31 In order to submit a complaint to the Committee, an individuals must be subject to that State party’s jurisdiction. The concept of jurisdiction of States parties goes beyond their immediate territory and also applies to persons and territories where authorities of the respective State party exercise ‘directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law’.50 The Committee has further clarified this concept with regard to interception measures. In JHA v Spain, it stipulated that the broad interpretation of the concept of jurisdiction is applicable not only ‘in respect of article 2, but of all provisions of the Convention, including article 22’.51 In this case, the Committee recognized Spain’s jurisdiction with regard to a complaint lodged on behalf of a number of Indian citizens who were rescued in international waters by a Spanish vessel and, after days of negotiations between the Spanish and Mauritanian authorities, disembarked in Mauritania in the port of Nouadhibou, where they were held in detention in a former fish-processing plant. Given these circumstances, the Committee found that Spain had indeed exercised constant de facto control over the complainants ‘from the time the vessel was rescued and throughout the identification and repatriation process that took place at Nouadhibou’, and it had done so ‘by virtue of a diplomatic agreement concluded with Mauritania’.52 Similarly, in Sonko v Spain the Committee concluded that the complainants were subject to Spain’s jurisdiction due to the control exercised by Spanish officers on board the vessel, despite the interception measure was performed in the territorial waters of another State (Morocco).53
32 The issue as to how the term ‘individuals subject to its jurisdiction’ within the meaning of Article 22 should be interpreted arose in two leading cases on universal criminal jurisdiction. In the Guengueng et al v Senegal case, Senegal argued that the communication invoking Articles 5 and 7 was inadmissible because the torture acts alleged by the complainant were suffered by foreign nationals, had occurred in a foreign country and were committed by a foreign actor. Senegal further argued that the complainants were not subject to its jurisdiction under Article 22, since in such cases its domestic law did not allow to lodge a complaint before Senegalese courts regardless of the victims’ (p. 594) nationality.54 In this case, however, the Committee rejected Senegal’s arguments, holding that in order to establish whether a communication falls within the jurisdiction of a State party under Article 22, various factors that are not confined to the complainant’s nationality must be considered. The Committee also noted that Senegal did not ‘dispute that the authors were the plaintiffs in the proceedings brought against Hissène Habré in Senegal’ and considered that, as required by domestic law, the complainants had accepted Senegalese jurisdiction in order to pursue the proceedings against Habré, which they instituted. Based mainly on these considerations, the Committee found that the complainants were indeed subject to the jurisdiction of Senegal for the purpose of Article 22 and thus declared the communication admissible.55 Without elaborating further, the Committee concluded by saying that ‘the principle of universal jurisdiction enunciated in article 5 … and article 7 of the Convention implies that the jurisdiction of States parties must extend to potential complainants in circumstances similar to the complainants’.56
33 The issue of jurisdiction within the meaning of Article 22 arose again in HBA v Canada. In this case, Mr Bush (former President of the US) travelled to Toronto to give a talk. The complainants, alleging to be torture victims of the CIA detention programme, argued that the presence of Mr Bush in the territory of Canada triggered universal jurisdiction. The complainants’ counsel called upon the Attorney General of Canada to launch a criminal investigation against Mr Bush for his role in authorizing and overseeing his administration’s torture programme. As no reply had been provided, the complainants’ counsel attempted to file information to commence private prosecution, a procedure allowed under Canadian law.57 Such procedure was, however, ultimately stayed. Mr Bush was not questioned, investigated, or prosecuted by the Canadian authorities who also did not take any measure to secure his presence, hence he returned to the US. Under these circumstances, the complainants claimed that Canada had violated Articles 5, 6, and 7 CAT. In this case, the Committee reiterated the argument made in Guengueng et al v Senegal that various factors that are not only confined to the complainant’s nationality should be considered, and specified that ‘a decisive factor is whether the complainant has accepted the jurisdiction of a particular State party in order to pursue the proceedings that the complainant has initiated against an alleged perpetrator of torture’.58 When applying such principles to the present case, the Committee observed that Canada, contrary to Senegal, had disputed that the complainants were party to the private prosecution brought against Mr Bush in Canada.59 It further noted that the complainants, who were (p. 595) listed as victims of torture, did not show to have authorized the person who submitted the information before the Canadian prosecution (the Director of the Canadian Centre for International Justice) to act as their legal representative before Canadian authorities.60
34 While the two cases mentioned above provide some guidance for the interpretation of this provision in cases of criminal universal jurisdiction, various questions remain. Namely, what requirements need to be fulfilled by a complainant in order to be considered a ‘party’ of a criminal proceeding for the purpose of establishing jurisdiction under Article 22? Does the Committee consider that the acceptance of the State’s jurisdiction within the meaning of Article 22 can be exercised by victims of torture that are not present on the territory of the State party through a legal representative? In replying to those questions it will be of utmost importance not to set up too strict requirements, as this would risk, on the one side, to weaken the States obligations under Articles 5, 6, and 7 and, on the other side, to frustrate the subjective rights of victims of torture, above all, the victims’ right to bring a complaint before the Committee.