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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.7 Aut Dedere aut Judicare

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 — Aut dedere aut judicare — Extradition and mutual assistance — Treaties, interpretation

(p. 267) Article 7  Aut Dedere aut Judicare

  1. 1.  The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

  2. 2.  These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

  3. 3.  Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

(p. 268) 1.  Introduction1

1  The territorial, national, and flag States have an obligation, under Article 5(1), to start criminal investigations whenever their authorities have sufficient reasons to assume that an act of torture has been committed in any territory under their jurisdiction, on board a ship or aircraft registered under their flag, or by any of their nationals. If the domestic law of a State party also provides for jurisdiction in accordance with the passive nationality principle (Art 5(1)(c)), its authorities shall also initiate criminal investigations in all cases in which their citizens have been subjected to torture in another State.2 Territorial States, in addition, have an obligation under Article 12, to ensure that their competent authorities proceed to a prompt and impartial ex officio investigation.3

2  While these obligations to start investigating apply irrespective of the presence of the suspected torturer, Articles 6 and 7 establish increased obligations for States parties in whose territory a suspected torturer is present (the so-called forum States).4 They shall ensure the presence of such persons by effective custodial or non-custodial measures in accordance with Article 6, carry out preliminary inquiries into the facts, and notify other States parties of the custody and the findings of their investigations in order to facilitate possible extradition requests.

3  After having conducted these preliminary steps, the forum State has an obligation under Article 7(1) to submit the case to its competent authorities for the purpose of prosecution. In other words, the strongest obligation to avoid a safe haven for perpetrators of torture by bringing them to justice before their domestic courts applies to the forum State. This obligation derives from the mere fact that a suspected torturer is present, for whatever reason, in any territory under the jurisdiction of a State party.

4  The forum State may at the same time be the territorial, flag, or national State. But the obligation to prosecute a suspected torturer also applies if the forum State has no connection to the suspected torturer other than his or her presence in a territory under its jurisdiction.5 If a suspected torturer is in the territory of a State party only for the purpose of medical treatment, as in the Pinochet, Al-Duri, and Almatov cases, for the purpose of professional training, as in the Ould Dah case, or as a person granted asylum, as in the Zardad case, the authorities of this State are under an obligation to exercise universal jurisdiction.6

(p. 269) 5  The only possibility to avoid prosecution is extradition. The choice between prosecution and extradition (aut dedere aut judicare) applies, however, only if another State explicitly requests extradition. While prosecution constitutes an obligation for the forum State, no other State, ie, not even the territorial State, is under an obligation to request extradition. This principle has been confirmed by the Committee against Torture in the case of Rosenmann v Spain concerning the extradition of General Pinochet from the UK to Spain.7 Similarly, the forum State is under no obligation to comply with any request for extradition. But it violates its obligation under Article 7 if it neither prosecutes nor extradites the suspected torturer, as the Committee has affirmed in the Habré case.8

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

6  Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Hijacking Convention, 14 October 1971)9

Article 7

The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.

7  Original Swedish Draft (18 January 1978)10

Article 11

  1. 1.  Each State Party shall, except in the cases referred to in article 14, ensure that criminal proceedings are instituted in accordance with its national law against an alleged offender who is present in its territory, if its competent authorities establish that an act of torture as defined in article 1 appears to have been committed and if that State Party has jurisdiction over the offence in accordance with article 8.

  2. 2.  Each State Party shall ensure that an alleged offender is subject to criminal, disciplinary or other appropriate proceedings, when an allegation of other forms of cruel, inhuman or degrading treatment or punishment within its jurisdiction is considered to be well founded.

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.

(p. 270) 8  United States Draft (19 December 1978)11

The State Party in whose territory there is present a person who is alleged to have committed an offence under article 1 or article 2 shall, if it does not extradite him, submit the case to its competent authorities without exception whatsoever and without undue delay, for the purpose of prosecution through criminal proceedings in accordance with the laws of that State.

Each State Party shall take such measures as may be necessary to assure that criminal, disciplinary or other appropriate proceedings are instituted in accordance with its national law if its competent authorities have a reasonable basis for belief that an act of cruel, inhuman or degrading treatment or punishment has been committed.

9  Swiss Draft (19 December 1978)12

Other than in the case of extradition under article [ … ] each State Party undertakes to ensure that criminal proceedings are instituted without exception and without undue delay, in accordance with its national law, against an alleged offender who is present in its territory, if its competent authorities establish that an act of torture as defined in article 1 appears to have been committed and if that State Party has jurisdiction over the offence in accordance with article [ … ].

10  United Kingdom Draft (19 December 1978)13

Each State Party, in the territory of which the alleged offender is found and which has jurisdiction over the offences in accordance with Article 8, shall, if it does not extradite him, be obliged, without exception whatsoever, to submit the case to the competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of an ordinary offence of a serious nature under the law of that State.

11  Revised Swedish Draft (19 February 1979)14

Article 7

The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in any territory under its jurisdiction, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any offence of a serious nature under the law of that State.

12  International Convention against the Taking of Hostages (New York Hostages Convention, 17 December 1979)15

Article 8(1)

The State Party in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the (p. 271) offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a grave nature under the law of that State.

13  Netherlands Amended Text (1981)16

  1. 1.  The State Party in the territory of which a person alleged to have committed any offence referred to in Article 4 is found, shall, in the cases contemplated in Article 5, paragraph 1, if it does not extradite him, be obliged, without exception whatsoever, to submit the case to its competent authorities for the purpose of prosecution.

