HR WEEK 4
Eg Case Concerning Ahmadou Sadio Diallo (Republic of Guinea vs Democratic
Republic of Congo) ICJ Rep 639 (ABRIGO)
A state responsibility and diplomatic protection case on behalf of its national, Diallo,
was filed against the Democratic Republic of Congo (D.R.C.) (D) by the Republic of
Guinea (P), alleging that Diallo’s right were violated as well as his right as a
shareholder (associe) of limited companies (SPRIs) incorporated in the D.R.C. (D).
These allegations which Guinea (P) levied against D.R.C. (D) were however
contended on the ground that Guinea (P) did not have standing to protect Diallo.
FACTS:
Mr. Diallo, a Guinean national, moved to the DRC (formerly known as “Congo”
between 1960 and 1971, and “Zaire” between 1971 and 1997) in 1964. Ten years
later, in 1974, Mr. Diallo established an import-export company, Africom Zaire. In
1979, Mr. Diallo also took part in the founding of a private limited liability company
specialising in the containerised transport of goods, Africontainers-Zaire (together, the
“Companies“). Mr. Diallo was an associé (shareholder) in the Companies.
In the late 1980s, the Companies instituted legal proceedings against their public and
private business partners in order to recover several debts. On 31 October 1995, the
Prime Minister of Zaire issued an expulsion decree against Mr. Diallo. The decree
stated that the:
“presence and personal conduct [of Mr. Diallo] have breached Zairean public order,
especially in the economic, financial and monetary areas, and continue to do so.”
With a view to the implementation of this decree, Mr. Diallo was arrested and
detained for 66 days from 5 November 1995 to 10 January 1996, and for a further 6
days, from 25 January to 31 January 1996. On 31 January 1996, Mr. Diallo was given
notice of his expulsion and deported from Zaire (as it was then known) back to
Guinea.
On 28 December 1998, Guinea instituted proceedings against the DRC before the
Court. Under international law, a State has the discretionary right to protect its
national who has been injured by another State. This right is based upon a link of
nationality between the (natural or legal) person concerned and the State. This is
known as the right of diplomatic protection. Guinea sought to exercise diplomatic
protection on behalf of Mr. Diallo in respect of the DRC’s alleged violation of his righ
ISSUE: Whether or not DRC committed serious violations of international law
following the arrest, detention and expulsion of Mr. Diallo from the DRC.
HELD:
In light of Mr. Diallo’s arrest, detention and expulsion, the Court held that the DRC
had violated Articles 9 and 13 of the International Covenant on Civil and Political
Rights, Articles 6 and 12(4) of the African Charter on Human and Peoples’ Rights and
Article 36(1)(b) of the Vienna Convention on Consular Relations.
However, in the Court’s view, the DRC’s actions did not violate Mr. Diallo’s direct
rights as an associé in the Companies, such as taking part and voting in general
meetings or overseeing and monitoring their management. For example, whilst Mr.
Diallo’s expulsion had “probably impeded him from taking part”, this did not “amount
to a deprivation of his right to take part and vote in general meetings.”
In delivering its binding Judgment as the principal judicial organ of the United Nations,
the ICJ unanimously found that the expulsion of Mr. Diallo from the DRC was a
violation of his rights under Article 13 of the International Covenant on Civil and
Political Rights (ICCPR) and Article 13 (4) of the African Charter on Human and
Peoples’ Rights. Each provision seeks to protect aliens or non-nationals from
arbitrary and unlawful expulsions. The Court further unanimously found that the DRC
had violated Article 9 (1) and (2) of the ICCPR, and Article 6 of the African Charter,
each seeking to protect the right to liberty and security of person, as a result of the
circumstances under which Mr. Diallo was arrested and detained in 1995-1996.
In assessing the other submissions of the Republic of Guinea, the ICJ found that the
DRC had violated its obligations under the Vienna Convention on Consular Relations
by not informing Mr. Diallo of his rights upon detention. Nevertheless, the Court
dismissed all of Guinea’s other submissions, including in its entirety the claims of
Guinea related to the arrest and detention of Mr. Diallo in 1988-1989. The Court also
found that the DRC had not violated Mr. Diallo’s rights as associé (shareholder of “not
freely transferable” shares) in Africom-Zaire and Africontainers-Zaire.
