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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: 31 May 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 d