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most countries around the world, state immunity prevents victims
of torture from bringing lawsuits against the violating governments.
Through the enactment of the Alien Tort Claims Act in the 18th century,
the United States is perhaps the only country in the world where
individuals are able to seek damages in a court of law for the violation
of their human rights by foreign governments. Considering the fact
that the global community has now come to recognize torture as a
crime that degrades the inherent dignity of the human person, it
is shocking that the domestic laws of many countries in the free
world do not reflect this development.
We, at InCAT, believe that torture trumps everything,
including state immunity. Quite often, the domestic laws of a
country include a number of exceptions to the concept of state
immunity, such as exceptions for commercial wrongdoings. We would
like to believe that if individuals are able to bring lawsuits
against foreign governments for commercial wrongdoings, surely
they should be entitled to bring legal action for something far
worse, namely torture. Most of the countries in the free world
are signatories to the UN Convention Against Torture. Isn’t
it time for their domestic laws to reflect their international
obligation?
The concept of state immunity should not be used
as an excuse to turn a blind eye to the violations of human rights
in the rest of the world. Recognizing torture as an exception
does not render the concept of state immunity obsolete. Indeed,
state immunity shall and will continue to apply in respect of
a state function. It is not too far fetched to argue that torture
is not a matter in respect of a state function.
The truth of the matter is that in most cases,
the victims of torture are not able to return to the violating
states to seek justice. There are also no international bodies
with enforcement capabilities that would enable victims to seek
damages for the pain and suffering that they endured in the hands
of violating governments. In addition, many of the countries with
the most notorious human rights records are not signatories to
the UN Convention Against Torture. This leaves most victims of
torture in the world with no legal remedy. We believe that it
is time for this unfortunate state of affairs to change, and we
are determined to push these changes forward. Perhaps, one day,
torture, as a tool for state policy, will become a thing of the
past.
Our
organization’s priority is to pursue the necessary legal
changes in Canada, and then, to spread the cause to the rest of
the world. If you are an activist, lawyer, or a scholar, and would
like to assist us in our cause, if you are able to provide us
with financial support, or if you are a victim of torture residing
in Canada, please contact us. Together, we can make a difference.
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