C. The Respondent Might Not Take Measures Derogating From Their International Obligations

The Respondent may claim that in accordance with Article 4 of the International Covenant on Civil and Political Rights¹⁹, they might take measures derogating from their obligation under the Covenant. However, point 2 of Article 4 of the present Covenant states, that “No derogation from articles 6, 7, 8 (par. 1 and 2), 11, 15, 16 and 18 may be made under this provision”²⁰. Article 7 of the Covenant contains provision, that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.²¹ In particular, Rotania could not expose the mentioned persons to torture or to cruel, inhuman or degrading treatment or punishment. Consequently, Rotania was restricted by international law to undertake certain measures regarding Samara Penza and other Adovan citizens. Since Rotania has undertaken the above mentioned measures, it infringed its obligations under international law and must be liable for the committed crimes.

Moreover, following the logic applied in Kalashnikov v. Russia case, decided by the European Court on Human Rights, cruel and inhumane treatment constitutes the violation of international law. In Kalashnikov v. Russia case, the prisoners were subjected to the similar circumstances as in the present case. Among them there were the deprivation of sleep, the provision of inadequate food, bright light, loud music (the TV-set was on all the days long) etc. These acts were considered by the European Court to be infringement of the European Convention on Human Rights (article 3), that prohibits torture and other cruel, inhumane, degrading treatment. ²² Samara Penza and other Adovan citizens were subjected to similar inhumane treatment and constituted violation of international law.

D. The Actions Of Rotania Are Contrary To The Rules Of International Law

By detention and treatment of Samara Penza and other Adovan citizens Rotania violated some of the principles contained in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by General Assembly resolution 43/173 of 9 December 1988. Particularly, the first principle of this Body states that “All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person”. According to the Compromis and the testimony of Zoran Makar (Comp.33) the conditions, that the detainees were held under, were “several levels beyond Hell”, with certainty we may conclude, that the Samara Penza and other Adovan citizens were not treated in a humane manner and with respect for the inherent dignity of the human person.

Principle 5 of the Body refers to territorial effect of these principles: “1. these principles shall be applied to all persons within the territory of any given State, without distinction of any kind, such as race, colour, sex, language, religion or religious belief, political or other opinion, national, ethnic or social origin, property, birth or other status”²³. According to this principle, Rotania could not cite the fact that the detainees were held in custody in other country to justify non-application of the mentioned Body; in addition Rotania could not vary the standards of keeping the detainees on the basis of their national status.