Legal Background Guide

8/2/2019 Legal Background Guide

1/28

HOFSTRA UNIVERSITY MODEL UNITED NATIONS CONFERENCE

United Nations General Assembly Sixth Committee

Legal Committee

Kathryn M. Chlosta

Chairperson


2/28

1

Letter from the Chair

March 2012

Dear Delegates,

It is my pleasure to welcome you to the Legal Committee of Hofstra Model United Nations

2012! My name is Kathryn Chlosta and I am a senior at Hofstra majoring in Political Science

with a minor in Economics. I am native to Buffalo, New York, but have called Hofstra and the

Greater Metro-New York area my home for the past several years. Outside of the classroom, I

am involved with Hofstra University Model United Nations. I am also an avid runner and

recently completed my fifth half-marathon, in addition to two full marathons. As a founding

member of the Hofstra University Model United Nations Club, I am extremely pleased at our

progress from a small university club to a respected delegation at collegiate conferences in the

Northeast. Our next step is a high school conference and we welcome with great pleasure Long

Island and New York Citys finest high school Model United Nations delegations.

As the conference nears, I hope your excitement to participate in the very dynamic and thrilling

Sixth Committee of the General Assembly mounts. I hope you will come to the conference with

your debate skills finely tuned, learn from your fellow delegates, and most importantly, have a

fun, enjoyable, and memorable experience. During our committee sessions, you will be

delegates of the Legal Committee and will be responsible for reaching a resolution on the proper

role of universal jurisdiction in the international legal system. Further, delegates will address the

issue of torture with the goal of coming to a resolution that strengthens international conventions

against torture. Both issues are relevant to global issues and should catalyze interesting debate.

I encourage you to keep up to date on current events, as it will greatly advance your overall

preparedness for the conference. The background guide is a great starting point, but I hope you

will conduct your own research. If you have any questions, please feel free to email me. I look

forward to a productive conference in March!

Sincerely,

Kathryn M. Chlosta

Chair, Legal Committee

Hofstra University Model United Nations Conference 2012


3/28

2

Introduction to the United Nations General Assembly Sixth Committee

The United Nations Sixth Committee, also known as the Legal Committee, is the primary

forum for the consideration of legal questions in the United Nations General Assembly. With the

express purpose of developing progressive public international law, the committee deals with a

wide range of issues. At the Hofstra High School Model United Nations Conference, delegates to

the Sixth Committee will deal with two extremely important and politically contentious issues.

First, delegates will engage the concept of universal jurisdiction and determine its

applicability to the state, heads of state, and individuals. While used increasingly by members of

the international system for war crimes, human rights abuses, and crimes against humanity, the

concept of universal jurisdiction is controversial in many ways. Delegates will have to engage

political, legal, moral questions to reach a resolution on the proper role of universal jurisdiction

in the international system.

Second, delegates to the Sixth Committee will address the issue of torture. While

outlawed by many international treaties and conventions, as well as domestic laws in many

states, torture is still a widespread practice that runs counter to the liberal foundations of the

United Nations system. Recent accusations of torture committed by the United States in its war

on terror as well as its high profile case dealing with Guantanamo Bay have raised the question

of what is defined as torture. Another case, dealing with China and the Tibet issue, is one where

state sovereignty and human rights issues collide. The resolution of these cases is critical for the

future of human rights development and specifically torture. Delegates will have to engage the

definitional, ethical, and political aspects of the torture debate with the goal of coming to a

resolution that strengthens international conventions against torture.


4/28

3

The two-day conference will be a test of each delegates conflict resolution skills as the

issues at hand have elicited loud and contrasting opinions from member states. As the United

Nations strives in all of its affairs, it is important that a resolution is reached that can be

reasonably implemented by member states. Reaching a consensus in itself is a challenge that

must be overcome.

Mandate of the Sixth Committee

Under the Charter of the United Nations, Chapter IV, Article 13, the General Assembly

has a mandate of promoting international co-operation in the political field and encouraging the

progressive development of international law and its codificationand assisting in the

realization of human rights and fundamental freedoms for all without distinction as to race, sex,

language, or religion.1

The interpretation of this mandate has led to treaties on a vast array of

issues, the adoption of, and recommendation to states for their subsequent signature and

ratification.2 The Sixth Committee often collides with one of the most dearly held international

legal principles: sovereignty. Sovereignty is the states ability to govern its own territory as it

pleases. However, international law has diluted the absoluteness of sovereignty in an array of

means of enforcement and resources to implement policy. This is seemingly contradictory: the

UN system is based upon sovereignty, yet it is the goal of the Sixth Committee to construct a

body of international law that is applicable to all. The two concepts that this committee will

pursue are universal jurisdiction and torture. The notion of universal jurisdiction is that a treaty

is applicable to all states whether or not the state has signed a treaty. Likewise, the universal

prohibition of torture can, according to some, potentially infringe upon sovereignty. That is,

because of definitional differences regarding torture, cultural difference between countries, and

other issues, some have claimed that the attempt to prohibit torture with a universal approach can


