III. Suing Torturers for Compensation: Mission Impossible? |
Can Victims Sue State Officials for Torture?
Reflections on Rasul v. Myers from the Perspective of International Law
* Associate Professor of Law (Privatdozent) at the Humboldt University in Berlin. The author is currently teaching at the Bundeswehr University in Munich. For comments on a draft of this article, he wishes to thank Professor Detlev F. Vagts. [fassbender{at}unibw.de]
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Abstract |
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 Top Abstract 1. Introduction2. The Case Looked...3. The Court's Reasoning4. Problems of International...5. Conclusion: The Difficult...Notes |
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In Rasul v. Myers the US Court of Appeals for the District of Columbia Circuit dismissed on 11 January 2008 appeals against decisions of the US District Court for the District of Columbia of 6 February 2006 and 8 May 2006, respectively. The original lawsuit was brought on behalf of four former Guantánamo detainees, citizens and residents of the United Kingdom, against the then Secretary of Defense, Donald Rumsfeld, the Chairmen of the Joint Chiefs of Staff and other senior military officers. The plaintiffs sought damages for their alleged maltreatment and torture at the US Naval Base at Guantánamo Bay in violation of international law and US constitutional and statutory law. The case raises important questions of international law which are addressed in this article. It puts to the test the assumption that post-World War II international law is characterized by a steady increase in the status and role of the individual. But is today an individual entitled to get his or her international human rights recognized by a foreign domestic court, and to be awarded damages if those rights have been violated? After briefly recalling those facts of the case and the arguments of the Court which are important for its evaluation from the perspective of international law, the article first examines the issue of a civil liability of a state, or state officials individually, for violations of human rights law and humanitarian law. The author then turns to the issue of enforcement of such a liability by a right of a victim to have access to the judicial system of the respective state. Thirdly, the article draws attention to the similarity of criminal punishment and punitive damages, arguing that a general exclusion of individual civil liability for acts of torture runs counter to the obligation of states to prosecute and punish individuals responsible for acts of torture. Subsequently, the issue of a personal immunity of state officials in civil proceedings is discussed. As a last important question of international law raised by the case, the author identifies the debatable compliance of the United States with Article 14(1) of the Convention against Torture, which obliges states parties to ensure in their legal systems that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation. The author concludes that, although the advanced process of a ‘humanization’ of international law suggests civil liability of state officials for violations of international law, so far states have not been ready to agree on it.
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1. Introduction |
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TopAbstract1. Introduction2. The Case Looked...3. The Court's Reasoning4. Problems of International...5. Conclusion: The Difficult...Notes |
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The following comments on Rasul v. Myers, a decision of the United States Court of Appeals for the District of Columbia Circuit (henceforth: the Court) of 11 January 2008,1 focuses on the international legal issues of the case. While the Court's decision is based on an interpretation of US statutory law, and international law is almost absent from the opinion (with the exception of a brief passage about the 1949 Geneva Conventions), the case nevertheless raises important questions of international law — both the law as it stands now and the direction it may, or should, take in the future. At the heart of the matter is the question of the capacity of the individual to get his or her international human rights recognized by a domestic court, and to be awarded appropriate damages if those rights have been violated. This question can manifest itself in different constellations as regards the plaintiff, the defendant, the author of the alleged violation and the forum. In the present case, citizens and residents of the United Kingdom sued certain officials and employees of the United States Government in a US federal court, seeking damages for losses suffered because of, and during their detention at the US Naval Base at Guantánamo. From the perspective of the United States, aliens filed a lawsuit against individual US citizens for alleged violations of US law and international law.
The case puts to the test the assumption, often made in the legal literature, that post-World War II international law is characterized by an empowerment of the individual, a gradual but steady increase in his status and role — the assertion that there has been, to use an even grander term, a true ‘humanization’ of international law.2
The case also is highly relevant for the issue of the effectiveness of international law, and especially human rights law. For it makes a decisive difference whether the enforcement of international law is only put in the hands of less than 200 governments, or whether the myriad individual persons inhabiting this planet may act as the agents of the international legal order, at least in so far as their own human rights are concerned. Indeed, governments are still very reluctant to use the legal means at their disposal to put an end to human rights violations in other states which do not directly affect their own nationals.3
Lastly, the case exemplifies the difficult interplay of international and domestic law consequent upon both the growth and specialization of international law in the last decades as well as the increasing complexity of national legal systems. Often that interplay of rules, though they are faithfully applied by the courts, leads to results that frustrate the expectations raised by the lofty words of international human rights instruments.
The case under review illustrates these fundamental problems, making us aware of where we stand in that development towards a greater role of the individual in international law. It goes without saying that within the limits of this article I cannot comprehensively analyse all the issues involved but only set out some thoughts as a possible basis for further research. In Sections 2 and 3 I shall briefly recall those facts of the case and the arguments of the Court which are important for its evaluation from the perspective of international law. Subsequently, in Section 4, I shall try to identify and critically discuss the relevant issues of international law raised by the case. In Section 5, I put forward some concluding observations.
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2. The Case Looked at from the Angle of International Law |
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TopAbstract1. Introduction2. The Case Looked...3. The Court's Reasoning4. Problems of International...5. Conclusion: The Difficult...Notes |
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In Rasul v. Myers the Court dismissed appeals against decisions of the United States District Court for the District of Columbia of 26 February 2006, and 8 May 2006, respectively, in the case then called Rasul v. Rumsfeld.4 The original lawsuit was brought on behalf of four former Guantánamo detainees, who are citizens and residents of the United Kingdom, against the then Secretary of Defense Donald Rumsfeld, the Chairmen of the Joint Chiefs of Staff (including Air Force General Richard Myers) and other senior military officers. According to the plaintiffs all these defendants were responsible for the treatment of Guantánamo detainees: they had violated the US Alien Tort Statute (ATS),5 the Geneva Conventions, the Fifth and Eighth Amendments to the United States Constitution, as well as the Religious Freedom Restoration Act (RFRA).6 The plaintiffs did not assert a violation of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States in 1994, probably because of the non self-executing character of the treaty in US law7 and the problem of its territorial application to the Guantánamo Naval Base.8 For the same reasons, it appears, they did not rely on the International Covenant on Civil and Political Rights, Article 7 of which provides that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. One of the plaintiffs, Mr Shafiq Rasul, was the lead plaintiff in the 2004 US Supreme Court case Rasul v. Bush9 in which the Court held that US courts have jurisdiction under the federal habeas corpus statute to hear lawsuits filed by aliens detained at Guantánamo.
