redress for CIDT victims. In this note, I will

first discuss why the Committee against Torture should provide a more detailed interpretation

of Article 14, especially with regard to the application of the right to redress of CIDT victims.

Then, I will make recommendations that the Committee against Torture might consider in its

interpretation of Article 14.

Draft general comment on Article 14 of UNCAT

The Committee against Torture, a UN body responsible for monitoring the implementation of

UNCAT, has so far issued two general comments on the application and implementation of

1 U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on December

10, 1984 and entered into force on June 26, 1987 (hereinafter UNCAT). As of August 3, 2012, it had been ratified by 151,

and signed by 78 States.

2 It appears to be a well-established law that the right for redress includes the following five forms of reparation: restitution,

compensation, rehabilitation, satisfaction and guarantees of non-repetition. See generally, UN 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, adopted by the General Assembly Resolution 60/147, Dec. 16,

2005. See generally, PABLO DE GREIFF (ED.), THE HANDBOOK OF REPARATIONS (Oxford University Press, 2006).

3 The Committee placed the draft version of the general comment on its webpage and have been collecting comments until

February 29, 2012. See, The draft version of the general comment is available at

http://www2.ohchr.org/english/bodies/cat/comments_article14.htm (last visited August 2, 2012).

4 Id., Draft General Comment on Article 14, para. 1.


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UNCAT: one on Article 3 (the principle of non-refoulement) in 19965 and one on Article 2

(the obligation to prevent torture and the absolute prohibition against it) in 2007.6 It is now

working on the general comment to Article 14, which guarantees the torture victim’s right to

obtain redress. One of the problems associated with the scope of this article, which is

addressed by the general comment, is that it only mentions torture and fails to extend similar

guarantees to CIDT victims.7

Although the Committee might assume that the inclusion of CIDT within the scope of Article

14 is obvious and well-accepted, this does not seem to be the case for a number of reasons.

First, a textual/plain reading8 of Article 14 indicates that it only applies to torture, and

excludes CIDT. This position is also supported by the negotiation history, which

demonstrates that delegations could not reach a consensus on including CIDT in Article 14.9

Furthermore, Article 16,10

which explicitly lists provisions that should be extended to cover

CIDT, does not mention Article 14.

Second, the draft comment conflicts with the Committee against Torture’s confusing decision

in Hajrizi Dzemajl et al. v. Yugoslavia.11

In that case, the Committee first held that Article

5 General Comment No. 1, Implementation of Article 3 of the Convention in the Context of Article 22 (Refoulement and

Communications), A/53/44, November 21, 1997, available at at http://www2.ohchr.org/english/bodies/cat/comments.htm

(last visited on August 3, 2012).

6 General Comment No. 2, Implementation of Article 2 by States parties, Committee against Torture, CAT/C/GC/2, January

24, 2008, available at http://www2.ohchr.org/english/bodies/cat/comments.htm (last visited on August 3, 2012). For the

insightful discussion of the importance of General Comment No. 2 for the prevention of torture, see, Preventing Torture:

“Implementation of Article 2 by the States Parties of the U.N. Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment:” A Symposium, 11 N.Y. CITY L. REV. 179 (2007-2008).

7 Article 14(1) of the UNCAT reads: “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.”

8 Taking into consideration the ordinary meaning of the terms, also referred to as a textual interpretation, is one of the

requirements of treaty interpretation established by the Vienna Convention of the Law of Treaties.

9M. NOWAK & E. MCARTHUR, THE UNITED NATIONS CONVENTION AGAINST TORTURE: A COMMENTARY 457-460, 485-486

(Oxford University Press, 2008).

10 Article 16 of the UNCAT reads: “Each State Party shall undertake to prevent in any territory under its jurisdiction other

acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when

such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person

acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the

substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.”

11Hajrizi Dzemajl et al. v. Yugoslavia, No. 161/2000, UN Committee against Torture, November 11-22, 2002 (hereinafter

Hajrizi Dzemajl case).




