WELL-PROTECTED ENEMIES OF MANKIND

Abstract

[T]he torturer has become—like the pirate and the slave trader before him—hostis humani generis, an enemy of all mankind. (Kaufman J. in Filártiga v. Peña-Irala 630 F. 2d 876, 890 (2d Cir.,1980)).The European Court of Human Rights’ decision in Al-Adsani v. UK (2002) 34 E.H.R.R. 273 does not openly reject the view that torturers have become enemies of all mankind. It does however affirm that they can protect themselves abroad with a magic weapon that neither pirates nor slave traders usually possessed. This is the shield of sovereign immunity, which prevents State torturers from being tried before courts of a foreign State. In Al-Adsani, the ECHR, by a bare majority of 9 votes to 8, decided that States and their officials can invoke immunity even where they are accused of breaches of peremptory norms of international law (ius cogens), i.e. norms which, by definition, admit of no derogation (Article 53 of the Vienna Convention on the Law of Treaties).