Obligations to Prevent Within State Territory

Van der Have, Nienke

doi:10.1007/978-94-6265-231-6_2

Obligations to Prevent Within State Territory

Nienke Van der Have²

Chapter
First Online: 31 December 2017

931 Accesses

Abstract

Obligations under international human rights law are directed primarily at regulating the relationship between a state and people on its territory. It is therefore not surprising that states have the most intricate web of obligations to prevent gross human rights violations within their own territory. This chapter analyzes territorial obligations to prevent torture, arbitrary death and genocide on the basis of the timeline . It is demonstrated that states have obligations to prevent in all four temporal phases. Importantly, many of the obligations to prevent fit within certain categories that are similar for all three prohibitions, referred to as crosscutting obligations . States have: (i) Long-term obligations to introduce a proper legislative and administrative framework capable of deterring violations, (ii) Short-term obligations to take measures to prevent violations, (iii) Obligations to halt continuing violations by ceasing or intervening, and (iv) Obligations to prevent recurrence by investigating, prosecuting and punishing wrongdoers. Within these categories, there are various distinct requirements in the context of the different prohibitions, which illustrate the importance of the specific type of injury for the way obligations to prevent take shape.

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Notes

1.
Vandenhole and Van Genugten 2015; this chapter is built on the assumption of a situation in which a state has full jurisdictional control over its entire territory. In reality, this is not always the case; see for example: Milanović 2011, Chp IV—1C4: Explains that the territorial state’s jurisdiction, seen as effective control over a territory , may be excluded by the exercise of jurisdiction by another state.
2.
Secretary-General Ban Ki-Moon 2013, paras 2 and 5: Emphasizes the primary responsibility of each state to protect its populations by preventing atrocity crimes; Office on Genocide Prevention and the Responsibility to Protect 2014, p. 3: Refers to the importance of the territorial protection of human rights for building national resilience to atrocity crimes.
3.
See 1.3.1 Delineation: The term “prohibitions” is used to refer to the prohibition of torture, arbitrary death and genocide and the corresponding right to be free from torture, right to life and right to be free from genocide. The term “prohibitions” is used rather than “rights”, because it refers more directly to state obligations and the injurious event that is to be prevented.
4.
See 1.3.2 Temporal Phases.
5.
The term “crosscutting obligations ” is used to describe obligations to prevent that are similar in the context of all three of the prohibitions.
6.
Committee Against Torture 2008, para 1; ICTY, Prosecutor v. Furundzija, Merits, 10 December 1998, IT-95-17/1-T, (March 1999) ILM 38(2); International Law Commission 2001, Commentary to Article 26, para 6 and Article 40, para 5.
7.
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Article 53.
8.
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT); Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 18 December 2002, 2375 UNTS 237 (entered into force 22 June 2006) (CAT Optional Protocol); European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, opened for signature 26 November 1987, ETS 126 (entered into force 1 February 1989) (ECPT); Inter-American Convention to Prevent and Punish Torture, opened for signature 9 December 1985, OAS TS 67 (entered into force 28 February 1987) (IACPPT).
9.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 24 March 1976) (ICCPR), Article 7; European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953) (ECHR), Article 3; African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986) (ACHPR), Article 5; American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) (ACHR), Article 5.
10.
Convention on the Rights of the Child, opened for signature 20 November 1989, 1588 UNTS 3 (entered into force 2 September 1990) (CRC), Article 19; Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) (CRPD), Article 15.
11.
CAT, above n. 8, Articles 2 and 16; IACPPT, above n. 8, Article 1.
12.
CAT, above n. 8, Article 2; the CAT had been ratified/ acceded by 158 states by January 2016.
13.
Committee Against Torture 2008, para 3.
14.
Ibid., paras 3, 14 and 25.
15.
CAT, above n. 8, Article 16; CAT, Committee Against Torture 2008, para 3: Despite the legally significant difference between torture and other cruel inhuman and degrading treatment for the assessment of the violation ex-post facto, the CAT Committee has stressed that the required ‘effective measures to prevent’ for torture and for other forms of ill-treatment overlap, since ‘the definitional threshold’ is often unclear in practice.
16.
Gaer 2008; CAT, above n. 8, Article 3: Non-refoulement, Article 4: Criminalize acts of torture, Article 5: Establish jurisdiction over offences, Article 6: Take into custody or otherwise ensure the presence of offenders, Article 7: Prosecute by submitting the case to the competent authorities, Article 8: Extradition arrangements for offenders, Article 9: Assist other states in criminal proceedings related to acts of torture, Article 10: Educate and inform law enforcement personnel, Article 11: Systematically review regulations and practice surrounding detention, Article 12: Investigate, Article 13: Ensure the right of complaint in the context of accusations of torture, Article 14: Ensure fair trial and the right of redress, Article 15: Prohibition of using evidence obtained as the result of torture.
17.
Committee Against Torture 2008, paras 3 and 25.
18.
IACPPT, above n. 8, Article 1: Obligation to prevent torture, Article 6: Obligation to criminalize acts of torture, Article 7: Educate law enforcement personnel, Article 8: Obligation to ensure the right of complaint and fair trial in the context of accusations of torture, Article 9: Obligation to effectuate legislation for providing compensation, Article 10: Obligation not to use evidence obtained as the result of torture, Articles 11, 13 and 14: Extradition arrangements for offenders, Article 12: Establish jurisdiction over offences.
19.
CRC, above n. 10, Article 19(2); CRPD, above n. 10, Article 15(2).
20.
ICCPR, above n. 9, Article 7: States that “noone shall be subjected to torture [etc]”; ECHR, above n. 9, Article 3: Contains a prohibition of torture; ACHR, above n. 9, Article 5: Contains a right to humane treatment and states that “noone shall be subjected to torture [etc]”; ACHPR, above n. 9, Article 5: Contains a “right to the respect of the dignity inherent in a human being” and states that torture shall be prohibited.
21.
Arab Charter on Human Rights, opened for signature 15 September 1994, reprinted in 18 Hum Rts LJ 151 (1997) (not yet in force), Article 13: Of the human rights instruments with a general focus, only the Arab Charter on Human Rights, which is not yet in force, explicitly prescribes states to take “effective preventive measures”.
22.
ICCPR, above n. 9, Article 7; Human Rights Committee 1992, para 8.
23.
IACtHR, Velásquez Rodríguez v. Honduras, Merits, 29 July 1988, Series C No. 4 (Velásquez Rodríguez), para 166.
24.
Velásquez Rodríguez, above n. 23, para 175.
25.
ECtHR, Z. and Others v. the United Kingdom, GC Judgment on Merits, 10 May 2001, no. 29392/95 (Z. and Others), para 73; ECtHR, Mahmut Kaya v. Turkey, Merits, 28 March 2000, ECHR 2000-III (Mahmut Kaya), para 116.
26.
AComHPR, Amnesty International and Others v. Sudan, Merits, 15 November 1999, No. 48/90, 50/91, 52/91, 89/93, para 56: “Punishment of torturers is important, but so also are preventive measures […].”
27.
Commission on Human Rights 1985; Human Rights Council 2014a.
28.
ECPT, above n. 8, Article 1.
29.
Kriebaum 1997, pp. 160 onwards and 188; Cassese 1989.
30.
CAT Optional Protocol, above n. 8.
31.
Ibid., Article 3.
32.
ECPT, above n. 8, Articles 2, 3 and 8(2); CAT Optional Protocol, above n. 8, Articles 2(4), 3, 4(1), 12, 14 and 17–23.
33.
Subcommittee on Prevention of Torture 2010.
34.
Petersen 2010, para 1; Human Rights Committee 1982, paras 1–3: The right to life is considered of fundamental importance as the very first and basic human right, without which no other individual rights can exist.
35.
ICCPR, above n. 9, Article 6.
36.
ICCPR, above n. 9, Article 4(2); ECHR, above n. 9, Article 15(1): Noting the exception of deaths resulting from the lawful acts of war; ACHR, above n. 9, Article 27(2); The ACHPR does not contain a derogation clause; IACtHR, Pueblo Bello Massacre v. Colombia, Merits, Reparations and Costs, 31 January 2006, Series C No. 140 (Pueblo Bello Massacre), paras 134 and 146.
37.
Petersen 2010, para 1: This article claims that the majority of legal scholarship believes that the right to life has jus cogens status, but it is perhaps safer to assume that only some parts of the prohibition may have attained a jus cogens status. See also: Ramcharan 1985, p. 15.
38.
ICCPR, above n. 9, Article 6; ECHR, above n. 9, Article 2; ACHPR, above n. 9, Article 4; ACHR, above n. 9, Article 4: Of the above instruments, only the ECtHR does not use the word “arbitrary” but “intentional.” In the case law of the ECtHR, however, the provision has been interpreted as prohibiting the arbitrary deprivation of life roughly along the same lines as the other treaties. The clauses also differ slightly in their formulation of the parameters set to determine when the deprivation of life is considered arbitrary. For instance, Article 2(2) of the ECHR explicitly mentions certain circumstances in which deprivation of life can be legal, such as self-defence. By contrast, Article 4 of the ACHPR is drafted in very general terms and the definition of arbitrariness has been further crystallized in case law.
39.
CRC, above n. 10, Article 6; CRPD, above n. 10, Article 10.
40.
Human Rights Committee 1982, para 5.
41.
Ibid., para 3.
42.
Ibid., paras 2 and 4.
43.
Velásquez Rodríguez, above n. 23, para 166.
44.
IACtHR, 19 Tradesmen v. Colombia, Merits, Reparations and Costs, 5 July 2004, Series C No. 109, para 153; IACtHR, Juan Humberto Sánchez v. Honduras, Preliminary Objection, Merits, Reparations and Costs, 7 June 2003, Series C No. 99 (Juan Humberto Sánchez), para 110.