14’s scope only refers to torture and does not cover other forms of ill-treatment, namely

CIDT.12

Then, contrary to this statement, it further held

Nevertheless, article 14…does not mean that the State party is not obliged to

grant redress and fair and adequate compensation to the victim of an act in

breach of article 16 [which prohibits CIDT]. The positive obligations that flow

from the first sentence of article 16…include an obligation to grant redress and

compensate the victims of an act in breach of that provision.13

On the one hand, the Committee against Torture noted that Article 14 provided the right to

redress for torture victims only. On the other hand, it argued that because Article 16

prohibited CIDT, Article 14 should include the obligation to guarantee the right to redress for

CIDT victims as well. The draft general comment should serve as a good opportunity for the

Committee against Torture to clarify this confusion and elaborate more on how Article 14

and 16 can be reconciled.

Third, Article 1514

only prohibits the admissibility of evidence obtained by torture. Like

Article 14, it does not mention evidence obtained by CIDT. One might argue that it is

obvious that, in the contemporary world, evidence obtained through any type of coercion is

inadmissible. This position would be in line with widely accepted fundamental principles of

criminal procedure like fair trial, due process rights of the accused, integrity of the judiciary,

etc.

Nevertheless, the British House of Lords came to the opposite conclusion when interpreting

Article 15 in A and Others v. Secretary of State for the Home Department (2005).15

In that

case, Lord Hope held that the exclusionary rule in Article 15 “extends to statements obtained

by the use of torture, not to those obtained by the use of cruel, inhuman or degrading

12Id., Hajrizi Dzemajl case, para. 9.6 (“Concerning the alleged violation of article 14 of the [UNCAT], the [Committee

against Torture] notes that the scope of application of the said provision only refers to torture in the sense of article 1 of the

[UNCAT] and does not cover other forms of ill-treatment. Moreover, article 16, paragraph 1, of the [UNCAT] while

specifically referring to articles 10, 11, 12, and 13, does not mention article 14 of the Convention”).

13 Id.

14 Article 15 reads: “Each State Party shall ensure that any statement which is established to have been made as a result of

torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the

statement was made.”

15A and Others v. Secretary of State for the Home Department (No.2) [2005] UKHL 71, [2005] 3 WLR 1249 available at

http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand-1.htm (last visited August 3, 2012) (hereinafter

A and Other v. Secretary of State (House of Lords)).


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treatment or punishment.”16

More specifically, he added that, “to trigger the exclusion, it

must be shown that the statement in question has been obtained by torture.”17

In a separate

opinion, Lord Bingham also implied that the exclusionary rule of Article 15 only extends to

the admissibility of evidence obtained by torture and does not include CIDT.18

Interestingly, although the Law Lords stated that UNCAT’s exclusionary rule does not

include evidence obtained by CIDT, they did not even question the soundness of this rule nor

did they discuss the possible implications of a strict textual interpretation of Article 15.

The discussion above demonstrates that there is no agreement on how to interpret Article 14,

especially with regard to the inclusion or exclusion of CIDT into its scope. The Committee

against Torture in its general comment on Article 14 should therefore elaborate on this matter

in more detail. In what follows, we will make some recommendations for the Committee

against Torture to include in its interpretation of Article 14.

Interpretation of Human Rights Treaties

The Committee against Torture should be guided by the object and purpose of UNCAT in

interpreting Article 14. The Vienna Convention on the Law of Treaties (VCLT)19

provides

for the general and supplementary rules of treaty interpretation in Articles 31 and 32. Article

31 provides that a treaty shall be interpreted in good faith taking into consideration the

ordinary meaning of the terms in the context and in the light of the object and purpose of the

treaty. There is general agreement that in interpreting international treaty provisions, all three

elements of treaty interpretation (the text, its context and the object and purpose) must

equally be considered in good faith. As to the question of which of these interpretative

approaches should play a more determinant role than others depends on the nature of the

treaty.20

In interpreting human rights treaties, the object and purpose of the treaty should play

16Id., para.126, Lord Hope.

