On 1 December 2021, the Chamber of Deputies adopted the final report of the Parliamentary Commission of Inquiry (hereinafter, Commission) on the death of Giulio Regeni.[1] The Commission had been established by the same Chamber on 30 April 2019 to, among other things, “gather the elements necessary to clarify all the responsibilities and circumstances that led to the death of Giulio Regeni”.[2]
The Commission’s final report includes interesting considerations around the content and nature of the right to life and the prohibition of torture. Given the multi-party composition of the Commission and the formal adoption of its report by the Chamber of Deputies, statements concerning the scope and nature of, in particular, customary human rights law included in the report are evidence of State practice and opinio juris.
Right to Life
The Commission’s Report characterizes the right to life as a peremptory norm of international law (jus cogens), which cannot be derogated from and is owed by the State to the international community as a whole (erga omnes):
It is a fundamental norm of international law with jus cogens nature, absolutely non-derogable and hierarchically superior to other norms. Its violation triggers the responsibility of the territorial State towards all other States and not just towards the State which the person who has been deprived of their life belongs to.[3]
While the customary nature of the right to life seems to be undisputed,[4] whether it qualifies as a peremptory norm of international law may still be considered somewhat controversial. The International Law Commission (ILC) did not include the right to life in its draft list of peremptory norms of international law in 2019.[5] However, there seems to be ample evidence to support the position which does characterize the right to life – in particular, the prohibition of all arbitrary deprivations of life – as a jus cogens norm.[6]
Prohibition of Torture
By contrast, uncontroversial is the jus cogens nature of the prohibition of torture,[7] which the Commission characterized as
a jus cogens norm which generates erga omnes duties. Its violation triggers the responsibility of the territorial State towards all other States. The prohibition of torture and other inhuman or degrading treatments constitutes an absolute obligation, unlimited and unrestricted, which cannot be derogated from in situations of war or national emergency.[8]
The Commission’s observations in relation to the prohibition of torture broadly align with the prevalent opinion of States, international organizations and courts.[9] However, it is worth highlighting that it is somewhat more debatable whether the peremptory nature of the prohibition extends not only to torture but also to other cruel, inhuman, or degrading treatment. In the Belgium v. Senegal case, for example, the International Court of Justice explicitly attributed such characteristics only to the prohibition of torture.[10] Nonetheless, the existing practice of international organizations and courts seems to support the position of the Commission.[11]
Positive Obligations
Both the right to life and the prohibition of torture entail a negative and positive obligation. The negative obligation binds the State not to arbitrarily deprive individuals of their life and not to torture them or inflict any cruel, inhuman, or degrading treatment upon them. The positive obligation requires the State to, on the one hand, protect individuals through the adoption and enforcement of legislation and, on the other hand, to fulfil these rights by creating the conditions that facilitate their full enjoyment. The Report characterizes the State’s positive obligation to prevent violations of the right to life and of the prohibition of torture by non-State actors as follows:
Should it be impossible to prove the responsibility of the National Security agents of other Egyptian security forces because the torture and killing [of Giulio Regeni] were committed by private individuals, it does not mean that Egypt could not be held responsible. The Egyptian State, through its competent agencies, should have taken all necessary measures required by the circumstances to prevent such violations. The Egyptian State should have acted, if it knew or ought to have known, in light of the circumstances, that there was a risk that these abuses would be perpetrated against Regeni.[12]
The Commission further elaborated on the procedural standards triggered by the violation of the substantive content of the right to life and the prohibition of torture.
[…] the territorial State – that is, Egypt – shall investigate promptly and effectively cases of torture or arbitrary deprivation of life occurred on its territory, seeking to identify, apprehend, try, and punish the responsible individuals.
[…] the State shall conduct effective and adequate investigations through independent and impartial organs, without delay or acquiescence on the part of investigative authorities, and investigations must be prompt and in-depth.[13]
By dint of its reference to the “international practice and case law”,[14] the Commission further explained that the procedural obligation to investigate allegations of arbitrary deprivation of life or torture should be considered customary in nature. This reflects the commonly held view that the customary right to life and prohibition of torture indeed encompasses the duty to investigate and punish violations of such rights.[15]
In sum, the Commission’s Report provides a comprehensive overview of the existing State obligations in relation to the right to life and the prohibition of torture. It shows that Italy’s position on the scope of the customary content of the right to life and prohibition of torture does not differ from that which is accepted by the international community.