45.
ECtHR, Opuz v. Turkey, Merits, 9 June 2009, no. 33401/02 (Opuz), paras 128–30; ECtHR, McCann and Others v. the United Kingdom, Merits, 27 September 1995, no. 18984/91 (McCann and Others).
46.
AComHPR, Zimbabwe Human Rights NGO Forum v. Zimbabwe, Merits, 15 May 2006, No. 245/02, para 144; in light of its recent existence, the ACtHPR has not yet pronounced itself on this matter.
47.
Commission on Human Rights 1982; Economic and Social Council 1982.
48.
Weissbrodt and Rosen 1990, p. 580.
49.
Human Rights Council 2014b.
50.
Ibid., p. 2.
51.
Economic and Social Council 1989; UN 1991.
52.
Economic and Social Council 1989, Principle 8; Weissbrodt and Rosen 1990, pp. 599–601.
53.
ICJ, Reservations to the Convention on Genocide and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 1951, ICJ Rep 15, p. 23: The ICJ declared the “principles underlying the Convention” are a part of customary international law; ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda ), Jurisdiction and Admissibility, 3 February 2006, ICJ Rep 6, para 64.
54.
The Genocide Convention is most similar to the CAT and IACPPT.
55.
ICCPR, above n. 9, Article 6.
56.
Convention for the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (Genocide Convention), Article 1.
57.
Genocide Convention, above n. 56, Article 5.
58.
Ibid., Article 8.
59.
Ibid., Articles 3 jo 4 jo 6; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, 26 February 2007, ICJ Rep 2 (Genocide (2007)), para 426: “It is true that, simply by its wording, Article I of the Convention brings out the close link between prevention and punishment […] one of the most effective ways of preventing criminal acts, in general, is to provide penalties for persons committing such acts, and to impose those penalties effectively on those who commit the acts one is trying to prevent.”
60.
Genocide (2007), above n. 59, para 438; Gattini 2007.
61.
Genocide (2007), above n. 59, para 427; Economic and Social Council 1947; UN Secretariat 1947, Article 1: This conclusion is supported by the draft Convention, which mentions only the purpose of prevention; Ruvebana 2014, p. 92.
62.
Genocide (2007), above n. 59, paras 427 and 430.
63.
Genocide (2007), above n. 59, paras 166 and 382.
64.
Secretary-General 2004: informing the Security Council of the decision to appointing Juan Méndez as the first Special Adviser on the Prevention of Genocide; President of the Security Council 2004: taking note of the Secretary General ’s decision; Many governments and non-governmental organizations have also taken the mission of genocide prevention to heart and focus on clarifying and implementing genocide prevention. A few examples are the Budapest Centre for the International Prevention of Genocide and Mass Atrocities and the United States (US) Genocide Prevention Task Force, which released its final report in 2008. See generally: http://www.genocideprevention.eu/ and http://www.usip.org/publications/genocide-prevention-task-force.
65.
Secretary-General 2004.
66.
Office on Genocide Prevention and the Responsibility to Protect 2014.
67.
Ibid., pp. 1–2.
68.
Ibid., p. 6.
69.
Ibid., 9 and 18–9.
70.
Genocide Convention, above n. 56, Article 2; Office on Genocide Prevention and the Responsibility to Protect 2014, p. 1.
71.
See 1.3.2 Temporal Phases: The temporal phases are not strictly legally demarcated. Rather they are tools used to reveal a clear picture of various types of state obligations to prevent and the roles of knowledge and capacity as a violation unfolds.
72.
Attention will be paid to the diverse interpretations of obligations to prevent under different treaties. Human rights treaties each have a different set of member states and may have a different geographical applicability. Furthermore, the case law of the United Nations treaty bodies is formally non-binding as opposed to the judgments of the regional courts, which are binding. Exceptions are: ACHR, above n. 9, Article 50 and ACHPR, above n. 9, Articles 53 and 59: The Inter-American Commission on Human Rights and African Commission on Human and Peoples’ Rights may only issue recommendations. This does not necessarily mean that non-binding judgments are less authoritative, but perhaps such bodies are freer in their deliberations and therefore interpret rights more widely.
73.
See 1.3.2 Temporal Phases.
74.
The term “violation” is used here as synonymous to an injurious event , referring to the substantive violation of an individual’s right either by state officials or private individuals.
75.
Subcommittee on Prevention of Torture 2010, para 5a: “The prevalence of torture and ill-treatment is influenced by a broad range of factors, including the general level of enjoyment of human rights and the rule of law, levels of poverty, social exclusion, corruption, discrimination, etc.”; Office on Genocide Prevention and the Responsibility to Protect 2014, p. 3 and generally risk factors 1, 3 and 6: “Prevention is an ongoing process that requires sustained efforts to build the resilience of societies to atrocity crimes by ensuring that the rule of law is respected and that all human rights are protected, without discrimination […]”; Bellamy and McLoughlin 2009: Describes as preconditions for genocide or mass atrocities : social division, regime weakness, economic weakness.
76.
CAT, above n. 8, Article 2; ICCPR, above n. 9, Articles 2(2) jo 6 and 7; ECHR, above n. 9, Articles 1 jo 2 and 3; ACHR, above n. 9, Articles 1 jo 4 and 5; ACHPR, above n. 9, Articles 1 jo 4 and 5; Genocide Convention, above n. 56, Articles 1 jo 5.
77.
Velásquez Rodríguez, above n. 23, para 158; IACtHR, Godínez-Cruz v. Honduras, Merits, 20 January 1989, Series C No. 5, para 166: “[D]uty to organize the State in such a manner as to guarantee the rights recognized in the Convention.”
78.
Non-state actors can be private individuals or officials of a third state acting on its territory; CAT, above n. 8, Article 4; IACPPT, above n. 8, Article 6; Human Rights Committee 1992, para 8; Genocide Convention, above n. 56, Article 5.
79.
See generally: Andenaes 1966; Smidt 2001; Buitelaar 2016.
80.
Committee Against Torture 2008, para 22: Indicates sensitization programs for the protection of women from torture; CRC, above n. 10, Article 37: Juveniles are treated differently than adult criminals and detainees.
81.
CAT, above n. 8, Articles 10 and 11: State parties to the CAT must carry out “systematic review [of] interrogation rules, instructions, methods and practices as well as arrangements for […] custody”; Committee Against Torture 2008, para 4: State parties of the CAT states must regularly review their national laws to ensure they remain up to standard; IACPPT, above n. 8, Article 7: State parties must put emphasis on the prohibition of torture in the training of officials responsible for people in custody; UN Congress on the Prevention of Crime and the Treatment of Offenders 1990, Articles 18–20: There are certain training requirements for law enforcement officials on the use of force and firearms .
82.
Aust and Nolte 2014: Evaluates the potential of a converged minimum standard of justice and rule of law as informed by basic procedural guarantees for individuals.
83.
See 2.1.1 Torture: Whenever the prevention of torture is discussed, the prevention of ill-treatment is silently implied; Committee Against Torture 2008, para 3: Despite the legally significant difference between torture and other cruel inhuman and degrading treatment for the assessment of the violation ex-post facto, the CAT Committee has stressed that the required ‘effective measures to prevent’ for torture and for other forms of ill-treatment overlap, since ‘the definitional threshold’ is often unclear in practice.
84.
CAT, above n. 8, Article 4; IACPPT, above n. 8, Article 6; CAT and IACPPT also contain provisions prescribing the installment of proper arrangements for the extradition of offenders: CAT, above n. 8, Article 8; IACPPT, above n. 8, Articles 11, 13 and 14; the obligation to criminalize and exercise criminal jurisdiction is broader under the CAT and IACtHR than under other treaties, because it requires states to also prosecute and punish alleged perpetrators who have committed their acts abroad. This extraterritorial aspect is dealt with in Chaps. 3 and 4, but it may also have the effect of preventing torture on a state’s own territory, since the suspected torturer is present on the territory and making provision for prosecuting such individuals prevents them from committing similar acts: CAT, above n. 8, Articles 6 and 7; IACPPT, above n. 8, Article 12.
85.
Human Rights Committee 1992, para 8; ECtHR, Cestaro v. Italy, Merits, 7 April 2015, no. 6884/11, paras 219–225.
86.
CAT, above n. 8, Article 4; Committee Against Torture 2008, paras 8 and 11.
87.
IACtHR, Blake v. Guatemala, Reparations and Costs, 22 January 1999, Series C No. 48, para 64: The court proclaims that states must use all legal means at its disposal to combat impunity, as it fosters chronic recidivism.
88.
Committee Against Torture 2008, para 26; ECtHR, Ireland v. the United-Kingdom, Merits, 18 January 1978, no. 5310/71 (Ireland v. the UK), para 159: Under the ECHR, state “authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected.” This does not necessarily imply that superiors should be held criminally liable for violations by their subordinates.
89.
CAT, above n. 8, Article 15; IACPPT, above n. 8, Article 10; Human Rights Committee 1992, para 12; ECtHR, Tomasi v. France, Merits, 27 August 1992, no. 12850/87, para 115.
90.
CAT, above n. 8, Articles 10–13 and 15; IACPPT, above n. 8, Article 7; CAT Optional Protocol, above n. 8, establishing the Subcommittee on Prevention; ECPT, above n. 8, establishing the Committee for the Prevention of Torture; CAT, above n. 8, Article 11; HRCee, Ali Bashasha v. Libya, Merits, 20 October 2010, Comm. 1776/2008, No. CCPR/C/100/D/1776/2008, A/66/40, Vol. II, Part 1 (2011), Annex VI at 504 (Ali Bashasha), para 7.4: The Committee stresses the importance of contact with the outside world for the prevention of torture and therefore states must prevent unnecessary and lengthy incommunicado detention ; Juan Humberto Sánchez, above n. 44, paras 83–4: The Court stresses the importance of prompt judicial control of the legality of the detention to prevent torture; ECtHR, İlhan v. Turkey, GC Judgment on Merits, 27 June 2000, no. 22535/93, para 86: The case highlights the importance of providing for prompt medical attention.