17Id., para.138, Lord Hope.

18Id., para. 53 (“Ill-treatment falling short of torture may invite exclusion of evidence as adversely affecting the fairness of a

proceeding under section 78 of the 1984 Act, where that section applies. But I do not think the authorities on the Torture

Convention justify the assimilation of these two kinds of abusive conduct. Special rules have always been thought to apply

to torture, and for the present at least must continue to do so.”)

19 The Vienna Convention of the Law of Treaties, adopted on May 23, 1969 and entered into force on January 27, 1980.

There is general agreement that the rules of treaty interpretation found in the Vienna Convention codify rules of international

customary law. See, Golder v. United Kingdom, the European Court of Human Rights, Application No. 4451/70, February

21, 1975, para. 29; Rudolf Bernhardst, Evolutive Treaty Interpretation, Especially of the European Counvention on Human

Rights, 42 GERMAN YEARBOOK OF INTERNATIONAL LAW 13 (1999).

20Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, International Court of Justice,

May 28, 1951, para. 23; Lauterpacht & Bethlehem, The Scope and Content of the Principle of Non-Refoulement: Opinion




principal role. Conversely, the interpretation of bilateral treaties of private law nature requires

giving priority to textual interpretation.21

UNCAT is a human rights treaty and thus interpretation of Article 14 should first take into

consideration its object and purpose. The object and purpose of a treaty can be derived by

looking at the title, preamble and specific provisions of the treaty.22

The full title of UNCAT

reads, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.” Its preamble makes reference to Article 5 of the Universal Declaration of

Human Rights (UDHR)23

and Article 7 of the International Covenant on Civil and Political

Rights (ICCPR).24

Both unequivocally prohibit both torture and CIDT. UNCAT’s preamble

also states that the States Parties “[desire] to make more effective the struggle against torture

and [CIDT].” Furthermore, Article 16 of the UNCAT explicitly prohibits CIDT. It provides

that “[e]ach State Party shall undertake to prevent…acts of [CIDT]. One of the rationales for

instituting an effective system of the victim’s right to redress for human rights violations is to

deter their occurrence in the future.25

By implication, if there is no effective right to redress,

there is little incentive for government officials to comply with Article 16’s prohibition of

CIDT.

It should also be noted that human rights are not static and therefore their effective protection

involves taking into account developments in law and society. The necessity of taking into

account changes occurring in society and law is often emphasized by international tribunals

that characterize human rights treaties as “living instruments” which must be interpreted in

light of present day conditions.26

In this context, it should be stressed that the normative

104, in REFUGEE PROTECTION IN INTERNATIONAL LAW: UNHCR’S GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION

(E. Feller et al. (eds.), Cambridge University Press, 2003), also available at http://www.unhcr.org/419c75ce4.pdf (last visited

August 3, 2012).

21M. Bos, Theory and Practice of Treaty Interpretation,in THE LAW OF TREATIES (S. Davidson (ed.), Ashgate Publishing

Company, 2004), p. 383; Arnold D. McNair, The Functions and Differing Legal Character of Treaties, 11 THE BRITISH

YEARBOOK OF INTERNATIONAL LAW 107-108 (1930).

22Jan Klabbers, Some Problems Regarding the Object and Purpose of Treaties, THE FINNISH YEARBOOK OF INTERNATIONAL

LAW, Volume VIII, 1997, p.158; ISABELLE VAN DAMME, TREATY INTERPRETATION BY THE WTO APPELLATE BODY 257-258

(Oxford University Press, 2009).

23 Universal Declaration of Human Rights, adopted December 10, 1948. Its Article 5 reads: “No one shall be subjected to

torture or to cruel, inhuman or degrading treatment or punishment.”

24 International Covenant on Civil and Political Rights, adopted December 16, 1966 and entered into force March 23, 1976.

