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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.8 The Convention as a Basis for Extradition

Roland Schmidt

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
19 December 2019
ISBN:
9780198846178

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 11 December 2023

Subject(s):
Torture — Extradition and mutual assistance — Treaties, interpretation — Territoriality

(p. 292) Article 8  The Convention as a Basis for Extradition

  1. 1.  The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

  2. 2.  If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

  3. 3.  States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.

  4. 4.  Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.

1.  Introduction

1  The purpose of the Convention of avoiding safe havens for torturers can best be achieved by a clear obligation of the forum State to prosecute any suspected perpetrator of torture present in any territory under its jurisdiction and by facilitating the possibility of extradition from the forum State to the territorial or national State.1 (p. 293) Article 8 seeks to achieve the second aim by removing, as far as possible, legal obstacles to extradition. It establishes an obligation to treat torture as an extraditable offence in bilateral or multilateral extradition treaties between States parties and an obligation to recognize torture as an extraditable offence in domestic law. In addition, Article 8 authorizes States parties to consider the Convention as a legal basis for extradition and establishes a legal presumption of equality between the principles of territoriality and nationality.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

2  Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Hijacking Convention, 16 December 1970)2

Article 8

  1. 1.  The offence shall be deemed to be included as an extraditable offence in any extradition treaty existing between Contracting States. Contracting States undertake to include the offence as an extraditable offence in every extradition treaty to be concluded between them.

  2. 2.  If a Contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another Contracting State with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offence. Extradition shall be subject to the other conditions provided by the law of the requested State.

  3. 3.  Contracting States which do not make extradition conditional on the existence of a treaty shall recognize the offence as an extraditable offence between themselves subject to the conditions provided by the law of the requested State.

  4. 4.  The offence shall be treated, for the purpose of extradition between Contracting States, as if it had been committed not only in the place in which it occurred but also in the territories of the States required to establish their jurisdiction in accordance with Article 4, paragraph 1.

3  IAPL Draft (15 January 1978)3

Article X (Extradition)

  1. 1.  Where a Contracting Party receives a request for extradition from a Contracting Party having prior or concurrent jurisdiction, it shall grant extradition of persons accused of torture in accordance with its laws and treaties in force and subject to the provisions of this Convention.

  2. 2.  In the absence of a treaty of extradition with a requesting Contracting Party, the Contracting Parties undertake to extradite on the basis of this Convention.

  3. 3.  Contracting Parties which do not make extradition conditional on the existence of a treaty shall recognize torture as an extraditable offence.

(p. 294)

Article XII (Torture not a Political Offence)

For the purposes of this Convention, torture shall not be deemed a political offence

4  Original Swedish Draft (18 January 1978)4

Article 14

Instead of instituting criminal proceedings in accordance with paragraph 1 of Article 11, a State Party may, if requested, extradite the alleged offender to another State Party, which has jurisdiction over the offence in accordance with Article 8.

5  United States Draft (19 December 1978)5

  1. 1.  To the extent that the offences set forth in articles 1 and 2 are not listed as extraditable offences in any extradition treaty existing between States Parties, they shall be deemed to be included as such therein. States Parties undertake to include those crimes as extraditable offences in every future extradition treaty to be concluded between them.

  2. 2.  If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may, at its option, consider this Convention as the legal basis for extradition in respect of those crimes. Extradition shall be subject to the procedural provisions and the other conditions of the law of the requested State.

  3. 3.  States Parties which do not make extradition conditional on the existence of a treaty shall recognize those offences as extraditable offences between themselves subject to the procedural provisions and the other conditions of the law of the requested State.

  4. 4.  Each offence under article 1 or article 2 shall be treated, for the purpose of extradition between States Parties, as if it had been committed not only in the place in which it occurred but also in the territories of the States required to establish their jurisdiction in accordance with articles 10, paragraph 1.

6  Revised Swedish Draft (19 February 1979)6

Article 8

  1. 1.  The offences referred to in Article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

  2. 2.  If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it [may] [shall] consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

  3. 3.  States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.

  4. (p. 295) 4.  Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.