91.
CAT, above n. 8, Articles 10–15.
92.
Committee Against Torture 2008, para 13; see also: Human Rights Committee 1992, para 11.
93.
CAT, above n. 8, Article 11; Committee Against Torture 2008, para 23; Human Rights Committee 1992, para 11.
94.
IACPPT, above n. 8, Articles 8–10.
95.
CAT, above n. 8, Article 10; IACPPT, above n. 8, Article 7.
96.
ICCPR, above n. 9, Articles 9–11; ECHR, above n. 9, Articles 5 and 6; ACHR, above n. 9, Articles 7 and 8; ACHPR, above n. 9, Articles 6 and 7.
97.
Ali Bashasha, above n. 90, para 7.4; HRCee, Mbongo Akwanga v. Cameroon, Merits, 22 March 2011, Comm. 1813/2008, No. CCPR/C/101/D/1813/2008, A/66/40, Vol. II, Part 1 (2011), Annex VI at 553 (Mbongo Akwanga), paras 7.2–7.3: Demonstrates the link between Articles 7 and 10 (fair trial ).
98.
IACtHR, Bámaca-Velásquez v. Guatemala, Merits, 25 November 2000, Series C No. 70, para 192; IACtHR, Habeas Corpus in Emergency Situations (Articles 27(2) and 7(6) of the American Convention on Human Rights), Advisory Opinion, 30 January 1987, Series A No. 8, para 33; ACHR, above n. 9, Article 27(2) last sentence: “Essential judicial guarantees for the protection of the non-derogable rights” cannot be suspended, even in times of emergency.
99.
AComHPR, Article 19 v. The State of Eritrea, Merits, 30 May 2007, No. 275/2003.
100.
Economic and Social Council 1957, amended in 1977; Office of the High Commissioner for Human Rights 1999; Mbongo Akwanga, above n. 97, para 7.3.
101.
Due-diligence obligations are understood to be measures which are often not codified as such, but are obligations of effort necessary to ensure the effectiveness of either a treaty obligation or customary norm. The term is used differently by different authors and even in this understanding it remains a broad and flexible category of norms, the bindingness of which may be disputed. Economic and Social Council 1957, amended in 1977, para 9(1).
102.
HRCee, Cabal & Bertran v. Australia, Merits, 19 September 2003, Comm. No. 1020/2001, UN Doc. CCPR/C/78/D/1020/2001, para 7.2: “[…] the contracting out to the private commercial sector of core State activities which involve the use of force and the detention of persons does not absolve a State party of its obligations under the Covenant […]”; Human Rights Committee 1994, para 2; Human Rights Committee 2002, para 137: New Zealand’s 1954 Penal Institutions Act “requires a contractor to comply with the requirements of the NZ Bill of Rights Act 1990 and the United Nations Standard Minimum Rules for the Treatment of Prisoners as if the institution was managed by the Department of Corrections”; McBeth 2004, II C.
103.
Committee Against Torture 2008, paras 18, 20, 21 and 24: The protection of vulnerable groups requires extra attention. Examples mentioned by the HRC are sensitization training and eliminating employment discrimination.
104.
ECtHR, A. v. the United Kingdom, Merits, 23 September 1998, no. 3455/05, paras 22–4.
105.
Committee Against Torture 2008.
106.
Ibid., paras 22–4.
107.
CRC, above n. 10, Article 19; CRPD, above n. 10, Article 15.
108.
CRC, above n. 10, Article 19; CRPD, above n. 10, Article 16; Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, opened for signature 9 June 1994, 33 ILM 1534 (entered into force 5 March 1995), Articles 7–8; implied under the CAT and ICCPR, see: Committee Against Torture 2008, paras 18, 20, 21 and 24 and Human Rights Committee 1992, para 11.
109.
ICCPR, above n. 9, Articles 10(1)b and (3): Juveniles shall be kept separately from adults, brought for adjudication as speedily as possible and treated according to their age and legal status; CRC, above n. 10, Article 37: Juveniles shall be treated according to the needs of children their age, shall be separated from adults and detention shall only be used as a measure of last resort and for the shortest period of time possible; Committee Against Torture 2008, para 11; also in the case law of the IACtHR, the fact that additional measures are needed to adequately protect children in detention is stressed: IACtHR, The “Street Children” (Villagrán-Morales et al.) v. Guatemala, Merits, 19 November 1999, Series C No. 63, para 197.
110.
Copelon 2007, pp. 257–63; Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981); Committee on the Elimination of Discrimination Against Women 1989; Committee Against Torture 2008, paras 22–4: States must build a “culture of respect for women.”
111.
Mahmut Kaya, above n. 25, para 85; Pueblo Bello Massacre, above n. 36, para 62; AComHPR, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan, Merits, 27 May 2009, No. 279/03-296/05, para 147; Economic and Social Council 1989, under 1.
112.
Human Rights Committee 1982, para 5; Human Rights Committee 2015: The HRCee is currently preparing a new General Comment on the right to life, which will elaborate on the meaning of “protected by law” in Article 6 of the ICCPR.
113.
ECtHR, Öneryıldız v. Turkey, GC Judgment on Merits, 30 November 2004, no. 48939/99 (Öneryıldız), paras 89–90: “They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks.”
114.
ECtHR, Makaratzis v. Greece, GC Judgment on Merits, 20 December 2004, no. 50385/99 (Makaratzis), para 31; Juan Humberto Sánchez, above n. 44, para 112; there is no express statement of this obligation under the African Human Rights System; Human Rights Committee 1982, para 3; AComHPR, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v. Zimbabwe, Merits, 12 October 2013, No. 295/04; UN General Assembly 1979, Article 3; UN Congress on the Prevention of Crime and the Treatment of Offenders 1990, first provision; Secretary-General Kofi Annan 2006, paras 33 onwards: Noting that necessity and proportionality are important principles to help determine when the use of force with potential lethal effect by state agents is warranted. While the Code of Conduct and Principles on the Use of Force are not binding, Article 3 of the former and Article 9 of the latter containing the principles or necessity and proportionality, are considered to reflect binding international law.
115.
Human Rights Committee 1982, para 3.
116.
Makaratzis, above n. 114, paras 58–9.
117.
ECtHR, Nachova and Others v. Bulgaria, GC Judgment on Merits, 6 July 2005, nos. 43577/98 and 43579/98 (Nachova), paras 99–100 and 102.
118.
See for example: Human Rights Committee 1982, para 3: “[T]he law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.”
119.
UN General Assembly 1979; UN Congress on the Prevention of Crime and the Treatment of Offenders 1990.
120.
Zimbabwe Human Rights NGO Forum 2013, above n. 114, paras 110 and 141–3: The communication is based on four examples of abuse of police power and excessive use of force in Zimbabwe.
121.
UN Congress on the Prevention of Crime and the Treatment of Offenders 1990, Articles 2, 3, 9 and 10: States are also required to develop non-lethal weapons.
122.
Nachova, above n. 117, para 97.
123.
UN Congress on the Prevention of Crime and the Treatment of Offenders 1990, Articles 18–20.
124.
McCann and Others, above n. 45, paras 202–14; UN Congress on the Prevention of Crime and the Treatment of Offenders 1990, Article 20.
125.
McCann and Others, above n. 45, para 200.
126.
McCann and Others, above n. 45, para 205.
127.
IACtHR, Neira-Alegría et al. v. Peru, Merits, 19 January 1995, Series C No. 20, paras 60–1.
128.
ICCPR, above n. 9, Articles 9–11; ECHR, above n. 9, Articles 5 and 6; ACHR, above n. 9, Articles 7 and 8; ACHPR, above n. 9, Articles 6 and 7; ECtHR, Paul and Audrey Edwards v. the United Kingdom, Merits, 13 March 2002, no. 46477/99, para 56; IACtHR, Pacheco Teruel et al. v. Honduras, Merits, Reparations and Costs, 27 April 2012, Series C No. 241, para 67: Enumerates “the main standards on prison conditions and the obligation of prevention that the State must guarantee to persons deprived of liberty” from the court’s case law; Juan Humberto Sánchez, above n. 44, para 84: prompt judicial control of detention; HRCee, Morales Tornel v. Spain, Merits, 20 March 2009, Comm. 1473/2006, No. CCPR/C/95/D/1473/2006: medical attention; IACtHR, Gelman v. Uruguay, Merits and Reparations, 24 February 2011, Series C No. 221, para 77: The IACtHR rules that running clandestine centres of detention is by definition a violation of the obligation to guarantee the Convention rights as it runs counter to several of the Convention’s provisions, including the right to life.
129.
IACtHR, “Juvenile Reeducation Institute” v. Paraguay, Preliminary Objections, Merits, Reparations and Costs, 2 September 2004, Series C No. 112, Commission’s Claims under A and D.
130.
IACtHR, “Children’s Rehabilitation Institute” v. Paraguay, Preliminary Objections, Merits, Reparations and Costs, 2 September 2004, Series C No. 112, para 178; Pacheco Teruel, above n. 128, para 68.
131.
Paul and Audrey Edwards, above n. 128, paras 62 and 64.
132.
