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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.5 Types of Jurisdiction over the Offence of Torture

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: 03 October 2023

Subject(s):
Torture — Treaties, interpretation — Territoriality — Jurisdiction of states, territoriality principle — Jurisdiction of states, universality principle

(p. 194) Article 5  Types of Jurisdiction over the Offence of Torture

  1. 1.  Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

    1. a)  When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

    2. b)  When the alleged offender is a national of that State;

    3. c)  When the victim is a national of that State if that State considers it appropriate.

  2. 2.  Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.

  3. 3.  This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

1.  Introduction1

1  While Article 4 requires States parties to enact the crime of torture as part of their domestic criminal law, Article 5 stipulates an obligation for States parties to establish their jurisdiction over the crime of torture in a comprehensive manner in order to avoid safe havens for perpetrators of torture. In addition to the territoriality and flag principle, (p. 196) as well as the active and passive nationality principle laid down in Article 5(1), Article 5(2), for the first time in a human rights treaty, establishes the obligation of States parties to establish universal jurisdiction in all cases where an alleged torturer is present in any territory under their jurisdiction. The provisions of Articles 6 to 9 are closely related to Article 5 and further define the various steps which States need to take in order to bring suspected torturers to justice.

2  First, States must take the necessary legislative measures to establish jurisdiction in their respective domestic criminal codes in accordance with the various principles laid down in Article 5. States only enjoy in respect to the passive nationality principle in Article 5(1)(c) the discretionary power to decide whether or not to establish it. With respect to the territoriality, flag, active nationality, and universal jurisdiction principles, the obligation of States parties to entrust their courts with full jurisdiction is unambiguous. As the Committee against Torture decided in the Habré case against Senegal, the failure of the legislative power to establish universal jurisdiction (or any other type of jurisdiction required in Article 5) constitutes a violation of Article 5.

3  Secondly, the administrative and judicial authorities of States parties must also take specific steps in order to bring suspected torturers to justice. Under the territoriality, flag, and nationality principles in Article 5(1), criminal investigations should be initiated as soon as the authorities of a State party have sufficient information to assume that an act of torture has been committed in any territory under its jurisdiction, on board a ship or aircraft registered in that State, by one of its nationals or against one of its nationals (if the domestic law provides for jurisdiction under the passive nationality principle). Such investigations need to be conducted even when the suspected torturer is not present in the territory of the respective State or when the identity of the torturer is not yet known to the authorities. For the territorial State, the obligation to conduct prompt and impartial investigations, either ex officio or on the basis of a complaint, is also underlined by Articles 12 and 13 CAT. If the suspected torturer is outside the territory of the State which had initiated criminal investigations, its authorities may request extradition from another State, where this person is present, in accordance with Article 8 CAT. For torture cases, the Convention may even be considered as the legal basis for such extradition procedures.

4  In contrast to the territoriality, flag and nationality principles, the obligation to exercise universal jurisdiction only arises if the alleged offender is present in any territory under the jurisdiction of a State party. This is, however, the only condition for (p. 197) exercising universal jurisdiction. Other conditions, such as an extradition request by a third State, have clearly been rejected during the drafting of Articles 5 to 9, as was confirmed by the CAT Committee in the Habré case.2 In other words, if the authorities of a State party have reasonable grounds to believe that an act of torture has been committed by a person present on its territory (the so-called forum State), they have an obligation under Article 6 to take him or her into custody (or to take other measures to ensure his or her presence) and to make a preliminary inquiry into the facts. In addition, the forum State shall notify the territorial, flag, and/or national States of its actions and the outcome of its preliminary inquiry. If any of these States requests extradition, the forum State has the choice of either extraditing the suspected torturer or of prosecuting the person before its domestic criminal courts (aut dedere aut judicare in accordance with Article 7). If no State requests extradition within a reasonable time, the forum State has no choice but to prosecute the alleged offender. While other States parties have no obligation under the Convention to request extradition, as was confirmed by the Committee in the Roitman Rosenmann case3 concerning the extradition of General Pinochet from the United Kingdom to Spain, all other States parties have an obligation under Article 9 to provide judicial assistance to the forum State by, for example, supplying all evidence at their disposal.