The Court ordered that the DRC is under an obligation to make appropriate
reparations in the form of compensation to the Republic of Guinea for its violations.
Furthermore, the Court decided that in the event that the Parties are unable to reach
agreement within six months of the Judgment on compensation, it shall itself settle
the matter.
Piandiong vs the Philippines CCPR/C/70/D/869/1999 (19 October 2000) (ANDAL)
● Counsel states that Messrs Piandiong and Morallos were arrested on 27
February 1994, on suspicion of having participated, on 21 February 1994, in
the robbery of passengers of a jeepney in Caloocan City, during which one
of the passengers, a policeman, was killed. After arriving in the police
station, Messrs Piandiong and Morallos were hit in the stomach in order to
make them confess, but they refused. During a line up, the eyewitnesses
failed to recognize them as the robbers. The police then placed them in a
room by themselves, and directed the eyewitnesses to point them out. No
counsel was present to assist the accused. During the trial, Messrs.
Piandiong, Morallos and Bulan testified under oath, but the judge chose to
disregard their testimony, because of lack of independent corroboration.
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 ● Counsel further complains that the death sentence was wrongly imposed,
because the judge considered that an aggravating circumstance existed, as
the crime was committed by more than three armed persons. According to
counsel, however, this was not proven beyond reasonable doubt. Moreover,
counsel states that the judge should have taken into account the mitigating
circumstance of voluntary surrender, since Messrs. Piandiong, Morallos and
Bulan came with the police without resisting.
● Counsel further states that the testimonies of the eyewitnesses deserved no
credence, because the eyewitnesses were close friends of the deceased
and their description of the perpetrators did not coincide with the way
Messrs. Piandiong, Morallos and Bulan actually looked. Counsel also states
that the judge erred when he did not give credence to the alibi defence.
● Finally, counsel complains that the death penalty was unconstitutional and
should not have been imposed for anything but the most heinous crime.
ISSUE
Whether a state’s failure to comply with a request for interim measures from the UN
Human Rights Committee was a breach of its international obligations.
HELD
YES
● In respect of the present communication, the authors allege that the
alleged victims were denied rights under Articles 6 and 14 of the
Covenant. Having been notified of the communication, the State party
breaches its obligations under the Protocol, if it proceeds to execute
the alleged victims before the Committee concludes its consideration
and examination, and the formulation and communication of its Views.
It is particularly inexcusable for the State to do so after the Committee
has acted under its rule 86 to request that the State party refrain from
doing so.
● The Committee has noted the claim made on behalf of Messrs. Piandiong,
Morallos and Bulan before the domestic courts that the imposition of the
death sentence was in violation of the Constitution of the Philippines.
Whereas it is not for the Committee to examine issues of constitutionality,
the substance of the claim appears to raise important questions relating to
the imposition of the death penalty to Messrs. Piandiong, Morallos and
Bulan, namely whether or not the crime for which they were convicted was a
most serious crime as stipulated by article 6(2), and whether the re-
introduction of the death penalty in the Philippines is in compliance with the
State party's obligations under article 6(1) (2) and (6) of the Covenant. In the
instant case, however, the Committee is not in a position to address these
issues, since neither counsel nor the State party has made submissions in
this respect.
● With regard to the other claims, concerning the alleged ill-treatment upon
arrest, the evidence against the accused, and the credibility of the
eyewitnesses, the Committee notes that all these issues were before the
domestic courts, which rejected them. The Committee reiterates that it is for
the courts of States parties, and not for the Committee, to evaluate facts and
evidence in a particular case, and to interpret the relevant domestic
legislation. There is no information before the Committee to show that the
decisions by the courts were arbitrary or that they amounted to denial of
justice. In the circumstances, the Committee finds that the facts before it do
not reveal a violation of the Covenant in this respect.