HRCee, Kurbanova v. Tajikistan, Merits, 6 November 2003, Comm. 1096/2002, No. CCPR/C/79/D/1096/2002, A/59/40, Vol. II (2004), Annex IX at 354, para 7.7; HRCee, Akhadov v. Kyrgyzstan, Merits, 25 March 2011, Comm. 1503/2006, No. CCPR/C/101/D/1503/2006, A/66/40, Vol. II, Part 1 (2011), Annex VI at 156, para 7.5 and Individual opinion of Committee member Mr. Rafael Rivas Posada: Even if the sentence is not carried out, the imposition of the death penalty following an unfair trial is considered a violation of the right to life; ICCPR, above n. 9, Article 6(4): The ICCPR requires that the possibility exists to request a commutation of sentence; HRCee, Chisanga v. Zambia, Merits, 18 October 2005, Comm. 1132/2002, No. CCPR/C/85/D/1132/2002, A/61/40, Vol. II (2006), Annex V at 200, para 7.5; HRCee, Kennedy v. Trinidad and Tobago, Merits, 26 March 2002, Comm. 845/1998, No. CCPR/C/74/D/845/1998, A/57/40, Vol. II (2002), Annex IX at 161, para 7.4; HRCee, Thompson v. Saint Vincent and the Grenadines, Merits, 18 October 2000, Comm. 806/1998, No. CCPR/C/70/D/806/1998, A/56/40, Vol. II (2001), Annex X at 93, para 8.2: A commutation of sentence process does not have to live up to the same standards as the initial judicial process, nor can it “repair” an unfair trial.
133.
HRCee, Rolando v. Philippines, Merits, 3 November 2004, Comm. 1110/2002, No. CCPR/C/82/D/1110/2002, A/60/40, Vol. II (2005), Annex V at 161, para 5.2.
134.
CRC, above n. 10, Article 6; CRPD, above n. 10, Article 10; IACtHR, Bulacio v. Argentina, Merits, Reparations and Costs, 18 September 2003, Series C No. 100, para 138: This case supports this reasoning in the context of protecting minors, stating that the obligation to guarantee the right to life becomes an obligation to “prevent situations that might lead, by action or omission, to negatively affect it.”
135.
Human Rights Committee 1982, para 5.
136.
IACtHR, González et al. (“Cotton Field”) v. Mexico, Preliminary Objection, Merits, Reparations and Costs, 16 November 2009, Series C No. 205 (“Cotton Field”), paras 273 and 282.
137.
Bulacio, above n. 134; The “Street Children”, above n. 109.
138.
Tams et al. 2013, p. 233, para 54: This obligation has customary law status.
139.
Genocide Convention, above n. 56, Article 5.
140.
Office on Genocide Prevention and the Responsibility to Protect 2013, para 12: “States should identify and repeal any national legislation that discriminates against any community based on its identity. States should adopt comprehensive anti-discrimination legislation that includes preventive and punitive action to effectively combat incitement to violence that could lead to atrocity crimes, such as discriminatory legislation”; Tams et al. 2013, p. 221, paras 13–4: This can be done in criminal law, but this is not a hard requirement. As long as the law is passed by the state’s legislature and is not a specific individual measure.
141.
Genocide Convention, above n. 56, Articles 5 jo 7; Saul 2009, p. 70.
142.
Genocide Convention, above n. 56, Article 5: Refers “in particular” but not exclusively to enacting effective penalties; Ruvebana 2014, p. 117: Argues that the “necessary legislation” in Article 5 of the Genocide Convention should not be understood in the sense of being “absolutely essential [or] indispensable” but rather “useful, suitable, proper or conducive to the end sought” in light of the object and purpose of the Genocide Convention.
143.
The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities did occasionally discuss the legislation of certain states until it was wound up in 2006, but not on this specific aspect of the scope of Article 5. It recommended that a body be created to examine reports by States on their actions under Article 5; Tams et al. 2013, p. 222, para 17: In this commentary, the authors argue that “non-criminal law elements of the Genocide Convention aimed principally at the prevention of genocide” are required under Article 5, but the threshold to fulfil the necessity requirement is lower than for making Article 3 acts punishable.
144.
Genocide Convention, above n. 56, Article 2: Protected groups refer to the members of a national, ethnical, racial of religious group; Office on Genocide Prevention and the Responsibility to Protect 2014, p. 9 and pp. 18–9: The risk factors specific to genocide are: (risk factor 9) Intergroup tensions or patterns of discrimination against protected groups; and (risk factor 10) Signs of an intent to destroy in whole or in part a protected group.
145.
Office of the High Commissioner for Human Rights 2009, p. 59; Ruvebana 2014, pp. 133–6.
146.
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (ICERD) Articles 2 and 4: Article 4 requires state parties to make the dissemination of ideas based on racial superiority and incitement to racial discrimination punishable by law; see also: ICCPR, above n. 9, Article 20.
147.
Office on Genocide Prevention and the Responsibility to Protect 2013, para 9: “States should ensure that minority rights are respected and that diversity is not only tolerated but understood as a positive value and as contributing to the richness of societies”; Office on Genocide Prevention and the Responsibility to Protect 2014, risk factor 9.1 and 9.6; there is an analogy with guarantees for the protection of vulnerable groups for the prevention of torture and arbitrary deaths in the previous two sections.
148.
Saul 2009, pp. 76–7.
149.
Office of the High Commissioner for Human Rights 2009, p. 59: “State parties are asked to demonstrate and explain the preventive strategies that they have in place and the institutions that they have established to protect against risks and overcome discrimination and exclusion”; Office on Genocide Prevention and the Responsibility to Protect 2013, para 1: “States should […] prepare contingency plans for the prevention of incitement […]. […] Contingency planning aims to prepare governments, civil society and populations to minimise the impact of incitement and respond adequately to any crisis resulting from acts of incitement to violence that could lead to atrocity crimes”; Saul 2009, p. 77; note the analogy with the right to life and measures to deal with emergency situations in prisons: “Children’s Rehabilitation Institute”, above n. 130, para 178; Pacheco Teruel, above n. 128, para 68.
150.
Genocide Convention, above n. 56, Article 1; Genocide (2007), above n. 59, para 431: The obligation to prevent genocide was interpreted by the ICJ to arise only when a state “learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” The ICJ’s temporal limitation does not preclude that long-term measures could in the future be interpreted to inhere in the obligation to prevent genocide; Saul 2009, p. 78: “[A] range of other legislative measures might be regarded as contributing to realizing the obligation to prevent genocide under the Convention. National strategies for educating communities about genocide and disseminating the Convention might be envisaged, as is explicit under the 1949 Geneva Convention in respect of international humanitarian law. Likewise, measures for building inter-ethnic or communal harmony might benefit from legislative enactment”; Ruvebana 2014, pp. 121–3.
151.
CAT, above n. 8, Article 2; ICERD, above n. 146, Article 7: “States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups (…).”
152.
Office on Genocide Prevention and the Responsibility to Protect 2013, paras 2, 3, 4, 6 and 14.
153.
Secretary-General 2009, para 58j: “Tolerance, raising awareness of the risk of genocide and human rights education among all ethnic groups should be encouraged”; Office of the Special Adviser on the Prevention of Genocide 2010, para 54: Recommends that the transitional government, UN and international community “support the existing inter-religious groups, women’s groups, councils of elders, youth and civil society to promote dialogue, cohesion and unity, especially among ethnic and religious groups.”
154.
Office of the High Commissioner for Human Rights 2009, pp. 59–60.
155.
Human Rights Council 2008, para 15.
156.
See 1.3.2 Temporal Phases.
157.
Bellamy and McLoughlin 2009, pp. 15–20.
158.
Committee Against Torture 2008, para 17; Human Rights Committee 1992, para 2.
159.
These non-state actors can be private individuals or officials of a third state acting on its territory; Committee Against Torture 2008, para 18; Human Rights Committee 1992, para 1; CAT Committee, Dzemajl et al. v. Yugoslavia, Merits, 21 November 2002, Comm. 161/2000, UN Doc CAT/C/29/D/161/2000, A/58/44 (2003) Annex VI at 85; CAT Committee, Osmani v. Serbia, Merits, 8 May 2009, Comm. 261/2005, UN Doc CAT/C/42/D/261/2005, A/64/44 (2009) Annex XIII at 273; Z. and Others, above n. 25; A. v. the UK, above n. 104; Mahmut Kaya, above n. 25, para 100; Pueblo Bello Massacre, above n. 36, para 123.
160.
Committee Against Torture 2008, para 26.
161.
It is unclear whether this stricter form of domestic (criminal) liability of higher ranking officials translates into a stricter form of state responsibility; CAT Committee, Salem v. Tunisia, Merits, 7 November 2007, Comm. 269/2005, UN Doc CAT/C/39/D/269/2005, A/63/44 (2008) Annex XI at 211: The CAT Committee has not been eager to apply strict liability under Article 11 for a failure to carry out supervisory powers to prevent, if it could also find a violation under Article 2.
162.
Ireland v. the UK, above n. 88, para 239: “[A]uthorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected.”
163.
CAT, above n. 8, Article 2(3); IACPPT, above n. 8, Article 4; Human Rights Committee 1992, para 3.
164.
Human Rights Committee 1992, para 2.
165.
Velásquez Rodríguez, above n. 23, paras 173–5; Godínez-Cruz, above n. 77, paras 173–5 and 183; ECtHR, Đorđević v. Croatia, Merits, 24 July 2012, no. 41526/10 (Đorđević), paras 138–9.
166.
CAT, above n. 8, Article 1: The definition of torture in the CAT is limited to acts “by or at the instigation of or with the consent or acquiescence of a public official”; Committee Against Torture 2008, para 18: This definition was interpreted widely by the CAT Committee as including cases in which state officials “know or have reasonable grounds to believe that acts of torture […] are being committed by non-State officials or private actors.”
167.
