Joanna Harrington is a Professor with the Faculty of Law and an Associate Dean with the Faculty of Graduate Studies and Research at the University of Alberta in Canada.
As I write this post, college instructor and former politico Léon Mugesera has, at last, been placed on a plane to Rwanda by Canadian government officials to face charges of inciting genocide stemming from an inflammatory anti-Tutsi speech delivered almost twenty years ago, and which was replayed during the height of the genocide. (Twitter has been used by Rwanda’s Foreign Minister to confirm that Mugesera is en route to Kigali.) For many Canadians – and many Rwandans – the departure of this accused genocidaire will not be mourned, with many saying that he should never have been admitted into Canada in the first place. But the latest round in the Mugesera saga does raise concerns for the domestic significance, and thus impact, of the individual complaints procedure found replicated in each of the UN human rights treaties, as well as the need for greater transparency and detailed guidance from the UN human rights treaty bodies themselves with respect to the issuance of requests for interim measures.
The Mugesera saga
After Mugesera’s speech in November 1992, Rwandan authorities did seek the equivalent of an arrest warrant, but Mugesera had fled the country, and by mid-1993, he had secured permanent residence for himself and his family in Canada. Two years later, Canada’s Minister of Immigration and Citizenship commenced proceedings to send Mugesera back to Rwanda, having learnt of the allegations against him. Under Canadian law, a permanent resident (but not a citizen) may be deported if it is determined that before or after being granted permanent residency, the individual committed a criminal act or offence. In this case, the speech was the alleged criminal act that was committed (and not disclosed), with the speech said to constitute an act of incitement to murder, hatred and genocide, and a crime against humanity. Several years of legal proceedings then ensued, culminating with a unanimous Supreme Court of Canada decision in 2005, which also reproduces Mugesera’s speech as an appendix for all to read.
The speech, however, is not what is at issue in the latest installment in the Mugesera saga. What is at issue appears to be the issuance of a request for interim measures by the Committee Against Torture, asking Canada to hold off deporting Mugesera while a claim is pending before the Committee that Mugesera will face torture in Rwanda. (I say “appears to be” as many reports simply state that an amorphous “UN” has asked Canada to hold off deporting Mugesera, which does no favours for the UN’s reputation among its critics, while those reports that specify the Committee Against Torture, do not use the interim measures terminology.)
Obligations under the Torture Convention
Canada has been a “party” (and not simply a “signatory” despite journalistic reports) to the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment since 1987, and it is this treaty which brought into being the 10-person body known as the Committee Against Torture. Canada is also one of 64 states that has voluntarily declared its acceptance of the Committee’s competence to “receive and consider” complaints from persons alleging to be victims of Convention violations, as set out in article 22. It is the choice of these 64 states to opt-in to an international process for individual complaints, and it is this voluntary opt-in that provides the international legal basis for the consideration of claims made by individuals within the jurisdiction of Canada, including non-nationals, alleging violations of the Torture Convention. Many of the cases lodged against Canada (and against other states) typically arise within an extradition or deportation context and involve the absolute prohibition found in article 3 on sending a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
For many years, Canadian officials took heed of this prohibition, and Canada’s treaty obligations, by waiting for the situation in Rwanda to improve so as to ensure that there would be no real or probable risk of torture were Mugesera to be returned. After six years of evaluation, Canada had decided that there was no risk, with one of the recent flurry of decisions relating to this case indicating that on 6 December 2011, Mugesera received an 80-page decision outlining why the Canadian government believed that he would not face significant risks if returned to Rwanda (see para 4). There is also mention in the judgment of Rwanda having provided assurances, but no copies of these assurances appear to be publicly available. The most recent twist in the saga was a communication lodged with the Committee Against Torture, with media reports suggesting that the Committee has issued a request to halt the deportation, although again no copy is made publicly available and no notice is posted on the Committee’s website.
Interim measures requests
States, in their wisdom and at their choice when drafting the Torture Convention, gave the Committee Against Torture the power to establish its own Rules of Procedure (see article 18(2)), and the Committee has indeed adopted extensive Rules of Procedure to govern its proceedings (UN Doc. CAT/C/3/Rev.5). Buried within these rules is Rule 114(1), which provides that the Committee “may transmit to the State party concerned, for its urgent consideration, a request that it take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of alleged violations.”