5/28

4

challenge a states authority to govern its own territory as it pleases. This contradiction in

international law that the UN system is based on state sovereignty but at the same time the

body is charged with creating universally applicable rules has hindered its progress, for better

or for worse. Nonetheless, this contradiction cannot be ignored in the light of the United

Nations development. The challenge is raised to the Sixth Committee of the Hofstra University

Model United Nations to reconcile the conflict between its goal of having a liberal, universal

code of conduct that states and state leaders must adhere to while still respecting member states

sovereignty.

Composition and Method of Work

All members of the United Nations are de jure members of the Sixth Committee, which

means that the committee has universal membership. International law-making negotiations take

place in a number of venues, like the Security Council, depending on the subject matter, but

negotiations are usually held at the Sixth Committee. Non-member states with an observer status

in the General Assembly, such as the Holy See, may attend and participate in the discussions but

they are not allowed to vote. Additionally, intergovernmental organizations, non-governmental

organizations (NGOs), and others with varying degrees of statehood or sovereignty are invited to

become observers at the General Assembly.3

The Sixth Committee is led by a Bureau that is composed of a chairman, three vice-

chairmen, and a rapporteur. The chairman position is currently filled by H.E. Mourad

Benmehidi from Algeria. At the beginning of the annual session, which begins in September and

ends in late November, the General Assembly assigns the Sixth Committee a list of agenda items

to be discussed.


6/28

5

Treaties and Resolutions Negotiated at the Sixth Committee

Many important treaties and resolutions have come out of the Sixth Committee. Three

important treaties that are applicable to the discussion topics of this conference will be discussed.

First, the Vienna Convention on Diplomatic Relations (1961) is considered to be one of the most

universally accepted and has had great influence on the progress of international law.4 The

Convention provides a complete framework for the establishment, maintenance and termination

of diplomatic relations on the basis of consent between independent sovereign states. In addition

to an extensive protocol on the functioning of diplomatic missions, as well as procedural

formalities, it spells out the rules of privileges and immunities so diplomatic missions can act

without fear of harassment or coercion of the local laws.5 The Vienna Convention on Consular

Relations is the second important treaty.6

The function of this treaty has to do with the

development of international trade and economic interests of States. Many articles are a

continuation of the Convention on Diplomatic Relations, as they address privileges and

immunities of consular officials. There is also a special clause for individuals. When a foreign

national is arrested, the person has the inalienable right to counsel and due process, as well as

effective access to consular protection.7

Finally, the Vienna Convention on the Law of Treaties

1969 is considered one of the most important treaties negotiated by the Sixth Committee.8

This

Vienna Convention strives to regulate public international law and has proven an essential tool

for inter-state relations. Essentially the convention codified the customary rules that existed

before the convention; it also introduced concepts likejus cogens, or compelling law, a

peremptory norm that is accepted by the international community. Although there is no

agreement as to what norms havejus cogens status or how a norm reaches this status, it is

generally accepted thatjus cogens applies to the two topics of discussion of this conference,


7/28

6

universal jurisdiction and torture. However, due to the elasticity of the definition ofjus cogens,

there are states that do not accept these international norms, or accept them with reservations.

This is one example where the scope of the United Nations power is narrowed, for better or

worse. For better, because it is of great importance of each state to that the international

community respects its national sovereignty. For worse, since sovereignty and other nationalistic

ideals limit the development of progressive public international law.

The goal of this conference is for participants to produce more definite legal rules

pertaining to universal jurisdiction and torture. Delegates will have to take into consideration the

political, legal, and moral questions of each topic and its proper role in the international legal

system. The Topic A section will discuss the concept of universal jurisdiction, review related

concepts and concrete examples that provide a greater understanding of the concept.


8/28

7

Topic A: Universal Jurisdiction

Statement of the Topic

Jurisdiction takes two main forms: prescription (making a law) and enforcement

(implementing a law by a judicial body). Two kinds of jurisdiction will be discussed. The first,

domestic jurisdiction, rests on the principle of state sovereignty: the state has the power to

prescribe and enforce its laws. Domestic jurisdiction comes into conflict with international law

where international law supersedes domestic jurisdiction.9

Where domestic jurisdiction ends,

universal jurisdiction begins, although there is sometimes no clear distinction between lines of

division. The second form of jurisdiction, universal jurisdiction, is one of our main focuses at

our conference. Understanding this complex and puzzling issue will bring light to issues that are

in need of further development. This committee should strive to come to a resolution to ensure

the progress of implementing universal jurisdiction.

