002/19-09-2007-ECCC-OCIJ-PTC
6.2.
Whether files and documents containing “confessions” obtained by torture
may include material that is admissible; and
6.3.
Whether statements obtained by torture may be used in the Chambers for
purposes other than as evidence that the statements were made.
I. Statements Obtained By Torture May be Used (As Evidence that the Statements were
Made) Against Any Person Accused of Torture
7. According to rules of general international law pertaining to the interpretation of
international treaties, a treaty provision should be understood in accordance with “the
natural meaning of the words”3 therein or their “ordinary meaning”.4
8. Article 15 of the UNCAT provides: “Each State Party shall ensure that any statement
which is established to have been made as a result of torture shall not be invoked as
evidence in any proceedings, except against a person accused of torture as evidence that
the statement was made.”
9. In view of this Article’s plain and clear language, the only pertinent questions are, first,
whether or not the person in question has been accused of torture (this will be dealt with
in Part I); and second, whether the statement is presented only for the purpose of
demonstrating that it was made (as part of the proof of the act of torture through which it
was procured) and not in any way for the truth of its contents (see Part III below).
10. As a preliminary point, it is a fundamental and undisputed principle of criminal law in
general, and international criminal law in particular, that responsibility for crimes is not
limited to those who have physically committed the criminal act; rather, it extends, among
others, to those who have ordered, solicited or induced the commission of a crime, or
aided, abetted or otherwise assisted in its commission, as the case may be.5
11. According to the doctrine of “command responsibility”, senior officials can be held
criminally responsible for the acts of their subordinates, where they were in a position to
prevent or punish the subordinates' crimes and failed to do so, irrespective of whether the
senior official himself gave an order to the commit the crime in question.6 Equally, low3
This phrase was used by the Permanent Court of International Justice regarding the term ‘établis’ in the Lausanne Agreement
in Exchange of Greek and Turkish Populations Case, Advisory Opinion of 21 February 1925, PCIJ, Series B-10, p. 19.
4
Vienna Convention on the Law of Treaties (1969), Art. 31(1).
5
See e.g., Arts. 6(1), 6(2) of the Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES 955, adopted
by Security Council on 8 Nov. 1994; Arts. 7(1), 7(2) of the Statute of the International Tribunal for the Former Yugoslavia,
adopted by Security Council on 25 May 1993, UN Doc. S/RES/827 (1993); Art. 25(3) of the Rome Statue of the
International Criminal Court, adopted on 17 July 1998 (A/CONF.183/9), entered into force 1 July 2002.
6
For example, the UN Committee against Torture stated that it “considers it essential that the responsibility of any superior
officials, whether for direct instigation or encouragement of torture or ill-treatment or for consent or acquiescence therein,
Amicus Curie Application (AI, ICJ, REDRESS)
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