Prolonged Impunity as a Continuing Situation of Torture or Ill-Treatment? Applying a Dignity Lens to So-Called ‘Historical’ Cases

Abstract

Around the world many survivors of so-called ‘historical’ abuses persist in seeking truth and justice decades after rights violations have been perpetrated. Recognising that prolonged impunity may cause victims’ suffering to intensify over time, the United Nations Committee Against Torture stated in its General Comment No. 3 that victims of torture or ill-treatment must be enabled to access comprehensive redress regardless of when the violation occurred. However, it seems far from settled in international human rights law that there is a substantive right to redress for torture or ill-treatment regardless of when in the past the violation occurred. In cases before several international human rights treaty bodies (and domestic courts), claims concerning ‘historical’ rights violations have been rejected on the basis that the adjudicating body does not have temporal jurisdiction or, if temporal jurisdiction is not in issue, because the claimant is guilty of ‘delay’. This article proposes that a focus on the dignity of survivors could enable the international human rights treaty bodies and other actors to recognise the existence of a ‘continuing situation’ of torture or ill-treatment where impunity for the initial substantive violation is prolonged. Such an understanding could provide the doctrinal basis for recognising a substantive right to redress for torture or ill-treatment even where the initial torture or ill-treatment occurred prior to the coming into force of the relevant treaty obligation, and indefinitely. The article illustrates its arguments using the case study of impunity for the systematic abuse of girls and women in Ireland’s Magdalene Laundries.