  2. 2.  The State Party in the territory of which a person alleged to have committed any offence referred to in Article 4 is found, shall, in the cases contemplated in Article 5, paragraph 2, be obliged to submit the case to its competent authorities for the purpose of prosecution upon complaint by any interested party made in accordance with procedures set under the law of that State Party.

  3. 3.  Any person regarding whom proceedings are being brought in connection with any offence set forth in Article 4 shall be guaranteed fair treatment at all stages of the proceedings.

14  Joint Brazilian/Swedish Draft (1981)17

  1. 1.  A State Party which has established its jurisdiction over an offence according to Article 5 shall, when the alleged offender is present in a territory under its jurisdiction, submit the case to its competent authorities for the purpose of prosecution, if it does not extradite him.

  2. 2.  These authorities shall take their decision in the same manner as in the case of any offence of a serious nature under the law of that State.

  3. 3.  Any person regarding whom proceedings are being brought in connection with any offence set forth in Article 4 shall be given all guarantees of fair proceedings.

  4. 4.  The provisions of paragraph 1 are without prejudice to the right that any State Party having jurisdiction according to Article 5 may have to prosecute a person who is not present in a territory under its jurisdiction.

15  Draft of the Chairman-Rapporteur (1982)18

  1. 1.  A State Party which has established its jurisdiction over an offence according to article 5 shall, when the alleged offender is present in a territory under its jurisdiction, submit the case to its competent authorities for the purpose of prosecution, if it does not extradite him.

  2. 2.  These authorities shall take their decision in the same manner as in the case of any offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

  3. 3.  Any person regarding whom proceedings are brought in connection with any of the offences set forth in article 4 shall enjoy all guarantees of a fair and equitable trial.

(p. 272) 2.2  Analysis of Working Group Discussions

16  In written comments based on the 1978 original Swedish draft the United States indicated that in their view the Convention does not or should not express a preference for prosecution or extradition while at the same time noting the obligation of a State party to institute criminal proceedings against an alleged offender unless such an offender is extradited. The United States therefore submitted an alternative proposal.

17  The United States submitted a second text indicating that they could accept that, as in Article 11(2) of the Swedish draft, a State party should have an obligation to institute ‘criminal, disciplinary or other appropriate proceedings’ in alleged cases of cruel, inhuman or degrading treatment or punishment and that the broader range of permissible proceedings reflected the broader range of condemned behavior inherent in cruel, inhuman or degrading treatment or punishment as opposed to torture.

18  France, considering it essential to retain the principle of the advisability of instituting proceedings, proposed that the words ‘ensure that criminal proceedings are instituted’ in paragraph 1 of the original Swedish draft be replaced by the phrase ‘submit the case to its competent authorities for the institution of criminal proceedings’. Switzerland proposed a formulation based on the view that paragraph 1 could be strengthened by requiring that proceedings be instituted without exception or undue delay.

19  The United States further suggested the addition of a new article in order to safeguard the rights of the accused: ‘Any person regarding whom proceedings are being carried out in connection with any of the offences set forth in this Convention shall be guaranteed fair treatment at all stages of the proceedings.’ This wording was adopted at this stage as Article 6(5) of the revised Swedish draft.

20  The United Kingdom felt that the wording of Article 11(1) should be amended to reflect Article 7 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft and to this end proposed an alternative text. After informal consultations, Sweden submitted its revised draft, in which the corresponding provision appeared in Article 7.

21  There was no discussion on this matter in the 1979 Working Group. In was suggested during the 1980 Working Group that Articles 7 and 5 be considered together because of the complementary nature of the two provisions.19 One delegate queried whether Article 7 did not partly duplicate Article 5(1)(a). Other delegates, referring to previously adopted conventions such as Article 8(1) of the UN Convention against the Taking of Hostages, pointed out that there was a need for such an article. Article 8(1) of the ‘New York Hostages Convention’ was designed to ensure that all those who are accused of committing acts of hostage-taking are brought to justice. The obligation under Article 8(1) requires any party in whose territory an alleged offender is found to submit the case to its appropriate authorities for the purpose of prosecution, unless it decides instead to extradite him or her. This principle, aut dedere aut judicare, is considered one of the most important obligations of the Convention. During the drafting of the Convention it was considered not sufficient for a convention of this type to require parties to make the listed offences punishable under their domestic laws, nor was it sufficient to require them to establish jurisdiction over such offences. Rather, it was also essential to require States actually to deal with those persons who are accused of such offences.

22  During the drafting of the ‘New York Hostages Convention’, the delegations of the Netherlands and France had submitted proposals which would have conditioned a (p. 273) State’s obligation aut dedere aut judicare upon it having received and denied a request for extradition from a State which is required under the Convention to establish primary jurisdiction over the offence. The representative of the Netherlands argued that it was unreasonable to oblige a State which has no connection with the offence, other than the offender’s subsequent presence in the territory, to prosecute the offender. Although it was recognized that it seemed unfair to impose the obligation to prosecute upon a State that had nothing to do with a given case apart from the fact that the perpetrator was subsequently found in its territory, while other States with primary jurisdiction refrained from requesting extradition, it was conceded that it was better to increase rather than reduce the number of States having jurisdiction. Similarly, the purpose of Article 7 CAT is to ensure that no offender would have the opportunity to escape the consequences of his or her acts of torture. He or she would be extradited or prosecuted. The Working Group suspended its consideration of Article 7 until a later stage.

