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The Role Of Torture In Juvenile Justice

906 Words4 Pages

The judge begins with discussing the shift in international law regarding torture and crimes against humanity from being a State centric group of rules to a set of rules that hold individuals accountable for bad governance and crimes of international importance. Universal jurisdiction for the crime of torture is now accepted as jus cogens,even by Chile, as the offenders are offenders against the international community as a whole . The Charter of the Nuremberg Tribunal and U.N. General Assembly Resolutions 3059, 3452 and 3453 passed in 1973 and 1975; Statutes of the International Criminal Tribunals for former Yugoslavia (Article 5) and Rwanda (Article 3) are cited to press on the matter .

The Working Group on the 1984 Torture Convention …show more content…

The first one is the intent of the lawmakers through which it is indicated that the purpose was to cover all acts of torture in any form and if the fountainhead of command is not covered under the ambit of the Convention then its purpose is ultimately defeated . The Court, in other words, says that it is unfair to hold an officer of lower rank liable for an offense if the person in charge is allowed freedom to continue ordering such acts. Thus, Pinochet is an officer under the meaning of the Convention .

The second technique is a purposeful mode of interpretation through which the Court reads the provisions keeping in mind the ultimate purpose of the Convention. The Court holds that immunity is a concept is granted ratione personae and on the expiration of office, this becomes rationemateriae. The same applies to a head of State. Further, the jus cogensprinciples regarding torture treat it as a crime punishable with severe numbers of years in prison. Thus, it a settled principle of law that a head of State may be liable for acts done in his capacity as an official and no immunity is granted to …show more content…

Thus, all these factors together, demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention and that Senator Pinochet does not enjoy any immunity .

Comment and Reflection

In re Pinochetaccepts the general rule of international law to be an upholding of State sovereignty. However, it does carve out certain exceptions with respect to crimes against humanity in order to indicate that State and sovereign leaders don’t have the absolute authority to inflict harms of any type on their citizens in the name of governance .

The case had an important political outcome with respect to democracy in Chile. As soon as elections ended and President Lagos stepped in, he announced that Pinochet would not be given immunity from prosecution in Chile which demonstrates that the nation itself was willing to stand up for human rights and those affected than an abstract principle of sovereign immunity which was misused to defend Pinochet to a great

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