The plaintiffs sought damages for their alleged illegal detention and torture at the United States Naval Base at Guantánamo Bay, Cuba, where they had been imprisoned without charge for more than two years from early 2002 until their repatriation to the UK in March 2004. The suit charged that Secretary Rumsfeld and the military chain of command approved interrogation practices that they knew to be in violation of US and international law, including prolonged arbitrary detention, torture, cruel, inhuman or degrading treatment, cruel and unusual punishment, as well as the denial of plaintiffs’ liberties without due process, and preventing the exercise and expression of their religious beliefs. The plaintiffs alleged that they were systematically and repeatedly tortured throughout their two-year detention at Guantánamo. They claimed that they were subjected to repeated beatings, sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs and religious and racial harassment. The action sought US$ 10 million in compensatory damages for each of the plaintiffs.
The defendants, Secretary Rumsfeld et al., argued before the District Court that the ATS and Geneva Conventions claims were barred by the Federal Employees Liability Reform and Tort Compensation Act of 1988 (commonly referred to as the ‘Westfall Act’),10 and that they were entitled to qualified immunity on the constitutional and RFRA claims.11 In a memorandum opinion of 6 February 2006, the District Court agreed that the Federal Tort Claims Act (FTCA)12 provided the exclusive remedy for the defendants’ allegedly tortious conduct and thus granted the defendants’ motion to dismiss the ATS and Geneva Conventions claims. In another memorandum opinion of 8 May 2006, the District Court also dismissed the constitutional claims, holding that the defendants were entitled to qualified immunity from suit. It denied, however, the defendants’ motion to dismiss the RFRA claim. The plaintiffs appealed the dismissal of the ATS, Geneva Conventions and constitutional claims, and the defendants appealed the denial of their motion to dismiss the RFRA claim.
In Rasul v. Myers, the Court of Appeals for the D.C. Circuit dismissed the case. It affirmed the District Court's dismissal of the ATS, Geneva Conventions and constitutional claims and reversed its denial of the motion to dismiss the RFRA claim, holding that the RFRA does not apply to Guantánamo detainees. The opinion for the Court of Appeals was written by Circuit Judge Karen Lecraft Henderson. A separate concurring opinion was filed by Circuit Judge Janice Rogers Brown. While the Court of Appeals, just as before the District Court, did not pronounce on the truthfulness of the facts asserted by the appellants but based its decision on the jurisdictional issues mentioned before, it nevertheless stated that ‘[o]n December 2, 2002, defendant Rumsfeld approved for use at Guantánamo interrogation techniques such as the use of stress positions, intimidation by the use of dogs, twenty-hour interrogation sessions, shaving of detainees’ facial hair, isolation in darkness and silence and the use of "mild non-injurious physical contact" ’.13
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3. The Court's Reasoning |
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TopAbstract1. Introduction2. The Case Looked...3. The Court's Reasoning4. Problems of International...5. Conclusion: The Difficult...Notes |
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A. Arguments Concerning the ATS and Geneva Conventions Claims
The plaintiffs brought three claims for violations of the law of nations pursuant to the ATS based on the defendants’ alleged infliction of ‘prolonged arbitrary detention’, ‘torture’, and ‘cruel, inhuman or degrading treatment’. In addition, they alleged that they were ‘held arbitrarily, tortured and otherwise mistreated during their detention’ in violation of the Geneva Conventions.14 The District Court's dismissal of the ATS and the Geneva Conventions claims, affirmed by the Court of Appeals, was decisively based on an application of the Westfall Act of 1988.15 In the relevant part, this Act provides:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.16
By this provision, the Westfall Act makes the remedy provided for in the FTCA ‘exclusive of any other civil action or proceeding for money damages’ for any tort committed by a federal official or employee ‘while acting within the scope of his office or employment’.17 In other words, if the latter condition is met, the United States is substituted as defendant in place of the employee. This rule also applies to civil actions brought on the basis of the ATS18 or the Geneva Conventions19 (but not to Bivens claims for violations of constitutional rights20 even if those are tantamount to tortious conduct). If the FTCA applies, plaintiffs are required to file an administrative claim with the respective administrative agency or department before bringing suit.21
In international law literature, the ATS has been viewed as a possible ‘precursor of a development that will mature in the coming decades’, namely a general civil liability of individual perpetrators of human rights violations vis-à-vis the individual victims, based on international law.22 ‘Civil responsibility would seem to be a natural corollary of criminal responsibility’ in the case of serious violations of international human rights law or humanitarian law.23 For the time being, the Westfall Act has interrupted that development as far as US Government officials or employees are concerned.