23  When it considered Article 7, the 1981 Working Group had before it an amendment submitted by the Netherlands.20 In support of this amendment, some delegations said that in their view it brought out more clearly than the Swedish text an essential link with Article 5, while the terms of paragraph 2 allowed for more flexibility insofar as the modalities for applying the article were concerned. In their view, the main advantage of the Netherlands amendment was its qualification of the operation of universal jurisdiction by referring to complaint procedures. They also considered that paragraph 3 of the Netherlands amendment contained a timely reminder of a fundamental principle relating to the rights of the accused in criminal proceedings.

24  According to other speakers, the Netherlands amendment lacked the requisite clarity so far as some of its wording—in particular, the words ‘upon complaint by any interested party’—was concerned, and could give rise to loose interpretation and open up loopholes. In the view of these members, Article 7 of the Swedish draft provided a better working basis.

25  The Working Group decided to adopt paragraph 3, amended in fine, of the Netherlands amendment as the last paragraph of Article 7:

3.  Any person regarding whom proceedings are being brought in connection with any offence set forth in Article 4 shall enjoy all the guarantees of a fair and equitable trial.

26  Brazil and Sweden submitted a second revised version of draft Article 7. However, following a discussion which revealed, in particular, that there were reservations in regard to paragraph 4, the sponsors withdrew their proposal and the Working Group adjourned consideration of Article 7.

27  During informal consultations the following text was proposed:

The State Party with jurisdiction over the territory in which a person alleged to have committed any offence referred to in Article 4 is found shall, if it does not extradite him, be obliged, in cases contemplated in Article 5, to submit the case to its competent authorities, which, for the purpose of prosecution, shall take their decision in the same manner as in the case of any offence of a serious nature under the law of that State.

28  In 1982 the Working Group continued its consideration of Article 7 of the revised Swedish draft.21 The Group felt that Article 7 should be examined together with Article 5 as well as Article 6(4) in view of the close link between these provisions. The delegate of (p. 274) the Netherlands informed the group that the Dutch Government had decided to withdraw the amendment it had submitted in 1981 with regard to Article 7.

29  Several speakers considered that a system of universal or quasi-universal jurisdiction as envisaged in Articles 5 and 7 of the Swedish draft was indispensable in a Convention against Torture in order to ensure that there would be no ‘safe havens’ for torturers. Corresponding provisions had already been included in many other treaties for the suppression of crimes which the international community deemed unacceptable.22

30  Some delegates indicated that, although their Governments had previously expressed reservations concerning the inclusion of a system of universal jurisdiction in the proposed Convention against Torture, they were now prepared to accept it in order to facilitate agreement. However, several other delegations maintained their opposition to or reservations concerning the inclusion of a system of universal jurisdiction in the draft Convention. Difficulties of a practical kind were mentioned as regards the transfer of evidence from the country where the crime had been committed towards the State of arrest and trial under the universal jurisdiction clause. If the latter State would not extradite the alleged offender to the former State, this might lead to frictions which would turn illusory the holding of a fair trial against the defendant, since it would be impossible to obtain the necessary evidence. Misgivings were also expressed that the system of universal jurisdiction could be exploited for political reasons and that it could result in trials on the basis of spurious accusations and fabricated evidence.

31  The Argentinian delegation expressed the view that the system of universal jurisdiction was not the appropriate one to deal with a crime that is not international in its nature, like those dealt with in the conventions cited as precedents in the Working Group. This delegation stated that the primary objective of the Convention should be to ensure compliance with its norms by any State which does not punish acts of torture carried out by its public officials. According to this delegation, the establishment of universal jurisdiction would not contribute to this end, since such a system would only apply to the improbable case in which a torturer would leave his or her own State where he or she enjoyed impunity for the committed crimes, in order to travel to another State which, being a party to the Convention, might arrest and prosecute. The system that was proposed to face this highly hypothetical case could be a source of controversies between States. 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 a lack of trust in its own judicial system, a violation of its sovereignty, and even as an interference in its internal affairs.

32  The US delegation replied that universal jurisdiction was intended primarily to deal with situations where torture is a State policy and, therefore, the State in question does not, by definition, prosecute its officials who conduct torture. For the international community to leave enforcement of the Convention to such a State would essentially be a formula to do nothing. Therefore, in such cases, universal jurisdiction would be the most effective weapon against torture, which can be brought to bear. It could be utilized against state officials responsible for torture who travel to other States, a situation which is not at all hypothetical. It could also be used against torturers fleeing from a change of Government in their States if, for legal reasons, extradition to that State were not possible.

(p. 275) 33  Regarding due process and the adequacy of evidence, it was stated that the text of the draft Convention as a whole, including the Chair’s proposed Article 7, made it clear that criminal prosecution would take place only when adequate evidence exists and it is possible to ensure fair treatment at all stages of the proceedings. In particular cases, such as when a torture victim is present on a State party’s territory, it would be quite possible to meet these requirements.