Universal jurisdiction is a claim made by states that they have jurisdiction over all

crimes committed by foreigners abroad, especially serious crimes. The principles of universal

jurisdiction encompass crimes that are regarded as extremely destructive to the international

order, including crimes of slavery, piracy, war crimes, genocide, torture, and other crimes against

humanity. In the Case Concerning the Arrest Warrant of 11 September 2000 (Congo v Belgium)

2002 ICJ Rep, Belgium issued a warrant for the arrest of the Congolese Foreign Minister for

grave violations of human rights. Belgium cited universal jurisdiction as a reason to bring the

case forth. Belgium, in fact, was acting pursuant to its own 1993 law of universal jurisdiction.

In the end, the decision of the International Court of Justice (ICJ) rested on whether the Foreign

Minister could claim immunity (the Court said he could). The ICJ ruled against Belgiums


9/28

8

expansionist interpretation of universal jurisdiction. In Joint Separate Opinions, several judges

concluded that although there are international treaties where a pure universal jurisdiction is

provided for, the absence of examples of enabling national law meant that international law is

neutral on the existence of the purest form of universal jurisdiction, or at best that it is a

developing principle rather than developed.

There are several concepts of universal jurisdiction that are key points in the cases

discussed in a later section. These concepts are necessary to understand both the cases, as well

as the bigger picture of the current situation of universal jurisdiction within the realm of

international law.

Concepts of Universal Jurisdiction for Discussion

Treaties

Universal jurisdiction falters in instances where it is confronted with treaties. As mentioned in

the Congo v Belgium case, universal jurisdiction seems to exist in its purest form only in treaties

that explicitly state so. Can treaties, which are binding only among the parties to them, alone

create true universal jurisdiction in relation to non-parties?10 The territorial principle says that a

state is free to prescribe and enforce its own legislation within its own territory, except when

restricted by a rule of international law. Is a non-party State required to adhere to a treaty under

the principle of universal jurisdiction?


10/28

9

Extradition

It should be noted that a certain degree of cooperation exists between different countries

in civil, criminal and administrative matters based on multilateral and bilateral treaties that exist

within international law. This includes cooperation with regard to extradition. Extradition is a

practice in which individuals are handed over by one state to another state, in order that they may

be tried in the latter state for offenses against its laws. Extradition is not required in the absence

of a treaty. The problem of the duty of the state to extradite in the absence of a treaty was

brought forth against Libya in theLockerbie Case. At issue was whether Libya was responsible

for the terrorist bombing of the aircraft which crashed over Lockerbie in Scotland.11

A criminal may take refuge in a state that has political incentive to not try him or no

jurisdiction to try him. On this notion, it is noted that asylum ends where extradition begins, as a

state has a right to grant asylum to criminals unless it has bound itself to a treaty that would

require the state to extradite them. On the other hand, there is no rule in international law that

prohibits a nation from extraditing a criminal without a treaty.12

Head of State Immunity

The purpose of diplomatic immunity, or head of state immunity, is to ensure the efficient

functioning of a diplomatic mission. It is not intended for the advancement of personal benefit.

Immunity cannot therefore be validly waived by the person enjoying it.13

The 1961 Vienna

Convention on Diplomatic Relations has been ratified by most states, and it is one of the most

widely accepted international conventions. Most of the provisions of the convention seek to

codify international customary law; thus, the principles of customary law can be applied to

countries that are not party to the convention and do not wish to adhere to the convention.14 Its


11/28

10

international appeal emanates from its protection of diplomats interacting with other states from

widely differing traditions. For example, Article 29 of the Convention states:

The person of a diplomatic agent shall be inviolable. He shall not be liable to any formof arrest or detention. The receiving State shall not be liable to any form of arrest or

detention. The receiving state shall treat him with due respect and shall take allappropriate steps to prevent any attack on his person, freedom, or dignity.

15

There have been very rare circumstances where this provision was not upheld, for instance Irans

behavior towards American diplomats that were held hostage from 1979-81.

According to Convention Article 31(1), a diplomatic agent also enjoys immunity from

the criminal jurisdiction of the receiving State. However, immunity from the jurisdiction of the

courts does not mean that the holder of the immunity is above the law. In a circumstance where

crimes against humanity have taken place under the supervision of a particular diplomat, both

sovereign and diplomatic immunity can be waived. A state may waive the immunity of one of

its diplomats against the diplomats wishes.16

When an individual ceases to be a member of the staff of a diplomatic mission, his

immunity continues for a reasonable time thereafter, in order to give him time to leave the

country. After this, he may be sued for private acts done during his period in office, but not

official acts.17

Relevant International Actions within the United Nation Framework

International Criminal Court (ICC)

Crimes that are a violation of universal jurisdiction, many times involving parties and

persons accused of war crimes or crimes against humanity, are directly punishable under