2.2  Analysis of Working Group Discussions

7  Given that some States can only extradite a person on the basis of a treaty obligation to this effect, Sweden considered it desirable to make the Convention itself the basis for the extradition of suspected torturers. Provisions to this effect also appear in Article 8 of the 1971 Hague Convention for the Suppression of Unlawful Seizure of Aircraft,7 Article 8 of the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,8 Article 8 of the 1973 New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents,9 and Article 10 of the 1979 New York Convention against the Taking of Hostages.10

8  In comments on specific articles Austria considered that Article 14 of the original Swedish draft and Article X(2) of the IAPL draft were complementary and might accordingly be combined. Austria also felt that the wording ‘may [ … ] extradite’ should be reconsidered and that in the case of an already existing extradition treaty an obligation to extradite should not be superseded by the optional possibility of extraditing as provided in Article 14. Austria was of the opinion that a more stringent obligation might be created, for example by replacing the word ‘may’ by ‘shall’ in that article.

9  The United States proposed that the ‘prosecute or extradite’ provision be modelled on the language used in the Protection of Diplomats Convention. France was of the opinion that ‘if requested’ should be replaced by the words ‘at the request of another State Party’, and that the words ‘in accordance with its legislation’ should be added after the word ‘extradite’. With regard to extradition, the French delegation was of the opinion that the principle of non-extradition for political offences should be maintained and that Article 14 was acceptable because of its flexibility.

10  Switzerland feared that the motives for acts of torture might be such as to permit torturers to invoke the political nature of their actions as an argument against their extradition. It also feared that a State of refuge might be able, for the same reasons, to refuse the extradition of a person charged with torture. The Swiss Government therefore considered it advisable to include in the draft Convention a provision similar to that proposed by the IAPL in its Article XII, to the effect that acts of torture shall not be considered political offences, suggesting that this provision might be included in Article 14 in the form of an additional paragraph reading: ‘For the purposes of this Convention, the acts defined in article [ … ] shall not be deemed to be offences of a political nature.’

(p. 296) 11  Finally, the Swiss Government proposed that the provisions on extradition contained in the Swedish Government’s draft should be supplemented and strengthened by an additional article which would essentially restate the rules set out in Article 8 of the Hague Convention for the Suppression of Unlawful Seizures of Aircraft, of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, and of the New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. Believing that it would be desirable to include an article establishing a legal basis under the Convention for treating torture as an extraditable offence and detailing the relationship between the Convention and present or future extradition treaties, the United States put forward a proposal analogous to the articles in the Hijacking, Sabotage, and Protection of Diplomats Conventions. After informal consultations and taking into account the proposal by the United States, Sweden submitted its revised draft.11

12  Concerning paragraph 2, there was a difference between delegations as to the choice of the wording ‘may’ or ‘shall’. The Working Group therefore adopted the text proposed by Sweden, including the two alternatives in paragraph 2 which were left for further consideration at a later stage.12 Although most delegations felt that the verb should read ‘shall’, some delegations, in particular the United Kingdom and the United States, maintained their position that the verb should read ‘may’. The latter position prevailed in 1982.13 In their commentary on the travaux préparatoires, Burgers and Danelius expressed a certain disappointment when they stated that ‘it remains to be seen to what extent the States concerned will in effect accept the Convention as the basis of extradition’.14

3.  Issues of Interpretation

3.1  Need for Removing Legal Obstacles to Extradition

13  Extradition is the obligatory departure of a person from one State to another, at the request of the latter State, for the purpose of bringing him or her to justice or of implementing a judgment, if the person concerned has already been sentenced and convicted. While expulsion is in the interests of the expelling State for certain purposes, such as national security, public order, the prevention of crime or illegal migration, extradition is in the interest of the requesting State and only for the purpose of criminal justice. Expulsion, extradition, and the involuntary return (refoulement) of a refugee or migrant to his or her country of origin are, in contrast to rendition and similar forms of illegal removal of aliens from one State to another, legal concepts which, if implemented in pursuance of a valid decision reached by a competent authority in accordance with domestic law and respecting the minimum guarantees against arbitrary removals established by international law, a lawful practice between States under international law. Such minimum guarantees include the prohibition of refoulement under Article 3 of the Convention,15 (p. 297) the protection of privacy and family life under Article 17 CCPR, the right to remain in one’s own country under Article 12(4) CCPR, or the procedural rights of aliens to a hearing, an appeal, and proper representation under Article 13 CCPR. In addition to international human rights, refugee, and criminal law, the respective rights and obligations of the requesting and the requested State vis-à-vis each other and in relation to the individual concerned are regulated in various bilateral and multilateral extradition treaties.16 The decision to expel or extradite an individual to another State is, however, regarded as an essential element of State sovereignty, and States are extremely reluctant to accept any legal obligations to expel or extradite.