34  During the discussion of Article 7, reference was also made to a revised version that had been submitted in 1981 by Brazil and Sweden but that subsequently had been withdrawn, as well as to a text proposed in 1981 during informal consultations which the Group had not been able to discuss owing to lack of time. The possibility was mentioned of redrafting Article 7, taking into account those alternative proposals and qualifying the exercise of universal jurisdiction in a manner, which could alleviate some of the concerns expressed by delegations, in particular regarding the risk of discrepancies as to the standards of evidence.

35  In light of these discussions, the Chairman-Rapporteur proposed a new text. A number of delegations supported this suggestion in general terms, considering that it was a constructive synthesis, which retained the substance of the original Swedish draft while making clear certain protections accorded to an accused. Some other delegates observed that the new proposal did not significantly reduce their difficulties concerning the acceptance of the principle of universal jurisdiction. During the debate arguments were reiterated that had been put forward in earlier discussions.

36  In the course of the discussions concerning the proposal of the Chairman-Rapporteur most speakers indicated that their Governments were prepared to support the inclusion of a system of universal jurisdiction in the draft Convention. In particular one delegation announced that its Government, although retaining its reservations concerning the advisability of including universal jurisdiction in the CAT, had now decided to accept this in the interests of facilitating progress towards agreement on a final text.

37  One other delegation stated that it could accept the proposed text for Article 7, depending on its understanding of Article 5, since it preferred to make the establishment of universal jurisdiction as envisaged in Article 5(2) dependent on the refusal of a request for extradition. The view was also expressed that paragraph 2 of Article 5 would be more acceptable if the provision specifying that the alleged offender should normally be tried by the State in whose territory the offence was committed be added to the paragraph. Nevertheless, some delegations made it clear that they could not accept the inclusion of a system of universal jurisdiction in the Convention.

38  Several speakers who supported the proposal of the Chairman-Rapporteur in general terms stated that in their view some drafting changes would be desirable. In particular, the text should be harmonized with the formulations already appearing in comparable treaties such as the Convention for the Suppression of Unlawful Seizure of Aircrafts. After consultations with these delegates, the Chairman-Rapporteur submitted a revised version of his proposal which was again discussed in the Working Group. This discussion led to further amendments of the text.

39  Article 7, as it emerged finally from the discussion, read as follows:

  1. 1.  The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

  2. (p. 276) 2.  These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

  3. 3.  Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

40  It was noted that all delegations who could accept the inclusion of universal jurisdiction in the draft Convention, could support this text. The same delegations could also support the text of Article 5(2), and of Article 6(4). With regard to Article 5(2), one delegation maintained its position that the establishment of jurisdiction in Article 5(2) should be made dependent upon the refusal of a request for extradition. Some delegations stated that they had not had enough time to study the above proposal.

41  During the 1983 Working Group representatives stated that the above text might constitute a good basis for compromise and deserved careful study. One delegation observed that its Government preferred to adhere as closely as possible to the formulations used in earlier treaties such as the Hague Convention for the Suppression of Unlawful Seizures of Aircraft, the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, and the New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. The Working Group decided that the Brazilian proposals should be reconsidered at a later stage.

42  The Working Group discussed at considerable length the system of universal jurisdiction included in Articles 5, 6, and 7 in the 1984 deliberations. The discussions indicated that there had been important changes as regards the 1983 session of the Group. The inclusion of universal jurisdiction was no longer opposed by any delegation. Article 7 was adopted without prejudice to the reservations of certain delegations which would be reflected in the report.

3.  Issues of Interpretation

3.1  Obligation to Prosecute combined with Authorization to Extradite

43  Article 7 is closely linked to Articles 5 and 6.23 Article 5 establishes an obligation of States parties to establish jurisdiction over the crime of torture on various grounds, including universal jurisdiction. Article 6 requires any State party, where an alleged torturer is present to ensure his or her presence, usually by means of arrest and detention, and to inform other relevant States for the purpose of enabling them, if they so wish, to make an extradition request. Article 7 establishes an obligation of the forum State to submit the case to its competent authorities for the purpose of prosecution, provided that it does not extradite the person concerned. In this relation, the International Court of Justice (ICJ) held in its judgement in Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) regarding Hissène Habré that ‘these obligations, taken as a whole, might be regarded as elements of a single conventional mechanism aimed at (p. 277) preventing suspects from escaping the consequences of their criminal responsibility, if proven’.24 The purpose of all these obligations is to enable proceedings against the suspect, in the absence of his or her extradition, and to achieve the object and purpose of the Convention, which is to make more effective the struggle against torture by avoiding impunity for the perpetrators of such acts. It was against this backdrop that the ICJ ruled that Senegal violated its obligations under Article 6 and 7 due to its failure to establish without delay the jurisdiction required in Article 5(2). The lack of the necessary legal framework resulted in Senegal failing to initiate the preliminary inquiry as required by Article 6(2) and subsequently to put the case to the competent authorities for the purpose of prosecution as well as extradite Habré in accordance with Article 7.25

44  The basis for Article 7 of the Convention can be found in Article 7 of the 1970 Hague Hijacking Convention for the Suppression of Unlawful Seizure of Aircraft, which in turn is derived from the ‘aut dedere aut judicare’ provisions contained in the Geneva Conventions.26 Article 7 of the Hague Hijacking Convention requires ‘[t]he Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution’.