In the present case, the Court of Appeals confirmed the ruling of the District Court that the defendants, all of them federal officials or employees, were ‘acting within the scope of [their] office or employment at the time of the incident out of which the claim arose’. Also, ‘the underlying conduct — here, the detention and interrogation of suspected enemy combatants — is the type of conduct the defendants were employed to engage in. ... [T]he detention and interrogation of suspected enemy combatants is a central part of the defendants’ duties as military officers charged with winning the war on terror. While the plaintiffs challenge the methods the defendants used to perform their duties, the plaintiffs do not allege that the defendants acted as rogue officials or employees who implemented a policy of torture for reasons unrelated to the gathering of intelligence. Therefore, the alleged tortious conduct was incidental to the defendants’ legitimate employment duties’.24 The Court held that the allegations of serious criminality of the plaintiffs’ conduct did not alter that conclusion.25 ‘While it may generally be unexpected that seriously criminal conduct will arise "in the prosecution of the business", here it was foreseeable that conduct that would ordinarily be indisputably "seriously criminal" would be implemented by military officials responsible for detaining and interrogating suspected enemy combatants. ... [T]he tortious conduct "was triggered ... or motivated or occasioned by ... the conduct then and there of the employer's business" even though it was seriously criminal’.26
Since, in the opinion of the Court, the defendants’ alleged conduct came within the scope of their office or employment, the ATS claims were properly restyled as claims against the United States that are governed by the FTCA.27 Accordingly, the plaintiffs were required to file an administrative claim with either the Department of Defense or the appropriate military department before bringing suit. Since they failed to exhaust these administrative remedies, ‘the district court properly dismissed the three ATS claims [and the Geneva Conventions claim] for lack of subject matter jurisdiction’.28
B. Arguments Concerning the Constitutional Claims and the RFRA Claim
In addition to their ATS and Geneva Convention claims, the plaintiffs put forward two claims for violations of their constitutional Fifth and Eighth Amendment rights.29 They alleged that the defendants’ challenged conduct constituted cruel and unusual punishment in violation of the Eighth Amendment.30 They also claimed that the ‘cruel, inhuman or degrading’ conditions at Guantánamo violated their substantive due process rights and that their ‘arbitrary and baseless detention’ was in breach of their procedural due process rights, both in violation of the Fifth Amendment.31 The claims are referred to as Bivens claims, according to a 1971 Supreme Court decision32 which established that — with certain exceptions — victims of a constitutional violation have a right to recover damages. To such claims, the Westfall Act does not apply.33
The Court affirmed the District Court's dismissal of the constitutional claims, referring to its recent decision in Boumediene v. Bush that ‘the Constitution does not confer rights on aliens without property or presence within the United States’.34 In Boumediene, the Court explained that the controlling case was Johnson v. Eisentrager,35 which involved German nationals convicted of war crimes who were held at a US army base in Germany and who filed habeas corpus petitions to challenge their convictions and imprisonment — unsuccessfully because the Supreme Court held that the German nationals had no constitutional right to petition for habeas corpus relief under the Fifth Amendment.36 In the present case, the Court further decided that Boumediene does not conflict with the recent Rasul v. Bush decision of the Supreme Court.37
But, the Court said, ‘[e]ven assuming arguendo the detainees can assert their Fifth and Eighth Amendment claims, those claims are nonetheless subject to the defendants’ assertion of qualified immunity’.38 Qualified immunity from suit is a doctrine developed by the US Supreme Court according to which the rights the violation of which is claimed must have been ‘clearly established at the time of the alleged violations’.39 Qualified immunity shields government officials from ‘liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known’.40 To determine whether a right was clearly established, it must be assessed whether ‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted’.41 In the present case, the Court accepted the defendants’ argument that the rights pressed by the plaintiffs under the Fifth and Eighth Amendments were not clearly established at the relevant time because ‘even before Boumediene, courts did not bestow constitutional rights on aliens located outside sovereign United States territory’.42
The plaintiffs’ final claim alleged that the defendants ‘inhibited and constrained religiously motivated conduct central to Plaintiffs’ religious beliefs’, ‘imposed a substantial burden on Plaintiffs’ abilities to exercise or express their religious beliefs’ and ‘regularly and systematically aimed at disrupting Plaintiffs’ religious practices in violation of the RFRA’.43 The RFRA provides that the ‘Government shall not substantially burden a person's exercise of religion’ unless it can demonstrate that ‘application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest’.44
The District Court determined that RFRA applied to Government action at Guantánamo, rejecting the defendants’ assertion that the Act does not apply to non-resident aliens.45 It held that ‘[t]he plaintiffs allege that representatives of the United States government perpetrated blatant and shocking acts against them on account of their religion. Such activities, if true, constitute a direct affront to one of this nation's most cherished constitutional traditions’. On that ground, the District Court denied the defendants’ claim to qualified immunity.
The Court of Appeals, however, reversed the District Court's decision, holding that ‘[b]ecause RFRA's purpose was ... to restore what, in the Congress's view, is the free exercise of religion guaranteed by the Constitution, "person" as used in RFRA should be interpreted as it is in constitutional provisions’,46 i.e. the First Amendment to the US Constitution.47 The Court concluded: ‘We believe that RFRA's use of "person" should be interpreted consistently with the Supreme Court's interpretation of "person" in the Fifth Amendment and "people" in the Fourth Amendment to exclude non-resident aliens. Because the plaintiffs are aliens and were located outside sovereign United States territory at the time their alleged RFRA claim arose, they do not fall within the definition of "person" .’48
In her separate concurring opinion, Judge Brown contradicted the majority, saying that ‘[t]here is little mystery that a "person" is "an individual human being ... as distinguished from an animal or a thing" ’, and that she believed Congress did not intend to vest the term ‘persons’ with a definition at odds with its plain meaning.49 ‘Persons’, she explained, ‘are individual human beings, of whom the American people are just one class’.50 But still she concurred in the majority's conclusion because in her view a literal application of the Statute would produce a result demonstrably at odds with the intentions of its drafters: ‘Accepting plaintiffs’ argument that RFRA imports the entire Free Exercise Clause edifice into the military detention context would revolutionize the treatment of captured combatants in a way Congress did not contemplate.’51
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4. Problems of International Law Raised by the Case |
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TopAbstract1. Introduction2. The Case Looked...3. The Court's Reasoning4. Problems of International...5. Conclusion: The Difficult...Notes |
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A. Civil Liability of a State or State Officials and Employees Individually
The first international legal problem this case raises can be phrased as follows: Does a state (and/or its officials or employees individually) under international law incur a ‘civil law’ liability towards a victim of violations of human rights law and/or humanitarian law? If such a liability (i.e. an obligation to repair a wrong done, especially by compensation in money) is provided for, the question ensues whether the victim has a procedural right to enforce the liability.