● The Human Rights Committee, acting under article 5, paragraph 4, of
the Optional Protocol to the International Covenant on Civil and
Political Rights, is of the view that it cannot make a finding of a
violation of any of the articles of the International Covenant on Civil
and Political Rights. The Committee reiterates its conclusion that the
State committed a grave breach of its obligations under the Protocol
by putting the alleged victims to death before the Committee had
concluded its consideration of the communication.
Soering vs UK (1989) 11 EHRR 439 (compare with Barrett and Sutcliffe v Jamaica,
CCPR/C/44/D/270 and 271/1998 (30 March 1992))(ATMOSFERA)
FACTS:
- Soering v United Kingdom (1989) concerns Articles 3, 6 and 13 of the
European Convention on Human Rights (ECHR) 1950 and the potential
extradition to the USA by the UK of a West German national to face trial in
Virginia, USA on a murder charge. Soering argued that if he were found
guilty of murder and sentenced to death, that he would experience 'death
row-phenomenon' which would lead to the violation of his Convention rights.
- Jens Soering is a German national, who at the time of the alleged offence
was a student at the University of Virginia. He and his girlfriend were wanted
in Bedford County, Virginia, USA for the murder of his girlfriend's parents.
The couple disappeared from Virginia in October 1985, and were later
arrested in England in April 1968 in connection with cheque fraud.
- Soering was interviewed by Bedford County police in the UK, which led to
his indictment on charges of capital murder and non-capital murder. The
USA commenced extradition proceedings with the UK under the terms of the
Extradition Treaty of 1972, between the USA and UK. Mr Soering applied to
the European Court on Human Rights (ECtHRs) alleging the breach of
Article 3, Article 6 and Article 13 ECHR.
ISSUE: Whether the non-refoulement, which engages state responsibility by
the act of removal of an individual to a state where he or she will be exposed to
a certain degree of risk of having her or his human rights violated. (YES)
HELD:
Article 3 - Soering alleged that the decision of the secretary of state for the home
department to surrender him to the US would, if implemented give rise to a breach of
Article 3 ECHR. Article 3 provides: that "No one shall be subjected to torture or to
inhuman or degrading treatment or punishment". The breach of Article 3 is linked
to the treatment the applicant argued he would receive if he were to be detained on
death row in Virginia for an expected six to eight years.7 The ECtHR accordingly
found the UK to be in breach of Article 3.
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Article 6 - Soering alleged that the lack of legal aid in Virginia and the failure of the
English Magistrates court to consider his psychiatric condition amounted to a breach
of the right to a fair trial. The ECtHR found they had no jurisdiction to consider this
matter.
Article 13 - Soering further argued that he had no effective remedy in the UK with
respect to his complaint under Article 3. The ECtHR found there to be no breach of
Article 13; since Mr Soering had the opportunity to bring judicial review proceedings
at the appropriate time within UK law.
The ECtHR in defining torture, inhuman or degrading treatment under Article 3
ECHR, argued that ill-treatment must attain a minimum level of severity to fall within
the scope of Article 3. This depends upon the circumstances of the case and context
of the treatment or punishment, the manner and method of its execution, its duration
and physical or mental effects. The Soering doctrine is narrowly construed.
Central to the ECtHRs reasoning was the 'serious and irreparable nature of the
alleged suffering'. Soering is part of the courts extensive jurisprudence in support of
the rights of prisoners. Furthermore, it first established the principle that a Member
State can be in breach of a Convention right merely by expelling an individual to a
state in which he or she would face a breach of a Convention right. The UK itself did
not need to carry out any acts of torture, inhuman or degrading treatment to be in
breach of Article 3, they merely need to place Soering at the 'real risk' of being
subject to treatment in breach of Article 3.
The Soering decision effectively established a hard protection against extradition in
Article 3 cases. This principle was later extended to violations of Article 6 (fair trial),
Article 13 (lack of effective remedy) and Protocol 4 (collective expulsions). In Vilvarjah
and Others v the United Kingdom, the ECtHR subsequently imposed certain
limitations upon extradition, requiring that 'a sufficiently clear causal link between the
removal and any ill-treatment which might have occurred'.