14  The Convention is based on the desire to combat impunity for the crime of torture and to eliminate safe havens for torturers. This requires the obligation of all States parties to establish jurisdiction without loopholes as well as their obligation to mutual judicial assistance and willingness to extradite alleged torturers to other States with a more convincing jurisdiction. The main purpose of Article 8 is, therefore, to remove, as far as possible, any legal obstacles to extradition and to create the legal possibility for States parties to extradite alleged torturers to other States parties.17 The Committee regularly noted with concern State parties’ failure to enact legislation complying with these obligations under Article 8.18

15  The travaux préparatoires reveal two different legal approaches dominating the drafting process. One is represented by Article X of the IAPL draft, which contains an order of priority among various grounds of jurisdiction19 and an obligation of States parties to extradite the alleged torturer to a State with a stronger jurisdiction. The other is expressed in Article 14 of the original Swedish draft which, rather than establishing a duty to extradite, gives priority to the duty of the State, where the alleged offender is present (the forum State), to prosecute and only provides the forum State with an alternative option, if requested, to extradite. Since this principle of aut dedere aut judicare had already been accepted and developed in a considerable number of anti-terrorism treaties and does not require any legal obligation to extradite, it finally prevailed over the first concept.20

16  The Austrian position21 in the Working Group that both legal approaches are complementary and should, therefore, be combined, and which was later maintained as illustrated by the failure of the Austrian authorities to arrest Mr. Al-Duri in 1999,22 overlooked the different philosophies behind these two approaches. The ‘prosecution approach’ seems more practical insofar as extradition involves a complex and lengthy procedure with many legal obstacles. On the other hand, the ‘extradition approach’ seems more practical as the territorial or national State usually has better access to (p. 298) evidence than a State exercising jurisdiction under the universality or passive nationality principle. With respect to torture, experience shows, however, that the territorial or national State often has no political interest in prosecuting perpetrators of torture, since they acted in accordance with an explicit State policy or at least with the acquiescence of the Government.

17  The ‘extradition approach’ demands that all legal obstacles to effective extradition be removed. This can be seen from the attempts in Article X of the IAPL draft to make the Convention a proper legal basis for extradition and to establish the obligation of States parties to recognize torture as an extraditable offence. Article 14 of the original Swedish draft did not contain any similar provisions. Since the ‘prosecution approach’ of the Swedish draft also recognized the alternative of extradition, it was also essential that the Convention created, as far as possible, the legal possibility to extradite. However, as the majority of the Committee against Torture made clear in its admissibility decision on the case of Rosenmann v Spain, Article 8 does not impose any obligation on a State party to seek an extradition, or to insist on its procurement in the event of a refusal.23

3.2  Article 8(1): Obligation to Treat Torture as an Extraditable Offence in Extradition Treaties

18  Paragraph 1 of Article 8 corresponds almost literally to Article 8(1) of the Hague Hijacking Convention and deals with the relation between the Convention and any existing or future extradition treaties between States parties, whether bilateral or multilateral.

