TORTURE VICTIMS AND THE QUESTION OF LEGAL REMEDY

Torture Victims and the Question of Legal Remedy



Abstract

According to the 29th World Medical Association's Declaration of Tokyo Assembly in 1975, torture is defined as the deliberate, systemic or wanton infection of physical or mental suffering by one or more persons acting along or on the order of any authority, to force another person to yield information, to make a confession, or for any other reason” (World Medical Association, 1975).

The event of September 11, 2001 raised the awareness in many western States of the threat of global terrorisms to their own national security. In 9/11, s aftermath, significant numbers of individuals suspected of being terrorists or having links to terrorist organizations were detained. A large percentage of these are foreign nationals, and a number of States determined that the most expeditious way to address this perceived threat was to “ remove” these individuals to their countries of origin through domestic immigration procedures. This practice of removing these individuals has led to state torture in order to make confessions and obtaining information from them. Because these individuals are believed to be high risk for the states, certain legal proceedings are ignored and they are not provided sufficient legal assistance in detention. This dissertation attempts to examine the rights of victims of torture after 09/11 and explore the legal remedy for the victims.

Table of Contents

Chapter 1: Introduction1

Background8

Chapter 2: Literature Review14

International Law and Terrorism14

Conventional vs. Terror Warfare19

The Moral Case Against Terror Warfare22

Legal Responsibility for Acts of Terrorism25

Just War and Lawfighting Doctrine29

Chapter 3: Methodology33

Analysis of data of world terror36

War in Iraq44

Chapter 4: Discussion47

Basic Concepts And Brief Overview Of The Right To An Effective Remedy47

Introduction47

Definition of key concepts47

The concept of victim47

The concept of witness49

Victims' rights and related concepts50

Victims' rights in the domestic system51

Victims' rights in the common law system51

Victims' rights in the civil law system51

The right to an effective remedy in International Law52

The right to an effective remedy in the UDHR and the ICCPR52

UN specialised treaties54

UN reports and studies56

The right to an effective remedy in the African system57

The right to an effective remedy in the American system59

The right to effective remedy in the European system60

An Overview Of Victims' Rights Before The Ad Hoc Criminal Tribunals And Hybrid Courts61

Nuremberg and Tokyo Tribunals and victims' rights61

Victims' rights to redress under the ICTY and the ICTR62

The scheme of reparation62

Restitution of property unlawfully obtained62

Implementation of the redress provisions63

The prosecution and victims' rights64

The tribunals' response to the prosecutor's request64

Criticisms65

Brief overview of redress provisions in hybrid tribunals66

The Extraordinary Chambers in Cambodia67

The Special Court for Sierra Leone68

The Special Panels for Serious Crimes of East Timor (SPSC)69

Chapter 5: Conclusion71

Terrorism and other aspects of international law71

Terrorism and international humanitarian law71

Terrorism and international criminal law72

Terrorism and international refugee law73

Bibliography75

Chapter 1: Introduction

International terrorism has long been recognized as a foreign and domestic security threat. The tragic events of September 11 in New York, the Washington, D.C., area, and Pennsylvania have dramatically re-energized the nation's focus and resolve on terrorism. This issue brief examines international terrorist actions and threats and ...