Barrett and Sutcliffe v Jamaica, CCPR/C/44/D/270 and 271/1998 (30 March 1992)
(BACANI)
FACTS: Randolph Barrett and Clyde Sutcliffe, two Jamaican citizens awaiting
execution at St. Catherine District Prison in Jamaica. Claimed to be victims of a
violation of their human rights by Jamaica. Although counsel only invokes a violation
of article 7 of the International Covenant on Civil and Political Rights, it transpires
from some of the authors' submissions that they also allege violations of article 14.
They were arrested on 10 and 11 July 1977, respectively, on suspicion of having
murdered two policemen at the Runaway Bay police station in the parish of St. Ann.
The prosecution contended that they belonged to a group of five men who had been
stopped by the police in the context of the investigation of a robbery that had occurred
at a nearby petrol station. One of the men (neither Mr. Barrett. nor Mr. Sutcliffe) took
a sub-machine-gun out of a bag and opened fire on the police officers, killing two of
them. The authors were subsequently charged with murder on the basis of "common
design"; they denied having participated in the robbery and having been in the
possession of stolen goods.
Their trial in the Home Circuit Court of Kingston began on 10 July 1978 and lasted
until 27 July 1978. In the course of the trial, an independent ballistics expert was to
appear for the defence but did not arrive in court in time. The adjournment requested
by Mr. Barrett's attorney was refused by the judge. On 27 July 1978 the authors were
found guilty as charged and sentenced to death. They appealed to the Jamaican
Court of Appeal, which heard their appeals between 9 and 12 March 1981, dismissing
them on 12 March: it produced a written judgement on 10 April 1981.
On 24 and 26 November 1987, respectively, warrants for the execution of Mr. Barrett
and Mr. Sutcliffe, on 1 December 1987, were issued by the Jamaican authorities. Mr.
Barrett's former legal aid representative obtained a stay of execution on his client's
and on Mr. Sutcliffe's behalf, with a view to filing a petition with the Judicial Committee
of the Privy Council. On 22 July 1991, the petition was dismissed by the Judicial
Committee, which, however, expressed concern about the judicial delays in the case.
They both claim to be innocent and allege that their trial was unfair. Both challenge
their identification parade as irregular, since it allegedly was organized by police
officers who sought to influence witnesses and conspired to ensure that the authors
would be identified as those responsible for the death of the policemen. Mr. Sutcliffe
adds, without giving further details, that he was denied contact with legal counsel until
he was formally charged and denounces the "battered state" in which he was placed
on the identification parade, which allegedly was the result of rough treatment he had
been subjected to while in custody.
Mr. Barrett further submits that following his arrest by the Browns Town police and a
brief stay in the hospital (where fragments of a bullet were removed from his ankle),
he was kept in solitary confinement at the Ocho Rios police station, without being
able to see a relative or a lawyer. When he was told that he would be placed on an
identification parade, he protested that he was without legal representation. With
respect to the conduct of the trial, Mr. Barrett claims, without further substantiating his
claim, that the preparations for his defence were inadequate. He submits that he had
no contact with his lawyer between the date of his conviction in July 1978 and the
date of the issue of the warrant for his execution in November 1987. Letters
addressed to this lawyer went unanswered.
With respect to the conditions of detention on death row, Mr. Sutcliffe submits that he
was attacked by warders on several occasions. The most from his cell and beat him
with batons and iron pipes until he lost consciousness. He was then locked in his cell
for over 12 hours without either medical attention or food, despite the fact that he had
sustained the fracture of an arm and other injuries to legs and ribs. It was only on the
following day that he was taken to the hospital. He claims that he had to wait until his
arm had healed before he could write to the Parliamentary Ombudsman about the
incident. The Ombudsman promised to take up the matter, but the author states that
he did not receive any further communication from him. Moreover, warders have
allegedly threatened him so as to induce him not to pursue the matter further.
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Counsel further submits that the time spent on death row, over 13 years. amounts to
cruel, inhuman and degrading treatment within the meaning of article 7 of the
Covenant. In this context, it is argued that the execution of a sentence of death after a
long period of time is widely recognized as cruel, inhuman and degrading, on account
of the prolonged and extreme anguish caused to the condemned man by the delay.