3.2.1  Relevance for Already Existing Extradition Treaties

19  With respect to already existing extradition treaties between States parties, the first sentence provides that the crime of torture shall be deemed to be included as an extraditable offence in such treaties. Article 8 can thus be regarded as an amendment to existing extradition treaties by adding torture to other extraditable offences, if it was not yet covered by the respective treaty. If a given extradition treaty contains a certain list of extraditable offences, the fact that torture is not included shall no longer constitute an obstacle to extradition between States which are parties to both the respective extradition treaty and the Convention. As amendments must be agreed to by all States parties, Article 8(1) has no effect on extradition treaties between States parties to the Convention and non-State parties. If a State which is not a party to the Convention requests from another State which is a party to the Convention, on the basis of their bilateral extradition treaty, which does not include torture as an extraditable offence, the extradition of an alleged torturer who is a national of the requesting State, the requested State must refuse the extradition for lack of a proper legal basis. As soon as the requesting State ratifies the Convention, the requested State is entitled to extradite the person concerned. With respect to multilateral extradition treaties, the relevant provisions must be read differently in relation to States parties and non-State parties.

3.2.2  Relevance for Future Extradition Treaties

20  With regard to future extradition treaties between States parties, the second sentence of Article 8(1) establishes the obligation explicitly to include the crime of torture as an (p. 299) extraditable offence. This is a clear obligation of result in relation to bilateral treaties. For example, in 1997, the Committee congratulated Argentina on bilateral treaties on extradition and judicial assistance recently concluded by the State party which ‘contained provisions consistent with Article 8 of the Convention’.24 With respect to multilateral treaties, the question seems to be less clear. If such treaties are concluded by States parties to the Convention only, the obligation is the same as with respect to bilateral treaties. But if non-States parties to the Convention are parties to such treaties, the obligation of members to the Convention can only be interpreted as an obligation of conduct, ie as an obligation to make a particular effort to convince the others that torture should be included as an extraditable offence. Since the Torture Convention has already been ratified by more than 140 States from all world regions, the risk is fairly small that States parties would be in the minority when a new multilateral extradition treaty is drafted. In reality, most of the modern extradition treaties actually do contain torture as an extraditable offence.25

3.3  Article 8(2): Authorization to Consider the Convention as Legal Basis for Extradition

21  There are different legal traditions regarding extradition. Some States make extradition conditional on the existence of an extradition treaty with the requesting State. In order to avoid States parties to the Convention having to negotiate extradition treaties with all other States parties, the IAPL draft provided in Article X(2) that States parties undertake to extradite on the basis of this Convention. This proposal was taken up in the US draft which, however, changed this obligation into a mere authorization. The formulation that the State party ‘may, at its option, consider this Convention as the legal basis for extradition [ … ]’ was taken from Article 8(2) of the Hague Hijacking Convention. In the Working Group, there was a difference of opinion whether to use the word ‘may’ or ‘shall’.26 While most delegations felt that the verb should read ‘shall’, the final wording of Article 8 retained the word ‘may’.27

22  In practice, this difference is not as important as it may seem. Under the system of universal jurisdiction adopted under the Convention, States parties have no obligation to extradite.28 If a State party which makes extradition conditional on the existence of a treaty receives from another State party with which it has no extradition treaty a request for extradition of an alleged torturer, it has the choice between prosecution and extradition in accordance with Article 7. If it prefers, for whatever reason, to extradite the person, it may consider Article 8(2) CAT as the legal basis. The word ‘shall’ would therefore not change much. Even if it was under the legal obligation to consider the Convention as a legal basis for the extradition, it could nevertheless refuse the extradition request and proceed with prosecution.

23  The last sentence of Article 8(2) confirms that extradition is, in principle, a matter of State sovereignty. Apart from the fact that the requested State has the choice whether or not to extradite, it also has the right to establish further conditions and regulate the (p. 300) procedure to be applied in extradition cases. These rules must comply with the relevant conditions of international law, including the non-refoulement principle.