5  In practice, States parties are extremely reluctant to exercise universal jurisdiction in torture cases. Except for the case of Zardad4 (in the United Kingdom), the few selected cases, in which the principle of universal jurisdiction under Article 5(2) was raised by the applicants, illustrate the attempts of States to avoid their respective responsibilities. As was illustrated by the cases of Al-Duri5 (in respect of Austria) and Almatov6 (in respect of Germany), the authorities usually fail even to arrest alleged perpetrators, thereby providing them with an opportunity to leave the country. The case of Ould Dah (in respect of France) shows that alternative measures to custody, such as judicial control orders, might fail to ensure the presence of suspected torturers. Even if the authorities of the forum State arrest a suspected torturer, extradition efforts might be undermined by reluctant Governments. In the case of General Pinochet, who was arrested by British authorities, the extradition request issued by a Spanish judge was not pursued by the Spanish Government with all the necessary vigour to secure his extradition to Spain. In the Habré case, the Government of Senegal even referred the case to the African Union and for a long time failed to enact the necessary legislative reforms to establish universal jurisdiction.

6  The Pinochet, Habré, and Bouterse cases illustrate that even former heads of State or Government are not immune from prosecution for acts of torture. But the International Court of Justice (ICJ), in Democratic Republic of Congo v Belgium,7 upheld the immunity of an incumbent Minister of Foreign Affairs for alleged crimes against humanity and war crimes. Similar to diplomatic and consular agents, certain holders of high-ranking governmental office, such as heads of State or Government and Ministers of (p. 198) Foreign Affairs, enjoy full immunity from jurisdiction in other States, both criminal and civil. This so-called immunity ratione personae is based on the notion that such protection is necessary to ensure the efficient performance of certain functions on behalf of the respective State. In the same judgment, the ICJ, therefore, confirmed that after ceasing to hold the position qualifying them for jurisdictional immunity, such persons also lose the protection of immunity ratione personae. They might, however, still enjoy functional immunity for all acts performed in the exercise of an official capacity (so-called immunity ratione materiae).

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

7  Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Hijacking Convention, 16 December 1970)8

Article 4

  1. 1.  Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over the offence and any other act of violence against passengers or crew committed by the alleged offender in connection with the offence, in the following cases:

    1. (a)  when the offence is committed on board an aircraft registered in that State;

    2. (b)  when the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board;

    3. (c)  when the offence is committed on board an aircraft leased without crew to a lessee who has his principal place of business or, if the lessee has no such place of business, his permanent residence, in that State.

  2. 2.  Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.

  3. 3.  This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.

8  Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Civil Aviation Convention, 23 September 1971)9

Article 5

  1. 1.  Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over the offences in the following cases:

    1. (a)  when the offence is committed in the territory of that State;

    2. (b)  when the offence is committed against or on board an aircraft registered in that State;

    3. (p. 199) (c)  when the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board;

    4. (d)  when the offence is committed against or on board an aircraft leased without crew to a lessee who has his principal place of business or, if the lessee has no such place of business, his permanent residence, in that State.

  2. 2.  Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offences mentioned in Article 1, paragraph 1 (a), (b) and (c), and in Article 1, paragraph 2, in so far as that paragraph relates to those offences, in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.

  3. 3.  This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.

9  IAPL Draft (15 January 1978)10

Article IX (Jurisdiction)

  1. 1.  Jurisdiction for the prosecution and punishment of the international crime of torture shall vest in the following order in:

    1. (a)  the contracting Party in whose territory the act occurred;

    2. (b)  any contracting Party of which the accused is a national;

    3. (c)  any Contracting Party of which the victim is a national;

    4. (d)  any Contracting Party within whose territory the accused may be found.

  2. 2.  Nothing in this Article shall be construed as affecting the jurisdiction of any competent international criminal court.

10Original Swedish Draft (18 January 1978)11

Article 8

  1. 1.  Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 7 in the following cases:

    1. (a)  when the offences are committed in the territory of that State or on board a ship or aircraft registered in that State;

    2. (b)  when the alleged offender is a national of that State;

    3. (c)  when the victim is a national of that State.

  2. 2.  Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in its territory and it does not extradite him pursuant to article 14 to any of the States mentioned in paragraph 1 of this article.

  3. 3.  This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

(p. 200) 11  Revised Swedish Draft (19 February 1979)12

Article 5

  1. 1.  Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 4 in the following cases:

    1. (a)  When the offences are committed in any territory under its jurisdiction;

    2. (b)  When the alleged offender is a national of that State;

    3. (c)  [When the victim is a national of that State.]

  2. 2.  Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.