This anguish is said to have been compounded by the issue of death warrants to the
authors in November 1987.
As to the delays encountered in the judicial proceedings in the case, counsel notes
that in spite of repeated requests for legal aid, it was only in 1988 that the authors
succeeded in obtaining the pro bono services of a London law firm, for purposes of
petitioning the Judicial Committee of the Privy Council. Several court documents
deemed necessary for the preparation of the Petition for special leave to appeal could
not be obtained until March 1991: accordingly, such delays as did occur cannot be
attributed to the authors.
The State party contended that the communications were inadmissible on the ground
of non-exhaustion of domestic remedies, since the authors retained the right to
Petition the Judicial Committee of the Privy Council for special leave to appeal.
On 21 July 1989, the Committee declared the communications admissible, noting that
the authors' appeal had been dismissed in 1981 and that, in the circumstances, the
pursuit of domestic remedies had been unreasonably prolonged. However, during its
forty-second session, the Committee further considered the communications; it
decided to request additional information and clarifications from the State party in
respect of the authors' allegations under articles 7 and 10 of the Covenant.
The Committee notes that, several requests for clarifications notwithstanding, the
State party has essentially confined itself to issues of admissibility. Article 4,
paragraph 2, of the Optional Protocol enjoins a State party to investigate in good faith
and within the imparted deadlines all the allegations of violations of the Covenant
made against it and its judicial authorities, and to make available to the Committee all
the information at its disposal. In the circumstances, due weight must be given to the
authors' allegations, to the extent that they have been sufficiently substantiated.
treatment on death row, and that, far from investigating the matter, prison officers
have urged him not to pursue the matter further.
Concerning the first allegation, the author's contention that he was placed on the
identification parade in "a battered state" has not been further substantiated;
moreover, it transpires from the judgement of the Court of Appeal that the author's
allegation was before the jury during the trial in July 1978. In that respect, therefore,
the Committee cannot conclude that a violation of articles 7 or 10 has occurred. As to
alleged ill-treatment in November 1986, however, the author's claim is better
substantiated and has not been refuted by the State party. The Committee considers
that the fact of having first been beaten unconscious and then left without medical
attention for almost one day, in spite of a fractured arm and other injuries, amounts to
cruel and inhuman treatment within the meaning of article 7 and, therefore, also
entails a violation of article l0, paragraph 1. In the Committee's view it is an
aggravating factor that the author was later warned against further pursuing his
complaint about the matter to the judicial authorities. The State party's offer, made in
January 1992, that is over five years after the event, to investigate the claim "out of
humanitarian considerations" does not change anything in this respect.
The Human Rights Committee, acting under article 5, paragraph 4, of the
International Covenant on Civil and Political Rights, is of the view that the facts
before it disclose a violation of articles 7 and 10, paragraph 1, of the
International Covenant on Civil and Political Rights in respect of Mr. Sutcliffe.
In accordance with the provisions of article 2 of the Covenant, the State party is under
an obligation to take effective measures to remedy the violations suffered by Mr.
Sutcliffe, including the award of appropriate compensation, and to ensure that similar
violations do not occur in the future.

ISSUE: Whether or not there has been a violation of Articles 7 and 10 (1) of the
ICCPR

HELD: Concerning the allegations of ill-treatment during detention and on death row,
the Committee deems it appropriate to distinguish between the individual claims put
forth by the authors. While Mr. Barrett has made claims that might raise issues
under articles 7 and 10, paragraph 1, of the Covenant, in particular concerning
alleged solitary confinement at the Ocho Rios police station, the Committee
considers that these have not been further substantiated and finds no violation
of article 7 or article 10, paragraph 1.

Mr. Sutcliffe, on the other hand, has alleged that he was subjected to beatings in the
course of the preliminary investigation, and that he suffered serious injuries at the
hand of prison officers. He submits that he unsuccessfully tried to seize the prison
authorities and the Parliamentary Ombudsman of his complaint in respect of ill-