Its Article 7 reads: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In

particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

25D. SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW 13-14 (2nd ed., Oxford University Press, 2005).

26Tyrer v. the United Kingdom, European Court of Human Rights, Application No. 5856/72, April 25, 1978, para. 31;

Selmouni v. France, European Court of Human Rights, Application No. 25803/94, July 28, 1999, para. 101.


62


content of the right to redress went through significant developments since the adoption of

UNCAT. The United Nations Basic Principles and Guidelines on the Right to a Remedy and

Reparation for the Victims of Gross Violations of International Human Rights Law and

Serious Violations of International Humanitarian Law (Basic Principles and Guidelines)27

is a

culmination of these developments. The work on the Basic Principles and Guidelines

continued from 1989 to 2005.28

The Basic Principles and Guidelines did not create new

provisions on the right to redress for human rights violations, but rather summarized existing

law and standards.29

The Basic Principles and Guidelines apply only with regard to “gross

violations of human rights.” Though this term is not defined in international law, scholars

generally accept that it refers to “the types of violations that affect in qualitative and

quantitative terms the core rights of human beings, notably the right to life and the right to

physical and moral integrity of the human person.”30

Few would argue that CIDT does not

affect physical and moral integrity of the human person and thus it can be considered to

belong to the group of gross violations of human rights.31

Systematic Integration

In interpreting the right to redress in Article 14 of UNCAT, the Committee against Torture

should also take into consideration all “relevant rules of international law applicable in the

relations between the parties” as is required by Article 31(3)(c) of the VCLT. This rule is

generally referred to as “systematic integration,”32

which requires interpreting treaty

27 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, UN General Assembly Resolution

A/RES/60/147, December 16, 2005 (hereinafter Basic Principles and Guidelines).

28 Implementing Victims’ Rights: A Handbook on the Basic Principles and Guidelines on the Right to a Remedy and

Reparation, REDRESS, March 2006, pp. 13-14, available at

http://www.redress.org/downloads/publications/Reparation%20Principles.pdf (last visited November 29, 2011).

29 T. van Boven, Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines, in

REPARATIONS FOR VICTIMS OF GENOCIDE, WAR CRIMES AND CRIMES AGAINST HUMANITY: SYSTEMS IN PLACE AND SYSTEMS IN

THE MAKING (C. Ferstman, M. Goetz, A. Stephens (eds.), MartinusNijhoff Publishers, Leiden, Boston, 2009), p. 34.

30 Id.

31 Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human

Rights and Fundamental Freedoms, Final report submitted by Mr. Theo van Boven, Special Rapporteur, UN Commission on

Human Rights, E/CN.4/Sub.2/1993/8, July 2, 1993, para. 137. “Under international law, the violation of any human right

gives rise to a right of reparation for the victim. Particular attention must be paid to gross violations of human rights and

fundamental freedoms, which include at least the following: genocide; slavery and slavery-like practices; summary or

arbitrary executions; torture or [CIDT]; enforces disappearances; arbitrary and prolonged detention; deportation of forcible

transfer of population; and systematic discrimination, in particular based on race or gender.” This position has not been

challenged in later commentaries. See, e.g., Implementing Victims’ Rights: A Handbook on the Basic Principles and

Guidelines on the Right to a Remedy and Reparation, REDRESS, March 2006, pp. 13-14, available at

http://www.redress.org/downloads/publications/Reparation%20Principles.pdf (last visited November 29, 2011).