An answer to the first question (state or individual liability) can be sought by looking at the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ adopted on 19 April 2005,52 after nearly 16 years of drafting efforts, by the Commission on Human Rights and subsequently by the UN General Assembly on 16 December 2005.53 According to its preamble (paragraph 7), the Basic Principles ‘do not entail new international or domestic legal obligations’ but reflect ‘existing legal obligations under international human rights law and international humanitarian law’ of states.54 Although in Principle 15 the third sentence speaks of a duty of states to provide reparation (‘a State shall provide reparation to victims’), this proposition is decisively weakened by the introductory phrase ‘in accordance with its domestic laws and international legal obligations’. As Tomuschat has rightly pointed out, this phrase ‘clearly indicates that no general obligation is deemed to enjoin States to make reparation, but that such commitment can only be derived from additional sources, either from national law or from principles and rules of international law which need to be identified specifically in any case at hand’.55 Principle 11 of the Basic Principles likewise qualifies the language that a victim has a ‘right to ... (b) Adequate, effective and prompt reparation for harm suffered’ by the words ‘as provided for under international law’. In an even weaker form, and different from an earlier draft of the Principles submitted in 2000 by the Special Rapporteur M. Cherif Bassiouni,56 Principle 18 uses the word ‘should’ instead of ‘shall’.57 If, accordingly, under international law no general obligation exists making it incumbent upon states to make reparation, a fortiori such an obligation cannot be said to exist for individual state officials or employees.
It is therefore necessary to search for specific rules of international law applicable to the present case.58 Article 2, paragraph 3(a) of the ICCPR obliges each state party to the Covenant ‘to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy’. However, the Human Rights Committee has not interpreted ‘effective remedy’ as generally including compensation: ‘[T]he Human Rights Committee does not recognize any firm rule on reparation ... In particular, compensation is not seen as an integral element of reparation.’59
The 1949 Geneva Conventions, on their part, do not include any specific provision about individual rights to reparation in case of a violation of Convention rights.60 They limit themselves to obliging states parties ‘to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed’, grave breaches of the Conventions.61 To be sure, the Conventions also provide that ‘[n]o High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of [grave breaches of the Conventions]’.62 But that ‘liability’ (or ‘responsibility’) is owed to the other state party or states parties, given the classic inter-state character of the Geneva Conventions.63 As the commentary published by the International Committee of the Red Cross explains, the provision was intended to make it clear that ‘the State remains responsible for breaches of the Convention and may not absolve itself from responsibility on the grounds that those who committed the breaches have been punished’.64 The Commentary adds: ‘As regards material compensation for breaches of the Convention, it is inconceivable, at least as the law stands today, that claimants should be able to bring a direct action for damages against the State in whose service the person committing the breaches was working. Only a State can make such claims on another State.’65 Article 3 of the 1907 Hague Convention Concerning the Laws and Customs of War on Land,66 which is also a rule of customary law, likewise provides for inter-state liability;67 and even if its drafters intended to move beyond that paradigm, Article 3 has never been relied on by private individuals seeking reparation for injuries suffered.68 One could only argue that the Conventions prohibit a state party ‘to absolve itself’ from a direct liability towards individual victims if such a liability has been established in the domestic law of the respective party.
In comparison, Article 14(1) of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which the United States signed in 1988 and ratified in 1994) provides that ‘[e]ach State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible’.69 But even that rule does not stipulate a right to compensation under international law as such; it only commits states parties to ensure that a victim enjoys such a right in domestic law.70 As Tomuschat remarked, ‘[Article 14(1)] does not bring into being an individual entitlement under international law, but, just as Articles 9(5) and 14(6) ICCPR, enjoins states to enact legislation which on its part provides for individual rights which then can be enforced before domestic courts.’71 Accordingly, it would not even have been necessary for the United States to declare that Article 14(1) is not self-executing.72 It is a different question, to be dealt with subsequently,73 whether the United States has honoured the commitment undertaken in the provision.
From the foregoing it follows that at present neither a rule of customary international law nor a treaty rule directly obliges a US court to financially compensate victims of violations of human rights law or international humanitarian law, even if those violations are grave or serious.74 Likewise, there is no rule of international law that would establish an individual civil liability of state officials or employees vis-à-vis victims of human rights or humanitarian law violations.
B. Enforcement of Liability by Access to Justice
Above, I pointed at an ensuing question: whether international law obliges a state to give persons (its own nationals and/or citizens of foreign states) claiming to be victims of violations of human rights law and/or humanitarian law committed by officials or employees of that state access to its courts, allowing them to sue the state (government) and/or the responsible state officials or employees individually for damages.
As a consequence of the conclusion, reached above, that a state is not directly obliged by international law to compensate victims of violations of international human rights or humanitarian law for their losses, a state also is under no international obligation to give victims (be they its own nationals or foreign citizens) access to its courts in order to seek damages. There may be ‘an increasing trend of enabling victims ... to seek reparation directly from the responsible State’, as the International Committee of the Red Cross observed with regard to violations of humanitarian law.75 However, this trend has not yet ripened into a state obligation on the matter. This conclusion is in accordance with the Restatement (Third) of the Foreign Relations Law of the United States, which provides that:
[a] private person, whether natural or juridical, injured by a violation of an international obligation by a state, may bring a claim against that state [...]and thus makes the possibility of bringing a claim against the alleged injurious state dependent on that state's domestic law.77(b) in a court or other tribunal of that state pursuant to its law;76
However, Article 2(3)(a) and (b) of the ICCPR — which is applicable in the present case because the plaintiffs were subject to the jurisdiction of the United States in the meaning of Article 2(1) ICCPR78 — provides that each state party to the Covenant undertakes
(a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;(b) to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.
Accordingly, a person who regards himself or herself as a victim of a violation of rights enshrined in the Covenant shall have a right to have his or her claim determined by a competent authority of the respective state, i.e. a right to a decision by a competent authority as to whether indeed a right guaranteed in the Covenant was violated.79
In the present case it is doubtful whether the United States fully complied with that obligation, because the Court of Appeals, as before the District Court, evaded such a determination by referring the plaintiffs to the administrative remedies procedure under the FTCA.80 Nor did these courts make use of the possibility of rendering a declaratory judgment according to the Declaratory Judgment Act.81
It is true that the US Department of Defense ‘or one of the military departments’ can constitute a ‘competent authority provided for by the legal system’ of the United States in the meaning of Article 2(3)(b) of the ICCPR. But such a competence of an authority other than the ordinary courts (the competence of which can be presumed in a state committed to the rule of law and the principle of separation of powers) must be clearly established, and information about that procedure sufficiently disseminated in order to make it an effective remedy as intended by Article 2(3) of the Covenant. The fact that in the present case not even the Center for Constitutional Rights (an NGO specializing in US constitutional law which filed the lawsuit) was aware of the competence of the Department of Defense or one of the military departments, raises doubts about whether these requirements were met, and whether accordingly the dismissal of the claim for failure to exhaust administrative remedies was in accordance with the obligations of the United States under the ICCPR.82
The Court of Appeals also failed to discuss the problem whether, given the well-known official position of the US Government as to the status and rights of Guantánamo detainees, in any event it would have been a futile effort to present an administrative claim to the Department of Defense, and hence in the circumstances the administrative procedure was dispensable.
