61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 The Human Rights Committee has interpreted the scope of Article 7 of the ICCPR to extend to acts committed by private persons. See Human Rights Committee general comment 20 of 10 April 1992 (replaces General Comment 7 of 30 July 1982), para. 2. Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by Resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. There was an explicit reference to the Standard Minimum Rules for the Treatment of Prisoners in the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. When the Convention was being drafted, the authors did not consider it appropriate to include a non-binding document in a legally binding one. For a critique of the decision not to retain a reference to the Standard Minimum Rules, see Boulesbaa, ibid. note 28, pp. 28-31. See UN document “Question of the Human Rights of all Persons subjected to any form of Detention or Imprisonment, in particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, E/CN.4/1997/7, Report of the Special Rapporteur, Sir Nigel Rodley, submitted pursuant to Commission on Human Rights Resolution 1995/37 B. E/CN.4/1997/7. Boulesbaa, ibid. note 28, p. 47. Ibid. See the Legal Opinion of the Legal Department of the UN, Doc. E/CN.4/116 (1948), p. 4. See in the context of the ICCPR: UN Doc. CCPRE/C/I/Add.18; Report of the Human Rights Committee 33 UN GAOR, Supp. (no. 40) at 20, UN Doc. A/33/40 (1978): “The domestic system or practice could not be invoked as a reason for failing to implement the Covenant.” Boulesbaa, ibid. note 28, p. 50. Burgers & Danelius, ibid. note 54, p. 123. Boulesbaa, ibid. note 28, p. 58. Boulesbaa, ibid. note 28, p. 67. Boulesbaa, ibid. note 28, p. 87. See for example, the Universal Declaration of Human Rights, Art. 29(2); the ICCPR, Arts. 12, 14, 18, 19, 21, and 22. The provisions of the paragraph, save for minor differences in their scope, are similar to those of Article 4(2) of the ICCPR, of Article 15(2) of the ECHR, and of Article 27(2) of the Inter-American Convention on Human Rights. Boulesbaa, ibid. note 28, p. 79. The Charter of the International Military Tribunal of Nuremberg prescribed in Article 8: “The fact that the Defendant acted pursuant to an order of his Government or of a superior shall not free him from responsibility.” The Charter was approved by the Supreme Commander of the Allied Powers on 19 January 1946. It was amended by order of the Supreme Commander, General Headquarters, APO 500, April 1946, General Orders no. 20. Trials of Japanese War Criminals, Dept. Of State, US Government Printing Office, Washington, DC (1946), pp. 39-44. Formulation of the Principles Recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 2nd Session, UN Doc. A/519 pp. 111-112; Boulesbaa, ibid. note 28, p. 86. Article 6 § 4 of the Statute reads: “The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires.” Article 7 § 4 of the Statute is essentially identical to the text of Article 6 § 4 of the Statute of the International Tribunal for Rwanda. Article 33 § 1 of the Rome Statute of the International Criminal Court. Burgers & Danelius, ibid. note 54, p. 125. See G.E.T. Paez v. Sweden, Communication no. 39/1996, CAT/C/18/D/39/1996. This is a different position from that adopted under the Convention relating to the Status of Refugees (1950), where a refugee can be expelled on the grounds of national security and public order. Moreover, the provision prohibiting refoulement of a refugee is not absolute; a refugee who is regarded as a danger to the security of the place in which he or she is located, or who has been convicted of a particularly serious crime in the country of refuge and is therefore considered as constituting a danger to the community, cannot claim the benefit of non-refoulement (Article 33 of the Convention Relating to the Status of Refugees (1951). See General Comment no. 1, “Implementation of Article 3 of the Convention in the context of Article 22”, CAT, adopted 21 November 1997, A/53/44, para. 258 and annex IX.