  3. 3.  This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

12  International Convention against the Taking of Hostages (New York Hostages Convention, 18 December 1979)13

Article 5

  1. 1.  Each State Party shall take such measures as may be necessary to establish its jurisdiction over any of the offences set forth in article 1 which are committed:

    1. (a)  in its territory or on board a ship or aircraft registered in that State;

    2. (b)  by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory;

    3. (c)  in order to compel that State to do or abstain from doing any act; or

    4. (d)  with respect to a hostage who is a national of that State, if that State considers it appropriate.

    5. 2.  Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 1 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States mentioned in paragraph 1 of this article.

    6. 3.  This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

13  Brazilian Draft (1983)14

Article 5

  1. 1.  Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

    1. (a)  When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

    2. (b)  When the alleged offender is a national of that State;

    3. (p. 201) (c)  When the victim is a national of that State if that State considers it appropriate.

    4. (d)  In the case referred to in article 6, under the conditions established in that article.

  2. 2.  This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

2.2  Analysis of Working Group Discussions

14  In response to an invitation of the Secretary-General to comment on the draft Swedish Convention, a number of Governments made general remarks in 1979 on the issue of jurisdiction over the offence of torture.

15  In written comments the United States firmly supported the creation of an obligation to prosecute or extradite as one of the most effective means of deterring torturers. In the opinion of the United States the fact that torture is an offence of special international concern meant that it should have broad jurisdictional bases in the same way as the international community had conferred broad jurisdictional bases in the Hijacking, Sabotage, and Protection of Diplomats Conventions. In brackets, the United States added that universal jurisdiction was appropriate since torture, like piracy, might well be considered an ‘offence against the law of nations’. At the same time the United States objected to jurisdiction based on the nationality of the victim as an independent ground of jurisdiction and proposed the deletion of paragraph 1(c) of the original Swedish draft text. The opinion of the United States was that, although States would not be required to establish nationality of the victim as a basis for jurisdiction, such jurisdiction could be exercised under Article 8(3) of the original Swedish draft if in accordance with the internal law of the relevant State party.

16  The Portuguese Government noted that the provisions on universal jurisdiction could be regarded as contrary to Portuguese public order. Portugal went on to suggest that the last part of Article 8(2) of the Swedish draft should be drafted as follows: ‘does not extradite him to another State Party which is competent under paragraph 1 of this article’. Portugal added that, while the competence provided for in Article 8 CAT did not coincide with the general rule governing the territorial scope of Portuguese criminal law (Article 53 of the Criminal Code), this would not be an obstacle to acceptance, since the rule establishes an exception in the case of a ‘conflicting treaty’.

17  The USSR stated that it was necessary to conduct a careful study of the competence of the State with regard to crimes involving the use of torture and other cruel, inhuman or degrading treatment or punishment, since the legislation of many States excluded the possibility of recognizing the competence of a foreign State in respect of crimes committed within their territory, on grounds related to the nationality of the offender or of the victim.

18  France suggested that the wording ‘to establish its jurisdiction’ in Article 8 should be replaced by ‘to establish its competence to deal with offences …’. France also suggested that it would be better to delete the reference to ships and aircraft in Article 8(1)(a) for the following reasons: that the proposed text was badly worded and would in any event have to be amended to read ‘or on board an aircraft registered in that State or a ship flying the flag of that State’; that the wording did not cover all possible cases (continental shelf, etc.) and that it would therefore be better to keep to the single concept of ‘territory’, clarified, as necessary, by the legislation of each particular State. Concerning the (p. 202) establishment of competence by States parties, France argued that only the cases referred to in paragraph 1 should be retained, in view of the difficulties involved in establishing the facts in the case referred to in paragraph 2.