45  Since the 1970s the ‘Hague formula’ has become the dominant template for conventions aimed at the suppression of specific offences. Since then approximately three-quarters of the relevant conventions feature ‘aut dedere aut judicare’ provisions following the logic of the ‘Hague formula’,27 including the 1985 Inter-American Convention to Prevent and Punish Torture, the 1994 Inter-American Convention on Forced Disappearance of Persons, the 2006 International Convention for the Protection of All Persons from Enforced Disappearance, and the 1986 UN Convention against Torture.28

46  All these treaties have in common that the forum State has to submit the case of the alleged offender to a competent authority for the purpose of prosecution, if it does not extradite. This obligation is further combined with additional requirements demanding

(a) to criminalize the relevant offense under its domestic laws; (b) to establish jurisdiction over the offence when there is a link to the crime or when the alleged offender is present on their territory and is not extradited; (c) to make provisions to ensure that the alleged offender is under custody and there is a preliminary enquiry; and (d) to treat the offence as extraditable.29

(p. 278) 47  The principle of ‘aut dedere aut judicare’ as stipulated in Article 7 does not only relate to universal jurisdiction cases, but covers any case which falls under one of the jurisdictional heads stipulated in Article 5 of the Convention. Hence, States which have jurisdiction over a case under the territorial, flag, active, or passive nationality principle are not only obliged to submit it to its competent authorities for prosecution, but are also offered with the possibility to relieve themselves of this obligation by responding positively to an extradition request from another State party.

48  The only provision in Article 7 which applies exclusively to cases prosecuted under universal jurisdiction is the second sentence of Article 7(2) which requires that the standard of evidence for prosecution and conviction in these cases shall in no way be less stringent than those which apply to those cases which are prosecuted under the territorial, flag, active or passive nationality principle as stipulated in Article 5(1).

3.2  Article 7(1): Obligation of the Forum State to Proceed to Prosecution

3.2.1  ‘Submit the Case to its Competent Authorities for the Purpose of Prosecution’

49  Article 7(1) obliges States parties in the territory under whose jurisdiction an alleged torturer is found to submit the case to their competent authorities for the purpose of prosecution, unless they extradite the suspect to another State party with territorial, flag, or national jurisdiction. The formulation to ‘submit the case to its competent authorities for the purpose of prosecution’ in Article 7(1) is insofar relevant as it does not demand a prosecution in all circumstance, but leaves it at the discretion of the competent authorities to decide whether in light of the available evidence and other relevant circumstances to formally charge and prosecute the alleged torturer.30 In this context the International Law Commission (ICL) concluded in its report on ‘The obligation to extradite or prosecute (aut dedere aut judicare)’ that the ‘obligation to prosecute is actually an obligation to submit the case to the prosecuting authorities; it does not involve an obligation to initiate a prosecution’.31

3.2.1.1  Discretion of Authorities Whether to Prosecute or Not

3.2.1.1.1  Guengueng et al v Senegal (Habré case before the CAT Committee)

50  The case of Hissène Habré and his eventual prosecution under universal jurisdiction in Senegal, inter alia for torture committed during his authoritarian rule in Chad, provides an elucidating example for a State’s obligation under Article 7 of the Convention. This is particular the case since the Committee against Torture as well as the ICJ considered Senegal’s obligations under the Convention.32

51  In its 2007 decision on the case of Guengueng et al v Senegal, the Committee for the first time established a violation of the obligation to proceed to a prosecution under Article 7. The Committee held that the State party was obliged to prosecute Hissène Habré for alleged acts of torture unless it could show that there was not sufficient evidence (p. 279) to prosecute, at least at the time when the complainants submitted their complaint to the Senegalese authorities in January 2000. Yet with its decision of 20 March 2001, which was not subject to appeal, the Senegalese Court of Cassation (Cour de cassation) put an end to any possibility of prosecuting Hissène Habré in Senegal. Consequently, the Committee found that Senegal had ‘not fulfilled its obligations under article 7 of the Convention’.33 This landmark decision of the Committee used fairly strong language by explicitly speaking of an obligation to prosecute rather than an obligation merely to submit the case to the competent authorities.34

3.2.1.1.2  Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Habré case before the ICJ)

Similarly, the distinction between an ‘unconditional’ duty to prosecute and the duty to submit the case to the competent authorities was also taken up by the ICJ in its consideration of the Habré case. The ICJ’s 2012 judgment was the Court’s very first pronouncement on the obligation to extradite or prosecute.35 In its analysis of Article 7(1) the ICJ drew on the Convention’s travaux préparatoires and underlined its relation to the Hague Hijacking Convention. The Court concluded that the obligation to prosecute as formulated in Article 7(1) leaves it to the competent authorities to decide ‘whether or not to initiate proceedings, thus respecting the independence of States parties’ judicial system [ … ] It follows that the competent authorities involved remain responsible for deciding on whether to initiate a prosecution, in the light of the evidence before them and the relevant rules of criminal procedure.’36 ‘The obligation to submit the case to the competent authorities [ … ] may or may not result in the institutions of proceedings, in light of the evidence before them, relating to the charges against the suspect.’37

52  While it is hence at the discretion of the competent authorities to decide whether to initiate a prosecution against the alleged offender, they have to do so in light of the evidence before them and the relevant rules of criminal procedure.38 As a counterbalance to the discretion conferred to the competent authorities, Article 7(2) obliges them to reach their pertaining decisions ‘in the same manner as in the case of any ordinary offence of a serious nature under the law’ of the forum State. In the cases referred to in Article 5(2) the standards of evidence required for prosecution and conviction shall in no way be less stringent than those that apply in the cases referred to in Article 5(1).39

