Other Grave Breaches of Human Rights: Prohibition of Genocide, Prohibition of Torture and Inhuman and Degrading Punishment or Treatment, Prohibition of Slavery and Forced Labour and Prohibition of Racial Discrimination and Apartheid

Pustorino, Pietro

doi:10.1007/978-94-6265-563-8_7

Pietro Pustorino²

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Abstract

The chapter focuses on serious violations of human rights other than the right to life, analysing for example the vast international jurisprudence on the prohibition of genocide and on the prohibition of torture and inhuman and degrading treatment. Some particular aspects of the application of relevant international standards are also examined, including the so-called genocide denial; the conflict between State immunity or State organs immunity and the need to repress grave breaches of human rights; and the formation of new rights arising from the application of international norms on the prohibition of torture—such as the right to hope—or on the prohibition of slavery—as in the case of the prohibition of trafficking in human beings.

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Notes

1.
See Bosnia and Herzegovina v. Serbia and Montenegro, in ICJ 2007, pp. 110–111, para 161.
2.
The text of the provision states that the Contracting Parties “confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish”.
3.
See ICJ 2007, p. 221, para 430, according to which “responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance”.
4.
See the judgment of 15 July 1999 of the Appeals Chamber of the ICTY, Prosecutor v. Duško Tadić, IT-94-1-A, paras 120–122 and 137.
5.
See the judgment in The Netherlands v. Stichting Mothers of Srebrenica et al., in which the Court applied the criterion of effective control over Dutch military personnel employed in the UNPROFOR mission pursuant to Article 8 of the ARSIWA.
6.
See Article II of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 and Article 6 of the ICC Statute.
7.
Cit., pp. 122–123, para 190.
8.
See appl. no 35343/05.
9.
See Chap. 8, Sects. 8.3–8.3.1.
10.
See appl. no. 28859/16.
11.
See para 103 of the Court’s judgment.
12.
See Chap. 9, Sect. 9.3.
13.
See appl. no. 27510/08.
14.
See para 280 of the Court’s judgment.
15.
See appl. no. 25239/13.
16.
The Court found that pursuant to Article 17 ECHR the applicant cannot enjoy the protection of Article 10. According to Article 17 “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention”.
17.
See para 41 of the decision.
18.
See appl. no. 64496/17.
19.
See, for example, the ECtHR (Grand Chamber) judgment of 21 November 2001 in Al-Adsani v. The United Kingdom, appl. no. 35763/97, paras 60–61.
20.
Belgium v. Senegal, in ICJ 2012, p. 457, para 99.
21.
See the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, the Inter-American Convention to Prevent and Punish Torture of 9 December 1985 and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 26 November 1987.
22.
Appl. no. 6884/11.
23.
Appl. nos. 1442/14, 21319/14 and 21911/14.
24.
On this general aspect of treaty-based human rights provisions, see Chap. 3, Sect. 3.7.
25.
Appl. no. 25803/94, para 101 of the judgment. The question is also relevant in the context of “warning” judgments: see Chap. 4, Sect. 4.3.3.
26.
Appl. no. 5310/71, para 162 of the judgment.
27.
Appl. no. 45603/05.
28.
Appl. no. 54810/00, para 68 of the judgment.
29.
ECtHR, Jalloh v. Germany, cit., para 68.
30.
This is the well-known judgment of 25 April 1978 in Tyrer v. United Kingdom, appl. no. 5856/72.
31.
See para 33 of the judgment.
32.
See the considerations of ACommHPR in its decision in Organisation Mondiale Contre la Torture et Ligue de la Zone Afrique pour la Défense des Droits des Enfants et Elèves (pour le compte de Céline) v. Democratic Republic of Congo, no. 325/06, adopted at the 57th ordinary session of the Commission (4–18 November 2015), paras 61 ff.
33.
The case concerned a case of ill-treatment and sexual violence carried out by police officers against an individual because of his sexual orientation: paras 158 ff.
34.
Appl. no. 23178/94, paras 83–87 of the judgment.
35.
On the Committee’s powers, see Chap. 5, Sect. 5.2.5.
36.
See para 7.3 of the non-binding decision on the communication in A. v. Bosnia and Herzegovina, CAT/C/67/D/854/2017.
37.
See the Report of 14 February 2020 submitted to HRCoun by the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/HRC/43/49, para 57.
38.
Appl. nos. 43517/09 and others.