12/28

11

international law. These crimes may be dealt with in national courts, such as theEichmann

case18

or at the international levels, within bodies such as tribunals or by the International

Criminal Court (ICC). Before the ICC, tribunals were established by the UN Security Council

ad hoc in cases like the crimes committed in former Yugoslavia and Rwanda. After the Court

became fully operational in 2002, it supplanted the ad hoc war crimes tribunals that previously

dealt with conflicts. The Court is an example of progress towards universal jurisdiction in its

purest form. It has seen the indictment of some of the worlds worst offenders against humanity,

but has not yet secured its first conviction.19

The post-Cold War era saw the formulation of a permanent universal international

criminal court. The idea had been off the table until that point as it proved too difficult at the

international level. On July 17, 1998, more than 100 countries, not including the United States,

agreed to the Rome Treaty to create the International Criminal Court (ICC).20

An important

aspect of the ICC is that the Court claims universal jurisdiction even if states are not party to the

Treaty of Rome.21

This claim is an important part of the attempt to implement a truly universal

system of justice for crimes against humanity. The ICC is located in The Hague, but proceedings

can take place anywhere deemed most appropriate. There are three main ambitions in the

establishment of the ICC. First, those who have violated international human rights law should

be punished for their actions. Second, a government or official may be deterred from

committing crimes against humanity if the possibility of being held accountable is prominent.

Third, there must be documentation of crimes committed so humanity will not forget the

wrongdoings of the past.22

The cases that the ICC has undertaken deal with individuals who have committed

abhorrent crimes against humanity. In the following exposition of the case dealing with the


13/28

12

president of Sudan, it is clear that universal jurisdiction has been upheld by the Court and

recognized by many states.

Historical Situations of Universal Jurisdiction and Analysis

The Prosecutor v. Omar Hassan Ahmad Al-Bashir

On June 30, 1989, Lieut. Gen. Omar Hassan al-Bashir, a military leader in Sudan, seized

power in bloodless coup backed by Islamists. Al-Bashir assumed the presidency in 1993. The

ICC issued an arrest warrant on July 12, 2010 for al-Bashir for genocide committed in Darfur.

An earlier arrest warrant for al-Bashir had been issued in March 2009 by the ICC for war crimes

and crimes against humanity in Darfur. This was the first time the ICC issued an arrest warrant

for a serving head of state for the crime of genocide. The warrant is for al-Bashirs alleged role

as an indirect perpetrator or indirect co-perpetrator of genocide in Darfur through killing, causing

bodily or mental harm. Overall, Mr. Al-Bashir is allegedly criminally responsible for ten counts

including five counts of crimes against humanity, two counts of war crimes, and three counts of

genocide.23 All of the charges against Mr. Al-Bashir are linked to the conflict in the Western

Darfur region of Sudan, where an estimated 300,000 people have died and more than two million

have been uprooted by almost a decade of fighting between the government and rebels.24

The

ICC has jurisdiction over international crimes committed in Darfur, even though Sudan is not a

party to the court, under Security Council Resolution 1593,25 which referred Darfur to the ICC

and obligates Sudan to cooperate with the ICC.26

One hundred fourteen countries adhere to the

Courts jurisdiction, and Al-Bashir has been careful to avoid entrance into certain countries.


14/28

13

However, some fret that even the most recent charges of genocide will not bring the leader closer

to trial in The Hague. He has so far defied the courts orders and denied all accusations.

Pinochet Case

General Augusto Pinochet seized power on September 11, 1973 in a bloody military coup

that toppled the Marxist government of President Salvador Allende. Although he was successful

in achieving unprecedented economic growth that was internationally acclaimed, he also

oversaw the execution or disappearance of over 3,200 people, in addition to thousands more that

were detained, tortured or exiled.27

General Pinochet was indicted for human rights violations

committed in his native Chile by a Spanish magistrate in 1988. He was arrested and held by the

British government for two years. He was released and allowed to return to Chile, where he was

indicted and charged for a number of crimes. He died before being convicted in any case, but

this is the first case where European judges applied the principle of universal jurisdiction, citing

authority to judge crimes committed by a former head of state.

Current Situation and Analysis

It is argued that the complexities of international law have hindered the effectiveness of

the High Courts of the United Nations. The court was created to save millions of humans from

suffering unspeakably horrible and inhumane death, but the record seems to be rather

disappointing.28 Surely the ICC has restrained some of the most malicious offenders from

continuing atrocious criminal behavior, but court orders like indictments have limits. For

example, the indictment of President al-Bashir of Sudan charged with committing genocide in

Darfur. While bloodshed has ceased to an extent, there are many aspects contributing to war


15/28

14

crimes that have been left untouched, like the military in the Sudanese state. In the example of

thePinochet Case, we have seen a disagreement between governments that advocate the use of

universal jurisdiction, like many Western European nations, and those that wish to limit the use

of universal jurisdiction, like developing nations. It is in the hands of this committee to decide

for the future of universal jurisdictions scope and breadth. Can we allow for disagreement on a

topic that has thousands upon thousands of human lives at stake?