(p. 280) 3.2.1.2  Prosecution Does Not Require Extradition Request

53  During the drafting of the Convention some States argued for the inclusion of a clause, requiring the existence of an extradition request for the forum State to become obliged to submit the case to its competent authorities for the purpose of prosecution, should it decide not to extradite. Making the duty to prosecute contingent on an extradition request was deemed by the proponents of this requirement as a precaution against what they considered an excessive use of universal jurisdiction. Eventually though, this requirement was not included and in line with the ‘Hague formula’ the State party’s duty to submit the case to its competent authorities for the purpose of prosecution is neither contingent on the reception nor the rejection of an extradition request.40 In its decision in the Habré case, the Committee against Torture explicitly stated that ‘the obligation to prosecute the alleged perpetrator of acts of torture does not depend on the prior existence of a request for his extradition’.41 Similarly, and also in the Habré case, the ICJ held in its judgment that ‘Article 7, paragraph1, requires the State concerned to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior extradition request’.42

3.2.1.3  Obligation to Prosecute and Option to Extradite

3.2.1.3.1  Prosecution as an Obligation, Extradition an Option

54  Following the ‘Hague formula’ and as also confirmed by the ICJ in the Habré case, the duty to submit the case to the competent authorities for prosecution is an obligation under the Convention, ‘the violation of which is a wrongful act engaging the responsibility of the State’.43 The only avenue for the forum State to eschew this obligation is to extradite the suspect to a State party, which requests extradition.44 Only if such an extradition request has been received, the forum State can choose between submitting the case to its own competent authorities for the purpose of prosecution, or replying favorably to the extradition request and transferring the suspect to the requesting State.45 If no extradition request is received, the forum State has no other avenue available than to submit the case to its own competent authorities for prosecution.

55  Importantly, it remains at the discretion of the forum State whether it wants to domestically prosecute the case or extradite the alleged torturer. For example, a request for extradition by a State party having jurisdiction under Article 5(1) does not supersede the forum State’s ability to prosecute under Article 5(2). Similarly, a State party intending to prosecute an alleged torturer under the (active or passive) nationality principle (5(1)(b) and (c)) is under no legal obligation to respond favorable to an extradition request from a State party having jurisdiction under the territoriality principle (Article 5(1)(a)) (p. 281) (and vice versa). Such an obligation for extradition would only exist if an order of priority among the different grounds of jurisdiction in Article 5 had been established in the Convention. This is however not the case.46

3.2.1.3.2  Limitations to Option to Extradite

56  The option to extradite is, however, only available if extradition would be in accordance with international law. Even if an extradition request has been received, the option of extradition is de facto not available in cases which contravene the non-refoulement principle as stipulated in Article 3 CAT. Whenever there are ‘substantial grounds for believing that [the alleged torturer] would be in danger of being subjected to torture’ in the State seeking extradition, the forum State is under an obligation not to extradite.47 In addition, States parties to the Covenant on Civil and Political Rights (CCPR) or regional human rights treaties would also have to take into account the prohibition to extradite to a State in which there is a substantial risk of being subjected to other forms of cruel, inhuman or degrading treatment or punishment.48 In addition, under the ruling of the Human Rights Committee in Judge v Canada, a forum State that has abolished the death penalty would not be allowed to extradite a suspected torturer to a State where he or she would be in danger of being sentenced to death and/or executed.49 Other limitations on extradition can be derived from the right of the accused to privacy and family life as stipulated in Article 17 CCPR,50 from the right to a fair trial as stipulated in Article 14 CCPR and Article 7(3) CAT, from procedural safeguards contained in Article 13 CCPR, or from specific provisions restricting extradition in the respective bilateral and multilateral extradition treaties.

57  Should the extradition request originate from a State which actually may seek to protect the alleged torturer from prosecution rather than to prosecute him or her (for example, a State known for the systematic practice of torture seeks extradition of one of its officials who is alleged to have committed acts of torture by the forum State), the forum (p. 282) State shall also not reply positively to the extradition request. In such a case, the latter shall submit the case to its own competent authorities for the purpose of prosecution, unless another State party with jurisdiction under Article 5(1) and a credible commitment to prosecute the suspect seeks his or her extradition. Similarly, should the extradition request be forwarded by a State which is credibly committed to prosecute the alleged perpetrator, but unlikely to dispose of the judicial and administrative capacity to effectively conduct the required prosecution, the forum State shall also refrain from extraditing.51 Pursuing with extradition in these cases would run counter to the object and purpose of the Convention which is to end impunity for acts of torture and is hence no permissible option for the forum State.

3.2.1.3.3  Failure to Prosecute Turns Option to Extradite Into an Obligation

58  The rationale behind the ‘aut dedere, aut judicare’ formula contained in Article 7 is to ensure that there are no safe havens for individuals responsible for acts of torture which would allow them to go unpunished. Crucially, this also implies that the failure to submit a case to the competent authorities for domestic prosecution results in the transformation of the option to extradite into an obligation to extradite (provided that an request has been received and extradition would be according to international law). In the seminal Guengueng et al v Senegal case, the CAT Committee had found Senegal to be in breach of its obligation to submit Hissène Habré to its competent authorities for prosecution. Importantly, in addition it concluded that by refusing to comply with the 2005 extradition request of Belgium, ‘the State party has again failed to perform its obligations under article 7 of the Convention’.52 This does not mean that the Committee found an obligation to extradite per se, but an obligation to take a decision in accordance with the principle aut dedere aut judicare in Article 7 aimed at bringing Hissène Habré to justice, either before Senegal’s own courts or by extraditing him to Belgium. In other words, if the forum State, on the basis of its domestic laws, is not willing or not able to prosecute a suspected torturer, the choice between extradition and prosecution turns into a legal obligation to extradite, provided that such extradition is in accordance with international law.