C. The Duty to Prosecute and the Issue of (Punitive) Damages
‘The Convention imposes obligations on States Parties and not on individuals.’83 This statement of the Committee against Torture in its recent General Comment on Article 2 of the Convention against Torture also applies, mutatis mutandis, to the ‘fair and adequate compensation’ provided for in Article 14(1) — it is a compensation to be paid by a state to the victim of an act of torture for which that state is responsible because of the involvement of ‘a public official or other person acting in an official capacity’ [Article 1(1) of the Convention]. As the Committee explained, states bear responsibility ‘for the acts and omissions of their officials and others, including agents, private contractors, and others acting in official capacity or acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under color of law’.84
Accordingly, from the perspective of international law, one cannot find fault with the Westfall Act85 substituting the United States as defendant for the federal official or employee if an act of torture was committed by that official or employee ‘while acting within the scope of his office or employment’. It is, in fact, not unusual in domestic legal systems that there is a primary liability of the state for damages caused by the fault or negligence of a public official. In Germany, for instance, Article 34 of the Basic Law (Constitution) provides that ‘[i]f any person, in the exercise of a public office entrusted to him, violates his official duty to a third party, liability shall rest principally with the state or public body that employs him’. In the event of intentional wrongdoing or gross negligence, the right of recourse of the state against the individual officer is preserved.86 A major argument for such a system is the solvency of the state, guaranteeing a victim that he or she will actually receive the compensation.
However, in US law individual liability of state agents has been the primary means of redress. US courts traditionally have presumed that damage actions against the federal government must be authorized by Congress through explicit waiver of sovereign immunity.87 Further, and more importantly, in the United States, as in most common law countries, punitive damages (i.e. damages by way of punishment or deterrence) play an important role in the system of redressing wrongs and injuries. Punitive damage awards generally are based on the punishment rationale. Conduct that warrants punitive damages is described as wilful, wanton or malicious, or demonstrating either a reckless indifference to the rights of others or an evil motive.88 The US Supreme Court has stated that punitive damages are available against individual officials for civil rights violations based on the FTCA.89 Many, if not all of the ATS decisions against individuals have awarded punitive damages.90 In comparison, no punitive damages can be awarded against a public entity.91
It follows that in US law there is no unequivocal dichotomy whereby punishment only pertains to crime and compensation only pertains to tort (or obligation).92 Instead, punitive damages are regularly awarded in civil actions with the purpose to punish and deter.93 If, therefore, in a given legal system, damages also serve purposes of criminal justice in that they shall punish and deter — if, in other words, civil liability complements the criminal justice system, it may be argued that a general exclusion of individual civil liability for acts of torture runs counter to the obligation of states party to the Convention against Torture (Articles 4, 6, 7 and 9) to prosecute and punish individuals who committed, or attempted to commit, or participated in, acts of torture.94
D. Personal Immunity in Civil Proceedings
As explained before, the Court dismissed the constitutional claims, holding that the plaintiffs enjoy qualified immunity.95 The doctrine of qualified immunity must be distinguished from the issue whether in a civil case a defendant can refer to immunity according to the rules of international law or, if the defendant is an agent of a foreign state, foreign sovereign immunity as acknowledged in US law, respectively. The Court did not address this question because of its application of the Westfall Act to the ATS and Geneva Conventions claims. Under international law, agents of a foreign state, with the exception of the holders of the highest offices (like the Head of State or Foreign Minister), do not enjoy personal immunity.96 The immunity which they may invoke derives from the nature of the activity which they are carrying out (immunity ratione materiae or ratione functionis). This immunity has a limited scope. ‘It covers’, in the words of Tomuschat,
of course all lawful acts and even acts which may be unlawful under international law. International criminal law, however, does not grant immunity with respect to acts or omissions that are to be classified as crimes under international law. What applies to international criminal law must also apply to civil proceedings. If a person is unable to protect himself or herself against an indictment by invoking immunity, it would be contradictory to grant that defence on the level of civil proceedings ... [I]ndividuals who engage in criminal activities should, as a rule, not be able to benefit from the functional position which they occupy within the structure of governance of the state on whose behalf they are acting. To hold them [civilly] accountable may also operate as a useful general deterrent from abusing posts of responsibility.97
The latter consideration coincides with what we said above about punitive damages.
This conclusion is in accordance with US legislation concerning civil suits against individuals acting under colour of official authority of a foreign state. Such suits are not covered by the Foreign Sovereign Immunities Act (FSIA), and to date no official has been granted immunity under the FSIA for gross violations of human rights.98 The plain language of the statute and its legislative history make clear that sovereign immunity is to be given only to a foreign state, its political subdivisions, agencies or instrumentalities.99 Suits against individuals under the Torture Victim Protection Act (TVPA) of 1992100 should also not trigger FSIA immunity, since only individuals can be sued under the Act.101 Section 2 (‘Establishment of Civil Action’) lit. (a) (‘Liability’) of the TVPA states that
An individual who, under actual or apparent authority, or color of law, of any foreign nation —(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.
It would be inconsistent with that rule allowing civil suits against officials of a foreign state who allegedly committed acts of torture or extrajudicial killing if the United States shielded its own officials against the same suits by conferring immunity upon them.
E. US Compliance with Article 14(1) of the Convention Against Torture
Article 14(1), first sentence, of the Convention against Torture obliges the United States to ‘ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible’. Upon ratification of the Convention, the United States communicated ‘[t]hat it is the understanding of the United States that article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party’.102 In this article I shall limit myself to discussing whether the specific constellation of the present case casts doubt on the full compliance of the United States with that obligation, as modified by the reservation just mentioned.