Piergiuseppe Parisi
A quotable version of this post was published in the Italian Yearbook of International Law: Parisi, “The Report of the Parliamentary Commission of Inquiry on the Death of Giulio Regeni”, IYIL XXXII (2022), 2023, pp. 519-522; available here.
[1] Camera dei Deputati, Commissione Parlamentare d’Inchiesta sulla Morte di Giulio Regeni (XVIII Legislatura) Doc. XXII-bis N. 1, Relazione sull’attività svolta dalla Commissione (hereinafter, “Report”).
[2] Camera dei Deputati, Delibera 30 aprile 2019, Istituzione di una Commissione parlamentare di inchiesta sulla morte di Giulio Regeni, Art. 1(2)(a).
[3] Report, cit. supra note 1, p. 358.
[4] United Nations (UN) Committee on Civil and Political Rights, General Comment No. 36, UN Doc. CCPR/C/GC/36 (2019), para. 2; Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, UN Doc. A/HRC/23/47 (2013), para. 36; Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, UN Doc. A/HRC/20/22 (2012), para. 41; Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, UN Doc. A/HRC/17/28 (2011), para. 43; Noah Kazingachire, John Chitsenga, Elias Chemvura, and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v. Zimbabwe, No. 295/04, 12 October 2013, para. 137; Elgizouli (Appellant) v. Secretary of State for the Home Department (Respondent), [2020] UKSC 10, para. 14 (per Lady Hale).
[5] Report of the International Law Commission, Seventy-first session (29 April-7 June and 8 July-9 August 2019), UN Doc. A/74/10, p. 274; Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur, UN Doc. A/CN.4/727 (2019), paras. 128-130.
[6] See, e.g., UN Committee on Civil and Political Rights, General Comment 29, UN Doc. CCPR/C/21/Rev.1/Add.11 (2001), para. 11; Inter-American Commission on Human Rights, Mario Alfredo Lares-Reyes et al. v. United States, Case 12.379, 27 February 2002, Report No. 19/02, para. 46, fn. 23; Inter-American Commission on Human Rights, Victims of the Tugboat ‘13 de Marzo’ v. Cuba, Case 11.436, 16 October 1996, Report 47/96, para. 79; African Commission on Human and Peoples’ Rights, General Comment 3 on the African Charter on Human and Peoples’ Rights: The right to life (art. 4), 2015, para. 5.
[7] Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, ICJ Reports, 2012, p. 422 ff., para. 99.
[8] Report, cit. supra note 1, p. 358.
[9] By way of example, see Report of the International Law Commission, cit. supra note 5, p. 207; Fourth report, cit. supra note 5, paras. 69-77; Al-Adsani v. the United Kingdom, Application No. 35763/97, Grand Chamber, Judgment of 21 November 2001, para. 61; Inter-American Court of Human Rights (IACtHR), Women Victims of Sexual Torture in Atenco v. Mexico, Judgment of 28 November 2018, Series C, No. 371, para. 178; UN Committee against Torture, General Comment No. 2, UN Doc. CAT/C/GC/2 (2008), para. 1; Constitutional Court of South Africa, National Commissioner of the South African Police Service v. the Southern African Human Rights Litigation Centre and Others, [2014] (12) BCLR 1428 (CC), para. 4.
[10] Cit. supra note 7.
[11] UN Human Rights Council, Torture and other cruel, inhuman, or degrading treatment or punishment, UN Doc. A/HRC/RES/8/8 (2008), p. 4; ICTY, Prosecutor v. Blaškić, Case No. IT-94/14-A, Judgment of 29 July 2004, para. 143; Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, Judgment of 17 December 2004, para. 106; UN Committee on Civil and Political Rights, General Comment No. 24, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994), para. 8.
[12] Report, cit. supra note 1, p. 359.
[13] Ibid., pp. 359-360.
[14] Ibid., p. 360.
[15] Filartiga v. Pefia-Irala, 630 F.2d 876, 882-884 (2nd Cir. 1980); Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, UN Doc. A/67/275 (2012), para. 105; see also Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime”, The Yale Law Journal, 1991, p. 2537 ff., pp. 2582-2585; Alston, “The CIA and Targeted Killings Beyond Borders”, Harvard National Security Journal, 2011, p. 283 ff., p. 314.
Italy's Diplomatic and Parliamentary Practice on International Law 