3.2.1.3.4  Practical Order between Prosecution and Extradition

59  As stated above,53 the Convention does not stipulate any hierarchy between the different forms of jurisdiction under Article 5. This also implies that there is no formal hierarchy between domestic prosecution and the option to extradite. The forum State is free to either prosecute or extradite. However, this does not mean that the forum State should not seriously consider any genuine extradition request from another State. Extradition as a form of mutual judicial assistance is usually regulated by bilateral or multilateral extradition treaties. In order to facilitate the extradition of suspected perpetrators of torture, Article 8 contains different provisions, including the assumption that torture is included as an extraditable offence in existing extradition treaties between States parties and that the Convention shall be considered as the legal basis for extradition in the absence of a respective extradition treaty.54

(p. 283) 60  From a practical point of view, there are several reasons why a prosecution in the territorial state might be preferable to a prosecution in the State with jurisdiction under Article 5(2). In most cases, prosecution in the territorial state can facilitate more effective investigations, among others, due to easier evidence collection and access to witnesses. Language barriers and different cultural norms might further complicate prosecution in the forum state. The overall administrative and financial burden is likely to be lower in cases in which prosecution takes place in the State where the crime was committed rather than in a State which might be far away from the actual locus delicti. Although Article 9 requires States ‘to afford one another the greatest measure of assistance [ … ] including the supply of all evidence at the disposal necessary for proceedings’, this requirement may not fully offset the distinct challenges of prosecution by the forum State.55

3.2.1.4  ‘Third alternative’: Transfer to International Tribunals

61  Traditionally, and as described above, the principle of aut dedere aut judicare has provided States with two alternatives: submitting the case to the State’s competent authorities for the purpose of prosecution or extradition. With the creation of the International Criminal Court (ICC) and various international ad hoc criminal tribunals, new institutions have been emerging which may, however, offer States recourse to a ‘third alternative’: surrendering the suspect to a competent international or regional criminal court. This development was recognized by the ILC in its report on the obligation to extradite or prosecute56, in which it highlights the pertaining innovation in the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (CED). Article 11(1) CED explicitly provides for the obligation to prosecute or extradite and reads almost identical to Article 7(1) CAT. Importantly though, it additionally stipulates the State party’s option to ‘surrender [the suspect] to an international criminal tribunal whose jurisdiction it has recognized’, if it wishes not to extradite him or her to another state or submit the case to its competent authorities for the purpose of contribution.57

62  With regard to CAT, the emergence of this ‘third alternative’ contributes to the overall purpose of Article 5(2) and Article 7(1), which is to close safe havens for torturers. Provided that the necessary safeguards for the suspect are in place, and that the proceedings ensure an effective prosecution, the surrender of a suspect to an international criminal court serves the same purpose and is an alternative equivalent to the extradition of a suspect to a state with jurisdiction under Article 5(1). Against this background it would be misleading to argue that the omission of the third alternative from the text of Article 7(1) in the Convention would bar States parties from using this avenue when aiming to (p. 284) bring suspected torturers to justice. While the teleological reading of the Convention favors the inclusion of international criminal courts into the scope of Article 7(1) because of its contribution to close safe havens, there is also nothing in the travaux préparatoires or the jurisprudence of the Committee against Torture58 that would preclude such an inclusion. In all likelihood, the omission of international criminal courts as an option from Article 7(1) is due to the absence of such courts at the time when the draft of the Convention was discussed, and hence not considered by its drafters.

63  The interpretation favoring an inclusion of the third alternative is in fact already confirmed by practice of States parties surrendering suspects to the International Criminal Tribunal for the former Yugoslavia (ICTY).59 Furthermore, and more recently in the Hissène Habré case, Senegal established the Extraordinary African Chambers (EAC), which are located in Senegal, but qualify as a hybrid court featuring domestic as well as international elements. Only a month after the ICJ had rendered its judgment in June 2012 and found Senegal in continuous breach of Article 7(1), Senegal and the African Union signed an agreement establishing the EAC for the purpose of prosecuting Hissène Habré.60 The Chambers were mandated to conduct the investigation, prosecution as well as appeals stage, form part of the Senegalese Court system and comprise two Senegalese judges as well as one Burkinabe judge, who was appointed by the African Union. The EAC’s proceedings were carried out under the Senegalese Code of Criminal Proceedings. It is for this reason that some do not consider the EAC as actually falling under the ‘third alternative’, but rather qualify as a form of prosecution by the competent domestic authorities. Accordingly, ‘it is Senegal that will be prosecuting Habré, with some international assistance, and this will be in accordance with its mandate from the African Union as well as its obligation under CAT and in accordance with the judgment of the ICJ’.61 With this kind of set-up the EAC resemble previous internationalized or hybrid courts such as the Extraordinary Chambers in the Court of Cambodia, the Special Court for Sierra Leone, or the Special Tribunal for Lebanon. But even if one were to consider the EAC as falling outside of the scope of domestic Senegalese realm, for example due to their prosecution of Habré ‘on behalf of the African Union’, and rather qualify them as a form of internationalized criminal tribunals, this would not amount to a breach of Senegal’s obligation under the Convention. Regarding the scope of the obligation to prosecute, the ILC in its report on the obligation to prosecute or extradite refers directly to the—then already established—EAC and refers to them as an example for a ‘third alternative’62 and does not indicate any reservations towards them. Directly pertaining to the permissibility of the EAC under the Convention, ICJ’s Judge Xue notes in her dissenting opinion to the Habré judgment, published prior to the establishment of the Chambers, that