In principle, the ATS103 does give a foreign citizen an enforceable right to compensation for an act of torture by a US official or agent as ‘a tort ... committed in violation of the law of nations or a treaty of the United States’.104 While in Sosa v. Alvarez-Machain105 the Supreme Court adopted a restrictive interpretation of the range of civil actions that can be brought under this statute consistent with the intent of the legislators who originally enacted it, it did not put in doubt that federal courts may recognize as a matter of federal common law claims for damages based on alleged violations of the law of nations, as clarified in Filártiga v. Peña-Irala.106
Since in the present case the Court of Appeals dismissed the ATS claims for jurisdictional reasons, it did not reach the question whether the ATS applies to an act of torture possibly committed at Guantánamo. The ATS itself does not provide for any territorial limitation — ‘a tort ... in violation of the law of nations’ can be committed anywhere in the world. However, for acts of torture, as one class of such torts, the United States has expressly limited a private right of action for damages to acts committed ‘in territory under the jurisdiction’ of the United States. In the present case, the Court held that ‘Guantánamo is not a United States territory’.107 But the US is still vested with jurisdiction over the Guantánamo base. In Rasul v. Bush, the Supreme Court itself held that ‘[b]y the express terms of its agreements with Cuba, the United States exercises "complete jurisdiction and control" over the Guantánamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses’.108 Indeed, the correct view seems to be that the notion of ‘jurisdiction’ referred to in Article 2(1) of the Convention on Torture (‘in any territory under its [i.e., the contracting state's] jurisdiction’) covers any place over which a contracting state wields effective control and authority. Accordingly, the question of an application of the ATS to claims alleging acts of torture at Guantánamo is to be answered in the affirmative.
A further question is that of the definition of ‘an act of torture’ the victim of which shall obtain redress and have a right to compensation according to Article 14(1) of the Convention. It is not entirely clear which definition a US court would use in an ATS case. There is of course the definition of the term ‘torture’ in Article 1(1) of the Convention. In addition, we have the reservations and understandings communicated by the US Government upon ratification of the Convention,109 which, as the Government of the Netherlands declared, ‘appear to restrict the scope of the definition of torture under article 1 of the Convention’.110 These understandings are reflected in the definition of torture set forth in the TVPA of 1992.111 In 2005 and 2006, the United States declared that ‘[t]he definition of torture accepted by the United States upon ratification of the Convention and reflected in the understanding issued in its instrument of ratification remains unchanged’.112
However, since another reservation of the United States declared Articles 1–16 of the Convention to be not self-executing,113 the definition of Article 1 of the Convention, as modified by the US reservations and understandings, is not directly applicable by a US court when deciding an ATS case. Instead, a court would have to look at legislation implementing the Convention. But with the exception of sections 2340 and 2340A of the United States Criminal Code, which criminalize acts of torture that occur outside the United States,114 there is no such implementing legislation. As the US Government declared, ‘[t]he reason for this is that at the time of ratification existing US law fully met the obligations of the United States under the CAT, as clarified by the Reservations, Understandings, and Declarations of the United States. No further legislative changes were required, nor are they required today’.115 Against this background, it was suggested in the legal literature that, since the ATS incorporates the international law definition of the torts which form the basis for ATS claims, the broader international definition of torture should be used in an ATS case. ‘Such an argument, however, would require showing that the broader standard satisfied the requirements for a law of nations violation cognizable under the ATS.’116 In 2006, the Committee against Torture recommended that the United States ‘should enact a federal crime of torture consistent with Article 1 of the Convention, which should include appropriate penalties, in order to fulfil its obligations under the Convention to prevent and eliminate acts of torture causing severe pain or suffering’.117
A third important concern relates to the applicability of the Convention to situations of armed conflict (given that the United States qualifies its ongoing ‘war on terror’ as such a conflict). On the one hand, the US Government confirmed that, as required by Article 2(2) of the Convention, ‘[n]o circumstance whatsoever, including war, the threat of war, internal political instability [or] public emergency’ may be invoked as a justification for, or defense to, committing torture.118 On the other hand, on 5 May 2006 the Legal Adviser to the Secretary of State, Mr John B. Bellinger III, said before the Committee against Torture that
the countries which had negotiated the Convention against Torture had focused on rights afforded under domestic legislation and not on provisions concerning armed conflict. At the conclusion of the negotiations, the United States had emphasized that if the Convention applied to armed conflicts, it would result in an overlap of the different treaties, which would undermine the objective of eradicating torture.119The Committee against Torture rightly regretted the opinion of the United States that the Convention is not applicable in times and in the context of armed conflict, and recommended that the US ‘should recognize and ensure that the Convention applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction’.120
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5. Conclusion: The Difficult ‘Humanization’ of International Law |
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One of U2's; most popular songs includes the lines ‘Did I disappoint you/Or leave a bad taste in your mouth?’121 The decision I have discussed definitely does both. In spite of many declarations of the United States that ‘it is unequivocally opposed to the use and practice of torture’,122 serious and (in the light of publicly available reports of independent observers)123 also plausible allegations of acts of torture have not been examined in substance by an independent US court in this case, or, for that matter, in any other civil case brought before a US court in connection with the American treatment of detainees in Guantánamo, Afghanistan or Iraq.
So far, jurisdictional issues always stood in the way of such an independent judicial review which Article 13 of the Convention against Torture is aiming at, if not literally (because it does not speak of independent courts but of ‘competent authorities’) than surely according to its object and purpose.124 This writer fully agrees with a statement made by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak:
Victims of torture are not primarily interested in monetary compensation, but in the means of reparation that are best suited to restore their dignity and humanity. A full and impartial investigation of the truth and the recognition of the facts, together with an apology by those individuals and authorities responsible, often provide more satisfaction to the victim than payment of money.125
Also, apparently so far no criminal case regarding the treatment of prisoners at Guantánamo has been entertained by a US court either.126 Against this background, it was appropriate for the Committee against Torture to have recommended in May 2006 to the United States that it ‘should adopt clear legal provisions to implement the principle of absolute prohibition of torture in its domestic law without any possible derogation’, and that it ‘should also ensure that perpetrators of acts of torture are prosecuted and punished appropriately’.127
The United States claims that ‘US law provides various avenues for seeking redress, including financial compensation, in cases of torture and other violations of constitutional and statutory rights relevant to the Convention [Against Torture]’.128 However, in practical terms none of these avenues appears to be available to persons claiming to be victims of acts of torture at Guantánamo. The United States has not recognized the competence of the Committee against Torture to receive and consider individual communications,129 nor has it ratified the Optional Protocol to the Convention, aiming at ‘establish[ing] a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment’.130 The US has not become either a party to the Rome Statute of the International Criminal Court according to which, under certain conditions, torture is a crime against humanity or a war crime.131
In spite of lengthy explanations by the US Government (the written replies to questions raised by the Committee against Torture in 2006 is a document running to 184 pages),132 many questions and doubts remain as to its effective enforcement of anti-torture obligations in the global ‘war against terror’.