While wrapped in the niceties of diplomatic language, a request for interim measures is essentially a request for a stay of proceedings while a matter is pending for consideration before the Committee. As I have argued in the past: “Similar provisions can be found in the procedural rules for many international courts, commissions, and committees, and so it is hardly surprising that the [Committee Against Torture] would recognize the need for such a rule to protect the interests of the parties and to facilitate the proper conduct of the proceedings pendente lite. (J. Harrington, “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill LJ 55 at 66.) It’s clearly not good practice to change the situation as between the parties to a dispute, once that dispute has been lodged with the forum that both parties have agreed to use.
Interim measures requests have a protective purpose, to preserve an individual’s life or physical integrity. They are not issued automatically, as a matter of course, (although this was a criticism made against the Committee Against Torture in the past), and many states do abide by interim measures requests in light of their protective purpose and rationale. A quick review of the Committee’s most recent annual suggests that a case has to be made to secure an interim measures request, with only 24 out of 37 requests for interim measures being granted during the most recent reporting period (para. 89). Moreover, as is made plain in Rule 114(3), a state can provide information to rebut the Committee’s request for interim measures, making a convincing case for no request to be issued, or for an interim measures request to be revoked as a result of further information provided to the Committee by the state.
In the Mugesera case, rather than publicly rebutting whatever grounds underpin the issuance of the yet-to-be-released interim measures request, by using, for example, the material contained in the 80-page decision mentioned in one recent judgment, or by disclosing a copy of Rwanda’s assurances, Canada’s lawyers have opted instead for a form over substance approach. They argue that interim measures requests carry no legal weight and that a treaty ratified by Canada does not have domestic effect unless transformed into domestic law. I call this “form over substance” since it emphasizes the non-binding nature of what takes place within the UN human rights bodies, rather than focusing on whether there is a substantive risk of torture for Mugesera.
It is also a disappointing response, because in the Canadian case touted for the proposition that interim measures requests are not binding for Canada, known as Ahani v. Canada (Attorney General), counsel for the applicant, the Crown and Amnesty International, failed to draw the court’s attention to the turning-point decision of the Human Rights Committee in Piandiong v. Philippines, holding that an indication of interim measures is effectively binding on a state party. For further discussion of Piandiong’s importance, see Gino J. Naldi, “Interim Measures in the UN Human Rights Committee” (2004) 53:2 ICLQ 445-454. The court also failed to consider the view of the Judicial Committee of the Privy Council in Lewis v. Attorney General of Jamaica, (2000),  2 AC 50, that individuals must be entitled to a stay of proceedings while a petition is pending for consideration before an international human rights body, even when that body is not a court and does not issue judgments, on the grounds of due process. The non-binding of the individual complaints procedure before an international human rights body does not ipso facto make the rules governing that procedure to be non-binding. Otherwise, we could ignore all the procedural rules concerning time limits and replies.
Canada’s response also suggests a lack of nuance in reconciling the domestic with the international, with nuance being necessary to give any of the individual complaints procedures before the various UN human rights treaty bodies any real significance within a state. Canada has also previously stated that it “fully supports the important role mandated to the treaty bodies, such as the Committee Against Torture, and gives careful consideration to the interim measures requests issued by them.” Some indication of that careful consideration would be welcome, rather than resorting to form over substance, particularly since Canada has been warned by the Committee when it previously failed to abide by a previous interim measures request that in voluntarily accepting the Committee’s competence to hear individual complaints, Canada is viewed as having undertaken an obligation to cooperate with the Committee in good faith in applying the procedure (see TPS v. Canada).
Whatever one’s views on the merits of the Mugesera claim, a formalistic disregard for an interim measures request sets a poor example for other states who may wish to follow Canada’s path, notwithstanding a strong substantive case showing a real risk to life or limb for an individual.
Criticism for the treaty bodies
But perhaps this lack of state support for interim measures requests also reveals a need for efforts at the international level, including efforts to tighten the grounds for issuing such requests. At the very least, greater transparency is needed from the human rights treaty bodies in order to judge the information being marshaled in support of an interim measures request. There is, however, the concern that some have used an interim measures application as a last-ditch effort to stall for extra time or as an act of grandstanding to obtain publicity for the cause. Last year, the European Court of Human Rights acknowledged what it called “an alarming rise in the number of requests for interim measures” (having experienced a 4000% increase in interim measures requests for 2006-2010), and expressed concern about the “risk that the small minority of applicants who do face a genuine threat to life and limb in the country of destination will not have their cases examined in time to prevent removal.” The Court has also issued a practice direction indicating that applications for interim measures must be individuated, fully reasoned, accompanied by all relevant documentation, including the domestic court decisions, and sent in good time before the expected date of removal. Similar guidance could be developed and relied upon at the UN level.