24  In its consideration of State reports, the Committee against Torture repeatedly took up the issue of extradition proceedings and encouraged States parties to introduce or simplify the provisions within national law regulating extradition.29 In 2004, the Committee noted with appreciation New Zealand’s adoption of the 1999 Extradition Act which reflected previous recommendations of the Committee30 and provides for the extradition to non-Commonwealth countries without the basis of an extradition treaty.31 Similarly, in 1993, members of the Committee wished to receive further information about the application of mutual judicial assistance between Canada and other States, especially with regard to the offence of torture, where no bilateral agreement existed. The representative indicated in response that Canada could cooperate with another country in accordance with those articles regardless of whether bilateral treaties on mutual legal assistance existed. As an example of how the procedure of mutual legal assistance was applied in practice, information was supplied on the assistance given by Canada at the request of Chile in connection with a torture-related prosecution there.32

3.4  Article 8(3): Obligation to Recognize Torture as an Extraditable Offence in Domestic Law

25  Those States parties which do not make extradition conditional on the existence of an extradition treaty can, in the absence of such a treaty, decide on the basis of their domestic legislation which type of offences they consider as extraditable. Article 8(3) establishes an obligation on States parties to include the crime of torture as an extraditable offence in domestic law, at least vis-à-vis other States parties. This obligation corresponds almost literally to Article 8(3) of the Hague Hijacking Convention and was introduced into the drafting of the Convention by Article X(3) of the IAPL draft and the US draft. However, the fact that torture must be recognized as an extraditable offence does not create any obligation on the forum State to extradite in a particular case. It remains free to decide whether or not to extradite an alleged torturer, whose extradition is requested by another State party, and to establish particular conditions for extradition as well as to regulate the extradition procedure. But a State party would violate Article 8(3) if it refuses the extradition of an alleged torturer on the ground that its domestic law does not recognize torture as an extraditable offence. In this regard, the Committee remarked critically in relation to Sierra Leone’s initial State report that the State party’s Extradition Act did not include as required under Article 8(3) the crimes stipulated in Article 4 of the Convention. Furthermore, Sierra Leone had not clarified whether it indeed invoked the Convention against Torture when conducting extradition to States with which it did not entertain an extradition treaty.33

(p. 301) 3.5  Article 8(4): Presumption of Equality between the Principles of Territoriality and Nationality

26  In some extradition treaties and domestic laws, a condition for extradition is that the offence has been committed in the territory of the requesting State. In other words, if the State of which the alleged perpetrator or the victim of torture is a national establishes jurisdiction in accordance with Article 5(1)(b) or (c) and requests from the territorial State or from a State party intending to exercise universal jurisdiction the extradition of the alleged offender, the requested State might have to refuse extradition because of such a territorial clause in its domestic law or an applicable extradition treaty. In order to remove this legal obstacle, Article 8(4) establishes the legal presumption that the offence of torture shall be treated as if it was committed in the territory of the State which exercises jurisdiction on the basis of the active or passive nationality principle.

27  This legal presumption is modelled on Article 8(4) of the Hague Hijacking Convention and was proposed for inclusion in the Convention by the US draft. Burgers and Danelius raise doubts as to whether this presumption also applies to the passive nationality principle in view of the fact that no State party is required to exercise jurisdiction in accordance with Article 5(1)(c). Overall, however, they conclude that Article 8(4) also applies to such cases.34

28  Again, one should stress that nothing in this paragraph requires the forum State to extradite a certain person suspected of having committed the crime of torture. As with the other provisions in Article 8, it is only intended to remove legal obstacles contained in domestic law or in extradition treaties and to provide the legal possibility to use extradition as a legal and practical alternative to prosecution.

Roland Schmidt

Footnotes:

1  See above Arts 5, 6, and 7.

2  Convention for the Suppression of Unlawful Seizure of Aircraft (adopted 16 December 1970, entered into force 14 October 1971) 860 UNTS 105 (Hague Hijacking Convention).

3  Draft Convention for the Prevention and Suppression of Torture Submitted by the International Association of Penal Law (1978) UN Doc E/CN.4/NGO/213.

4  Draft Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment Submitted by Sweden (1978) UN Doc E/CN.4/1285.

5  Summary by the Secretary-General in Accordance with Commission Resolution 18 (XXXIV) of the Commission on Human Rights (1978) UN Doc E/CN.4/1314, para 94.

6  Revised Text of the Substantive Parts of the Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by Sweden (1979) UN Doc E/CN.4/WG.1/WP.1.

7  See n 2 above.

8  Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (adopted 23 September 1971, entered into force 26 January 1973) 974 UNTS 177 (Montreal Convention).