In his farsighted book The Changing Structure of International Law, under the heading ‘The Legal Responsibility of Individuals in International Law’, Wolfgang Friedmann wrote the following:
Although the question of possible contractual and, more particularly, tortious liability of an individual to a foreign entity or individual, for violations of international law, has not so far arisen in practice, it has been argued by Lauterpacht that international law might well be so developed as to make a specific organ of a state that has violated international duties, e.g., a corrupt judge or government official or military officer, jointly liable with the state for the consequences of the illegal act or omission, such as a deliberate or negligent miscarriage of justice, an unjust sentence, collusion with the murderer of an alien, or failure to protect him from mob violence. In any case of this kind, the theory of international law would of course attribute the acts of the official organs concerned to the state, either as a matter of direct or of vicarious liability. It is only in very exceptional cases that it would either be proper or practicable to hold an individual civilly liable for the damages thus caused.133
More than 40 years after these lines were written, the state of the law is still pretty much the same. International law is indeed so developed that by a use of its means a direct civil liability of individual state officials or employees could be established for violations of international law. The advanced process of ‘humanization’ of international law would surely suggest such a liability. However, so far states have not been ready to agree on it. Tellingly, in its commentaries on Article 58 of the Articles on State Responsibility (‘Individual responsibility’)134 the International Law Commission did not even mention civil liability but only addressed the issue of criminal responsibility.135 It is suggested that acts of torture, as defined by Article 1 of the Convention against Torture — a treaty Friedmann did not know yet — belong to those exceptional cases in which it would be proper and practicable not only to prosecute and punish the responsible person but also to hold him or her ‘civilly liable for the damages caused’.
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Notes |
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TopAbstract1. Introduction2. The Case Looked...3. The Court's Reasoning4. Problems of International...5. Conclusion: The Difficult...Notes |
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1 Rasul v. Myers, Case No. 06-5209, argued 14 September 2007, decided 11 January 2008. The full text of the decision (slip opinion) is available on the homepage of the Center for Constitutional Rights (CCR) in New York which filed the lawsuit on behalf of the plaintiffs. See http://ccrjustice.org/ourcases/current-cases/rasul-v.-rumsfeld (visited 28 February 2008).
2 I borrow this term from Theodor Meron's classic article ‘The Humanization of Humanitarian Law’, 94 American Journal of International Law (2000) 239–278.
3 For instance, the procedure of interstate complaints established by several universal and regional human rights treaties has led a marginal existence to date. See C. Tomuschat, Human Rights: Between Idealism and Realism (Oxford: Oxford University Press, 2003), 218 et seq.
4 Rasul v. Rumsfeld, 414 F Supp 2d 26 (D.D.C. 2006); Rasul v. Rumsfeld, 433 F Supp 2d 58 (D.D.C. 2006); available on the CCR homepage (supra note 1).
5 The statute was enacted in 1789 and is currently codified in 28 USC 
1350. For an account of the ATS case law, see D. Shelton, Remedies in International Human Rights Law (2nd edn, Oxford: Oxford University Press, 2005), 160–172. For a discussion of recent US Government efforts to limit the scope of the statute, see D. Mundis, ‘The United States of America and International Justice’, 2 Journal of International Criminal Justice (2004) 2–10, at 8 et seq.
7 Upon ratification of the Convention, the US Government declared, inter alia, ‘that the provisions of articles 1 through 16 of the Convention are not self-executing’. See Office of the UN High Commissioner for Human Rights, Convention against Torture, Reservations and Declarations, http://www2.ohchr.org/english/bodies/ratification/9.htm#reservations (visited 27 February 2008).
8 See Committee against Torture, Consideration of the second periodic report submitted by the United States, Conclusions and recommendations, UN Doc. CAT/C/USA/CO/2 of 25 July 2006, 15: ‘The Committee notes that a number of the Convention's provisions are expressed as applying to "territory under [the State party's] jurisdiction" (Arts 2, 5, 13, 16). The Committee reiterates its previously expressed view that this includes all areas under the de facto effective control of the state party, by whichever military or civil authorities such control is exercised. The Committee considers that the State party's view that those provisions are geographically limited to its own de jure territory to be regrettable’ (emphasis added). Available at http://www2.ohchr.org/english/bodies/cat/cats36.htm (visited 27 February 2008), and reprinted in Report of the Committee against Torture (Thirty-fifth and thirty-sixth sessions), UN Doc. A/61/44, at 67 et seq.
10 Pub. L. No. 100–694, 102 Stat. 4563 (1988) (amending 28 USC 2671, 2674, 2679).
11 For this and the following, see Rasul v. Myers, supra note 1, at 2 et seq.
13 See Rasul v. Myers, supra note 1, at 4.
14 Ibid., 11 and 27, respectively.
16 28 USC 2679(d)(1), quoted in Rasul v. Myers, supra note 1, at 12 et seq.
18 The ATS provides that ‘[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’. 28 USC 1350.
19 See Rasul v. Myers, supra note 1, at 27 (‘[T]he Geneva Conventions claim is ... precluded by the Westfall Act’).
20 See infra text accompanying note 29 et seq.
21 The FTCA provides that ‘[a]n action shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing’. 28 USC 2675(a). See Rasul v. Myers, supra note 1, at 23 et seq.
22 See C. Tomuschat, ‘Reparation for Victims of Grave Human Rights Violations’, 10 Tulane Journal of International and Comparative Law (2002) 157–184, at 181 et seq.