even if the AU ultimately decides to establish a special tribunal for the trial of Mr. Habré, Senegal’s surrender to such a tribunal could not be regarded as a breach of its obligation under Article 7, (p. 285) paragraph 1, because such a tribunal is created precisely to fulfil the object and purpose of the Convention; neither the terms of the Convention nor the State practice in this regard prohibit such an option.63

64  Habré was indicted on 2 July 2013 before the EAC. The trial started in July 2015, in the course of which also the testimonies of 69 victims were heard. On 27 April 2017, the Appeals Chamber of the EAC eventually rendered its final judgment and found Hissène Habré guilty of crimes against humanity, war crimes, and torture, and sentenced him to life imprisonment. Victims of torture, among others, who had joined the trial as civil party were awarded a reparation of fifteen million FCFA (approx. 25,000 USD).64

3.2.1.5  Time for the Performance of Obligations under Article 7(1)

65  Under Article 7 the question may also arise how swiftly a State party has to submit a case to its competent authorities for the purpose of prosecution. While Article 6(2) requires the State party to ‘immediately make a preliminary inquiry into the facts’ the Convention does not provide any specific period within which the performance of the obligations under Article 7(1) is required.

66  In some cases, for example, in those which are particularly sensitive from a foreign policy perspective, the forum State might have a political preference for extradition in order to avoid domestic prosecution and the potentially entailed political fallout. The forum State might therefore be tempted to wait and hope to receive an extradition request to which it can respond favorably. The text of the Convention does not provide any explicit period of time for how long the forum State can wait to receive an extradition request and continue to postpone the initiation of its own prosecution. The forum State therefore has a certain discretion to decide at what stage it can conclude that no extradition request was received. This discretion, however, must be reasonable and cannot be used to excessively defer prosecution, under the pretext that the forum State would still wait for an extradition request. Such a deferral would be inconsistent with the general purpose of the Convention and amount to a breach of the forum State’s obligation under Article 7(1).65

67  Instructively, Senegal argued in the Habré case both before the Committee against Torture as well as the ICJ that it was in principle committed to perform its obligations under the Convention, including Article 7.66 However, due to legislative as well as financial challenges, Senegal argued, it had not yet been able to prosecute or extradite Habré. Hence, according to Senegal, the non-performance of its obligations under Article 7 were not to constitute a violation, but a delay of the Convention’s implementation.

68  Before the Committee against Torture, Senegal argued that the Convention against Torture would be not self-executing and therefore requiring domestic implementation legislation.67 This process would take time, given the complexity of the matter and Senegal’s (p. 286) state capacity. Consequently, it would be wrong to conclude that Senegal would not apply Article 7. Due to the pending implementation of the required domestic legislation and in the absence of an extradition request in 2001 when the complaint had been submitted, the competent authorities were, according to Senegal, unable to initiate any prosecution. Consequently, ‘the presence in Senegal of Hissène Habré cannot itself justify the proceedings brought against him’68 and therefore Senegal would not breach its obligation under the Convention. Furthermore, following the extradition request from Belgium in 2005, the Dakar Court of Appeals argued that in the absence of the necessary jurisdiction, it would be unable to decide on Belgium‘s request.69

69  Rebuking Senegal’s line of reasoning, the Committee against Torture made it clear in its decision that a State party cannot evoke the complexity of its own judicial proceedings or other reasons stemming from domestic law to justify its failure to comply with the obligations under the Convention.70 Hence, Senegal was obliged to prosecute Habré for alleged acts of torture unless it could show that there was not sufficient evidence to prosecute, at least at the time when the applicants submitted their complaint in Dakar in January 2000. With the Court of Cassation’s judgment in 2001 this avenue was, however, closed.71 Therefore, and irrespective of the time, which had passed since the submission of the complaint, the Committee decided that Senegal not only violated its obligations under Article 5(2) to establish the required jurisdiction, but also violated its obligation under Article 7 of the Convention to submit the case to its competent authorities for prosecution.72

70  Similarly, the ICJ considered in the Habré case the arguments brought forward by Senegal in order to justify why Habré had not been prosecuted or extradited. Senegal’s suggestion that it had been embroiled in a lengthy and complex process of legal reform until 2007 in order to establish jurisdiction in conformity with Article 5(2) and that it had hence not been in the position to submit the case to its competent authorities as required under Article 7(1) was rejected by the Court. The ICJ argued that the failure to initiate proceedings under Article 7(1) cannot be justified with the lack of domestic legislation.73 Referring to Article 27 of the Vienna Convention on the Law of Treaties, which reflects customary law, the Court held that domestic law cannot be invoked to justify a non-performance of obligations undertaken in an international treaty such as those included in Article 7 CAT.