The torture and genocide Conventions – challenging state sovereignty

From The Thin Blue Line: How humanitarianism went to war, by Conor Foley (Verso, 2010), pp. 21-22.

Torture and genocide are among the two most serious crimes under international law. Both have universal jurisdiction, that is, states are required to prosecute them irrespective of where they have been committed or the nationality of the perpetrators or victims. Pinochet had awarded himself an amnesty for his crimes in Chile and assumed that, as  a former head of state and senator for life, he would enjoy diplomatic and state immunity when travelling abroad. However, Britain, Chile and Spain were all signatories of the UN Convention against Torture, and the British Law Lords ruled that, since it defined torture as something that could only be carried out by a public official, it would be absurd to provide former public officials with state immunity for the crime. The principle of state immunity is that public officials cannot be held personally responsible for acts carried out in their official capacities, but, as the Law Lords noted, torture can never be regarded as a legitimate official activity.

The Genocide Convention goes one step further in challenging state sovereignty and sovereign immunity, stating, ‘Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate’ to prevent or suppress acts of genocide. This implies that the UN could not only arrest the perpetrators of such acts but could also authorize military intervention in a state’s national territory to prevent their occurrence.

Both Conventions form part of a body of international human rights law that can theoretically be used to trump state sovereignty when, in the words of the Universal Declaration of Human Rights, events occur that ‘outrage the conscience of mankind’. But the circumstances in which the principle of ‘non-interference in another state’s internal affairs’, which is itself enshrined in Article 2 of the UN Charter, can ever be put to one side are hotly disputed. Who should decide when such interference is legitimate, what form it should take and how those who intervene can be held to account themselves?

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