32 See generally, Chapter F, Fragmentation of International Law; J. Kammerhofer, Systemic Integration, Legal Theory and

the ILC, 19 FINNISH YEARBOOK OF INTERNATIONAL LAW 157-182 (2008); C. McLachlan, The Principle of Systemic




provisions such that they “appear as parts of some coherent and meaningful whole.”33

Taking

into account relevant rules of international law in interpreting treaty provisions was seen as

an essential aspect of preserving the harmonization of international law.34

Philip Alston, an

independent expert for the UN, warned about the growing inconsistencies in the evolving

jurisprudence on the interpretation of the central human rights treaties.35

He cautioned that in

some cases these inconsistencies could lead to the emergence of significant confusion as to

the “correct” interpretation of a given right.36

The result would be “the undermining of the

credibility of one or more of the treaty bodies and eventually a threat to the integrity of the

treaty system”37

International human rights law guarantees the right to redress in all cases of violations of

fundamental human rights. It does not differentiate between different types of human rights

violations, such as torture and CIDT. For example, Article 8 of the UDHR provides that

everyone has the right to an effective remedy. Article 2(3), of the ICCPR also provides that

States Parties shall ensure that any person whose rights or freedoms are violated shall have an

effective remedy.38

Article 9(5) of the ICCPR further guarantees “an enforceable right to

compensation” to anyone who has been the victim of unlawful arrest or detention. Article 6

of the International Convention on the Elimination of all Forms of Racial

Discrimination39

provides for an effective remedy for any acts of racial discrimination. If the

Integration and Article 31(3)(c) of the Vienna Convention, 54 INT’L & COMP. L.Q. 279-320 (2005); D. French, Treaty

Interpretation and the Incorporation of Extraneous Legal Rules, 55 INT’L & COMP.L.Q. 301 (2006).

33 Report on Fragmentation, para. 414. The Report stated: “All treaty provisions receive their force and validity from general

law, and set up rights and obligations that exist alongside rights and obligations established by other treaty provisions and

rules of customary international law. […] The question of their relationship can only be approached through a process of

reasoning that makes them appear as parts of some coherent and meaningful whole.”

34 The Work of the Study Group Established by the International Law Commission on Fragmentation of International Law:

Difficulties Arising From the Diversification and Expansion of International Law (Report of 56th Session (2004) Supplement

No. 10 (A/59/10)), p. 301.

35Philip Alston, Interim Report on Study on Enhancing the Long-Term Effectiveness of the United Nations Treaty Regime,

UN Doc. A/CONF.157/PC/62/Add.11/Rev.1, at 3.para 238 (“Recent proliferation of standards (both binding and non-

binding), the increasing range and depth of the activities of the policy-making organs and the expanding number of treaty

bodies can combine in such a way to render ever more difficult the maintenance of a reasonable degree of normative

consistency.”).

36Id., para. 241.

37 Id.

38 See also, General Comment 31, UN Human Rights Committee, March 29, 2004, paras. 15-17. General Comment 31,

interpreting Art. 2(3) of the ICCPR, provides that “without reparation to individuals whose Covenant rights have been

violated, the obligation to provide effective remedy, which is central to the efficacy of Art. 2(3), is not discharged.”

39 International Convention on the Elimination of all Forms of Racial Discrimination, adopted December 21, 1965 and

entered into force on January 4, 1969.


64


above violations of human rights trigger an effective right to redress, this should also be the

case with regard to CIDT, which is, evidently, a more serious violation of fundamental

human rights.

Furthermore, incoherence in Article 14 can also be seen if we look into what the right to

redress or effective remedies includes generally. The legal definition of “remedy” is: “the

means by which a right is enforced or the violation of a right is prevented, redressed or

compensated.”40

This concept has both a procedural and a substantive meaning.41

The

procedural aspect of the right to effective remedy includes the duty to provide unhindered and

equal access to justice, which includes effective investigation of an incident of human rights

violation, as well as the identification and punishment of responsible persons.42

The

substantive aspect of the right to effective remedy refers to providing full reparation for the

injury caused that might be in the form of restitution, compensation, rehabilitation,

satisfaction or guarantees of non-repetition.43

Leaving out CIDT from the scope of Article 14

would mean that CIDT victims are not entitled to any form of remedy, even fundamental one

such as the guarantees of non-repetition through effective investigation and punishment of

responsible persons.

