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Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty

McGregor, L (2007) 'Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty.' European Journal of International Law, 18 (5). pp. 903-919. ISSN 0938-5428

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Abstract

In recent judgments, the claim has been made that immunity, as a procedural rule, does not affect substantive norms but merely diverts the claim to an alternative forum. As such, the claim is made that immunity does not equate to impunity. Yet, within a context in which the courts of the state in which the torture allegedly took place are very often unavailable and diplomatic protection does not amount to an alternative means of settlement, the provision of immunity in foreign courts contributes to, justifies, and may even constitute the resulting impunity. At the same time, the framework within which immunity is addressed tends to lend itself to such a result. Courts routinely cite sovereign equality, par in parem non habet jurisdictionem, dignity, and comity as legitimate bases on which to grant immunity without considering the evolution of these doctrines. As a result, the contemporary application of immunity is premised on 1648 understandings of doctrines such as sovereignty, thus positioning the state above the law, a result which renders the prohibition of torture impotent.

Item Type: Article
Subjects: K Law > K Law (General)
Divisions: Faculty of Humanities
Faculty of Humanities > Law, School of
SWORD Depositor: Elements
Depositing User: Elements
Date Deposited: 20 Mar 2013 15:41
Last Modified: 06 Jan 2022 13:31
URI: http://repository.essex.ac.uk/id/eprint/5873

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