Jimma university college of law and governance school of law
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Chapter 5 Contract law 2, CHALLENGES OF CASE MANAGEMENT IN SOMALILAND HIGH COURT
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| 13 | P age b CHAPTER TWO INTERNATIONAL, REGIONAL AND NATIONAL LAWS PROHIBITING TORTURE 2.1. Introduction Several international instruments and customary international laws prohibit torture. This chapter briefly outlines those international and regional human rights instruments and international humanitarian laws that ban torture as well as torture as preemptory norm. The chapter also provides obligation of state to criminalize and prosecute torture arising from the international law. The controversy over the obligation to criminalize torture as a separate crime touched briefly and the paper argued for the separate criminalization of torture under domestic legal criminal law. Lastly, it precisely discuses the national legal framework prohibiting torture in Ethiopia. In so doing laws pre and post adoption of UNCAT dealt separately. The chapter also raised scholarly arguments regarding the self executing or non-self executing nature international laws in domestic legal system. The paper argued that such distinction shall be made based on the nature of the international instrument, not whether the domestic law provides such conclusive provision or otherwise. 2.2. International and Regional Legal Framework 2.2.1. Treaties The UN charter was drafted in the aftermath of World War II, the Holocaust, and the murder of millions of innocent human beings. But contrary to what might have been expected given this background, the charter did not impose any concrete human rights obligations on the UN member states. Although a group of smaller countries and nongovernmental organizations (NGOs) attending the San Francisco conference fought for the inclusion of an international bill 14 | P age b of rights in the charter, these efforts failed, principally because they opposed by the major powers. 53 The two major human rights provisions of the Charter are Article 55 and 56. Besides, article 62 of the charter mandated the Economic and Social Council (ECOSOC) that it may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all The council used this power when it recommended the Universal Declaration of Human Rights (UDHR‟). General Assembly of the United Nations (UNGA) adopted and proclaimed UDHR on December 10, Although UDHR was anon- binding UNGA resolution and was intended, as its preamble indicates, to provide a common understanding of the human rights and fundamental freedoms mentioned in the charter, it has come to be accepted as a normative instrument in its own right. Together with the charters, the universal declaration is now considered to spell out the general human rights obligations of all UN member states. 55 UDHR, furthermore, as most scholars argued, has now attained a customary international law status because the provisions represent the consensus of the international community. 56 UDHR prohibit torture universally for the first time, which provides that No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment ‟. 57 The nonbinding nature of the declaration, before conception of UDHR as customary law, prompted International Covenant on Civil and Political Rights (ICCPR) and become as a reaffirmation of the provisions of the declaration in binding sense. It provides that No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, on one shall be subjected without his free consent to medical or scientific experimentation ‟. 58 This provision maintained the provision of Article 5 of UDHR in the same wording. Although ICCPR does not define what torture means, during its drafting delegates had been S. Charnovitz, „Non-Governmental Organizations and International Law (2006) 100 AmJIL 348 T. Buergenthal, The Normative and Institutional Evolution of International Human Rights (1997) 19 HEQ 705 J. Morsink, The universal declaration of human rights Origin, drafting, and Intent (Philadelphia university of Pennsylvania Press 1999) 4. T. Buergenthal, The Evolving International Human Rights System (2006) 100(4) 783 N. Petersen, Customary law without custom Rules, Principles, and the role of state practice in international norm creation‟ (2008) 23 AmUILR 276. 57 UDHR, Art. 5. 58 ICCPR, Art. 7 |