McGregor, L (2007) Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty. European Journal of International Law, 18 (5). pp. 903-919. DOI https://doi.org/10.1093/ejil/chm048
McGregor, L (2007) Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty. European Journal of International Law, 18 (5). pp. 903-919. DOI https://doi.org/10.1093/ejil/chm048
McGregor, L (2007) Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty. European Journal of International Law, 18 (5). pp. 903-919. DOI https://doi.org/10.1093/ejil/chm048
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 |
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Subjects: | K Law > K Law (General) |
Divisions: | Faculty of Arts and Humanities Faculty of Arts and Humanities > Essex Law School |
SWORD Depositor: | Unnamed user with email elements@essex.ac.uk |
Depositing User: | Unnamed user with email elements@essex.ac.uk |
Date Deposited: | 20 Mar 2013 15:41 |
Last Modified: | 25 Oct 2024 15:47 |
URI: | http://repository.essex.ac.uk/id/eprint/5873 |