impacts a variety of other rights enshrined in the Convention,
including the obligation to afford a remedy.
it in terms of harm to the case? Because certainly one of the
roles of interim measures is to safeguard the situation so that the
litigation can proceed. So, in terms of how we look at the issue of
irreparable harm, does the fact that a victim has been threatened,
which may force her to withdraw a particular case, amount to
sufficient harm although not physical harm?
What are the types of measures that states have at the domestic
level? As I have already indicated in my introduction, most states
that do have protection legislation, as well as protection structures, have developed these systems in the context of criminal
law and particularly organized crime. At the international level,
the UN Office on Drugs and Crime has spearheaded efforts to
encourage states around the world to revise their laws and practices to protect victims and witnesses mainly in the context of
organized crime. So, at the international level, there has been
some movement to encourage states around the world to adopt
protection legislation and establish protection units. However,
this initiative of the UN Office on Drugs and Crime has focused
on the criminal model. Therefore, it is not sufficient or adequate
to respond to the needs of protection in a human rights case,
with respect to human rights litigants. Moreover, as I previously
mentioned, there are a whole range of protective measures within
the international criminal realm, both during the trial proceedings as well as measures on the ground to protect victims and
witnesses. However for the most part, these too are focused on a
prosecution model.
Another question is whether interim measures are able to
address threats against lawyers and human rights defenders, in
addition to the direct victim. In principle, one would think that
they should be, though the relevant provisions and regulations
are not actually so clear. If we read rule 114 of the UN Committee against Torture’s regulations, the first paragraph: “At any
time after the receipt of a complaint, the Committee, a working group, or the Rapporteur(s) on new complaints and interim
measures may transmit to the State [P]arty concerned, for its
urgent consideration, a request that it take such interim measures
as the Committee considers necessary to avoid irreparable damage to the victim or victims of alleged violations.”13 How does
one interpret that? Can we possibly say that the threats to the
lawyers are part and parcel of irreparable damage to the victim?
Certainly that would be an appropriate way in which to look at
the matter. However, that interpretation probably goes one step
beyond the plain meaning of the text.
The Use of Interim Measures
Are interim measures able to deal with reprisals after the fact?
So, let’s say the UN Committee against Torture issues a decision,
and as a result the state concerned is very angry and the individual concerned is re-tortured, possibly even killed. What can
the treaty body do in that kind of circumstance? I would suggest
that interim measures, because of what exactly they are, would
have difficulty to operate after the fact. Therefore, the question is
what else needs to be in place to ensure the continued ability of
the Committee to have oversight over the protection needs after
it has issued a decision. Certainly, as the UN Committee against
Torture has itself recognized in its recent General Comment,
there is a link between remedy and protection. So the UN Committee against Torture or any treaty body or other international
mechanism can, in light of the need to guarantee non-repetition,
set out the obligation to ensure continued protection to the victim and others concerned. This could potentially be addressed in
relation to the remedial order at the end of the case to the extent
that the Committee has continuing supervisory ability at the end
of the case, which many bodies do.
What about victims who are not criminal witnesses, when
they are bringing their own human rights cases? For me, this is
the biggest challenge that we face. With respect to this massive
gap, one of the areas which we can look at, and which I will
discuss now, is the area of interim measures. Hélène [Legeay]
has already indicated what interim measures are. Basically they
are tools to stop or postpone the execution of a decision or an
act that might prejudice the outcome of the proceedings before a
final judgment is reached. They can also be positive, requiring a
state to take particular action to forestall irreparable harm. There
are also instances where an interim measure can be a request
or an order to a state to stop negative action. One limitation of
the system of interim measures is that they are typically only
available for serious and urgent cases. So, we must consider this
in light of the variety of needs that torture survivors have with
respect to protection and whether they all fit within the context
of serious and urgent cases. Most cases fall under these criteria;
however it can often be a question of evidence, whether evidence
is strong enough to demonstrate the sufficient level of urgency
and seriousness.
Another concern is the response by the different states
to interim measures. This has to do with the overall challenge
of enforcing anything that a treaty body or even some of the
regional courts recommend or order, as the case may be. I suggest
two main issues with respect to the response to interim measures.
The first concern is limited capacity. As already indicated, one
of the most significant challenges is the limitation of domestic legislation and domestic procedures on the ground to deal
with protection concerns. So, if an order or request for interim
measures is made to a particular country where the systems and
Another question is whether interim measures are able to
provide all of the protection needs of torture victims trying to
bring a case at an international level. The first issue is how one
assesses the definition of avoiding irreparable harm. Will it necessarily be applicable to protection concerns that are perhaps not
amounting to death threats or serious bodily injury? How do we
define serious irreparable harm? Do we define it in relation to
the harm to the victim, or perhaps can we go further and define
12
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