CAT Committee, X. v. Kazakhstan, Merits, 9 October 2015, Comm. 554/2013, UN Doc CAT/C/55/D/554/2013, paras 12.7–13.
168.
Mahmut Kaya, above n. 25, para 115; see also: ECtHR, Ilaşcu and Others v. Moldova and Russia, GC Judgment on Merits, 8 July 2004, no. 48787/99 (Ilaşcu), para 318; ECtHR, El Masri v. “the former Yugoslav Republic of Macedonia”, GC Judgment on Merits, 13 December 2012, no. 39630/09 (El Masri), para 206.
169.
Opuz, above n. 45, paras 162 and 170.
170.
Ibid., paras 169–70.
171.
Ibid., para 176.
172.
Đorđević, above n. 165, paras 138–9 and 148: In this case, the ECtHR confirmed the existence of an indirect short-term obligation to prevent torture by non-state actors. Unlike the other ECtHR cases discussed in this section, it applied the Osman formula for the short-term prevention of arbitrary death in the context of the prohibition of torture. The Osman formula will be discussed in 2.2.2.2 Arbitrary Death. The refinement of the indirect short-term obligation to prevent torture along the lines of the Osman formula entails that the obligation must not “impose an impossible or disproportionate burden on authorities” but only arises when “the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”
173.
Đorđević, above n. 165, paras 7–60.
174.
Ibid., paras 148–9.
175.
El Masri, above n. 168; see also: HRCee, Mohammed Alzery v. Sweden, Merits, 10 November 2006, Comm. 1416/2005, No. CCPR/C/88/D/1416/2005, para 11.6.
176.
El Masri, above n. 168, paras 18, 21–2.
177.
Ibid., paras 24–30.
178.
Ibid., para 223.
179.
See for example: CAT, above n. 8, Article 1; Committee Against Torture 2008, para 18; Fabbrini 2014, p. 93.
180.
Nollkaemper 2012: “The justification of the construction then lies in the combination of the (positive) obligations of states party under the Convention, and the fact that the conduct in question took place on its territory with its acquiescence or connivance, which in turn was incompatible with the positive obligations .”
181.
Mohammed Alzery, above n. 175, paras 4.12–3 and 11.6: Mr. Alzery argues that given the “global situation […] the risk of ill treatment was thus already wholly clear and realized on Swedish territory.” He further argues that “the treatment he suffered at Bromma airport, as described in para 3.11, supra, was imputable to Sweden by the latter’s failure to prevent it though within its power.” The HRCee concludes that “the acts complained of, which occurred in the course of performance of official functions in the presence of the State party’s officials and within the State party’s jurisdiction, are properly imputable to the State party itself, in addition to the State on whose behalf the officials were engaged”; Byrne 2014, p. 38: “[T]he broader notion of acquiescence suggests it was grounded in a positive obligation of prevention and a failure of due diligence —conceived in terms of the spatial application of the ICCPR.”
182.
El Masri, above n. 168, paras 206 and 211; Mahmut Kaya, above n. 25, para 115; Hakimi 2007, p. 449; European Commission for Democracy Through Law (Venice Commission) 2006, paras 123, 130 and 132: Claims that in relation to alleged secret detention facilities “[t]he host State is […] entitled and even obliged to prevent, and react to such abuse of its territory. It could exercise its powers in respect of registration and control of aliens, and demand identification and movement orders of those present on the military base in question. […] In addition, appropriate diplomatic channels can be used in order to protest against such practice.”
183.
El Masri, above n. 168, paras 212–23: Macedonia was also held responsible “for having transferred the applicant into the custody of the US authorities, thus exposing him to the risk of further treatment contrary to Article 3 of the Convention.”
184.
El Masri, above n. 168, paras 223 and 240.
185.
Ibid., para 211.
186.
Note that the HRCee applies a similar reasoning as the ECtHR in the El Masri case in Mohammed Alzery, above n. 175, para 11.6: “It follows that the acts complained of, which occurred in the course of performance of official functions in the presence of the State party’s officials and within the State party’s jurisdiction, are properly imputable to the State party itself, in addition to the State on whose behalf the officials were engaged.”
187.
ECtHR, Husayn (Abu Zubaydah) v. Poland, Merits, 24 July 2014, no. 7511/13 (Husayn (Abu Zubaydah)), para 512; ECtHR, Al Nashiri v. Poland, Merits, 24 July 2014, no. 28761/11 (Al Nashiri), para 517.
188.
Al Nashiri, above n. 187, para 517.
189.
International Law Commission 2001, Articles 2, 14(2) and 16.
190.
El Masri, above n. 168, para 206; Al Nashiri, above n. 187, para 510; Husayn (Abu Zubaydah), above n. 187, para 503: The term “impute” is sometimes also used as synonymous for the term attribute that has the specific connotation in the law of state responsibility of the attribution of conduct to a state. The court also uses the term “complicity” in its judgments without referring directly to Article 16 of the Articles on State Responsibility.
191.
Hakimi 2007, pp. 448–9.
192.
El Masri, above n. 168, para 97; Al Nashiri, above n. 187, paras 207 and 447–450: The third party intervener is the only one to directly link complicity under Article 16 of the Articles on State Responsibility with the state’s positive obligations under the ECHR; Husayn (Abu Zubaydah), above n. 187, para 201; Genocide (2007), above n. 59, paras 422–4: In the Genocide case, the ICJ moves more explicitly from complicity to prevention. After concluding that complicity in genocide on behalf of Serbia could not be proven, the court moved on to consider a potential failure of its obligation to prevent genocide.
193.
International Law Commission 2001, Commentary to Article 16, paras 3–5: The Commentary to Article 16 of the Articles on State Responsibility explains that the state must not only be aware of the circumstances of the wrongful act, but also give aid and assistance “with a view to facilitating the commission of that act”; Gibney et al. 1999, pp. 293–4: Commenting on the threshold of complicity, the authors state that a large gap exists in which states can go unpunished for the facilitation of human rights violations, even with the knowledge that they are being committed. Perhaps for this reason, the ECtHR chose to circumvent it, using instead the threshold for the positive obligation to prevent when the state “knew or ought to have known .”
194.
El Masri, above n. 168, para 239: Even more striking in this regard is that the court also held Macedonia responsible for the illegal detention of Mr. El Masri by the CIA in Afghanistan after his removal from Macedonian territory, because it was aware of the risk thereof; Nollkaemper 2012, for a different opinion see Assier Garrido’s response: Argues that responsibility for acts of torture by third state officials is based on an extention of the logic of the prohibition of refoulement; Jackson 2015, p. 194: Classifies the El Masri case as one of complicity and states that: “[…] Macedonia’s complicity in the conduct of another state—the US—was sufficient to attribute the foreign state’s conduct to it.”
195.
Incorporating non-facilitation in the primary norm to ensure human rights and holding states responsible for facilitation based on less demanding standards than under the Articles on State Responsibility may indicate an interesting development, which could potentially have far-reaching (preventive) effects. This is especially the case if the reasoning is extended to foreseeable gross human rights violations outside the state’s territory. See for an example of state practice that supports a less strict approach to facilitation: Wintour P (2016) Spain Reviews Plan to Let Russian Warships refuel en Route to Syria. https://www.theguardian.com/world/2016/oct/26/spain-reviews-plan-to-let-russian-warships-refuel-en-route-to-syria. Accessed 2 August 2017.
196.
Ilaşcu, above n. 168.
197.
Ibid., paras 331, 441, 448, 453.
198.
Ibid., para 335.
199.
Ibid., paras 333 and 335.
200.
Ibid., paras 333–4: The court added that determining to what extent a minimum effort was possible to live up to its positive obligations is “especially necessary in cases concerning an alleged infringement of absolute rights such as those guaranteed by Articles 2 and 3 of the Convention.”
201.
Ibid., para 333; Den Heijer 2012, p. 5.
202.
Ilaşcu, above n. 168, para 339.
203.
Ibid., para 337.
204.
Ibid., para 341.
205.
Ibid., paras 342–5.
206.
Ibid., paras 346–7.
207.
Ibid., para 348.
208.
Ibid., paras 349–50.
209.
Ibid., paras 351–2, 449, 454, 464: The ill-treatment and unlawful detention of the three other applicants besides Mr. Ilaşcu was imputed to Moldova for the period after 2001, when it failed to discharge its positive obligations towards them.
210.
ECtHR, Ivanţoc a.o. v. Moldova and Russia, Merits, 15 November 2011, no. 23687/05, paras 105–8: This case also concerned wrongful detention and ill-treatment by the MRT. The court had already determined that Moldova had taken sufficient steps to regain control in the Ilaşcu case and therefore only had to determine whether Moldova had done everything in its power to continue to guarantee the applicants’ rights. The Moldovan government had drawn lessons from the 2004 Ilaşcu judgment and had since then consistently raised individual cases of ill-treatment and unlawful detention in its dealings with both the MRT and Russia and sought support for their release internationally. It thereby discharged its positive obligations and the court found no violation.
211.
CAT, above n. 8, Article 3; Weissbrodt and Hortreiter 1999: The term non-refoulement is used here in the context of the prohibition of torture and does not refer to the definition of non-refoulement under refugee law; CAT Committee, Tebourski v. France, Merits, 1 May 2007, Comm. 300/2006, UN Doc CAT/C/38/D/300/2006, A/62/44 (2007) Annex VII at 317, paras 8.2–3; ICCPR, above n. 9, Articles 7 jo 13; ECHR, above n. 9, Articles 6 jo 7 and Protocol 7; ACHR, above n. 9, Articles 5 jo 22(5); ACHPR, above n. 9, Articles 4 jo 5 jo 12; the prohibition of refoulement is sometimes qualified as an extraterritorial aspect of the prohibition of torture, because the state does not violate the prohibition through its own acts of torture, but by extraditing an individual and thereby exposing him or her to the grave risk of being tortured in the receiving state. However, the obligation of non-refoulement is owed towards a person on the state’s territory.