A narrow interpretation of Article 14 would also indirectly encourage impunity for CIDT and

contribute to its future occurrences. In fact, there is a close relationship between providing

effective remedies to the victims of human rights violations and combating impunity for

human rights violations. This idea is supported by the work of the former UN Commission on

Human Rights. Principle 1 of the Commission’s Updated Set of Principles for the Protection

and Promotion of Human Rights through Action to Combat Impunity44

emphasizes this

problem stating that impunity arises from failure by States to provide effective remedies for

human rights violations.45

40BLACK’S LAW DICTIONARY, 6th ed., 1990, 1294.

41Supra note 25, D. Shelton, p. 7; supra note 29, T. van Boven, pp. 22-25.

42Aksoy v. Turkey, European Court of Human Rights, Application No. 21987/93, December 18, 1996, para. 98; Aydin v.

Turkey, European Court of Human Rights, Application No. 57/1996/676/866, September 25, 1997, para. 103.

43 UN Human Rights Committee’s General Comment 31 also provides similar interpretation. It provides that reparation can

involve, among others, restitution, rehabilitation and measures of satisfaction, such as public apologies, guarantees of non-

repetition and changes in relevant laws and practices. See, paras. 15-17, General Comment 31.

44 UN Commission on Human Rights Resolution 2005/81; see also, Diane Orentlicher, Report of the independent expert to

update the Set of Principles to Combat Impunity, E/CN.4/2005/102 and Add.1.

45 “Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in

respect of perpetrator, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are

prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for




Overall, international human rights law supports a right of redress for victims of CIDT.

Therefore, in light of the rule of systematic integration, the Committee should interpret

Article 14 to include CIDT within its scope.

General Principles of Law

Because systematic integration requires taking into consideration all relevant rules of

international law, the Committee against Torture should also be guided by the general

principles of law. The general principles of law are one of the primary sources of

international law along with international treaty and customary law.46

As principles, however,

they play a different role than international treaty and customary law. In the Gentini case, an

arbitral award case between Italy and Venezuela from 1903, an arbitrator distinguished

principles from rules and held that a principle “expresses a general truth, which guides our

action, [and] serves as a theoretical basis for the various acts of our life.”47

Similarly, Gerald

Fitzmaurice wrote that when there is any dispute with regard to what the correct rule is, “the

solution will often depend on what principle is regarded as underlying the rule.”48

Bin Cheng

wrote that the general principles of law express the essential qualities of juridical truth

itself.49

He also described general principles of law as “cardinal principles of the legal

system, in the light of which international law is to be interpreted and applied.”50

For Robert

Kolb, the general principles of law are norm-sources that “[do] not essentially deal with the

fixed meaning of rules to be applied, but with the adaptation of the rules to some

constitutional necessities, to new developments and needs, to conformity with basic value-

ideas.”51

Describing the functions of general principles of law as “value-catalyzers,” Kolb

the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to

prevent the recurrence of violations.”

46 Article 38 of the Statute of the International Court of Justice (ICJ) provides that ICJ shall apply international conventions,

international custom and the general principles of law. As subsidiary means, it might also apply judicial decisions and the

teachings of the qualified publicists. It is generally admitted that Article 38 reflects sources of international law. See, I.

BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (7th ed., Oxford University Press, 2008), p. 5; L. OPPENHEIM,

OPPENHEIM’S INTERNATIONAL LAW 22 (R. Y. Jennings et al. eds., Longmans 9th ed., 1992).

47Gentini case, quoted in B. CHENG, GENERAL PRINCIPLES OF LAW: AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS

(Grotius Publications, 1987), p. 376.

48G. Fitzmaurice, The General Principles of International Law Considered From the Standpoint of the Rule of Law, 92

RCADI 2-227 (1957-II).

49Supra note 47, B. Cheng, p. 24.

50Id.

51 R. Kolb, Principles as Sources of International Law (With Special Reference to Good Faith), Netherlands International

Law Review, Vol. LIII (2006), p. 9.