39.
The Court also found that the problem of overcrowding in Italian prisons was generalised and therefore structural, thus indicating to the State general measures to correct the situation: see Chap. 4, Sect. 4.3.1.
40.
Appl. no. 7334/13.
41.
See para 168.
42.
Appl. no. 7509/08.
43.
Appl. no. 55080/13, paras 147 ff. of the judgment.
44.
See the ECtHR judgment of 8 November 2011 in V.C. v. Slovakia, appl. no. 18968/07, paras 106 ff., and the IACtHR judgment of 30 November 2019 in I.V. v. Bolivia, paras 262 ff.
45.
In relation to national policies on the compulsory vaccination of minors, which sometimes provide for sanctions against offenders, both of a financial nature and in the form of a ban as regards access to school services, see recently ECtHR (Grand Chamber) judgment of 8 April 2021, Vavřička and Others v. Czech Republic, appl. no. 47621/13 and five other applications.
46.
See Chap. 6, Sect. 6.4.
47.
See decision on communication no. 319/06 taken at the 57th regular session of the Commission (4–18 November 2015), para 87.
48.
See Chap. 6, Sect. 6.2.5.
49.
See judgment of 24 July 2014 in Al-Nashiri v. Poland, appl. no. 28761/11, para 577.
50.
On this function of human dignity, see Chap. 6, Sect. 6.5.
51.
ECtHR (Grand Chamber), judgment 9 July 2013 in Vinter and Others v. The United Kingdom, appl. nos. 66069/09, 130/10 and 3896/10, paras 113 and 123 ff.
52.
ECtHR, judgment of 12 March 2019 in Petukhov v. Ukraine (No. 2), appl. no. 41216/13, paras 168 ff.
53.
Appl. no. 77633/16.
54.
See paras 141–143 of the judgment.
55.
See Chap. 3, Sect. 3.6.3.
56.
See Chap. 6, Sect. 6.2.2.
57.
See ECtHR, judgment of 17 November 2020 in B and C v. Switzerland, appl. nos. 889/19 and 43987/16, paras 54 ff.
58.
Article 22 concerns individual communications which may be submitted to the Committee. On this question, see Chap. 5, Sect. 5.2.5.
59.
See para 8 of the General Comment.
60.
Id., para 9.
61.
This functional approach between the prohibition of torture and the principle of non-refoulement has been recently applied by the Italian Court of Cassation, in the judgment of 26 April 2022, no. 15869, which, on the basis of a detailed analysis of the principle of non-refoulement, has stated that “given that the prohibition of torture constitutes a principle of jus cogens and that the non-refoulement constitutes a component - a segment - of the prohibition of torture instrumental to its implementation, it follows that non-refoulement also rises to the level of a peremptory rule, to the extent that, in fact, it is functional to protect the person from treatments considered as torture”: para 6.1 of the conclusions on points of law.
62.
See para 10 of the General Comment.
63.
See appl. no. 61498/08.
64.
Id., para 20.
65.
Appl. no. 37201/06.
66.
See supra, Sect. 7.2.
67.
Appl. no. 13113/03.
68.
On the conflict between amnesties and jus cogens, see Chap. 3, Sect. 3.2.
69.
ECtHR (Grand Chamber), judgment of 15 March 2018 in Naït-Liman v. Switzerland, appl. no. 51357/07. For an examination of the right of access to justice, see Chap. 8, Sect. 8.2.1.
70.
Id., paras 183–187.
71.
Id., paras 218–220.
72.
See Jurisdictional Immunities of the State, Germany v. Italy: Greece intervening.
73.
Indeed, it is well known that the recognition of immunity also depends on the nature of the activities carried out by the foreign State.
74.
In this regard, see the judgment of the Grand Chamber of 21 November 2001 in Al-Adsani v. The United Kingdom, appl. no. 35763/97, and the judgment of 14 June 2014 in Jones and Others v. The United Kingdom, appl. nos. 34356/06 and 40528/06.
75.
See the judgment of 10 December 2021, no. 39391.
76.
See paras 1.4–1.5 of the judgment.
77.
Case no. 2016 Ga-Hap 505092.
78.
However, a subsequent decision of 21 April 2021 (case no. 2016 Ga-Hap 58023), issued by the same Central District Court of Seoul in a case similar to the one reported above, granted immunity from civil jurisdiction to Japan, taking into account the “overall” reparations agreed between Japan and South Korea in the 1965 and 2015 agreements for the numerous acts of misconduct committed by the Japanese military in the 1910–1945 period.
79.
Recurso extraordinário com agravo no. 954.858.
80.
See Article 4(II) (“prevalence of human rights”), which is one of the general principles of Brazilian foreign relations.
81.
See Chap. 5, Sect. 5.6.
82.
See the judgments of the Supreme Court of Appeal of South Africa dated 15 March 2016 and the Court of Appeal of Kenya dated 16 February 2018.