The end of 2011 marked the election of six new judges to the ICC. It is a critical juncture

in the history of the Courtit will determine whether the Court will become a credible

institution or just another UN gravy train.29 It is the goal of this conference to determine how

to make the High Courts of the United Nations more effective in holding both individuals and

states more accountable for actions that are destructive to development and progress of world

order and humankind.

Questions a Resolution Must Answer

The questions below are starting points for a resolution. Delegates should keep these

questions in mind while advocating their own states opinions on universal jurisdiction and its

role within international law.

1. Can treaties, which are binding only among the parties to them, alone create trueuniversal jurisdiction in relation to non-parties?

2. Is a non-party State required to adhere to a treaty under the principle of universaljurisdiction?


16/28

15

3. Should international law, at the very least, urge that all member states should extradite analleged criminal regardless of the presence of a treaty?

Bloc Positions

As mentioned before, Western states, including Europe and the United States are, for the

most part, advocates of universal jurisdiction. The United States, however, has rejected the

universal jurisdiction of the ICC, mostly due to arguments that such a court could be used for

political reasons. Some developing countries in Latin and South America, as well as Africa and

some parts of Asia have their reservations about actively promoting universal jurisdiction. Some

developing countries in particular fear that universal jurisdiction may be used to prosecute and

potentially punish only weak state actors rather than all those leaders including those of

powerful states that could be accused of certain crimes. In addition, because of the perceived

Western, liberal basis of international law relating to human rights, crimes against humanity, and

related issues, some developing states have argued that the ICC and other forms of universal

jurisdiction amount to a form of Western imperialism.

Suggested Readings (See also Additional Resources on Hofstras Model UN Webpage)

Akande, Dapo. "International Law Immunities and the International Criminal Court." The

American Journal of International Law 98.3 (2004): 407-33. Print.

"Cosy Club or Sword of Righteousness?"Economist26 Nov. 2011: 33-36. Print.

Kissinger, Henry. "The Pitfalls of Universal Jurisdiction." Foreign Affairs (2001). Print.

Roth, Kenneth. "The Case for Universal Jurisdiction." Foreign Affairs (2001). Print.

"Tried and Found Wanting."Economist26 Nov. 2011: 54. Print.


17/28

16

Topic B: Torture

Statement of the Topic

About 160 countries practice torture today in various degrees. Some countries use torture

as a means to obtain information, while others use it as a means to punish, hurt or degrade

dissidents, insurgents and religious minorities. While torture treatments can be ranked by

degrees of harshness, torture is illegal in itself according to international law. Another issue is

that the practices of torture are not necessarily called torture. For example, the United States did

not define water-boarding as torture and therefore claimed its actions did not violate any

domestic or international prohibition of torture. Without a universally accepted definition of

torture, it will become very difficult to hold states liable for all forms of torture, even those listed

under names other than its true identity of torture.

Is torture ever justified?

Cases of extreme torture, like German Nazi treatment towards millions of its prisoners,

led to the outlawing of all such practices at the international level. Human rights watch groups

have been actively patrolling countries -- including Israel, Brazil, China, and the United States--

that have allegedly practiced various forms of torture. After so many awful crimes have been

committed against humankind, it would seem that there would be a decrease in torture cases.

However, the post-9/11 world has seen the emergence of the idea of justified torture. An

Australian law professor, Mirko Bagaric, famously advocated life-saving compassionate

torture. He says that torture is justified if it elicits crucial information needed to prevent future

terrorist attacks and save innocent lives.30

Opponents of this argument say that torture is not only

used for extracting life-saving information. Many countries, like China for example, have


18/28

17

tortured members of religious and minority groups, including Tibetan dissidents and Uighur

Muslims.

Is torture effective?

In the event that a country practices life-saving compassionate torture, are these

abusive methods effective in obtaining crucial information? Advocates and opponents of torture

can come to very different conclusions when analyzing the same evidence. This is the case of

alleged architect of the 9/11 attacks Khalid Shaikh Mohammed. CIA Director Michael Hayden

affirmed in 2007 that the information obtained from Mohammed using coercive interrogation

techniques was useful and irreplaceable. This information allegedly has thwarted several terrorist

plots since 9/11, Hayden maintained.31

Opponents are skeptical of the accuracy and overall

usefulness of obtaining information using torture. Most people being tortured want to end their

suffering as soon as possible. They will give any kind of information true or false their

torturer wants to hear. For example, a person deprived of his clothing might feel so ashamed,

humiliated and cold that he will say anything to get his clothes back. Furthermore, the Center for