19  The United Kingdom suggested that the phrase ‘offences referred to in article 7’ be deleted and replaced with ‘offences of torture’. The United Kingdom considered that the ultimate effectiveness of the Convention as a whole would depend on the general soundness and acceptability of the enforcement provisions as reflected in Articles 8, 11, and 14 and on the emphasis they would give to the means by which persons accused of torture could be brought to justice. Further, the United Kingdom felt that in contrast with offences of a more obviously international character, such as hijacking and attacks on internationally protected persons, the exceptionally wide extra-territorial jurisdiction conferred by Article 8 in respect of torture went beyond what was practicable. The United Kingdom went on to clarify that, in the United Kingdom, the criminal law, the jurisdiction of the criminal courts and criminal procedure, were based upon offences having been committed, broadly speaking, within the United Kingdom and that there was a general and well-established requirement for evidence to be given orally to provide an opportunity for cross-examination. For practical as well as judicial reasons, therefore, the United Kingdom stated that they would find it difficult to breach this territorial principle and to accept even a limited degree of extraterritorial jurisdiction. The United Kingdom went on to say that since the prosecution of a person accused of torture is likely to be more successfully undertaken in the territory where the offences occurred and where the evidence is available, the emphasis in these articles should be placed on extradition rather than on prosecution and the principle of aut dedere aut judicare (the duty to extradite or prosecute in international law) should apply. Further, the United Kingdom stated that the extradition provisions could usefully be strengthened by the inclusion of an article along the lines of Article 8 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft which would require contracting States, inter alia, to include torture (as rigorously defined in a revised Article 1) as an extraditable offence in existing treaties and would provide the option of the Convention being a basis for extradition where no treaty exists between contracting States.

20  Morocco considered that Article 8(1)(c) was unclear and that it could give rise to tendentious applications and opened the question of the principle of the territoriality of penal legislation. It proposed the following wording for paragraph 1(c): ‘When the victim is a national of that State and has been tortured (by a national of another State) on the territory of that State …’. Morocco was of the opinion that the extradition measures recommended in Article 14 of the original Swedish draft would only be possible where a member State had received in its territory a national of another member State who had previously committed an offence in his State of origin. Except in that case, the principle of the territoriality of penal legislation applies fully and the act of agreeing to extradite a national to another member State, on the ground that the victim is a national of that State, would be equivalent to a reversion to the humiliating practice of ‘capitulations’, linked to the worst memories of the colonial era. For these reasons, Morocco urged that Articles 8, 11, and 14 be revised and, since they were based on a single concept, should be condensed into two Articles.

21  There was no discussion on this topic in the 1979 Working Group in contrast to the 1980 Working Group where this issue was discussed in depth. The 1980 Working (p. 203) Group had before it a copy of the revised Swedish text in which Article 5 corresponded to Article 8 of the original Swedish draft.15

22  While the Swedish proposal on universal jurisdiction was supported, in principle, by a considerable number of delegations including the United States, some delegations, in particular those of Australia, France, the Netherlands and the United Kingdom, had reservations, considering that universal jurisdiction over an offence such as torture would create problems under their domestic legal systems.

23  With regard to the proposed Article 5(1)(a) there was general agreement that territoriality should be a ground for jurisdiction with the only question being to what extent offences committed on board ships or aircraft or on the continental shelf should be assimilated to offences committed in the territory of the State, and how this should be reflected in the text of the Convention. France considered that it would be preferable to keep the single concept of ‘territory’, which could then be clarified as necessary. One delegate found the expression ‘or on board aircraft or ships registered in that State’, proposed as an addition by several delegations, ‘somewhat unhappily phrased’. The delegation preferred the wording ‘on board an aircraft registered in that State or a ship flying the flag of that State’ whilst at the same time not opposing the consensus on the addition.

24  The text of Article 5(1)(a) was adopted as follows:

Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 4 in the following cases:

  1. (a)  When the offences are committed in any territory under its jurisdiction or on board an aircraft or ship registered in that State.

25  Concerning Article 5(1)(b), a delegate proposed the replacement of the word ‘national’ by the phrase ‘public official or employee of that State’. Most delegates stated that the term ‘national’ was a widely used concept in international law in connection with the establishment of jurisdiction, and that they preferred this basis of jurisdiction, as formulated in the New York Hostages Convention. At the same time several delegates drew attention to the provisions of Articles 1 and 4, noting that there was a need to cover those nationals who were not officials or employees but who committed acts of torture with the consent or acquiescence of public officials or other persons acting in an official capacity or who were charged with complicity or participation in torture and that therefore the proposed replacement would make the Convention less effective.

26  One representative suggested that the first wording of Article 5(1)(b) be retained and that the proposed phrase ‘public official or employee of that State’ be inserted between brackets after the word ‘national’. Another delegate proposed that Article 5(1) should be redrafted to read as follows:

Each State Party shall take such measures as may be necessary to prosecute persons who have committed the crimes mentioned in Article 4 of this Convention and who are in its territory and under its jurisdiction.

27  Greece suggested that Article 5(1)(b) be drafted as follows:

When the alleged offender belongs to one of the categories of individuals named under Article 1, paragraph 1 and is present in any territory under the jurisdiction of that State.