83.
See ICJ 2002, p. 24, para 58.
84.
See appl. no. 3, StR 564/19.
85.
A more significant trend excluding functional immunity can be seen in relation to criminal proceedings.
86.
See para 4.43 of the judgment in Ziada v. The State of The Netherlands, case no. C-09-554385. The Hague Court of Appeal, in its judgment of 7 December 2021, upheld the conclusions set out in the first instance decision.
87.
See Article 5(3).
88.
See appl. no. 73316/01, paras 89 and 112 of the judgment.
89.
See cases IT-96-23 and IT-96-23/1-A, paras 116 ff.
90.
Namely, that “slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”.
91.
See para 122 of the judgment.
92.
Id., para 123.
93.
See appl. no. 8919/80, para 34 of the judgment.
94.
Article 4(3)(a): “For the purpose of this article the term ‘forced or compulsory labour’ shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention”.
95.
ECtHR (Grand Chamber), judgment of 7 July 2011 in Stummer v. Austria, appl. no. 37452/02, paras 105 ff., ruling out that domestic legislation which does not include working prisoners within the national social security systems established for other workers is contrary to Article 4 ECHR.
96.
See Article 1(a) of the above-mentioned Supplementary Convention of 1956 and more recently the Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, transmitted to the Human Rights Council during its 39th session (10–28 September 2018), A/HRC/39/52, para 14.
97.
Appl. no. 25965/04.
98.
Id., para 279.
99.
Id., para 281.
100.
Appl. no. 71545/12.
101.
See paras 294–297 of the judgment, appl. no. 60561/14.
102.
Appl. nos. 77587/12 and 74603/12, para 181.
103.
Appl. no. 21884/15.
104.
In this regard, the Court referred to Article 3(a) of the said UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and Article 4(a) of the CoE Convention of 2005.
105.
See Article 1(1) of the 1965 Convention.
106.
Id., Article 2(1).
107.
Id., Article 4.
108.
On these criteria, see CommERD, General Recommendation No. 35 of 26 September 2013 on Combating Racist Hate Speech, CERD/C/GC/35, para 15.
109.
Id., Article 5.
110.
Id., Articles 6–7. As noted before (see Chap. 5, Sect. 5.2.3), the 1965 Convention established a committee to monitor implementation (CommERD), which has no binding powers and is competent to examine both reports by States parties on measures of compliance with the Convention and inter-State and individual communications.
111.
Id., Article 3.
112.
See Article I of the 1973 Convention.
113.
Id., Articles III–IV.
114.
Id., Article V.
115.
Article XI of the Convention specifies that the conduct referred to in Article II “shall not be considered political crimes for the purpose of extradition”.
116.
Id., Article VII.
117.
Id., Articles IX–X.
118.
ECtHR judgment of 20 October 2020 in Napotnik v. Romania, appl. no. 33139/13, para 73.
119.
See Resolution no. 36/55.
120.
See para h of the preamble of 2006 Convention. On the competences of CommEDAW and CED, see Chap. 5, Sects. 5.2.4 and 5.2.6.
121.
Article 3 (The Equality of Rights Between Men and Women), para 3.
122.
See the judgment in Duque v. Colombia, para 92.
123.
See the judgment in Workers of the Fireworks Factory in Santo Antônio de Jesus and their Families v. Brazil, paras 186–199.
124.
Id., para 199.

References

ICJ (2002) Judgment of 14 February 2002 in the Arrest Warrant of 11 April 2000. ICJ Reports
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ICJ (2007) Judgment of 26 February 2007 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. ICJ Reports
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ICJ (2012) Judgment of 20 July 2012 in Questions relating to the Obligation to Prosecute or Extradite. ICJ Reports
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Department of Law, Luiss University, Rome, Italy
Pietro Pustorino

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Pustorino, P. (2023). Other Grave Breaches of Human Rights: Prohibition of Genocide, Prohibition of Torture and Inhuman and Degrading Punishment or Treatment, Prohibition of Slavery and Forced Labour and Prohibition of Racial Discrimination and Apartheid. In: Introduction to International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-563-8_7

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DOI: https://doi.org/10.1007/978-94-6265-563-8_7
Published: 01 January 2023
Publisher Name: T.M.C. Asser Press, The Hague
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