PART C: Protection against Torture: Procedures before the African Commission and African Human Rights Court and stealing weapons.464 However, the Commission held that ‘even if the State was fighting alleged terrorist activity, it was not justified to subject victims to torture, cruel, inhuman and degrading punishment and treatment, and found the State to be in violation of Article 5.465 Although not presented as justifying torture as such, the Eritrean Government’s response to the allegations in Zegveld and Ephrem points to national security as rationalisation of illegal detention. The Government argued that the 11 detainees conspired to overthrow the legal government, ‘colluding with foreign powers with a view to compromising the sovereignty of the country, undermining Eritrean National Security and endangering Eritrean society and the general welfare of its people’.466 Related to arguments pertaining to national security are contentions about national legal standards and domestic sovereignty. In Zegveld and Ephrem, the Eritrean Government referred to its national laws, arguing that the detention of the 11 persons was ‘in conformity with the criminal code of the country’.467 The argument failed, however, because the Eritrean Constitution itself requires that all detainees be brought before a court of law within 48 hours of their arrest.468 Another strategy used by States is to defend acts in violation of the Charter as being necessary in a context of war. In Article 19 v. Eritrea, the State argued that the alleged acts, including prolonged arbitrary detention and torture, were undertaken ‘against a backdrop of war when the very existence of the nation was threatened and that, as a result, the government was duty bound to take necessary precautionary measures (and even suspend certain rights’. The Commission pointed out, however, that unlike other human rights instruments, the African Charter includes no provisions allowing for derogation in times of war or emergency. The Commission held that ‘the existence of war, international or civil, or other emergency situation within the territory of a state party cannot therefore be used to justify violations of any rights set out in the charter’.469 10. Acceptable Limitations The Commission has held that the prohibition of torture in Article 5 of the Charter is absolute and does not permit any exceptions or limitations.470 Moreover, the African Commission has consistently held that ‘contrary to other human rights instruments, the African Charter does not allow for derogation from obligations due 464 465 466 467 468 469 470 ACHPR, Kevin Mgwanga Gunme et. al. v. Cameroon, Comm. No. 266/03, para. 113. Ibid., para. 114. ACHPR, Zegveld and Ephrem v. Eritrea, Comm. No. 250/02, para 47. Ibid. Ibid., para 49. ACHPR, Article 19 v. Eritrea, Comm. No. 275/03, para. 87. ACHPR, Huri-Laws v. Nigeria, Comm. No. 225/98. 109