(p. 204) Finally, the word ‘national’ in Article 5(1)(b) was placed in square brackets.

28  Several representatives requested the deletion of Article 5(1)(c) which, in their view, opened an unduly wide scope for repression and created difficulties for establishing proof. One delegate stated that he agreed to the retention of that paragraph—drawing attention to the existence of similar clauses in the Convention against the Taking of Hostages, as well as in the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents—but with the addition of the words ‘and the alleged offender is discovered in its territory’. Other speakers proposed to make this provision optional. No agreement was reached on whether paragraph 1(c) should be retained and, if so, how it should be worded. The Soviet Union proposed a more fundamental change, suggesting that the whole of paragraph 1 of Article 5 should be replaced with the following text: ‘Each State Party shall take such measures as may be necessary to prosecute persons who are in its territory and under its jurisdiction.’ Article 5(1)(c) was placed in square brackets.

29  Paragraph 2 of Article 5 caused particular difficulties for those delegations which were opposed to the idea of universal jurisdiction with regard to torture. The French delegate stated that he was in favour of the deletion of Article 5(2), which was likely to create difficulties when the facts were being established. If it was decided to retain that Article, he proposed that the words ‘after receiving a request for extradition’ should be added after the words ‘and it does not extradite him’. This proposal was supported by several other delegates including the Netherlands. Italy, on the other hand, considered that it would be desirable to establish an order of precedence between the different grounds of jurisdiction and suggested the following wording:

Each Member State shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 4 above in the following cases and according to the order of priority indicated below: (a), (b), (c)—as in the Swedish proposal, (d) when the accused is on its territory.

30  Several other representatives favoured retention of Article 5(2) as set forth in the revised Swedish draft. These delegates pointed out that either the omission of Article 5(2) or the proposed amendment could create a loophole in the Convention, thereby allowing potential safe havens for torturers. It was stated by one delegate that his basic concern about the inclusion of paragraph 2 was that it could, in certain circumstances, jeopardize the natural rights of an accused to a fair and impartial trial and could also create, in practice, serious international political tensions. Subsequently that delegate offered to withdraw his reservation in the interest of reaching a consensus.

31  Paragraph 3 did not give rise to any substantial discussion. While agreement had been reached on the text of paragraph 1(a), the Working Group agreed that discussion of paragraph (1)(b) and (c) as well as of paragraphs 2 and 3 should be suspended to allow further consideration and consultation.

32  During the 1981 Working Group,16 Article 5(1)(b) and (c) were considered. It was decided by consensus that the square brackets enclosing the word ‘national’ in subparagraph b be removed. The Group decided by consensus to remove the square brackets enclosing subparagraph c and to add the words ‘if that State considers it appropriate’ at the end of the paragraph, thus adopting the wording of the Convention (p. 205) Against the Taking of Hostages. This decision was made following considerable discussion during which several delegates stated that they had strong reservations about this wording.

33  Turning to Article 5(2) of the revised draft some members again suggested the deletion of the paragraph as they were either opposed to the principle of universal criminal jurisdiction or to the difficulties to which the provision could give rise when establishing the facts. Several delegations indicated that they had difficulties, in view of their legal systems, in accepting an unconditional clause on universal jurisdiction. One representative proposed that if the paragraph were to be retained, the phrase ‘after having received a request for extradition’ should be added after the words ‘and it does not extradite him’. Some speakers considered that the paragraph should be retained. They referred to the fact that corresponding paragraphs already appeared in many other comparable conventions such as the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, the 1973 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the 1973 New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents and the 1979 New York Convention against Taking of Hostages, and they emphasized that universal jurisdiction was desirable in order not to provide torturers with any places of refuge.

34  The Netherlands delegation accepted universal jurisdiction in principle and no longer advocated making the exercise of such jurisdiction dependent on the rejection of a request for extradition. Instead, it tabled a formal proposal to make the exercise of universal jurisdiction dependent ‘upon complaint by an interested party’. This proposal was only supported by Australia. Other Western delegations felt that this formula could give rise to loose interpretations and open up loopholes. The Brazilian delegation preferred to make universal jurisdiction conditional on the refusal of a request for extradition. Since no agreement could be reached, it was decided to retain the paragraph in brackets.

35  During informal consultations the following text was proposed:

2 Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to Article 8 to any States mentioned in paragraph 1 of this article.

  1. (a)  Without prejudice to the foregoing paragraphs, an alleged offender should normally be tried by the State in whose territory the offence is committed.