212.
HRCee, Pillai v. Canada, Merits, 25 March 2011, Comm. 1763/2008, No. CCPR/C/101/D/1763/2008, A/66/40, Vol. II, Part 1 (2011), Annex VI at 473, para 11.4 and individual opinion of Committee Members Keller, Motoc, Neuman, O’Flaherty and Rodley: The degree of knowledge for non-refoulement to come into play was originally higher under the ICCPR (it had to be the foreseeable and necessary consequence that the feared harm would take place), but it was relaxed and brought in line with the degree of knowledge used by the CAT Committee (having substantial grounds to believe that there is a real risk) in the Pillai case.
213.
CAT Committee, M. N. v. Switzerland, Merits, 17 November 2006, Comm. 259/2004, UN Doc CAT/C/37/D/259/2004, A/62/44 (2007) Annex VII at 198, para 6.7; Committee Against Torture 1997, para 6.
214.
ECtHR, Salah Sheekh v. the Netherlands, Merits, 11 January 2007, no. 1948/04 (Salah Sheekh), para 148: The risk assessment involves assessing whether there are features which make the ill-treatment or torture foreseeable in that particular case. The Court clarifies that such features do not necessarily have to show that someone is personally at risk. In this case, the unsafe situation in Somalia and the fact that the clan to which the defendant belonged was at risk was considered enough to find the existence of a real risk.
215.
ECtHR, A. v. the Netherlands, Merits, 20 July 2010, no. 4900/06, para 157.
216.
CAT Committee, S. V. et al. v. Canada, Merits, 15 May 2001, Comm. 49/1996, UN Doc CAT/C/26/D/49/1996, A/56/44 (2001) Annex VII at 102, para 9.5: The reasoning underlying this decision is related to the definition of torture as contained in Article 1 of the CAT as having to be “with the acquiescence of a public official.”
217.
ECtHR, H.L.R. v. France, Merits, 29 April 1997, no. 24573/94, p. 758, para 40; Salah Sheekh, above n. 214, para 154; ECtHR, J.K. and Others v. Sweden, GC Judgment on Merits, 23 August 2016, no. 59166/12, paras 80 and 120–1.
218.
See for example: Izumo 2010.
219.
CAT Committee, Alan v. Switzerland, Merits, 8 May 1996, Comm. 21/1995, UN Doc CAT/C/16/D/21/1995, A/51/44 (1996) Annex V at 68, para 11.5; ECtHR, Othman (Abu Qatada) v. the United Kingdom, Merits, 17 January 2012, no. 8139/09 (extracts), para 187: It is not enough that the receiving state is also under an international obligation to prevent torture and ill-treatment.
220.
Special Rapporteur Theo van Boven 2004, para 37.
221.
UN General Assembly 1979; UN Congress on the Prevention of Crime and the Treatment of Offenders 1990.
222.
UN Congress on the Prevention of Crime and the Treatment of Offenders 1990, Article 10.
223.
Öneryıldız, above n. 113, para 101.
224.
Ibid., para 107.
225.
Ibid., paras 90 and 108.
226.
The HRCee has not dealt with a case with the specific factual scenario that would warrant short-term operational measures , but it would likely follow the reasoning of these other courts and supervisory bodies.
227.
The AComHPR also decided, in two separate cases against Zimbabwe, that states have a short-term obligation to take measures to prevent violations of the right to life. These cases refer to the case law of the ECtHR and IACtHR and do not add much to their reasoning: Zimbabwe Human Rights NGO Forum 2006, above n. 46, paras 156–7: In the 2006 case, the Commission proclaimed that, if a state can foresee and take measures to prevent a violation of the right to life, it has a due-diligence obligation to do so; Zimbabwe Human Rights NGO Forum 2013, above n. 114, para 139: In the 2013 case, based on violations against different people at different times, the Commission reiterated that state parties have “an obligation to prevent the wrongful deaths of its citizens.”
228.
ECtHR, Osman v. the United Kingdom, Merits, 28 October 1998, no. 23452/94 (Osman), para 116.
229.
Osman, above n. 228, para 118.
230.
Ebert and Sijniensky 2015, pp. 2–9: The authors show how the Osman test has been used for different types of scenarios and argues that its use in contexts where there was state involvement in the creation of a risk of arbitrary death has led to conceptual confusion and practical problems.
231.
ECtHR, Kılıç v. Turkey, Merits, 28 March 2000, no. 22492/93, para 66: This case concerned a journalist who worked for a newspaper, where multiple other journalists had faced attacks. Turkey argued that the journalist was no more at risk than other journalists in this region. The court disagreed and stated that he faced a real and immediate risk based on the pattern of attacks against journalists working for this newspaper.
232.
Osman, above n. 228, para 116; ECtHR, Mastromatteo v. Italy, GC Judgment on Merits, 24 October 2002, no. 37703/97, para 69.
233.
Mastromatteo, above n. 232, para 76.
234.
Osman, above n. 228, para 116; Ebert and Sijniensky 2015, p. 5.
235.
Osman, above n. 228, para 116.
236.
ECtHR, Branko Tomašić and Others v. Croatia, Merits, 15 January 2009, no. 46598/06, para 58.
237.
Ibid., paras 53 and 61.
238.
Opuz, above n. 45.
239.
Ibid., paras 145 and 153.
240.
Pueblo Bello Massacre, above n. 36, para 123.
241.
Ibid., paras 135 and 138: The court admits that “(i)t is true that, in this case, it has not been proved that the State authorities had specific prior knowledge of the day and time of the attack on the population of Pueblo Bello and the way it would be carried out” however that “the mobilization of a considerable number of people in this zone (…) reveals that the State had not adopted reasonable measures to control the available routes in the area”; see also: “Cotton Field”, above n. 136, paras 250, 282–3: The fact that there was a pattern of violations against women in a certain region meant that Mexico had an obligation of strict due diligence in relation to reports of missing women.
242.
Pueblo Bello Massacre, above n. 36, para 123.
243.
Ebert and Sijniensky 2015: This article outlines how the IACtHR incorporated the Osman test in its own case law and combines it with its own pre-existing due diligence test; Ethan 2010, p. 440: Based on the Pueblo Bello-formula, an applicant in a US Supreme Court case argued that the US “knew or ought to have known of a situation presenting a real and immediate risk to the safety of an identified individual from the criminal acts of a third party” and “failed to take reasonable steps within the scope of its powers, which might have had a reasonable possibility of preventing or avoiding the risk.”
244.
Pueblo Bello Massacre, above n. 36, para 125; “Cotton Field”, above n. 136, para 243.
245.
“Cotton Field”, above n. 136, para 283.
246.
Pillai, above n. 212, para 11.4: Substantial grounds for believing that there is a real risk; Salah Sheekh, above n. 214, para 148: Real and personal risk; the measures required can go one of two ways: either it does not expel the individual or it attains assurances from the receiving state that the individual will not be arbitrarily deprived of his or her life.
247.
HRCee, Roger Judge v. Canada, Merits, 20 October 2003, Comm. 829/1998, UN Doc. CCPR/C/78/D/829/1998, para 10.3: In this case, the HRCee, referring to the living instrument doctrine, chose to deviate from its previous case law on the matter in favor of a stricter interpretation of the principle of non-refoulement in cases where the individual runs the risk of capital punishment in the receiving state.
248.
HRCee, Fong v. Australia, Merits, 23 October 2009, Comm. 1442/2005, No. CCPR/C/97/D/1442/2005.
249.
Ibid., paras 9.6–7.
250.
Schabas 1998; Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991).
251.
ECtHR, Soering v. the United Kingdom, Merits, 7 July 1989, no. 14038/88, paras 111 and 126: The ECtHR found that it would constitute a breach of the prohibition of torture and inhumane and degrading treatment to extradite Soering to a state where he would likely receive the death penalty because of the emotional stress of being on death row, the subsidiarity principle and his personal circumstances; ECtHR, Al-Saadoon and Mufdhi v. the United Kingdom, Merits, 2 March 2010, no. 61498/08, para 120: The ECtHR has since held that capital punishment has become unacceptable under all circumstances, effectively amending Article 2 of the ECHR; Protocol 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of Death Penalty, opened for signature 28 April 1983, ETS 114 (entered into force 1 March 1985); Protocol 13 to the European Convention on Human Rights and Fundamental Freedoms on the Abolition of the Death Penalty in All Circumstances, opened for signature 3 May 2002, ETS 187 (entered into force 1 July 2003).
252.
Soering, above n. 251, para 122.
253.
Genocide (2007), above n. 59, para 431.
254.
De Pooter 2009, p. 295; as mentioned in the introduction to this section, indicators of a risk of genocide can be incitement , mobilization and an increase in life-integrity crimes.
255.
Genocide (2007), above n. 59, 430–1.
256.
Ibid., 430–1.
257.
Ibid., 430.
258.
Ibid., 430.
259.
De Pooter 2009, p. 311.
260.
Genocide (2007), above n. 59, paras 430–1.
261.
Genocide Convention, above n. 56, Articles 1 and 8: Aside from Article 1, only Article 8 refers to prevention in the context of a possibility to call on the UN to take action to prevent and suppress genocide; Genocide (2007), above n. 59, para 430: In the Genocide case, the ICJ hardly elaborated on the type of measures that could be required of states to prevent genocide. Furthermore, it did not concern the territorial context, because the case was brought against neighboring state Serbia for its role in the genocide in Bosnia; Ben-Naftali 2009, p. 33: “At the time the Genocide Convention was concluded, the ‘obligation to prevent’ in Article I was a morally pregnant but a normatively empty concept.”