24 Rasul v. Myers, supra note 1, at 19 et seq. (references omitted; emphasis added).
25 In an Amicus Curiae brief, a group of international law scholars and human rights organizations in support of plaintiffs-appellants had argued that ‘[b]ecause of its jus cogens status, acts of torture cannot be considered official acts of state that fall within the regular scope of employment’. See Brief of Amici Curiae, 18 January 2007, at 3, available at http://ccrjustice.org/ourcases/current-cases/rasul-v.-rumsfeld (visited 28 February 2008). However, the Court did not discuss the jus cogens argument.
26 Rasul v. Myers, supra note 1, at 22 et seq.
30 Amendment VIII (1791) to the US Constitution reads as follows: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’ (emphasis added).
31 Amendment V (1791) to the US Constitution reads in relevant parts: ‘[N]or [shall any person] be deprived of life, liberty, or property, without due process of law.’
32 See Bivens v. Six Unknown Named Agents, 403 US 388 (1971) (Fourth Amendment violations).
33 See United States v. Smith, 499 US 160, 166–67 (1991); 28 USC 2679(b)(2).
34 See Boumediene v. Bush, 476 F3d 981, 984, 991 (D.C. Cir. 2007). For comment, see A. Kent, ‘D.C. Circuit Upholds Constitutionality of Military Commissions Act Withdrawal of Federal Habeas Jurisdiction for Guantanamo Detainees’, 11 ASIL Insights (Washington, DC: The American Society of International Law, 2007), available at http://asil.org/insights/2007/03/insights070320.html (visited 28 February 2008). The case is currently before the Supreme Court on certiorari review: cert. granted, 127 SCt 3078 (2007).
35 339 US 763 (1950). For a discussion of the present relevance of Eisentrager, see G.P. Fletcher, ‘Black Hole in Guantánamo Bay’, 2 Journal of International Criminal Justice (2004) 121–132, at 125–130.
36 Johnson v. Eisentrager, 339 US 763, 783 (1950).
38 Rasul v. Myers, supra note 1, at 32.
39 Ibid., 28, quoting Harlow v. Fitzgerald, 457 US 800 (1982), and Mitchell v. Forsyth, 472 US 511 (1985).
40 See Harlow v. Fitzgerald, 457 US 800, 818 (1982).
41 See Saucier v. Katz, 533 US 194, 202 (2001).
42 Rasul v. Myers, supra note 1, at 33.
44 42 USC 2000bb-1(a)-(b) (emphasis added).
45 See Rasul v. Rumsfeld, 433 F Supp 2d 58, at 59, 67 (D.D.C. 2006).
46 Rasul v. Myers, supra note 1, at 41.
47 Amendment I (1791) to the US Constitution reads in relevant parts: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’
48 Rasul v. Myers, supra note 1, at 43 (footnote omitted).
49 See Rasul v. Myers, supra note 1, sep. opinion (Brown, J., concurring in the judgment), at 4 [quoting Webster's New International Dictionary and Rasul v. Rumsfeld, 433 F Supp 2d 58, 67 (D.D.C. 2006)].
52 UN Commission on Human Rights Res. 2005/35. UN Doc. E/CN.4/L.48 (vote of 40 to none, with 13 abstentions, among them Australia, Germany and the United States).
53 GA Res. 60/147. Text of the Basic Principles in the Annex to the Resolution. For an account of the drafting history, see Shelton, supra note 5, at 143–152.
54 But see the critical analysis of that assertion by C. Tomuschat, ‘Reparation in Favour of Individual Victims of Gross Violations of Human Rights and International Humanitarian Law’, in M.G. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch (Leiden: Nijhoff, 2007) 569–590, at 571 et seq.
55 Ibid., 579. The same conclusion is reached by W. Kälin and J. Künzli, Universeller Menschenrechtsschutz (Basel: Helbing & Lichtenhahn, 2005), 183.
56 See ‘The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: final report of the Special Rapporteur, Mr M. Cherif Bassiouni, submitted in accordance with Commission resolution 1999/33’, UN Doc. E/CN.4/2000/62 of 18 January 2000, at 9 (Principles 15 and 16).
57 See Tomuschat, supra note 54, at 580. Principle 18 reads in relevant parts: ‘In accordance with domestic law and international law, and taking account of individual circumstances, victims ... should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.’
58 As not applicable to this case, we leave aside provisions of the European Convention on Human Rights (Art. 41), the American Convention on Human Rights (Art. 63(1)) and of the ICC Statute (Art. 75) allowing the respective Courts to afford just satisfaction, compensation or reparations to victims. For a discussion of the rules of the European and American Convention, see Tomuschat, supra note 22, at 161–167.
59 Tomuschat, supra note 54, at 585. See also E. Klein, ‘Individual Reparation Claims under the International Covenant on Civil and Political Rights: The Practice of the Human Rights Committee’, in A. Randelzhofer and C. Tomuschat (eds), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (The Hague: Martin Nijhoff Publishers, 1999), 27–41.
60 For a general discussion of individual rights and duties under the 1949 Geneva Conventions, see Meron, supra note 2, at 251 et seq.
61 See, e.g. Art. 129 of the Third Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949.
62 See, e.g. Art. 131 of the Third Geneva Convention.
63 See Tomuschat, supra note 54, at 577 (‘As far as International Humanitarian Law is concerned, elements susceptible of suggesting the existence of individual rights to compensation are even more difficult to identify since according to the prevailing doctrine the rights provided for by IHL — understood as a set of primary rules of conduct — have remained classic inter-State law, not being accompanied by parallel individual entitlements’).
64 See J.S. Pictet (ed.), Commentary on the III Geneva Convention Relative to the Treatment of Prisoners of War (Geneva: International Committee of the Red Cross, 1960), 630.
66 Art. 3 of the Convention reads: ‘A belligerent party which violates the provisions of the said Regulations [respecting the laws and customs of war on land] shall, if the case demands, be liable to pay compensation.’
67 The rule of Art. 3 of the 1907 Convention was copied into the 1977 Protocol I Additional to the Geneva Conventions, Art. 91, first sentence, which reads: ‘A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation.’ The respective commentary published by the ICRC cautiously mentions that ‘since 1945 a tendency has emerged to recognize the exercise of rights by individuals’. See Y. Sandoz et al.