Amongst other problematic issues, the discussions were complicated by the fact that this question could be dealt with under Article 5 (on jurisdiction) or under Article 7 (on prosecution). While numerous formulations were discussed during this period, the Working Group, during its public meeting, felt that, since the informal proposal could not be discussed owing to lack of time, it should be examined in detail the following year.

36  Article 5(3) was adopted by consensus.

37  A certain evolution in the position of several delegations could be observed in the course of debate in the 1982 Working Group on Article 5(2).17 France and the Netherlands explicitly supported the system proposed by Sweden while Australia remained the only Western country participating in the Working Group which did not (p. 206) support the inclusion of universal jurisdiction in the convention. The Netherlands delegation withdrew its 1981 proposal to make the exercise of universal jurisdiction dependent on a complaint by any interested party. At the same time, Brazil repeated its plea for making the exercise of universal jurisdiction dependent on the refusal of a request for extradition, expressing concern that universal jurisdiction could be exploited for political reasons and could result in trials on the basis of spurious accusations and fabricated evidence. This proposal was not supported by the Argentinian or the Uruguayan delegations who remained firmly opposed to the idea of universal jurisdiction based upon the fact that they considered torture not to be a crime of an international nature. The Argentinian delegation argued that cases in which a torturer would leave his own State where he enjoyed impunity were highly hypothetical and the system proposed to deal with such cases could be a source of controversy between States. This would be due to the fact that the intention of a State to prosecute a case of torture on the basis of universal jurisdiction could be interpreted by the State where the crime had been committed as a demonstration of lack of trust in its judicial system, a violation of its sovereignty and even as an interference in its internal affairs. Advocating for the inclusion of universal jurisdiction in the Convention, the United States responded to the Argentinian delegation that such jurisdiction was intended primarily to deal with situations where torture is a State policy and, therefore, the State in question does not prosecute its officials who conduct torture. For the international community to leave enforcement of the Convention to such a State would be essentially a formula for doing nothing. Universal jurisdiction could be used against official torturers who travel to other States or against torturers fleeing from a change of Government in their State if, for legal reasons, extradition was not possible.

38  In light of the suggestions made above, the Chairman-Rapporteur consulted several delegations regarding the possibility of adapting the text of Article 7. A modified version of the Article was submitted to the Working Group which made clear that in the case of the exercise of universal jurisdiction the standards of evidence required for prosecution and conviction should in no way be less stringent than those which apply in the case of jurisdiction on a nationality or territorial basis. This proposal was intended to meet the concern of those who feared that the exercise of universal jurisdiction might lead to trials on the basis of spurious accusations inspired by political motives. The proposal implied that Article 5(2) and Article 6(4) of the Swedish draft would be maintained.

39  The Australian Government was prepared to accept this proposal whilst at the same time retaining its reservations. The Brazilian delegation was prepared to accept the proposal of the Chairman-Rapporteur whilst maintaining its position on Article 5(2) that the establishment of universal jurisdiction should be made conditional on the refusal of a request for extradition. Where such a clause could not be included in Article 5(2), Brazil would consider making a declaration or reservation to that effect when becoming a party to the Convention.

40  Several delegates, favourable to the proposal in general terms, suggested drafting changes and a revised version was therefore tabled and subsequently underwent further amendments during the discussion. The Soviet delegation now made it clear that it could support the text. Explicit support was also voiced by the delegation of Senegal. The delegations of Argentina and Uruguay maintained their opposition but found themselves isolated in their position against the inclusion of universal jurisdiction in the Convention.

41  The report of the Working Group states explicitly that most speakers had indicated that their Governments were prepared to support the inclusion of a system of universal (p. 207) jurisdiction in the draft Convention and the revised version of Article 7 was reproduced, as it emerged finally from the discussion, in the first annex of the report. The report noted that all delegations who could accept the inclusion of universal jurisdiction in the draft Convention could support this text of Article 7, as well as the text of Article 5(2) and Article 6(4).

42  During the 1983 Working Group,18 the system of universal jurisdiction included in draft Articles 5, 6, and 7 was again considered. The discussion indicated that there had been no fundamental change in positions compared with the 1982 session of the Working Group.

43  Most speakers, with the exception of the Argentinian and Uruguayan delegations, were in favour of the principle of universal jurisdiction, holding it to be essential in securing the effectiveness of the Convention and arguing that territorial jurisdiction would not suffice to punish torture effectively as a State policy under the definition of Article 1. Reference was made in this context to the arguments set out in the report of the 1982 Working Group.