Victims of Torture in Nepal says that torture does not work on zealots. Those committed to an

ideology or religious belief would rather die than confess important information.32

Relevant International Actions within the United Nation Framework

Judge Thomas Bergenthal of the International Court of Justice defines the international

law of human rights as the law that deals with the protection of individuals and groups against

violation against their internationally guaranteed rights, and with the promotion of these

rights.33

A series of international human rights treaties has been adopted since 1945. On 10

December 1948, the United Nations General Assembly adopted the Universal Declaration of


19/28

18

Human Right (UDHR)34

which spelled out basic civil, political, economic, social, and cultural

rights to which all humans have. Article 5 of the UDHR states, no one shall be subjected to

torture or to cruel, inhuman, or degrading treatment or punishment. The United Nations also

has adopted the International Covenant on Economic, Social and Cultural Rights35

and the

International Covenant on Civil and Political Rights.36

These three documents are a part of what

is called the International Bill of Human Rights.

Another critical human rights document, the Convention Against Torture and other Cruel,

Inhumane, or Degrading Treatment or Punishment, was a step forward in prohibiting torture in

the international system, but has often been criticized for not providing a definition of torture

precise enough to be effective.37

The Committee against Torture, which operates under the

Office of the United Nations High Commissioner for Human Rights, is tasked with monitoring

the implementation of the Convention Against Torture.38

While all of the above documents are important for the contributions they have made

toward the goal of ending torture in the international system, none contains a universally agreed-

upon definition of torture nor a comprehensive list of the methods and techniques that constitute

torture.

Historical Situations of Torture

Guantanamo Bay United States

In January 2002, the Bush administration made Guantanamo Bay the place to detain

terrorism suspects held on grounds beyond U.S. law. In February 2002, President George W.

Bush said that the United States would treat the detainees humanely but did not consider the


20/28

19

prisoners as prisoners of war. Thus, the detainees were not protected by the Geneva Convention,

which bans torture and cruel and degrading punishment of prisoners.39

Although President

Barack Obama took measures towards closing the facility on his second full day in office in

2009, Guantanamo remains open, as the administration has encountered a series of political and

legal blocks. In March 2011, President Obama reversed the 2009 order so that now military

trials have resumed.40 The American Civil Liberties Union and other human rights groups

condemn Obamas decision to reinstitute military tribunals because the commissions lack many

of the legal protections for defendants a civilian court ensures and can rely on testimony obtained

through various means of torture.

41

Human rights groups cite that testimony obtained through

torture violates international standards, as well as the standards of domestic U.S. courts. They

also add that on the grounds of morality and ethics, the United States has tarnished its own

reputation while lowering the status quo for other nations.42

Proponents of Guantanamo say that

the facility is a rightful asset to the global war on terror and that some information that has

been obtained has prevented future terrorist attacks.

Another source of criticism is on the handling of releasing Guantanamo prisoners. If the

Pentagon determines that a prisoner is no longer a significant threat to U.S. national security, he

may be transferred to another location outside of the United States, either to his home country or

to another. This poses two problems, however. First, no country will willingly accept the

prisoner, which essentially leaves the prisoner stranded in Guantanamo. Second, if there are

substantial grounds for believing that the prisoner will be in danger of torture upon the return to

his home country, international law prohibits the United States from releasing the prisoner to that

country, again leaving him stranded. Under Article 3 of the UN Convention against Torture and

Other Cruel, Inhuman, or Degrading Treatment or Punishment, it is illegal to expel, return, or


21/28

20

extradite a person to another state where there are substantial grounds for believing that he would

be in danger of being subjected to torture.43

In addition, the 2011 National Defense

Authorization Act has instituted specific requirements that may restrict or delay detainee

transfer.44

Nearly eight hundred prisoners that have passed in and out of -- and sometimes just into -

- the detention facility at the U.S. Naval Station at Guantanamo Bay, Cuba. These prisoners will

likely face a lifetime of legal barriers and controversy. Overall, the plan to close Guantanamo

poses a string of legal and security issues, including how to charge and try inmates and how to

safely release those who are no longer deemed a threat.

Tibet China

For over fifty years, the Tibetan people have suffered enormous hardships and human

rights abuses by the government of the Peoples Republic of China. Since the 2008 uprisings

across Tibet, protesters, intellectuals, students, and business people have been detained and

sentenced to prison on charges of subverting state power or the intent to sever Tibet from

China. A Human Rights Watch report released in 2010 stated that Chinese security forces

violated international law in suppressing the protest by beating, detaining, and killing civilians in

towns across Tibet.45

In March 2011, a 20-year-old monk, Phuntsog, killed himself by self-

immolation to protest Chinese policies in Tibet. Security officers responded by locking down

the monastery, detaining monks and reportedly beating and torturing them. Since March 2011,

the number of deaths by self-immolation has risen to fifteen, with the most recent case of three

monks in January 2012.46


22/28

21

The Chinese government defends itself on the topic of human rights with statements like,

[China] recognizes human rights. We adhere to human rights international documents. On the

other hand, we have to take into account how they will be interpreted in light of our own history,

culture, governmentdifferent from yours. And besides, there must never be interference in the

affairs of other countries.47

In short, China has made the case that a single, universal definition

and prohibition of torture threatens its sovereignty. While all UN-member states are entitled to

protect their sovereignty, critics of this attitude say that China has made an international

commitment to the doing away with of torture. Thus, its defense of its practices based upon the

notion of traditional sovereignty does not absolve it of responsibility.

