National Surveys:
Category I: Crimes Against Humanity
Category II: Forced Labor/Enslavement
Category III: War Crimes Part I
Category III: War Crimes Part II
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intended for research purposes and do not constitute legal advice. Fafo
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Business and International Crimes
Category IV: Torture
Considered both a war crime and a crime against humanity, the prohibition of torture is a jus cogens norm, firmly rooted as a fundamental human right in the Universal Declaration of Human Rights, the International Covenant on Political and Civil Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples' Rights, and the American Convention on Human Rights. Furthermore, torture is prohibited in any armed conflict-international or internal-on any individual, combatant or civilian, under customary law and treaties such as the Geneva Conventions.
The most widely-accepted definition of torture is the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Taken from the 1975 U.N. General Assembly's Declaration on Protection
from Torture, torture is defined as:
Any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence
or a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from, inherent in or incidental
to lawful sanctions.
Torture, as a customary international norm, is universally prohibited
and, as is stated in the 1984 Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment, "no exceptional
circumstances whatsoever, whether a state of war or a threat of war, internal
political stability or any other public emergency, may be invoked as a
justification of torture."
The statutes of the ICTY, the ICTR and the ICC do not hold torture to
be an independent crime, yet both Tribunals follow the definition provided
by the Convention in prosecutions of torture as war crimes or crimes against
humanity.
A necessary distinction to be made is that the prohibition of torture
as codified in the Convention is merely illustrative, and the use of the
phrase "for any reason based on discrimination of any kind"
opens up the possibility for future application for a wide range of acts
committed. While the prohibition against torture therefore is widely encompassing,
two limiting elements exist: the act must create severe mental or physical
pain or suffering, and it must be "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." The ICTY further expanded its limiting
elements to include:
(i) There must be an act or omission that causes severe pain or suffering,
whether mental or physical,
(ii) Which is inflicted intentionally,
(iii) And for such purposes as obtaining information or a confession from
the victim, or a third person, punishing the victim for an act he or she
or a third person has committed or is suspected of having committed, intimidating
or coercing the victim or a third person, for any reason based on discrimination
of any kind,
(iv) And such act or omission being committed by, or at the instigation
of, or with the consent or acquiescence of, an official or other person
acting in an official capacity.
The reference to "public official" or "persona acting in
an official capacity" refers to the requirement that torture, in
order to be considered an offense under international law, must be committed
by a state actor. This is often referred to as the "state action"
requirement.
TCA, invigorated by the passage of the U.S. Torture Victim Protection
Act (TVPA), a number of cases have been filed that allege that economic
actors aided and abetted
A number of cases have been filed under the A violent acts that amount
to torture. Such cases, which are dicussed in the torture section of the
Commentary, include Unocal, Wiwa, Talisman, Bowoto, ExxonMobil, and Rio
Tinto. In each of these cases, plaintiffs allege that the corporations
engaged in a working relationship with members of the host state military
or government that amounted to state action.
A. Cases Involving Economic Actors and Torture
Some case information and summaries from the International Labor Rights Fund's project on Corporate Labor Rights Abuses. See: http://www.laborrights.org/projects/corporate/ATCA%20summaries.htm
1. Doe, et al. v. Unocal Corporation,
et al. 395 F.3d 932 (9th Cir. 2002)
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2. Wiwa v. Royal Dutch Petroleum
Co., et. al.,
Case No.96 CIV 8386 (KMW), 2002 WL 319887 (S.D.N.Y., Feb. 28, 2002)
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3. The Presbyterian Church of
Sudan, v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003)
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4. Bowoto v. Chevron, Texaco
Corp., 312 F. Supp. 2d 1229 (N.D. Cal. 2004)
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5. Estate of Rodriguez,
et al. v. Drummond Company, Inc., 256 F. Supp. 2d 1250 (N.D. Ala. 2003)
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7.
Arias v. DynCorp Int'l, No. 01-01908 (D.D.C. filed Sept. 11, 2001)
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to jump]
CASES THAT ARE PENDING ON APPEAL
9.
Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345 (S.D. Fla. 2003)
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10.
In Re South African Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y.
2004)
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CASES THAT HAVE BEEN DISMISSED--APPEAL DENIED
11.
Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002)
Basis of Dismissal: Forum Non Conveniens and Political Question
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to jump]
12. Carmichael v. United Technologies Corp., 835 F.2d 109 (5th Cir. 1988)
Summary: Plaintiff, a British national, sued United Technologies Corp. due to his two-year imprisonment and torture in Saudi Arabia. Plaintiff was the chairman and general manager of a Netherlands corporation operating in Saudi Arabia and had been imprisoned following an attempt to flee Saudi Arabia and leave behind several unpaid claims against his company. Plaintiff was imprisoned for a two-year period until his employer satisfied or obtained releases regarding those claims, including claims by United Technologies and other business named as defendants. In 1986, plaintiff sued the defendant corporations in a federal district court in Texas for common law torts and violations of the law of nations under the ATCA.
Summary of Court Decision: In reviewing the decision of the lower court to dismiss plaintiff's claims, the 5th Circuit found that service of process had been improper on most defendants and that plaintiff failed to plead a violation of the law of nations.
Plaintiff Claims: The plaintiff alleged that his imprisonment resulted in the following violations:
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Torture
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False Imprisonment
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Assault and Battery
Case History: The 5th Circuit decision was the result of plaintiff's appeal of the dismissal of his claims by federal district court.
13. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999)
Basis of Dismissal: Failure to plead a violation of the law of
nations.