44  Some delegations maintained their reservations to the proposed system of universal jurisdiction which in their view could not be harmonized with certain principles of their penal legislation and would give rise to difficulties with regard to the availability of evidence as well as in other aspects. Reference was made here to the arguments set out in the report of the 1982 Working Group. Other delegations, while attaching importance to the system of universal jurisdiction, expressed the view that it was necessary to avoid abuses so as to afford greater guarantees to a State whose national has been incriminated. In this connection, the delegation of Senegal proposed the insertion in Article 5 of a provision reading as follows:

Each State Party shall likewise take such measure as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender, who has been prosecuted or convicted by the state in which the offence was committed, is present under its jurisdiction and that State does not extradite him by virtue of article 3, paragraph 1.

45  The representative of Brazil proposed, in a spirit of compromise, a modified system under which the principle of universal jurisdiction would apply under certain conditions and on a subsidiary basis, only if the States of territorial or national jurisdiction did not request extradition within a set period or if such a request were denied.

46  Some delegations agreed that such a system might constitute a sound basis for compromise. The French delegate, on the other hand, declared that his Government preferred to adhere as closely as possible to the formulations concerning universal jurisdiction used in a number of recent international conventions. The Working Group decided that the Brazilian proposal should be further studied at a later stage. A similar decision was made with regard to the Senegalese proposal.

47  The discussions in the 1984 Working Group19 revealed that there had been an important change of position as compared to the 1983 Group. The inclusion of universal jurisdiction in the draft Convention was no longer opposed by any delegation.

48  The delegation of Argentina declared that the new Argentine Government supported universal jurisdiction as provided for in Articles 5, 6, and 7. The representative (p. 208) of Uruguay stated that his delegation continued to have doubts from a juridical point of view but that it did not wish to stand in the way of consensus on the question. While the Chinese delegation was in favour of the inclusion of universal jurisdiction, it considered the current formulation of the draft articles not entirely satisfactory. The representative of Senegal withdrew his proposal made during the 1983 Working Group stating that the concern which had prompted it had been met to a great extent by the text of Article 7. The Australian delegation reiterated the position adopted in 1982 that Australia still had some doubts about the desirability or practicality of the universal jurisdiction provisions in the Convention but was committed to the early negotiation of as strong a convention as possible and had therefore joined the growing consensus in support of universal jurisdiction in the draft Convention. The Australian delegation further expressed its view that such a system must be complemented by effective implementation provisions in the final text. Many other speakers reiterated the view that universal jurisdiction was an essential element for the effectiveness of a Convention against Torture.

49  The delegation of Brazil made explanatory remarks with regard to its 1983 compromise text on universal jurisdiction. The Brazilian delegation had been concerned with certain practical problems that could arise from its implementation as provided for in draft Articles 5, 6 and 7 as they stood. It had advanced its formulations in the hope that they would make it easier for other delegations to accept the inclusion of universal jurisdiction in the draft Convention. However, it remained flexible and, if its proposals were not generally acceptable, would not insist on them, remaining ready to discuss a solution on the basis of other formulations, including the present draft Articles 5, 6, and 7.

50  Most speakers expressed their preference for the text of draft Articles 5, 6, and 7 as a basis for discussion. It was pointed out that the formulation concerning universal jurisdiction should be as close as possible to that used in earlier treaties, such as the Convention for the Suppression of Unlawful Seizure of Aircraft, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, and the International Convention against the Taking of Hostages. On the other hand, several speakers expressed an interest in exploring the possibility of achieving consensus by introducing in the present text the essence of certain elements borrowed from the Brazilian alternative proposals.

51  Some speakers considered that the Brazilian proposals had a legal drawback in that they would oblige a State to detain a person for a certain period during which that State had not established its jurisdiction over the case and extradition had not been requested. The delegation of Brazil pointed out that this problem could be solved by replacing the word ‘establish’ in Article 6(4) of the Brazilian proposal by the word ‘exercise’. The Brazilian delegation further explained that while its alternative proposal was aimed at giving priority to the establishment of jurisdiction by States referred to in Article 5(1)(a), (b), and (c), it was not intended to create an automatic obligation for the requested State to extradite the alleged offender to those States, since extradition was a sovereign act to be decided in each case by the competent court of the requested State. Some speakers observed that it was both legally and politically proper to leave the State in which the offender was found such freedom to refuse extradition, because if extradition was requested by the State in which the acts of torture had taken place, it was doubtful whether the requesting State would really punish the offender.