China has signed the International Convention on Civil and Political Right in 1998, but it

has not ratified it. China has ratified other human rights documents but have numerous

problems implementing these documents. Like many other aspects of Chinese policy, the

implementation of law is gradual and largely based on the current presidents regime.

Current Situation and Analysis

Many nations look to the superpowers of the world as a reflection of the status of human

rights in the international system. Human rights advocates worry that countries that have

tortured in the past will feel more emboldened to do so again as a result of the United States

tarnished record. It is also of concern that rising powers like China frequently take part in

business transactions in countries with a track record of human right abuses. Furthermore, the

European Union, another large player in the construction of human rights, finds itself divided

among its diverse membership.48 The goal for this committee is to bring forth solutions that will


23/28

22

hold nations accountable to protect their constituency and for any human right abuses.

Consensus must be achieved in order to find the most plausible way for countries to agree to

anti-torture practices.

Questions a Resolution Must Answer

The questions below are starting points for a resolution. Delegates should keep these

questions in mind while advocating their own states opinions on torture and its role within

international law.

1. What role should courts play is assessing whether a government may transferindividuals who claim they will face torture, even when the government does not

believe this is the case?

2. How can the United Nations protect state sovereignty while simultaneouslyadvocating human rights?

3. How should torture be defined so that it can be universally accepted?

Bloc Positions

Even though nearly all states have accepted the basic international treaties and conventions that

ban torture, many states have reservations about certain aspects of these prohibitions. In

addition, it is difficult to pinpoint bloc positions because such issues vary widely. Western

nations, for example, have nearly universally accepted international prohibitions against torture

and have matching domestic laws but, as noted above, there are some exceptions to how these


24/28

23

prohibitions have been implemented and other controversies even among the most liberal states

in the UN system. As such, it is imperative to understand country-specific positions on this

issue.

Suggested Reading (See also the Additional Resources on the Hofstra Model UN Website)

Follath, Erich. "America's Shame: Torture in the Name of Freedom - SPIEGEL ONLINE - News

- International." SPIEGEL ONLINE - Nachrichten. Trans. Christopher Sultan. 20 Feb. 2006.Web. 15 Jan. 2012. .

Kaplan, Robert D. "Fear Hath No Shelf-Life: Our Torture Dilemma - Magazine - The Atlantic."The Atlantic News and Analysis on Politics, Business, Culture, Technology, National,

International, and Life TheAtlantic.com. 22 Jan. 2009. Web. 30 Jan. 2012.

Marty, Dick. "Alleged Secret Detentions and Unlawful Inter-state Transfers Involving Council ofEurope Member States, Committee on Legal Affairs and Human Rights Council of Europe

Parliamentary Assembly." 7 June 2006. Web. 15 Jan. 2012.

.


25/28

24

1

See the full text of the Charter of the United Nations,http://www.un.org/en/documents/charter/index.shtml.

2A brief note on the signing, ratification, and accession of a treaty is as followed. When a state

signs a treaty with a simple signature, the state has not expressed its consent to be bound by thetreaty. However, its signature obliges, in good faith, from acts that defeat the purpose of the

treaty. Ratification is an act whereby a state establishes its consent to be bound by a treaty.http://europatientrights.eu/countries/signing_and_ratifying_a_treaty.html.

3List of non-member bodies of the United Nations General Assembly:

http://www.un.org/en/ga/about/observers.shtml.

4See the full text of the 1961 Vienna Convention on Diplomatic Relations:

http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf.

5

Eileen Denza, Vienna Convention on Diplomatic Relations,Audio Visual Library ofInternationalLaw 2008, http://untreaty.un.org/cod/avl/pdf/ha/vcdr/vcdr_e.pdf.

6See the full text of the 1963 Vienna Convention on Consular Relations at


7 Juan Manuel Gomez Robledo, Vienna Convention on Consular Relations,Audio Visual

Library of InternationalLaw 2008, http://untreaty.un.org/cod/avl/pdf/ha/vccr/vccr_e.pdf.

8 See the full text of the 1969 Vienna Convention on the Law of Treatieshttp://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.