262.
Office of the High Commissioner for Human Rights 2009, p. 59; Office on Genocide Prevention and the Responsibility to Protect 2013, para 1: “States should […] prepare contingency plans for the prevention of incitement […]. […] Contingency planning aims to prepare governments, civil society and populations to minimise the impact of incitement and respond adequately to any crisis resulting from acts of incitement to violence that could lead to atrocity crimes.”
263.
Office on Genocide Prevention and the Responsibility to Protect 2013, para 5.
264.
Genocide Convention, above n. 56, Articles 1 jo 3.
265.
Ruvebana 2014, p. 166.
266.
Genocide Convention, above n. 56, Article 8.
267.
De Pooter 2009, p. 311; Ruvebana 2014, p. 167.
268.
De Pooter 2009, p. 311; Ruvebana 2014, pp. 159–61.
269.
Charter of the United Nations , opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) (UN Charter), Article 51; Ruvebana 2014, pp. 168 and 174.
270.
See 1.3.2 Temporal Phases.
271.
International Law Commission 2001, Commentary to Article 14, paras 5 and 14: “The breach of an obligation of prevention may well be a continuing wrongful act […].”
272.
International Law Commission 2001, Commentary to Article 30, para 5: “The function of cessation is to put an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying primary rule”; Zemanek 2000, p. 27: “[T]he obligation to perform the obligation under the primary norm is inherent in the latter.”
273.
International Law Commission 2001, Article 30(1); Trail Smelter Case (United States v Canada) arbitration resulting in special agreement, 16 April 1938 and 11 March 1941, 3 RIAA 1905–1982 (Trail Smelter).
274.
International Law Commission 2001, Article 14(1) Commentary to Article 14, para 6: The consequences of acts of torture may also extend in time, but are not part of the continuing violation if the acts of torture have ceased.
275.
International Law Commission 2001, Article 30(1); Trail Smelter, above n. 273.
276.
Committee Against Torture 2008, para 26; Ireland v. the UK, above n. 88, para 239.
277.
Ireland v. the UK, above n. 88, para 159; International Law Commission 2001, Article 14(3): An administrative practice, although concerning different instances of torture, is a continuing violation of the obligation to prevent torture because there is official tolerance in a legislative and administrative system that ought to be capable of deterring torture.
278.
Ireland v. the UK, above n. 88, para 159.
279.
EComHR, Denmark, France, Norway, Sweden and the Netherlands v. Turkey, Admissibility, 6 December 1983, no. 9940–9944/82, para 30.
280.
So far, only the CAT Committee and ECtHR have expressly acknowledged this obligation to intervene in a continuing violation by a third party, which does not mean it does not exist under other human rights instruments containing the prohibition of torture. See for example: Mbongo Akwanga, above n. 97: Torture and ill-treatment of a detainee by fellow prisoners. Although technically part of Article 10, protecting detainees from ill-treatment is normally considered part of the prevention of torture. The claim is phrased in terms of the state’s failure to prevent the claimant from being attacked by his fellow prisoners.
281.
CAT, above n. 8, Article 1: “[…] 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”; Committee Against Torture 2008, para 18.
282.
Committee Against Torture 2008, para 18.
283.
Osmani, above n. 159, para 10.5.
284.
Dzemajl, above n. 159, para 9.2.
285.
Ibid., para 9.2; Osmani, above n. 159.
286.
Committee Against Torture 2008, para 18.
287.
Z. and Others, above n. 25, para 73.
288.
El Masri, above n. 168, paras 206 and 211.
289.
ECtHR, Al-Adsani v. the United Kingdom, GC Judgment on Merits, 21 November 2001, no. 25781/94 (Al-Adsani), para 38; ECtHR, Assenov and Others v. Bulgaria, Merits, 28 October 1998, no. 24760/94, para 102: “[W]here an individual raises an arguable claim that he has been seriously ill-treated” Articles 1 and 3 read together require that there should be an effective official investigation.
290.
Mahmut Kaya, above n. 25, para 115; Z. and Others, above n. 25; Velásquez Rodríguez, above n. 23, para 174.
291.
Committee Against Torture 2008, para 18.
292.
ECtHR, Isaak v. Turkey, Merits, 24 June 2008, no. 44587/98: In the Isaak v. Turkey case, for example, police officers stood by or participated in beating to death an unarmed protester. The police officers were both obliged to refrain from participating or standing by based on the real risk that Mr. Isaak might actually be killed (short-term prevention) and based on the obligation not to commit or acquiesce in continuing forms of beating constituting ill-treatment or torture (preventing continuation). Construing individual killings as a continuing violation would lead to an artificial construction, covering a short period in which ill-treatment or threats are so intense that it will almost certainly result in death. Rather than taking this artificial and from an evidentiary perspective unrealistic construction any further, it can safely be concluded that individual killings are not continuing violations; Pauwelyn 1996, p. 418: “Only the extension in time of the violation (not of the material act as such) is determinate: even though it might take hours, for example, to murder someone, the crime of murder, by its very nature, remains an ‘instantaneous’ crime.”
293.
The term “killings” is used because it concerns deaths directly caused by people, as opposed to more circumstantial violations of the right to life; International Law Commission 2001, Commentary to Article 15, paras 4 and 5: This should be distinguished from a breach consisting of a composite act, which entails that separate acts are only wrongful in aggregate. Individual arbitrary killings are each wrongful acts. A pattern of killings may result in crimes against humanity. Crimes against humanity are excluded from the scope of this research except for a short discussion in Chap. 4.
294.
Pauwelyn 1996, pp. 427–8; Ireland v. the UK, above n. 88.
295.
Ireland v. the UK, above n. 88, para 159.
296.
Pueblo Bello Massacre, above n. 36, paras 139–40; Zimbabwe Human Rights NGO Forum 2006, above n. 46, para 77; AComHPR, Commission Nationale des Droits de l’Homme et des Libertés v. Chad, Merits, 11 October 1995, No. 74/92, para 22.
297.
It is unimaginable that other tribunals and supervisory bodies would not rule similarly if confronted with these circumstances.
298.
Osman, above n. 228, para 116.
299.
Pueblo Bello Massacre, above n. 36, para 139.
300.
Commission Nationale des Droits de l’Homme et des Libertés, above n. 296, para 22.
301.
Ilaşcu, above n. 168, paras 333–9: The ECtHR stated that determining to what extent a state could live up to its positive obligations in such situations is “especially necessary in cases concerning an alleged infringement of absolute rights such as those guaranteed by Articles 2 and 3 of the Convention.” Article 2 contains the right to life.
302.
International Law Commission 2001, Commentary to Article 15, para 3.
303.
Genocide Convention, above n. 56, Article 1; Genocide (2007), above n. 59, paras 166 and 382: The obligation not to commit genocide is inherent to the obligation to prevent genocide; International Law Commission 2001, Article 30(1); Trail Smelter, above n. 273.
304.
Genocide (2007), above n. 59, para 430.
305.
Ruvebana 2014, p. 147: “History has proved that genocide has been possible where states have organized and perpetrated it. […] However, it has not been concluded that genocide is only possible where the whole state apparatus is involve.”
306.
Genocide Convention, above n. 56, Article 6.
307.
Rome Statute of the International Criminal Court , opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute), Articles 13 and 14.
308.
De Pooter 2009, p. 311; Ruvebana 2014, pp. 159–61.
309.
UN Charter, above n. 269, Article 51; Ruvebana 2014, pp. 168 and 174.
310.
See 1.3.2 Temporal Phases.
311.
Office on Genocide Prevention and the Responsibility to Protect 2014, risk factor 2: “Past or current serious violations of international human rights and humanitarian law […] that have not been prevented, punished or adequately addressed and, as a result, create a risk of further violations.”
312.
Goldstone 2005: Supporters on the “peace” side of the debate have pointed out that an excessive focus on investigation, fact-finding and legal responsibility can sometimes lengthen conflicts and processes of reconciliation and rebuilding; Parlevliet 2015.
313.
The term “violation” is used here as synonymous to an injurious event , referring to the substantive violation of an individual’s right either by state officials or private individuals.
314.
CAT Committee, Blanco Abad v. Spain, Merits, 14 May 1998, Comm. 59/1996, UN Doc CAT/C/20/D/59/1996 (Blanco Abad), paras 8.2 and 8.6; Mohammed Alzery, above n. 175, para 11.7.
315.
Blanco Abad, above n. 314, para 8.2.
316.
Blake, above n. 87, paras 61 and 64: “[I]mpunity fosters chronic recidivism”; Bulacio, above n. 134, para 306; Opuz, above n. 45, para 153.
317.
The obligation of non-refoulement also applies if an individual runs the risk of torture or death because there is a (risk of) genocide in the receiving state, but it has not been separately addressed in that context.
318.
Human Rights Committee 2004, paras 8 and 17: “[I]t has been a frequent practice of the Committee (…) to include in its Views the need for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question”; ECtHR, Broniowski v. Poland, GC Judgment on Merits, 22 June 2004, no. 31443/96: Example of judicial practice instructing a state to address a structural problem to prevent future violations; International Law Commission 2001, Article 30 and Commentary to Article 30, para 6; Office of the High Commissioner for Human Rights 2014, para 10.
319.
Committee Against Torture 2008, para 4; Human Rights Committee 2004, para 17: “In general, the purposes of the Covenant would be defeated without an obligation integral to Article 2 to take measures to prevent a recurrence of a violation of the Covenant. Accordingly, it has been a frequent practice of the Committee in cases under the Optional Protocol to include in its Views the need for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question. Such measures may require changes in the State Party’s laws or practices”; HRCee, McCallum v. South Africa, Merits, 25 October 2010, Comm. 1818/2008, No. CCPR/C/100/D/1818/2008, A/66/40, Vol. II, Part 1 (2011), Annex VI at 568.