66


also wrote that, by referring to the general principles of law, “the legal system assures itself

not to be completely cut, on the level of the application of the law, from the fundamental

ethical values, but also from the more contingent social values and needs held at a certain

moment in a particular society.”52

There is no doubt that the principle of liability for the breach of an obligation is one of the

most fundamental principles of law. This principle can be found in all legal systems.

Obviously, the principle of liability is not as developed in international law as it is in

domestic legal systems. Nevertheless, relevant case law and scholarship provide sufficient

amount of guidance. One of the earliest international cases that dealt with the issue of state

responsibility is Chorzow Factory. In that case, the Permanent Court of International Justice

(PCIJ) held that it was a principle of international law that “the breach of an engagement

involves an obligation to make reparation in an adequate form. Reparation therefore is an

indispensable complement of a failure to apply a convention and there is no necessity for this

to be stated in the convention itself.”53

The PCIJ went on to explain the purpose of

reparations, noting that “[t]he essential principle contained in the actual notion of an illegal

act…is that reparation must, so far as possible, wipe out all the consequences of the illegal act

and reestablish the situation which would, in all probability, have existed if the act had not

been committed.”54

Similarly, in Gabcikovo-Nagymaros Project, the ICJ held that it was

well-established that “when a State has committed an internationally wrongful act, its

international responsibility is likely to be involved whatever the nature of the obligation it has

failed to respect.”55

Contemporary rules of international law on state responsibility can be found in the Draft

Articles on the Responsibility of States for Internationally Wrongful Acts (hereinafter Draft

Articles).56

Its Article 1 provides: “Every internationally wrongful act of a State entails the

52Id., p. 29.

53 Case Concerning the Factory at Chorzow (Germany v. Poland), Publications of the Permanent Court of International

Justice, Series A. – No. 9, Jurisdiction, July 26th (1927) (hereinafter Chorzow Factory case), p. 21. Cases resolved by the

Permanent Court of International Justice can be found on the website of the International Court of Justice, available at

http://www.icj-cij.org/pcij/series-a.php?p1=9&p2=1 (last visited December 1, 2011).

54Chorzow Factory case, Series A – No. 17, Merits, September 13 (1928), p. 47.

55Gabcikovo-Nagymaros Project (Hungaru v. Slovakia), Judgment, I.C.J. Reports 1997, para. 47.

56 Articles on the Responsibility of States for Internationally Wrongful Acts, August 10, 2001, Report of the International

Law Commission, 53rd Session, A/56/10. On responsibility of states, see generally, J. Crawford & S. Olleson, The Nature

and Forms of International Responsibility, in INTERNATIONAL LAW (M. D. Evans (ed.), 1st ed., Oxford University Press,

2003), pp. 445-472; J. CRAWFORD ET AL. (EDS), THE LAW OF INTERNATIONAL RESPONSIBILITY (Oxford University Press,

2010).




international responsibility of that State.” An internationally wrongful act here refers to

conduct consisting of an action or omission that is attributable to a State under international

law and constitutes a breach of the international obligations of the State.57

The discussion so far demonstrates that whenever CIDT takes place and it can be attributed to

a particular State, that State is in breach of its obligations under Article 16 of the UNCAT. If

there is a violation of Article 16, the State should be held responsible for its wrongful acts.

Consequently, Article 14 should be read to include the right for redress and the difference

between torture and CIDT should be irrelevant. The scope of the right to redress should

include a combination of effective investigation of the incident, punishment of the

responsible officials, compensation, rehabilitation, satisfaction and guarantees of non-

repetition.58

In conclusion, the Committee against Torture should provide a more detailed discussion of

the scope of Article 14 of the UNCAT. In addressing the issue of whether Article 14’s

guarantee of the right to redress extends to victims of CIDT, it should take note of the special

character of the human rights treaties, take into consideration all relevant rules of

international law and be guided by the general principles of law.

57Id., Draft Articles, Article 3.

58 Supra note 27, Basic Principles and Guidelines, para. 18.

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