52  At the end of the pre-sessional meetings all delegations except the Chinese delegation were prepared to accept the current texts of Articles 5, 6, and 7. The Chinese (p. 209) delegation expressed the view that the proposal on universal jurisdiction made by the Brazilian delegation could be regarded as a basis for discussion and that it was in principle acceptable. In its understanding, the basic spirit of the Brazilian proposal was that the exercise of jurisdiction in accordance with Article 5(1)(a), (b), and (c) should have priority over the exercise of jurisdiction based exclusively on the presence of an alleged offender in the territory of a State party. Only if the State having primary jurisdiction did not wish to exercise it, should jurisdiction be exercised by the State where the offender was found. After the close of the pre-sessional meetings, informal consultations continued with the Chinese delegation, taking into account that most delegations were not prepared to accept an automatic obligation for the requested State to grant extradition requests by States having primary jurisdiction. At the final meeting of the Working Group in the second week of the Commission, the Chinese delegation announced that it could now in principle accept universal jurisdiction as set out in the draft Convention. The Group thereupon agreed to adopt the current text of Articles 5, 6, and 7, without prejudice to the reservations of certain delegations which would be reflected in the report.

53  The representative of the German Democratic Republic, while stating that his delegation was not opposed to the adoption of Articles 5, 6, and 7, drew attention to the fact that the subject matter of the draft Convention differed considerably from that of such instruments as the Convention for the Suppression of Unlawful Seizure of Aircraft and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation which contained similar provisions and to which the German Democratic Republic was a party. In particular the provisions contained in Article 5(1)(c) caused problems to his authorities and therefore his Government had chosen to reserve its final position with respect to that question and would take into account the outcome of the deliberations concerning other elements of the draft Convention.

54  In written comments France attached particular importance to Articles 5 to 7 concerning universal jurisdiction competence which in the opinion of France significantly enhances the Convention and would permit the attainment of its essential objective, ie, action to combat torture and to punish those who engage in it, regardless of the State party in which they are located. The Netherlands highlighted the issue of criminal proceedings in connection with acts of torture, attempts to commit torture and acts which constitute complicity or participation in torture as one of the important aspects in which the draft Convention goes beyond the 1975 Declaration. The most far-reaching of these provisions obliges States in whose territory a person suspected of such an offence is found, to submit the case to its competent authorities for the purpose of prosecution if it does not extradite him, even if the alleged offender is not its national and if the offence was committed abroad. The Norwegian Government highlighted the provisions on universal jurisdiction in the draft Convention as being of utmost importance. The Government of Tonga reserved its final position with respect to universal criminal jurisdiction. The US Government stated that it considered it of utmost importance that the draft Convention contains provisions which provide adequately for universal jurisdiction. In the opinion of the United States, the formulations contained in Articles 5, 6 and 7 were fully satisfactory representing the ‘product of careful and thorough study of a complex matter and constituting the best compromise of varying points …’, and the three articles achieved ‘the (p. 210) desired result of a workable, effective system of universal criminal jurisdiction’. Thailand stated that the underlying principle of Article 5 was already provided for by the Thai Penal Code. Regarding Articles 6 and 7, Thailand stated that it was a longstanding principle adopted by the Thai Criminal Procedure Code that, whenever it appears that any offence has been committed, the inquiry and prosecution regarding that case shall be undertaken without delay. They therefore welcomed the proposition under draft Article 6(3), specifying the requirement of notification regarding the assumption of court jurisdiction over the case between States parties concerned, as an appropriate co-operative measure. Venezuela suggested in their written comments that the use of the word ‘jurisdicción’ in Articles 5 to 7 of the draft should be clarified, so as to avoid difficulties of interpretation.

3.  Issues of Interpretation

55  Article 5 requires States parties to the Convention to take measures as may be necessary to establish their jurisdiction in accordance with the territorial ((1)(a)), active nationality ((1)(b) and universal jurisdiction principle (para (2)). Furthermore, States can also, if considered appropriate, create jurisdiction in accordance to the passive nationality principle ((1)(c)). Importantly, the jurisdiction required under Article 5 pertains only to torture as laid out in Article 4 of the Convention, and not to other forms of ill-treatment.20

3.1  Article 5(1)(a): Territorial Jurisdiction