9 Anthony Aust,Handbook of International Law (Cambridge, UK: Cambridge University Press,

2010), 42.

10 Peter Malanczuk,Akehurst's Modern Introduction to International Law (New York:Routlege,1997), 113.

11Ibid.

12Ibid., 117.

13 Aust, 130.

14Malanczuk, 123.

15See the full text of the 1961 Vienna Convention on Diplomatic Relations at


16Malanczuk, 128.


26/28

25

17Ibid., 126.

18A-G of Israel v Eichmann (1961) 36 ILR 5.

19BBC, Q&A: International Criminal Court. 30 November 2011,

http://www.bbc.co.uk/news/word-11809908.

20Mark W. Janis,An Introduction to International Law, 4

thed. (New York: Aspen Publishers,

2003), 282.

21 See the full text of Treaty of Rome, http://untreaty.un.org/cod/icc/statute/romefra.htm.

22Janis, 284.

23

"The Prosecutor v. Omar Hassan Ahmad Al Bashir,"ICL Database and Commentary,http://www.iclklamberg.com/Bashir.htm#Year_2009_PTC.

24Omar Hassan Al-Bashir,New York Times, Times Topics, 2012,

http://topics.nytimes.com/top/reference/timestopics/people/b/omar_hassan_al_bashir/index.html?

scp=1&sq=al-bashir%20300,000&st=cse.

25See the full text of UN Security Council Resolution 1593 at

http://www.un.org/News/Press/docs/2005/sc8351.doc.htm.

26Sudan: ICC Warrant for Al-Bashir on Genocide, Human Rights Watch, July 13, 2010,

http://www.hrw.org/news/2010/07/13/sudan-icc-warrant-al-bashir-genocide.27

Jonathan Kandell, "Augusto Pinochet, Dictator Who Ruled by Terror in Chile, Dies at 91,New York Times, December 11, 2006,

http://www.nytimes.com/2006/12/11/world/americas/11pinochet.html?pagewanted=all>.andell.

28"Cosy Club or Sword of Righteousness?"Economist, November 26, 2011, 33-36.

29"Tried and Found Wanting,"Economist, November 26, 2011, 54.

30Torture Debate: Is the U.S. War on Terror Legitimizing Terror? CQ Global Researcher,

September 2007, 229.

31Ibid., 219.

32Ibid., 218.

33Thomas G. Weiss and Sam Daws, eds., The Oxford Handbook on the United Nations (New

York: Oxford University Press, 2007).


27/28

26

34 Follow link for full text of the Universal Declaration of Human Rights:

http://www.un.org/en/documents/udhr/.

35

Follow link for full text of the International Covenant on Economic, Social and CulturalRights: http://www2.ohchr.org/english/law/cescr.htm.

36Follow link for full text of the International Covenant on Civil and Political Rights:

http://www2.ohchr.org/english/law/ccpr.htm.

37Convention Against Torture and other Cruel, Inhumane, or Degrading Treatment or

Punishment: http://untreaty.un.org/cod/avl/ha/catcidtp/catcidtp.html.

38UN Committee Against Torture: http://www2.ohchr.org/english/bodies/cat/.

39

Seth Stern, Torture Debate, Global Issues: 2008 Edition (Washington, D.C.: CQ Press,2007), 154.

40Guantanamo Naval Base, Cuba,New York Times, Times Topics,

http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/guantanamobaynav

albasecuba/index.html?scp=2&sq=guantanamo%20military%20trials&st=cse.

41Take note that the United States administration does not identify its methods of obtaining

critical information as torture but instead claim its methods as enhanced interrogation.

42Jonathan Masters, Closing Guantanamo? Council on Foreign Relations Backgrounder,

November 9, 2011, http://www.cfr.org/terrorism-and-the-law/closing-guantanamo/p18525.43

Follow link for full text of the Convention against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment: http://www2.ohchr.org/english/law/pdf/cat.pdf

44Masters 2011.

45Tibet,New York Times, Times Topics, January 24, 2012,

http://topics.nytimes.com/top/news/international/countriesandterritories/china/tibet/index.html?scp=1&sq=human%20rights%20watch%20chinese%20tibet&st=cse.

46 Sharon LaFraniere, "More Monks Die by Fire in Protest of Beijing,"New York Times, January

9, 2012, http://www.nytimes.com/2012/01/10/world/asia/3-monks-deaths-show-rise-of-self-immolation-among-tibetans.html.

47Cohen, Jerome A. "China's Human Rights Puzzle." Interview by Bernard Gwertzman. Council

on Foreign Relations, 27 Jan. 2011. http://www.cfr.org/china/chinas-human-rights-puzzle/p23905.


28/28

27

48

Stern, 159.

Date post:	06-Apr-2018
Category:	Documents
Upload:	john-giambalvo
View:	218 times
Download:	0 times

Legal Background Guide

Documents