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PENDING - REVIEW OF MOTION TO DISMISS
7. Arias, et. al. v. DynCorp,
et. al.,
Case No. 01-01908 (D.D.C. 2001)
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8. John Doe I, et. al. v. Exxon
Mobil Corp., et. al.
Case No.: 01CV01357 (D.D.C. 2001)
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9. Sinaltrainal, et. al. v.
Coca-Cola Co., et. al.,
Case No: 01-03208 (S.D. Fla. 2001)
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10. Ntzebesa, et. al. v. Citigroup,
Inc., et. al.,
02 Civ 4712 (S.D.N.Y. 2002)
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11. Khulumani, et. al. v.
Barclays National Bank, et. al.
Case No. 02-CV5952 (S.D.N.Y. 2002)
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DISMISSED—APPEAL PENDING
12. Sarei et. al. v. Rio Tinto,
et. al.
Case No.: CV 00-11695 MMM
221 F. Supp.2d 1116 (C.D. Cal. 2002)
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Basis of Dismissal: Forum Non Conveniens and Political Question
ACTIVE AND RECENLY SETTLED LITIGATION
17. Makhetha, et al v. Credit
Commercial De France, et al.
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DISMISSED CASES -APPEAL DENIED
18. Carmichael, et. al. v. United Technologies Corp., et. al.,
835 F.2d 109 (5th Cir. 1988)
Basis of Dismissal: Improper service of process and failure to
plead a violation of the law of nations.
Summary: Plaintiff sued United Technologies Corp. based on his two-year
imprisonment and torture in Saudi Arabia. Plaintiff, the chairman and
general manager of a Netherlands corporation operating in Saudi Arabia,
had been imprisoned following an attempt to flee Saudi Arabia and leave
behind several unpaid claims against his company. Defendant was thereafter
imprisoned for a two-year period until his employer satisfied or obtained
releases regarding those claims. In 1986, plaintiff sued the defendant
corporations in the Southern District Court of Texas.
Crimes Alleged: The plaintiff alleged that his imprisonment resulted
in the following violations:
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Torture
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False Imprisonment
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Assault and Battery
Status: The District Court dismissed the case and the plaintiff appealed.
In 1988, the Fifth Circuit affirmed the lower court's decision, holding
that service of process had been insufficient with respect to all but
one of the corporate defendants and that the plaintiff had failed to demonstrate
that the remaining defendant had committed a violation of the law of nations,
since there was no evidence that the American corporation was responsible,
directly or indirectly, for the plaintiff's incarceration in Saudi Arabia.
19. Beanal, et. al. v. Freeport-McMoran,
Inc., et. al.,
197 F.3d 161 (5th Cir. 1999)
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Basis of Dismissal: Failure to plead a violation of the law of
nations.
B. Primary Sources of Law
The prohibition against torture is generally regarded as a jus cogens norm. Torture is considered both a war crime and a crime against humanity, but the prohibition also applies more generally. The most authoritative and commonly accepted definition of torture is that found in the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. GA/RES/39/46 (1984), available at: http://www.unhchr.ch/html/menu3/b/h_cat39.htm. The Convention defines torture as:
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Article 1, GA/RES/39/46 (1984).
This Convention's definition is based on the U.N. General Assembly's Declaration on Protection from Torture of 1975, which was the most significant advance towards individual criminal responsibility.
The prohibition against torture is a fundamental human right and is found in numerous documents, including:
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Article 5 of the Universal Declaration of Human Rights (GA/RES/217(A)III (1948), available at http://www.un.org/Overview/rights.html)
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Article 7 of the International Covenant on Political and Civil Rights (GA/RES/2200A (XXI) (1966), available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm)
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Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome 4.XI.1950, available at http://www.pfc.org.uk/legal/echrtext.htm)
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Article 5 of the African Charter on Human and Peoples' Rights (OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), available at http://www1.umn.edu/humanrts/instree/z1afchar.htm)
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Article 5 of the American Convention on Human Rights (OASTreaty Series No. 36, 1144 UNTS 123 (1978), available at http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm)
Torture was not included as an independent crime in any of the statutes creating the International Tribunal for the former Yugoslavia (ICTY), the International Tribunal for Rwanda (ICTR), or the International Criminal Court (ICC). However, both the ICTY and ICTR have looked to the Convention's definition in prosecutions of torture as war crime or crime against humanity.
C. The Elements of Torture
The prohibited activities listed within the Convention's definition are
illustrative only. Its use of the phrase "for any reason based on
discrimination of any kind" extends potential application to a broad
range of acts. The two limiting elements to the definition are that the
act: 1) creates severe mental or physical pain or suffering, and 2) is
"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."
1. ICTY (S/RES/827 (1993), available at: http://www.un.org/icty/legaldoc-e/index.htm)
The ICTY, after identifying the Convention's definition of torture as best representing customary international law and examining precedent from the European Court and the European Commission of Human Rights, identified four elements of torture for purpose of applying Articles 2 and 3 of its authorizing statute:
There must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally, (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind, (iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.
Prosecutor v. Mucic, et al., Case No. IT-96-21, Trial Judgment, 494 (Nov. 16, 1998), available at http://www.un.org/icty/celebici/trialc2/judgment/index.htm
2. Secondary Sources
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Matthew Lippman, The Development and Drafting of the United Nations Convention against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment, 17 B.C. INT'L & COMP. L. REV. 275 (1994).
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Winston P. Nagan and Lucie Atkins, The International Law of Torture: From Universal Proscription to Effective Application and Enforcement, 14 HARV. HUM. RTS. J. 87 (2001).
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STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES in INTERNATIONAL LAW: BEYOND THE NuREMBERG LEGACY 117-120 (Oxford 2001).