320.
International Law Commission 2001, Article 30.
321.
CAT, above n. 8, Articles 12 and 13; IACPPT, above n. 8, Articles 3 and 8; ICCPR, above n. 9, Articles 2(1) and (3) jo 7; Human Rights Committee 1992, para 14; CAT Committee, Guridi v. Spain, Merits, 17 May 2005, Comm. 212/2002, UN Doc CAT/C/34/D/212/2002, A/60/44 (2005) Annex VIII at 147, para 6.6; ECtHR, Aksoy v. Turkey, Merits, 18 December 1996, no. 21987/93, para 98; Velásquez Rodríguez, above n. 23, para 166; Amnesty International and Others v. Sudan, above n. 26, para 56.
322.
CAT Committee, Parot v. Spain, Merits, 2 May 1995, Comm. 6/1990, UN Doc A/50/44 at 62 (1995), para 10.4.
323.
Opuz, above n. 45, paras 168, 171 and 195: In this domestic violence case, the ECtHR declares that Turkey should have undertaken action to investigate and protect without requiring a complaint by the victim. The necessity of this is made especially clear in this case, because complaints that were made were likely retracted under pressure of the abuser.
324.
CAT, above n. 8, Article 12; IACPPT, above n. 8, Article 8; Blanco Abad, above n. 314, paras 8.2 and 8.6; Mohammed Alzery, above n. 175, para 11.7.
325.
Blanco Abad, above n. 314, paras 8.2 and 8.8: Promptness is considered important to ensure that the act stops and because the traces of torture might fade. Effectiveness is taken to mean that the investigation must be serious, capable of finding the perpetrators, impartial and carried out by competent officials; Al-Adsani, above n. 289, para 38: “Article 13 in conjunction with Article 3 impose an obligation on States to carry out a thorough and effective investigation of incidents of torture”; Velásquez Rodríguez, above n. 23, para 177: The duty to investigate “must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.”
326.
ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, 20 July 2012, ICJ Rep 422, para 94.
327.
Committee Against Torture 2008, para 10.
328.
Ibid., para 5 last sentence.
329.
IACtHR, Gutiérrez-Soler v. Colombia, Merits, Reparations and Costs, 12 September 2005, Series C No. 132, paras 107–11.
330.
CAT, above n. 8, Article 14; IACPPT, above n. 8, Article 9.
331.
ICCPR, above n. 9, Articles 2 jo 6; ECHR, above n. 9, Articles 1 jo 2; ACHR, above n. 9, Articles 1 jo 4; ACHPR, above n. 9, Articles 1 jo 4 and 26; HRCee, Pestano v. Philippines, Merits, 23 March 2010, Comm. 1619/2007, No. CCPR/C/98/D/1619/2007, A/65/40, Vol. II (2010), Annex V at 309, para 7.6; ECtHR, Yaşa v. Turkey, Merits, 2 September 1998, no. 22495/93, paras 100 and 104; Velásquez Rodríguez, above n. 23, paras 176–7; Zimbabwe Human Rights NGO Forum 2006, above n. 46, para 74.
332.
Yaşa, above n. 331, para 104.
333.
Pestano, above n. 331, paras 7.4–5: In this case, there was “a strong presumption of direct participation of the State party in the violation of [the] right to life”, which is why the HRCee uses the term violation instead of the more general term offence; Yaşa, above n. 331, para 100.
334.
Velásquez Rodríguez, above n. 23, para 177: The duty to investigate “must be undertaken in a serious manner and not as a mere formality preordained to be ineffective”; AComHPR, Amnesty International and Others v. Sudan, Merits, 15 November 1999, No. 48/90, 50/91, 52/91, 89/93, para 51: Stating that the officials investigating the case must be completely independent and that the findings must be made public.
335.
Human Rights Committee 2015: The new General Comment 36 on the right to life will address the obligation to investigate and prosecute.
336.
Öneryıldız, above n. 113, para 96.
337.
Ibid., paras 116–7: The ECtHR found a violation of the procedural aspect of the right to life because “the sole purpose of the criminal proceedings in issue was to establish whether the authorities could be held liable for “negligence in the performance of their duties” under Article 230 of the Criminal Code, which provision does not in any way relate to life-endangering acts or to the protection of the right to life within the meaning of Article 2.”
338.
HRCee, Zhumbaeva v. Kyrgyzstan, Merits, 19 July 2011, Comm. 1756/2008, No. CCPR/C/102/D/1756/2008, A/66/40, Vol. II, Part 1 (2011), Annex VI at 418, para 10.
339.
IACtHR, Moiwana Community v. Suriname, Preliminary Objections, Merits, Reparations and Costs, 15 June 2005, Series C No. 124, paras 212–8.
340.
Osiel 1995, pp. 475–6: Discusses how major legal events can turn into collective memories that can be either “divisive or solidifying.”
341.
Genocide Convention, above n. 56, Articles 1 jo 6.
342.
Ibid., Article 6.
343.
Office on Genocide Prevention and the Responsibility to Protect 2014, p. 3.
344.
Tams et al. 2013, p. 240, paras 14–5.
345.
Sala Tercera de la Corte de Apelaciones del Ramo Penal, Narcoactividad y Delitos contra el Ambiente, Judgment against Rios Montt, 10 May 2013.
346.
Menchu S (2016) Genocide Trial for Guatemala Ex-dictator Rios Montt Suspended. http://www.reuters.com/article/us-guatemala-trial-idUSKCN0UP21F20160111. Accessed 2 August 2017.
347.
Rome Statute, above n. 307, Articles 13–15: Apart from state parties, the Security Council can also refer a situation to the ICC or the ICC Prosecutor can start an investigation propriu motu; Tams et al. 2013, p. 240, paras 14–5.
348.
Rome Statute, above n. 307, Article 12(2)b: The ICC may also have jurisdiction if the state of nationality of the suspect is a party to the ICC, Article 17(1)a: The case will not be admissible if it “is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”
349.
International Law Commission 2001, Article 30.
350.
Human Rights Committee 2004, para 8: The HRC interprets Article 2 as encompassing a general legal obligation to prevent the recurrence of violations; Broniowski, above n. 318: Example of judicial practice instructing a state to address a structural problem to prevent future violations; Gutiérrez-Soler, above n. 329, paras 107–11; IACtHR, Carpio-Nicolle et al. v. Guatemala, Merits, Reparations and Costs, 22 November 2004, Series C No. 117, para 135.
351.
Rimé et al. 2011: This psychological study finds that participation in truth and reconciliation processes can decrease shame among victims and increase homogeneity.
352.
See among others: Williams 2004; King 2010; Hennebel and Hockmann 2011: There is no international obligation that prescribes states to criminalize genocide denial. Nevertheless, there are states that have criminalized holocaust denial. Denial of genocide could also constitute hate-speech or incitement .
353.
Obligations related to the prohibition of refoulement (see 2.2 2.1 Torture and 2.2.2.2 Arbitrary Death) and taking measures to prevent similar violations in the future (see 2.2.4.1 Torture and 2.2.4.2 Arbitrary Death). Similar obligations may exist in the context of genocide, but they have so far not been expressly formulated. In any case, the prohibition of refoulement also implies that people cannot be sent to a state where there is a (serious risk of) genocide.
354.
Human Rights Committee 1982, para 3; Makaratzis, above n. 114, para 31; Nachova, above n. 117, paras 99–102; Juan Humberto Sánchez, above n. 44, para 112; UN General Assembly 1979; UN Congress on the Prevention of Crime and the Treatment of Offenders 1990; Öneryıldız, above n. 113, paras 89–90.
355.
CAT, above n. 8, Articles 10–13 and 15; IACPPT, above n. 8, Article 7; Human Rights Committee 1992, para 8; Ali Bashasha, above n. 90, para 7.4; Juan Humberto Sánchez, above n. 44, paras 83–4; Economic and Social Council 1957, amended in 1977; Office of the High Commissioner for Human Rights 1999.
356.
See 2.2.2.2 Arbitrary Death.
357.
See 2.2.2.3 Genocide.
358.
See 1.2 The Problem: The Content and Scope of Obligations to Prevent and 1.4 Structure.
359.
See 2.2.1 Long-Term Prevention.
360.
See 2.2.2 Short-Term Prevention.
361.
See 2.2.2.2 Arbitrary Death.
362.
See 2.2.3 Preventing Recurrence.
363.
See 2.2.2.1 Torture, 2.2.2.2 Arbitrary Death, 2.2.3.1 Torture and 2.2.3.2 Arbitrary Death.
364.
See 2.2.4 Preventing Recurrence.
365.
Ilaşcu, above n. 168, para 339.
366.
See 2.2.2 Short-Term Prevention and 2.2.3 Preventing Continuation.
367.
See 2.2.2.2 Arbitrary Death; Osman, above n. 228, para 116.
368.
Prompt judicial intervention, see: ICCPR, above n. 9, Article 9(3); ECHR, above n. 9, Article 5(3); ACHR, above n. 9, Article 7(5); CAT, above n. 8, Article 13; Effective investigation, see: Al-Adsani, above n. 289, para 38: “Article 13 in conjunction with Article 3 impose an obligation on States to carry out a thorough and effective investigation of incidents of torture”; Velásquez Rodríguez, above n. 23, para 177: The duty to investigate “must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.”
369.
See 1.2: The Problem: The Content of Obligations to Prevent.

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Nienke Van der Have

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Van der Have, N. (2018). Obligations to Prevent Within State Territory. In: The Prevention of Gross Human Rights Violations Under International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-231-6_2

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DOI: https://doi.org/10.1007/978-94-6265-231-6_2
Published: 31 December 2017
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